NEAL Kara v Comcare
[2010] AATA 1031
•22 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/2448, 2009/4384,
GENERAL ADMINISTRATIVE DIVISION ) 2009/4385 & 2009/5484
Re NEAL KARA Applicant
And
COMCARE
Respondent
CORRIGENDUM TO DECISION NO. [2010] AATA 1031
TRIBUNAL: Deputy President D G Jarvis
DATE: 22 December 2010
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in the within proceedings by deleting the date “21 August 1997”, on page 1, paragraph 1(a) and page 46, paragraph 138(a)(i), and replacing that date with “28 July 1997”, being the correct date of the applicant’s accident.
D G Jarvis
(Deputy President)
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/2448, 2009/4384,
GENERAL ADMINISTRATIVE DIVISION ) 2009/4385 & 2009/5484
Re NEAL KARA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Professor PL Reilly, AO, MemberDate20 December 2010
PlaceAdelaide
Decision 1. In matters numbered 2007/2448 and 2009/4384, the tribunal sets aside the decisions under review, and in place of those decisions, decides that:
(a) Comcare is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for severe bruising to chest and right shoulder with damage to AC joint region, chronic pain syndrome and chronic adjustment disorder, hearing loss, tinnitus, headaches, lumbar sprain, left buttock pain, lipomas at the site of soft tissue injury sustained in a motor vehicle accident on 28 July 1997, digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome, and closed fracture of ribs sustained in the accident;
(b) during the period from 1 November 2006 up to and including the date of this decision, the applicant has no entitlement to compensation under the SRC Act for severe bruising to the chest and right shoulder or any closed fractures of the ribs;
(c) subject to paragraph (e), on and from 1 November 2006 and up to and including the date of this decision, Comcare is liable for compensation for the applicant’s ongoing chronic pain syndrome and chronic adjustment disorder, damage to the AC joint region, hearing loss, tinnitus, headaches, an aggravation of the degenerative condition of the applicant’s lumbar spine, lipomas, left buttock pain and a digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome;
(d) Comcare is liable for compensation under s 24 of the SRC Act for permanent impairment in respect of chronic pain syndrome and chronic adjustment disorder, and the degree of permanent impairment in respect of those injuries is 10%; and
(e) Comcare is not liable for compensation under s 24 of the SRC Act for permanent impairment in respect of the right shoulder condition, hearing loss, tinnitus, headaches, aggravation of the degenerative condition of the lower spine, left buttock pain, lipomas or the gastric disorder.
2. In matter numbered 2009/4385, the tribunal sets aside the decision under review, and in place of that decision, decides that:
(a) Comcare is not liable under s 14 of the SRC Act for compensation for vertigo; and
(b) Comcare is liable for compensation under s 24 of the SRC Act for permanent impairment in respect of sexual dysfunction with a deemed date of injury of 4 April 2000, and the degree of permanent impairment in respect of that injury is 15%.
3. In matter numbered 2009/5484 (relating to the claim for myocardial infarction) the tribunal affirms the decision under review.
4. The tribunal remits the matter to the respondent for reconsideration, and directs that the applicant’s entitlement to compensation under ss 16, 19, 24, 27 and 29 of the SRC Act be assessed in accordance with the above decisions and the reasons for them.
5. The tribunal reserves liberty to apply within twenty-one days in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent pay the costs of the proceedings insofar as those costs relate to the decisions referred to in paragraphs 1(a), 1(c), 1(d) and 2(b).
D G Jarvis
[Signed]
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – employee of DSTO – disputed medical and surveillance evidence – decision that applicant no longer suffering from chest and shoulder injuries affirmed – decision that applicant no longer suffering from depressive disorder set aside – tribunal not satisfied that administrative action was reasonable, or that such action or failure to obtain a promotion or benefit made a material contribution to a psychological condition – decision that Comcare not liable for vertigo or myocardial infarction affirmed – held that Comcare liable for permanent impairment for psychological condition and sexual dysfunction.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 19, 24, 27 and 29
Australian Postal Corporation v Burch (1998) 85 FCR 264
Comcare v O’Dea (1997) 26 AAR 252
Fellowes v Military Rehabilitation and Compensation Commission (2008) 103 ALD 552
Jordan v Australian Postal Corporation (2007) 99 ALD 303
Kavanagh v The Commonwealth (1980) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
McDonald v Director-General of Social Security (1984) 1 FCR 354
Pham v Workers Rehabilitation and Compensation Corporation and Wingfield Heat Treaters (2005) 181 LSJS 241
State Government Insurance Commission v Laube (1984) 37 SASR 31
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Wiegand v Comcare (2002) 72 ALD 795
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006)
REASONS FOR DECISION
20 December 2010 Deputy President D G Jarvis
Professor PL Reilly, AO, Member1. The applicant, Neil Kara, was previously employed by the Defence, Science and Technology Organisation (DSTO) of the Department of Defence. He was involved in a motor vehicle accident on 28 July 1997, and claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for the injuries he sustained. By determinations made on various dates, Comcare accepted liability for “severe bruising to chest and right shoulder with damage to AC joint region, depressive disorder, unspecified hearing loss, tinnitus, lumbar sprain (left), lipoma[s] of other specified sites (right), specified gastritis and closed fracture of rib(s) (right)” (the “compensable injuries)” (exhibit R1, T452, page 844).
2. Initially Dr Kara was incapacitated from work due to the injuries he sustained in the accident until 21 August 1997. However, he had ongoing symptoms and later developed a depressive disorder. He has not worked since November 2001, after he was absent first on recreation leave and then in accordance with various medical certificates certifying that he was incapacitated for work. His employment was formally terminated with effect from 23 January 2008 on the basis of his inability to perform his duties because of physical or mental incapacity (exhibit R1, T11, page 1707).
3. By a determination dated 1 November 2006, Comcare decided that Dr Kara was not suffering from the effects of the compensable injuries, and that therefore compensation was not payable pursuant to ss 16, 19, 24, 27 or 29 of the SRC Act. That determination was affirmed in a reviewable decision dated 16 April 2007 (exhibit R1, T477, page 889).
4. The determination dated 1 November 2006 was reconsidered by a delegate of Comcare in a decision dated 4 August 2009, and the determination was again affirmed (exhibit R2, T111, page 328).
5. By a determination dated 19 September 2008, Comcare rejected Dr Kara’s claim for compensation for impotence and vertigo as secondary conditions to the injuries he sustained on 28 July 1997. That determination was affirmed in a reviewable decision dated 4 August 2009 (exhibit R2, T112, page 335).
6. By a determination dated 28 May 2009, Comcare rejected Dr Kara’s claim for compensation for acute myocardial infarction. That determination was affirmed by a reviewable decision dated 16 September 2009 (exhibit R3, T44, page 98).
7. Dr Kara has applied to this tribunal for review of each of the reviewable decisions referred to in paragraphs 3 to 6 above. His applications for review of the reviewable decisions referred to in paragraphs 3 and 4 are the subject of application numbers 2007/2448 and 2009/4384 in this tribunal. The application for review of the reviewable decision referred to in paragraph 5 above is the subject of application number 2009/4385 in this tribunal. His application for review of the reviewable decision referred to in paragraph 6 above is the subject of application number 2009/5484 in this tribunal. All of the applications were heard together, and we have treated evidence produced in each application as evidence in all of the other applications.
Issues before the Tribunal
8. The issues before the tribunal in matters number 2007/2448 and 2009/4384 are as follows:
(a)whether Comcare is liable for compensation for the compensable injuries, or any other injuries that were the subject of claims for compensation by the applicant that were properly before the primary decision maker;
(b)whether Dr Kara has continued to suffer the effects of such injuries or any of them on and after 1 November 2006, and if so, whether Comcare is liable to pay compensation to Dr Kara in respect of those injuries or any of them;
(c)whether Comcare is liable to pay compensation to Dr Kara in respect of all or any of such injuries pursuant to ss 16 and 19 of the SRC Act;
(d)whether as at 1 November 2006, Dr Kara suffered any impairment as a result of any such injuries, and if so whether as at that date he had any entitlement to compensation for permanent impairment under either or both of ss 24 and 27 of the SRC Act; and
(e)whether in or about late 2001 or early 2002, Dr Kara suffered a further mental injury for the purposes of the SRC Act, and if so:
· whether that injury was materially contributed to by his employment;
·whether that injury was materially contributed to by reasonable disciplinary action or by Dr Kara’s failure to obtain a promotion, transfer or benefit in connection with his employment; and
· whether Dr Kara has any entitlement to compensation for that further injury.
9. In matter number 2009/4385 the issues before the tribunal are whether Dr Kara suffers sexual dysfunction and vertigo, and if so:
(a)the date of injury of those conditions;
(b)whether those conditions are an ailment, or the aggravation of an ailment, that were contributed to in a material degree by Dr Kara’s employment; and
(c)whether Comcare is liable to pay compensation to Dr Kara for those conditions.
10. In matter number 2009/5484 the issues before the tribunal are:
(a)if the condition is an injury, whether the injury arose out of or in the course of Dr Kara’s employment;
(b)whether myocardial infarction is, for the purposes of the SRC Act, an injury or a disease; and
(c)if the condition is a disease, whether it was contributed to in a material degree by Dr Kara’s employment; and
(d) whether Comcare is liable to pay compensation in respect of the condition.
11. Dr Kara represented himself at the hearing. On the final day, he produced a list of “demands and compensations”. This included claims for legal costs previously incurred and various witness expenses and costs; lost superannuation income, payment of employer superannuation contributions and leave including long service leave, all up to 65 years of age; reimbursement of leave previously taken; and compensation from Comcare for the asserted effect on him of their actions in connection with his claims for compensation. As we explained to Dr Kara, this tribunal has no jurisdiction to entertain the majority of these demands, and may only exercise the jurisdiction conferred on it by the SRC Act, which imposes liability for compensation and an entitlement to costs and expenses in the circumstances provided for in the Act.
Background Facts
12. The following background facts are not in contention, and are derived from the evidence of Dr Kara and the documentary material before us.
13. Dr Kara is aged 63. He was born in Turkey and went to school there. When he was 19 he went to Germany and attained a double Masters degree in electronics and telecommunications. He migrated to Australia in 1983 and studied at the University of Adelaide. He attained a PhD in 1997.
14. In 1988 he went to Canberra and worked for the Civil Aviation Authority for about two and a half years. He then obtained a position with the DSTO in Adelaide and commenced in June 1990 as an Engineer Class 2. He was involved in research work as a research engineer. He had started to publish papers in 1988, and published six or seven papers in 1996, and five papers in the next year. He was promoted to the position of research scientist in 1997, and was given classified work to do for the Royal Australian Navy. He gave evidence that he was then very happy and productive, until he had the accident.
15. The accident involved a collision with another car. Dr Kara was rendered unconscious, and his first recollection after the accident was being in an ambulance on the way to the Balaklava Hospital. He was admitted to the hospital, and according to its records (exhibit A46), his main problem was pain in the right shoulder caused by a probable undisplaced fracture of the acromion, and he had severe bruising of the right shoulder and chest. He also experienced pain in the lower back and buttocks which was worse on lying or sitting down, and pain down his left leg to his left foot. About a week after the accident he experienced tinnitus, which has continued ever since, and it is more pronounced in the left ear.
16. He was referred to an orthopaedic surgeon, Dr Campbell, who reported that as at 20 November 1997, he was suffering from subacromial impingement and acromio-clavicular irritation of his right shoulder (exhibit R1, T14, page 26). Dr Kara had previously had physiotherapy treatment, anti-inflammatory medication, and steroid injections. As a result of continuing trouble with his shoulder, he underwent surgery on 10 June 1998. He was then incapacitated for work until 24 September 1998, when he resumed work in an office at home under a return-to-work plan, using a computer which the DSTO provided him. He resumed work at the DSTO’s premises in about October 1998.
17. He applied for compensation for household services pursuant to s 29 of the SRC Act, and this was first approved by Comcare in October 1998, and periodically after than until Comcare made its determination dated 1 November 2006. In his various applications for compensation for payment of household services under s 29 of the SRC Act, Dr Kara stated that the gardening tasks that he could not undertake included lawn-mowing and gardening. We refer, for example, to his first such application date stamped 24 September 1998 (exhibit R1, T37, page 61), and also to his application dated 31 October 2005, in which the household or attendant care tasks that he required due to his compensable injuries included “carport, verandas [sic], driveway sweeping, cleaning” and “lawn-mowing, gardening, pruning ...” (exhibit R1, T391, page 671).
18. Dr Kara continued to experience various symptoms and conditions that he attributed to the injuries he sustained in the accident, and these included pain in the right shoulder, lower back and chest, headaches, tinnitus, hearing loss, gastritis, depression and lipomas. He gave evidence (to which we will refer below) as to their effect on his capacity for work and activities of daily living. He was unsuccessful in certain applications he made for promotion between 1999 and 2001, and in 2001, the Department of Defence carried out investigations as to whether Dr Kara had committed security breaches arises out of his use of the computer at home. We will refer further to these matters below.
19. As mentioned above, Dr Kara commenced recreation leave in November 2001. He did not return to work at the end of this leave, on 31 January 2002, but instead was certified unfit for work by reason of aggravation of his degenerative lumbar spine and subsequent emotional distress (exhibit R1, T186, page 286). Subsequent medical certificates were provided to the DSTO, and in a certificate dated 2 September 2002, his treating doctor, Dr Graham Wright, who is an occupational physician, certified that he was permanently unfit to return to the DSTO (exhibit R1, T208, page 320). The DSTO then engaged an external consultancy in order to find alternative work suitable for Dr Kara, having regard to his work restrictions, but no other employment was found for him.
20. In October 2005, Dr Kara advised Comcare that he was planning to travel overseas to Turkey because of a family emergency. The Department of Defence then requested the Investigation Management Unit of Comcare to carry out surveillance of Dr Kara. Investigators observed him to undertake a number of activities over a period from 24 November to 6 December 2005, a period when (as he protested) Comcare knew that his wife was away. These activities were recorded on video, and included gardening continuously for over an hour during which he appeared to be able to bend and move in an unrestricted manner. The video also shows him driving a car on various occasions, and his movements when shopping in a supermarket and when refuelling a car and checking its tyres.
21. Comcare subsequently arranged for the surveillance evidence to be provided to various doctors who had previously provided medico-legal assessments. After receiving further medical reports which referred to the surveillance evidence, Comcare made the above determination dated 1 November 2006 to the effect that compensation was not payable to Dr Kara pursuant to ss 16, 19, 24, 27 and 29 for medical treatment, incapacity, permanent impairment, non-economic loss or household and attendant care services.
Legislative Scheme
22. Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:
“14(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.”
23. The requisite connection between a psychological condition suffered by an employee and his or her employment is provided for indirectly, via the definitions of “injury” and “disease” in s 4(1) of the SRC Act. Under the Act as then in force, these definitions provided relevantly as follows:
“injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
...
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
24. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
25. Section 7(4) of the SRC Act provides:
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
26. Section 16 of the SRC Act provides in effect that where an employee suffers an injury, Comcare is liable to pay the cost of reasonable medical treatment obtained in relation to the injury.
27. Section 19 provides in effect that Comcare is liable to make incapacity payments where an employee is incapacitated for work as a result of an injury, and provides for how such incapacity payments are calculated.
28. Section 24 provides for compensation for injuries resulting in permanent impairment, and for the amount of compensation payable for permanent impairment, including compensation for non-economic loss, which is to be assessed pursuant to s 27. Under s 25(7), if Comcare determines that the degree of permanent impairment is less than 10%, compensation is not payable to the employee for permanent impairment.
29. Section 29 provides in effect that where as a result of an injury to an employee, he or she obtains household services that are reasonably required, Comcare is liable to pay reasonable compensation in respect of the amount paid or payable by the employee for those services.
Applicant’s Evidence as to Effects of Accident
30. Dr Kara gave evidence that he has pain in his right shoulder if he carries more than one to three kilograms, if his right arm is hanging alongside his body for more than about five or ten minutes or if he lies on his right shoulder. He said he does not have symptoms if he does not use his right hand.
31. He gave evidence that he also has a burning sensation in his lower back and buttocks all the time, and this gets worse if he is lying or sitting down. He said that he lies on his chest to get a bit of relief from this pain. The pain in his lower back and buttocks and right shoulder interfered with his ability to work at the DSTO, and after returning to work following the accident he spent much of his working time standing up.
32. Dr Kara also said that he experienced numbness in his ears after the accident, and about a week later got tinnitus, and has suffered from that ever since. He was referred to specialists, and it was found that he had a hearing loss. He said that he had not been exposed to noisy environments prior to the accident.
33. He developed a blurring of vision which he described as vertigo. He said that this can occur every two days and can interfere with his driving and using his computer.
34. Dr Kara’s claims for compensation for the various injuries that he asserts, and his description of the progress of those injuries, are recorded in the section 37 documents in the four proceedings before us. The section 37 documents are voluminous, and run to over 2,200 pages. In addition, more than 40 exhibits were tendered.
35. Dr Kara gave evidence describing his conditions and their effect on him. His evidence was broadly consistent with a detailed letter dated 15 March 2005 (exhibit R1, T331, page 562), which lists the various injuries for which he is claiming compensation. He refers in this letter to having gone from a “healthy, sporty, ambitious and hard-working middle-aged man to a man, who is in constant pain, frustrated, depressed and unemployable”. He lists the injuries for which he is claiming compensation, and these include the compensable injuries (for which Comcare had previously accepted liability, as mentioned above), and also:
“(1) Severe bruises and cuts to chest, right arm and shoulder
(2) Aggravate degenerate change lumper spine [sic]
(3) Continuous Heavy Headaches
(4) Broken and very badly healed right (L5) rib
(5) Broken and badly healed left last (rib)
(6) Gallstones
(7) Numbness and pain in my left leg
(8) Unbearable pains in side of my left foot including heel
(9) Drug-related side effects i.e. nausea, vomiting, blurriness, mouth and nose
dryness, loss of appetite, etc.”
The letter then proceeds to provide further information in relation to each of the asserted injuries, and also refers to the extensive medication which he was taking.
36. In an earlier letter to Comcare, dated 24 February 2005, Dr Kara said:
“As you know, my major problems are my ongoing back spine pains, pains in the left side of my chest in the region of a fracture of the ribs and pains on the right side shoulder in region of damaged AC joint. I am unable to lie down or sit down neither on my left or on my right side or on my back or on my stomach. Unfortunately, I am unable to lie down or sit down, even not for 1 minute.” (exhibit R1, T325, page 552).
37. Further detailed information is contained in a non-economic loss questionnaire dated 8 September 2005 (exhibit R1, T379, page 640). In relation to mobility, Dr Kara stated that he could not walk for more than 15 minutes without having to stop because of pain, and that he was unable to drive long distances because of the pain associated with sitting in a car and the risk of migraines impairing his vision (exhibit R1, T379, page 647). Under the heading “Social Relationships” he said that he only rarely had the energy or desire to leave the house, and several days could go past without his leaving his bedroom.
Evidence Leading to Cancellation of Entitlement to Compensation
38. As mentioned above, video film was taken of Dr Kara’s activities on various dates between 24 November and 6 December 2005.
39. The video shows Dr Kara getting into and out of his car and driving it on various occasions, refuelling his car at a service station, checking the tyres (when he squatted fully and repeatedly, and bent down and stood up again without apparent effort), reaching with his right arm to close the hatch of his car, shopping and placing goods into a trolley, unloading luggage at Adelaide airport, and working in the garden of his house for more than an hour. During this last activity, he appears to have been able to bend, squat fully, work in a squatting position while leaning forward and then stand up again with a fluid unrestricted motion. The video also shows him reaching forward with both arms at or just above 90 degrees to the body, and on one occasion, without apparent effort, reaching above his head to cut a branch using shears. The video shows no evidence of loss or restriction of back function.
40. Comcare’s determination on 1 November 2006 that Dr Kara was not suffering from the effects of the compensable injuries was made by reference to medico-legal assessments which it had received from certain specialists who had commented on the surveillance evidence recorded by the video of Dr Kara’s activities in late 2005. Comcare provided Dr Kara with a copy of these reports under cover of a letter of 7 September 2006, and invited him to provide further evidence to support his claim for compensation. The letter also enclosed a statement of reasons, which included extracts from the medical reports, and referred to a provisional intention to find that in view of the further medical evidence, Comcare was not then liable for compensation (exhibit R1, T452, page 844).
41. On the hearing of the proceedings before us counsel for Comcare, Mr Cole, submitted on the basis of the video evidence (as well as by reference to other aspects of the evidence before us) that Dr Kara was not a witness of truth, and that notwithstanding Comcare’s earlier acceptance of liability for the compensable conditions, we should find that Comcare is not liable for those conditions.
Consideration
42. It is well established that the SRC Act contemplates an evolving process of decision-making. It is therefore competent for us to determine whether or not Comcare is, or has since 1 November 2006, been liable for the compensable conditions, notwithstanding that Comcare had previously accepted liability for those conditions: Telstra Corporation Limited v Hannaford (2006) 151 FCR 253.
43. Our function is to review the decisions under review as well as Comcare’s liability for any other injuries that were the subject of claims for compensation by the applicant and were properly before the primary decision-maker. In doing so, we must find the relevant facts on the balance of probabilities from the material before us, and to apply the relevant provisions of the SRC Act to the facts so found. In performing this function, we are exercising the powers conferred by the SRC Act on the decision-makers who made the decisions under review: Comcare v O’Dea (1997) 26 AAR 252 at 257, and the cases there cited.
44. The SRC Act does not impose an onus of proof on either party. However, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 358. In that case, Woodward J pointed out that the legislation there under consideration, namely the Social Security Act 1947 (Cth), did not provide for any onus of proof, and continued:
“If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.”
45. As we understand it, the primary contention on behalf of Comcare is that in the light of the evidence now before us, liability should not have been admitted for the compensable injuries, because the medical evidence on which Comcare had acted depended on the veracity of Dr Kara’s history, and that has been shown to be incorrect. Comcare’s alternative contention is that there is evidence of changed circumstances, and those compensable injuries that constituted diseases have ceased to be materially contributed to by his employment as at 1 November 2006.
46. In assessing Dr Kara’s credibility, we take into account that he clearly has intense feelings of anger (towards DSTO and Comcare), frustration and loss, and these feelings, in combination with his personality and depressive disorder, undoubtedly affected his evidence and demeanour. Nevertheless, we have reservations as to whether Dr Kara has given a correct account of the effects, and relationship to the accident, of all of the injuries for which he has claimed compensation, having regard to the activities in which he was engaged as appearing in the surveillance video. We do not think that he has sought to give misleading evidence, but he was evasive and unable to be objective as to a number of issues. We think that he has magnified the extent of his pain and disabilities, and do not accept the reliability of Dr Kara’s evidence. We shall address Dr Kara’s claims for compensation by reference to each “injury” which is referred to in the decisions under review.
Shoulder and lower back left buttock injuries
47. We referred in paragraph 16 above to the injury which Dr Kara sustained to his right shoulder. This led to an arthroscopic acromioplasty of the shoulder that was undertaken on 10 June 1998, and a subsequent period of incapacity for work.
48. In a follow-up report dated 8 June 1999 the surgeon, Dr Campbell, reported that in the months following the accident, Dr Kara’s symptoms had changed in that the AC joint pain had settled but was overshadowed by rotator cuff tendonitis, which required surgical decompression. However, that tenderness had recurred somewhat following the surgery, and Dr Campbell considered that the symptoms were due to right AC joint degeneration of a post-traumatic nature. Dr Campbell also reported that Dr Kara was suffering from left ischial region pain, which was presumed to be ischial bursitis, although that diagnosis had not been supported by prior extensive investigations by way of ultrasound, MRI scan, bone scan, or diagnostic injections into the ischial bursa or the piriformis tendon region. Dr Campbell considered that the cause of the left ischial pain was probably a direct blow to the ischium, and he described the effects and symptoms as quite severe (exhibit R1, T79, page 119). He further reported that Dr Kara had trouble sitting for any period of time, such as driving to work, or whilst at his desk, as a result of the ischial pain. He thought it likely that Dr Kara would have some “mild restriction of his shoulder in the longer term, perhaps 5% to 10% of shoulder function.” (exhibit R1, T79, page 121). He added that he was unable to give a diagnosis in respect of the ischial pain, given that there was no firm working diagnosis. We note that Dr Kara has consistently complained of this pain, and there are many contemporaneous records evidencing these complaints. We accept that he has a painful condition of the left buttock that was caused by the accident, and we find that Comcare is liable for this condition notwithstanding the absence of a definitive diagnosis of this condition or its medical cause: see the approach in Pham v Workers Rehabilitation and Compensation Corporation and Winfield Heat Treaters (2005) 181 LSJS 241 at 246-7.
49. Dr Wright, an occupational physician who first saw Dr Kara in June 1999 on referral from Dr Campbell, and later became Dr Kara’s treating physician, provided a large number of reports regarding Dr Kara’s various asserted conditions. One of those reports was a report dated 4 October 2006 to Comcare (exhibit R2, T33, page 67), which he wrote at Dr Kara’s request. He recorded that he had watched the surveillance video, and had read excerpts of reports from Dr Awerbuch, Dr Burns, Dr Matison, Dr Reid and Dr Davis, which had been sent to Dr Kara on 7 September 2006. He reported that Dr Kara had advised him as follows:
“On 3 December 2005, not having heard from his wife for six weeks and being in a distressed state, he took excess medication, comprising 4 methadone, 4 Panadine forte, celexbrex, temaze and Avansar, laid down for a while, and then, as he put it, ‘lost myself’, did not remember being in the garden that day, and had not slept the night before. He further reported that prior to going to the airport on 6 December 2005, he took an additional 2 morphine tablets, because he knew that some luggage transfer would be required at the airport.”
50. Dr Wright then proceeded to comment on Dr Kara’s appearance in the surveillance video, and concluded that Dr Kara had “consistently exaggerated his physical disabilities when he presents to me in the office.” He then referred to having certified as to Dr Kara’s need for home help over the years, and concluded that Dr Kara had exaggerated his incapacity in relation to that need. However, Dr Wright also said that he remained convinced that Dr Kara had a mental disorder, and referred to past diagnoses and treatment for depression, and to Dr Kara’s personality and perceptions.
51. In a later report dated 5 February 2008 (exhibit R2, T46, page 96), Dr Wright assessed permanent impairment of the right shoulder at 10%, by reference to Table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment made by Comcare pursuant to s 28 of the SRC Act (the “Guide”). He also reported a diagnosis of aggravated degenerative change to the lumbar spine, and said that this was associated with the loss of less than half of normal range of movement. He assessed that Dr Kara had a 10% permanent impairment.
52. Comcare subsequently requested Dr Wright to advise whether a later MRI scan had altered the opinion he referred to in the report referred to in the preceding paragraph. In a report dated 21 May 2009, Dr Wright referred to the MRI evidence of the progression of degenerative change over the preceding 10 years, and said that this did not alter his opinion in any way. He said the MRI scan showed that there had been disc disruption and protrusion, and that the injury in the motor vehicle accident might have been a factor in the progression of degeneration towards protrusion and an annular tear at the L5/S1 levels (exhibit R2, T107, page 318).
53. The T documents include copies of reports from Doctors Byok and Fry of 10 July 2001 and 22 February 2005 respectively. These refer to a history of shoulder pain, and record restrictions of shoulder movement as measured by those doctors.
54. Comcare referred Dr Kara to Associate Professor Burns, a consultant neurologist, for a medico-legal assessment. In a report dated 19 May 2006 (exhibit R1, T420, page 761), Dr Burns obtained a detailed history which was consistent with the evidence Dr Kara gave before us as to his symptoms and greatly diminished activities. Dr Burns conducted a neurological examination, and reported that there was no evidence to indicate any neurological dysfunction, and he considered that Dr Kara’s symptoms were psychologically based. Dr Burns also expressed concern about the amount of medication that Dr Kara was taking, and thought that attempts should be made for it to be reduced. He thought that the headaches might be compounded by the regular use of codeine phosphate, and that that should be discontinued. Dr Burns provided a subsequent report dated 18 August 2006 (exhibit R1, T447, page 833), in which he commented on the surveillance video. He said that the video contradicted the history that he had been given, and that in the video, Dr Kara did not appear to be in pain and did not appear to have any limitation of a wide-range of movements that had been filmed. He considered that the video confirmed his earlier impression that the symptoms described at his earlier consultation could not be explained on the basis of any physical disorder.
55. Dr Burns gave evidence confirming the opinions he expressed in his reports. In cross-examination, he acknowledged that if Dr Kara had taken additional medication to relieve his pain, that could have made Dr Kara more mobile. Dr Burns also accepted that Dr Kara might have learned to live with his pain.
56. Comcare also referred Dr Kara to a rheumatologist, Dr Awerbuch. In his first report of 17 May 2006 (exhibit R1, T419, page 749), Dr Awerbuch obtained a history and conducted a clinical examination. He considered that on the balance of probabilities, the motor vehicle accident caused the right shoulder symptoms and contributed to the reported low back pain and development of multiple but painless lipomata. He thought that the accident did not cause or contribute to his reported constant headache. He found that there was a limitation of active shoulder movement, and with respect to the right shoulder, assessed a 5% whole person impairment. With respect to the lumbar spine, he assessed a whole person impairment of 13% under Table 9.17, and a 20% whole person impairment using Table 9.6. However, Dr Awerbuch subsequently viewed the video footage, and as a result considered that there was a 0% whole person impairment of the thoroacolumbar spine. He nevertheless confirmed his earlier assessment of a 5% whole person impairment with respect to the right shoulder, because he could not be certain whether the video showed elevation of the right arm greater than the range of movement that he had detected on his formal clinical examination.
57. In giving evidence, Dr Awerbuch said that an annular tear is not necessarily a painful condition, but it may be. Dr Kara cross-examined Dr Awerbuch vigorously, but we do not think that Dr Awerbuch’s answers in cross-examination detracted from the opinions he expressed in examination-in-chief or from the revised opinion contained in his later report.
58. Dr Kara asked us not to place weight on the video evidence, and his submissions and cross-examination of the medical witnesses called by Comcare in relation to the video evidence were based on the propositions that he should not be expected to live like an invalid, that because his wife was away at the relevant time he had no choice but to engage in activities depicted on the video, and that he had learned to live with pain over the years since the accident. We have taken these matters into account. He also submitted that the video could not reveal whether he was suffering pain from the activities filmed, or the degree of any such pain, but there is no indication in the video film of any restriction or lack of freedom of movement.
59. We have also noted Dr Kara’s evidence that he had taken extra medication on the occasions when he undertook the gardening activities and when he went to the airport. He was cross-examined about an email dated 14 September 2006 in which one Michelle Kain from Comcare recorded comments that Dr Kara had made in a telephone conversation with her that day, and whilst she recorded a number of specific comments (including a comment that it was probably the gardener depicted in the video and not him) she did not record Dr Kara saying that he had taken increased medication. As against this, there are two contemporaneous documents (to which neither party referred) that suggest that Dr Kara might have taken increased medication. The first is a file note of a telephone conversation with a Comcare officer on 21 November 2005 which recorded that Dr Wright said that he had provided Dr Kara with analgesics to test for a proposed flight to Turkey, and he had not heard from Dr Kara and therefore assumed that these were appropriate. The second is a report by Dr Wright of 19 December 2005, which he had apparently prepared earlier, but had never sent it off. In that report Dr Wright said that he was undertaking trials of “short-acting opioid medication as morphine tablets that I think will assist him in the course of his flight” (exhibit R1, T396, page 677). It is therefore possible that Dr Kara’s symptoms of pain had been relieved on the occasions when he was filmed in the garden and at the airport, but Dr Kara did not suggest that he took additional medication that would explain the activities filmed on other occasions.
60. Dr Kara also admitted that he had travelled to Sydney by car for his daughter’s wedding in 2004. The evidence of Dr Kara, his wife and son Ervin as to whether the journey to Sydney and the return journey entailed any or how many stops was unsatisfactory, but the fact that Dr Kara was able to travel to Sydney and return by car raises questions as to the reliability of Dr Kara’s evidence as to the effect of his shoulder and lower back conditions and left buttock pain. Because of this matter, and also because of the surveillance video, we are not satisfied that the low back pain, left buttock pain, or chest or shoulder pain have persisted at the very severe and incapacitating levels described by Dr Kara.
61. The medical witnesses who commented on the video all observed in effect that there was a very marked contrast between what they observed on the video and Dr Kara’s presentation in their rooms and the history he provided. Dr Awerbuch, in particular, referred to the apparently normal movements shown in the video, and the apparent lack of pain or difficulty or discomfort in the movements filmed. He said that the film and his clinical findings were inconsistent with the marked and bizarre pain behaviour which Dr Kara had exhibited at the time of his examination.
62. We accept Dr Awerbuch’s evidence, including in particular his re-assessment of the extent of Dr Kara’s permanent impairment. We find that Dr Kara has no entitlement to compensation for permanent impairment in respect of his lower back condition. We further find that he has no present entitlement to compensation in respect of his right shoulder condition, and that the degree of permanent impairment in respect of that condition is 5%. He is therefore not entitled to compensation for permanent impairment in respect to that condition by virtue of s 24(7) of the SRC Act. Further, we find that the degree of permanent impairment that he suffers in respect of left buttock pain is less than 10%, and so he is not entitled to compensation under s 24 in respect of that condition.
Evidence as to psychological condition
63. Dr Kara gave evidence of symptoms consistent with the development of depression over the years following the accident. As mentioned above, he said that the pain in the area of his lower back and left buttock meant that he found sitting painful, and after the accident he did most of his work at the DSTO in a standing position. His inability to sit meant that it was no longer appropriate for him to visit customers of the DSTO in other States, as he had been doing prior to the accident, and he became concerned that he would no longer be regarded as a valued employee by his superiors at DSTO. Other employment related events occurred to which we will refer below. By September 2002, he was certified unfit for work at the DSTO, and as mentioned above, he had not returned to work after going on recreation leave in November 2001. He said that he is depressed, does not enjoy life any more, and questions his reasons to live. He said that he is not the same man any more, does not participate in social functions and does not have the same relationship that he used to have with his wife and children.
64. Mrs Kara confirmed the marked change in Dr Kara’s behaviour and attitudes. She gave evidence that before the accident, Dr Kara participated in a lot of family outings and social activities, and they enjoyed friendships with other families. She said that Dr Kara helped their older children with their homework and assisted with their various outside activities, and Dr Kara had been very happy and enjoyed his work. However, she said that since the accident their life had changed 100%. She said they are no longer able to go and visit friends, because it is too uncomfortable for him. She said that he spends much of his time lying on his chest or standing up. He does not eat with the family, and she brings his food to him because he is more comfortable eating in bed. She often sees him crying, but had never seen him cry before the accident. She said he was in pain and had difficulty sleeping. Dr Kara’s son, Ervin, gave evidence that was consistent with the evidence of Dr Kara and his wife as to Dr Kara’s very limited activities at home, but said he was too young to be able to describe Mr Kara’s activities prior to the accident. We accept the evidence of Mrs Kara and Ervin Kara as to the extent of Dr Kara’s activities, but their evidence is not determinative of the extent of his incapacity.
65. The records of Dr Kara’s general practitioner, Dr George, of the Kingston Family Clinic, indicate that Dr Kara was suffering from depression in 1998 (exhibit R1, ST6, page 1102). In May 1998, he was referred to a psychologist, Ms Fiona Stevens, for counselling, apparently because he was very anxious and his workmates were concerned for his wellbeing (exhibit R1, ST7, page 1130). Ms Stevens provided a report dated 7 January 2002 (exhibit R1, ST48, page 1487) which referred to consultations with Dr Kara in May 1998 and November 2001. Her report indicates that Dr Kara’s main concern at the time of the 1998 consultation was related to distress due to an impending court case arising from the accident, involving a charge against him of dangerous driving. He disputed this charge, and was ultimately convicted of the lesser charge of driving without due care. The diary notes of a DSTO officer preceding the referral to Ms Stevens also refer to Dr Kara’s hearing loss and tinnitus, and the imminent surgery on his right shoulder.
66. In Dr Wright’s first report (being his report to Dr Campbell of 17 June 1999) he records that Dr Kara was very upset by the losses he had incurred, and had “sleep disorder, less energy than usual, and a depressed mood, but these feelings seemed to him to be reasonable in the circumstances.” (exhibit R1, T81, page 124).
67. It appears from Dr George’s notes (exhibit R6) that at a consultation on 5 January 2000, Dr Kara was suffering from pain and not sleeping, and he prescribed an anti-inflammatory medication, namely Feldine. There is a reference to Dr Kara suffering from depression in a report dated 5 September 2000 from Ms Ann Thornton, a psychologist, who referred to his psychological status as “depressed mood, heightened irritability, reduced energy and enthusiasm, difficulties in concentration, no change in appetite. Given his stoicism, likely significantly depressed.” (exhibit R1, ST22, page 1257). Dr Wright also referred, in a letter dated 18 October 2000 to Dr George, to the hypothesis that psychological and social factors might be contributing to Dr Kara’s pain and disability, and he added that the “predominant psychological issues [sic] is depression” (exhibit R1, ST25, page 1264). Dr Wright also referred to Dr Kara’s continuing depression in many subsequent reports.
68. In 2001 Comcare referred Dr Kara to Dr Meegan, a consultant occupational physician, and he provided three detailed reports. His first report (exhibit R1, ST 46, page 1447) summarises Dr Kara’s injuries and progress up to November 2001, and his two later reports, dated 12 March 2002 and 2 December 2002, contain a very helpful summary of the ongoing deterioration in Dr Kara’s psychological condition. It is clear from the report of 12 March 2002 that Dr Kara’s depressive condition had escalated over the period since the previous November, and that he was greatly concerned about perceived injustices to which he had been subjected in his workplace. This report is consistent with the certification by Dr Wright that Dr Kara had been unfit to resume work at the DSTO following the expiration of his period leave. In his third report, Dr Meegan recorded some mild improvement in Dr Kara’s depressive symptomatology and also reported that the sense of perceived injustices in his dealings with DSTO management continued, and that several aspects of those perceived injustices were again described “with passionate intensity” (exhibit R1, ST82, at page 1624).
69. Dr Kara was also referred to a psychiatrist, Dr Tom Patterson, in May 2002. In a report dated 20 November 2002, Dr Patterson articulated “once again” his belief that Dr Kara was fit to return to work, but not fit to return to work at the DSTO (exhibit R1, ST80, page 1620).
70. Comcare referred Dr Kara to Dr Tony Davis, a psychiatrist, for assessment. He provided three reports prior to viewing the surveillance video, and two reports after that. In his third report, dated 29 May 2006, in response to a request to advise from what specific condition Dr Kara then suffered, Dr Davis said that Dr Kara “reports symptoms of a chronic pain syndrome with a contribution from both physical and psychological factors. He also reports symptoms of a chronic adjustment disorder with anxiety and depression.” (exhibit R1, T422, page 771). In response to a question as to the factors that contributed Dr Kara’s condition, Dr Davis responded:
“His chronic pain syndrome was triggered by the accident of 1997. Thereafter, he experienced a reactive depressive disorder, which was complicated by the workplace experiences of 2001. Thereafter, he has experienced significant, physical and psychological disorders with major impairment of daily function, largely as a consequence of psychological factors.” (exhibit R1, T422, page 772).
71. Dr Davis referred later in the same report to a dramatisation of Dr Kara’s presentation, and to his having “become firmly entrenched in the sick role, with significant physical and psychological impairment.” Taking into account the psychiatric condition and sexual dysfunction, he arrived at a whole person impairment of 20%, and thought that of this, 5% should be attributed to underlying factors, namely personality and constitutional factors. He said that Dr Kara did not have any obvious distortions of thinking, apart from a deeply held view of himself as an invalid with significant physical needs. He also considered that Dr Kara was unable to return to the DSTO, and whilst there was theoretically a retained capacity for some academic work, it was unlikely that meaningful work could be found in the foreseeable future, unless there was an extraordinary change in Dr Kara’s physical or psychological condition.
72. Dr Davis also referred in his reports to the history that he had obtained of workplace experiences. He reported that this history included reference to a younger person gaining a promotion in 2001 in circumstances where a new research leader was not supportive of Dr Kara, Dr Kara being interviewed by a security officer from Canberra regarding alleged misconduct in the workplace and then moved to an unclassified area, bullying in the workplace and having been “bullied out of DSTO by two colleagues” (exhibit R1, T321, page 538, and T404, page 701).
73. In a report dated 21 August 2006, Dr Davis said that whilst he had previously assumed that unconscious factors were largely responsible for Dr Kara’s unusual physical presentation, he suspected after viewing the video that there was a significant degree of conscious exaggeration of symptoms. He further considered that a rating of 10% total impairment was more appropriate, in that Dr Kara appeared to be capable of performing activities of daily living without supervision or assistance, and it was reasonable to attribute 7.5% of this total to work-related factors, and 2.5% to underlying personality and constitutional factors. Dr Davis confirmed his revised opinion in his last report, dated 11 June 2009, and in his evidence.
74. Comcare also referred Dr Kara to another psychiatrist, Dr Begg, whom Dr Kara called. Dr Begg concluded that it was quite evident that there were significant psychological factors causing Dr Kara’s chronic pain disorder, and that this could be conceived of as a form of depression. He continued:
“I do not think this man is malingering. Rather, pain and depression is his way of manifesting the distress of the psychological injury. As such, it is a form of communication. I would anticipate his presentation to vary, dependent upon the audience with whom he is communicating. If no one is around, he is likely to display minimal signs of distress.” (exhibit R1, ST109, page 1702)
He added that whilst the accident and any adverse work-place events might have been precipitating factors, persistence 10 years after the accident was not due to those factors. Dr Begg concluded that Dr Kara was totally and permanently incapacitated for work, and should be retired on medical grounds.
75. In evidence, Dr Begg agreed that the loss of employment at the DSTO was a profound event, and that if it had not been for this and for issues at the workplace Dr Kara might have managed quite well. Dr Begg also thought that personality factors were the predominant cause of Dr Kara’s condition. He did not think that there was malingering, but rather when Dr Kara focussed on his condition, that would heighten his sense of pain.
Did Dr Kara’s employment contribute to his psychological condition in a material degree?
76. It was common ground that Dr Kara’s psychological condition constitutes a disease within the meaning of the SRC Act. In Comcare v Sahu-Khan (2007) 156 FCR 536, Finn J referred to the change in terminology between the SRC Act and its predecessor in relation to the requisite causative connection between an employee’s employment and the suffering or aggravation of a disease in order for the employee to be entitled to compensation under the SRC Act. His Honour pointed out that by virtue of the definition of “disease” (which was in the same terms as those that apply for the purpose of the present proceedings), the employee’s employment was required to contribute “in a material degree” to the suffering or aggravation of an ailment. He concluded, at [16], that the definition of “disease”:
“(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
77. It does not matter that other factors not related to employment contribute to the claimed disease, but where the disease was suffered before the 2007 amendments to the SRC Act, what is required by the definition of “disease” in the SRC Act is that the relevant ailment or aggravation must be contributed to by employment “in a material” degree.
78. It is clear that the accident in 1997 was the precipitating factor that has led to Dr Kara’s current psychological condition. It may well be that personality factors played a part in the development of his psychological condition. However, in considering liability for compensation, an employer must take the employee as it finds him or her, that is, with any pre-existing vulnerability to injury that the employee might have: Wiegand v Comcare (2002) 72 ALD 795 and Fellowes v Military Rehabilitation and Compensation Commission (2008) 103 ALD 552, at [33].
79. It is also relevant to observe that a perception held by an employee about a state of affairs or events relevantly related to his or her employment that actually happened and contributes in a material degree to the occurrence of a disease will give rise to an entitlement to compensation under s 14 of the SRC Act as relevantly in force, even if the perception is not objectively reasonable: Wiegand (supra). In that case, after referring to the medical evidence of the applicant’s pre-existing personality traits that rendered him vulnerable to stressors, von Doussa J said that the applicant’s depression would nevertheless be compensable if it was “an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree” ([2002] FCA 1464 at [20]). His Honour continued, at [21]:
“It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors … The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.”
80. We have referred above to the evidence that indicates that Dr Kara was manifesting symptoms of depression during 1998 and thereafter. The accident resulted in physical injuries, including the shoulder injury which led to surgery in June 1998, the hearing loss, tinnitus and sexual dysfunction. These conditions have been ongoing and clearly distressing to Dr Kara, and he had pain from the physical injuries to his lower back, left buttock and ribs, at least in the period soon after the accident. In addition, during the period from 1999 until he ceased working at the DSTO, a number of events occurred which Dr Kara perceived constituted discrimination, injustices or harassment. These events included not having a direct supervisor for more than nine months from June 2000 to March 2001, concerns regarding promotions where other people were appointed to positions for which he considered he was better qualified, being investigated for an alleged breach of security and having his security clearance removed for a period of some four months, and being requested to produce four reports as a condition of promotion to a particular position, and in his perception not having those reports fairly assessed, being the subject of tactics to encourage him to leave the DSTO, being unfairly treated by his supervisor, Dr Kewley, and being given an unsatisfactory appraisal rating in respect of the 2001 financial year. We are satisfied that Dr Kara’s perceptions related to events that actually occurred, and having regard to the principles enunciated in Wiegand (supra), it is not necessary to determine whether or not Dr Kara’s perceptions are reasonable.
81. We find on the evidence before us that Dr Kara had developed a significant psychological disorder by not later than September 2000, and has continued since then to suffer from that disorder. We think this can be most appropriately described as chronic pain syndrome and a chronic adjustment disorder, having regard to Dr Davis’s diagnosis of chronic pain syndrome and the many references in the material before us to Dr Kara suffering from depression. We are satisfied that Dr Kara’s physical injuries and their aftermath and his perception of the above work-related events made a material contribution to his ongoing psychological condition. We are further satisfied that that continues to be the position to the present time. We think that Dr Begg’s opinion that the accident and the work-place events are no longer causing Dr Kara’s psychological disorder is contrary to the weight of the evidence before us, including Dr Kara’s obvious ongoing concerns and anger, and we reject Dr Begg’s opinion. We find that the psychological disorder became progressively worse and reached a point in 2002 where he was incapacitated from work at the DSTO. However, we do not think that the work-related events of 2001 resulted in a separate injury, or an aggravation of an injury, within the meaning of the SRC Act. We further find that Dr Kara is totally incapacitated from work at the present time as a result of his psychological disorder.
82. We think that Dr Kara’s psychological condition has perpetuated the pain that he has experienced and continues to experience in the shoulder, lower back and left buttock, but whilst some medication might reasonably be needed to relieve the pain, as mentioned above, we are not satisfied that the pain is as severe or incapacitating as Dr Kara has described. We consider that the degree of permanent impairment in respect of Dr Kara’s psychological condition should be assessed at 10% pursuant to Table 5.1 of the Guide. In reaching this conclusion, we have taken into account the surveillance evidence, (and to use the language of the Guide) we think that Dr Kara is capable of performing activities of daily living without supervision or assistance despite the presence of reactions to stressors of daily living with minor loss of personal and social efficiency, and despite minor distortions of thinking. We do not think that the 15% level is appropriate, because we are not satisfied that there is a need for some supervision and direction in activities of daily living. As mentioned above, Dr Davis attributed 2.5% impairment to underlying personality and constitutional factors, but Mr Cole, we think properly, conceded that this deduction should not be made. In applying the Guide, it is necessary to determine what level of impairment is due to a work-related injury: Jordan v Australian Postal Corporation (2007) 99 ALD 303 at [34]. We have referred above to Dr Kara’s intense feelings of anger, frustration and loss, and whilst we think that these factors play a part in the degree of his permanent impairment, we find that they are themselves the result of the workplace injuries.
Are the applicant’s conditions a result of reasonable disciplinary action or failure to obtain a promotion, transfer or benefit in connection with his employment?
83. The definition of “injury” in s 4 of the SRC Act expressly excludes an injury suffered by an employee “as a result of” reasonable administrative action, or a failure to obtain a promotion, transfer or benefit in connection with his or her employment. In Hart v Comcare (2005) 145 FCR 29, a Full Court of the Federal Court held that where one of those excluded factors is a cause of an employee’s injury or disease, Comcare is not liable even though the relevant condition was also caused by other non-excluded factors.
84. For a “disease” to be an “injury” within the meaning of the SRC Act, an employee’s ailment must be “contributed to in a material degree” by his or her employment. But for a disease to fall in the exception to the definition of “injury”, it must be suffered by an employee “as a result of” the failure to obtain a promotion, transfer or benefit. The legislative formulation of the test of causation is different in each definition. The wording of the exception contains no requirement that there should be a material connection between the injury and the excepted event.
85. Recent decisions of the High Court of Australia make it clear that legislation must be interpreted to give effect to the intention of Parliament, and whilst the best guide to that intention is to look at the words of the Act in question, those words must be construed in their context and so that the Act is consistent internally. If the interpretation of “disease” and the exception to the definition of “injury” is approached in this way, we think that a requirement of a “material contribution” should be implied into the test of causation required by the exceptions to the definition of “injury”, since otherwise the exceptions to the definition would be wider than the primary requirements of the definition of “disease”, which is a subset of “injury”. This would be incongruous, and would not, we think, accord with Parliament’s intention. We accordingly conclude that on the proper interpretation of the definition of “injury” the exceptions to that definition only arise where the excepted events contribute in a material degree to the disease in respect of which compensation is claimed.
86. We think our above conclusion is also supported by the consideration that the SRC Act is remedial legislation, and where two constructions are possible, that which is favourable to the worker should be preferred: Whittaker v Comcare (1998) 86 FCR 532 at 544. We also refer to paragraph [9.5] of Pearce and Geddes on “Statutory Interpretation in Australia” (6th Edition) where after citing three cases, the learned authors conclude that “exceptions to what was regarded as beneficial legislation were read so as to limit the exception in order to preserve the scope of the beneficial effect of the legislation.” Issues of causation have long caused difficulties in many areas of the law, and various tests of causation have been formulated, taking into account the context in which the issue has arisen, considerations of policy and value judgments, and ultimately the need to arrive at a just and reasonable outcome in particular cases. The expression “as a result of” in the exception to the definition of “injury” does not have a precise meaning, just as the concept of causation in the law is flexible. The expression “as a result of” is capable of denoting various degrees of relationship between the injury in question and the excepted events. We consider that it should be construed in a way that is beneficial to injured employees who are otherwise entitled to compensation for a work-related disease.
87. Whilst this issue of construction was not expressly referred to in the course of Mr Cole’s final submissions, it appears from Comcare’s Statement of Facts, Issues and Contentions that the above interpretation is accepted. That is because that Statement asserts that Dr Kara’s psychological condition(s) were not injuries within the meaning of the definition of “injury” in the SRC Act, because “material operative causes” of his condition were events referred to in the exceptions to that definition.
88. Reasonable administrative action: Mr Cole submitted first that Dr Kara’s psychological condition was the result of a security investigation initiated in September 2001, on asserted grounds which included Dr Kara having classified material on a DSTO computer that he had been using at home, and because he had not reported to his unit security officer letters that he had received from overseas relating to papers that he had published. He was interviewed by two security officers from Canberra in the presence of a third regional security officer based in South Australia on 13 September 2001. Some of the questions Dr Kara was asked appear in exhibit R1, ST30, at page 1281 and following. As a result of this investigation, Dr Kara’s security classification was removed for a period of four months, he was not allowed into certain secure areas without being escorted by a supervisor, and he was not allowed access to DSTO computer networks.
89. Dr Kara gave evidence that in 1998 he had been given express permission to work from home and to use an old unclassified DSTO computer during the period when he was recuperating from his shoulder surgery for that purpose. He said that he did not know that the hard drive of the computer contained any classified material, and said in effect that he did not use his computer in a way that would have caused any breach of his security obligations. He said he was asked in the last week of July 2001 to return the computer, and because he could not carry it himself, he arranged for a DSTO officer to collect it from his home.
90. Dr Kara acknowledged that he received letters from a few countries asking for prints of his published unclassified papers, and these were sent to the address on the papers, namely DSTO Salisbury. He said that he had not replied to any of the letters without management permission, and because the letters were sent to the DSTO address, he thought that security was aware of them. He said further that he had told his supervisor, Dr Kewley about the letters he had received, and also that one Dr Nandagopal was aware of the letters he was receiving.
91. Dr Kara’s evidence as to these matters was not contradicted. There was no evidence as to what led to the security investigation being instigated so long after Dr Kara had been given permission to use the computer at home, or as to the ultimate outcome of the investigation, or (having regard to Dr Kara’s position as an employee of more than eleven years standing, his depressive illness and his known concern that he was being discriminated against by his superiors) why that it was necessary to suspend the security clearance for as long as four months. As to this last point, it appears from the interview questions that the Canberra officers expected that it would only be “a couple of weeks” before they could look at all the information and make recommendations (exhibit R1, ST30, page 1285).
92. We think it likely that the security investigation and the removal of Dr Kara’s security classification caused him stress. We note that in a letter dated 16 November 2001, he said that he felt ashamed and embarrassed, that everyone was treating him like a criminal notwithstanding almost 12 years of loyal service to his country, and he had not been treated fairly. Having regard to this letter and to other contemporaneous records, we think it likely that these matters had a material effect on his depressive condition at the time. However, we are not satisfied that these matters constituted reasonable administrative action, having regard to Dr Kara’s evidence as to the circumstances in which he was permitted to use the computer, his evidence as to the circumstances surrounding the letters arising from his published papers, the lack of evidence as to the matters referred to in the preceding paragraph, and the duration of the suspension of his security clearance.
93. Failure to obtain promotion(s): It was next submitted on behalf of Comcare that Dr Kara’s psychiatric conditions were the result of a failure to obtain a promotion or promotions to which he considered he was entitled.
94. In March 1999, Dr Kara applied for promotion to the position of senior research scientist (exhibit R1, ST45, page 1404), and his application was supported by favourable references from a number of other colleagues. It appears that initially there was some delay in the creation of the senior research scientist position, and one Dr Faruqi agreed to consider Dr Kara’s promotion subject to his completing four research papers. Dr Kara had understood that upon the reports being published he would obtain the promotion, but although he prepared the reports, the publication of one or more of the reports was delayed for some time, and ultimately he did not get the promotion. Dr Kara gave evidence that in the meantime, other positions were created with a duty statement and selection criteria designed to suit a particular employee who had previously been selected by management for the position. As a result, two other persons were promoted (one of whom was a technician who did not have tertiary qualifications), even though they were less experienced and less qualified than Dr Kara. Dr Kara thought that Dr Kewley had influenced the selection of the two people who were successful. He thought that senior managers had not afforded him appropriate recognition or credit for his qualifications, experience and reputation as a recognised author of some 42 publications. He also referred to an appeal he had made to the Merit Protection Authority about an earlier promotion in 1994, and thought that this might have led to his having been discriminated against in connection with the later promotions.
95. In a letter dated 18 March 2002 to the Regional Advisor SA/NT, Merit Protection Commissioner, Dr Kara wrote:
“DSTO’s management’s policy of unfairly promote [sic] people are based on the following ideals:
(a) knowing the right person in the right time at the right place,
(b) importance of not what you know, but who you know;
(c)first finding the desired candidate, then writing a duty statement and selection criteria to suit that particular person,
(d)preferring junior rather than seniors,
(e)basing senior management decisions on statements made by head of groups without searching for truths or asking the opinions of the actual person him or herself,
(f)ignoring equity and diversity, etc.” (exhibit R1, ST54, page 1506)
96. In Hart (supra), the Full Court at [26] recognised that an employee could become aggrieved by the process of assessing candidates for promotion to the extent of suffering psychological harm following a failure to obtain the promotion, and the resulting injury could be quite distinct from any injury suffered as a result of a failure to obtain a promotion. On the evidence before us, we think that the present matter is, on analysis, such a case. The thrust of Dr Kara’s concern is his perceived unfairness of the process, and we are not satisfied that the ultimate failure to obtain the relevant promotions as such contributed in a material degree to Dr Kara’s psychological condition.
97. Failure to obtain a benefit: Finally, it was submitted on behalf of Comcare that Dr Kara’s psychological condition was a result of the failure to obtain a benefit by way of a favourable performance assessment report. In Trewin v Comcare (1998) 84 FCR 171 Heerey J considered the meaning of “benefit” where that word is used in the exception to the definition of “injury”. His Honour applied the second meaning of this word in the Macquarie Dictionary definition, namely “anything that is good for a person or thing”, and decided that the word would even extend to something obtained as a matter of right, such as a medical benefit to which a person was entitled as a matter of contractual right, or career-related legal rights that might arise from industrial awards or workplace agreements.
98. We accept that the failure to obtain a favourable employment rating was a stressor to Dr Kara at the time. His performance rating of 2 was equivalent to a marginal performance rating, whereas in the previous year his performance rating had been assessed at 3 (that is, fully effective), and in the two preceding years at 4 (that is, superior). It appears from a rating report (exhibit R1, ST28, page 1274) that a performance rating of 3 would have resulted in a salary increase, but there was no salary increase applicable to a performance rating of 2. Although no evidence was adduced by Comcare to confirm our interpretation of this document, we are satisfied that the failure to attain a satisfactory performance rating constituted a failure to obtain a benefit in connection with employment.
99. However, we are not satisfied that the failure to obtain a higher performance rating in itself made a material contribution to Dr Kara’s depressive condition. Further, Dr Kara’s concern appears to have been related to the process adopted, in that he claimed that he had only had a direct supervisor for some three months of the relevant assessment period, that he had not been fairly assessed, and that the assessment did not take into account time away from work because of visits to doctors and other health professionals, meetings with DSTO personnel, and recreation and sick leave. Dr Kara calculated this loss time at the equivalent of 184 working days (exhibit R1, ST 45, page 1334, and ST69, page 1577). We find that any effect on Dr Kara was related to the process, and not to the outcome.
100. For the above reasons, we find that Dr Kara’s psychological condition was not the result of any of the excepted events referred to in the definition of “injury” in s 4(1) of the SRC Act.
Hearing loss, tinnitus and headaches
101. Dr Kara claimed compensation for hearing loss and tinnitus through his then solicitors on 4 November 1999, on the basis that those injuries had stabilised and he had been left with a compensable permanent residual disability (exhibit R1, T93, page 141). In a reviewable decision dated 2 August 2000, Comcare reviewed the various assessments that had been made of the hearing loss and tinnitus, and determined that he had a 7.65% whole person impairment in respect of hearing loss, and a 5% whole person impairment for tinnitus (exhibit R1, T151, page 219). Dr Kara did not seek review of that determination, and Comcare subsequently paid the compensation due to him based on those assessments.
102. Comcare called Dr David Matison, an ear, nose and throat specialist to whom Dr Kara had been referred by his general practitioner. Dr Matison gave evidence referring to the three reports that he has provided. He considered that the hearing loss and tinnitus were the result of the closed head injury which had been suffered in the motor vehicle accident. However, he said that the increase in Dr Kara’s hearing loss since his first report in 1998 that he recorded in his second report, which was dated 21 June 2006, could not be blamed on the accident, but was related to Dr Kara’s increased age over that period.
103. We accept Dr Matison’s opinion, and note that Dr Kara did not produce any evidence to contest it. We find that Dr Kara has no present entitlement to compensation in respect of hearing loss or tinnitus.
104. Dr Kara gave evidence that he has also suffered severe headaches. Dr Matison recorded in his first report that Dr Kara suffered headaches but that the headaches and vertigo gradually settled over a few weeks following the accident (exhibit R1, T20, page 35). However, Dr Guerin, another ear, nose and throat specialist, recorded a history of severe headaches (as well as tinnitus) on 27 May 1998 (exhibit R1, T29, page 49) and headaches are also referred to in some other early records (see exhibit R1, T64, page 96, T108, page 160 and T143, page 209). Dr Kara claimed compensation for permanent impairment in respect of headaches on 10 February 2000 (exhibit R1, T121, page 181). On reconsideration Comcare decided not to extend liability to headaches on the grounds that they could not be considered a permanent impairment or a separate permanent impairment for the purposes of s 24 of the SRC Act or the Guide, and should instead be considered to form part of the tinnitus impairment (exhibit R1, T151, page 223).
105. We find that Comcare is liable for compensation for headaches pursuant to s 14 of the SRC Act, but agree that they do not constitute a separate permanent impairment that should be assessed under Part A of the Guide. On the medical evidence before us, Dr Kara’s headaches are associated with his tinnitus, and we do not think that they constitute a separate intermittent condition of the kind described in Table 13.1 of the Guide. We consider that compensation for the headaches should, however, be assessed under Part B of the Guide relating to non-economic loss. We have taken into account Dr Kara’s evidence as to the nature and effect of his headaches, but having regard to the fact that he continued to work during the period when references (to which we referred above) were made to the headaches and to Dr Kara’s activities as shown on the surveillance video, we do not accept that the headaches are as severe as Dr Kara has described them to be. We have nevertheless made some allowance for the effect of headaches in assessing the scores for non-economic loss to which we refer below.
Lipomas
106. In a determination dated 18 October 2005, Comcare accepted that it was liable for those lipomas that are located at the site of the soft tissue trauma that Dr Kara sustained in the accident, being those over the right upper arm and chest (exhibit R1, T386, page 663). This decision was based on a report provided by Dr Coventry, a general surgeon, dated 21 December 2004 (exhibit R1, T310, page 499). We are satisfied that the lipomas have arisen out of the soft tissue trauma that Dr Kara sustained in the motor vehicle accident, and accordingly, that Comcare is liable for the lipomas situated at the site referred to in Comcare’s above decision to accept liability for lipomas. We accordingly think that the reviewable decision should be set aside to the extent that it suggests that Comcare is not liable for compensation in respect of lipomas.
107. Dr Kara submitted that his claim for permanent impairment in respect of this condition should be assessed under the first edition of the Guide. This submission appears to be correct. The claim for compensation was made on 12 July 2005 (exhibit R1, T360, page 608). Section 3 of the second edition of the Guide provides in effect that claims under ss 24, 25 or 27 of the SRC Act received on or before 28 February 2006 will be determined under the first edition of the Guide. However, as was the position when the claim for the lipomas was originally accepted, there is no evidence that treatment is required, and so Dr Kara has no present entitlement to compensation for the lipomas, whether under s 16 or s 24 of the SRC Act.
Gastritis
108. Dr Kara gave evidence that about two years after the accident he developed digestive problems involving stomach aches, diarrhoea, heartburn and nausea. He said that at the time he was taking strong anti-inflammatory medication and was sent to Dr Young, who diagnosed gastritis. He found he could not sleep because of stomach pain (as well as back pain).
109. The T documents include an upper endoscopy report dated 18 November 2004 which refers to a diagnosis of gastritis, and includes the following comments by Dr Young:
“The gastritis present may well be due to his NSAID [a reference to his anti-inflammatory medications] (even though it is a coxib that he is taking). The nature of the pain does not correspond with the usual NSAID-induced pain and it is possible that his depression is aggravating the symptomatology. However, it is impossible to be objective about this. A trial of PPI for a few months is warranted.” (exhibit R1, T303, page 487).
110. Dr Kara was prescribed medication for his condition. He subsequently had an operation to remove his gall bladder, but he gave evidence that his symptoms continued.
111. In a report to Comcare dated 23 May 2006 (exhibit R1, T424, page 777), Dr Reid, a consultant physician, concluded that Dr Kara suffered from functional dyspepsia and irritable bowel syndrome, and that the most likely major cause of this was the stress of the chronic pain syndrome and the depressive illness. He further reported that gastritis was probably not the cause of his current symptoms, and that he could not rule out a mild degree of gastro-oesophageal reflux disease. Using Table 8.1 of the Guide in relation to the digestive system, he assessed a whole person impairment of 5%.
112. In a subsequent report dated 4 August 2006 (exhibit R1, T442, page 823), Dr Reid reported that in his opinion, the video footage was inconsistent with continuing severe musculo-skeletal pain and chronic pain syndrome, and that weakened the case that chronic pain syndrome in the back would lead to functional dyspepsia and irritable bowel syndrome. He also reported that the video raised doubt about the veracity of his interview with Dr Kara, and thought that the overall percentage of whole body impairment would be less than 5%, but he was unable to give a precise figure.
113. We are not satisfied from the evidence before us that the impairment from a digestive disorder comprising or entailing gastritis or the digestive symptoms referred to by Dr Reid has resulted in a degree of permanent impairment of 10% or more, and accordingly find that compensation is not payable to Dr Kara for permanent impairment in respect of any such digestive disorder.
Erectile dysfunction
114. Dr Kara gave evidence that evidence that ever since about six or seven months after the accident he has suffered from erectile dysfunction. He has had various blood tests which do not explain the condition, and has tried Viagra medication without success.
115. Dr Kara’s wife gave evidence, and she confirmed that Dr Kara is suffering from erectile dysfunction and as far as she could recall, this had been the case since very soon after the accident. We accept her evidence and the evidence of Dr Kara as to this condition. We also note that a history of lack of sexual responsiveness is also recorded in various medical reports that have been provided over the years since the accident. No such history is recorded in the period immediately after the accident, but we accept Dr Kara’s evidence that he was embarrassed about his disability, and had been reluctant to mention it to a doctor for some time. The first reference to this condition appears to be in Dr Wright’s notes of a consultation on 4 April 2000 (exhibit R1, ST2, page 963). This is the deemed date when this injury was sustained, by virtue of s 7(4) of the SRC Act.
116. In a report dated 19 May 2006, Dr Burns said that there was no indication that the erectile dysfunction was due to damage to the spinal chord or cauda equine or any part of his nervous system (exhibit R1, T420, page 764). However, Dr Burns accepted in cross-examination that the condition could be caused by depression. In a report dated 26 August 2004, Dr Wright said that the likely cause of lack of sexual responsiveness was related to the medications he was taking, and his depressive condition (exhibit R1, T292, page 467). We also note that in his report dated 29 May 2006, Dr Davis expressed the opinion that Dr Kara’s sexual dysfunction was a consequence of his chronic pain syndrome and his depressive disorders and there might also have been a significant contribution from the medications prescribed for these conditions.
117. We are satisfied that the erectile dysfunction is caused either by the depressive condition or the medication to treat this condition. We have found above that Dr Kara’s depressive condition was materially contributed to by the accident. We accordingly conclude that this condition is compensable, and we accept Dr Davis’s opinion that it results in an assessment of permanent impairment of 15% (see Table 11.1 of the Guide).
Vertigo
118. In a letter dated 23 November 2007, the solicitors then acting for Dr Kara requested Comcare to extend liability to include the condition of vertigo, and alluded to Dr Matison’s comments on that condition. When Dr Kara was asked about vertigo during his evidence, he said that this took the form of blurred vision at first, that he has had this at times ever since the accident, it can happen without warning, and sometimes it takes time to settle down. He said it can happen when he is driving or watching his computer screen.
119. Dr Kara was cross-examined about a consultation that he had with his general practitioner, Dr George, on 19 December 1994. Dr George’s notes record a complaint of ringing in the left ear for three to four months with associated headache and “sometimes some dizziness” (exhibit R6). Dr Kara disputed the accuracy of this record, and that dizziness had been a problem to him at that time, and said that the conditions resolved and he did not feel the need to see a specialist to whom he had been referred.
120. In his report dated 13 March 1998, Dr Matison recorded that Dr Kara had complained of vertigo (and also headaches, numbness and tenderness in the left ear) since the accident, and added the headaches and vertigo gradually settled over the next few weeks but the ear symptoms remained (exhibit R1, T20, page 35). After re-assessing Dr Kara in May 2006, Dr Matison recorded a history that Dr Kara continued to suffer from dizziness consisting mostly of disequilibrium on standing, and blurred vision on looking at computer or television screens. He assessed Dr Kara as having a permanent disability of 10% due to vertigo and thought that the vertigo was due to the closed head injury sustained in the motor vehicle accident in 1997. Dr Matison provided a third report dated 7 August 2006, after viewing the video. He also commented on the direct contrast with Dr Kara’s demeanour in his office, and said, referring to the video, that there was no sign disequilibrium, giddiness or ataxia. He added that with the disability that Dr Kara had described, he would not have expected him to be able to drive a vehicle with the skill he displayed in the video.
121. We note that in Dr Wright’s first report, which is dated 17 June 1999, he made no reference to vertigo. The material before us prior to Dr Matison’s second report in June 2006 does not indicate that vertigo had been of any significant concern to Dr Kara, and as mentioned above, the claim for permanent impairment was not made until 2007. We also note that in Dr Wright’s report of 5 February 2008, he agrees that the video observations are not consistent with a persistent vertigo, although later in the report he says that the vertigo is “now described as occasional, but to the extent it occurs, it is likely caused by the motor vehicle accident” (exhibit R2, T46, page 97).
122. After he returned to work following the accident, Dr Kara drove about 50 kilometres to and from work each day for a period of about four years. This of itself indicates that dizziness or blurred vision did not interfere with his driving a vehicle. Further, he was driving a vehicle on a number of the occasions depicted in the video. Dr Kara claimed that if he was driving and was affected by dizziness, he would stop, but this did not appear to have occurred on any of the occasions when film was taken, and there is no contemporaneous reference to this in the period when he was still working at DSTO.
123. We found Dr Kara’s evidence relating to the condition of vertigo unsatisfactory, and he appeared to prevaricate when being asked about the consultation with Dr George on 19 December 1994. We are not satisfied from the evidence before us that Dr Kara suffers from vertigo. We further find that even if he does, the condition does not produce a degree of impairment that is as great as 10%. We conclude that he has no entitlement to compensation in respect of vertigo.
Myocardial infarction
124. On 6 November 2006, Dr Kara suffered an acute myocardial infarction. He was taken by ambulance to the Flinders Medical Centre and an urgent coronary angiography showed occlusion of both his major left-sided coronary arteries. He had bypass surgery on 15 November 2006. He claimed compensation for this injury in December 2008.
125. Dr Kara gave evidence that there was no history of coronary artery disease in his family, and contended that his heart attack should be regarded as an injury for the purposes of the SRC Act. He said that Comcare had accepted liability for the aggravated degenerative change to his lumbar spine, and he had taken methadone and anti-inflammatory medication for his lumbar spine condition, and Comcare had accepted the costs of that medication and of doctors’ fees related to that condition. He also referred to records of blood pressure readings at various times preceding his heart attack, his depressive condition, and his lack of physical activity due to the effects of the accident. He also submitted that his erectile dysfunction could have been an early warning sign of coronary artery disease, and he provided references to various articles that dealt with a relationship between the matters he is relying upon and his heart attack (see exhibit R3, T6 and T24).
126. In a report dated 23 March 2009, Dr Ardill, the cardiologist who treated Dr Kara, said in effect that Dr Kara’s heart attack related to a build-up of plaque disease within his coronary arteries, and he did not believe that Dr Kara’s acute presentation with a myocardial infarction related to a sudden physiological change. He added that Dr Kara’s ischaemic heart disease related to a build-up in fatty tissue within the blood vessels supplying the heart muscle, and an angiogram had revealed the occlusion to the coronary arteries (exhibit R3, T19, page 45).
127. The SRC Act contains different provisions for the compensability of injuries, according to whether they constitute a disease, or an injury other than a disease. In Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, at [39] – [40], Gleeson CJ and Kirby J said, after referring to earlier authorities (omitting references):
“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. ... If the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory pre-conditions are met ....
The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as an alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense ...”.
128. In Australian Postal Corporation v Burch (1998) 85 FCR 264 a Full Court of the Federal Court accepted that a thrombosis of the employee’s cerebral artery, which caused a stroke, was an injury simpliciter, and that the stroke was the injury in that it was a disturbance of the normal physiological state, notwithstanding that it had involved an occlusion or blocking, rather than a rupture.
129. Having regard to the above authorities, we think that the myocardial infarction constituted a disturbance of the normal physiological state or a dramatic physiological change, and accordingly constituted an injury simpliciter. This means that under the definition of “injury” in s 4(1) of the SRC Act, the myocardial infarction is compensable if it was an injury “arising out of or in the course of” Dr Kara’s employment.
130. The expression “in the course of” connotes a temporal relationship with employment (and is not relevant in this case), but the expression “arising out of” employment connotes a causative relationship with employment (Kavanagh v The Commonwealth (1960) 103 ALR 547). The present matter is not a case of an injury being caused directly by an employment activity, but that of itself would not preclude the existence of a causal relationship between the accident and Dr Kara’s heart attack.
131. Comcare sought a report from Dr Ardill and asked a series of specific questions directed to obtaining his opinion as to any causal connection between Dr Kara’s heart attack and any condition from which Dr Kara was suffering prior to his heart attack, or any medications that he was taking prior to his heart attack. Dr Ardill reported:
“He did have a history of depression and was a long-term reformed smoker – these factors can contribute to the development of atherosclerosis/ischaemic heart disease. I note the current claim that Dr Kara has made relating to medications as a cause of ischaemic heart disease. There has been some data with the medication called Vioxx – in population studies this has been associated with an increase of ischaemic heart/ myocardial infarction. In my experience medications would be only a small contributing component to such a presentation.
...
In terms of Dr Kara’s pre-existing conditions the major one that he had that is associated with ischaemic heart disease is depression. As outlined, he is long-term reformed smoker and had no history of hypertension or diabetes. It is unclear through the Flinders’ case notes what his cholesterol level was prior to the acute depression ... there is data suggesting that depression is associated with higher rates of ischaemic heart disease” (exhibit R3, T19, page 65)
132. Earlier in his report, Dr Ardill referred to the build-up in fatty tissue within the blood vessels supplying the heart muscle which constituted plaque disease. He said:
“Many factors are involved in the build-up of plaque disease. Amongst the identified factors are male sex, age > 50, high blood pressure, smoking, high cholesterol and diabetes.” (exhibit R3, T19, page 64)
133. It follows from Dr Ardill’s report that three of the factors causing a build-up of plaque disease, namely hypertension, smoking and diabetes have no application in this matter. The records of Dr Kara’s blood pressure readings over the years prior to his heart attack were not unduly elevated. Further, we accept that there is no family history of coronary artery disease. However, whilst Dr Ardill’s report recognises the association between ischaemic heart disease, depression and medication, but this does not constitute evidence that Dr Kara’s heart attack was on the balance of probabilities caused by the factors relied upon by Dr Kara as having resulted from the accident. Dr Ardill’s report does not include any statement that he was of that opinion, and Dr Kara did not call any cardiologist who provided evidence to that effect. Evidence of studies that a particular causal relationship is true in the case of a percentage of persons, or even a majority of persons, does not of itself constitute evidence that that is the position in the case of the particular employee in question: see State Government Insurance Commission v Laube (1984) 37 SASR 31 at [33].. We are not satisfied from the evidence before us that Dr Kara’s myocardial infarction arose out of his employment.
134. It appears from Kennedy Cleaning Services Pty Ltd v Petkoska (supra) that in some instances a sudden physiological change that has been caused or provoked by a disease might also give rise to liability as a disease. For this reason, and in case we are wrong in our conclusion that the myocardial infarction constituted an injury simpliciter rather than a disease, we add that we are also not reasonably satisfied that the myocardial infarction was materially contributed to by Dr Kara’s employment within the meaning of the definition of “disease” in s 4(1) of the SRC Act.
Pain and suffering and loss of amenities
135. Having regard to our above findings, we think that the following scores should be assessed under Part B of the Guide in respect of non-economic loss. The scores under Table 1 take into account our assessment of the level of Dr Kara’s pain and suffering, including his headaches, and allow for the effect of his psychological condition on his pain and suffering. The scores under Table 2 take into account Dr Kara’s psychological condition and our assessment of their relevance as such.
(a) Table 1: pain, 3, suffering, 3.
(b) Table 2: mobility, 2, social relationships, 2, recreation and leisure activities, 3.
We do not think that any scores are warranted for Tables 3 or 4.
Further Matters
136. We have found that Comcare is liable for two further injuries that were not included in the compensable injuries, namely headaches and left buttock pain. We think that the deemed date of injury for the headaches was the date of the accident, namely 28 July 1997, and for the left buttock pain, 14 August 1997, being the date when Dr Campbell first recorded a complaint of this pain (see exhibit R1, T79, page 118). Apart from those dates, we think that the dates applicable to the compensable injuries as determined in Comcare’s various decisions to accept those injuries should be applicable.
137. In formulating our decision in this complex matter, we have first determined Comcare’s liability for the various asserted injuries under s 14 of the SRC Act, and we have then identified which of these injuries for which Comcare is liable are having an ongoing effect on Dr Kara, so as to afford an entitlement to such matters as medical expenses or other heads of compensation. We have also then reiterated those injuries in respect of which we have found there to be no liability for compensation for permanent impairment.
Decision
138.(a)In matters numbered 2007/2448 and 2009/4384, the tribunal sets aside the decision under review, and in place of that decision, decides that:
(i)Comcare is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for severe bruising to chest and right shoulder with damage to AC joint region, chronic pain syndrome and chronic adjustment disorder, hearing loss, tinnitus, headaches, lumbar sprain, left buttock pain, lipomas at the sight of soft tissue injury sustained in a motor vehicle accident on 28 July 1997, a digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome, and closed fracture of ribs sustained in the accident;
(ii)during the period from 1 November 2006 up to and including the date of this decision, the applicant has no entitlement to compensation under the SRC Act for severe bruising to the chest and right shoulder, or any closed fractures of the ribs;
(iii)subject to paragraph (v), on and from 1 November 2006 and up to and including the date of this decision, Comcare is liable for compensation for the applicant’s ongoing chronic pain syndrome and chronic adjustment disorder, damage to the AC joint region, hearing loss, tinnitus, headaches, an aggravation of the degenerative condition of the applicant’s lumbar spine, lipomas, left buttock pain, and a digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome;
(iv)Comcare is liable for compensation under s 24 of the SRC Act for permanent impairment in respect of chronic pain syndrome and chronic adjustment disorder, and the degree of permanent impairment for those injuries is 10%; and
(v)Comcare is not liable for compensation under s 24 of the SRC Act for permanent impairment in respect of the right shoulder condition, hearing
loss, tinnitus, headaches, aggravation of the degenerative condition of the lower spine, left buttock pain, lipomas or the gastric disorder;
(b)In matter numbered 2009/4385, the tribunal sets aside the decision under review, and in place of that decision, decides that:
(i)Comcare is not liable under s 14 of the SRC Act for compensation for vertigo; and
(ii)Comcare is liable for compensation under s 14 of the SRC Act for sexual dysfunction with a deemed date of injury of 4 April 2000, and is liable under s 24 of the SRC Act for permanent impairment in respect of that injury, and the degree of permanent impairment in respect of that injury is 15%.
(c)In matter numbered 2009/5484 (relating to the claim for myocardial infarction) the tribunal affirms the decision under review.
(d)The tribunal remits the matter to the respondent for reconsideration and directs that the applicant’s entitlement to compensation under ss 16, 19, 24, 27 and 29 of the SRC Act be assessed in accordance with the above decisions and the reasons for them.
(e)The tribunal reserves liberty to apply within twenty-one days in relation to the costs of the proceedings, and orders that in the absence of any such application the respondent pay the costs of the proceedings insofar as those costs relate to the decisions referred to in paragraphs 131(a)(ii), (a)(iii), (a)(iv) and (b)(ii).
I certify that the 138 preceding paragraphs are a true copy
of the reasons for the decision herein of Deputy
President D G Jarvis and Professor PL Reilly, AO, MemberSigned: ....................... [Signed] .........................
B Bills Admin Assistant
Date/s of Hearing 12, 13, 14, 18, 19 and 20 October 2010
Date of Decision 20 December 2010
Applicant Appeared in person
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore Lawyers
15
0