Peter Walshe and Comcare
[2013] AATA 812
[2013] AATA 812
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2238 & 2012/5136
Re
Peter Walshe
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Professor Creyke, SM, Dr Hughson M
Date 15 November 2013 Place Canberra The decision under review is set aside and in substitution, the Tribunal finds that Comcare is liable under section 14 of the Act for the aggravation of Mr Walshe’s degenerative back condition.
............................[sgd]........................................
Professor RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employees - employed as bus driver - impact of non-employment factors on injury - aggravation of condition – whether condition significantly contributed to by employment
Legislation
Safety, Rehabilitation and Rehabilitation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 53(1)
Cases
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Casarotto v Australian Postal Commission (1989) 86 ALD 399
Comcare v Sahu-Khan (2007) 156 FCR 536Re Douglas and Australian Postal Corporation [2010] AATA 479
Martin v Australian Postal Corporation (1999) 29 AAR
Mellor v Australian Postal Corporation (2009) 108 ALD 159Ogden Industries v Lucas (1967) 116 CLR
Smith v Comcare [2013] FCAFC 65
Szabo v Comcare [2012] FCA 28
Tippett v Australian Postal Corporation (1998)27 AAR 40Secondary Materials
Harvey Marcovitch (ed) Black’s Medical dictionary (42nd edn, 2010)
N Bogduk, & B McGuirk, Medical Management of Acute and Chronic Low Back Pain. An Evidence-Based Approach, (Elsevier, Amsterdam, 2002)
J Ballard, P Sutherland Annotated Safety, Rehabilitation and Compensation Act 1988 (9th edn, 2011)REASONS FOR DECISION
RM Professor Creyke, SM, Dr Hughson M
Mr Peter Walshe has two matters before the Tribunal, both relating to the same condition: an aggravation of spinal stenosis, other than cervical (Matter No 2012/2238 and Matter No 2012/5136). It was agreed that the claim is for an aggravation of a pre-existing degenerative back condition.
The claims concern acceptance of liability under section 14 of the Safety, Rehabilitation and Rehabilitation Act 1988 (Cth) (Act) to pay compensation to Mr Walshe for his condition. The Tribunal is satisfied on the evidence that it has jurisdiction to hear the applications for review.
Both matters were heard in Canberra on 5-6 September 2013.
Background
Mr Walshe, born 1961, was an ACTION [ACT Internal Omnibus Network) bus driver. He has two claims for spinal stenosis, other than cervical. His claim is that his degenerative back condition was due to long hours of driving and repeated jarring of his back.
Mr Walshe said that prior to commencing work as a bus driver he had a number of positions. These included: being a meat packer between 1978 and 1983; working for a cleaning company between 1983 and 2000 as supervisor and then area manager; being a site security officer at the Australian National University from 2000 to 2006, during which he injured his ankle, and worked for some months in administration; and as a bus driver with ACTION from April 2007.
Mr Walshe started working for ACTION on 20 April 2007 and ceased that employment on 22 October 2010. He has not worked since.
Mr Walshe said he had back pain prior to 2007, and experienced lower back pain as a cleaner. The pain had worsened during his employment with ACTION and he first sought medical treatment for it in September 2009. Dr Justin Pik, orthopaedic surgeon, operated on his back on 19 November 2010.
On 22 November 2011, Mr Walshe completed a report in respect of an incident on 8 October 2010. He said that when driving an ACTION bus he went over a bump in the road and felt a thump in the driver’s seat which resulted in a lowering of the seat. He did not lodge a report of the incident at the time. There is evidence that the seat of the bus had been replaced on 10 August 2010, about two months’ earlier. There is also evidence that in his last year at ACTION he was driving on average 104 hours a fortnight, which is 52 hours a week either arranging buses or sitting in a bus seat.
On 9 January 2012, the ACT’s Territory and Municipal Services (TAMS) agency received Mr Walshe’s workers’ compensation claim. The claim form described his claim as ‘disc herniation – lumbar canal stenosis’ and said Mr Walshe first noticed his back injury on 8 October 2010. However, Mr Walshe also noted in the form that he had ‘longstanding lumbar instability’.
On 17 July 2012, TAMS received the second claim for workers’ compensation. This claim states that Mr Walshe first noticed his back in jury in ‘late 2009, early 2010’, and attributed his injury to the nature and conditions of his employment. He referred specifically to: ‘Regularly driving a bus … long hours driving buses, sitting and driving buses 8-10 hours per day and every [second] weekend. Regular “thumping down” of the bus seat’.
On 30 May 2011, Mr Walshe met Mr Brad Morante, Injury Management, Human Resources, TAMS to request Mr Morante to assist him obtain invalidity retirement. Mr Morante said he was told by Mr Walshe that ‘he was no longer fit for any kind of work’. Mr Walshe is recorded as saying his back condition was not due to bus driving but related to his previous employment as a cleaner and supervisor. Mr Morante said he later arranged for Mr Walshe to be assessed by Dr Fitzgerald for invalidity retirement.
There is conflicting evidence as to whether a workers’ compensation claim was discussed in the May 2011 meeting. The accuracy of recollections does not need exploration since in the result Mr Walshe did lodge claims and Comcare has not pursued its initial claim for dismissal of the applications under section 53 of the Act for failure to notify of his ailment ‘as soon as practicable’.
Mr Walshe was hospitalised between 22 July 2011 and 22 August 2011. His condition resolved and he was stable for two weeks prior to his discharge on 22 August 2011. No action concerning any claim could be taken during this period.
Mr Morante saw Mr Walshe again on 7 and 16 June 2011. Mr Walshe was at that time under emotional stress, prior to his hospitalisation for a psychiatric condition. The Tribunal does not rely on the accuracy of the content of those meetings.
Mr Morante again met Mr Walshe on 16 December 2011, to finalise his invalidity claim. This was after Mr Walshe had been advised by his solicitor to make a workers’ compensation claim. According to Mr Morante, Mr Walshe again informed him he had no such intention. Mr Walshe’s evidence was that he did not want to make a workers’ compensation claim since he believed it took a long time. The discussion was also consistent with Mr Morante’s file note which refers to the Comcare processes. Nonetheless, Mr Walshe must have had a change of mind about lodgement of a claim since he made his first claim on 22 December 2011, only a week later. Nothing turns on the conflict in the evidence.
Mr Walshe gave evidence that while bus driving he put on considerable weight. He was 100kg when he commenced at ACTION, and was 110 kg according to his permanent disability claim on 21 October 2011. Mr Walshe said while working for ACTION his weight increased to about 130kg by October 2010. He said that post-surgery in November 2010, he had a lifestyle change and put on 22kgs. He went on a diet and lost some weight, as is evidenced by his weight in October 2011, but has put it on again and is again 130kg.
Medical Evidence
Dr J Pik
Dr Pik, a neurosurgeon, did not give oral evidence in relation to these claims. His contemporaneous notes are however important, and he agreed to provide the Tribunal with the letters he wrote to Mr Walshe's GP(s). In his first letter he noted ‘Peter .... has had twelve months of increasing low back pain and bilateral leg pain. Over the last six weeks, Peter has experienced very severe right leg pain radiating from the right side of the lower back into the right foot’.
He reviewed an MRI of 21 October 2010 and said it showed severe congenital lumbar canal stenosis, that is, narrowing[1] of the spinal cord from L2 to S1, and due to significant epidural lipomatosis, that is, fat in the tissues surrounding the spinal cord,[2] and right sided L4/5 disc herniation, that is, bulging or protrusion.[3] His assessment was that Mr Walshe ‘has very severe neurogenic claudication [a cramp like pain in the legs when walking[4]] and lumbar radiculopathy [damage to the roots of a nerve where they enter/leave the spinal cord[5]] due to the severe canal stenosis’.
[1] Harvey Marcovitch (ed) Black’s Medical dictionary (42nd edn, 2010) 133.
[2] Id at 389.
[3] Id at 309-310.
[4] Id at 625.
[5] Id at 625.
Dr Pik performed an operation on Mr Walshe’s back in November 2010. In a post-operative report dated 21 January 2011, Dr Pik records Mr Walshe telling him that ‘he no longer has the radiating leg pain’ but ‘continues to have significant mechanical low back pain due to the degenerative changes in his lumbar spine’ and that he continued ‘to limp quite badly because of his previously treated ankle fracture’.
Dr Pik advised Dr Anil Goel, Mr Walshe’s general practitioner, that the results of an MRI he had ordered ‘showed satisfactory decompression of the spinal canal from L2 down to S1’. He also reported ‘There is no significant residual canal stenosis and all of the preoperative nerve root compression over these levels has been satisfactorily decompressed’. Dr Pik said ‘I have once again emphasised to the patient that the operation he had is not designed for mechanical back pain. The operation was simply designed to relieve the very severe canal stenosis and neurogenic claudication’.
The Tribunal concludes from this evidence that Dr Pik recognised two distinct pains experienced by Mr Walshe. The first is the pain that he had earlier described as neurogenic claudication radiating to the right foot, commonly known as sciatica, and due to L5 nerve root compression. This is the pain that led to his referral to Dr Pik. Mr Walshe had told him this pain began 6 weeks prior to their first consultation, and post operatively he is reported as telling Dr Pik that he no longer had that pain. The other was described by Dr Pik as mechanical back pain and according to the doctor he was told that it was of 12 months’ standing. He expressed no opinion as to the cause of the condition. That pain continues.
Dr Brooder
Dr Ron Brooder, consultant neurologist, provided two reports for Mr Walshe: the first dated 2 April 2012; the second 26 February 2013. He said that Mr Walshe had degenerative changes of his lumbosacral spine and as a result of his work these changes had been significantly aggravated. He recorded Mr Walshe saying ‘he was aware of intermittent jarring of his back due to inadequate adjustment of the driver’s seat when driving on irregular surfaces’ and that the jarring ‘had been associated with the onset of’ back pain. He explained that the pathology was primarily in the low lumbar spine, and that ‘the repetitive jarring that would occur in the seat with a reduced excursion or poor suspension would result in significant aggravation to those degenerative changes’. He attributed the intermittent tingling paraesthesia in Mr Walshe’s legs to be induced by ‘prolonged sitting, particularly when driving’. He acknowledged that there was no objective way to relate Mr Walshe's deterioration to any particular aggravating factor.
Dr Brooder said in evidence that he relied on Mr Walshe's pain reports as evidence of significant change over a relatively short period, pointing out that it had increased from intermittent periods of relatively mild pain to continuous experience of severe pain. In his opinion the prolonged sitting and the recurrent jarring injuries that had occurred during the course of Mr Walshe’s employment as a bus driver had led to ‘significant aggravation of Mr Walshe’s underlying’ degenerative spinal condition.
He agreed that obesity was of itself a potentially contributory factor, as was Mr Walshe's limp. However he stressed that in his opinion the work factors were the most potent in aggravation of the condition.
Dr Wilkins
In his oral evidence Dr Peter Wilkins, consultant occupational physician, quoted from an acknowledged expert on back conditions, Associate Professor Nikolai Bogduk. Dr Wilkins summarised a section of the text,[6] in his own words, as relating to Mr Walshe’s condition:
[Associate Professor Bogduk] says that lifting and vibration are two physical risk factors with strong evidence of moderate effect. So with that background, all I'm able to say is that it appears to me (indistinct) possible that vibration and repeated lifting appear to be likely causes. It doesn't mention prolonged sitting. However, in this case, he had additional risk because - purely because of his obesity. So conceptually, sitting with that additional weight pressing on his spine for excesses of time could produce some such effect, and I can't say further than that.[7]
[6] N Bogduk, & B McGuirk, Medical Management of Acute and Chronic Low Back Pain. An Evidence-Based Approach, (Elsevier, Amsterdam, 2002) 224.
[7] Trans. 12/2238 5136 p.31 l.22.
In the body of his report he allows that ‘conceptually’ Mr Walshe's condition ‘might’ be aggravated by the factors proposed, specifically long hours sitting and bumping of the seat stressing his spine. In oral evidence, in reply to a question whether he agreed with Dr Brooder, he said ‘I disagree because - I don’t think the evidence is strong enough. I think it’s possible but on the balance of probabilities I don’t think it probable - can't say further than that’.[8]
[8] Trans. ibid p.36 15.
Dr Seneviratne
Dr Janaka Seneviratne, consultant neurologist and clinical neurophysiologist, obtained a history and made findings on examination that were essentially the same as the other doctors. However, he reported that Mr Walshe denied any trigger factors for his pain. He also said that Mr Walshe had not mentioned the incident of 8 October 2010. In a report of 30 January 2013 he diagnosed ‘lower lumbar spine degenerative disease as well as lumbar canal stenosis’. He acknowledged that Mr Walshe had ‘pre-existing lumbar spine degenerative disease as well as lumbar canal stenosis’.
In oral evidence, when asked whether bus driving could have been a factor in aggravating his degenerative back condition, his response was: ‘looking at the scans and also the surgical findings of Mr Pik [there was a significant amount of hypertrophy of the ligaments and epidural fat which] suggest a very chronic disease, [and] my view was that his back problems were long-standing’.
Dr Fitzgerald
Dr David Fitzgerald, consultant occupational physician, who saw Mr Walshe on 20 October 2011, diagnosed, as relevant, ‘chronic low back pain, chronic ankle degeneration’. He also noted that Mr Walshe was 162cm and weighed 122kg. He reported Mr Walshe as saying that as a bus driver ‘there was a lot of focusing, twisting in the seat, taking fares, giving information and doing surveillance checks of the buses’. He recorded that Mr Walshe had told him he ‘had low back pain on and off for quite a few years but more intense over the last 1.5 years’. Prior to being employed by ACTION Mr Walshe said ‘he did not recall being in any significant pain’. Dr Fitzgerald’s history was that Mr Walshe was taking Panadol and Endone constantly to cope with the pain and he was ‘at one stage hesitant to leave his seat in the bus during breaks as he was scared he could not get back in’. His report also recorded Mr Walshe as saying ‘that the newer gas buses were better than the old orange ones, where the suspension was springloaded’.
Dr Goel
Dr Anil Goel, his current general practitioner, but not his general practitioner at the time of the injury, provided a report dated 30 January 2012. He diagnosed ‘backache spine, canal stenosis’.
Dr Peachey
Dr David Peachey, a general practitioner, provided a report dated 9 July 2012. The report did not refer to a diagnosis but noted Mr Walshe’s lower back pain and his paraesthesia in both legs. He said that during Mr Walshe’s time as a cleaner he ‘noted minor skeletal aches that settled with rest and did not impact on his ability to work’.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 sets out the criteria which need to be met for liability to arise for injury to an employee which results in incapacity for work. Relevant definitions are found in sections 4(1), 5A and 5B of the Act.
Issues
Matter No 2012/2238 and Matter No 2012/5136
The issues are:
·What is the diagnosis of Mr Walshe’s condition?
·Was there an aggravation of that condition, and, if so, when did that aggravation occur?
·Whether Mr Walshe’s condition is an injury (other than a disease) arising out of, or in the course of, his employment.
·Whether Mr Walshe’s condition is a disease contributed to, to a significant degree, by his employment.
Initially Comcare said it would pursue a disqualifying issue namely, that Mr Walshe had not provided notice in writing of his injury ‘as soon as practicable after [he] became aware of the injury’ (Act s 53(1)). During the hearing, however, counsel for Comcare indicated Comcare was not pressing the issue.
Consideration
The Full Court of the Federal Court in Smith v Comcare[9] cautioned the Tribunal against identifying a date of injury under section 7(4) of the Act until it has been established that the applicant has suffered an’ injury’. In this case, the Tribunal considers that the caution is inapposite in this matter given the clear evidence of a date of injury and that the issue was not controversial. The Tribunal accepts Dr Brooder’s evidence that the incident on 8 October 2010 ‘was the straw that broke the camel’s back’. It caused Mr Walshe to cease work a few days later, led to him having an operation on his back in November 2011, and to his no longer working. These factors indicate that his back injury became severely symptomatic on or about that date. Accordingly 8 October 2010 is the date of injury.
What is the diagnosis of Mr Walshe’s condition?
[9] Smith v Comcare [2013] FCAFC 65.
The reviewable decisions were both for ‘spinal stenosis, other than cervical’. The findings in Matter 2012/2238 were that Mr Walshe had ‘multilevel degenerative changes in your lumbar spine’; and for Matter 2012/5136, that Mr Walshe had ‘lumbar stenosis’. Mr Walshe’s claims were described in medical reports and in the imaging reports as ‘lumbar spinal canal stenosis’ and ‘disc herniation’, that is, degenerative changes in his lumbar spine. There is no dispute that this is a correct diagnosis. Since, on the evidence, Mr Walshe had an existing back condition at the time he was employed by ACTION, the claim is for an aggravation of that condition.
The initial claim was that Mr Walshe suffered a discrete injury on 8 October 2010 due to going over a bump when driving a bus, and this caused a frank injury. Counsel for Mr Walshe at the hearing indicated he might pursue this claim. Whether he did so was to depend on the medical evidence during the hearing. In the event, and following in particular the oral evidence of Dr Brooder, he accepted that there was no evidence that a single bump might have led to Mr Walshe’s back condition, and abandoned that approach.
Mr Walshe’s second claim referred to the effects over time of him driving a bus as the cause of his back condition. That was described as a ‘nature and conditions’ claim. A ‘nature and conditions’ claim according to Stone J in Szabo v Comcare is a claim for a condition ‘experienced in the normal course … of employment over a period of time, rather than to a single incident’.[10]
[10] Szabo v Comccare [2012] FCA 28 at [11] per Stone J.
In summary, the medical evidence establishes that Mr Walshe had a number of debilitating conditions. However, it is solely his pre-existing multilevel degenerative changes in his lumbo-sacral spine and his resulting canal stenosis that are relevant for the purposes of this claim. The Tribunal finds, accordingly that his claim is for an aggravation of his lower back condition including the canal stenosis.
Whether Mr Walshe’s condition is a disease contributed to, to a significant degree, by his employment
The nature of Mr Walshe’s claimed condition is that he has an ‘ailment’, namely, ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[11] His condition will be compensable under the Act if it is a ‘disease’, namely, ‘an aggravation of … an ailment that was contributed to, to a significant degree, by the employee's employment by the Commonwealth’.[12]
[11] Act s 4(1) – definition of ‘ailment’.
[12] Act s 5B(1)(a).
The medical evidence indicates that Mr Walshe’s degenerative back condition is a physical disorder, defect or morbid condition of gradual development. It is accordingly an ‘ailment’. So the remaining issue is whether bus driving aggravated Mr Walshe’s degenerative back condition, and whether that aggravation is a ‘disease’ for the purpose of attracting liability under the Act.
Was there an aggravation of that condition, and, if so, when did that aggravation occur?
Aggravation
An aggravation is defined inclusively in the Act as an ‘acceleration or recurrence’.[13] Section 5A of the Act defines an ‘injury’ for the purposes of liability under the Act as meaning:
5A(1) (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), that is an aggravation that arose out of, or in the course of, that employment.
[13] Act s 4(1) – definition of ‘aggravation’.
Hill J said in Casarotto v Australian Postal Commission:[14]
[T]he ordinary English meaning of the words ‘aggravation and acceleration’, namely that ‘aggravation’ connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
[14] Casarotto v Australian Postal Commission (1989) 86 ALD 399 at [405].
For a condition to be aggravated, it must be made worse.[15] It is accepted that Mr Walshe had a pre-existing ailment of his spine. That condition was ‘mechanical’ and led to degenerative changes. Accordingly the initial condition was not related to his work.[16]
[15] Ogden Industries v Lucas (1967) 116 CLR 537 per Windeyer J at [593]. See also Re Douglas and Australian Postal Corporation [2010] AATA 479 at [68].
[16] Eg report of 3 November 2010 by Dr Pik; report of Dr Wilkins, 27 August 2012.
Mr Walshe’s claim is that because his back condition deteriorated only some seventeen months after he started bus driving, when he had been medically assessed as fit at the start of his employment, this is indicative of a link to his employment. He said the seats of the buses, particularly the older, orange buses, were not always able to be adjusted for his height and weight, and the pain in his back was exacerbated by his frequent long shifts. He claimed that this meant that his driving of ACTION buses aggravated his condition. In effect, Mr Walshe’s argument is that his bus driving both made more severe and accelerated the progression of his pre-existing back condition.
Counsel for Mr Walshe contended that an ‘aggravation’ of a condition arises under the Act if the employee’s pain is intensified or increased, but the aggravation does not need to meet the test for causation in the Act.[17] His argument is encapsulated in the ‘Practitioner’s Guide’ to the Ballard and Sutherland Annotated Safety, Rehabilitation and Compensation Act 1988,[18] namely, ‘The test for ‘materiality’ attaches to the causation issue, namely, whether the work related activity ‘materially’ contributed to the aggravation (be the aggravation large or small, permanent or temporary)’. As Bennett J expressed the test in Mellor v Australian Postal Corporation,[19] the Act requires that ‘employment be a material cause of the aggravation’ but not that ‘the effect of the aggravation be material’. The Tribunal accepts the correctness of this submission on the law.
[17] Tippett v Australian Postal Corporation (1998)27 AAR 40.
[18] J Ballard, P Sutherland Annotated Safety, Rehabilitation and Compensation Act 1988 (9th edn, 2011), 768.
[19] Mellor v Australian Postal Corporation (2009) 108 ALD 159 at [36].
Mr Walshe said just driving buses and sitting for nine hours made his back worse. His evidence was that he drove ACTION buses for an average of 52 hours a week. On 19 October 2009 he had first consulted Dr Goel about his back and Dr Goel ordered a CT scan of his lumbar spine and prescribed Panadeine Forte, a strong analgesic, but only for about three weeks. The referral noted that Mr Walshe previously had ‘backache on and off for six years’. Mr Walshe said the pain was manageable during those six years and when he first consulted Dr Goel. He estimated on a scale of 1 to 10 that during this period his pain was no more than 1 or 2, as it had been in 2007 when he started bus driving, and that the pain did not interfere with his work.
However, by 11 October 2010 when Mr Walshe saw Dr Ragavan, also a treating general practitioner, about his back he said his level of pain was 9 out of 10 and at this point he was again prescribed Panadeine Forte but was referred to an orthopaedic surgeon, Dr Pik. On 18 October 2010 Dr Ragavan also prescribed an anti-inflammatory for pain relief. Mr Walshe said in that twelve months since October 2009 the pain had been getting increasingly bad. He said he did not want to report it to ACTION for fear of being told he could no longer drive and jeopardising his employment.
The Tribunal is satisfied on the medical evidence provided by Mr Walshe’s general practice that the degeneration of Mr Walshe’s pre-existing back condition which, as shown in the CT and in the three MRIs had been slowly deteriorating, accelerated in the twelve to eighteen months prior to October 2010. Dr Fitzgerald’s evidence was that this occurred in the 1.5 years prior to November 2010. The evidence also indicates that in this period the condition worsened markedly. Dr Pik in his first letter of 3 November 2010 said Mr Walshe had had ’twelve months of increasing low back pain and bilateral leg pain’ and that ‘Over the last six weeks, Peter has experienced very severe right leg pain radiating from the right side of the lower back into the right foot’.
In addition, Dr Brooder, in evidence to the Tribunal and in response to a question whether because Mr Walshe ‘reported an increased pain during this period [meant] that there was pathological change as well’, responded ‘that would be the corollary’. In response to the next question as to whether the progression of his back injury was caused or contributed to by the jarring, Dr Brooder said ‘[I]t’s usual that there is some other contributing factor that results in the progression of the degenerative changes. Some people have bad intervertebral discs and when your subject them to … repetitive bending, lifting, sitting and trauma, they degenerate at a more rapid rate’.
This medical evidence is supported by the fact that Mr Walshe’s testimony, which was not discredited on this issue, was that his back pain was manageable in 2007 when he was first employed by ACTION. By October 2009, however, he needed stronger analgesics and by October 2010, it had reached a level where his analgesic use had to be supplemented by anti-inflammatory, pain-reducing medication, he was no longer able to drive buses, and he needed a back operation. Moreover that change to Mr Walshe’s back condition was a continuing injury from which Mr Walshe has not recovered.[20]
[20] Cf Australian Postal Corporation v Bessey (2001) 32 AAR 508, per Gyles J at [8], [10].
The Tribunal also finds on the medical evidence that his injury was made worse by bus driving. That conclusion was supported by the absence of alternative reasons for his back condition to deteriorate to the extent it did in that relatively short period leading up to October 2010. Prior to Mr Walshe seeing a doctor in 2009, his back had only slowly been getting worse. Accordingly, this is a case in which it can be said that ‘the activities at work caused the worker to suffer pain … more intensely’, and hence Mr Walshe’s pre-existing injury was aggravated.[21]
[21] Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44.
In other words, the Tribunal is satisfied that Mr Walshe experienced both acceleration and aggravation of his pre-existing back condition in the period 2007 to October 2010. This was not an acceleration or aggravation of a condition which was ephemeral, nor one in which it could be claimed, as Dr Seneviratne asserted, that the natural progression of the disease would have resulted in the same development.[22]
[22] Martin v Australian Postal Corporation (1999) 29 AAR 420 at [28].
Significantly contributed to by employment
The next issue is whether that contribution met the causal test in the Act for an aggravation of a ‘disease’. The requirement that for liability to arise, employment must contribute to the injury to a significant degree means that the contribution must be ‘substantially more than material’.[23] ‘Material’ had been determined in prior case law to be more than de minimis, that is, ‘more than a mere contributing factor’,[24] and to be ‘an evaluative threshold below which a causal connection may be disregarded’.[25] As Finn J found it was best captured by the meaning in the Shorter Oxford English Dictionary as ‘in a material degree; substantially, considerably’.[26] That meaning was picked up in the amendments which led to section 5B(3), namely, that the contribution must be ‘substantially more than material’.[27] As the discussion indicates, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’.
[23] Act s 5B(3).
[24] Comcare v Sahu-Khan (2007) 156 FCR 536.
[25] Id at 542.
[26] Id at [15]-[16].
[27] Act s 5B(3).
Mr Walshe’s claim is for an aggravation that arose in 2010. Accordingly whether the aggravation of his condition is compensable is to be tested under the ‘to a significant degree’ test in the current legislation,[28] rather than the ‘in a material degree’ test as discussed in the previous paragraph of these reasons. Nonetheless, the principles in that previous paragraph apply. That means for liability to arise, employment must have contributed to the aggravation of Mr Walshe’s low back condition ‘to a significant degree’.
[28] Act s 5B(1).
Mr Walshe at around 167cm is below average height for a man. He said he needed to elevate the seats in the ACTION buses he drove so he could see properly, but then his feet could not touch the pedals. The consequence was that he had to keep the seat quite low with the result that the suspension would not operate properly since the air cushion was largely removed. That meant he could feel any bumps the vehicle encountered and these jarred his back. He also said that the seat was not adjusted for his weight. In addition he said the long hours of driving, including on weekends, meant his back was being subjected to stressors which exacerbated his condition.
Mr Walshe was not a reliable historian. Nonetheless, the Tribunal has found that his statutory declaration of 10 April 2013 which stated he did not put in a workers’ compensation claim until he had legal advice to do so in December 2011 was likely to be correct. It is also consistent with the evidence that in May 2011 Mr Walshe had some financial concerns and needed to obtain access to some funds reasonably quickly, so he did not then contemplate making a workers’ compensation claim given that other drivers had told him about the length of time claims take. He repeated that belief at the hearing. Mr Morante’s suggestion that Mr Walshe first make a claim against his superannuation fund, a suggestion adopted by Mr Walshe, was consistent with that report.
Mr Walshe did lodge his first workers’ compensation claim on 22 December 2011. This indicates, and the Tribunal so finds, that this avenue was discussed at the 16 December 2011 meeting and that Mr Walshe was then acting on the legal advice he had been given. Any delay in lodgement is in part explained by Mr Walshe’s hospitalisation for a month between July and August 2010 and his health problems in June 2010. This finding is also consistent with evidence in statements for the hearing that until December 2011 Mr Walshe did not consider his claim concerned his employment with ACTION. He was also, until then, not focused on a workers’ compensation claim, but was rather seeking invalidity retirement.
Mr Malcolm Howard, ACTION Manager, South Region, provided evidence that Mr Walshe had told others at ACTION that he had ‘back problems and they were not related to ACTION’. He also stated that weekend or overtime driving was voluntary and that Mr Walshe was not required to drive on weekends. He noted that Mr Walshe had complied with national regulations for taking rest breaks, and that the only time off he had was in March 2010 when he thought he had flu.
The Tribunal accepts that initially Mr Walshe did not consider his back condition was due to his employment by ACTION. He was aware that he had a long-standing back problem, and that its symptoms on occasion were exacerbated by his previous employment. However, he said that until at the earliest about October 2009, the symptoms settled with rest and in any event, were manageable. The medical evidence supports the fact that the condition was slowly degenerative. The Kambah Medical Centre clinical records confirm that he was not prescribed a pain-relieving medication for his back until October 2009.
Counsel for Comcare contended that Mr Walshe’s increase in weight was the significant factor which led to the deterioration of his back condition and that this was not work-related. Mr Walshe conceded that he had put on considerable weight. According to his application for workers’ compensation, Mr Walshe was 100kg when he commenced as a bus driver in 2007. Dr Brooder recorded 110kg in 2007 and 130kg in 2010. Mr Walshe said his weight increased to over 130kg during his time at ACTION prior to his going on a diet. Dr Pik had described him in his report of 3 November 2010 as ‘grossly overweight’ but he did not list his weight. He expressed the opinion, however, that Mr Walshe’s weight, and his degenerative back condition were causing ‘very severe lumbar canal stenosis and nerve root compression’.
The Tribunal has found that Mr Walshe was overweight when he was first employed by ACTION. There was some medical evidence that an increase in weight may have had an impact on his back condition. Dr Brooder said Mr Walshe’s weight gain was ‘significant’ and ‘it’s one of the contributing factors’. Dr Seneviratne said, ‘there are other factors that can exacerbate symptoms such as trauma or if there was jolting with the bus driving, as well as weight, and you were lifting heavy objects with the previous occupations, all those things could have contributed to exacerbation and progression of the disease’. Dr Wilkins said that ‘conceptually, sitting with that additional weight pressing on his spine for excesses of time could contribute to his overweight and degenerative spine’. However, he did not address the question of whether prolonged sitting or other cause associated with bus driving had led to an increase in Mr Walshe’s weight.
The evidence is that his weight was a factor which contributed to the exacerbation of his back condition. The issue is whether employment contributed to any increase in Mr Walshe’s weight. Dr Brooder’s evidence was that Mr Walshe gained weight from a combination of his sedentary work as a bus driver, and his back pain, and that, in turn, his weight gain contributed to his pain and the degenerative changes. Dr Wilkins said that ‘conceptually, sitting with that additional weight pressing on his spine for excesses of time could contribute to his overweight and degenerative spine’. As he described it: being ‘overweight is like having a heavy bag of sand on your shoulders. It accelerates the degenerative processes affecting the spine’. Dr Seneviratne agreed that Mr Walshe’s weight ‘can contribute to his back symptoms’. However, neither Dr Seneviratne, nor Dr Wilkins indicated unequivocally that employment contributed to Mr Walshe’s weight increase. Accordingly the Tribunal makes no findings on that issue. Nor did it consider it needed to do so in the face of its other findings.
The Tribunal finds on the medical evidence that other aspects attributable to Mr Walshe’s bus driving made a significant contribution to the aggravation of his degenerative back condition. At the hearing, Dr Brooder said that sitting in the driver’s seat of a bus, and the repetitive jarring which occurred, were the more significant aggravating factors. As he put it, it was the ‘cumulative effect’ of the small amount of damage to the discs which had this impact.
That view is also supported by the Bogduk study which identified ‘lifting and vibration [as] two physical risk factors with strong evidence of moderate effect’. Mr Walshe was experiencing vibration, and as a bus driver he used handbrakes, and lifted money bags. So both the nominated risk factors applied to Mr Walshe’s circumstances. Dr Wilkins did concede that it was more than likely (but not probable) that for a person with a degenerative spine the repetitive jarring associated with bus driving would lead to an aggravation of that condition. Dr Seneviratne also conceded that the accelerated degeneration of Mr Walshe’s spine was conceptually possible, given his existing back condition, although his view too was that the causal link was not probable.
To the extent that Dr Wilkins and Dr Seneniratne conclude that bus driving did not contribute to his back condition to the requisite degree, the Tribunal prefers the opinion of Dr Brooder. He gave a thorough account of the process which led to Mr Walshe’s condition which the Tribunal found convincing. In addition, Dr Wilkins’s reference in the Bogduk study to the physical risk factors with strong evidence of moderate effect, namely, vibration and repetitive lifting, support the Tribunal’s preferred view.
The Tribunal’s view is that Mr Walshe’s claim should succeed. The reasons, based on the medical evidence, are the relative speed of the deterioration, the absence of any evidence for an alternative accelerator, the view of Dr Brooder that the significant contributing factor in Mr Walshe’s case was the repetitive jarring caused by his driving for lengthy periods each week, coupled with the concession of Dr Wilkins and Dr Seneviratne that it was at least conceptually possible that the bus driving experienced by Mr Walshe, given his pre-existing degenerative back condition, could have caused the speedier degeneration of his spine.
In these circumstances, the Tribunal is satisfied that Mr Walshe’s employment significantly contributed to the aggravation of his back condition. The decision under review should be set aside and in substitution, the Tribunal finds that Comcare is liable under section 14 of the Act for the aggravation of Mr Walshe’s degenerative back condition.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member and Dr B Hughson, Member
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Associate
15 November 2013
Date(s) of hearing 5 September 2013 and 6 September 2013 Counsel for the Applicant David Richards Advocate for the Applicant Christine Stephens Solicitors for the Applicant Hill & Rummery Counsel for the Respondent Sophie Callan Advocate for the Respondent Michael La Vista Solicitors for the Respondent Australian Government Solicitor
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