Szabo and Comcare
[2011] AATA 114
•22 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 114
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0598
GENERAL ADMINISTRATIVE DIVISION ) Re LAZLO SZABO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date22 February 2011
PlaceSydney
Decision The Tribunal affirms the decision under review.
................[sgd]..............................
Ms G Ettinger
Senior Member
CATCHWORDS
COMPENSATION – meat inspector – lumbar spine injury followed by aggravations – legal argument regarding transfer of worker from State jurisdiction to AQIS (Federal) overseeing meat inspection since 1988 – Applicant received workers compensation re injury to L5/S1 disc prolapse in 1985 – damages payout from State of Victoria in 1992 – aggravations to vulnerable spine – 1989 aggravation subject of this claim – Respondent held that effect of 1989 aggravation was no longer current since 2008 – decision under review affirmed.
Compensation (Commonwealth Government Employees) Act 1971 s 99
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 29, 48, 118
Australian Postal Corporation v Sellick (2008) 101 ALD 245
Canute v Comcare (2006) 226 CLR 535
Re Butler and Australian Postal Corporation (AAT 8394, 27 November 1992)
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
22 February 2011 Ms G Ettinger, Senior Member
SUMMARY
1. Mr Lazlo Szabo commenced work in 1979 with the Victorian Department of Agriculture and Rural Affairs as a meat inspector. On 24 September 1985, aged 27, during the course of his work, and while bending over a mobile table pulling at a cow’s intestines, Mr Szabo suffered an injury to his back. Mr Szabo was taken to hospital by ambulance, and liability was accepted for the injury by his employer.
2. In 1986, Mr Szabo filed a claim against the State of Victoria and M C Herd Pty Ltd (Herds), in the County Court of Victoria seeking damages for the injuries he suffered. This resulted in a settlement, and payment of damages of $115,000 on 4 February 1992. There was argument between the parties at the Tribunal as to whether the settlement covered only the injury to Mr Szabo’s spine on 24 September 1985, or whether it included aggravations until the date of settlement of the claim, in particular the incident of 20 June 1989, subject of this claim.
3. Following the 1985 incident, Mr Szabo suffered several aggravations to his back, consulted many doctors, had time off work, and underwent various procedures, including a chemonucleolysis of the L5/S1 disc in May 1988, an intra-disc steroid injection in May 1990, and a spinal fusion in February 1991. He also underwent hip replacements in 2007 and 2008, which were not compensable.
4. On 30 September 1988, Mr Szabo joined the Australian Quarantine and Inspection Service, (AQIS), the Federal organisation which had by then become responsible for meat inspection nationally. He had been cleared as fit for fulltime work by Dr Roberts of the Health Department of Victoria on 3 October 1988. After some time, Mr Szabo was offered a voluntary redundancy which took effect on 8 September 1997. His compensation payments for incapacity were stopped at that time, although he continued to receive assistance with medical treatment and household services.
5. The issues before me follow in detail, but essentially relate to the claim for aggravation of pre-existing lower back degenerative disease, accepted for an aggravation of the Applicant’s back condition, which occurred on 20 June 1989, and the effects of which he says are ongoing, further necessitating medical care and expenses, and household assistance.
6. I am satisfied that the 1989 incident was an aggravation of the 1985 injury, but that there is no present liability from 13 June 2008 for compensation, and that the Applicant does not continue to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989. I am satisfied from the medical evidence that any back pain which Mr Szabo suffers is as a result of the 1985 injury for which he was compensated by the State of Victoria. Accordingly, medical expenses pursuant to sections 16 and household assistance pursuant to section 29 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) are not available to Mr Szabo.
7. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
8. The issues before the Tribunal are:
·Whether on 13 June 2008, the Applicant continues to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989;
·Whether as at 13 June 2008 the Applicant is entitled to compensation for medical expenses pursuant to section 16 of the SRC Act, and compensation for household services pursuant to section 29 of the SRC Act, which are reasonably required as a result of the incident of 20 June 1989.
9. In coming to the correct or preferable decision, I must also consider the following:
·Whether the matter before the Tribunal can be considered to be a nature and conditions claim;
·Whether the compensation received as a result of an agreement made at the County Court of Victoria on 4 February 1992 encompasses all injuries or aggravations from 1985 to the date of settlement;
·Mr Szabo’s back condition between 3 October 1988 and 20 June 1989;
RELEVANT LEGISLATION
10. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in particular section 14, (liability), section 16, (medical expenses) and section 29, (household assistance), and sections 48 and 118, as well as section 99 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
BACKGROUND
11. Mr Szabo is 52 years old. On 17 December 1979, he commenced employment with the Victorian Department of Agriculture and Rural Affairs as a meat inspector, a job for which he is formally qualified. He was located at various premises of Herds, including the Geelong abbatoir. He described the work as involving his hands, and bending and twisting.
12. On 24 September 1985, the Applicant sustained an injury to his lower back, (a disc prolapse at the L5/S1 level), whilst at Herds. He indicated that the injury occurred while he was working at the viscera table carrying out inspection duties, (twisting and bending), as the conveyor belt moved the carcasses, weighing 80 – 100 kgs, along. He said that he bent over the table to pull animal intestines towards him for inspection. As he did so, he heard a snap in his back, and felt pain from the groin to his legs. He had injured his lower back. He continued to work for about an hour, and reported the incident. Sometime later he was admitted to Geelong Hospital with back pain, where he remained for approximately a week. He also had a second admission in December 1985. Mr Szabo consulted his general practitioner, Dr Lindquist, and was referred to various specialists. He was off work for some seven to eight months.
13. Mr Szabo told me that prior to the incident of 24 September 1985 he was an outdoor type, active in sports such as water polo. He was also a scuba diving instructor.
14. Mr Szabo returned to work in May 1986, and on 4 July 1986, he commenced common law proceedings against Herds and the State of Victoria in respect of the 1985 injury. The proceedings were settled by consent, and Mr Szabo was paid $115,000 compensation on 4 February 1992. What that settlement encompassed is in dispute between the parties. I have discussed the issue in the paragraphs which follow.
15. The evidence before me indicates that Mr Szabo continued to suffer back pain between 1986 and 1988, and that he consulted various doctors. On 13 May 1988, he was admitted to Ballarat Base Hospital under the care of Mr Beetham, an orthopaedic surgeon, who performed a chemonucleolysis at the L5/S1 level on that day. Mr Szabo appeared to have made a good recovery, yet still reported pain is present most of the time still when he saw Dr Brett who examined him on behalf of the insurer in July 1988.
16. On 30 September 1988, Mr Szabo joined the Australian Quarantine and Inspection Service, (AQIS), the Federal organisation which had by then become responsible for meat inspection nationally. He had been cleared as being fit for fulltime work by Dr Roberts of the Health Department of Victoria.
17. While at work as a meat inspector on 20 June 1989, Mr Szabo suffered an incident to his back. On the Accident/Injury/Disease Report, (Accident Report), dated 20 June 1989, which Mr Szabo submitted, he indicated that an accident, (back (lower) strain), had occurred at 9:50 am on that day. He described what he was doing, as follows:
Constant lifting and bending whilst carrying out inspection duties on mutton chain (Lifting front legs to inspect under necks)
18. The condition of Mr Szabo’s back between September 1988 when he was medically certified as fit for fulltime work and joined AQIS, and 20 June 1989, is of significance, and is discussed in the paragraphs below.
19. Mr Szabo has consulted many doctors, and undergone various procedures and investigations since the date of his injury in 1985. The main contention in this matter is the role and duration of the effects of the 1989 incident, which the Respondent characterised as an aggravation, and for which liability was accepted.
20. I have noted also that Mr Szabo underwent hip replacements in 2007 and 2008, performed by Dr M Tong which were not compensable, and which contribute to his present disabilities.
21. On 4 February 1991, Mr Szabo underwent spinal fusion with instrumentation at the L5/S1 level. Dr O’Brien, the surgeon, recorded in his report dated 24 June 1991, that Mr Szabo continued to suffer pain. He stated that although radiological examination of the lumbar spine indicated that fusion of the lumbo sacral junction appeared to be progressing, he did not consider at that time, that sound fusion had been achieved. Dr O’Brien was unable to indicate the likely prognosis following the surgery.
22. Over the years there were many determinations awarding section 16 medical expenses and section 29 household assistance to Mr Szabo. However in a determination dated 13 June 2008, (affirmed on 7 January 2009), Comcare held that Mr Szabo was, on that date, presently no longer suffering from the effects of his compensable injury of 20 June 1989, and that he was accordingly not eligible for assistance pursuant to sections 16 and 29 of the Act. He has appealed that decision to this Tribunal.
23. Mr Szabo was offered a voluntary redundancy which took effect on 8 September 1997. His compensation payments for incapacity were stopped at that time, although he continued to receive assistance with medical treatment and household services until the determination of 13 June 2008.
CONSIDERATION OF THE ISSUES BEFORE THE TRIBUNAL
WHETHER THE CLAIM BEFORE THE TRIBUNAL IS A NATURE AND CONDITIONS CLAIM
24. Comcare’s determination dated 13 June 2008, as affirmed on 7 January 2009, the reviewable decision, stated relevantly:
… deny present liability for compensation in respect of aggravation of pre-existing lower back degenerative disease injury (sustained on 20 June 1989) pursuant to sections 16 and 29 of the Safety Rehabilitation and Compensation Act 1988 …
25. That is the source of the Tribunal’s jurisdiction in reviewing Mr Szabo’s claim.
26. It relates to Mr Szabo reporting that an accident had occurred during his work, at 9:50 am on 20 June 1989. He made a claim on 21 June 1989, as follows, with regard to back (lower) strain.
Inspecting Lambs
Constant Bending and Lifting
M C Herds Baccus Marsh Rd Corio
Continuous Lifting of Lamb Shanks
27. Mr Grey of counsel who appeared for Mr Szabo, argued that not only the Accident Report of 20 June 1989, but all the other Accident Reports the Applicant submitted over the period October 1988 to March 1990 when he worked for AQIS, were in terms of the nature and conditions of the work he performed. Mr Grey submitted that they all indicated repetitive bending and lifting, or as above, (for 20 June 1989), continuous lifting of heavy loads. He indicated that Mr Szabo’s employers always accepted these Accident Reports, and, at times, claims for compensation, on the basis of nature and conditions of work.
·accident report dated 20 June 1989, constant lifting & bending whilst carrying out inspection duties on mutton chain;
·accident report dated 24 October 1989, constant lifting & twisting … repetitive work;
·accident report dated 25 October 1989, constant lifting, bending & twisting whilst lifting lamb shanks to inspect under necks for contamination. Repetitive action;
·accident report dated 8 February 1990, continuous bending across belt;
·accident report dated 13 February 1990, repetitive action due to the lifting of hocks …aggravation of existing injury.
28. Mr Grey also referred to the medical notes of Dr Lindquist of 21 June 1989 in relation to Mr Szabo, which recorded that: bending and twisting at work ++ - insidious recurrence of LB pain (3/12) – some radiation into L leg. Mr Grey submitted that Dr Lindquist also referred to the nature and conditions of Mr Szabo’s work.
29. Mr Grey emphasised that Comcare accepted liability for claims which clearly indicated that the nature and conditions of the Applicant’s work were the cause of his condition over many years. He also emphasised that several of the doctors Mr Szabo consulted described his back condition as resulting from the nature and conditions of his work. Mr Grey submitted that having so accepted liability for a period of many years, it would be unconscionable of Comcare to now claim that the incident of 20 June 1989 was an isolated incident, for which it now denied present liability for compensation from 13 June 2008, in respect of aggravation of pre-existing lower back degenerative disease injury (sustained on 20 June 1989), pursuant to sections 16 and 29 of the SRC Act.
30. Mr Grey submitted that given the effluxion of time, and dearth of Comcare documents, it was not possible to reconstruct what discussions Mr Szabo had with his employers and Comcare in relation to the Accident Reports and claims he made at the relevant times. What was clear he said, was that Mr Szabo was not asked to reformulate his claims in terms of nature and conditions. He submitted that: no matter what they called it, they treated it as a nature and conditions claim because that is how they described it.
31. Mr Richards of counsel who appeared for Comcare argued that the Tribunal had no jurisdiction to review a nature and conditions claim because no such determination had been made by Comcare, and there was hence no reviewable decision regarding nature and conditions, and, accordingly, no jurisdiction.
32. Mr Richards referred to [53, 56 and 57] of Bennett J’s decision in Australian Postal Corporation v Sellick (2008) 101 ALD 245 in support of his argument that because the Respondent had not had the opportunity of reviewing a claim for nature and conditions, the Tribunal had no jurisdiction to entertain such a claim by Mr Szabo. He referred to Bennett J’s statements as follows from Sellick:
53 In Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147, Madgwick J recognised that different descriptions can be given of the one injury and said at [18] that ‘a broad, generous and practical interpretation’ should be made to recognise the understanding of the lay person making the claim and different levels of medical advice and to understand whether the lay person completing it was asserting a different injury to that notified. The Tribunal said that, in applying the principles in Abrahams, it was satisfied that the proper interpretation of the claim made by MrSellick was for ‘an injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula’. Accordingly, the Tribunal determined that although Mr Sellick did not then suffer the effects of the soft tissue injury to the right shoulder, it could proceed to consider whether he continued to suffer the effects of the aggravation of the degenerative condition of his spine and the sprain of the interspinous ligament. Based on the views of Drs Griffith and Cassar, the Tribunal found that his duties are likely to continue to aggravate those conditions and to make the conditions symptomatic.
…
56 The Tribunal accepted that the effects of the injury to the right shoulder had resolved by the date of its decision. While it did not specify whether it had resolved by the date of the reviewable decision, it is implicit from the reasoning that the Tribunal accepted that it had resolved by that time. The basis for the Tribunal’s decision was that the use of the V-sort machine also caused the additional conditions. The effects of the additional conditions continued to be present at the date of the decision and, therefore, necessarily present at the date of the reviewable decision. While the Tribunal noted at [55] that Mr Sellick’s description of his symptoms was referable to one or both of the additional conditions, it accepted on the basis of the medical evidence as a whole that he suffered from both injuries (at [59]). Contrary to the submissions of Australia Post, the Tribunal’s reasons sufficiently explain why it accepted both diagnoses.
57 No accident report or claim was specifically made for the additional conditions as is required by ss 53 and 54 of the SRC Act. If the additional conditions had not been the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62 and an application to the Tribunal under s 64 of the SRC Act, the Tribunal had no power or jurisdiction to make the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical certificates provided in support of the shoulder claim referred to complaints referable to the upper back and not related to the shoulder. A medical assessment by Dr Chew of July 2004 noted that Mr Sellick suffered from mid thoracic spine pain in October 2002 with no specific injury to account for the onset of his pain. Dr Chew’s diagnosis of his then current condition was of soft tissue injury to his mid thoracic spine while carrying out his postal delivery duties, superimposed on constitutional degenerative changes in his thoracic spine. Australia Post accepts that the reviewable decision addressed whether the problems were due to an underlying constitutional disorder not caused, aggravated or accelerated by his employment. However, a mere reference to the spine in some of the medical certificates is, Australia Post says, insufficient compliance with the SRC Act.
33. I was mindful that, as Mr Grey submitted, Mr Szabo’s Accident Reports and claims all referred to the nature and conditions of his employment, and that the Respondent accepted liability for the aggravation of 20 June 1989 in the terms published above.
34. Mr Grey submitted that the Applicant was relying on the medical reports before the Tribunal, in particular the report of Dr Evans. He submitted that even Dr Ashwell, (who examined the Applicant on behalf of the Respondent), said that the heavy work contributed to the pain, the time off work, and ultimately led to Mr Szabo needing to have surgery. Mr Grey submitted that it was due to the nature and conditions of the work Mr Szabo performed. He referred to contribution of the workplace in regards to the lead up to surgery, relying on the previous test as enunciated in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
35. I have noted also that various doctors, whom Mr Szabo consulted opined, as submitted by Mr Grey, that the nature and conditions of the heavy duties in his job contributed to his condition. By way of example, I have included the following.
36. Dr O’Brien stated:
I believe the original disc injury dates from 1985 but his symptoms have been subsequently aggravated by persistent employment and there is no doubt this has been the factor in the patient’s persistent symptoms since April of 1988.
In my opinion this does not represent a progression of a pre existing disease nor the natural history of degeneration of the lumbo sacral motion segment.
37. Dr James Downes, an orthopaedic surgeon, diagnosed the Applicant with degenerative L5/S1 disc causing low back pain and right-sided sciatica for which he underwent an L5/S1 spinal fusion on 4 February 1991. In respect of causation, Dr Downes stated that the Applicant’s occupation has aggravated his pre-existing degeneration. Dr Downes considered that it was probable the Applicant’s lower back symptoms were related to his employment.
38. Dr Evans, whose report was Exhibit A1, considered that Mr Szabo did not suffer a specific injury or aggravation on 20 June 1989 which caused the aggravation, but (it) was rather the result of the nature and conditions of his work. He opined: I don’t think there was a specific aggravation on 20 June 1989. Dr Evans conceded in a later report that Mr Szabo suffered an aggravation sometime in the early half of 1989 due to the nature and conditions of his work, but, from the history he was given, not specifically on 20 June 1989.
39. In 2008 Dr Ashwell opined that the Applicant’s current condition was more likely a result of pre-existing degenerative disc disease in the lumbosacral spine, rather than due to any aggravation that occurred in June 1989. He considered the incident of 20 June 1989 to have been a temporary aggravation.
40. However, regardless of the doctors’ opinions, they are not lawyers nor decision makers in this area, and were expressing a medical opinion. I am mindful they have expressed those opinions in relation to the work Mr Szabo carried out. I have noted their views for the sake of completeness.
41. In conclusion, I prefer the Respondent’s argument. Mr Szabo’s claims were not nature and conditions claims even though they may appear to have been worded in that way. No accident report or claim was specifically made for the nature and conditions of work as is required by the legislation. There was no appropriate determination by Comcare, and no reviewable decision relating to nature and conditions of work against which Mr Szabo could appeal to this Tribunal. Accordingly this Tribunal cannot therefore, pursuant to Bennett J in Sellick, make a decision on nature and conditions.
42. I moved then to consider the second jurisdictional issue which was raised at the hearing.
WHETHER THE COMPENSATION RECEIVED BY MR SZABO AS A RESULT OF AN AGREEMENT AT THE COUNTY COURT OF VICTORIA ON 4 FEBRUARY 1992 ENCOMPASSES ALL INJURIES OR AGGRAVATIONS FROM 1985 TO THE DATE OF SETTLEMENT
43. As previously noted, Mr Szabo filed a claim against the State of Victoria and Herds, in the County Court of Victoria in 1986, seeking damages for the injuries he suffered on 24 September 1985. This resulted in a settlement, and payment of damages of $115,000 on 4 February 1992.
Whether Mr Szabo’s (Commonwealth) employer was informed of the claim he made against the State of Victoria and Herds
44. Mr Richards submitted on behalf of the Respondent that Mr Szabo did not inform his employer of the 1992 settlement. He also asserted that the settlement covered not only the 1985 injury, but all subsequent aggravations to the date of settlement, intending that this therefore encompass the claim for the aggravation of 20 June 1989.
45. Mr Grey submitted however, that Mr Szabo had always disclosed the claim to his employers, and submitted that Mr Szabo entered the number of his claim on his Accident Reports back in 1989. In that regard he also referred me to T20/31, a letter of ‘Personnel’ to Mr Szabo dated 5 April 1990 in which Mr Szabo was asked to work at Corio Bay Freezers in order to avoid any conflict of interest arising out of his claim against Herds. He was instructed in the letter, to accordingly remain there until such time as the legal proceedings are resolved or another event changes your circumstances.
46. Mr Richards also drew my attention to a letter Mr Szabo had written to the AQIS Claims Manager dated 20 August 1996 (T69/108) in which he explained the settlement, and his take on it, as well as his injuries, stating:
… As I stated to you over the phone … (20/8/96). The Common Law Case against Herds Pty Ltd was in regards to the original back injury, not this claim. … When AQUIS (sic) took over meat inspection in Victoria, I had a medical and was cleared to go over to AQIS. This [1989] injury is an aggravation of the lower back injury which resulted in me having to have an L5 S1 spinal fusion (sic) ...
47. Mr Richards submitted that if the effects of the 1989 aggravation continued up until the 1992 settlement, then Mr Szabo received compensation for it. He also argued, in the alternative, that if the settlement did not include the 20 June 1989 aggravation, then it had in any case resolved after the two weeks or so Mr Szabo had off work after 20 June 1989, and the effects of the aggravation had certainly resolved by 1992.
48. I am satisfied that the correspondence referred to above, at T20/31, indicates Mr Szabo’s employers knew about the claim he had made against Herds on before 5 April 1990, because the letter from his personnel manager to him on that date, mentioned the claim. However I am not satisfied that the employer necessarily knew the outcome of the claim. The correspondence at T-documents, pages 94, 95, 96, 108 and 110, written during 1996, mentions the legal proceedings in Mr Szabo’s rehabilitation file, but indicates that the outcome was not known at that time.
Discussion of various sections of the SRC and 1971 Act
49. Mr Richards submitted on behalf of the Respondent that Mr Szabo recovered damages in 1992 for his entire L5/S1 injury, which included the aggravation of 20 June 1989. He said that brought it squarely under section 48(4) of the SRC Act, and that section 48(8) had no relevance. He also referred to section 118 of the SRC Act and the decisions of Re Butler and Australian Postal Corporation (AAT 8394, 27 November 1992), and Canute v Comcare (2006) 226 CLR 535, in connection with the rights of workers previously compensated for injuries pursuant to State legislation, to claim for further workers compensation or damages from the Commonwealth.
50. Mr Richards also referred to section 135 of the Victorian Accident Compensation Act 1985, which was, he submitted, the equivalent of section 48(4) of the SRC Act. He submitted that in relation to the 1985 injury, Mr Szabo had been at work in the State of Victoria, and had been compensated for a workplace injury with workers’ compensation payments under the Victorian Act.
51. Mr Richards submitted there were no exclusions in the Deed of Settlement, and that it accordingly included the 1989 aggravation, (which, according to the medical evidence, was a temporary aggravation, he submitted), and indeed all aggravations to the date of settlement in 1992. He argued in the alternative that in any case, the medical evidence indicated the aggravation of 20 June 1989 was a minor one, the effects of which would have ceased long before the settlement in 1992. Mr Richards also submitted that the medical evidence overwhelmingly supported a finding that the Applicant’s ongoing symptoms in 2008 related to the injury in 1985, and not to any aggravation in 1989.
52. Mr Richards submitted, relying on section 118 of the SRC Act (double benefits), that Mr Szabo had received State workers’ compensation, and that he had therefore received compensation for his L5/S1 injury. He argued that pursuant to section 48(4) of the SRC Act Mr Szabo had been compensated for the 1985 injury, and any aggravations, including the temporary aggravation of 20 June 1989, up until payment in 1992. He also referred as authority to the case of Canute.
53. Mr Grey also referred to the Deed of Settlement, noting in particular that Item 3. headed The Events stated as follows:
An accident which occurred on or about 24th September, 1985 in the course of the Releasor’s employment with the Firstnamed Defendant at the Secondnamed Defendant’s premises as a result of which the Releasor was injured and suffered loss and damage.
54. Mr Grey submitted that it was curious that the Respondent could submit there was a way of relating events (the incident of 20 June 1989), which occurred some three years after the claim was lodged (1986). Mr Grey noted that paragraph 12 of the Statement of Claim read as follows:
PARTICULARS OF INJURIES
Injuries to the back and spine;
disc damage with neurological involvement;
development or aggravation of disc degeneration in the back and spine;
anxiety and depression;
pain and shock.
55. Mr Grey submitted that what the lawyers were saying in the Statement of Claim was that the injury in 1985 may have caused development of disc degeneration, or that the injury may have aggravated disc degeneration that was already present. He submitted that back in 1986, they could not have been referring to an aggravation in 1989 which had not yet occurred.
56. I am satisfied from the wording of both the Deed (1992), and the date of the Statement of Claim (1986), that the Claim and the Settlement concerned only the 1985 injury. I prefer the Applicant’s argument in that regard, noting that it would not be reasonable to include an incident which occurred in 1989, three years after the Claim was made.
57. However, I need also to consider the argument regarding Mr Szabo’s rights to claim further compensation. Mr Grey submitted that the issues raised by the Respondent regarding double dipping had not been raised until the hearing at the Tribunal, and that it was unconscionable to suddenly confront Mr Szabo with the issue after his claims had been accepted for so many years. Mr Grey submitted that Mr Szabo had compensable back problems arising out of the 1989 aggravation, and that he was simply claiming for medical expenses and some household assistance.
58. Mr Grey argued that because the Statement of Claim Mr Szabo filed in Victoria was in 1986, before the commencement of the SRC Act on 1 December 1988, pursuant to section 48(8) of the SRC Act, section 48(4) did not apply. Rather, he submitted, it was section 99 of the 1971 Act which applied (compensation payable where damages recovered). Section 99, he argued, did not disentitle injured workers to compensation after receiving damages in respect of the same injury. It simply limited certain compensation, and acted as a recovery/offset section, which, he submitted does not concern this Tribunal on this occasion. Mr Grey submitted that section 48 of the SRC Act was irrelevant to Mr Szabo’s claim before this Tribunal.
59. Mr Grey, in reply to Mr Richards, also raised the issue of section 118 of the SRC Act (assignment, set-off or attachment of compensation). He made submissions about what constituted workers compensation in contrast to payment of damages. Mr Grey argued that section 118 has no application in this case because Mr Szabo’s settlement in 1992 was not workers compensation (even though he had no doubt been paid workers compensation previously). He argued that section 118 was a debt recovery provision, and irrelevant to these proceedings.
60. I am mindful of Mr Grey’s argument that the Respondent had not raised the issue of recovery or offset since correspondence in 1996, and that it had only recently been raised in the context of this hearing.
61. I have not reproduced sections 48, 99 or 118 here as I find the argument of little relevance to the decisions I have to make. I have noted them above for the sake of completeness. However as I am satisfied Mr Szabo was compensated only for his 1985 injury in 1992, I am considering the aggravation of 20 June 1989 as a separate injury in the paragraphs which follow.
MR SZABO’S BACK CONDITION BETWEEN 3 OCTOBER 1988 AND 20 JUNE 1989
62. In order to better understand the situation on 20 June 1989, I have first considered Mr Szabo’s back condition for the period when he was cleared to return to fulltime work in October 1988, until the accident on 20 June 1989 which he recorded as occurring at 9:50 am on that day. He claimed compensation for back (lower) strain.
63. I have already noted above that in April 1988, AQIS assumed responsibilities for meat inspection nationally. Mr Szabo, who had been off work for seven to eight months following the 1985 injury, joined AQIS on 30 September 1988. He was certified fit for duties by Dr Roberts of the Victorian Health Department on 3 October 1988, and commenced fulltime work. Dr Roberts wrote: Mr Szabo has made an excellent recovery from his back problem and is fit to resume and continue normal duties.
64. Mr Szabo said that the work he was doing when he went back to work was heavy work, and involved inspecting 600 lambs and sheep a day as they came past on a conveyor, lifting their heads, and looking under their necks.
65. His evidence in relation to how he was, and what he was suffering in relation to his back when he commenced with AQIS in October 1988 was not consistent. Before me, he said in his oral evidence that he was pain free when he went back to work in October 1988, but that after working for some time, he suffered further pain. Mr Grey submitted on Mr Szabo’s behalf that he was vulnerable but not incapacitated, and emphasised that he was certified for full duties when he went back to work in October 1988.
66. However, Mr Szabo stated, when asked by Mr Richards about taking leave between October 1988 and June 1989, that although he did not take formal sick leave, he used days of recreational leave and rostered days off to deal with his back pain during the period late 1988 to June 1989. I noted he also entered an Accident Report on 7 February 1989. Mr Richards submitted that following the two weeks or so off after the accident of 20 June 1989, Mr Szabo worked for three and a half months without taking time off, indicating that the incident of 20 June 1989 had been a minor aggravation.
67. As to Mr Szabo’s back condition when he returned to work in September/October 1988; I noted that Dr Lindquist, Mr Szabo’s general practitioner reported to Comcare on 23 May 1990. He referred to Mr Szabo’s original L5/S1 injury which occurred in September 1985, stating that nothwithstanding persistence of low back pain and sciatica, Mr Szabo managed to return to work. He stated that a CT scan report revealed a large central posterior bulge of the L5/S1 disc with a prominent right lateral bulge causing pressure upon the right S1 nerve root. He noted that during the period from 1985 to 1987, the Applicant had repeated exacerbations of acute lower back pain, which involved some time off work, and that Mr Beetham, an orthopaedic surgeon, had performed a chemonucleolysis of the L5/S1 disc in May 1988.
68. Dr Lindquist was of the opinion that the Applicant returned to work on 30 September 1988, and remained relatively symptom free until June 1989, when he had a further acute episode of pain due to bending and twisting at work. It seems that Mr Szabo did not consult Dr Lindquist from August 1988 to June 1989.
69. Mr Richards drew my attention to other medical reports which dealt with Mr Szabo’s condition over the period 1988 to June 1989. I have dealt with a number in the paragraphs which follow.
· Dr O’Brien, a surgeon, reported on 24 June 1991 after having seen Mr Szabo on 9 August 1990. He recorded that in early 1988 Mr Szabo became aware of increasing pain associated with pain radiating into his legs. He also mentioned that this led to further specialist referral, and Mr Szabo undergoing intradiscal chemonucleolysis in May 1988, with a return to work in late 1988. Dr O’Brien noted that following the return to work Mr Szabo continued to be aware of intermittent low back pain frequently associated with pain referred to the left leg. He reported that Mr Szabo told him he had several periods off work, and in approximately February 1990, an exacerbation of symptoms necessitated an epidural injection which barely assisted.
· I noted from the sick leave records at T88/161(30 November 1988 to 22 May 1990), that Mr Szabo had 11 days of sick leave for his back injury following the aggravation of 20 June 1989, and a number of single days off until he had 16 days from 26 October 1989, some three months from 13 February 1990, followed by a cessation of work from 22 May 1990. Mr Szabo’s evidence was that he took leave other than official sick leave over the period, as he had a young family to support, and had to keep on working.
· Dr Calvert, a surgeon, examined Mr Szabo on 9 June 1989, only a short time before the incident of 20 June 1989, and again in April 1990. He stated that Mr Szabo reported constant pain in the lower back and both buttocks, worse on the left … at times he had mild pain down the right leg. Dr Calvert’s opinion was that Mr Szabo’s symptoms and examination findings were consistent with the CT abnormalities, indicating a persisting L5.S1 disc lesion associated with degenerative changes.
· Dr Roth, a surgeon, reported on an examination of Mr Szabo in October 1990. Dr Roth referred to Mr Szabo returning to work in September 1988, and reported Mr Szabo telling him that he worked for six or seven months but during this period of time he took a lot of time off from work and he used his recreation leave and rostered days off and holidays … He stated that he was off work for approximately 2½ to 3 months during this six month period. He stated that his pains became worse, and in May/June 1989 he was off work for three weeks.
· Mr Henderson, a surgeon, reported on an examination of Mr Szabo on 13 April 1989, again only a short time before the incident of 20 June 1989. Mr Henderson indicated that he is really much the same, now, as he was nearly 2½ years ago, [1986 – 1989], with constant lumbo-sacral region low back ache; and fairly constant sciatica down the back of his left leg ... he is nevertheless, still working, doing his full duties … Mr Henderson reported that when he asked Mr Szabo how he was, the reply was: Well, I’ve still got - just continual pain, all the time! … The pain is there all the time…. Some days I don’t have the sciatic pain; others – some days – it’s just unbearable.
· Mr Downie, also a surgeon, wrote a report dated 29 June 1989 of his examination of Mr Szabo on 23 June 1989, three days after the aggravation of 20 June 1989. Mr Downie noted that he had seen Mr Szabo previously in August 1986 and January 1988, but he did not mention the aggravation of 20 June 1989. He commented that the result of chemonucleolysis in May 1988 had been successful, that Mr Szabo had returned to work in late 1988, and that he had worked continuously from then until mid-1989. Mr Downie noted that since Mr Szabo’s return to work, he had had some recurrence of his back symptoms, but that they had not been as severe as previously. Mr Richards submitted that Dr Downie had not mentioned the incident of 20 June 1989 because it had not been of sufficient significance to be noted separately.
70. I am satisfied with Mr Szabo’s evidence to the Tribunal that he continued to suffer back pain after the injury of 24 September 1985. He reported back pain and leg pain to various doctors from 1985 through to his return to fulltime work in September/October 1988 and, as noted above, through to June 1989.
71. As for the period October 1988 to June 1989; Mr Szabo’s evidence was in summary, that he suffered various levels of pain, but had to keep working as he had a young family to support. That he suffered pain from October 1988, and in the period leading up to June 1989, was corroborated by, amongst others, the reports of Dr Calvert, Dr Roth, Mr Henderson and Mr Downie.
72. Then on 20 June 1989, Mr Szabo suffered an incident at work, which he reported in the Accident Report form lodged on 20 June 1989. He described the incident as follows: Constant lifting & bending whilst carrying out inspection duties on mutton chain (lifting front legs to inspect under necks). He reported that the accident occurred at 9:50 am, and was for back (lower) strain. He said that on 21 June 1989, the day after the incident of 20 June 1989, he consulted Dr Lindquist who ordered bedrest and anti-inflammatory medication.
73. The incident was characterised by the Respondent as an aggravation of pre-existing lower back degenerative disease, and on 3 August 1989, Comcare accepted liability pursuant to section 14 of the SRC Act, with the date of injury being 20 June 1989, which occurred as a result of stooping to pick up sheep carcasses. As already noted, Comcare decided on 13 June 2008 that there was no present liability for compensation, that is the Applicant does not continue to suffer from the effects of his aggravation of lower back degenerative disease sustained on 20 June 1989.
74. Mr Szabo claims that the aggravation he suffered to his back in the incident of 20 June 1989 from which he has not recovered, was the reason for his spinal fusion, and is the source of his present requirements for section 16 medical assistance, and section 29 household services (on and from 13 June 2008).
75. I am satisfied from Mr Szabo’s evidence and the medical evidence I have referred to above, that notwithstanding Dr Roberts’ certification of Mr Szabo as being fit for fulltime work in October 1988, he continued to suffer back pain at varying levels between that date, and the incident of 20 June 1989. I accept that he continued working as much as he could because he had a young family to support.
76. I have noted that the majority of the doctors involved with Mr Szabo’s back problem over the years, including Drs Lindquist, O’Brien, Downie and Ashwell, have opined that the reports of incidents involving Mr Szabo’s back following the injury of 1985, were aggravations of that injury to his L5/S1 area.
77. I am mindful also that following the two week period after 20 June 1989 which Mr Szabo had off, he worked without submitting a further accident report until 24 October 1989, some three to four months later. That supports the argument that the incident of 20 June 1989 was a relatively minor aggravation of Mr Szabo’s back to which he had suffered a disc prolapse at L5/S1 in 1985.
78. I accept the opinions of the doctors mentioned above, and on the basis of those and the Respondent’s acceptance of the claim of 20 June 1989, and find that the incident of 20 June 1989 was a relatively minor aggravation of his pre-existing lower back degenerative disease, that is, an injury pursuant to the SRC Act.
79. What remains is to consider whether the effects of the aggravation of 20 June 1989 continued at 13 June 2008.
WHETHER ON 13 JUNE 2008, THE APPLICANT CONTINUES TO SUFFER FROM THE EFFECTS OF HIS AGGRAVATION OF PRE-EXISTING LOWER BACK DEGENERATIVE DISEASE INJURY SUSTAINED ON 20 JUNE 1989
80. I have already noted above that Mr Szabo, having suffered an injury, a disc prolapse of his L5/S1 on 24 September 1985, then suffered a number of aggravations after he joined AQIS in September/October 1988, and returned to work fulltime. The incident of particular interest in this matter is an aggravation which Mr Szabo says occurred on 20 June 1989, and for which he submitted an Accident Report on that day. That is not in dispute.
81. I also accept from his evidence that shortly afterwards, he consulted Dr Lindquist, who had been his general practitioner since 1980. Dr Lindquist certified on 21 June 1989 that the Applicant was unfit for work from 21 June 1989 to 5 July 1989 in respect of recurrent lumbar back pain (aggravation of pre-existing condition), and in a further medical certificate Dr Lindquist also certified that the Applicant would be fit to resume normal duties on 10 July 1989. He had taken approximately two weeks of leave in connection with the incident of 20 June 1989.
82. As also noted above, liability was accepted for the incident pursuant to section 14 of the SRC Act for aggravation of pre-existing lower back degenerative disease by the Respondent on 3 August 1989. However by a determination of 13 June 2008, affirmed on 7 January 2009, Comcare found that Mr Szabo did not continue to suffer from the effects of his compensable injury. That is what Mr Szabo is appealing, and what I have to decide.
83. As regards further aggravations; I noted that Mr Szabo filled in other Accident Reports, on 24 October 1989 and 25 October 1989, and others on 8 February 1990 and 13 February 1990. He said that he was advised by the AQIS officer to put it down to aggravation of his back condition. The reports made were similar to the one on 20 June 1989, and related to twisting, lifting and repetitive movements at work.
84. I am mindful that Mr Szabo last worked in early 1990, and that he accepted a voluntary redundancy which took effect from 9 September 1997.
85. I note that following the redundancy, and between 1997 and 1999, Mr Szabo became a firearms instructor, and ran safety awareness courses. He told me that he was able to deal with the theory, and work for only four consecutive hours at any one time. He also indicated that the demand for his services only arose approximately once a month, and besides he found after 1999 that he could not continue that work because of his back condition. He has been on disability support pension since 1999/2000.
86. Mr Szabo says that he continues to suffer from the effects of the aggravation of 20 June 1989, and that he requires section 16 medical expenses, and section 29 household assistance. He asserts that he requires the assistance which had previously been available to him which included gardening services, domestic assistance, physical therapy and massage.
87. There was a plethora of medical evidence in relation to the effects of the 1989 aggravation. I have referred to the most relevant medical reports.
· On 23 May 1990, Dr Lindquist reported to Comcare. He referred to Mr Szabo’s original L5/S1 injury that occurred in September 1985, and concluded that Mr Szabo sustained a significant lower back injury which has caused him recurrent pain and loss of function over the past 3 years. He will undoubtedly have an ongoing problem as a result of his initial injury and associated with this there will be a degree of permanent disability. I am mindful that Dr Lindquist did not make comment in that report, in regard to the particular incident of 20 June 1989, except to indicate that Mr Szabo was again referred to Mr Beetham for an intra-disc steroid injection in May 1990. He, of course, mentioned the incident of 20 June 1989 in his clinical notes, in particular because he certified Mr Szabo as unfit for work for approximately two weeks following that incident.
· Mr Downie, a general surgeon, reviewed Mr Szabo on 23 June 1989, three days after the incident of 20 June 1989. He did not mention any incident of 20 June 1989 in his report, and stated:
Since his return to work (late 1988), there has been some recurrence of his back symptoms but they have not been as severe as previously, and some recurrence in minor sciatic symptoms in his left leg.
…
From time to time when symptoms are more severe, he takes non steriodal anti-inflammatory drugs, but most of the time manages to get by on simple aspirin based analgesics.
· Dr Beetham, an orthopaedic surgeon, reviewed Mr Szabo in early October 1988. Dr Beetham referred to the disc prolapse Mr Szabo suffered in 1985, and to the chemonucleolysis Mr Szabo underwent in May 1988. He did not mention the incident of 20 June 1989, but did opine that Mr Szabo’s prognosis was not definite at that time. He opined that Mr Szabo’s lumbar spine must be regarded as permanently more vulnerable than normal to further strain or injury… Dr Beetham reviewed Mr Szabo again on 20 July 1989, a month after the incident of 20 June 1989, noting: He said he was now working as a meat inspector and he was managing this. About two weeks previously he suffered recent low back pain with radiation into the left buttock and down the thigh to behind the knee. Fortunately the pain had improved with medication provided by Dr Lindquist.
· Dr O’Brien, an orthopaedic surgeon, reported in October 1990 that the Applicant was referred to him with a long history of low back pain dating back to 1985 when he injured his back at work. Dr O’Brien noted that an MRI investigation revealed an abnormality at the L4/L5 disc level with a degree of canal stenosis at the L5/S1 level. Dr O’Brien considered that the Applicant suffered from lumbo sacral disc disruption with subsequent degeneration. He recommended that the Applicant undergo a spinal fusion involving instrumentation of the spine which he subsequently performed on 4 February 1991. However, after the first three months, when Dr O’Brien reviewed Mr Szabo, he was uncertain of the future prognosis. Dr O’Brien stated:
I believe the original disc injury dates from 1985 but his symptoms have been subsequently aggravated by persistent employment and there is no doubt this has been the factor in the patient’s persistent symptoms since April of 1988.
In my opinion this does not represent a progression of a pre-existing disease nor the natural history of degeneration of the lumbo sacral motion segment.
· A/Professor McPhee considered (in 1996), that the Applicant suffered from longstanding degenerative disc disease involving the lumbosacral disc. A/Professor McPhee indicated that the advanced nature of the degeneration suggested that it was possibly present at the time of the injury in 1985, and the injury had merely aggravated a pre-existing pathology. A/Professor McPhee stated:
With regard to your specific inquiries the claimant furnished no evidence of relationship between his current back condition and his employment with AQIS. He did not describe any injury in 1989. He categorically stated that his symptoms were ongoing and progressive following the injury in 1985. Any alleged aggravation in 1989 would appear to be of little relevance.
· In a report dated 5 October 1994, Dr Downes, an orthopaedic surgeon, diagnosed the Applicant with degenerative L5/S1 disc causing low back pain and right-sided sciatica. He noted that Mr Szabo had an L5/S1 spinal fusion on 4 February 1991. Dr Downes stated that there is a clear history of aggravation by the lifting demands of his work reproducing the symptoms at intervals between 1985 and 1991 at the time of surgery.
· Dr J Ashwell, was of the opinion that Mr Szabo had longstanding degenerative disc disease at the L5/S1 level. He opined, on the basis of 1987 X-rays which he saw, that the changes were most likely present prior to the Applicant’s injury in 1985, because he said, the X-rays showed degenerative changes in Mr Szabo’s then 29 year old lumbo-sacral spine. Nonetheless, Dr Ashwell accepted that the Applicant remained severely disabled as a result of the 1985 injury. I have already noted above that Dr Ashwell did not at first, take a history which included the 1989 aggravation, but that when he was informed liability had been accepted for the aggravation of 20 June 1989, he opined that the Applicant’s current condition (in 2008), was more likely a result of pre-existing degenerative disc disease in the lumbosacral spine rather than due to any aggravation that occurred in June 1989. He considered the incident of 20 June 1989 to have been a temporary aggravation. He was also of the view that the Applicant would be in his current condition regardless of any aggravation that might have occurred in 1989.
· Dr Ashwell commented on Dr Tong’s medical notes of 15 February 2007 which included comment that X-rays of both Mr Szabo’s hips showed well established osteoarthritic changes in both hip joints, with asymmetrical loss of articular cartilage. He opined that examination of Mr Szabo’s hips showed evidence of ongoing symptoms from the hip replacements which would be causing some of the ongoing restrictions of the Applicant’s activities.
· Dr Aalders, a general practitioner who had been treating Mr Szabo since November 2006, provided a report dated 20 March 2008 in response to Dr Ashwell’s report. Dr Aalders asserted that it was a matter of record that Comcare had accepted the Applicant’s condition as a result of an injury on 20 June 1989. Dr Aalders indicated that although the Applicant had undergone a spinal fusion at the L5/S1 level on 4 January 1991 in an effort to reduce his pain, it had been of limited benefit, as the Applicant did not return to work in a full capacity. Dr Aalders also asserted in a supplementary report dated 4 December 2008 that the Applicant did not have a temporary aggravation, given that he had spinal surgery in 1991 in order to control his pain. Consequently, he opined that the Applicant continues to suffer from the effects of his injuries in 1985 and 1989, and that he would have been better off had the injuries not occurred.
· Dr Evans, in a report dated 8 July 2009 considered that Mr Szabo did not suffer a specific injury or aggravation on 20 June 1989 which caused the aggravation, but (it) was rather the result of the nature and conditions of his work. He opined: I don’t think there was a specific aggravation on 20 June 1989. Dr Evans accepted that Mr Szabo suffered an injury some time in 1985, and that he suffered an aggravation sometime in the early half of 1989 due to the nature and conditions of his work, but not specifically on 20 June 1989. In respect of diagnosis, Dr Evans stated:
It is apparent from the history given at today’s interview that the L5/S1 disc protrusion occurred as a result of the specific episode occurring in 1985. It is also apparent from Mr Szabo’s recollections and from the report of Dr Roberts of 3 October 1988, that he made a good recovery by that time, becoming, according to his recollection, completely pain free. Then, in the first half of 1989, whilst again carrying out his normal work, involving a lot of bending and twisting of his back, he experienced a recurrence of the back and leg pain. It is clear from the above history that, though he had suffered a significant injury to his back in 1985, he had recovered clinically. His already damaged but asymptomatic back was then aggravated and rendered symptomatic by the nature and conditions of his work during the first half of 1989.
88. Mr Grey argued as previously, that the claim before the Tribunal should be characterised as a nature and conditions claim as that is how it had been made by the Applicant, and accepted by the Respondent for all the years from 1989 to 2008. He submitted that the effects of the incident of 1989 were ongoing, and referred in particular to Drs Lindquist and Evans in support of his submissions. Mr Grey submitted that Dr Lindquist recorded Mr Szabo had been suffering back pain for some three months before he saw him in June 1989. He also referred me to Dr O’Brien’s report who recorded that Mr Szabo suffered pain following his return to work in October 1988, and then opined as follows:
I believe the original disc injury dates from 1985 but his symptoms have been subsequently aggravated by persistent employment and there is no doubt this has been the factor in the patient’s persistent symptoms since April of 1988.
89. Mr Grey submitted that Dr Roth on whom the Respondent was relying got his timescale wrong, but agreed that many of the doctors had made some errors in taking Mr Szabo’s history.
90. Mr Grey submitted that the report of Dr Evans, which I have quoted above, was the most relevant to Mr Szabo’s condition, namely that Mr Szabo continues to suffer from aggravation of his back condition which was caused due to the nature and conditions of his work during the first half of 1989. He submitted also that it was the nature and conditions of his work which resulted in Mr Szabo having to undergo spinal fusion surgery in 1991.
91. Mr Grey was critical of Dr Ashwell’s opinions, emphasising that Dr Ashwell had not been supplied with, or further requested relevant documents which had not been made available to him.
92. Mr Richards noted that following the incident of 20 June 1989, Mr Szabo had approximately two weeks off, and then returned to his full duties. He then had a further three weeks off in October/November 1989, as well as an occasional other day off. Mr Richards noted that Mr Szabo then went back to work for some three and a half months, before he finally ceased work. Mr Richards submitted therefore, relying on the medical evidence of Drs Downie and Beetham, that the aggravation of 20 June 1989 was nothing more than a minor aggravation, and certainly not continuing in 2008.
93. In coming to a decision I have relied on the history of the injuries and the pain Mr Szabo reported, and the medical evidence. I am mindful that certain of the doctors (O’Brien, and Evans amongst others), have used terminology which appears to be referring to nature and conditions. There is no argument that the work Mr Szabo was doing was heavy work, but in terms of the legislation, a nature and conditions claim is quite different from the one we are deciding here. I have already decided above that this is not a nature and conditions claim and cannot be decided as such.
94. I prefer the evidence of Dr O’Brien, A/Professor McPhee, Dr Downes and Dr Ashwell, who considered that the injury of 24 September 1985 which caused the L5/S1 disc prolapse was a major event, and that further incidents causing back and leg pain, including the incident of 20 June 1989 have been short term aggravations to Mr Szabo’s degenerative back over a period of years. I rely also on the reports of Drs Downie and Beetham to which I have referred above, who examined the Applicant a short time after 20 June 1989, and did not find that incident of significance.
95. I have noted that Mr Szabo had approximately two weeks off work from 20 June 1989, and that he went back to work for three and a half months before suffering any further aggravations. That satisfies me that the aggravation of 20 June 1989 had resolved after a short time. Nevertheless, Mr Szabo had a vulnerable back as a result of the 1985 injury. He underwent spinal fusion in 1991, and although Mr Szabo attributes having to undergo the surgery to the 20 June 1989 aggravation, I accept from the medical evidence that the basis for the surgery was the condition and the pain arising out of the disc prolapse in 1985, rather than the aggravation of 1989.
96. I am satisfied from the medical evidence that there is no present liability from 13 June 2008 for compensation, and that the Applicant does not continue to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989. I accept that the back pain he suffers is as a result of the significant injury he suffered on 24 September 1985 for which he has been compensated.
WHETHER AS AT 13 JUNE 2008 THE APPLICANT IS ENTITLED TO COMPENSATION FOR MEDICAL EXPENSES PURSUANT TO SECTION 16 OF THE SRC ACT, AND COMPENSATION FOR HOUSEHOLD SERVICES PURSUANT TO SECTION 29 OF THE SRC ACT, WHICH ARE REASONABLY REQUIRED AS A RESULT OF THE INCIDENT OF 20 JUNE 1989
97. Mr Szabo gave evidence about his house, of 420 square metres, where he lives with his wife, and of his ability to cope there. He discussed his physical limitations, and the assistance he requires, which includes approximately six hours domestic assistance (as referred to in Ms Collins’ report), two or three hours gardening assistance per week, physiotherapy, hydrotherapy and massage. He had been receiving this type of assistance as well as section 16 medical expenses prior to 13 June 2008.
98. Two occupational therapists, both very well qualified to give assessments in this kind of matter, Ms Miller-Ravagnani for the Applicant, and Ms Collins for the Respondent, gave oral evidence at the Tribunal. Their reports were Exhibits A2 (2010) and R3 (2009) respectively.
99. Ms Miller-Ravagnani stated that her focus was on function and not aetiology. She commented that Mr Szabo has chronic pain in his lower back and both legs, and has become more restricted in movement over the past 25 years due to pain, limited use and weight gain. She commented also on his mood which was depressed, and opined that he had a hopeless outlook. She suggested a number of aids for the home, grab bars in particular, and approximately six hours of assistance per week, encompassing shopping, housework and garden maintenance.
100. Ms Collins’ assessment of Mr Szabo’s limitations were similar to those considered suitable by Ms Miller-Ravagnani. She too suggested certain aids of the home, and six hours of assistance with domestic duties on an ongoing basis, as the correct figure.
101. Mr Peter Farrell provided a Home Assessment Report in 2006 subsequent to performing an assessment of the Applicant’s home. Mr Farrell recorded the Applicant’s account that it took him between 10 to 11 hours a week to perform a list of household duties prior to his injury (see PT223/396). Mr Farrell also considered that the Applicant’s reported symptoms appeared to be consistent with the diagnosis and history of his condition. Mr Farrell stated that the Applicant would require ongoing household assistance given the Applicant’s reported condition.
102. Dr Ashwell noted that the Applicant is able to do light housework, and that his wife and granddaughter assist. He noted that Mr Szabo does not do any mowing or gardening, and that he requires assistance to put on his shoes and socks as he has difficulty reaching his feet. Dr Ashwell agreed with the occupational therapist’s assessment that Mr Szabo requires certain aids in his house, but opined that those requirements are due to his lumbosacral degenerative disc disease, lumbar spine fusion, bilateral hip replacements and the fact that he is overweight. I do not believe that he suffers from the effects of an aggravation of pre-existing lower back degenerative disease arising out of or in the course of his employment with the Australian Quarantine and Inspection Service on the 20 June 1989.
103. Mr Grey submitted that due to Mr Szabo’s continuing incapacity, he requires assistance with medical expenses pursuant to section 16 of the SRC Act, and household assistance pursuant to section 29. He submitted that the occupational therapists were more qualified than Dr Ashwell to consider section 29 matters, noting however that both occupational therapists agreed six hours per week assistance was the appropriate level.
104. It was on the basis of Dr Ashwell’s report that in a Determination in 2008, a Delegate of Comcare denied liability for household services and attendant care services and medical expenses on the grounds that the Applicant no longer suffered the effects of the compensable injury of 20 June 1989.
105. As I have found that Mr Szabo did not, at 13 June 2008, presently suffer the effects of the aggravation of 20 June 1989, he is not entitled to compensation for medical expenses pursuant to section 16 of the SRC Act or household services pursuant to section 29 of the SRC Act. In saying that I am mindful that Mr Szabo suffers pain and certain disability arising from his 1985 injury for which he has been compensated, and from his non compensable hip replacements.
CONCLUSIONS
106. As noted above, I have come to the following conclusions.
Whether the claim before the Tribunal can be considered to be a nature and conditions claim
107. No formal application by Mr Szabo, nor a determination by the Respondent regarding an injury arising out of the nature and conditions of work was made. Accordingly there is no reviewable decision regarding nature and conditions of work from which Mr Szabo can, or has, appealed. There is no jurisdiction in this Tribunal to entertain a claim for nature and conditions (Sellick).
Whether the compensation received by Mr Szabo as a result of an agreement at the County Court of Victoria on 4 February 1992 encompasses all injuries or aggravations from 1985 to the date of settlement
108. I am satisfied that in the settlement he received in 1992, Mr Szabo was compensated only for his 1985 injury.
Mr Szabo’s back condition between 3 October 1988 and 20 June 1989
109. I am satisfied from the evidence before me, including the medical evidence, and that of the Applicant himself, that notwithstanding Mr Szabo returned to work after being certified medically fit for fulltime work in October 1988, he was never pain free. He continued to suffer pain in his back between 3 October 1988 and the aggravation of 20 June 1989, and had time off utilising personal leave entitlements. I am satisfied that he worked for approximately three and a half months following the incident of 20 June 1989 until he finally ceased work in early 1990.
Whether on 13 June 2008, the Applicant continues to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989
110. I accept from the medical evidence, and Mr Szabo’s evidence that he continues to suffer pain in his back. However I am satisfied that he does not presently, since 13 June 2008, continue to suffer the effects of the aggravation sustained on 20 June 1989 to his pre-existing degenerative lower back condition. Any back pain relates to the 1985 injury for which he has been compensated.
Whether as at 13 June 2008 the Applicant is entitled to compensation for medical expenses pursuant to section 16 of the SRC Act, and compensation for household services pursuant to section 29 of the SRC Act, which are reasonably required as a result of the incident of 20 June 1989
111. I have found that although Mr Szabo may require section 16 and section 29 assistance, he does not presently suffer the effects of the aggravation of 20 June 1989. Accordingly he is not eligible for compensation pursuant to sections 16 and 29 of the SRC Act.
DECISION
112. The Tribunal affirms the decision under review.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ..............[sgd]..................................................................
AssociateDates of Hearing 21 and 22 October 2010
Date of Decision 22 February 2011
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Rishworth Dodd & Co.
Counsel for the Respondent Mr D Richards
Solicitor for the Respondent Dibbs Barker
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