Morrison and Comcare
[2003] AATA 181
•25 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 181
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/600; N2002/415
GENERAL ADMINISTRATIVE DIVISION
Re: KEVIN DAVID MORRISON
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr J. Campbell, Member
Date: 25 February 2003
Place: Sydney
Decision:In relation to Application N2001/600, the decision under review is set aside and in substitution the Tribunal decides that the applicant suffered an injury, being the displacement of his L4-5 disc and pressing on the adjacent nerve root, in the course of his employment on 25 May 1998.
In relation to Application N2002/415, the decision under review is set aside and in substitution the Tribunal decides that the applicant suffered an injury, being the further displacement of his L4-5 disc and pressing on the adjacent nerve root, in the course of his employment on 14 July 2000. The respondent is liable to pay compensation under ss.14 and 19 of the Act in respect of Mr Morrison’s incapacity for work during the following periods in 2000: 17 July to 19 July, 21 July to 25 July, 1 August to 30 August, and 6 September to 17 October. Pursuant to s.16 of the Act, the respondent is liable to pay compensation for the medical treatment in respect of this injury, including the discectomy performed by Dr Maxwell on 3 October 2000.
The respondent is liable to pay the applicant's costs of these proceedings in accordance with the Tribunal’s General Practice Direction.
(sgd) P. J. Lindsay
Senior Member
© Commonwealth of Australia (2003)
CATCHWORDS
COMPENSATION – displacement of lumbar intervertebral disc – whether work related accidents caused injury to disc – whether employer liable for compensation – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss. 6, 14, 16, 19, 53
Comcare v Nicholls [1999] FCA 209
Re Dowde and Comcare Australia [1995] AAT No. 101591
Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191
Re Bingham and ASP Ship Management unreported, decision no. 11957, 18 June 1997
Re Buttfield and Comcare [2001] AATA 335REASONS FOR DECISION
Mr P.J. Lindsay, Senior Member
Dr J. Campbell, Member
1. Mr Kevin Morrison, the applicant, has applied to the Tribunal for a review of two decisions made by the respondent concerning his claim for compensation for injuries to a disc in his back. At the hearing, Mr Morrison was represented by Mr R. de Meyrick, of counsel, and Ms L. Walker, of counsel, appeared for the respondent. Evidence was given by Mr Morrison, Dr D. Maxwell and two lay witnesses, Mr J. Egan and Mr R. Law. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.
background
2. Mr Morrison, who was born on 7 February 1958, is married with two teenage children. He is employed by the Australian Nuclear Science and Technology Organisation (ANSTO) as a business accountant.
3. On 13 September 2000 he submitted: a claim for compensation in respect of a workplace accident that happened at ANSTO’s premises on 25 May 1998; and an injury report about an injury to his back at work on 14 July 2000. The claim form relating to the injury on 25 May 1998 stated (T12):
Question 17
(a) In your own words, describe the injury or illness as fully as you can (there is no need to use medical terminology)
Response: Bulging disk in lower back.
(b) What part of the body is affected (eg. lower back)?
Response: Lower lumbar region, hip and leg.
(c) In your own words describe how this injury affects you (eg. ‘I am unable to drive a motor vehicle’; ‘I cannot sit for longer than 15 minutes’.)
Response: After a number of hours I need to lay on my side to relieve pain.
Question 23
Were there any witnesses to your injury / illness?
Response: No.
4. In the report of the injury on 14 July 2000 (T14), Mr Morrison described his injury as “a re-occurrence of a previous injury incurred on 25 May 1998”. On 26 October 2001 he lodged a claim for compensation in respect of the injury on 14 July 2000.
5. On 3 October 2000 Dr Maxwell performed a discectomy on Mr Morrison.
6. The respondent wrote to Mr Morrison on 17 October 2000 to inform him that it would not accept liability for the injury sustained on 25 May 1998 which the respondent classified as displacement of intervertebral disc – lumbar (T25). The respondent’s letter stated that there was insufficient evidence available to establish that the injury was work related. Further, the determination noted:
Having regard to the evidence presented and the provisions of the [Act] I have decided to disallow your claim in accordance with s.14 of this Act….. My findings are:
There is insufficient evidence available to establish that your displacement of inter-vertebral disc-lumbar (unspecified/not applicable) is work related.
In assessing your file it is apparent that there was no report made of an incident in May 1998 from which your current condition could have arisen.
It has been confirmed that no incident report was lodged in 1998 and no verbal report made of an accident / incident to the relevant department / staff member. As such there is no record to confirm that the injury you currently suffer from occurred as claimed in 1998 or is related to your employment.
… I am unable to consider that the condition you currently suffer from was sustained while at your place of work for the purposes of your employment and as such I am disallowing this claim for compensation …
In conclusion, he was informed that he did not satisfy the requirement of s.6 of the Act, there being no causal relationship between the injury and employment.
7. By a reviewable decision made on 19 March 2001 under the Safety, Rehabilitation and Compensation Act 1988 (the Act) of an independent review officer of Comcare (T48), the determination made on 17 October 2000 was affirmed.
8. Another reviewable decision was made on 13 March 2002 (T29) to affirm a determination made on 27 November 2001. The determination stated that (T22):
I refer to your claim relating to displacement of inter-vertebral disc-lumbar sustained on 14/7/2000. … My findings are:
There is insufficient available evidence to establish that your displacement of inter-vertebral disc-lumbar occurred as claimed. …
There is insufficient evidence available to establish that your displacement of inter-vertebral disc-lumbar is work related. …
You do not satisfy the requirements of section 6 relating to injuries arising out of, or in the course of, your employment. …
It is noted that no new evidence has been submitted in relation to the incident of 14 July 2000. I therefore believe that the issues surrounding your current claim have been addressed in the reconsideration decision of 19 March 2001 … which is currently awaiting hearing by the AAT.
Evidence
Injury on 25 May 1998
9. Mr Morrison gave evidence about an open day held at ANSTO’s premises in May 1998. He said that in the morning of 25 May 1998, the day following the open day, he had to move some furniture and items of office equipment back to their usual places. Although his is an office role, he was expected and required to do physical work. Mr Morrison said he tried to put a photocopier back into position on its wooden base board. He squatted down and lifted the photocopier from underneath. In doing so, he felt what he called a release in his lower back and pain, a little above his belt line, about an hour afterwards. He then left the photocopier where it was until some colleagues, Mr John Egan and Mr Peter Holden, came and gave him a hand with it. He said that he felt a bit of discomfort for the rest of the day. Pain across his back and in his right buttock increased later in the day. He said he had not had problems with his back prior to the photocopier incident.
10. On 27 May 1998 he went to a chiropractor, Mr Keiran Shanahan at the Macquarie Place Chiropractic Centre, because he did not feel quite right and wanted to get something done about it. Mr Morrison thereafter consulted Mr Shanahan on alternate days for over a week. On 27 July 1998 Mr Shanahan provided the applicant with a certificate noting that he was suffering from acute sacroiliac strain and would not be fit for duties for seven days. Over the next few months, he continued to visit the chiropractor, though less frequently, until about February 1999, by which time he no longer had the pain in his leg. Mr Morrison said that despite completing this treatment, his back and right leg did not feel as well as they did prior to the photocopier incident.
11. The clinical notes of the Macquarie Place Chiropractic Centre were admitted in evidence (Exhibit R1). In relation to Mr Morrison’s attendance on 27 May 1998, the clinical notes recorded the complaint as pain in the lower back which began about a week ago. The condition was recorded as one that comes and goes. It was annoying as opposed to severe or moderate, was dull, not sharp or aching, throbbing or uncomfortable, but was sometimes shooting. The cause of the pain was noted as recent lifting and using a poor chair, but there was no reference to Mr Morrison’s work. The consultation on 13 June 1998 noted the applicant had been pretty good until kicking at soccer and on 25 June he had been very good until moving stuff. On 6 July 1998 the chiropractor noted Mr Morrison had carried out some heavy garden work, on 18 July he was terrible, on 20 July he was sleeping on the ground, yet on 15 September he was moving rocks. In cross-examination Mr Morrison agreed that the chiropractor’s records correctly noted that in July and September 1998 he did some heavy work in his garden in preparation for renovations to his home. He also agreed that he saw the chiropractor on 4 February 2000 after being involved in a motor vehicle accident.
12. Following the injury on 25 May 1998 Mr Morrison said he continued playing soccer during lunch breaks at work but found that he could not reach out fully on his right side. He thought that the restriction in his right side was also apparent when he played soccer during the winter months of 1999.
13. Mr Morrison did not report the injury until September 2000 when he made a claim for compensation. His claim noted that there were no witnesses to the incident. Under cross-examination he agreed that, as a former occupational health and safety representative at ANSTO, he was aware that there was a requirement to report injuries even though compensation was not being claimed. He thought that the main purpose of the incident report was to inform the employer of witnesses. Mr Morrison said that at the time, he was not aware that there were witnesses to his first lifting the photocopier on his own, as opposed to trying to get it back onto its base board. In further explanation, he said that ANSTO staff who reported injuries were perceived as malingerers. Also he said he thought he would get better by seeing a chiropractor for a short period of manipulation. At the time he did not realise he had suffered a severe injury. Ms Walker put it to him that his initial consultation with the chiropractor on 27 May 1998 had nothing to do with lifting the photocopier. He disagreed and said he consulted the chiropractor because of the pain in his lower back that resulted from moving the photocopier.
Injury on 14 July 2000
14. Mr Morrison then referred to another incident, on 14 July 2000, that involved his carrying a heavy item of furniture. He wanted to move a credenza into his office. With the help of a colleague, Mr Russell Law, he lifted and carried the credenza for about 50 metres. In his estimate, it weighed 100 -120kgs. Apart from feeling pretty tired, he said that he felt no immediate ill-effects, but the next day he woke up and was sore in the back and in the buttock, the same places he injured in the photocopier incident. On 17 July 2000, Mr Morrison consulted a chiropractor who gave him three days off work. He returned to work on a Thursday, but said the pain was still as bad as the days when he was off. He saw the chiropractor again that weekend for treatment. Thereafter, he would attend a chiropractor for treatment as required, and would go to work if he felt able. On occasion, the chiropractor would give him a couple of days off work.
15. On 2 August 2000, Mr Morrison consulted his G.P, Dr Salmon, whose clinical notes were admitted in evidence as Exhibit R2. Dr Salmon’s notes of the consultation recorded a fall off a ladder four weeks previously and she queried whether there was a disc lesion. Dr Salmon noted paraesthesia in his back, right calf and headaches, and that Mr Morrison injured his hips in the fall. On examination Dr Salmon observed a marked scoliosis. A CT scan was obtained and a report dated 3 August 2000 by Dr Gudex to Dr Salmon (Exhibit R3) concluded that there was a prominent posterior bulge at L4-5 but no acute bony injury was shown at the lumbar spine or pelvis. Mr de Meyrick asked the applicant about this consultation. Mr Morrison said the context of the consultation was previous discussions about his work related anxiety. On physical examination, Dr Salmon asked him about the bruise and he informed her of the ladder incident. Mr Morrison explained the circumstances of his fall from the ladder. He said that while on the first rung of a step ladder, he had reached for some paint, lost his balance and although he did not fall from the ladder, fell against the wall. He said he hurt his left hip causing bruising. He did not tell her about his injury from carrying the credenza. In cross-examination Mr Morrison agreed that Dr Salmon’s note on 2 August 2000 concerning the fall off a ladder four weeks earlier, would coincide with the time he visited the chiropractor on 20 June. When asked by Ms Walker whether he recalled Dr Salmon expressing concern that the fall from the ladder could have resulted in a disc lesion, Mr Morrison said he did not remember that.
16. There was a consultation with Dr Salmon on 9 August 2000 where she recorded improvement, yet he still had a marked scoliosis and paraestheisa of the inner thigh. A further consultation with Dr Salmon on 16 August 2000 noted slow improvement but back pain when standing, some right leg pain and scoliosis with spasm. Mr Morrison was having physiotherapy twice a week. On 7 September 2000 Dr Salmon encouraged him to see a specialist and an appointment was made with Dr Maxwell, an orthopaedic surgeon.
17. Mr Morrison said that Dr Maxwell suggested the discectomy. He then realised that the manipulation and other treatment provided by the chiropractor and a physiotherapist he had been seeing, would not provide him with the relief he was seeking. Dr Maxwell performed the discectomy at L4-5 on 3 October 2000.. Mr Morrison had leave until 18 October. He feels that he has since made a satisfactory recovery, although he still has numbness in his right toes.
18. On 13 September 2000 Mr Morrison completed an injury report in relation to an injury suffered on 14 July 2000 (T14) and also a claim for compensation for the injury sustained on 25 May 1998 (T13). Mr Morrison’s leave records showed that he had a week off work from 20 July 1998 and various periods from 17 July 2000.
19. Dr Hall, an occupational physician who works for ANSTO, prepared a report for ANSTO dated 29 September 2000 (T17). He did not doubt that Mr Morrison has a back problem. However, as to whether the back problem was related to any injury Mr Morrison had suffered at work, Dr Hall stated (T17) “Mr Morrison seeks to relate his present claim to the incident of May 1998 and regard the July 2000 event as an aggravation. Against this would seem to be apparent complete recovery with a reported capacity to do strenuous physical work between the two events. In addition the chiropractor’s diagnosis in July 1998 was sacroiliac strain whereas there is now evidence of nerve root compression. It is not possible to be sure that different body structures were affected on each occasion but what evidence there is would support the conditions being different.”
Mr John Egan
20. Mr Egan is employed by ANSTO. He made a statutory declaration on 13 November 2000 (T30) wherein he stated that approximately two to three years ago, he was standing near Mr Morrison when he saw the applicant moving a photocopier onto its base board. Mr Egan gave evidence that he helped the applicant in lifting one end of the photocopier onto its base. Mr Egan said his moving partitions and signs on the same day as moving the photocopier, would tie in with this kind of work occurring after an open day. Mr Egan did not recall Mr Morrison saying he was in pain at the time of lifting the photocopier. In cross-examination Mr Egan said that, since the day of moving the photocopier, Mr Morrison has mentioned to him a few times that he has done something to his back and that it has not been the same since lifting the photocopier. Mr Egan also told the Tribunal that he had made a number of claims for compensation while working at ANSTO. Although he did not describe a workplace culture that discourages claims for all but serious injury, he said that completing the paperwork is quite time consuming. There has not been a negative response to his own recent claim for physiotherapy for a flare-up of arthritis in his neck.
Mr Russell Law
21. Mr Law has worked at ANSTO for many years. He recalled that in July 2000 he helped the applicant carry a very heavy credenza for about 30 metres to his office. He did not remember Mr Morrison saying anything about hurting his back at the time. Mr Law was unaware of Mr Morrison having a back problem prior to the credenza incident.
Dr Maxwell
22. Dr Maxwell, who is an orthopaedic surgeon, first examined Mr Morrison on 12 September 2000. He obtained a history of Mr Morrison’s injuring his back, right leg and right buttock at work in May 1998 when lifting a photocopier. The pain in his right leg persisted but the back pain improved. Two days after carrying a credenza at work in July 2000, Mr Morrison said he developed pain in the back, mainly on the right side. He developed migraines. Dr Maxwell referred to X-rays of the lumbar spine and right hip as normal. A CT-scan showed some bulging of the right L4-5 disc and some hypertrophy osteoarthritic change in the right L4-5 facet joint. Dr Maxwell’s opinion was that Mr Morrison had “some irritation of the right L4-5 facet joint causing irritation of the right 5th nerve root in association with a bulging disc” (T20). Dr Maxwell next saw Mr Morrison on 28 September 2000. An MRI scan revealed a protrusion of the right L4-5 disc pressing on the adjacent nerve root. Mr Morrison was in severe pain with a marked back spasm. After performing a discectomy on 3 October 2000, Dr Maxwell reviewed Mr Morrison on 10 October and considered him fit to return to work.
23. In a report dated 18 December 2000, Dr Maxwell informed the respondent that he reviewed the applicant on 6 December 2000. Dr Maxwell considered that Mr Morrison’s moving the credenza had resulted in a previous disc prolapse increasing in size, and causing more severe sciatica which did not settle on conservative treatment. He stated
I consider that this disc protrusion was a direct result of his work related injury. He has had an excellent response to his surgery and has now returned to work. He still has some slight numbness in his toes but he has no back or leg pain and has started jogging. … There is no doubt in my mind that both the initial disc protrusion and the subsequent further protrusion were as a result of work-related injuries.(T34).
24. In evidence, Dr Maxwell referred to Mr Morrison’s symptoms of sciatica experienced subsequent to lifting the photocopier and later when carrying the credenza. He said he thought the injury from the credenza was an aggravation of the pre-existing condition that developed two years earlier when lifting the photocopier. In cross-examination Dr Maxwell agreed with Ms Walker that Mr Morrison’s disc protrusion could have resulted from traumas while lifting rocks, heavy gardening work or falling off a ladder. Dr Maxwell considered it significant that Mr Morrison had symptoms of leg pain after lifting the photocopier. Dr Maxwell noted the applicant reported very similar pain following the credenza incident. He told the Tribunal that he thought the photocopier incident caused a small disc protrusion which in turn caused a transient irritation of the nerve. Although he had occasional sciatica, Mr Morrison recovered sufficiently to allow him to play soccer and do strenuous physical work at home. He then carried the credenza and had the further disc protrusion in the same area as previously. Dr Maxwell agreed that a fall from a ladder could cause the increased symptoms of sciatica. He agreed with Ms Walker that the disc prolapse that Mr Morrison suffered, can occur in about 50 per cent of the population between 35 and 55.
applicable legislation
25. The following provisions from the Act are relevant:
Section 6 Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; …
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …
Section 16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. …
Section 53 Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death. …
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
findings and consideration
26. It was submitted for the applicant that he had suffered an injury to his back at work on 25 May 1998 and again on 14 July 2000. Compensation is sought for absences from work from 17 to 19 July 2000, 21 to 25 July 2000, 1 August to 30 August 2000 and from 6 September to 17 October 2000 and the cost incurred for medical treatment of the injuries. Mr de Meyrick submitted that the applicant’s credibility would determine the outcome of the application. If the Tribunal accepted Mr Morrison’s evidence, then it would follow from Dr Maxwell’s evidence that the work injuries have been a substantial cause of his condition that has required surgery and time off work. In relation to the fall from the ladder, being a competing cause of Mr Morrison’s second injury, it was said that it simply resulted in a bruise to the left hip without any exacerbation of pain. Finally in response to Ms Walker’s statement in opening about s.53 of the Act posing an obstacle to the application, Mr de Meyrick conceded that notice of the first injury was not given as soon as practicable. He emphasised, however, that the respondent did not suffer any prejudice. In any event, he submitted there was reasonable cause. Mr Morrison did not put in a claim for compensation straight away, because his attitude is to deal on his own with an injury that is not serious or permanent. In this regard Mr de Meyrick cited Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191, where two years elapsed prior to notice being given, a decision that has been followed in Re Bingham and ASP Ship Management unreported, decision no. 11957, 18 June 1997 and Re Buttfield and Comcare [2001] AATA 335.
27. Ms Walker submitted for the respondent that s.53 of the Act applied to the injury to Mr Morrison on 25 May 1998 because his failure to give written notice of the injury as soon as practicable after it occurred had prejudiced the respondent. Ms Walker submitted, had the employer been aware of his back injury, it would have been possible for steps to be taken to reduce his exposure to further risk of injury through lifting equipment and furniture. There was also the disadvantage caused to the respondent in that it could have arranged for a medical assessment at the time of the initial injury, and in this respect Ms Walker referred to Re Dowde and Comcare Australia [1995] AAT No. 101591. Similarly, the respondent could not arrange any occupational rehabilitation for Mr Morrison. Ms Walker submitted that none of the other exceptions in s.53(3) was applicable.
28. It was further submitted for the respondent that Mr Morrison’s lumbar spine condition was constitutional in origin and was developing prior to the incidents that happened at work. Ms Walker referred to the chiropractor’s clinical notes that Mr Morrison had stopped jogging in around February 1998, some months before the photocopier incident, and that the consultation with the chiropractor on 25 May 1998 noted that his back condition had been present for around a month. The respondent did not submit that either the photocopier or the credenza incident did not happen. Ms Walker raised the question whether the return to the chiropractor on 20 June 2000 was for treatment for a back injury, possibly caused by the fall from the ladder. She referred to Comcare v Nicholls [1999] FCA 209 and submitted that the Tribunal must be satisfied that Mr Morrison’s lumbar spine condition, that caused him to have time off work and incur expenses on surgery, is related to injuries that he sustained at work.
29. The Tribunal found Mr Morrison gave his evidence in a rather defensive manner but was not evasive. While recognising that there is an inconsistency between his evidence regarding the consultation with Dr Salmon on 2 August 2000 and her clinical notes of the consultation which do not record discussions about work related anxiety or the credenza incident, we accept his evidence. The Tribunal is satisfied that Mr Shanahan’s notes of the consultation on 27 May 1998 refer to pain beginning about a week ago (“1/52 ago”) not about a month ago as Ms Walker submitted. We make the following findings on the basis of his evidence and that of the lay witnesses:
· Following an open day, Mr Morrison lifted a photocopier at work on 25 May 1998 and caused an injury to his lumbar spine resulting in pain in the lower back, right buttock and right leg.
· In the months following that injury, he had a number of consultations and treatments by his chiropractor. Although Mr Morrison recovered from the injury, symptoms of sciatica persisted and his lower back, right buttock and right leg were never quite the same as prior to this injury.
· With assistance from a colleague, Mr Morrison carried a credenza at work on 14 July 2000 and caused an injury to the same part of his lumbar spine, buttock and leg as he injured on 25 May 1998.
· It was not until his consultation with Dr Maxwell on 12 September 2000, that he first appreciated that his back injury would be properly treated only by surgery.
· As a consequence of his symptoms caused by the injury to his lower back on 14 July 2000, Mr Morrison was absent from work on 17 July 2000 to 19 July 2000, from 21 July 2000 to 25 July 2000, from 1 August 2000 to 30 August 2000, and from 6 September 2000 to 17 October 2000.
On the basis of Dr Maxwell’s evidence we find:
· Given the history of work injuries, Mr Morrison’s disc prolapse was more likely to have been caused by a trauma than spontaneously emerging.
· The injury on 25 May 1998 caused a small disc prolapse at L4-5. There was a further protrusion later that caused the increased sciatica.
· Mr Morrison’s symptoms were aggravated by carrying the credenza on 14 July 2000.
· Mr Morrison reasonably required medical treatment, including a discectomy, as a result of the aggravation on 14 July 2000 to his lower back condition caused by the injury on 25 May 1998.
30. We will start by considering the arguments about s.53. The Tribunal must be satisfied that the respondent will suffer prejudice through Mr Morrison’s failure to comply with s.53 by not giving written notice of his injury of 25 May 1998 until 13 September 2000. Although there was no evidence of prejudice before us, Ms Walker urged the Tribunal to infer prejudice in circumstances where an injury has been sustained at work and the respondent has been unable to arrange a timely medical assessment. Certainly, Mr Morrison has been able to identify a witness to the photocopier incident and the clinical notes of the treating chiropractor are in evidence. Even so, the most likely kind of prejudice to be suffered in a case involving a frank injury, resulting in onset of symptoms shortly thereafter, is the employer’s inability to have the employee medically examined and the injury assessed on a timely basis.
31. In this matter, we are satisfied that the respondent has been prejudiced by Mr Morrison’s failure to give notice as soon as practicable after becoming aware of his injury. Having regard to Mr Morrison’s evidence about his previous role as an OH&S representative at ANSTO, the Tribunal does not accept that his failure to give notice resulted from ignorance or a mistake. That leaves for consideration whether there is “any other reasonable cause” for his inaction. The Tribunal does not accept that there was evidence of a culture at ANSTO that inhibited employees from reporting their injuries for fear of being classed a malingerer. Indeed, Mr Egan gave evidence of a claim for treatment of a recent flare-up of his arthritis suffered while sitting awkwardly during a two day course. Is there any other reasonable cause for his failure to notify as required? Mr Morrison’s evidence was that he had been able to do some very heavy work around his home, including jack-hammering, within a few months of his injury in May 1998. He thought manipulation of his spine would ease his symptoms. We accept that evidence. However, Mr Morrison said that he went ahead and lodged his claim on 13 September 2000 because he had recently received Dr Maxwell’s advice that he required a discectomy. At that point he said he became aware that his back condition would not be improved merely through manipulation and chiropractic treatment. He had hitherto under-estimated the seriousness of his back condition and so decided to notify his employer of the injury sustained on 25 May 1998 which he thought had caused the condition. It is accepted that his not reporting the injury as required, resulted from a reasonable cause, given his belief that the less invasive chiropractic treatment would help his condition, and his ability to perform arduous physical work in the following months (Formoso’s case, Buttfield’s case).. The remedial nature of workers compensation legislation is also noted in this context. The respondent’s submissions concerning s.53, therefore, are rejected. There is no application of s.53 to the accident on 14 July 2000 that Mr Morrison reported on 13 September 2000, the Tribunal being satisfied that such notice was given as soon as practicable after the applicant became aware of his injury.
32. On balance the Tribunal is satisfied that, in the course of his employment by ANSTO, on 25 May 1998 Mr Morrison suffered an injury as defined in s.4 of the Act, that caused a protrusion of the right L4-5 disc that pressed on the adjacent nerve root. Further, the Tribunal, is satisfied that on 14 July 2000, Mr Morrison suffered an injury in the course of his employment that caused the protrusion of that disc to become larger. The injury on 14 July 2000 resulted in his incapacity for work in 2000 during the periods specified in par 29 above. Accordingly, the respondent is liable to pay compensation in respect of the injuries. In addition, under s.16 of the Act the respondent is liable for the cost of the medical treatment provided by Dr Maxwell.
33. The Tribunal makes the following decisions:
· In relation to Application N2001/600, the decision under review is set aside and in substitution, the Tribunal decides that the applicant suffered an injury, being the displacement of his L4-5 disc and its pressing on the adjacent nerve root, in the course of his employment on 25 May 1998.
· In relation to Application N2002/415, the decision under review is set aside and in substitution, the Tribunal decides that the applicant suffered an injury, being the further displacement of his L4-5 disc and pressing on the adjacent nerve root, in the course of his employment on 14 July 2000. The respondent is liable to pay compensation under ss.14 and 19 of the Act in respect of Mr Morrison’s incapacity for work during the following periods in 2000: 17 July to 19 July, 21 July to 25 July, 1 August to 30 August, and 6 September to 17 October. Pursuant to s.16 of the Act, the respondent is liable to pay compensation for the medical treatment in respect of this injury, including the discectomy performed by Dr Maxwell on 3 October 2000.
34. The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr J. Campbell, Member:
Signed: .......................................................................................
AssociateDate of Hearing 30 May 2002
Date of Decision 25 February 2003
Counsel for the Applicant Mr de MeyrickCounsel for the Respondent Ms Walker
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