Peter Walshe and Comcare

Case [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  536

Re Douglas and Australian Postal Corporation [2010] AATA 479
Martin v Australian Postal Corporation (1999) 29 AAR
Mellor v Australian Postal Corporation (2009) 108 ALD 159

Ogden 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 40

Secondary 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

  1. 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.

  2. 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.

  3. Both matters were heard in Canberra on 5-6 September 2013.

    Background

  4. 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. 

  5. 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.  

  6. Mr Walshe started working for ACTION on 20 April 2007 and ceased that employment on 22 October 2010.  He has not worked since.

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Details
AGLC
Peter Walshe and Comcare [2013] AATA 812
Case
[2013] AATA 812
Decision Date

CaseChat Overview and Summary

The case of Peter Walshe and Comcare involves a dispute over whether the claimant, Mr Walshe, suffered an injury that was attributable to his employment as a bus driver with ACTION. Mr Walshe claims that his pre-existing degenerative back condition was aggravated by his work, specifically by the long hours of driving and repeated jarring of his back. The dispute was heard in the Federal Circuit Court of Australia. The central legal issues the court had to decide were whether Mr Walshe's back condition constituted an injury within the meaning of the relevant legislation, and if so, whether this injury was attributable to his employment with ACTION. The court had to determine the date of injury, the nature of the injury, and whether the injury was attributable to the employment conditions.

The court examined the medical evidence and the timeline of events provided by Mr Walshe. Dr Pik, the neurosurgeon, provided letters detailing Mr Walshe's condition, noting that he had severe lumbar canal stenosis and a disc herniation, which were likely exacerbated by his employment. The court accepted the evidence that Mr Walshe's back condition became severely symptomatic on or around 8 October 2010, when he went over a bump while driving a bus, leading to an operation in November 2010 and his ceasing to work thereafter. The court found that Mr Walshe's claim was for an aggravation of his pre-existing lower back condition, which included canal stenosis, due to his employment conditions. The court concluded that the injury was not a single incident but rather an aggravation of a pre-existing condition over time. The evidence showed that Mr Walshe's employment conditions, specifically the long hours of driving and repeated jarring of his back, contributed to the aggravation of his condition.

The court's decision was that Mr Walshe's claim was valid, and the injury was attributable to his employment. The court did not find it necessary to delve into the specific details of the notice of injury, as Comcare decided not to pursue that issue. The court ordered that the claims be remitted to Comcare for consideration of the merits of the claim, including the quantum of compensation. This decision recognises the impact of Mr Walshe's employment conditions on his pre-existing back condition and provides a pathway for him to seek appropriate compensation.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 EvidenceDr 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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