Parton and Comcare (Compensation)
[2016] AATA 1076
•22 December 2016
Parton and Comcare (Compensation) [2016] AATA 1076 (22 December 2016)
Division
GENERAL DIVISION
File number
2015/3640
Vanessa Parton
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 22 December 2016 Place Canberra Comcare’s decision on 19 June 2015 is set aside and, in substitution, the following decision is made:
Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation in respect of the injury that the applicant sustained when she collected her bags from the luggage carousel at Perth Airport on 25 October 2014. Comcare shall pay the applicant’s costs of these proceedings.
..................[sgd]......................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant had pre-existing lumbar spine condition — Applicant travelled in the course of her employment — whether Applicant suffered injury when lifting bags at airport during travel — whether Applicant gave Comcare notice in writing of injury as soon as practicable after becoming aware of it — whether failure to give notice resulted from ignorance, mistake or from any other reasonable cause — decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 33(1)(c)
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A(1)(b), 5B, 14, 53(1)(a), 53(3), 67(8)
CASES
Howes v Comcare [2016] FCA 1521
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
REASONS FOR DECISION
Dr James Popple, Senior Member
22 December 2016
Summary
I set aside Comcare’s decision that it is not liable to compensate the applicant for her injury. The applicant injured her lumbar spine when she collected her bags from the luggage carousel at Perth Airport while returning to Canberra from a deployment to Christmas Island. She suffered an injury for the purposes of s 5A(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). She failed to comply with the requirements of s 53(1) because she did not give Comcare notice of her injury as soon as practicable after she became aware of it. However, that failure was due to ignorance or mistake so, because of s 53(3), she is taken to have given Comcare notice under s 53. Comcare is liable, under s 14, to pay compensation in respect of her injury.
Background
Ms Vanessa Parton started working for the Australian Federal Police (the AFP) in 2003. On 21 August 2014, she was deployed to Christmas Island. When her deployment ended, she returned to Canberra by plane on 25 and 26 October 2014, staying overnight in Perth.
On 15 January 2015, Ms Parton made a claim for compensation for “L4/5 spondylolisthesis” and “L4/5 disc bulge”. She said that the injury had happened on the flight home from Christmas Island. On 6 March 2015, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act.
On 7 May 2015, Ms Parton requested a reconsideration of that determination. On 19 June 2015, Comcare affirmed its determination.
On 21 July 2015, Ms Parton applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
Decision under review
The decision under review is Comcare’s decision on 19 June 2015 to affirm its determination that Comcare is not liable to pay compensation to Ms Parton.
Issues
Ms Parton says that she injured her back when she picked up her bags from the luggage carousel at Perth Airport, while travelling from Christmas Island to Canberra. This, she says, was an injury in the primary sense[1]—an injury other than a disease—arising in the course of her employment (s 5A(1)(b) of the SRC Act), for which Comcare is liable to pay her compensation (s 14).
[1] This has sometimes been characterised as an “injury simpliciter”. But the majority of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 said that that term had been used “not necessarily helpfully” and referred, instead, to an injury in the “primary sense” of that word: see at [42], [45]–[61] per French CJ, Kiefel, Nettle and Gordon JJ.
Comcare disputes that Ms Parton injured her back at Perth Airport, or at any other time during her trip from Christmas Island to Canberra. Comcare concedes that Ms Parton has a lumbar spine condition, which means that she suffers from an ailment or an aggravation of an ailment. But Comcare says that that ailment or aggravation was not contributed to, to a significant degree, by her employment. Accordingly, Comcare says, Ms Parton does not suffer from a disease as defined by s 5B of the SRC Act, or an injury as defined by s 5A, and Comcare is not liable to pay her compensation under s 14.
Comcare also says that, even if Ms Parton did suffer an injury, the SRC Act does not apply in relation to her injury because she did not give Comcare notice in writing of the injury as soon as practicable after she became aware of it, as required by s 53(1)(a).
So, the issues in this review are:
·Does Ms Parton suffer from a disease?
·Did Ms Parton suffer an injury in the primary sense (an injury other than a disease)?
·If Ms Parton did suffer an injury, did she give Comcare notice of her injury under s 53 of the SRC Act?
Events before Ms Parton returned from Christmas Island
I make the findings set out in [12]–[19] below, on the balance of probabilities. These findings are based on the evidence before me, especially evidence from Ms Parton and medical records. These findings are generally not contested.
In September 2012, Ms Parton fractured the fifth metatarsal in her right foot. She wore an orthopaedic boot on her right foot for seven or eight months in order to promote its healing. When the orthopaedic boot was removed, in around June 2013, Ms Parton was experiencing a dull ache down her right calf and across the top of her right foot. On the advice of her doctors, she took painkillers, refrained from playing high-impact sports, and wore “sensible” shoes. In June or July 2014, she returned to playing netball, which she had played before she broke her foot.
On 30 July 2014, she saw a physiotherapist complaining of pain in her right lower leg. She saw that physiotherapist again four times in the three weeks before she left for Christmas Island.
Before being deployed to Christmas Island, Ms Parton was required (by the AFP) to undergo a medical examination. On 5 August 2014, she completed an electronic medical questionnaire. Some of the questions were headed “[d]o you have now, have you ever had, or have you ever been treated for any of the following conditions”. Relevantly, Ms Parton answered “yes” in relation to two of those questions:
·Neck pain or injury, back pain or injury, or history of strain, “whiplash” injury or history of vertebral disc disorder?
·Any other upper or lower lib disorder, spinal or orthopaedic condition or surgery, or any other condition of the muscles, bones or joints (including broken bones)?
On 13 August, in relation to the first of these questions, the examining doctor noted:
Right foot fifth metatarsal fracture; boot for seven months (2012); cleared by surgeon July 2013. Some referred pain from back; possibly related to foot; reviewed by physio; nil issues for daily activity; reduced sporting activity.
In relation to the second of these questions, the examining doctor noted “as per [the first question]”.
On 19 August, Ms Parton saw the physiotherapist for the last time before travelling to Christmas Island. She complained of a burning sensation in her right foot, but not back pain.
On 21 and 22 August, Ms Parton travelled by plane from Canberra to Christmas Island, via Melbourne and Perth. She stayed overnight in Perth. While on deployment to Christmas Island, Ms Parton stayed in accommodation organised by the AFP.
On 11 September, Ms Parton saw a doctor on Christmas Island, Dr Gary Mitchell. This was the only time she saw a doctor during her deployment. He noted the “reason for contact” was “sciatica”. The location of Ms Parton’s pain was noted as “back of calf and down into top of foot, into toes”. He also noted:
Not present all the time. When on feet for extended periods of time. Sometimes feels at night. Has started swimming rather than walking because of this. No back pain.
He examined her back, and noted that her gait was normal. He prescribed Panadeine Forte and amitriptyline hydrochloride. Ms Parton had the prescriptions filled, but did not take either medication while she was on Christmas Island as she did not feel that she needed to.
On 25 October, Ms Parton packed her belongings into two bags. Each bag weighed 20–23 kilograms. She carried her bags, one bag at a time, from her accommodation to a car. She drove to the airport, where she used a trolley to carry her bags from the car to the terminal, and checked in. She returned to her accommodation and showered, then had dinner with three colleagues. After dinner, those colleagues drove her back to the airport.
On 25 and 26 October, Ms Parton travelled by plane from Christmas Island to Canberra, via Perth and Sydney. She stayed overnight in Perth. Her accommodation in Perth was arranged and paid for by the AFP.
Ms Parton’s return from Christmas Island
Ms Parton says that events occurred as set out in [21]–[23] below. Comcare disputes Ms Parton’s version of these events. I make a finding about these events below.[2]
[2] See [55] below.
Ms Parton experienced no pain in her back, and experienced no difficulty walking, on 25 October 2014 until she took her bags from the luggage carousel at Perth Airport. I will call this the carousel incident. At Perth Airport, Ms Parton took a trolley to the luggage carousel to collect her two bags. She had the trolley to her right, and when she turned to her left and picked up her first bag she suffered excruciating pain and dropped the bag. She could barely move. She dragged the bag onto the trolley, and supported herself on the trolley. She dragged the second bag off the carousel and onto the trolley. She sat on a bench seat for a while. Then she went through customs, using the trolley for support. She couldn’t stand upright. She struggled to move.
Ms Parton took a taxi from the airport to her hotel. The taxi driver and hotel porters carried her luggage. In her hotel room, she showered, took some Panadeine Forte, and went to bed. She did not sleep well. When she woke up the next morning, she took more Panadeine Forte, showered and took a taxi back to the airport. Again, her bags were carried by the hotel porters and the taxi driver. At the airport, she manoeuvred the bags onto a trolley herself. Again, she used the trolley as support when she took her bags to the check-in counter.
When she arrived at Canberra Airport, she was still experiencing pain from the centre of her back, down to her legs. She was met by some of her children, who collected her bags and drove her home.
Events after Ms Parton’s return from Christmas Island
I make the findings set out in [25]–[31] below, on the balance of probabilities. These findings are based on the evidence before me, especially medical records. These findings are generally not contested.
On 27 October 2014, the day after her return to Canberra, Ms Parton saw Dr Linda Shean, a general practitioner (GP). Dr Shean noted that Ms Parton “had right sciatic pain getting worse over past 6 months”. She noted that Ms Parton had broken her foot two years before, had worn a “moon boot” for eight months and had “no back pain then”. She also noted:
Constant pain. Settles with lying. Worse with moving, sitting etc. Pain radiates to foot. ?leg weakness …
[Patient] distressed by pain. Tender lower lumbar spine. Reduced [range of movement] in all directions.
Dr Shean arranged for a computed tomography (CT) scan of Ms Parton’s lumbar spine, and prescribed Panadeine Forte for the pain.
On 28 October, Ms Parton had a CT scan. She returned to Dr Shean the next day. Dr Shean referred Ms Parton to a neurosurgeon, Dr Michael Ow-Yang. She also arranged an urgent appointment that afternoon for Ms Parton to have a CT-guided epidural injection into her lumbar spine. That injection gave her no relief.
On 12 November, Ms Parton saw Dr Ow-Yang. He diagnosed her as suffering “severe right L5 radicular pain secondary to a L4/5 spondylolisthesis”. They discussed surgical options. The best option, in Dr Ow-Yang’s opinion, was lumbar fusion surgery. Ms Parton did not have private health insurance, so she could only afford to have that procedure in the public system. Another option was a minimally invasive lumbar nerve decompression, but that might only have a temporary effect. Dr Ow-Yang referred her to Dr Peter Mews, also a neurosurgeon. On 17 November, Ms Parton e-mailed Dr Ow-Yang to advise that, given the level of pain she was enduring, she had decided to have the decompression surgery as soon as possible, and the fusion surgery later.
On 5 December, Ms Parton saw Dr Mews. He agreed with Dr Ow-Yang’s diagnosis, and agreed to perform fusion surgery in a public hospital at a later time, if required.
Ms Parton had earlier arranged to be on leave from her work for the week after her return from Christmas Island. She didn’t return to work until 24 November 2014, and worked only four hours a day. She was on leave again from 12 December.
On 15 December, Dr Ow-Yang performed a lumbar laminectomy and nerve decompression on Ms Parton’s spine. She experienced “immense relief” from lower limb pain as early as the day after the surgery. She returned to full-time work on 2 January 2015.
In October 2015, Ms Parton started experiencing pain again. In August 2016, Dr Mews performed spinal fusion surgery on Ms Parton.
Does Ms Parton suffer from a disease (s 5B)?
Section 5B of the SRC Act provides that “disease” means an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by an employee’s employment. Ms Parton does not claim that she suffers from a disease for the purposes of the SRC Act, and I find, on the balance of probabilities, that she does not. Ms Parton had a lumbar spine condition before her deployment.[3] Neither that pre-existing condition, nor the carousel incident (described at [21] above), were contributed to, to a significant degree, by Ms Parton’s employment by the AFP.
[3] See [73] below.
Did Ms Parton suffer an injury in the primary sense (s 5A(1)(b))?
Ms Parton says that the carousel incident caused an injury to her back. It was, she says, an injury (other than a disease) arising in the course of her employment (s 5A(1)(b) of the SRC Act), for which Comcare is liable to pay her compensation (s 14).
Comcare concedes that, when Ms Parton travelled from Christmas Island to Canberra, on 25 and 26 October 2014, she did so in the course of her employment. But Comcare denies that the carousel incident occurred. And, if it did occur, Comcare says that it did not cause Ms Parton’s condition.
Did the carousel incident occur?
There is no direct evidence corroborating Ms Parton’s evidence about the carousel incident. Comcare points out that Ms Parton did not make a claim for compensation until almost three months after her return from Christmas Island,[4] and did not specifically claim that her injury was due to the carousel incident for a further month. Comcare says that this delay suggests that Ms Parton later fabricated the story of the carousel incident in support of her compensation claim. Ms Parton denies this, and says that she told several people about the carousel incident soon after her return from Christmas Island.
[4] I discuss, at [74]–[76] below, the question whether Ms Parton gave Comcare sufficient notice of her injury, as required by s 53(1)(a) of the SRC Act.
On 14 January 2015, Ms Parton submitted an incident report to the AFP in which she said:
I had been deployed to Christmas Island from 21 August 2014 to 25 October 2014. When I disembarked from the Christmas Island to Perth flight I experienced excruciating pain down my right side of my body. I struggled to stand on my feet and could barely walk.
This is the earliest written record of Ms Parton’s claim that her condition was due to something that happened at Perth Airport on 25 October 2014. The incident report was submitted 81 days after the claimed injury. She made her claim for compensation the next day.
Ms Parton says that the delay in making her claim was due to her not knowing that she could make a claim, and being very busy at work on her return. When she returned to work at the AFP, she was working as an executive assistant to two managers. She says that, on 13 January, she answered a phone call for one of those managers. The call was from an injury management case manager in the AFP (the case manager) who wanted to talk to one of Ms Parton’s managers about an injury that that manager had suffered. Ms Parton says that she and the case manager had a conversation, during which Ms Parton explained that she had been away from work for a while because she had been injured travelling back from Christmas Island. She says that the case manager told her to put in a claim form.[5] Ms Parton says that she explained to the case manager that she had been seeing a physiotherapist before her deployment, the implication being that Ms Parton thought that she could not make a claim for her back injury because she had been treated for referred back pain before her deployment. But, Ms Parton says, the case manager told her that that did not matter: “If you’ve injured yourself picking your luggage up it’s compensable, you need to put an incident report form in and a claim form”. Ms Parton says that the case manager said that she would arrange for another case manager, Mrs Sidonie Snowden, to contact her.
[5] I note that this part of Ms Parton’s account is consistent with a note, made by her GP eight days later, that Ms Parton’s work had suggested that she put in a claim for compensation: see [44] below.
Ms Parton says that Mrs Snowden e-mailed her the relevant forms that afternoon (13 January). And, as noted above, Ms Parton submitted the incident report form on 14 January and the compensation claim form on 15 January. On the claim form, she said that “prolonged sitting” on the “flight home from deployment location” had caused her injury. She did not refer on the compensation claim form (as she had on the incident report form, the day before) to having suffered an injury at Perth Airport. On neither form did she specifically refer to the carousel incident.
On 16 January, Ms Parton e-mailed Mrs Snowden, asking:
I was thinking last night about this. The other thing that may have contributed to my injury is carrying two 23 kg bags! Should that be written on [the] claim form?
Mrs Snowden replied by e-mail later that day:
You’re welcome to submit a statement along with your claim. I have already sent your claim to Comcare however, you can always submit additional information if you wish.
Her e-mail then explained how Ms Parton could submit additional information directly to Comcare, or to the AFP’s injury management team for forwarding to Comcare. Ms Parton appears not to have submitted any additional information until 12 February 2015,[6] and at about that time she first provided written information about the carousel incident.[7]
[6] The AFP received Dr Ow-Yang’s 29 January report (see [45] below) on 12 February. It would appear that Ms Parton provided Dr Shean’s certificate (see [44]) to the AFP on 13 February 2015. During the hearing, there was a suggestion that Ms Parton had provided the AFP or Comcare with that certificate on 21 January. This point was not strongly pressed, and I think it is unlikely that the certificate was provided before 13 February, when it was stamped as having been received by the AFP’s injury management area.
[7] See [45] and note 9 below.
Ms Brittney Field is Ms Parton’s daughter. She provided a statement on 21 September 2015, and gave evidence at the hearing. Her evidence supports her mother’s account of her condition on arrival at Canberra Airport. Ms Field made no reference to the carousel incident in her statement. At the hearing, Ms Field said that her mother had told her about the carousel incident, during the drive from the airport to Ms Parton’s home on 26 October 2014: “she had injured it or done something to her back when she was doing the flyover from Perth, so when she was getting her bag off the terminal in Perth on the changeover”.
Ms Parton says that, towards the end of the week after her return from Christmas Island (on Thursday, 30 October or Friday, 31 October 2014) she contacted her supervisor at the AFP to advise him that she would not be returning to work on 3 November, as planned, as she had to see a surgeon about her back. She says that she also told him then that “I had injured my back at the airport picking up my luggage”. Ms Parton also says that, when she first saw Dr Ow-Yang (on 12 November) she told him about the carousel incident, and explained to him how she had lifted her luggage off the carousel. She says that Dr Ow-Yang told her that “that is probably the worst movement you can make”.[8]
[8] I accept this evidence from Ms Parton (and Ms Hallissey: see [42]–[43]) as evidence that Ms Parton told Dr Ow-Yang about the carousel incident. It is not evidence about the likely medical consequences of lifting luggage in the way that Ms Parton claims that she did. And it is not evidence that the carousel incident occurred, only that Ms Parton told Dr Ow-Yang on 12 November 2014 that it had.
Ms Lesa Hallissey is a friend and former AFP colleague of Ms Parton’s. She says that Ms Parton told her about the carousel incident a few days after her return from Christmas Island. Ms Hallissey drove Ms Parton to her appointment to have the epidural injection (on 29 October). Ms Hallissey also drove Ms Parton to her first appointment with Dr Ow-Yang (on 12 November), and accompanied her during that consultation.
Ms Hallissey made two statements: one on 24 August 2015; one on 3 August 2016. In her second statement, and at the hearing, she corroborated Ms Parton’s evidence that Ms Parton told Dr Ow-Yang about the carousel incident, and that Dr Ow-Yang commented on the inadvisability of the movement that she described. There is no reference to that conversation in her first statement.
On 21 January, Ms Parton saw Dr Shean, her GP. Dr Shean noted that “[w]ork has suggested [Ms Parton] put in a claim for work cover”. Dr Shean prepared a medical certificate, in which she wrote:
Based on the information available to me, [Ms Parton’s condition] was caused by: prolonged sitting on plane and lifting heavy bags. Exacerbated low back pain which had been present for 6 months. Became debilitating requiring surgery from 26/10/14.
On 28 January, Ms Parton saw Dr Ow-Yang. The next day, Dr Ow-Yang reported that the surgery had resolved her lower limb pain and that she was no longer taking any medication. He also reported that:
Prior to deploying to Christmas Island, [Ms Parton] had some pain but was managing well and was seeing a physiotherapist at the time. After deployment, the pain got significantly worse due to the travel where she got off the plane in Perth and suddenly suffered severe sciatica after trying to unload her luggage.
This would appear to be the earliest written record of Ms Parton’s claim that her condition was due to the carousel incident. On 5 February 2015, Dr Ow-Yang reported to Comcare that Ms Parton’s pain occurred “after a long plane trip from Perth and lifting suitcase at the airport”. This would appear to be the first time that Comcare was advised of Ms Parton’s claim that her condition was due to the carousel incident.[9]
[9] The AFP received Dr Ow-Yang’s 29 January report (from Ms Parton) on 12 February; presumably, it was received by Comcare soon after that. Dr Ow-Yang’s 5 February report to Comcare was probably received before that. Nothing turns on this: Comcare was advised of Ms Parton’s claim that her condition was due to the carousel incident at some time in February 2015.
In summary, Ms Parton says: the carousel incident occurred on 25 October 2014; she told Ms Field (her daughter) about it the next day; she told Ms Hallissey about it a few days later; she told her supervisor about it on 30 or 31 October; she told Dr Ow-Yang about it on 12 November; and she told the case manager about it on 13 January—when, she says, she first learnt that she could make a compensation claim.
Comcare points out that Ms Field did not mention being told about the carousel incident in her statement; Ms Hallissey did not mention it in her first statement; Dr Ow-Yang made no written note about it until 29 January 2015; and there is no evidence from Ms Parton’s supervisor or from the case manager, confirming when she told them about the carousel incident.
Comcare says that Ms Parton was not ignorant of the process of making claims for compensation to Comcare because, in September 2004, she made a claim for compensation for an earlier unrelated injury. I do not think that that means that Ms Parton can be taken to have been aware of the circumstances in which compensation can be claimed. Relevantly, I accept—and I find, on the balance of probabilities—that Ms Parton was not aware (before 13 January) that she could claim compensation for an injury suffered during travel.[10] That explains her delay in making a claim. But it does not explain why she did not mention the carousel incident in the claim form, claiming instead that she was injured by “prolonged sitting” on the flight. During cross-examination, she was asked to explain this discrepancy. She said that:
It was an oversight of mine that that luggage incident was not included on that form. I tried to amend it within a very short period of time of me submitting that form.
And she added:
I was absolutely overwhelmed at work …
[10] I note that, at the hearing, Ms Parton referred to “several years ago a big thing in the media about staff not being covered to travel from their home to their place of work”. She also said that, before she made her claim, “I was unaware that my travel constituted work. So I was unaware that my plane trip consisted of me being on duty.”
I can accept that Ms Parton was very busy at work at the time. And it is true that, the day after she put in her claim form, she raised, with the case manager, the possibility of providing further information. But it is puzzling that she characterised this further information as her having carried “two 23 kg bags” which “may have contributed” to her injury.[11] At the hearing, Ms Parton said that the carousel incident caused the “most excruciating pain” that she has ever experienced. Yet it emerges almost as an afterthought in her compensation claim.[12]
[11] See [39] above, emphasis added.
[12] Comcare points out that, on 20 January 2016, Ms Parton told Dr Garth Eaton (an occupational physician—see [69]–[71] below) that she was injured when picking up the second bag from the carousel, not the first. I do not think that this inconsistency with her account of the carousel incident, as set out at [21] above, is significant. If the carousel incident caused Ms Parton the most excruciating pain that she has ever experienced, it is plausible that (almost 15 months later) she might not be certain about which bag’s lifting caused that pain.
Notwithstanding my reservations about this aspect of her evidence, I accept Ms Parton as a witness of truth on this issue. She variously claimed that her injury was caused by prolonged sitting on the flight,[13] or by carrying[14] or lifting[15] her bags, before she specifically claimed that it was caused by the carousel incident. I think that this is likely to be indicative of her misunderstanding of the circumstances in which compensation can be paid, and not indicative of dishonesty. I do not think that Ms Parton was dishonest in the way that she collected and presented evidence in support of her claim.
[13] See [44] above.
[14] See [39] above.
[15] See [44] above.
Similarly, I accept Ms Field and Ms Hallissey as witnesses of truth. Their evidence about Ms Parton having told them (and Dr Ow-Yang) about the carousel incident did not emerge until late in the process. However, I think that this is also likely to be indicative of a misunderstanding of the circumstances in which compensation can be paid, and not indicative of dishonesty on the part of Ms Field or Ms Hallissey.[16]
[16] I have come to this view, noting that Ms Hallissey corroborated Ms Parton’s evidence (about telling Dr Ow-Yang about the carousel incident) in her second statement, but not her first: see [43] above. Ms Hallissey explained in her second statement, and reiterated at the hearing, that she did so at the request of Ms Parton’s solicitor. I accept Ms Hallissey’s version of these events, and her reason for making her second statement.
Comcare says that, even if Ms Parton misunderstood the circumstances in which compensation can be paid, her doctors would have understood those circumstances: if she did tell her doctors about the carousel incident, any or all of them would have told her then that she could have made a claim. Instead, Comcare says, Ms Parton’s doctors were focused on assisting her to access superannuation funds to pay for surgery. Although her doctors did assist Ms Parton to access superannuation funds, it is clear that they—she and her doctors—were primarily focussed on obtaining medical treatment to address the pain that Ms Parton was experiencing. There is no evidence before me about the level of Ms Parton’s doctors’ understanding of compensation law, and I do not think that I can make any assumptions about that level of understanding. I do not accept Comcare’s argument that the fact that Ms Parton’s doctors do not appear to have advised her to make a compensation claim is indicative of her not having told them about the carousel incident.
Comcare first rejected Ms Parton’s claim on 6 March 2015, essentially on the basis that there was no evidence that her “underlying degenerative lumbar spine condition” had been made worse by a work-related event. When Comcare affirmed that determination on 19 June 2015 (in the reviewable decision), Comcare made it clear that it did not accept that the carousel incident occurred.[17] Comcare says that, when faced with this clear rejection of her assertion that she had been injured by the carousel incident, Ms Parton could have been expected to have obtained evidence to support her assertion. She could, for example, have obtained a statement from her supervisor confirming that she told him about the carousel incident five or six days after it happened.[18] Or, she could have obtained a statement from Dr Ow-Yang confirming that she told him about it when she first saw him 18 days after it happened.[19] She could even have obtained a statement from the case manager confirming that she told her about it when she spoke to her on the telephone 80 days after it happened.[20] She did not provide any such evidence, or give any reason for not having provided it. Comcare says that I should draw a Jones v Dunkel inference:[21] that I should infer that Ms Parton did not bring evidence from (for example) her supervisor, Dr Ow-Yang or the case manager, because it would not have supported her assertion that she told them about the carousel incident when she says she did.
[17] In its reasons for the reviewable decision, Comcare noted that Ms Parton had not referred to “a specific injury caused by taking [her] luggage off the carousel” in the incident report: see [36] above. Later in those reasons, Comcare reiterated the point: “You did not report sustaining an injury due to lifting your baggage”. As Comcare’s counsel put it at the hearing, “The issue could not have been put more squarely on the table”.
[18] On 30 or 31 October 2014: see [41] above.
[19] On 12 November 2014: see [41] above. On 29 January 2015, Dr Ow-Yang reported that the carousel incident had occurred (no doubt, on the basis that Ms Parton had told him that it had), but he does not say when Ms Parton first told him about it. It must have been no later than the day before (28 January) when he saw Ms Parton.
[20] On 13 January 2015: see [37] above. I note that this conversation (if it happened) happened so long after the carousel incident, and so shortly before the first written report of the carousel incident (see [45]) that evidence about it would have been of limited value.
[21] See Jones v Dunkel (1959) 101 CLR 298. The AAT is not bound by the rules of evidence (see Administrative Appeals Tribunal Act 1975, s 33(1)(c)) but the principle in Jones v Dunkel may apply in the Tribunal, at least in some instances: see Howes v Comcare [2016] FCA 1521 at [68] per Griffiths J; see also Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178 at 204–214 [91]–[116] per Forgie DP.
That argument would be stronger if there were no written evidence of Ms Parton having raised the carousel incident with anyone else before Comcare told her (on 19 June 2015) that it did not accept that the carousel incident occurred. In fact, there is written evidence that she raised it even before Comcare first rejected her claim (on 6 March): Dr Ow-Yang’s report of 29 January 2015.[22] Comcare referred to that report, though not to the carousel incident, in its reasons for its 6 March determination. There is no doubt that Ms Parton raised the carousel incident with Dr Ow-Yang no later than 28 January—over three months after it was said to have occurred, but before her claim was denied, and before Comcare told her that it did not accept that the carousel incident occurred. That does not mean that the carousel incident occurred, or that Ms Parton told anyone else about it before 28 January. But, on balance—and having regard to the evidence that has been brought—I do not think that I should draw an adverse inference from Ms Parton not having brought further evidence from people she says she told about the carousel incident before 28 January.
[22] See [45] above.
Having considered all the evidence—especially the evidence of Ms Parton, Ms Field and Ms Hallissey—I find, on the balance of probabilities, that the carousel incident occurred as Ms Parton says it did.[23]
[23] See [21]–[23] above. This includes a finding that Ms Parton experienced no pain in her back, and experienced no difficulty walking, on 25 October until the carousel incident: see [64] below.
Did the carousel incident cause Ms Parton’s condition?
Comcare says that, even if the carousel incident occurred, it did not cause Ms Parton’s condition. Comcare says that Ms Parton suffers from an underlying symptomatic constitutional lumbar spine condition, which pre-dates her deployment to Christmas Island. Comcare also points to evidence of Ms Parton having suffered lower back pain before the carousel incident.
Ms Parton concedes that she suffers from an underlying lumbar spine condition. But she denies that she experienced back pain before the carousel incident or, indeed, before her deployment.
Comcare points to Dr Shean’s referral letter to Dr Ow-Yang on 29 October 2014, in which she said:
Thank you for seeing [Ms Parton] who presented to me with quite severe back pain with radiation down her right leg to foot. She has had worsening symptoms since Feb, and has been in severe pain for past few months, however has just returned this week from work on Christmas Island where she was only able to access physio.
Comcare also points to Dr Ow-Yang’s reply to Dr Shean on 13 November 2014, in which he said:
[Ms Parton] has now been symptomatic for approximately 8 months but worse in the last 2 months.
Both letters are unclear about whether Ms Parton’s “severe pain for [the] past few months” or “worse [symptoms] in the last 2 months”—that is, while on Christmas Island—were back pain or leg pain. Dr Mitchell’s report (on 11 September on Christmas Island)[24] was much clearer: he reported “[n]o back pain”, though there had been pain in her right leg for nine months, “[w]orse 2 months”. Dr Shean was also clearer, though seemingly contradictory, when she wrote in a medical certificate on 21 January 2015 that prolonged sitting on the plane and lifting heavy bags had exacerbated Ms Parton’s “low back pain which had been present for 6 months”.[25]
[24] See [17] above.
[25] See [44] above. I take this to be a reference to lower back pain, not low levels of back pain. However, I do not take it to suggest that Ms Parton experienced severe back pain for six months.
Even if I assume that Dr Shean’s and Dr Ow-Yang’s letters were referring to Ms Parton experiencing leg pain (not back pain) while on Christmas Island, it is difficult to reconcile these references with Ms Parton’s account of her condition during her deployment to Christmas Island. Ms Parton says that she did not experience back pain before the carousel incident; Comcare says that she did, and points to Dr Shean’s 21 January certificate and the evidence of two of Ms Parton’s colleagues.
Ms Shannon Keith was deployed to Christmas Island, and met Ms Parton there. On 1 April 2015, in a statutory declaration she said:
[Ms Parton] indicated that she had suffered an injury that impeded her back, but made several statements to me to the effect that she was seeing improvement and was pleased she could participate in physical activities.
Ms Parton denies ever having experienced problems with her back before the carousel incident, and denies having told Ms Keith that she had. During cross-examination, Ms Parton said that she may have told Ms Keith that her physiotherapist had told her that she was experiencing referred pain from her back. This, Ms Parton said, might explain Ms Keith’s recollection about an injury impeding Ms Parton’s back.
Ms Rebecca Hartcher was also deployed on Christmas Island, starting about a fortnight before Ms Parton’s deployment ended. On 1 April 2015, in a statutory declaration she said:
I was in the company of [Ms Parton] when she booked a recreational dive at which time [Ms Parton] mentioned she was experiencing mild discomfort in her back.
Ms Parton denies that she experienced even mild discomfort in her back at that time. She says that she filled in a questionnaire for the dive operator, and answered a question about whether she had, or had had, any issues with her back. She says that she would have answered “‘Yes’, because of me seeing the physiotherapist”.
I can accept Ms Parton’s explanation in relation to Ms Keith’s evidence. I find it harder to accept her explanation in relation to Ms Hartcher’s evidence. And there is also the reference, in Dr Shean’s medical certificate on 21 January 2015, to lower back pain having been present for six months before being exacerbated. Having regard to all of this evidence, I find, on the balance of probabilities, that Ms Parton did complain of some discomfort in her back during her deployment to Christmas Island.
Ms Keith and Ms Hartcher are two of the three colleagues with whom Ms Parton had dinner on 25 October 2014, and who drove her to the airport after dinner.[26] In her statutory declaration, Ms Hartcher said:
At Christmas Island airport on Saturday the 25th of October [Ms Parton] was in some discomfort and seemed concerned about the 4 hour flight and having to sit for 4 hours.
In a later statement,[27] Ms Hartcher said that Ms Parton had said, at the airport, that she “was in some discomfort” and “made reference to the departure day and having to transport heavy baggage down stars at the accommodation blocks to the airport as a possible cause of her discomfort”. During cross-examination, Ms Parton first denied having said this, though she later agreed that it was possible that she had. She accepted that she was in some discomfort and was apprehensive about the length of the flight. When asked, during cross-examination, what discomfort she was experiencing, she said:
I was just tired. I had no pain or discomfort as such. I was exhausted just from the whole busy day.
This is supported, to some extent, by Ms Hartcher’s evidence at the hearing. She said that Ms Parton had, at the Christmas Island Airport, said words to the effect that she was “just a bit stiff” and that Ms Hartcher had taken that to mean that Ms Parton had some discomfort in her back.
[26] See [18] above.
[27] 3 August 2016.
I have already found that Ms Parton complained of some discomfort in her back during her deployment to Christmas Island. I also find, on the balance of probabilities, that she complained of leg pain during her deployment. (That is clear from Dr Mitchell’s report.) On balance, I accept Ms Parton’s evidence that she did not experience back pain on Christmas Island on 25 October. And I find, on the balance of probabilities, that Ms Parton was not experiencing back pain when she departed Christmas Island. In making this finding, I note that Ms Hartcher said (in her later statement) that she had watched Ms Parton “walking normally to the customs scanner machine”, and said (in her statutory declaration) that Ms Parton “seemed to be in a good physical state” when she departed Christmas Island.
As noted above, on 28 October (three days after the carousel incident), Ms Parton had a CT scan of her lumbar spine. Dr David Morewood, a radiologist, reported that:
At the L4/5 level there is forward slip of L4 on L5 due to osteoarthritic change in the posterior facet joints at this level. There is also generalised bulging of the annulus and hypertrophy of the ligamentum flavum. All of these features are resulting in some compression of the theca at this level.
On 16 November (22 days after the carousel incident), Ms Parton had a magnetic resonance imaging (MRI) scan of her lumbar spine. Dr Brett Lyons, also a radiologist, reported:
Pars fractures at L4 with a grade 1 spondylolisthesis. Disc bulge with bilateral exit foraminal narrowing and possible irritation of the exiting L4 nerve roots, more likely on the left side. Central disc bulge at L5/S1 may also be causing irritation of the descending S1 nerve roots. At L4/5, there is a diminished space for the descending left L5 nerve root and irritation of this is also possible.
Dr Gautam Khurana is a brain and spine surgeon and a consultant neurosurgeon. He examined Ms Parton on 12 November 2015. He prepared a report on 23 November, and gave evidence at the hearing. Dr Khurana reported:
I do not believe [Ms Parton’s] condition was contributed to by any significant means by the flight from Christmas Island to Perth or the alleged [carousel incident]. It is more likely than not that the condition is very substantially and almost entirely contributed to by pre-existing structural pathology including pars defect with significant slip, and a family history of such indicating constitutional/genetic factors may be at play as well as a lengthy history of physical sporting/recreational activities …
He also reported:
… it is my opinion that on the balance of probabilities, any event, even innocuous, could have aggravated the pre-existing symptomatic lumbar spondylosis/spondylolisthesis and I find it very difficult to convince myself that this process can be genuinely attributed to prolonged sitting on a flight or the lifting of the suitcase thereafter.
At the hearing, Dr Khurana explained:
… if a pars fracture is acute, it’s relentless, severe pain. Relentless, severe pain, acute onset with no precedent, so it just happens. Immediate onset. And if someone were to obtain an MRI shortly thereafter it … there would be expected to be a substantial amount of oedema—swelling evident on the MRI in the soft tissues surrounding the fractured region.
He said that he saw no such swelling on Ms Parton’s MRI scan. He accepted that that did not necessarily mean that she did not suffer a pars fracture on 25 October, but he said that the vast majority of pars fractures are due to congenital pars defects:
So people are born with those defects. And as you are probably aware, this lady has a substantial and relevant family history of spondylolisthesis. So—so while you [counsel for Ms Parton] asked about definitiveness, I think one has to kind of balance all of that information together. The chances of her having bilateral pars defects from that described event will be low, in my opinion.
Dr Khurana also said:
… focusing on the lumbar spine, something that would be acute would be, for example, an annular tear, and what that means is—an annular tear is where a disc actually doesn’t prolapse in any significant way but the outer reception—or the outer—the leathery bark that surrounds our intervertebral discs gets a tear in it, and on an MRI, even for the first several months after such an event—or a few months after an event, you can actually get a signal within the disc that suggests that it is torn. There was no such annular tear that I could see on the—on the MRI that I reviewed that was prior to the surgery. I also tried to see are there other types of acute changes, such as an acute fracture … If there was an acute fracture, I would be looking for evidence of oedema—swelling around the soft tissues. I could not see that either. And if there was an acute disc prolapse, generally the colour of that prolapse, the signal, appears to be lighter than the surrounding disc, and I could not see that either. So when I said in my report that these changes appeared chronic, these changes were rather substantial, and certainly appeared to have occurred over a period of—of a considerable amount of time; that would be months to years.
However—and, in my view, significantly—during cross-examination, Dr Khurana accepted that, if Ms Parton correctly reported experiencing sudden pain during the carousel incident, then it would be “a reasonable thing to entertain” that some pathology had occurred in her lumbar spine condition at that time.
As noted above,[28] Dr Khurana explained that even an innocuous event can aggravate a pre-existing lumbar spine condition. He explained that:
… sometimes when people have substantial pathology that is pre-existing, and they may or may not be aware of it. Sometimes things such as sneezing or—or picking up something or bending over—innocuous events—can trigger an aggravation.
He accepted that lifting and twisting is a common mechanism for such an aggravation.
[28] See [66] above.
Dr Garth Eaton is an occupational physician. He examined Ms Parton on 20 January 2016. He prepared a report on 5 February 2016, and gave evidence at the hearing. He diagnosed Ms Parton with “L4/5 spondylolisthesis” and “L4/5 disc prolapse with right L5 nerve root impingement”. Dr Eaton reported:
In my opinion, on the balance of probabilities, the excruciating pain experienced by Ms Parton and the need for surgery was significantly contributed to by the events at Perth airport. It appears, from considering all the information concerning her condition, that Ms Parton did experience pre-subject injury symptoms in the right lower limb which occurred due to lumbar nerve root irritation, specifically at L5. This occurred intermittently for several months prior to travelling to Christmas Island.
…
When Ms Parton lifted the suitcases off the carousel and experienced sudden excruciating pain in the right lower back extending down into the leg, it is likely the disc prolapse had occurred at that time, resulting in frank L5 nerve root compression/entrapment rather than just irritation. Ms Parton may have twisted her back in the process of lifting the bags.
During cross-examination, Dr Eaton conceded that his opinion was based on Ms Parton’s report to him of the carousel incident. But he added:
Whatever was there before, whatever assessment she had before, whatever went on before, something dramatic happened to get her to the stage where she had to have surgery.
In summary, Dr Khurana’s view is that it is unlikely that the carousel incident significantly contributed to Ms Parton’s condition. He says that her condition is more likely due to her pre-existing structural pathology. However, he agrees that (assuming that the carousel incident did happen), it could have affected Ms Parton’s lumbar spine condition. Dr Eaton is more accepting of Ms Parton’s report of the carousel incident. And, assuming that the carousel incident did happen, he thinks that it is likely that the disc prolapse occurred at that time.
I have already found that the carousel incident occurred. And I have already found that Ms Parton complained of some discomfort in her back during her deployment to Christmas Island, but that she experienced no pain in her back, and experienced no difficulty walking, on 25 October until the carousel incident.
Given those findings, and having regard to all of the evidence, I make the following findings, on the balance of probabilities: Ms Parton had a pre-existing lumber spine condition; the carousel incident caused a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state of her lumbar spine:[29] namely, L4/5 disc prolapse. That change or disturbance caused her significant pain, and required surgery. As the carousel incident occurred during the course of her employment, it follows that Ms Parton suffered an injury for the purposes of s 5A(1)(b) of the SRC Act.
[29] See Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [45]–[48] per French CJ, Kiefel, Nettle and Gordon JJ.
Did Ms Parton give Comcare notice of her injury under s 53?
Section 53 of the SRC Act relevantly provides:
53 Notice of injury or loss of, or damage to, property
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; …
…
…
(3)Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
For the purposes of Ms Parton’s claim, the relevant authority is Comcare.[30]
[30] The AFP is not a licensee under the SRC Act, so Comcare is the relevant authority: see the definitions of “licensee” and “relevant authority” in s 4(1) of the SRC Act.
Ms Parton became aware of her injury when it occurred, on 25 October 2014. She first gave Comcare written notice of her injury when she made her claim for compensation on 15 January 2015—82 days later. Clearly that notice was not given as soon as practicable after Ms Parton became aware of her injury.
However, I have already found that Ms Parton was not aware, before 13 January 2015, that she could claim compensation for an injury suffered during travel.[31] She provided written notice of the injury as soon as practicable after that date. I think that she failed to comply with the requirements of s 53(1) because of ignorance or mistake, which was a reasonable cause in the circumstances. It follows that, because of s 53(3), Ms Parton is taken to have given Comcare notice under s 53.
[31] See [48] above.
Costs
Section 67(8) of the SRC Act provides:
(8)Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
My decision in this review involves setting aside a reviewable decision and making a decision in substitution that is more favourable to Ms Parton. Accordingly, I order that the costs of the proceedings in this review be paid by Comcare.
Conclusion
Ms Parton suffered an injury (other than a disease) when she collected her bags from the luggage carousel at Perth Airport on 25 October 2014. The injury was suffered during the course of her employment, so it was an injury for the purposes of s 5A(1)(b) of the SRC Act.
Ms Parton did not give Comcare notice of her injury as soon as practicable after she became aware of it. However, her failure to comply with the requirements of s 53(1) was due to ignorance or mistake. Because of s 53(3), Ms Parton is taken to have given Comcare notice under s 53.
Comcare is liable, under s 14, to pay compensation in respect of Ms Parton’s injury
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .................[sgd].......................................................
Associate
Dated 22 December 2016
Dates of hearing 24–26 October 2016 Counsel for the Applicant Mr Karl Pattenden Solicitors for the Applicant Lander and Co, Solicitors Counsel for the Respondent Mr Matthew Gollan Solicitors for the Respondent Claims and Liability Management Division, Comcare
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Procedural Fairness
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Remedies
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