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.
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.
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
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
On 3 March 2014, Mr Spence made a claim for workers’ compensation. He said that he was suffering from an “L5/S1 broad-based…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Spence and Comcare (Compensation) [2017] AATA 2161
Case
[2017] AATA 2161
Decision Date
CaseChat Overview and Summary
This matter concerned appeals by Mr Mark Spence against decisions by Comcare to revoke and affirm its determinations regarding his claims for workers' compensation. Mr Spence, an employee of the Australian Federal Police, sought compensation for a lumbar spine condition. His claims related to an alleged injury sustained while unhitching a police boat on Cocos (the boat claim), and an alleged aggravation of his condition due to carrying weights in a load-bearing vest and accoutrement belt during his employment at Canberra Airport (the vest claim). Comcare had initially accepted liability for an aggravation of Mr Spence's condition, but later revoked this decision. Mr Spence also had a claim related to physiotherapy treatment, which he did not pursue at the hearing.
The primary legal issues before the Tribunal were whether Comcare was liable to pay compensation in relation to the boat claim and the vest claim. Specifically, for the boat claim, the Tribunal had to determine if Mr Spence injured his back while unhitching the boat, if this injury arose out of or in the course of his employment, if the incident materially contributed to an aggravation of his condition, and if he provided timely written notice of the injury. For the vest claim, the Tribunal had to determine if carrying weights in his vest and belt contributed to a significant degree to an aggravation of his condition, and if such aggravation arose out of his employment.
The Tribunal considered the definitions of "injury" and "disease" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). An injury other than a disease must arise out of, or in the course of, employment. An aggravation of an injury (other than a disease) must also arise out of, or in the course of, employment. A "disease" or an aggravation of an ailment must have been contributed to, to a significant degree, by employment, with "significant degree" meaning substantially more than material. The Tribunal found that Mr Spence did not provide notice of the boat incident as soon as practicable after becoming aware of it, and that the aggravation of his condition from wearing the vest and belt did not arise out of or in the course of his employment, nor did it contribute to a significant degree.
Consequently, the Tribunal affirmed Comcare's decisions. Comcare was found not to be liable to pay compensation to Mr Spence in relation to either the boat claim or the vest claim.
Orders
Orders of the court
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Background
Background to the litigation
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 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 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. 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). 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. 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 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. 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. 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 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.
Evidence
Evidence Before The Court
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 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. 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”.
Decision
Reasons for decision
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 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. 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 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 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”.