Pearce and Comcare
[2007] AATA 1428
•15 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1428
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/151
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM PEARCE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date15 June 2007
PlaceCanberra
Decision The decision under review is affirmed. .............Signed.................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - injury - incident travelling home from work - minor cut on lower lip - no impairment – no medical treatment - squamous cell carcinoma - disease - no material contribution by employment - circumstances of injury unrelated to employment - - decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 6, 7, 14, 16, 67
Re Halliday and Comcare (1994) 19 AAR 431
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Comcare v Sahu-Khan [2007] FCA 15
Re Epple and Comcare (1996) 43 ALD 273
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
15 June 2007 Mr S. Webb, Member 1. Graham Pearce cut his lip on the lid of a drink bottle while riding his bicycle home from work. The wound was slow to heal. He sought medical advice. A squamous cell carcinoma was diagnosed and surgically removed. Mr Pearce claimed compensation. His claim was rejected by primary determination and on reconsideration. Mr Pearce pressed his claim, on review, before the Tribunal.
2. The factual matrix of events is not in dispute. On 29 March 2005, Mr Pearce rode his bicycle from the place of his employment to his usual home residence. During this activity he pinched his bottom lip when closing the spout on his bicycle drink bottle with his teeth. This caused pain which subsided after about 10 minutes,[1] and some bleeding[2]. The wound on Mr Pearce’s lip “did not heal as expected and looked similar to a cold sore”. On 9 May 2005, he attended his general practitioner for a biennial health check and related medical tests, and sought advice about the lesion on his lower lip[3]. On 25 May 2005, Mr Pearce went to obtain the result of the medical tests and obtained a referral to Dr Michael Cooper, Oral and Maxillofacial Surgeon[4]. Following biopsy of the lesion on Mr Pearce’s lower lip, a squamous cell carcinoma in situ was diagnosed and this was “widely resected and reconstruction undertaken owing to the size of the lesion”[5]. As a consequence of these procedures Mr Pearce was medically certified unfit for work on 30 May 2005 to 1 June 2005 and 8 June to 22 July 2005 inclusive[6]. On 21 November 2005, Mr Pearce claimed compensation in relation to “Lesion, lower lip – squamous cell carcinoma in situ”[7]. On 15 February 2006, Comcare determined to “reject carcinoma in situ of lip, oral cavity, & pharynx,” “Under s14 of the SRC Act”[8]. On 16 June 2006 that decision was affirmed on reconsideration[9].
[1] Exhibit A1, par 2.
[2] Exhibit A4.
[3] Exhibit A1, par 3.
[4] Exhibit R3.
[5] T6.
[6] T4, T5 and T8 refer.
[7] T7 folio 11.
[8] T12.
[9] T16.
3. The issues for determination are:
(a)Did Mr Pearce suffer an injury to his lip on 29 March 2005?
(b)If so, is Comcare liable to compensate Mr Pearce for that injury?
(c)Was the minor trauma to Mr Pearce’s lip an operative factor in the onset or development of the squamous cell carcinoma?
(d)Did Mr Pearce’s employment materially contribute to cause or aggravate the squamous cell carcinoma lesion on his lower lip?
Did Mr Pearce suffer an injury to his lip on 29 March 2005?
4. It is accepted that Mr Pearce pinched his lower lip, and suffered pain and some bleeding as a result, on 29 March 2005. He did so closing his bicycle drink bottle with his teeth while riding from his place of employment to his usual residence.
5. Under the Safety, Rehabilitation and Compensation Act 1988 (the Act) as it stood at the date of the claimed injury, ‘injury’ is relevantly defined to include “…a physical… injury… or an aggravation of a physical… injury… arising out of, or in the course of, the employee’s employment” (s.4). Under the Act, in that form, an injury that occurred while travelling between the employee’s workplace and his or her residence is treated as having arisen out of or in the course of the particular employment (subs 6(1)(b)(ii)).
6. I accept that Mr Pearce suffered a minor trauma to his lower lip in the manner described. Minor as the lesion was, it nonetheless caused pain and bleeding and is within the usual meaning of a (minor) physical injury. Because it occurred travelling between his workplace and his home, under the Act as it stood the injury is to be treated as having arisen out of or in the course of his employment. I so find.
7. Thus it can be seen that Mr Pearce suffered an ‘injury’ within the meaning of the Act as it stood on 29 March 2005.
is Comcare liable to compensate Mr Pearce for that injury?
8. In Mr Pearce’s submission, he suffered impairment as a result of the injury to his lower lip and is entitled to compensation therefore.
9. Liability to pay compensation in relation to an injury arises pursuant to s.14 of the Act if the particular injury results in incapacity for work, impairment or death. ‘Impairment’ is defined to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function” (s.4).
10. Plainly enough Mr Pearce’s lower lip is a part of the body. The meanings of ‘damage’ and ‘malfunction’ were discussed in the context of ‘impairment’ in Re Halliday and Comcare (1994)[10] and the Tribunal said:
“… there will be an impairment of a part of the body… if it has been damaged in the sense that its usefulness or value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly.”[11]
[10] 19 AAR 431, at 440-441.
[11] Ibid, at 441.
As it appears to me, that interpretation is correct in the context of the Act and no compelling reasons to depart from it have been agitated in these proceedings.
11. Thus, considering Mr Pearce’s evidence concerning the injury he suffered on 29 March 2005 and the direct and proximate effects of the injury, I am reasonably satisfied that Mr Pearce did not suffer any loss of the use of his lower lip, nor was his lower lip diminished in usefulness or value, nor did it fail to function normally or properly as a direct effect of the injury simpliciter. Even though Mr Pearce experienced pain and some bleeding as a result of the minor trauma to his lower lip, it does not follow that his lower lip was impaired. The concept of impairment, as defined, is essentially concerned with the use and function of body parts and bodily systems. There is no evidence before me that Mr Pearce lost the use of his lower lip or that its function was impaired as a result of the injury on 29 March 2005. Thus, I am reasonably satisfied that he did not suffer impairment as a direct result of the injury at that time.
12. There is no evidence that Mr Pearce suffered any incapacity for work as a result of the injury at that time and, by his own account, he did not seek medical treatment in relation to the injury in the weeks following 29 March 2005. However that does not conclude the matter. Mr Pearce asserts that the injury triggered or aggravated the development of the squamous cell carcinoma on his lower lip, in relation to which he did suffer impairment and incapacity for work and required medical treatment.
Was the minor trauma to Mr Pearce’s lip an operative factor in the onset or development of the squamous cell carcinoma?
13. In Mr Pearce’s submission, the initial trauma to his lower lip, albeit minor, was sufficient to aggravate underlying solar-damaged precancerous tissue in his lower lip and, thereby, to cause, trigger or aggravate the development of the squamous cell carcinoma at the site of the trauma. Mr Pearce points to the opinions of his treating doctors concerning the causal relationship between the trauma he suffered and the subsequent development of the malignant lesion at the trauma site within an area of solar damaged tissue that is described as pre-cancerous.
14. I am not satisfied that Mr Pearce’s submission is made out on the evidence.
15. For Mr Pearce’s submission to be made out it must be established to the Tribunal’s reasonable satisfaction, on the balance of probability, by probative evidence. Mere speculation or possibility or conjecture is not sufficient. Even if the material before the Tribunal points to the possibility that the connection contended for by Mr Pearce may have occurred, for his case to be made out it must be established on the material before the Tribunal that it was more likely than not that it did occur, and was therefore probable rather than merely possible (Minister for Immigration and Ethnic Affairs v Pochi (1980)[12]).
[12] 4 ALD 139, at 155-156.
16. Considering the medical evidence, it can be accepted that the development of a squamous cell carcinoma is a multi-stage disease process. Furthermore, it is not disputed that sunlight and trauma may be factors in the development of squamous cell carcinoma[13].
[13] T15 folio 32 refers.
17. Dr Peter Vickers, Mr Pearce’s treating Surgeon, reported that Mr Pearce’s squamous cell carcinoma in situ “may be directly related to Mr Pearce pinching his lips”, “if pinching his lips was one feature of his daily work activity then possibly it is a factor in the development of a squamous cell carcinoma in situ”[14]. Subsequently Dr Vickers reported that “it is impossible to state whether one episode or multiple episodes of trauma may predispose to subsequent disordered healing and the contribution of this to the development of the carcinoma” and then concluded “on the balance of probabilities it is likely that either one or repeated episodes of trauma may be the cause of Mr Pearce’s tumour”[15].
[14] T15 folio 32.
[15] Exhibit A5, p1.
18. Dr Edmund Lobel, Occupational Dermatologist, agreed with Dr Vickers that trauma may be a factor in the development of squamous cell carcinoma, but observed that “it is repeated trauma over many years (average 10 to 20 years or more) which may be a factor”[16]. Dr Lobel reported that failure to heal after a trauma is a well known symptom that may suggest possible malignancy. He observed that “it is highly likely that the malignancy was present in Mr Pearce’s lip at the time of the injury and the trauma drew Mr Pearce’s attention to the area via non-healing,” and concluded, “on the balance of probabilities, the squamous cell carcinoma in situ was actually present on Mr Pearce’s lip on 29 March 2005 and was unmasked by the minor injury which failed to heal”[17].
[16] Exhibit R1, p3.
[17] Ibid.
19. I am satisfied that prior to the injury there was sun damaged tissue on Mr Pearce’s lower lip in the form of leukoplakia, extensive actinic cheilitis and well developed elastosis[18]. I accept Dr Lobel’s evidence concerning the development of these pre-cancerous conditions and the development of malignant actinic lesions as a result of chronic sun damage over many years. Mr Pearce accepted, in all likelihood, that he had been exposed to sun damage over many years when riding bicycles (it appears that he rode bicycles competitively for a number of years). Furthermore, there is no evidence that Mr Pearce pinched his lip on more than one occasion or that pinching his lip was a daily feature of his employment that was repeated over many years.
[18] Exhibit R1, pp 2-3 refer.
20. Thus, weighing all of the evidence, while it is possible that the single minor trauma to Mr Pearce’s lower lip on 29 March 2005 may have been a factor in the development of the squamous cell carcinoma in situ, it is not established as a probability that it was. With respect to Dr Vickers, his conclusion ‘on the balance of probabilities’ that the trauma ‘may’ or ‘could’ have triggered the development of carcinoma does not persuade me that it was more likely than not that it did. Even if it is accepted that the trauma may have or could have contributed to the development of carcinoma, and it is possible that it did, Dr Vickers’ evidence is not sufficient to establish on the balance of probabilities that it did.
Did Mr Pearce’s employment materially contribute to cause or aggravate the squamous cell carcinoma lesion on his lower lip?
21. Mr Pearce asserts the squamous cell carcinoma developed in compensable circumstances, in which his employment materially contributed to cause the cancerous tumour. For these reasons Mr Pearce submits that he is entitled to compensation.
22. As will appear, I do not agree.
23. Under the Act, as it stood at the date of the claimed injury, ‘injury’ is relevantly defined to include a disease (s.4). The word ‘disease’ is defined to mean any ailment or aggravation of an ailment suffered by an employee “that was contributed to in a material degree by the employee’s employment” (s.4). The word ‘material’ imposes an evaluative threshold (in consideration of all contributing factors) below which a causal connection to the relevant employment may be disregarded (Comcare v Sahu-Kahn [2007][19]).
[19] FCA 15, at [13] and [16].
24. The causal connection between the development of Mr Pearce’s squamous cell carcinoma in situ and his employment is not made out. The medical evidence points to the possibility that Mr Pearce’s injury on 29 March 2005 may have been a factor in the development of the carcinoma. Dr Lobel’s evidence suggests that the injury may have unmasked the carcinoma. Even if that is what occurred, and it appears likely enough on the evidence, there is no evidence that the unmasking materially contributed to aggravate or accelerate the development of the carcinoma or to render it symptomatic. It follows therefore that the causal link between the carcinoma and the employment contended for by Mr Pearce is not established.
25. Finally, the test of materiality requires that the employee’s employment contributes in a material degree to the ailment. For present purposes Mr Pearce’s employment is constituted by his performance of the duties and functions of an Executive Officer employed, as he was, by the Commonwealth Department of Foreign Affairs and Trade (s.5). In Comcare’s submission, those duties and functions were not related to the circumstances in which the injury occurred. My attention was drawn to Re Epple and Comcare (1996)[20]. In that case Mr Epple broke a diseased tooth while chewing peanuts at his desk in employment. The Tribunal found that there was no nexus between eating peanuts and his employment, and therefore no material contribution by his employment to the broken tooth injury claimed. Thus Comcare says that Mr Pearce pinching his lip when closing his drink bottle with his teeth while riding his bicycle home from work is not related to his employment. However, this case is not on all fours with Epple’s case. In this case, pursuant to (then) s.6, Mr Pearce’s injury simpliciter arose out of or in the course of his employment. The carcinoma claimed as a sequela to the injury is, it appears to me, within the meaning of ‘disease’ (s.4). It is in relation to that issue that the test of materiality applies and not to the injury simpliciter. If, as in this case, an injury occurs in compensable circumstances, and it is claimed that the injury contributed to the development or aggravation of a disease, the test of materiality may be satisfied if the injury contributed in a material degree to the disease. This may be the case even though the precise cause of the injury simpliciter (closing a drink bottle or chewing peanuts) is not related to the person’s employment. Thus, Epple’s case is distinguished. As the injury simpliciter in this case is an ‘injury’ under the Act (arising out of or in the course of employment pursuant to s.6), the test of materiality would be satisfied if the injury materially contributed to the development of the carcinoma. However, that is not established on the evidence.
[20] 43 ALD 273.
26. Thus, Mr Pearce’s application is unsuccessful and the decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Jane Gribble
AssociateDate of Hearing 29 May 2007
Date of Decision 15 June 2007Representative for the Applicant Self Represented
Counsel for the Respondent Steve Whybrow
Solicitor for the Respondent Andrew Schofield
Sparke Helmore
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