Spence and Comcare (Compensation)

[2017] AATA 2161

Spence and Comcare (Compensation) [2017] AATA 2161 (9 November 2017)

Division:GENERAL DIVISION

File numbers:         2016/0914, 2016/2025 and 2016/2026

Mark Spence

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:9 November 2017

Place:Canberra

Comcare’s decisions on 5 February, 6 April and 25 May 2016 are affirmed.

........................................................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — Applicant injured back unhitching police boat from police vehicle — Comcare given notice in writing more than 11 years later — notice not given as soon as practicable after Applicant become aware of injury — no liability — Applicant claimed back condition aggravated by carrying heavy weights in load bearing vest and accoutrement belt — wearing vest and belt did not contribute, to significant degree, to aggravation of condition — aggravation did not arise out of or in the course of employment — no liability — decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 5B, 7(4)(a), 14, 53

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, Schedule 1, items 5, 11, 41, 42

CASES

Frosch v Comcare [2004] FCA 1642

Saunders and Comcare [2015] AATA 111

REASONS FOR DECISION

Dr James Popple, Senior Member

9 November 2017

Summary

1. The applicant worked for the Australian Federal Police (the AFP).  He injured his back unhitching a police boat from a police vehicle in late 2002 or early 2003, when he was stationed in the Cocos (Keeling) Islands (Cocos). But Comcare was not given notice in writing of the injury for more than 11 years. That notice failed to comply with the requirements of s 53 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), because it was not given as soon as practicable after the applicant became aware of his injury. So, the SRC Act does not apply to that injury. Comcare is not liable to pay him compensation.

2. The applicant also says that his back condition was aggravated by him carrying heavy weights in his load-bearing vest and on his accoutrement belt in the course of his work for the AFP at Canberra Airport from 2011 until 2014.  But doing so did not contribute, to a significant degree, to any aggravation of his condition.  And any such aggravation did not arise out of, or in the course of, his employment.  Comcare is not liable to pay him compensation.

   Background

3. Mr Mark Spence has been employed by the AFP since November 1999.  From March 2001 until sometime in 2003,[1] he was stationed on Cocos.  From October 2011 until sometime in 2014, he was assigned to a position at Canberra Airport.

   [1]     Mr Spence says he was stationed on Cocos until March 2003; Comcare says that AFP records indicate he was stationed there until 9 July 2003.  Nothing turns on this discrepancy.

   Application 2016/0914

4. On 3 March 2014, Mr Spence made a claim for workers’ compensation.  He said that he was suffering from an “L5/S1 broad-based disc bulge”.  He said that he was first injured in 2001,[2] that he had suffered sciatica on his left side “on and off since 2006”, but that his current injury was caused by him “carrying heavy weights in [his] load-bearing vest and on [his] accoutrement belt” in the course of his work at Canberra Airport.  I will call this the vest claim.

   [2] In November 2015, in his third claim for compensation (the boat claim), Mr Spence said that the initial injury had happened in January 2003 (see [11] below). He now says that it happened in late 2002 or early 2003 (see [31]). I do not think anything turns on this discrepancy.

5. On 22 April 2014, Comcare accepted liability, under s 14 of the SRC Act, to pay Mr Spence compensation for “aggravation of displacement of intervertebral disc—lumbar” and “injury to lumbar nerve root (left)”. Comcare decided that the date of injury, for the purposes of the SRC Act, was 13 January 2014—the date when Mr Spence first sought medical treatment for the aggravation.[3]

   [3] See SRC Act, s 7(4)(a).

6. On 5 February 2016, Comcare reconsidered that decision, of its own motion, and revoked it: Comcare decided that it was not liable to pay Mr Spence compensation.

7. On 22 February 2016, Mr Spence applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Application 2016/2025

8. On 10 November 2015, Mr Spence made a second claim for workers’ compensation.  He said that his lumbar disc protrusion had been aggravated by physiotherapy treatment that he obtained in relation to his (then) accepted injury.  I will call this the physiotherapy claim.

9. On 18 January 2016, Comcare denied liability.  On 15 March 2016, Mr Spence requested a reconsideration of that determination.  On 6 April 2016, Comcare affirmed its determination.

10. On 19 April 2016, Mr Spence applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

    Application 2016/2026

11. On 11 November 2015, Mr Spence made a third claim for workers’ compensation.  He said that he had injured his lower left back unhitching a police boat from a police vehicle on Cocos in January 2003.  I will call this the boat incident.  I will call this claim the boat claim.

12. On 18 April 2016, Comcare denied liability.  On 5 May 2016, Mr Spence requested a reconsideration of that determination.  On 25 May 2016, Comcare affirmed its determination.

13. On 30 May 2016, Mr Spence applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

    Decisions under review

14. The decisions under review are Comcare’s decisions:

    ·on 5 February 2016 (application 2016/0914), revoking its decision that it was liable to pay Mr Spence compensation for a lumbar spine condition associated with him wearing a load-bearing vest and accoutrement belt—the vest claim;

    ·on 6 April 2016 (application 2016/2025), affirming its decision that it is not liable to compensate Mr Spence for a lumbar spine condition aggravated by physiotherapy treatment—the physiotherapy claim; and

    ·on 25 May 2016 (application 2016/2026), affirming its decision that it is not liable to compensate Mr Spence for a lumbar spine condition associated with the boat incident—the boat claim.

15. At the hearing, Mr Spence conceded that, although there is evidence that the kind of physiotherapy treatment that he obtained could have aggravated his condition, there is no evidence that it did cause such an aggravation.  Accordingly, he does not press the physiotherapy claim.

    Issue

16. Comcare accepts that Mr Spence has a lumbar spine condition.  The issue in this review is whether Comcare is liable to pay compensation to Mr Spence in relation to the boat claim or the vest claim.  That depends on the answers to the following questions:

    ·Did Mr Spence injure his back unhitching a police boat from a police vehicle on Cocos?

    ·If he did:

    oDid his lumbar spine condition arise out of the boat incident?

    oDid the boat incident contribute to an aggravation of his condition in a material degree?

    oDid he give Comcare written notice of the injury as soon as practicable after he became aware of it?

    ·Did his carrying weights in his vest and on his belt, while working at Canberra Airport, contribute to an aggravation of his condition to a significant degree?

    ·Did that aggravation arise out of him carrying those weights?

    Legislative framework

17. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is defined in s 5A(1), which relevantly provides:

    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; …

    “Disease” is defined in s 5B(1), which relevantly provides:

    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.

    Section 5B(3) provides that, in the SRC Act, “significant degree means a degree that is substantially more than material”.

18. Sections 5A and 5B were inserted into the SRC Act on 13 April 2007.[4]  The amending Act provides that the definitions in those sections apply only to injuries sustained on or after that date.[5]  The aggravation that Mr Spence says he sustained in relation to the vest claim was sustained after that date.  But he says that the boat incident happened in late 2002 or early 2003.[6] At that time, the definition of “injury” in s 4(1) of the SRC Act was relevantly identical to the definition now in s 5A(1).[7] But, at that time, s 4(1) relevantly provided:

    disease means:

    (a)  any ailment suffered by an employee; or

    (b)  the aggravation of any such ailment;

    being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.[8]

    [4]     Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the amending Act), Schedule 1, item 11.

    [5] Item 42 of Schedule 1 to the amending Act provides that “The definition of injury in the [SRC Act], as amended by this Schedule, applies in relation to a disease, injury or aggravation that an employee sustains on or after the day after this Act receives the Royal Assent”.  Item 41(1) of that Schedule provides that “The definition of disease in the [SRC Act], as amended by this Schedule, applies in relation to: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that the employee suffers on or after the day after this Act receives the Royal Assent”.  The amending Act received Royal Assent on 12 April 2007.

    [6] See [4] and note 2 above.

    [7]     The only difference between the two definitions relates to the exclusion for what is now called (in s 5A) “reasonable administrative action”.  That exclusion does not arise in this review.

    [8] Item 5 of Schedule 1 to the amending Act replaced this definition with “disease has the meaning given by section 5B”, from 13 April 2007.

19. So:

    ·for an aggravation of an ailment to be a “disease” for the purposes of the boat claim, it must have been contributed to “in a material degree” by Mr Spence’s employment;

    ·for an aggravation of an ailment to be a “disease” for the purposes of the vest claim, it must have been contributed to “to a significant degree”—that is, to “a degree that is substantially more than material”—by his employment; and

    ·for an injury (other than a disease) or an aggravation of an injury (other than a disease) to be an “injury” for the purposes of the boat claim or the vest claim, it must have arisen “out of, or in the course of” his employment.

    Medical evidence

20. There is much evidence before me about Mr Spence’s lumbar spine.  In addition, I heard evidence from the following medical witnesses:

    ·Dr Gautam Khurana, a consultant neurosurgeon, who first saw Mr Spence on 28 February 2014, and wrote reports on 28 February, 31 March, 25 July, 11 August (twice), 6 October and 16 December 2014, and 12 January, 10 February and 21 April 2015;

    ·Dr Ram Malhotra, a consultant neurologist, who saw Mr Spence on 20 January and 26 March 2015, and wrote reports on 26 March and 5 April 2015, and 13 August 2017;

    ·Dr Graeme Brazenor, a neurosurgeon, who saw Mr Spence on 3 June 2015 and wrote reports on 3 and 16 June, and 11 and 23 November 2015, and 19 August 2017;

    ·Dr Robin Higgs, an orthopaedic consultant, biomedical and forensic engineer, who saw Mr Spence on 17 February 2016 and wrote a report on 3 March 2016; and

    ·Dr Warwick Stening, a neurosurgeon, who saw Mr Spence on 16 September 2016 and wrote a report on 1 November 2016.

    These witnesses gave their evidence concurrently.  Each had read the others’ reports before giving evidence and (in some cases) before preparing their reports.

21. On 14 February 2013, Mr Spence had a computed tomography (CT) scan.  A radiologist reported that the CT scan showed that Mr Spence’s L3/L4, L4/L5 and L5/S1 discs were normal, but that there was “moderately advanced facet joint osteoarthritis at L4/L5”.  On 24 February 2014, Mr Spence had a magnetic resonance imaging (MRI) scan.  A different radiologist reported that the MRI scan showed that there was:

    … a broad-based disc protrusion at L5/S1 with anterior and left-sided impression upon the thecal sac and crowding of the left lateral recess with probably impingement upon the left S1 nerve root within the lateral recess.

    Because of the timing of those scans, the general consensus among the medical witnesses was that Mr Spence was suffering from degenerative changes to his lumbar spine in 2013, which had worsened by 2014.  Specifically, he suffered from pre-existing degenerative lumbar sacral spinal spondylosis, and a biphasic injury to his L5/S1 disk annulus.  As Dr Khurana explained, Mr Spence had “biphasic pathology, suggesting long-standing disease in the disk, with more likely than not some form of a more recent acute phase of that pathology”.  Dr Brazenor explained that, in this context, “biphasic” means there were “two different injuries to the same disk, to the left of the midline, at different times”.

22. At the hearing, the medical witnesses were asked questions about the extent, if any, to which the boat incident could have contributed to Mr Spence’s condition.  Dr Malhotra did not think that the boat incident had happened:

    I have read the history provided by the patient, himself, and in the history the patient has provided, he was unhinging the boat, and immediately he has eight out of 10 pain in the lower back, radiating into the left leg, which he ignored it, and he was in severe pain.  Went home.  Rested for a few hours.  His pain disappeared apparently.

    He was able to go to—get into his car, went to beach, got out of car, went to the water.  When he lifted his four year old son, his pain reoccurred.  I think that if you have an eight out of 10 pain, it happened suddenly, first ever time in your life, getting into the left leg, I would not—nobody sensible person will ignore it.  They will immediately ask for help.  And that pain will not go in four hours, that you would be fit enough to go to [the] beach and start swimming.

    The other four medical witnesses thought that Mr Spence’s condition was consistent with the boat incident having happened.  Dr Brazenor said that the CT scan, “the first scan we have, shows a deflated disk that’s either very degenerative or it’s been ruptured in the past, and there’s a residual—what looks to me like an old left paramedian bulge there”.  This, he said, was consistent with the boat incident having happened in 2003.  Dr Higgs agreed, and thought that the boat incident had caused Mr Spence’s condition, rather than having aggravated it.  Dr Khurana agreed that Mr Spence’s condition could have been caused by the history that Mr Spence gave him, which (he reported):

    … actually dates back to 2001 when [Mr Spence] was deployed on the Cocos Islands, with the AFP, and he was moving an AFP boat trailer during this deployment and had onset of low back pain and sciatica and has in fact had recurrent low back pain and proximal left sciatica to the upper left buttock over the ten years, but has none-the-less managed to carry out his various duties over his fifteen years of employment with the Australian Federal Police.[9]

    Dr Stening reported that “the pre-existing degenerative changes” probably “were caused by the incident in the Cocos Islands in 2003”.[10]  However, at the hearing he said that the boat incident (if it happened) could have made a contribution to Mr Spence’s condition, “albeit quite small”.

    [9] 31 March 2014, spelling error corrected. Dr Khurana may have been reporting that Mr Spence told him that the boat incident happened in 2001; or he may have been reporting that Mr Spence told him that it happened while he was on Cocos from 2001. See [4] and note 2 above.

    [10]    1 November 2016.

23. At the hearing, the medical witnesses were also asked questions about the extent, if any, that Mr Spence carrying heavy weights in his vest, and on his belt, contributed to his condition.  Only Dr Khurana thought that there could have been any contribution.  He confirmed what he had earlier reported: that “the aggravation is most likely as a result of wearing the 8 kg vest/belt apparatus over a period of a few years”.[11]  Dr Brazenor said: “I cannot agree that carrying a nine kilogram vest for any length of time will contribute to the L5/S1 disc rupture which Mr Spence had”.  He reported that “the spinal biomechanics of disc injury requires forces quite different from those imposed by the belt and vest”.[12]  He also reported that “it is the natural history of human aging to evolve degenerative changes in the lumbar spine (and elsewhere) and I don’t think that 9 kgs can accelerate it”.[13]  Dr Malhotra also did not think that it could have contributed.  He reported that “[t]here is no evidence that carrying 7–8 kgs of weight on [the] body is associated with low back pain”.[14]  Dr Stening did not believe that “the belt or the vest contributed to a significant degree to the development of the degenerative changes”.  Dr Higgs said that “[i]t may have been the case that the wearing of the belt would have caused discomfort from getting into and out of a vehicle and when performing other activities”.  But he agreed that it was not a “significant contributing factor to Mr Spence’s low back pathology”.

    [11]    31 March 2014.  The medical witnesses variously referred to the weight Mr Spence carried in the vest and on the belt as being 7–8, 8 or 9 kilograms.  His GP (Dr Amil Balu) referred to it as being 12 kilograms when he recorded seeing Mr Spence on 22 January 2013 (see note 21 below), and 9–10 kilograms in a report he wrote on 15 April 2014.  I do not think that anything turns on this discrepancy.  The precise weight of the vest and belt was not in issue in this review.

    [12]    8 June 2015, grammatical error in the original.

    [13]    11 November 2015.

    [14]    5 April 2015.

24. The medical witnesses were asked whether it would make any difference to their views if the weight in the vest and on the belt had been borne asymmetrically.  None of them would have changed their view.  Dr Stening said that the “tendency to go into spasm may be asymmetric, so your back pain, when you do develop it, may be on one side or the other because of that asymmetric weight distribution.”  Dr Malhotra agreed that bearing the weight asymmetrically might have aggravated Mr Spence’s symptoms, but would not have affected his pathology.

25. The medical witnesses were also asked whether, given the known condition of Mr Spence’s lumbar spine prior to January 2014, he was likely to experience an onset of symptoms in any situation where he had to stand or sit for a protracted period of time.  Dr Malhotra thought that that was quite possible.  Dr Higgs said that “[s]tanding and sitting, particularly sitting, is well known to cause an aggravation of pain that arises from the lumbar and lumbar sacral spine pathology”.  Dr Stening said:

    … with that degree of pathology that was present in 2013, that prolonged standing may well have produced symptoms in any environment, at work or otherwise.  Prolonged sitting less likely so, but not impossible.

    Dr Brazenor said that, given the CT scan in February 2013, Mr Spence:

    … would have been intolerant of prolonged sitting or standing.  That’s what happens when the disc deflates and your facet joints overlap and you’ve got a disc that’s still got a bit of a bulge in it.  But sitting or standing would not be expected, of themselves, to cause further structural progression.  I’m making the distinction between symptomatic [aggravation] and structural progression.[15]

    Only Dr Khurana went further.  He said that, with a pathology like Mr Spence’s, even an innocuous event “can cause a structural change, not just symptomatic change”.

    [15]    In the transcript of the hearing, Dr Brazenor is quoted as saying (in the last sentence of this quotation): “I’m making the distinction between symptomatic and aggregation and structural progression”.  On the audio recording of the hearing, he can be heard saying “symptomatic aggregation”.  From the context, especially given the question he was answering, I take him to have meant “symptomatic aggravation”.

    The vest claim

1. Mr Spence says that his lumbar spine condition was aggravated by him carrying heavy weights in his load-bearing vest and on his accoutrement belt in the course of his work at Canberra Airport from October 2011 until sometime in 2014.  This, he says, caused him pain in his low back (sometimes severe) and, sometimes, in his left leg.

2. For Mr Spence to be suffering a disease (and, therefore, an “injury”) for the purposes of the vest claim, any aggravation of his lumbar spine condition must have been contributed to “to a significant degree”—that is, to “a degree that is substantially more than material”—by his employment.  And, for him to have suffered an aggravation of an injury, other than a disease (and, therefore, an “injury”) for the purposes of the vest claim, that aggravation must have arisen “out of, or in the course of” his employment.[16]

   [16] See [17]–[19] above.

3. Having regard to the evidence,[17] I make the following findings on the balance of probabilities.  As at 3 March 2014 (when he made the vest claim),[18] Mr Spence suffered from pre-existing degenerative lumbar sacral spinal spondylosis (an ailment), and a biphasic injury to his L5/S1 disk annulus.  He was required to carry heavy weights in his load-bearing vest, and on his accoutrement belt, in the course of his employment.  But doing so did not contribute, to a significant degree, to any aggravation of his lumbar spine condition.  And any such aggravation did not arise out of, or in the course of, his employment.

   [17] See especially [21] and [23]–[25] above.

   [18]    The condition of Mr Spence’s lumbar spine changed later that year.  Dr Khurana performed an operation on Mr Spence’s spine on 11 August 2014: an L5 laminectomy, partial L5/51 discectomy (left side) and bilateral S1 rhizolysis.

4. In making these findings, I note the following:

   ·The preponderance of medical evidence was to the effect that wearing heavy equipment in a vest or on a belt was not likely to have caused, or aggravated, Mr Spence’s condition: the pathology of his lower back, or the symptoms he says he experienced.

   ·This is so, whether or not he had borne the weight in the vest or on the belt symmetrically or asymmetrically.

   ·All of the medical witnesses agreed that, given the known condition of Mr Spence’s lumbar spine prior to January 2014, having to stand or sit[19] for a protracted period of time could have caused an onset of symptoms—whether during the course of his employment or otherwise.

   ·At the hearing, Mr Spence said that, in January 2013, he had injured his back getting in or out of a police car, while wearing the vest and belt. That assertion was not part of the vest claim, which was a claim that wearing the vest and belt had aggravated his existing condition. I agree with Comcare that it is not open to me, in this review, to find that Mr Spence suffered an injury (as opposed to an aggravation of an injury), for the purposes of the SRC Act, getting in or out of a police car.[20]

   [19] Dr Higgs thought that sitting was more likely to cause symptoms than standing. Dr Stening thought standing more was likely, and that sitting was less likely (though not impossible). All five medical witnesses thought that sitting or standing or both could produce an onset of symptoms: see [25] above.

   [20]    I note that Mr Spence had earlier conceded as much.  On 4 August 2017, the parties signed an “agreed statement as to the Tribunal’s jurisdiction” in this review.  That included an agreement that “the Tribunal does not have jurisdiction to consider a claim for injury arising from … [Mr Spence’s] back allegedly ‘giving way’ on him bending to sit in a police car on or around 12 January 2014”.

5. It follows that Comcare is not liable to pay Mr Spence compensation in respect of the vest claim.

   Did Mr Spence injure his back unhitching a police boat?

6. Mr Spence says that his first recollection of any problem with his back was when he was stationed on Cocos:

   In approximately late 2002 or early 2003 while I was unhitching the police boat at the police station, I had trouble unlocking the hitch of the boat trailer from the towbar of the police vehicle.  I strained when I lifted the lock up, in doing so I had extreme pain at left lower back.  I was on my own at the time.

   After this incident I had the pain and difficulty standing and I went into police station and sat down for a while.  I had pain and difficulty getting into the police vehicle to go home.  I rested back in bed for afternoon.  The sharp pain to the left side returned when I was at the beach later that afternoon when I lifted up my 4-year-old son in the water.  I had to be driven to the West Island medical centre where the after-hours on-call nurse attended and I received ultra sound treatment from nurse.

   He says that he did not report the incident at the time because he did not think that he had “done any damage” to his back, and was concerned that he may have been in trouble for moving the boat on his own.

7. Mr Spence says that invoices for medical treatment he received from the medical centre on Cocos would have been received by, and paid by, the officer in command of the police station.  In a statement dated 20 August 2016, he said that he has requested records from the medical centre, and invoices from the AFP, but none had been found.  In October 2016, copies of Mr Spence’s medical records were obtained from the medical centre, under summons.  Those records indicate that Mr Spence had three consultations at the centre: all with a doctor, and all in September 2002.  There is no mention of a boat, or of any back pain.[21]  Mr Spence maintains that the boat incident happened as he says it did, and that he did visit the medical centre and was seen by a nurse.  Comcare says that Mr Spence’s “version of events … ought not to be accepted because, among other things, it is not supported by the contemporaneous clinical evidence”.

   [21]    The first clinical reference to Mr Spence experiencing back pain in late 2002 or early 2003 would seem to be a referral letter that a GP (Dr John Deery) wrote to a physiotherapist on 14 August 2008.  Dr Deery referred to Mr Spence’s “5-year history” of low back pain.  Dr Khurana, in his first report (28 February 2014) referred to Mr Spence having suffered “at least ten years” of low back pain.  The first specific clinical reference to Mr Spence experiencing back pain on Cocos would appear to be a note made by another GP (Dr Balu) whom he saw on 22 January 2013.  Mr Spence complained of “lower back and groin pain”, and Dr Balu noted “2002/3 cocos island initial back pain”.  However, none of these records mentions a boat, or otherwise suggests that Mr Spence suffered an injury in 2002 or 2003 that had any connection with his employment.

8. I find, on the balance of probabilities, that the boat incident happened as Mr Spence says it did: that he injured his lower left back unhitching a police boat from a police vehicle on Cocos in late 2002 or early 2003.  In making this finding, I note the following:

   ·I accept Mr Spence as a witness of truth.

   ·Four of the medical witnesses thought that his condition was consistent with the boat incident having happened as he says it did.  Dr Malhotra did not think that it happened.  But the reasons Dr Malhotra gave (for example, the fact that Mr Spence was able to go swimming later that day)[22] were not reasons why the boat incident could not have happened: they were reasons why the boat incident could not, in Dr Malhotra’s view, have had the effect on Mr Spence’s spine that Mr Spence claims it did.

   ·A finding that the boat incident happened does not amount to a finding that Mr Spence’s condition arose out of the boat incident, or that the boat incident contributed to an aggravation of his condition in a material degree.

   [22] See [22] above.

   The boat claim

9. I make no finding that Mr Spence’s lumbar spine condition arose out of the boat incident. And I make no finding that the boat incident contributed to an aggravation of his condition in a material degree. I do not need to make such findings, because of the view I have come to about the application of s 53 of the SRC Act.[23]

   [23] See [35]–[44] below.

   Did Mr Spence give Comcare notice of the boat incident injury under s 53?

10. Section 53 of the SRC Act relevantly provides:

    53  Notice of injury or loss of, or damage to, property

    (1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

    (a)  as soon as practicable after the employee becomes aware of the injury …

    …

    (3)Where:

    (a)  a notice purporting to be a notice referred to in this section has been given to the relevant authority;

    (b)  the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

    (c)  the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

    the notice shall be taken to have been given under this section.

    For the purposes of Mr Spence’s claims, the relevant authority is Comcare.[24]

    [24] The AFP is not a licensee under the SRC Act, so Comcare is the relevant authority: see the definitions of “licensee” and “relevant authority” in s 4(1) of the SRC Act.

11. Mr Spence says that he gave the AFP notice about the boat incident on 12 November 2003 and 1 July 2004.  On each of those dates, he completed a medical questionnaire which was part of an AFP “member’s statement of medical fitness for operation deployment/training”.[25]  I will call these the questionnaires.  In the 2003 questionnaire, he was asked: “[s]ince the time of the above medical examination”—that is, his previous examination, in January 2001—“have you had any injuries, illnesses or other medical or psychological conditions which have affected your ability to undertake operational policing duties?”  He answered: “lower back, Jan 2003 injury to lower back, had physio”.  In the 2004 questionnaire, he was asked: “[d]o you have now, have you ever had, or have you been investigated for or treated for, any medical condition that has affected, or could affect your ability to perform your operational policing tasks?”  He answered: “sore back, have had physio”.

    [25]    AFP form 880.

12. Even assuming that Mr Spence giving the completed questionnaires to the AFP could amount to him giving notice to Comcare, neither of these answers is notice of an “injury” for the purposes of the SRC Act. For the boat incident to have been an “aggravation” (and, therefore, a “disease” and an “injury”) it must have been contributed to “in a material degree” by Mr Spence’s employment. And for the boat incident to have been an “injury (other than a disease)” or an “aggravation of a physical … injury (other than a disease)” (and, therefore, an “injury”), it must have arisen “out of, or in the course of” his employment.[26] Mr Spence’s answers to the questionnaires indicated only that he had suffered an injury to his back, that it had been sore, and that he had had physiotherapy for it. He did not mention a boat. And there is nothing in the context of the questionnaires to suggest that the injury had any connection with his employment (in the sense that it had been contributed to by, or arisen out of, or in the course of, his employment)—only that it had affected, or could affect, his ability to “undertake operational policing duties” or to “perform [his] operational policing tasks”. Neither of the questionnaires was notice of an “injury” for the purposes of s 53.[27]

    [26] See [17]–[19] above.

    [27]    See Frosch v Comcare [2004] FCA 1642 at [8] per Whitlam J: “the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment” out of which, or in the course of which, the injury is said to have arisen.

13. Mr Spence says that he gave Comcare notice about the boat incident when he made the vest claim on 3 March 2014.  That was a claim of aggravation of an initial injury that he said he had suffered on Cocos in 2001.[28] Again, he did not mention a boat. And there is nothing in the claim form to suggest that the initial injury (as opposed to the alleged later aggravation) had any connection with Mr Spence’s employment. The vest claim was not notice of the boat incident as an “injury” for the purposes of s 53.

    [28] See [4] and note 2 above.

14. Mr Spence did not tell Comcare about the boat incident until he made the boat claim on 11 November 2015.[29]  But Comcare had received notice of the boat incident before that.  On 17 March 2014, Comcare asked Dr Khurana to prepare a report to assist Comcare to make a decision on the vest claim.  Dr Khurana’s report was dated 31 March 2014; presumably Comcare received it soon afterwards.  In that report, Dr Khurana gave his view that the weights that Mr Spence carried in his vest and on his belt most likely aggravated the “index event” when “he was moving an AFP boat trailer” during his deployment on Cocos.[30] This was notice of an alleged injury due to the boat incident: an alleged injury that had a connection with Mr Spence’s employment. It follows that Comcare received notice in writing of that alleged injury, for the purposes of s 53, on or soon after 31 March 2014.

    [29] See [11] above.

    [30] See [22] and [23] above.

15. But that was at least 11 years after the boat incident.  Mr Spence says that he did not become aware of the “significance” of the boat incident until he read Dr Khurana’s March 2014 report.  Yet, when Mr Spence completed the questionnaires in November 2003 and July 2004, he identified a 2003 back injury—presumably as a result of the boat incident.  He did not identify it as an injury that had any connection with his employment, but he identified it as something that affected, or could affect, his ability to do his job.  In those circumstances, I think that Mr Spence must be taken to have become aware of the significance of the boat incident no later than when he completed the first of the questionnaires (November 2003).

16. In any event, the obligation on an employee, under s 53(1)(a), is to give notice as soon as practicable after they become aware of the injury—not as soon as practicable after they become aware of its significance. Mr Spence became aware of the boat incident immediately after it happened, when he experienced “extreme pain” in his lower back.[31]  He sought medical assistance that same day.[32]  He says that the effects of the boat incident were “short lived—a few days” and that:

    Thereafter he suffered back pain from time to time of a nuisance level with the occasional (approximately yearly) flare up. He did not incur any treatment costs or suffer any loss of income from the Cocos Is injury while on Cocos Is and there was therefore no compensation for him to claim. At most there may have been a claim under section 16 [of the SRC Act] for the occasional (approximately annual) visit to the GP and some analgesics.

    In those circumstances, I think that Mr Spence must be taken to have become aware of the boat incident as an injury (for the purposes of s 53) immediately after it happened.

    [31] See [31] above. See also [22].

    [32] See [31] above.

17. The boat incident happened in late 2002 or early 2003. He became aware of it immediately after it happened. Comcare was given notice in writing of an alleged injury due to the boat incident on or soon after 31 March 2014. That notice failed to comply with the requirements of s 53(1)(a), because it was not given as soon as practicable after Mr Spence became aware of the injury.

18. Comcare says, and I accept, that it has been prejudiced by the delay of 11 years or more, relying on what it says “may be described as the presumption of finality that arises from the non-provision of early and timely notice of an alleged ‘injury’”.[33] Mr Spence has not argued that his failure to give notice as soon as practicable “resulted from the death, or absence from Australia, of a person, from ignorance [or] from a mistake”. And, for the reasons I have given above, I do not think that there is any other “reasonable cause” for the delay. It follows that s 53(3) does not apply: Mr Spence did not give notice under s 53. So, because of s 53(1), the SRC Act does not apply in relation to any injury he suffered as a result of the boat incident.

    [33]    In Saunders and Comcare [2015] AATA 111, Melick DP accepted (at [15]) Comcare’s argument that s 53 “may be regarded as, or analogous to, a limitation period”, and adopted Comcare’s list of policy rationales for the provision. Several of these rationales are specific examples of the prejudice that Comcare can suffer through a delay in notification: for example, “as time goes by, relevant evidence is likely to be lost”, and “insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period”.

19. It follows that Comcare is not liable to pay Mr Spence compensation in respect of the boat claim.

    Conclusion

    Application 2016/0914

20. Mr Spence was required to carry heavy weights in his load-bearing vest, and on his accoutrement belt, in the course of his employment by the AFP at Canberra Airport.  But doing so did not contribute, to a significant degree, to any aggravation of his lumbar spine condition.  And any such aggravation did not arise out of, or in the course of, his employment.  Comcare is not liable to pay him compensation in respect of the vest claim.

    Application 2016/2025

21. There is no evidence that Mr Spence’s lumbar disc protrusion was aggravated by physiotherapy treatment that he obtained in relation to his (then) accepted injury.  Comcare is not liable to pay him compensation in respect of the physiotherapy claim.

    Application 2016/2026

22. Mr Spence injured his lower left back unhitching a police boat from a police vehicle on Cocos in late 2002 or early 2003. He became aware of the injury immediately. Comcare was given notice in writing of the injury on or soon after 31 March 2014. That notice failed to comply with the requirements of s 53, because it was not given as soon as practicable after Mr Spence became aware of the injury. Because of s 53(1), the SRC Act does not apply in relation to any injury he suffered as a result of the boat incident. Comcare is not liable to pay him compensation in respect of the boat claim.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

........................................................................

Associate

Dated: 9 November 2017

Dates of hearing:	4–5 September 2017
Date final submissions received:	15 September 2017
Counsel for the Applicant:	Mr Allan Anforth
Solicitor for the Applicant:	Mr David Healey
Counsel for the Respondent:	Mr Peter Woulfe
Solicitor for the Respondent:	Australian Government Solicitor