Ramirez-Gamonal and Comcare (Compensation)
[2019] AATA 3321
•6 September 2019
Ramirez-Gamonal and Comcare (Compensation) [2019] AATA 3321 (6 September 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5611
Re:Carlos Ramirez-Gamonal
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member Presiding
Dr P. Fricker OAM, MemberDate:6 September 2019
Place:Canberra
The decision under review is set aside, in place thereof the Tribunal decides that, as of 10 May 2017 and presently, Mr Ramirez-Gamonal’s accepted left foot injury is ongoing and he is entitled to compensation under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The matter is remitted to Comcare to determine specific entitlements under these sections that may be payable to Mr Ramirez-Gamonal, if any.
The parties have not been heard in relation to orders for costs. Written submissions on this subject may be made within 14 days. Should no such submissions be received within this period, as Mr Ramirez-Gamonal’s application has been successful, under s 67(8) of the Act, the Tribunal will order Comcare to pay his reasonable costs in these proceedings as agreed or taxed.
........................................................................
Mr S. Webb, Member Presiding
WORKERS’ COMPENSATION – accepted left foot injury – plantar fasciitis – decision denying present liability for medical treatment expenses and incapacity for work compensation payments – nature of accepted injury – meaning of ‘injury’, ‘ailment’ and ‘disease’ – examination of physiological changes and factors contributing to onset symptoms – inflammation – evidence of micro traumas and pathophysiological changes – employment duties a significant contributing factor – persistence of symptoms and physiological changes – examination of contributory causes – persistence of ‘injury’ resulting in impairment and incapacity – liability to pay compensation – purposive construction of ‘results from’, ‘as a result of’ and ‘in relation to’ standards of causation - standards of causation for purposes of determining liability or entitlement not to be conflated with definitional tests for the purposes of determining the existence of an ‘injury’ – partial incapacity for work ‘as a result of’ an ‘injury’ – medical treatment ‘in relation to an injury’ – entitlement to compensation continues - decision set aside
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 8, 14, 16, 19, 54, 67
Cases
Australian Postal Corporation v Oudyn [2003] FCA 318
Canute v Comcare [2006] HCA 47
Casarotto v Australian Postal Corporation [1989] FCA 116
Comcare v Martin [2016] HCA 43
Comcare v Power [2015] FCA 1502
Commonwealth of Australia v Keith Colville Smith [1989] FCA 189
Howard v Comcare [2019] FCA 1031
Howes v Comcare [2016] FCA 1521
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2017] FCAFC 143
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
Mr S. Webb, Member Presiding
Dr P. Fricker OAM, Member6 September 2019
Working as a visitor host at the National Museum of Australia (the Museum), Carlos Ramirez-Gamonal experienced pain in his left heel. Initially, he thought little of it, but the pain did not go away. It caused him to take some days off work. After a while, as the pain continued, he consulted his treating doctor who diagnosed plantar fasciitis. He claimed compensation. Comcare accepted plantar fasciitis as an injury and paid compensation for medical treatment expenses and incapacity for work. This continued for some years, during which Mr Ramirez-Gamonal returned to work with restrictions.
Comcare then decided to stop payment of compensation on grounds that he had no present entitlement. Mr Ramirez-Gamonal asked for this to be reconsidered. On reconsideration, Comcare reversed its decision in respect of compensation for medical treatment expenses, but affirmed that he had no present entitlement to compensation for incapacity. Mr Ramirez-Gamonal applied for review of this decision by the Tribunal.
Prior to hearing, Comcare made clear its intention to assert the correctness of its primary determination, denying present entitlement to compensation for medical treatment expenses and incapacity for work as of 10 May 2017. The hearing proceeded on that basis.
FACTS
Mr Ramirez-Gamonal is 56 years old.
He commenced employment as a Visitor Services Host with the Museum on 29 June 2007.[1] This employment was part time on a rostered basis, working a set number of hours in every four-week period. Generally, he worked 5 days out of every seven, commencing work at 8.45am and finishing at 5.15pm with two 30 minute breaks.
[1] T5, folio 24.
On 31 August 2012, Mr Hinton, a human resources officer of the Museum, stated that Mr Ramirez-Gamonal worked 94 hours every four weeks, being an average of 23.5 hours each week.[2] On 4 October 2012, Mr Hinton recorded Mr Ramirez-Gamonal’s ‘NW Hrs’ (normal weekly hours) to be “32:57”, which appears to have included 1 hours 57 minutes overtime.[3] The difference between Mr Hinton’s estimates of Mr Ramirez-Gamonal’s pre-injury hours has not been explained. Mr Hinton was not called to give evidence. Mr Ramirez-Gamonal’s evidence is that he worked an average of 31 hours each week, totalling 124 hours every four weeks. Comcare accepts that this is correct. It appears, however, that this figure excludes overtime, averaging 1 hour and 57 minutes each week.
[2] T11.
[3] T17, folio 62.
Little turns on this presently as, for the purposes of calculating Mr Ramirez-Gamonal’s entitlements to compensation for incapacity under s 19 of the Act, his ‘normal weekly hours’ and ‘normal weekly earnings’ amounts were calculated under s 8 of the Act on the basis of 32.57 hours per week, including an average weekly component of 1 hour 57 minutes overtime.[4]
[4] See, for example, T17, folio 62; T29, folio 83; and T283, folio 617.
Mr Ramirez-Gamonal’s Visitor Services Host duties were, broadly, to assist visitors to the Museum and to conduct tours of galleries and exhibits in the Museum.[5] Particular details of his duties varied in the different work areas of the Museum. These are set out in an attachment to Mr Hinton’s letter.[6] Mr Ramirez-Gamonal explained that his duties involved a lot of walking and standing: by his estimate, 80% to 95% of his working hours. We accept his uncontroverted evidence on this point. There is, however, some controversy over the extent to which he sat down during his work. Much was said about Mr Ramirez-Gamonal’s ability to sit in the parts of the Museum in which he worked. His evidence is that he refrained from sitting down because doing so was not possible when dealing with visitors and when the Museum was busy, and it was frowned upon by management when visitors were present. We accept that he was able to sit from time to time while performing his duties, especially when the Museum was not busy, or when performing duties that involved a seated role. Nonetheless, we also accept that he perceived, rightly or wrongly, that sitting down while performing his usual ambulatory or standing duties was frowned upon - his evidence on this point is supported by the 28 June 2016 report of Dr McBurnie, an occupational physician.[7]
[5] Ibid, folio 6.
[6] T12.
[7] T253, folio 538.
Outside his Museum employment, Mr Ramirez-Gamonal undertook recreational activities including jogging 4 to 5 kilometres once or twice a month, and cycling – on occasion he would cycle to work: a ride of approximately 1 hour. We understand that he enjoyed soccer as a younger person in his native Peru.
On or about 2 July 2012, Mr Ramirez-Gamonal experienced discomfort in his left heel.[8] His uncontroverted evidence is that this occurred while he was at work. He continued to work, as usual. The pain in his left heel did not go away, however. It was worse when standing and walking. He raised this with his team leaders.[9]
[8] T9.1, folio 38.
[9] T3, folio 10.
On 26 July 2012, Mr Ramirez-Gamonal consulted Dr Perera at the Gungahlin General Practice. The doctor noted –
works as a host at the national museum
always on his feet
has developed pan [sic] in the left heel over the last 4 weeks – beginning of july 02/07
has tried simple analgesia
heel pad and exercises
not helping
hs [sic] changed shoes as well
has been continuing to work inspite of pain
had to take 4 days off due to the pain
due to school holidays last weeks have been very busy as well
yesterday had to handle 1500 school kids thro museum
severe pain now due to the constant walking
could not go to work today[10]
[10] T9.1, folio 38.
Dr Perera diagnosed “plantar fasciitis – very likely due top [sic] the prolonged standing and walking at work” [11] and issued a medical certificate, certifying Mr Ramirez-Gamonal was unfit for work from 26 July 2012 to 10 August 2012.[12]
[11] Ibid.
[12] T4.
Also on 26 July 2012, Mr Ramirez-Gamonal completed an Incident/Hazard Report.[13] In this Report, he specified the ‘incident’ occurred at 4.00pm on 2 July 2012 and stated –
At about 4pm after standing up and walking all day, I noticed my left heel was increasingly painful[14]
[13] T3.
[14] T3, folio 9.
On 1 August 2012, Mr Ramirez-Gamonal completed a Claim for Workers’ Compensation in respect of plantar fasciitis, setting out this information.[15] In the claim, he denied having had a similar symptom, injury or illness previously. Mr Ramirez-Gamonal confirmed as much in his oral evidence. This is not controversial and we accept it is correct.
[15] T5, folios 17 and 19.
On 10 August 2012, Mr Ramirez-Gamonal consulted Dr Perera. On this occasion the doctor noted –
Review:
of plantar fasciitis
has been off work
awaiting comcare approval for us nad [sic] hydrocortisone injection/physiotherapy
still pain+
wary of hydrocortisone injection due top [sic] past experience with shoulder nad [sic] neck pain
also ho [sic] gastritis
therefore cannot have nsaids[16]
[16] T9.1, folio 39.
Dr Perera referred Mr Ramirez-Gamonal for podiatry review and issued a medical certificate, placing him off work for a further two weeks, to 31 August 2012.[17]
[17] T6.
On 23 August 2012, Mr Richard Lee, a podiatrist, reported -
Carlos presented today with pain in his left heel. He reports the painful condition has been evident for approximately two months however he cannot relate it to any particular event. Carlos also reports marked pain when he rises in the morning and at any time after rest. He also stated that during the day at work the pain can be quite excessive.
Biomechanical examination reveals a mildly pronated foot with a tight Plantar Fascia. The pain on pressure is very much into the area where the Plantar Fascia attaches to the Calcaneus and extends forward into the Plantar Fascia.
I would conclude from this that Carlos has Plantar fasciitis and today I have applied strapping to alleviate pressure on the area and to control the movement of the Plantar Fascia.[18]
[18] T16.1, folio 61.
On 31 August 2012, Dr Perera noted –
Review:
of left heel plantar fasciitis
has seen podiatrist
strapped
feel better
needs review
als [sic] orthotics/special shoes if necessary
ct Panadol osteo
off work for 4 more weeks[19]
[19] ST8, folio 206.
Dr Perera issued a further medical certificate, certifying that Mr Ramirez-Gamonal was unfit for work from 31 August 2012 to 28 September 2012.[20]
[20] T10, folio 40.
On 12 September 2012, Dr Perera noted –
Review:
of plantar fasciitis
ash [sic] been seeing the podiatrist
has started the strapping
will ct with physio
can do modified duties
work pre injury hours at a desk job[21]
[21] ST8, folio 205.
Pausing at this point, it can be seen that Mr Ramirez-Gamonal’s symptoms improved somewhat, but did not resolve, with several weeks off work.
On 17 September 2012, Mr Ramirez-Gamonal attended the Gungahlin General Practice and consulted Dr Watson. The doctor noted –
History:
Inflammation of plantar fascia. Possible small tear
Pain on base of heel L
most severe in the mornings esp when first arise from bed
some walking helps to alleviate pain
Causes are stress, tension and pulling of plantar fascia. Inflexible calf muslces pronations.
Examination Very tender plantar fascia tight calves
Management cortisone injection
care with pronation
ice after exercises
NSAIDS
Rest
calf stretches
been seeing Dr Perera
finding veryhard to work
…[22]
[22] Ibid.
From this note, it appears that Mr Ramirez-Gamonal may have attempted a return to work, but found it “very hard”. If that is correct, it is not clear when this occurred. Considering Dr Perera’s 12 September 2012 note, it is possible it occurred thereafter. On 31 August 2012 and previously, Dr Perera had certified that Mr Ramirez-Gamonal was medically unfit for work.
In any event, Dr Watson issued a medical certificate, certifying Mr Ramirez-Gamonal was unfit for work from 17 September 2012 to 9 October 2012.[23]
[23] T12.
On 18 September 2012, Comcare accepted liability to pay compensation in respect of “Plantar fasciitis (left)” under s 14 of the Act.[24] From the reasons given for this decision, it appears the decision-maker found that Mr Ramirez-Gamonal’s employment significantly contributed to his left heel ailment. At hearing, Comcare did not depart from, or press us to make any findings contrary to, this decision.
[24] T13 folio 46.
On 4 October 2012, Mr Hinton signed a Claim for Time off Work Period of Reduced Earnings form, in which it appears Mr Ramirez-Gamonal was absent from work from 27 July 2012 to 9 October 2012.[25] Even if this is correct, it is quite clear that Mr Ramirez-Gamonal’s left heel symptoms and his left plantar fasciitis did not resolve, even despite him being absent from work and performing no work duties for more than 2 months.
[25] T17, folio 62.
At this point, it is necessary to note that Mr Ramirez-Gamonal gave oral evidence that he continued to work after seeing Dr Perera on 27 July 2012 and subsequently had a ”few weeks off”, after which he returned to work performing the same hours and duties, although these were subsequently reduced by his doctor, whereupon he worked reduced hours performing the same duties. As can be seen from the matters we have set out above, Mr Ramirez-Gamonal’s evidence is not consistent with the contemporaneous medical evidence and Mr Hinton’s records. No issue has been raised in respect of Mr Ramirez-Gamonal’s credit. In the course of his oral evidence, on several occasions, he struggled to recall details with precision and readily acknowledged this. He appeared to us to be a very straight-forward witness. That being so, we think it is appropriate to accept that his oral evidence may be affected by faulty memory and, where his uncorroborated evidence is not consistent with contemporaneous records, we will carefully consider the weight it should be given.
With regard to the evidence of Mr Ramirez-Gamonal returning to work after 27 July 2012, we give more weight to the contemporaneous records of Dr Perera, Dr Watson and Mr Hinton.
On 9 October 2012, Dr Perera certified that Mr Ramirez-Gamonal was unfit for work until 9 November 2012.[26] In the clinical notes of this consultation, the doctor recorded –
Review:
Fo (sic) left plantar fasciitis
pain has flared up of [sic] work for 3 weeks
on celebrex/Panadol osteo
no gastritis
helping pain
awaiting comcare approval from comcare for orthotics[27]
[26] T12.
[27] ST8, folio 204.
On 7 November 2012, Dr Perera issued a medical certificate,[28] certifying Mr Ramirez-Gamonal was fit to return to work, working 4 hours per day on 2 days each week, performing alternative duties with restrictions on “Standing and walking for extended periods”.[29] The modified duties are described as “Reception duties”.[30] Under Dr Perera’s medical certification, which is reflected in rehabilitation and graduated return to work programs (the details of which we note but do not need to set out for present purposes), these restrictions remained in place over successive weeks and months.[31]
[28] T28, folio 82.
[29] T25, folio 75.
[30] Ibid, folio 74; see also T37, folio 95.
[31] T33, T35 and T40
On 13 November 2012, Dr Fitzgerald, an occupational physician, reported –
On examination of the left heel, he was tender in the heel and the arch mostly medially in the left foot. Range of movement was slightly restricted in dorsiflexion on the left foot to 20°, plantar flexion to 30° compared with dorsiflexion of 40° and plantar flexion of 30° on the right.[32]
[32] Exhibit 2, page 3.
On 1 February 2013, Dr Perera certified that Mr Ramirez-Gamonal was fit for work with restrictions, working 4 hours per day, two days per week, with a “break at half time” and “only seated duties”.[33]
[33] T41.
On 15 February 2013, Dr Perera increased the amount Mr Ramirez-Gamonal was certified fit to work to 4 hours per day, 3 days per week. This continued to 5 April 2013.[34]
[34] T46 and T49.
On the same day, Dr Perera wrote a letter of referral to Dr Wilson Lo and observed –
… a history of ongoing left hell [sic] plantar fasciitis for about 6 months. He tried physio and has had orthotics since January. There is no improvement in his pain.
…
Now he is starting to get pain in his left Achilles as well.[35]
[35] T44, folio 106.
On 6 April 2013, Dr Perera increased the amount Mr Ramirez-Gamonal was certified fit to work to 5 hours per day for 3 days each week, with a break in the middle of each shift.[36]
[36] T50.
On 27 July 2013, Colin Frost, a soft tissue therapist, reported treatments he considered to be appropriate for Mr Ramirez-Gamonal, and observed –
If possible, reduced standing and walking duties at work would facilitate rehabilitation.[37]
[37] T72, folio 155.
In July 2013, Mr Ramirez-Gamonal commenced acupuncture and other treatments, including Chinese herbal medicine and massage, provided by Dr Xue Song Liu.[38]
[38] Exhibit 3.
On 27 September 2013, Dr Perera increased the amount Mr Ramirez-Gamonal was certified fit to work to 5 hours per day for four days each week, with a break in the middle of each shift and “to work in the same location/same duties – seated duties – only in circa”.[39] These restrictions remained current until 27 July 2014.[40]
[39] T80, folio 173.
[40] See T119 and T129.
On 17 February 2014, Dr Edwards, an occupational physician, reported –
Observation of Mr Ramirez-Gamonal’s gait revealed a shortened antalgic stance phase associated with reported pain in his heel. He loads the forefoot and internally rotates (inverts) his foot as he walk [sic]. Standing at rest, there was relative flattening of both longitudinal and transverse arches of both feet compared to the unloaded foot. Stationery weight bearing revealed more marked internal rotation of his left heel compared with the right. There was further pronation of his left hind foot when standing on his toes that corrected with conscious effort.
…
The diagnosis of “Plantar Fasciitis” is sound. However, believing “work” is “the cause” has resulted in suboptimal insight and understanding. This understanding needs to be corrected if Mr Ramirez-Gamonal is to attain a sustainable return to work. The biomechanical demands of his occupation were, and will continue to be, an “exacerbating factor” not a “causal” factor…
The “cause” of his predicament is the altered biomechanics of his hind foot associated with his age and constitution, recreational history, weight, and gait.
…
The original work-related exacerbation has long ceased.
…[41]
[41] T103, folios 207 and 208.
On 29 May 2014, an MRI of Mr Ramirez-Gamonal’s left foot and ankle was reported to be consistent with plantar fasciitis, with other tendons and ligaments being intact or normal. The following details were reported –
… There is expansion and some high signal both superficial and deep to the calcaneal insertion of plantar fascia. The appearances are consistent with insertional plantar fasciitis. There is mild degenerative change involving the middle subtalar facet and early degenerative change involving the talonavicular joint with a small dorsal joint effusion…[42]
[42] T126.
On 27 July 2014, Dr Perera certified that Mr Ramirez-Gamonal was fit to work 6 hours per day for 4 days per week in restricted duties from 29 July 2014.[43]
[43] T129.
On 13 August 2014, Mr Lee set out further treatments he considered were appropriate, including new orthotics, a new pair of medical grade shoes and shock wave treatments.[44]
[44] T132.
On 17 December 2014, Mr Frost reported some improvement in Mr Ramirez-Gamonal’s symptoms, following treatment, and observed –
“A complicating factor was the development of a secondary condition whereby the antero medial left ankle became inflamed when the client supinated the foot whilst walking in order to ease the plantar fascia pain, this resulted in impingement of the antero medial joint.[45]
[45] T153, folio 307.
On 3 March 2015, Dr Perera certified that Mr Ramirez-Gamonal was fit to work 6 hours per day, 4 days per week with a 1 hour break in the middle of each shift and “to work in the same location/alternate between circa and CEP – alternate seated and standing duties”.[46]
[46] T170.
On 19 March 2015, Mr Matthew Hotchkis, a podiatrist, examined Mr Ramirez-Gamonal and reported –
1. Diagnosis: Left plantar fasciosis (inflammation and thickening/degeneration of the plantar fascia band)
2. Prognosis: Mr Ramirez-Gamonal’s prognosis is clouded as plantar fasciosis is chronic in nature and predicting its recovery time is very difficult and is dependent on multiple factors and can vary from six weeks to two to three years. This is effected greatly with the type of treatment implemented and with some minor changes to Mr Ramirez-Gamonal’s treatment plan I feel his prognosis of recovery is above average.
3. Employment relationship:
a. Mr Gamonal’s current condition is related to his injury of 26 July 2012 but it isn’t solely caused by the incident. I feel the injury on that date was progressive in nature and the excessive weight-bearing was only one factor of influence on the injury.
…
4. Mr Ramirez-Gamonal’s current employment does not directly contribute to his condition given his injury occurred almost three years ago. From a research perspective and clinical perspective his symptoms should have resolved by now particularly with time off work and then continued reduced hours. The fact that Mr Ramirez-Gamonal is still in pain indicates that other influences are contributing.
…[47]
[47] T173.1, folios 352 and 353; see also T80.1, folios 374 and 375.
On the same day, 19 March 2015, Dr Perera reported to Comcare. The doctor confirmed the diagnosis of plantar fasciitis and said –
Plantar fasciitis is due to a panful [sic] inflammatory process of the plantar fascia…
…
The natural progression of the condition is that it resolves by itself. It may resolve as early as 6 months or it may take up to 2 to 3 years.
…
4. Mr Ramirez’s current condition is a continuation of his injury he suffered in 2012. As explained before plantar fasciitis can take up to 2 to 3 years for full recovery.
…[48]
[48] T181, folio 379.
In a further report on 27 May 2015, Dr Perera took issue with some aspects of Mr Hotchkis’ report to Comcare and observed –
Mr Hotchkis has agreed that plantar fasciitis is a chronic progressive condition that can get worse over time. That is exactly what has occurred to Mr Ramirez. His condition was solely caused by his excessive walking at work and progressively developed into a chronic painful condition over the 3 years.[49]
[49] T184.
On 14 October 2015, Dr Stubbs, an orthopaedic surgeon, produced a report for Comcare in which he confirmed the diagnosis of plantar fasciitis in Mr Ramirez-Gamonal’s left foot, and stated –
I believe that the condition is consistent with the mechanism provided by Mr Ramirez-Gamonal, and is a common problem in middle age with symptoms brought on by standing and walking.
3. In your opinion what is the origin/source of Mr Ramirez-Gamonal’s ongoing symptoms?...
The incident of July 2012 which has precipitated age-related wear and tear. He has no extra risk factors, e.g. obesity, malaligned hind foot or excessive exercises, so only the injury of 26 July 2012 contributes to his ongoing problems.
4. Is the condition suffered by Mr Ramirez-Gamonal related to activities outside of work, pre-existing, congenital, constitutional condition or the natural progress of an underlying condition?...
I do not believe the plantar fasciitis is related to activities outside work.
…
9…. Do you agree with this opinion [the summary provided of Dr Edwards’ report]?...
I agree with this opinion on the whole but I do not accept that cycling is a cause. Although the initiating episode has ceased, he has residual problems that need treatment.
…[50]
[50] T200, folios 429 and 431.
On 14 July 2016, Dr McBurnie provided the Museum with a report. On examination, she reported “tenderness on the sole of his foot on the arch in front of the heel on the left”. She went on the report a diagnosis of plantar fasciitis and said –
The condition is chronic and is mild-to-moderate in severity….
…
Treatment is not likely to alleviate the condition given the chronicity….
…
He still has the original injury. He reports ongoing symptoms in the arch of his left foot consistent with plantar fasciitis.
…[51]
[51] T253, folios 541 and 542.
On 15 September 2016, Mr Hotchkis produced another report, in which he reported “Plantar fascial tenderness still present when not in orthotics given pronated foot type and increased loading through feet with weightbearing” and the diagnosis of plantar fasciosis.[52]
[52] T266, folio 570.
On 7 October 2016, Mr Ramirez-Gamonal fell over in the course of his employment and injured his right knee – Dr Aubin, an orthopaedic surgeon, diagnosed a subchondral fracture.[53] In consequence, he was certified totally unfit for work for an extended period, from 27 October 2016 to 10 May 2017.[54] During this period, Mr Ramirez-Gamonal continued to experience left foot symptoms of plantar fasciitis.
[53] ST1, folio 2.
[54] Exhibit 12.
On 29 November 2016, Dr Aubin produced a report in respect of Mr Ramirez-Gamonal’s left foot, in which he described Mr Ramirez-Gamonal’s plantar fasciitis as chronic and said –
On examination today he has slight flexible loss to his longitudinal arch. He has definite tenderness directly over the plantar fascia attachment to the calcaneus. His overall foot architecture otherwise appears normal.
I did review an MRI scan of his foot which does show a bit of signal change at the plantar fascia attachment to the calcaneus. There is a bit of subtalar arthritis seen on this scan as well.
…
… I have strongly recommended a physiotherapy program and some nighttime splinting using a Strassburg sock…[55]
[55] T277 folio 599.
On 12 January 2017, Dr Watson, Mr Ramirez-Gamonal‘s then treating general practitioner, noted –
…
2. The L plantar is very symptomatic
using orthotics
the injured knee is casuing [sic] more steress [sic] on his L plantar
…[56]
[56] ST8, folio 170.
On 15 February 2017, Dr Stubbs produced a second report to Comcare. It appears the doctor examined Mr Ramirez-Gamonal on 7 February 2017. There is some controversy over the manner in which the examination was conducted. Mr Ramirez-Gamonal asserts that it lasted for only 8 minutes and Dr Stubbs examined his right foot, instead of the left. His assertion is supported by contemporaneous emails he sent the next day and on 3 March 2017 to Christian Wheeler, the Museum’s human resource manager.[57] Dr Stubbs was not called to give evidence. Without hearing from Dr Stubbs, we can go no further with this. Nevertheless, Mr Ramirez-Gamonal’s assertions raise grave doubts about the reliability of Dr Stubbs’ report and the weight it should be given, if any.
[57] Exhibit 9.
In the report, Dr Stubbs reported –
From the clinical examination point of view, I can note that the Windlass sign previously present in Mr Ramirez-Gamonal’s left foot is now negative, that the tenderness in the heel on the left side has also gone, but that he does have some tenderness in the right heel at this point in time.
Of particular note is that the difference in thigh circumference and leg circumference previously seen between the right and left legs has now equalised, and the measurement of the right and left thighs and right and left calves are within 1 cm of each other.
For practical purposes, the clinical signs of plantar fasciitis have resolved, and more importantly, Mr Ramirez-Gamonal is back undertaking his previous duties.
…
Mr Ramirez-Gamonal has recovered.[58]
[58] T281, folios 611 and 612.
There is no evidence before us that Mr Ramirez-Gamonal had returned to his full pre-injury duties and hours at the time of Dr Stubbs’ second report.
We note, furthermore, that Comcare was, or should have been, alive to the controversy over Dr Stubbs’ examination of Mr Ramirez-Gamonal before the hearing (we note that the emails to Mr Wheeler were provided to Comcare in response to a s 71 notice) and yet, notwithstanding this, Dr Stubbs was not called to give clarifying evidence. In our view, considerable caution is necessary when dealing with Dr Stubbs’ February 2017 report and determining the weight it should be given on controversial points.
On 16 February 2017, Dr Watson noted –
…
L foot is more pain due the favourifgn [sic] this leg as the r knee is very symtpomtoic [sic]
…[59]
[59] ST8, folio 170.
On a rather cryptic note of Dr Watson, it appears that this symptomatology was persisting on 10 March 2017 –
We see should right knee he is favouring his left leg for more pressure on the left planter fasciitis and he’ll resulting in increased symptoms[60]
[60] Ibid, folio 169.
On 10 May 2017, Comcare determined that it had no present liability under s 16 and s 19 of the Act.[61]
[61] T287.
On 19 May 2017, Dr Watson certified that Mr Ramirez-Gamonal was fit for work subject to restrictions, namely modified duties, reduced hours and workplace adjustments.[62]
[62] T288, folio 638.
On 23 May 2017, Dr Aubin produced a report following his examination of Mr Ramirez-Gamonal on 16 May 2017. The doctor strongly disagreed with Dr Stubbs’ assessment in February 2017.[63] Dr Aubin set out clear grounds for his assessment that Mr Ramirez-Gamonal’s left plantar fasciitis was then present and ongoing as a cause of symptoms and incapacity, requiring further medical treatment. This assessment was clearly drawn from clinical examination findings and radiological imaging. The doctor did not comment or offer opinion on issues of causation or any causal nexus with employment. Nevertheless, on the question whether Mr Ramirez-Gamonal‘s left plantar fascia condition had resolved, we are inclined to prefer Dr Aubin’s assessment in May 2017 to that reported by Dr Stubbs in February of that year.
[63] T289 and ST3.
On 7 July 2017, Comcare issued a reconsideration decision, varying its primary determination in respect of present liability under s 16 of the Act, but affirming the determination in respect of present liability under s 19 of the Act.[64]
[64] T293.
Consistent with this decision, on 10 July 2017, Comcare determined that Mr Ramirez-Gamonal was entitled to compensation for certain medical treatment expenses from 28 April 2017 to 28 October 2017.[65] We understand that compensation was subsequently paid to Mr Ramirez-Gamonal under s 16 of the Act.
[65] T294.
On 25 August 2017 and 27 September 2017, Dr Watson issued medical certificates stating that Mr Ramirez-Gamonal was fit to work 4 hours per day on 4 days per week with a half-hour break in the middle of the shift, performing modified duties.[66] In consideration of subsequent medical certificates placed into evidence,[67] it appears probable that these restrictions on Mr Ramirez-Gamonal’s fitness for work continued to the present.
[66] T297 and T298.
[67] Exhibit 13.
On 7 December 2017, Dr Wilkins, an occupational physician, reported persistence of symptoms of left plantar fasciitis, which he described as “chronic”.[68]
[68] ST4, folios 10 and 14.
On 22 January 2018, an MRI scan of Mr Ramirez-Gamonal ‘s left foot was taken. This was reported to show –
The plantar fascia is thickened with increased signal. This is more evident than the study of 2014. There are small under surface central tears. There is a subtle calcaneal spur. There is patchy bone oedema. There is oedema within the tissues deep to the plantar fascia and moderate oedema of the fat pad.
The ligaments around the ankle and hind foot are intact. There is slight signal seen within the insertional fibres of the tibiospring ligament on the calcaneum which may reflected [sic] previous injury/chronic sprain. There is slight splitting of the peroneus brevis tendon and increased signal extending over 3.5 cm from the posterior aspect of the lateral malleolus. There is also oedema and slight fluid in the sheath suggestive of a degree of tenosynovitis…[69]
[69] Exhibit 6.
On 23 January 2018, Dr Pillemer, an orthopaedic surgeon, produced a report for Mr Ramirez-Gamonal’s solicitor.[70] The doctor considered that “his symptoms are suggestive of plantar fasciitis”, but observed “his history is not totally in keeping with plantar fasciitis lasting for some seven and a half years at this stage, with no real change in his symptoms”. Dr Pillemer noted that Mr Ramirez-Gamonal’s symptoms were “in keeping with an L4 nerve root lesion on the left side” and recommended further investigations. The doctor stated –
Whether his symptoms are arising from plantar fasciitis or from some L4 nerve root involvement, in my opinion the nature and conditions of his work would still be regarded as causative or aggravation of an underlying condition.[71]
[70] Exhibit 10.
[71] Exhibit 10, page 4.
On 14 February 2018, Mr Hotchkis reported that Mr Ramirez-Gamonal presented with “Chronic plantar fasciitis left foot” and continuing pain – “a chronic case which I feel won’t resolve with conservative treatment options given the timeframe and severity of his pain”.[72]
[72] Exhibit 5.
Dr Aubin examined Mr Ramirez-Gamonal on 21 February 2018 and reported –
In terms of his left foot he has noted some improvement in his plantar fasciitis with a nighttime splint. He now gets less pain when first arising in the morning. He still however has plantar pain with prolonged periods on his feet and post exercise.
He had an MRI of his lumbosacral spine which failed to show any evidence of nerve root impingement. He also had a repeat MRI of his left foot which confirmed his chronic plantar fasciitis which if anything was worse than his previous scan. There is also evidence of signal change in his peroneus brevis tendon suggesting a tear. He does however have no complaints currently of pain in this area.[73]
[73] Exhibit 4, page 1.
On 13 April 2018, Dr McBurnie produced another report for Comcare.[74] In this report, the doctor confirmed a diagnosis of “Chronic left plantar fasciitis” and also diagnosed “Arthritis of the left ankle”. In her opinion the prognosis for the plantar fasciitis was guarded – “the condition is unlikely to resolve completely given the long duration”.[75] Dr McBurnie stated –
I do not regard the plantar fasciitis as a work related condition. It is a constitutional or underlying condition that is aggravated by all weight bearing and walking.
… Since the knee injury he has had 4-5 months off work and returned on limited hours. The symptoms did not improve with sustained absence from work.
…
It is likely that the plantar fasciitis and arthritis in the left ankle was aggravated by weight bearing and walking in his role in the museum. When he was walking before the knee injury it was likely that work was a significant contributor to the left foot symptoms.
Since the right knee injury that resulted in prolonged time off work and then markedly reduced time at work I do not consider that work is a significant factor in the persistent left heel and ankle symptoms.
…
…Since the right knee injury weight bearing in relation to work has been markedly reduced and I do not regard work as contributing to the condition to a significant degree. In particular I do not regard work as contributing to a significant degree from May 2017 onwards as the hours at work have been minimal in a modified role.
…[76]
[74] ST6.
[75] Ibid, folio 29.
[76] Ibid, folio 30-31.
ISSUES
Even though Comcare does not cavil with its original acceptance of liability for an ‘injury’ as defined under s 5A and s 5B of the Act, it contends that, from 10 May 2017, it is not liable to pay Mr Ramirez-Gamonal compensation in respect of medical treatment expenses under s 16 of the Act and incapacity for work under s 19 of the Act.
SUBMISSIONS
Mr Ramirez-Gamonal asserts that the symptoms in his left foot are causally attributable to his duties in employment. He maintains the symptoms which began in or about early July 2012 have persisted with some minor fluctuations, but without resolution, thereafter. In his submission, these symptoms, however diagnosed, are an ailment for the purposes of the Act. He contends that his employment significantly contributed to cause the onset or aggravation of the ailment, which is presently persisting. He cavils with the proposition that the employment contribution to this ailment has receded or been pushed into the background, or otherwise has come to an end. He argues that the ‘injury’ results in partial incapacity for work and that he requires medical treatment in relation to it. In his submission, Comcare’s liability to pay him compensation under s 16 and s 19 of the Act did not end on 10 May 2017, and it is presently ongoing.
Comcare disagrees. As will appear, Comcare’s case runs on two limbs: either the ‘ailment’ underlying the ‘disease’ that was accepted as an ‘injury’ ceased to exist on or before 10 May 2017, or Mr Ramirez-Gamonal’s employment no longer significantly contributed to the ailment from that date.
In Comcare’s submission, the ailment affecting Mr Ramirez-Gamonal’s left foot is properly diagnosed as plantar fasciitis. Comcare accepts that this ailment was significantly contributed to by his employment in 2012, such that he sustained an ‘injury’ in the form of a ‘disease’. Comcare contends, however, that this ‘injury’ came to an end on or about 10 May 2017, as at that time Mr Ramirez-Gamonal’s employment was no longer significantly contributing to the ailment he suffers.
Comcare’s central argument is that, for an entitlement to compensation to exist, there must be an ‘injury’, and where the ‘injury’ is in the form of a ‘disease’, it must be established that the employment continues to significantly contribute to the underlying ‘ailment’. From this it follows, so the argument goes, that for compensation to be payable under s 16 or s 19 of the Act, it must be established that the employment significantly contributes to the ongoing symptoms of the underlying ailment that require medical treatment or are productive of incapacity for work. It is on this reasoning that Comcare asserts Mr Ramirez-Gamonal had no entitlement to compensation under s 16 and s 19 from 10 May 2017 to the present – the degree to which his employment contributed to his left foot ailment had diminished, or had been pushed into the background or overtaken by other factors, to the extent it was no longer significant.
CONSIDERATION
Ailment
To the extent that Comcare argues Mr Ramirez-Gamonal’s left foot ailment resolved by 10 May 2017, we do not agree.
The word ‘ailment’ is given meaning by s 4(1) of the Act –
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The preponderant weight of medical evidence, including the evidence of Dr Perera, Dr Edwards, Dr Fitzgerald, Dr Stubbs (first report[77]), Dr Aubin, Dr McBurnie, Dr Wilkins, Dr Watson and Mr Hotchkis, supports a diagnosis of left plantar fasciitis. We are reasonably satisfied that diagnosis is made out.
[77] T200.
We accept Mr Ramirez-Gamonal’s evidence that symptoms first occurred in his left foot while he was at work on or about 2 July 2012, and these symptoms became worse over the following days when dealing with large groups of school children during the school holidays.
The only evidence that symptoms of left plantar fasciitis resolved completely is found in the second report of Dr Stubbs,[78] about which there is some controversy. For reasons we have outlined in paragraphs 54 to 57 above, Mr Ramirez-Gamonal’s allegations that Dr Stubbs examined his right foot instead of his left, and the doctor’s examination was cursory and dismissive, raise serious concerns about the manner in which Dr Stubbs examined him, to the extent that we consider Dr Stubbs’ report of this examination unreliable. For this reason, we are not inclined to give this report of Dr Stubbs any significant weight.
[78] T281.
We prefer the evidence of Dr Aubin, Dr McBurnie, Dr Pellemer, Dr Wilkins, Dr Watson and Mr Hotchkis and find that the symptoms of Mr Ramirez-Gamonal’s left plantar fasciitis did not resolve on or before 10 May 2017, rather the ailment was chronic and it is presently ongoing. Furthermore, As Dr Watson’s clinical notes and medical certificates clearly reveal, the ailment was productive of symptoms that required medical treatment and resulted in incapacity for work prior to, on and after 10 May 2017. On his evidence, Mr Ramirez-Gamonal’s plantar fasciitis symptoms increased after he injured his right knee, relying more heavily on his left lower limb.
We are not persuaded by Dr Pellemer’s evidence in respect of a possible L4 lesion or nerve involvement at that level. This appears to us to be conjectural and not supported by probative evidence. Nevertheless, it is Dr Pellemer’s expert opinion about a possible explanation for left foot symptoms that, otherwise, he considers are not consistent with plantar fasciitis. On this point of diagnosis we prefer the evidence of Dr Aubin and Dr McBurnie. Their assessment of the correct diagnosis is consistent with the weight of medical opinion over several years and it is consistent with radiological evidence in the form of MRI scans in 2014 and 2018.
Employment contribution
Mr Ramirez-Gamonal asserts that his left foot ailment commenced when he was at work and it was significantly contributed to by duties he was undertaking, which required him to stand and walk for long periods each day. In his submission, the ailment has persisted with varying degrees of intensity, regardless of whether he is at work, performing modified duties, or absent from work, even for long periods. He maintains that the ailment is work-caused and this did not end on 10 May 2017 – the evidence does not establish any other probable cause. With no prior history, he argues that it was his employment that caused the inflammatory process and related left foot symptoms to begin, and employment is not removed as an operative causal factor simply because rest and the medical treatments he obtained did not resolve the ailment, as would usually be expected to occur. He asserts that there is no evidence that the ailment would have commenced absent the employment factor, and evidence regarding the natural progress of plantar fasciitis to resolve within a period of months is not consistent with the facts in his case.
In these circumstances, Mr Ramirez-Gamonal says compensation should not have been discontinued as of 10 May 2017, and the decision that he did not suffer from an ‘injury’ as of that date should be set aside.
In Comcare’s submission, Mr Ramirez-Gamonal’s left foot ailment was constitutional and underlying, albeit not symptomatic until July 2012. Comcare argues that the circumstances of Mr Ramirez-Gamonal’s employment significantly contributed to an aggravation of the underlying ailment. The aggravation was provoked by weight-bearing duties, so the argument goes, and it came to an end after treatment when these duties were removed for an extended period. In Comcare’s submission, the persistence of symptoms and related incapacity for work after this occurred is not attributable to Mr Ramirez-Gamonal’s employment, but to the underlying ailment.
Comcare argues that it is necessary to determine if the ‘injury’ exists as a ‘disease’ for each week of any incapacity under claim, and at the time of any medical treatment for which expenses are claimed, when determining an injured employee’s entitlement to compensation under s 16 and s 19 of the Act. As we comprehend Comcare’s submissions on this point, there are two elements. Firstly, Comcare asserts that, for the purposes of s 16 and s 19 of the Act, it must be established that the employment contributes to a significant degree to ongoing symptoms of the ailment for an ‘injury’ to exist. Secondly, where the degree of employment contribution is less than to a significant degree, being substantially more than material, compensation is not payable under either section.
There are a number of difficulties with this reasoning relating to the operation of the Act in respect of ‘injury’, liability and entitlement to compensation on the facts of this case.
Injury
Firstly, the Act sets out a definition of ‘injury’ in s 5A(1) –
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
As can be seen, the definition sets out 3 classes of ‘injury’ and specifies causal tests in respect of the employee’s employment in s 5A(1)(b) and (c) for an injury (other than a disease) or an aggravation of a physical or mental injury (other than a disease) arising out of, or in the course of, the employment.
In respect of a ‘disease’ in s 5A(1)(a), the causal test is set out in s 5B –
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Clearly enough, the causal test is one in which an ‘ailment’ or ‘an aggravation’ of an ailment is contributed to, to a significant degree, being a degree that is substantially more than material, by the employee’s employment.[79]
[79] Comcare v Power [2015] FCA 1502 at [93]-[94].
It is by applying these tests that an ‘injury’ is established for the purposes of the Act. These provisions are largely definitional, but they and the conception of ‘injury’ are of pivotal importance to the scheme of the Act.[80]
[80] Canute v Comcare [2006] HCA 47 at [8]-[10].
The particular characteristics of Mr Ramirez-Gamonal’s case must be examined when determining the circumstances in which his plantar fasciitis arose and the factors which contributed to its onset and progress.
The evidence does not establish that, prior to 2 July 2012, he experienced any symptoms in his left foot that are consistent with or indicative of plantar fasciitis.
This notwithstanding, Dr McBurnie explained that Mr Ramirez-Gamonal’s plantar fasciitis was a constitutional or underlying condition that was present prior to the onset of symptoms on or about 2 July 2012. The basis on which this opinion is raised in the particular circumstances of Mr Ramirez-Gamonal’s case is not clear, however. The doctor did not explain the precise form of the pre-existing but asymptomatic condition. We note that Dr Edwards referred to this in terms of “altered biomechanics”, but precisely what was meant by this is not entirely clear.
As we understand the medical evidence, Mr Ramirez-Gamonal’s age, weight, gait and other constitutional factors may have predisposed him to plantar fasciitis. Even accepting that this is correct, we note that there is a substantial difference between the existence of a predisposition to plantar fasciitis, perhaps in the form of altered biomechanics in the hind foot, and the existence of plantar fasciitis prior to the onset of symptoms – the former does not amount to an ailment, whereas the latter does.
Furthermore, the evidence Dr McBurnie and Dr Pellemer gave in respect of the physiological processes involved in plantar fasciitis refers to an inflammatory process provoked by prolonged or excessive weight-bearing activity, such as standing or walking for long periods on a frequent basis. This is consistent with the preponderant weight of medical evidence. Both doctors agreed that inflammation causes pain. If that is accepted, it is difficult to understand the basis of Dr McBurnie’s evidence that plantar fasciitis was present prior to the onset of symptoms.
We are not persuaded that the plantar fasciitis ailment was present in Mr Ramirez-Gamonal’s case prior to 2 July 2012, although we accept that predisposing factors or preconditions may have been present over preceding months or years.
Dr Edwards reported that “the altered biomechanics of his hind foot associated with his age and constitution, recreational history, weight, and gait”[81] were causal factors, not employment, which exacerbated the symptoms. Dr Edwards was not called to give evidence, so this evidence has not been tested.
[81] T103, folio 207.
Nonetheless, we accept that the altered biomechanics Dr Edwards referred to contributed to cause Mr Ramirez-Gamonal’s plantar fasciitis ailment. Clearly enough, these factors and the predisposition Dr McBurnie reported are matters to which regard should be had under s 5B(2) of the Act when determining the existence of a ‘disease’.
Dr Pellemer’s diagnostic speculation about nerve root involvement at the L4 level is not consistent with or supported by the preponderant weight of medical evidence. His evidence on this point postulates a theory of causation that is no more than a possibility.
While the doctors did not wholly agree on the amount of weight-bearing activity that would be likely to provoke plantar fasciitis, or the extent to which weight-bearing activity might be considered to be excessive or prolonged, it is very clear that other factors might also apply, such as constitutional predisposition, anatomical variations and age. For this reason, inferences drawn from generalisations without supporting evidence are not helpful – these are more akin to speculation, albeit from a scientific perspective, than probative evidence of relevant facts from which causal inferences may be drawn.
The employment duties Mr Ramirez-Gamonal was undertaking during and before July 2012 involved a lot of standing and walking on hard floors, only some of which were carpeted, throughout the public areas of the Museum – several hours each work day, depending on how busy the Museum was at the particular time. Much was said during the hearing about the extent to which Mr Ramirez-Gamonal was able to sit down, and his reluctance to do so as he perceived this would be frowned upon by management. We accept his evidence on this point.
Comcare accepts that Mr Ramirez-Gamonal sustained an ‘injury’ to his left foot in the circumstances claimed. On the materials before the Tribunal, this is correct.
On balance, we are reasonably satisfied that the symptoms Mr Ramirez-Gamonal experienced in his left foot on and after 2 July 2012 are attributable to inflammatory processes involving his left plantar fascia that were probably provoked by weight-bearing duties in his employment, causing the onset of left foot symptoms. In this regard, accepting that predisposing factors also contributed, we are reasonably satisfied that Mr Ramirez-Gamonal’s employment contributed to a significant degree to the inflammation of his plantar fascia, resulting in plantar fasciitis.
We note in passing that it is probable the changes in Mr Ramirez-Gamonal’s left plantar fascia are consistent with a physical injury arising in the course of his employment, such that he may have sustained an ‘injury (other than a disease)’. It is now clear in law that ‘disease’ and ‘injury (other than a disease)’ are classes of ‘injury’ which are not mutually exclusive.[82] We heard detailed evidence of the physiological changes that occurred during the process of inflammation and subsequent tearing of tissue in his left plantar fascia. The physiological changes, albeit very small in size, are nonetheless ascertainable, probably sudden (although we note the observations of the plurality in Military Rehabilitation and Compensation Commission v May[83]), dramatic and upset the usual physiological state of his left plantar fascia. Nonetheless, as will appear, we do not need to go any further with this point as Mr Ramirez-Gamonal’s application succeeds on other grounds.
[82] Prain v Comcare [2017] FCAFC 143 at [72].
[83] [2016] HCA 19, per French CJ, Kiefel, Nettle and Gordon JJ at [47].
Thus, on balance, while we accept that Mr Ramirez-Gamonal may have had a predisposition to plantar fasciitis and the predisposition, as well as his age and other factors, may have contributed to the onset of plantar fasciitis to some degree which is not presently clear, the plantar fasciitis ‘ailment’ commenced with the onset of inflammatory processes which produced symptoms on 2 July 2012.
As Mr Ramirez-Gamonal’s employment contributed to this ailment to a significant degree, being a degree that is substantially more than material, we are satisfied that he sustained an ‘injury’ in the form of a ‘disease’.
Liability
Once an ‘injury’ is found to exist on assessment of a claim made under s 54 of the Act, it does not follow that Comcare is liable to pay compensation in respect of it – a separate determination is required for the purposes of Part II.
Primarily, this liability arises in respect of s 14 of the Act,[84] which provides –
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
It is important to stress that compensation is payable in respect of an injury, being an ‘injury’ as defined by s 5A, if the injury results in death, incapacity for work, or impairment. The High Court has been very clear about this in Canute v Comcare.[85]
[84]Lees v Comcare [1999] FCA 753 at [34].
[85] [2006] HCA 47 at [10].
Comcare determined to accept liability to pay compensation under s 14 of the Act in respect of Mr Ramirez-Gamonal’s left foot plantar fasciitis ailment, this being an ‘injury’.
The liability thus determined persists until it is discharged in accordance with the Act,[86] and it foreshadows the crystallisation of the liability to compensate in the various circumstances of Part II.[87]
[86] Australian Postal Corporation v Oudyn [2003] FCA 318 at [31].
[87] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, per Conti J at [35].
Comcare has not reconsidered or revoked the determination it made to accept liability to pay compensation in respect of Mr Ramirez-Gamonal’s left foot ‘injury’.
No persuasive argument was advanced before us that once a positive determination has been made under s 14, the section could be revisited at any time in order to determine present liability and, where the available evidence establishes that the injury no longer results in impairment or incapacity for work, a negative s 14 determination could be made without reconsideration of the original s 14 determination. Whether this would be permissible under the terms of the legislation, having regard to a long line of binding authority to which Conti J referred in Telstra Corporation Limited v Hannaford,[88] is not clear.
[88] Ibid.
Absent proper ventilation of related issues, we will go no further on this point than to observe that there is no express reconsideration of a s 14 determination presently before the Tribunal.
Entitlement to payment of compensation
A positive determination of liability under s 14 of the Act does not result in payment of compensation, however. Compensation is only payable if the causal tests of entitlement are satisfied. These tests are set out in sections dealing with specific kinds of compensation, including damage to property (s 15), medical treatment expenses (s 16), death (s 17), incapacity for work (s 19 – s21A), hospitalisation (s 22), permanent impairment (s 24) and household support and attendant care services (s 29).
Each of these provisions sets out a qualification or test for entitlement. These tests are causal in nature and require the subject of the claimed entitlement to be ‘as a result of’ or ‘in relation to’ an ‘injury’.[89] While there are minor variations in the language used to describe these tests, (including as a result of, results in, in relation to) the cause is the same: an injury.
[89] Howard v Comcare [2019] FCA 1031 at [29].
The tests by which a claimant’s compensation entitlement is to be decided should not be conflated, confused or interchanged with the causal tests that apply to the existence of an ‘injury’ under s 5A and s 5B – The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose.[90] The tests of causality in respect of ‘an injury’ under s 5A, namely the significant contribution test in respect of a ‘disease’ under s 5B(1) and the ‘arising out of, or in the course of’ test in relation to an injury (in the primary sense) or an aggravation under s 5A(1)(b) and (c), are expressly and particularly directed to the employee’s employment. The tests of entitlement to compensation under s 16 and s 19, for example, are directed specifically to ‘an injury’. No serious submission was advanced that entitlement to compensation under any particular provision in Part II, applying the ‘as a result of’ or ‘in relation to’ ‘an injury’, should be determined on the basis of the test applying in respect of employment under s 5A. We note that Griffiths J did not arrive at any such conclusion when considered the meaning of ‘in relation to’ in Howes v Comcare.[91]
[90] Comcare v Martin [2016] HCA 43 at [42].
[91] [2016] FCA 1521 at [44]-[52].
Comcare argues that the existence of an ‘injury’ must be established when determining a claimant’s entitlement to compensation under any particular provision in Part II. That is unexceptional.
A difficulty arises, however, if the argument is extended such that each element of an ‘injury’ must be established to exist at the time or during the period of a claimed entitlement, contemporaneously. In effect, for compensation to be payable, this would reapply the causal tests for ‘an injury’ at the time of the claimed entitlement.
At first blush, this might appear to be logical and consistent with the scheme of the Act. On closer examination, however, the difficulty is immediately apparent: if accepted, the argument would curtail operation of the Act in respect of an ‘injury’, such that compensation under Part II would only be payable if the ‘injury’ persists in the terms required by s 5A at the time of the claimed entitlement. One does not need a vivid imagination to conceive of circumstances in which this might arise. Take a person with a compensation ‘injury’ in the form of a badly broken leg, for example. Once the break has healed, the person may be left symptoms, such as pain, or other complications that require medical treatment from time to time, or the person may be left with a permanent weakness, or alteration in function of the affected limb, that results in incapacity for work (noting the meaning given to that term in s 4(9)). If Comcare’s argument was to be accepted, no compensation would be payable in the circumstances of the example.
On a plain reading, the Act does not operate in this way. Once it is established as a fact that an ‘injury’ exists, applying the tests set out in s 5A and s 5B of the Act, compensation for medical treatment expenses is payable if the treatment is obtained in relation to the ‘injury’, and compensation for incapacity is payable if the incapacity is as a result of the ‘injury’. When assessing if compensation is payable under s 16 or s 19, it is necessary to establish as a fact that an ‘injury’ exists. That inquiry may be satisfied if an ‘injury’ was accepted in assessment of a claim under s 54 or, on review, if the ‘injury’ is found to have occurred in the circumstances of the claim. These may be matters of historical fact. The purpose of the inquiry is to establish the existence of an ‘injury’, symptoms or resultant effects of which result in impairment or incapacity for work for the purposes of s 14 and other heads of compensation entitlement set out in Part II. In some cases it may be relevant to determine if the causal nexus between the ailment or injury (in the primary sense) and the employee’s employment persists to the extent that an ‘injury’ would be found if s 5A and s 5B were to be applied at the time the medical treatment was obtained or the claimed incapacity for work occurred.[92] An examination of that kind may serve to establish if an ‘injury’ persists. This may be particularly relevant where causation of an ailment and resulting incapacity for work is multifactorial, as occurred in Prain v Comcare.[93]
[92] Prain v Comcare [2017] FCAFC 143 at [79]-[90].
[93] [2017] FCAFC 143.
Nevertheless, the standards set out in the legislation are to be applied when determining if medical treatment expenses were obtained in relation to an injury, or if incapacity for work results from an injury. The existence of an ‘injury’ is a factual matter determined under the legislation in force at the time of claim. For the purposes of s 16 and s 19, the causal test requires persisting results or effects of the ‘injury’ (in terms of medical treatment and incapacity for work) to be established, but this should not be confused with a need to establish persisting cause of injury in respect of employment.
It is important to observe that the causal nexus between an ailment and the employee’s employment necessary to establish the existence of an ‘injury’ in the form of a ‘disease’ requires an evaluation of contributory causes of the ailment – an ‘injury’ will only exist if the employment contributed to the ailment (or aggravation of the ailment) to a significant degree, being a degree that is substantially more than material or trivial.[94] This causal threshold was introduced by legislative amendments to the Act in 2007, which imposed a stricter or higher threshold of employment causation in respect of a ‘disease’ than previously existed. It does not follow, however, that compensation under s 16 or s 19 is only payable if the employment significantly contributes to the need for medical treatment or the incapacity for work. As we have said, no such submission was seriously made. Compensation is payable in respect of an ‘injury’ where the injured employee reasonably obtains medical treatment in relation to the ‘injury’ or claimed incapacity for work is as a result of the ‘injury’.
[94] Comcare v Power [2015] FCA 1502 at [93].
While this is not a case involving acceleration of an existing or underlying ailment, such as arose in Casarotto v Australian Postal Corporation,[95] although it was, at least in part, pressed as one involving aggravation of an ailment, it is nevertheless germane to refer to Hill J’s detailed consideration of issues relating to causes of incapacity which, even though directed to incapacity assessment under antecedents of the Act, are presently apposite.[96] As can be seen from his Honour’s reasons, for many years, it has been well-settled law that determining an injured employee’s entitlement to compensation for incapacity that is multifactorial requires close examination of evidence in order to assess if the multiple causes of incapacity can be distinguished or disentangled when applying the causal test, and where this is not possible, and the ‘injury’ is an ongoing material cause of incapacity, the entirety of the incapacity is compensable.[97] Whereas, furthermore, if the evidence does not positively establish employment-related ‘injury’ as a persisting cause of incapacity, then the injured employee’s entitlement to compensation for incapacity may cease. As Jordan CJ pointed out in Salisbury v Australian Iron and Steel Ltd[98]-
It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases.
[95] [1989] FCA 116.
[96] Ibid, at [28] – [39].
[97] Commonwealth of Australia v Keith Colville Smith [1989] FCA 189 at [16]-[19].
[98] (1943) 44 SR (NSW) 157 at 162.
Comcare’s argument effectively imports a new test that would require the words in relation to and as a result of to be construed as applying the causal test for an ‘injury’ under s 5A and s 5B, such that, for example, in respect of a ‘disease’, compensation for incapacity would only be payable if it is established that the employment contributed to the claimed incapacity to a significant degree. This conflates the causes of an ‘injury’ with its resulting effects. By arguing that, for compensation to be payable, the employment must contribute to the ailment previously accepted as an ‘injury’ in the form of a ‘disease’ at the time of the particular incapacity or medical treatment under claim, Comcare is importing the s 5B standard to the causal tests applying under s 16 and s 19 of the Act. To this extent, we do not accept Comcare’s submissions on this point. Bearing in mind that causation in a legal context is always purposive,[99] we are not persuaded there is good reason to read the plain language of the legislation down, or to construe it narrowly, such that the causal contribution described by the phrases in relation to in s 16 and results from in s 19 of the Act require a contribution to a significant degree. The causal tests set out in these sections are actuated by the occurrence of an ‘injury’ in respect of which Comcare is liable to pay compensation.[100]
[99] Comcare v Martin [2016] HCA 43 at 42.
[100] Canute v Comcare [2006] HCA 47 at [37].
Turning to the facts of Mr Ramirez-Gamonal’s case, we are reasonably satisfied that the plantar fasciitis ‘injury’ he sustained in July 2012 persisted as of 10 May 2017. Dr McBurnie’s evidence does not compel us to conclude that any other causal factor of his plantar fasciitis ailment arose to prominence or overtook employment as a significant causal contributor or diminished the employment contribution to something less than significant.
Dr McBurnie and Dr Pellemer agreed that the natural progress of plantar fasciitis is for resolution within months of onset with rest and appropriate treatment. Furthermore, in their opinions, weight-bearing in any context would be likely to result in prolongation or recurrence of symptoms. We accept their evidence on this point. Mr Ramirez-Gamonal’s plantar fasciitis did not resolve with rest, treatment, modification of duties and extended periods off work – his symptoms persisted, albeit with some fluctuation of intensity, from onset of the ailment in July 2012 to the present. For this reason, it cannot be said that the natural progress of his plantar fasciitis ailment, which anticipates recovery within months rather than many years, overtook employment as a significant cause.
The present evidence does not establish that Mr Ramirez-Gamonal undertook activities outside employment that prolonged or worsened his plantar fasciitis condition. We note the evidence in respect of bicycle riding and jogging, and find that these factors have little bearing on the persistence of his plantar fasciitis.
The evidence clearly establishes that Mr Ramirez-Gamonal’s plantar fasciitis ailment has become worse since July 2012, with more recent MRI scans revealing tears and thickening within the left plantar fascia. From this it appears that, rather than progressing to resolution with treatment and rest, his plantar fasciitis has become chronic.
Evidence given by Dr McBurnie raises questions about the pathological processes underpinning this chronicity, but her evidence on this point remains at the level of possibility – it does not crystallise into an explanation established on the balance of probabilities. Dr Pellemer’s evidence does not advance any further – he, too, posits possible explanations for the chronicity of symptoms, but these do not rise to the level of probable or even likely explanations, applying the reasonable satisfaction standard.
Nevertheless, Dr Pellemer is of the opinion that the ailment remains attributable to Mr Ramirez-Gamonal’s employment. Dr McBurnie is of the opinion that it is not. Her reasoning that the employment contribution ended when Mr Ramirez-Gamonal was off work for an extended period of months, prior to 10 May 2017, can be understood if one accepts that the ‘injury’ is an aggravation of a pre-existing ailment, where the aggravation resulted from weight-bearing activity which came to an end. There are two difficulties with this reasoning. Firstly, the evidence does not establish that Mr Ramirez-Gamonal had a plantar fasciitis ailment prior to 2 July 2012. Secondly, the inflammatory process affecting his left plantar fascia was directly attributable to and began during Mr Ramirez-Gamonal’s employment and it has not resolved – even though he was off work for several months before 10 May 2017 the physiological changes and related symptoms persisted. For these reasons, Dr McBurnie’s opinions on this point are not persuasive or compelling.
As we have said, Dr Pellemer had some difficulty arriving at a diagnosis. Nevertheless, he reasons that Mr Ramirez-Gamonal’s employment continues as the most significant operative factor in the persistence of his left foot ailment. As we understand the doctor’s evidence, whether the left foot symptoms are caused by L4 nerve root involvement (which he considers likely, albeit unproved) or by chronic plantar fasciitis (which he considers less likely, albeit most doctors agree upon this diagnosis), either way the ailment is directly attributable to the weight-bearing duties, standing and walking for long periods Mr Ramirez-Gamonal undertook in his employment.
On balance, we are reasonably satisfied that the inflammatory process in Mr Ramirez-Gamonal’s plantar fascia, and the resultant plantar fasciitis associated with tears to and thickening of the plantar fascia tissue over time, were contributed to by his employment to a significant degree. The present evidence does not establish that the significant degree of this contribution has been diminished, displaced, overtaken or supplanted by any other cause or explanation for symptoms that have become chronic. We are not persuaded by Dr McBurnie’s evidence of any contrary proposition. With respect, her evidence raises possible explanations for the chronicity of Mr Ramirez-Gamonal’s left plantar fasciitis, but these are theories from which causation cannot properly be inferred.
We note that other pathology in Mr Ramirez-Gamonal’s left foot and ankle, namely arthritis and ligamental changes, on the present evidence, are not established as causally related to, or caused by, his plantar fasciitis ‘injury’. These pathologies may contribute to his experience of symptoms in different parts of his left foot and ankle, but they are distinguished from the physiological changes and symptoms he experiences in the plantar fascia region of his left foot that resulted in incapacity for work and required medical treatment as of 10 May 2017.
The evidence before us is not sufficient to establish, on the balance of probabilities, that the degree to which Mr Ramirez-Gamonal’s employment contributed to his plantar fasciitis ailment fell below the significant degree threshold as of 10 May 2017. We make this finding noting two things.
Firstly, the decision under review purports to deny entitlement to compensation that was previously payable. For this to be made out, the Tribunal must be positively satisfied that one or more of the entitling circumstances on which liability for and entitlement to payment of compensation were previously raised has ceased, or is not made out, as of 10 May 2017. Where reasonable satisfaction cannot be obtained, the Tribunal will not be in a position to positively affirm the disentitling decision under review.[101]
[101] Comcare v Power [2015] FCA 1502 at [62]-[71].
Secondly, in order to be reasonably satisfied according to the civil standard of proof, the available evidence must be sufficient to establish relevant facts on the balance of probabilities – mere possibility, even if real rather than fanciful, is not sufficient. Choosing between theories relating to possibilities or guesses, on the basis that one seems more likely than another, involves speculation that is not consistent with reasonable satisfaction in a legal context. Reasonable satisfaction is a positive state arrived at by principled evaluation of evidence, drawing inferences and applying reasoning in accordance with the purposes of the legislation.
We accept the evidence of Dr Watson, Dr Aubin, Dr Wilkins and Dr Pellemer that Mr Ramirez-Gamonal’s plantar fasciitis ‘injury’ resulted in partial incapacity for work, as certified by Dr Watson, from 10 May 2017 to the present. The words ‘incapacity for work’ are given meaning by s 4(9) of the Act –
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
On the medical certificates issued by Dr Watson, which are supported by reports of Mr Ramirez-Gamonal’s rehabilitation provider, from 10 May 2017 to the present, his work capacity is restricted to 4 hours per days for 4 days each week in modified duties. This represents a partial incapacity for work in reference to his pre-injury capacity.
From this it follows that Mr Ramirez-Gamonal is entitled to compensation under s 19 of the Act in respect of incapacity for work as of 10 May 2017 and presently. The application will be remitted to Comcare to calculate the amounts of compensation that are payable to Mr Ramirez-Gamonal under s 19 of the Act.
We are reasonably satisfied that Mr Ramirez-Gamonal obtained medical treatment in relation to this ‘injury’ from 10 May 2017 to the present. It follows that he is entitled to payment of compensation under s 16 of the Act for medical treatment expense, insofar as the medical treatment was reasonable for him to obtain in the circumstances. This will be remitted to Comcare to determine when assessing specific claims.
CONCLUSION
Even though the medical evidence is not entirely clear, or as clear as one might hope, in addressing the causes of Mr Ramirez-Gamonal’s left foot plantar fasciitis, and why it has become chronic in particular, we are reasonably satisfied his ‘injury’ did not resolve on or before 10 May 2017 and presently persists. Comcare’s liability to pay compensation to Mr Ramirez-Gamonal did not end on 10 May 2017 – the injury resulted in impairment and incapacity for work on that day which is presently persisting.
Mr Ramirez-Gamonal is entitled to compensation under s 16 in respect of medical treatment and under s 19 in respect of partial incapacity for work as of 10 May 2017 and presently.
DECISION
The decision under review is set aside. In place thereof, the Tribunal decides that, as of 10 May 2017, Mr Ramirez-Gamonal is entitled to compensation under s 16 and s 19 of the Act. The matter is remitted to Comcare to assess and determine the amounts of compensation payable to Mr Ramirez-Gamonal.
The parties have not yet fully been heard as to costs, however. Each will have 14 days in which to make written submissions addressing this issue, if they choose to do so. If no such submissions are received within this period, as Mr Ramirez-Gamonal’s application has been successful, the Tribunal will then order, forthwith, that Comcare is to pay Mr Ramirez-Gamonal’s reasonable costs of these proceedings, as agreed or taxed.
148. I certify that the preceding 147 (one hundred and forty seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Presiding Member and Dr P. Fricker OAM, Member.
......................................................................
Associate
Dated: 6 September 2019
Date(s) of hearing:
29 July 2019 – 30 July 2019
Solicitor for the Applicant:
Counsel for the Applicant:
Solicitors for Respondent:
Counsel for Respondent:
Mr Joshua Carroll, Slater and Gordon
Mr Mark Seymour
Mr Andrew Schofield, Comcare
Ms Kristy Katavic
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