Tasmania v Rattigan
[2021] TASSC 28
•6 July 2021
[2021] TASSC 28
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Rattigan [2021] TASSC 28
PARTIES: STATE OF TASMANIA
v
RATTIGAN, David
FILE NO: 2208/2020
JUDGMENT
APPEALED FROM: The State of Tasmania (Department of Health) v R [2020] TASWRCT 29
DELIVERED ON: 6 July 2021
DELIVERED AT: Launceston
HEARING DATE: 16 November 2020
JUDGMENT OF: Pearce J
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Preliminary requirements – Interim payments – Reasonably arguable case for employer – Error in point of law to find arguable case not established.
Workers Rehabilitation and Compensation Act 1988 (Tas), s 81A.
Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354; Walker v J & A Freeman Building Services [2006] TASSC 90, 16 Tas R 87; St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43; Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41, applied.
Aust Dig Workers Compensation [303]
REPRESENTATION:
Counsel:
Appellant: O Robinson
Respondent: B Hilliard
Solicitors:
Appellant: Office of the Solicitor General
Respondent: Hall Payne Lawyers
Judgment Number: [2021] TASSC 28
Number of paragraphs: 28
Serial No 28/2021
File No 2208/2020
STATE OF TASMANIA v DAVID RATTIGAN
REASONS FOR JUDGMENT PEARCE J
6 July 2021
This is an appeal against a decision of the Workers Compensation and Rehabilitation Tribunal (the Tribunal), constituted by Commissioner Wilkins. The respondent, who I will refer to as the worker, is employed by the State Department of Health as a radiation therapist at a hospital. In May 2020 he made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 (the Act), alleging an injury to his right hand. The employer disputed liability to pay compensation by way of weekly payments and benefits under the Act, and referred the claim to the Tribunal: s 81A. On 28 August 2020 the Tribunal found that a reasonably arguable case did not exist concerning the liability of the employer to pay weekly payments and benefits, and ordered that compensation should be paid to the worker: The State of Tasmania v R [2020] TASWRCT 29.
In this appeal, the appellant, to whom I will refer as the employer, contends that the learned Commissioner was wrong to make that determination and those orders because she overlooked or misconstrued important evidence. The employer argues that the material before the Tribunal compelled the conclusion that it did demonstrate a reasonably arguable case about its liability to pay compensation. For the following reasons that submission should be accepted and the appeal allowed.
The relevant provisions of the Act have been summarised in many decisions including Walker v J & A Freeman Building Services [2006] TASSC 90, 16 Tas R 87, and more recently by Brett J in Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41 at [5]-[7], and Blow CJ in State of Tasmania v Stirling [2021] TASSC 25 at [4]. What amounts to a "reasonably arguable case" was considered by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43 at [10]. His Honour concluded that "a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected".
The claim and the evidence before the Tribunal
The claim for compensation was made in a claim form given to the employer, according to its terms, on 11 May 2020. It is stamped by the employer as having been received on 19 May 2020. The form provides for details to be given of the worker and the injury. Under the heading "Incident & Worker's Injury Details", the worker wrote that the injury or condition occurred on 13 April 2020. The answer to the enquiry "If different, date injury or condition first noticed" was left blank. The form asks that the worker "Give details of what happened, how it happened and what was involved." The worker wrote "RSI [right] hand from using mouse and keyboard." In answer to the question, "What was the most serious type of injury or disease caused by this occurrence?", the worker wrote "Pain on using mouse and typing". In answer to the question, "Is your injury or condition solely due to this occurrence?" the worker answered, "Yes".
The claim form was accompanied by a medical certificate completed by Dr Roger Mulcahy, the worker's general practitioner. Although the medical certificate is somewhat confusingly dated 29 May 2020, it is stamped as having been received by the employer on 19 May 2020 and refers to an examination of the worker on 15 May 2020. Dr Mulcahy's description of the worker's presenting symptoms includes the following:
"Has had pain in R hand index and middle fingers for about 12 months. Significantly worse over the last month. Was moved into an area with a lot more computer work. Appears to be repetitive use of the mouse … Peaks towards end of working day or after. Recovers overnight and best in morning."
Dr Mulcahy expressed his diagnosis as provisional and said: "overuse injury of right hand. Provisional diagnosis of flexor tendonitis." Where the form of certificate asks "The abovenamed worker stated the condition to be caused by", Dr Mulcahy wrote: "a disease, symptoms of which became evident on 15/05/19 (approximately) but exacerbation over the last 4 weeks". Dr Mulcahy then referred to it as a "new condition" and stated that the worker had "No past similar problems in his life." He recommended that the worker continue to work "full pre-injury hours" but with "reduced computer work."
On receipt of the claim, the worker was referred by the employer's insurer for examination by a consultant occupational physician, Dr David Ruttenberg. Dr Ruttenberg assessed the worker on 24 June 2020 by means of a video conference with the assistance of an allied health professional. He prepared a report dated 9 July 2020. The report describes:
· the worker presenting with "a history of symptoms of gradual onset, and over a year's duration, initially affecting his right 2nd and 3rd fingers" associated with "left and right clicking using a mouse in his right hand";
· the symptoms "were initially of a relapsing nature";
· symptoms present "both in his home and work environments, and if he used a laptop at home";
· symptoms having been "present for a period of about a year" but which had "worsened the month prior to the assessment, when he moved into a different area with a lot more computer related work." Also, that there "has been a one-year history of pain affecting the right hand index and middle fingers, worsening over the preceding month", related to "increased and repetitive use of the computer mouse".
After setting out the result of the physical examination Dr Ruttenberg stated that, in his opinion and subject to the possible result of an ultrasound investigation, there was "no evidence currently of physical injury". His diagnosis was of "non-specific pain affecting the index and middle fingers of the right hand and occasionally the right wrist" and "whilst it is possible that there might have been tendonitis, an ultrasound has not been carried out and there are no clinical findings today that support this being the diagnosis, if it was ever correct." Dr Ruttenberg, when asked how to categorise the symptoms, stated that there was no evidence that the worker suffered an injury which was not a disease, but that "it appears that he has suffered a disease." When asked whether the worker's employment was the major or most significant contributing factor to the disease, Dr Ruttenberg stated:
"[The worker's] symptoms started while working for his employer. My difficulty, is that I cannot confirm what pathology if any is present relating to the fingers. It is recognised, that one can have pain symptoms in the absence of physical and mechanical derangement. I could not state that his employment was the cause of these symptoms, noting that pain symptoms are common in working and recreational environments."
Dr Ruttenberg's report continued to state his opinion that the worker's symptom complex "does not appear to be an acceleration, exacerbation or recurrence of a pre-existing symptom complex." He then stated:
"At this stage, there is a temporal association with him utilising a mouse and performing administrative-based tasks. I cannot confirm however, that he has suffered a work caused physical injury. Essentially he has pain symptoms associated with mouse clicking."
A further certificate was written by Dr Mulcahy following an examination of the worker on 13 July 2020. He records the worker as having continuing symptoms of pain in his wrist and fingers but that there had been improvement with a change in workstation and rotation to a new area. He repeated a provisional diagnosis of flexor tendonitis, certified that the worker required further treatment but was "fit for his pre-injury hours and full duties." By the time of a further certificate on 31 July 2020 Dr Mulcahy had ultrasound and blood test reports. He reported "fluid in multiple interphalangeal joints, no synovitis and normal blood tests." He repeated a diagnosis of overuse in injury of the right hand but still referred to it as provisional. He recommended a continuation of full time duties but a referral to a physiotherapist.
The other certificate before the Tribunal was written by Dr Mulcahy on 31 July 2020. It refers again to ultrasound findings. It certified the worker as requiring further treatment but as fit for pre-injury duties. He was referred to a hand physiotherapist.
The employer's notice of dispute
The employer gave notice to the worker that it disputed its obligation to pay compensation to him and referred the dispute to the Tribunal under s 81A. The two grounds of the dispute were that:
"i the worker did not suffer an injury arising out of or in the course of employment (s 25(1)(a)); and
ii the worker did not in any employment suffer an injury being a disease to which employment to a substantial degree (s 25(1)(b))."
The Tribunal decision
The Tribunal determined that Dr Ruttenberg was "undoubtedly correct" that there was no evidence that the worker had suffered what is commonly referred to as an injury in the primary sense, that is, an injury not being a disease. Such an injury is described in Military Rehabilitation and Compensation Commission v May [2016] HCA 19, 257 CLR 468 as involving a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The question thus became whether the worker had suffered an injury which was a disease, s 25(1)(b), or a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease as per the definition of injury in s 3(1). In either case, for the worker to be entitled to compensation it was necessary to demonstrate that employment was the major or most significant contributing factor to that disease or to that recurrence, aggravation, acceleration, exacerbation or deterioration. Section 81A(2)(b) requires an employer's referral to be accompanied by all of the evidentiary material on which the employer intends to rely at the hearing. The employer bears the onus of proof of establishing a reasonably arguable case: Skilled Group Limited v Anning [2015] TASSC 18; GIO Australia Limited v Lovell [2000] TASSC 75 at [13]; Lamont v MRD Supermarkets Pty Ltd [2016] TASSC 16. Before the Tribunal, the substance of the submission put by counsel for the employer was that it was reasonably arguable, based on the contents of Dr Ruttenberg's report, that the required causal relationship was not present. That is, the employer contended, relying on the decision of Evans J in St Helens Oysters Pty Ltd v Coatsworth (above), that it had identified "deficiencies or weaknesses in the claim" which meant that, following a contested hearing, it may be rejected.
The Tribunal accepted that the employer had shown an arguable case "that there is an absence of evidence to show that the worker's disease was caused in circumstances necessary for the substantiation of a claim ...". [Original emphasis.] That proposition involved acceptance that there were proper grounds for asserting that the worker did not suffer an injury which was a disease, that is, an "ailment, disorder, defect, or morbid condition" to which the worker's employment was the major or most significant factor contributing to the disease. However, the Tribunal then turned to the issue of whether the employer had established an arguable case that the worker had not suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of an existing injury or disease to which the worker's employment was the major or most significant contributing factor.
In her written reasons for decision the learned Commissioner stated, at [33]:
"The employer disputed the claim for compensation on the bases that it said the worker had suffered neither an injury that is a disease, nor an injury that is not a disease, in compensable circumstances. The grounds for dispute did not address the third 'pathway to liability' – that is, whether the worker had suffered an injury that was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease, where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration."
With respect to the Commissioner, that statement was not correct. The grounds of dispute in the employer's notice to the worker referred to both pars (a) and (b) of s 25(1). Those two paragraphs of s 25(1) describe the bases on which the liability to pay compensation may arise. The so-called "third pathway to liability" referred to in the Tribunal reasons by reference to the explanation given by Brett J in Bradshaw v Tasmania Networks Pty Ltd (above), and which arises from the extended definition of injury in s 3(1), can only arise through one of those paragraphs of s 25. The reference to those two paragraphs necessarily raised the issue of the application of the extended definition of injury. The Commissioner proceeded, in any event, to at least partially consider whether the employer had demonstrated an arguable case in respect to an injury within the extended definition.
In his report, when asked his opinion about the extended definition of injury, Dr Ruttenberg stated that the worker's "symptom complex does not appear to be an acceleration, exacerbation or recurrence of a pre-existing symptom complex." The Commissioner noted the absence in that answer of any reference to whether the worker may have suffered an "aggravation" or "deterioration". The Commissioner then concluded by reference to Dr Ruttenberg's familiarity with the provisions of the legislation that the failure to refer to those two aspects of the extended definition was unlikely to be inadvertent. The Commissioner referred to the evidence that the worker had been suffering from "non-specific pain symptoms in the second and third fingers of the right hand, and sometimes the right wrist, for at least twelve months", and there had been a worsening of symptoms following a move to a role which required more computer and mouse work. The Commissioner posed for herself the question of whether the employer had demonstrated that, on the material before the Tribunal, there was a reasonable chance that the worker would be unable to discharge the onus of proving his claim at a disputed hearing, and reasoned that:
"In the absence of any opinion expressed by Dr Ruttenberg to exclude aggravation or deterioration of the worker's pre-existing disease by the mousing activities at work, I cannot see how there can be any argument that such a reasonable chance exists."
It is that conclusion which is the subject of this appeal.
The grounds of appeal
Section 63 of the Act provides for a right of appeal to this Court if any party to a proceeding before the Tribunal is aggrieved by a determination or order of the Tribunal, but the right is confined to appeals "in point of law".
The first ground of appeal asserts that, on the facts as found, the only conclusion open to the Tribunal was that the employer had a reasonably arguable case in resistance to the respondent's claim for compensation. This ground can only succeed if the material before the learned Commissioner necessarily led to a conclusion that a reasonably arguable case did exist. Only then would the Commissioner's determination and order amount to error in point of law: St Helens Oysters Pty Ltd v Coatsworth (above) at [15]; Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 per Crawford J at [22]-[28].
The second ground asserts that the Commissioner erred in law in stating that there was no evidence excluding aggravation or deterioration of the worker's pre-existing disease, when such evidence was before the Tribunal and the Commissioner failed to take it into account.
The third ground asserts an error of law in that the "Commissioner … failed to take into account the evidence of Dr Ruttenberg that there was 'no confirmation of a work caused symptom complex.'"
I would not allow grounds two or three. Whilst I think there is some merit in the contention that there was some evidence about whether the worker had suffered an aggravation or deterioration of a pre-existing disease, and whether any aggravation or deterioration had the necessary causative relationship with the employment to make it compensable, I do not think it can be said that that the Commissioner failed to take any such evidence into account. She did not say that she was not taking it into account, and I regard it as unlikely that the evidence was completely overlooked. Any error was one of fact and not of law.
However, in my opinion, the first ground of appeal is made out. With respect to the learned Commissioner, her inference that Dr Ruttenberg had intentionally omitted reference in his opinion to aggravation or deterioration of an existing injury or disease when addressing the extended definition of injury, was unduly technical and unjustified. His answer is to be considered in context. He had already expressed his opinion that the worker had suffered an injury which was a disease, without resort to the extended definition, but that he could not state that the employment was the cause of the symptoms. Thus, when he was asked by the employer's insurer to express an opinion "if he was of the view that the injury constitutes an injury which is a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease", the question did not arise and no inference should have been drawn from his incomplete answer. To me it is much more likely that the absence of a reference to aggravation or deterioration in the answer was inadvertent and arose because, in the context of his earlier answers, they were not issues he was required to address.
In any event, Dr Ruttenberg was expressly asked his opinion about the causative relationship between the worker's symptoms and his employment, both in the context of disease and in the context of the extended definition. He gave the answers quoted earlier in these reasons. As to disease he said that he "could not state that his employment was the cause of these symptoms, noting that pain symptoms are common in working and recreational environments." As to the extended definition, the substance of his answer was that although there was a temporal association between the symptoms and use of a mouse at work, he "cannot confirm however that he has a work caused physical injury. Essentially he has pain symptoms associated with mouse clicking."
The Tribunal concluded that it was reasonably arguable that the worker had not suffered an injury in the usual sense, and did not suffer an injury which was a disease with the required causal relationship to employment. In light of those conclusions, the remaining questions to be addressed by the Tribunal were whether the employer had reasonable arguments about whether the worker had a pre-existing disease, whether there had been an aggravation or acceleration of that pre-existing disease, and whether the employment was the major or most significant contributing factor to that aggravation or acceleration. The terms recurrence, aggravation, acceleration, exacerbation and deterioration, when applied to a pre-existing injury or disease, mean something which results in an increase or intensification of symptoms: Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626 per Kitto J at 634, Long v Kmart Australia Ltd [2016] TASSC 6, 25 Tas R 237. In that context, there are parts of Dr Ruttenberg's report which, for me at least, are difficult to reconcile. He referred to the symptoms, presumably the new symptoms, as a "new condition" and that there had been "no history of any pre-existing conditions", but also referred to a history of the worker having a "history of symptoms of gradual onset, and over a year's duration." The history accepted by Dr Ruttenberg, and which was consistent with the history recited in Dr Mulcahy's certificates, reflect the worker as having suffered, for about a year, from an "ailment, disorder, defect, or morbid condition" and thus a disease, the symptoms of which had intensified or become worse over the period immediately prior to the claim. If that were so then there could have been no argument of substance that it was not an injury within the terms of the extended definition. It was the worsened symptoms which were the subject of the claim.
It was, however, the remaining question which was of obvious importance. That was whether there was a reasonable argument that the worker's employment was not the major or most significant contributing factor to that aggravation or deterioration. Without such a causal connection the injury was not compensable. Because of the learned Commissioner's erroneous conclusion that the employer had not discharged the onus by reason of the failure to address the possibility of an aggravation or deterioration, she did not consider the causation issue in any detail. A recurrence, aggravation, acceleration, exacerbation and deterioration may arise as a result of external stimuli, or as a result of natural progression of the condition or symptoms: Cook v Midpart Pty Ltd [2008] NSWCA 151, 6 DDCR 316 at [41]-[49]. Even allowing for some uncertainty about the meaning of some of Dr Ruttenberg's answers, his expression of opinion that there was an absence of evidence of causal connection between the worker's symptoms and his employment was sufficient to compel the conclusion that the employer had demonstrated an arguable case that the worker's employment was not the major or most significant contributing factor to an aggravation or deterioration. The same conclusion was reached by the Commissioner on the basis that the worker had suffered an injury which was a disease, and apparently in relation to the other substantives referred to in the extended definition: see Long v Kmart Australia Ltd (above) at [42] and following. For those reasons I am satisfied that the Commissioner made an error of law. The evidence necessarily led to the conclusion that an arguable case had been demonstrated.
Result and orders
I am satisfied that the first ground of appeal is made out. I would allow the appeal. I have in mind setting aside the Tribunal order and substituting an order under s 81A(3)(c) and (d) of the Act that compensation and the cost of benefits not be paid by the employer. However, having regard to the lapse of time since the Tribunal order, I will hear the parties before proceeding further.
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