Thelian and Comcare (Compensation)
[2015] AATA 943
•7 December 2015
Thelian and Comcare (Compensation) [2015] AATA 943 (7 December 2015)
Division
GENERAL DIVISION
File Number(s)
2014/3554
Re
Richard Thelian
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 7 December 2015 Place Sydney The reviewable decision, being the decision of Comcare made 29 April 2014 denying liability to compensate Mr Thelian for back and abdominal pain, mental state (anxiety), sleep disturbance and kidney stone, is affirmed.
......................[SGD]..................................................
J W Constance
Deputy PresidentCATCHWORDS
COMPENSATION - injury - disease - ailment - whether the disease was contributed to, to a significant degree, by his employment – whether aggravation of disease contributed to, to a significant degree, by his employment – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B, 14(1)
CASES
Comcare v Paul Mooi [1996] FCA 1587
REASONS FOR DECISION
Deputy President J W Constance
7 December 2015
A. INTRODUCTION
In September 2013 Mr Thelian made a claim in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of injuries which he claimed he suffered during 7 September 2013 (the day of the 2013 Federal election) and the early hours of the following morning. At that time he was working for the Australian Electoral Commission.
By a decision made on 29 April 2014 Comcare denied liability to compensate him. Mr Thelian has applied to the Tribunal to review the decision.
For the reasons which follow the decision under review will be affirmed.
B. BACKGROUND
Mr Thelian is 49 years old.
In 2011 Mr Thelian was diagnosed as suffering rheumatoid arthritis. He has not been employed since 2011, apart from his employment on 7 and 8 September 2013.
From 7am on 7 September 2013 until 1.30 am the following day, Mr Thelian was employed by the Australian Electoral Commission as a polling assistant. His duties included setting up the polling booth in a hall at Fairfield West Public School, marking off the names of voters, distributing ballot papers and counting votes at the conclusion of polling.
On 17 September 2013 Mr Thelian completed a claim for workers’ compensation.[1] He claimed that he had suffered the following injuries whilst employed by the Commission:
·“acute mid to lower back pain;
·abdominal pain;
·mental state/ anxiety;
·small kidney stone detected (CT scan);
·not sleeping nights – pass out during day 1 – 3 hours.” [2]
[1] Exhibit R1 p.23.
[2] Exhibit R1 p.26.
Mr Thelian claimed that his whole body had been affected by dehydration, but he did not seek compensation for this as a separate injury. He relied on his suffering dehydration as causing, or aggravating, the development of a kidney stone (renal calculus).
C. RELEVANT LEGISLATION
Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In subsection 5A(1) injury is defined to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
In subsection 5B(1) disease is defined to mean:
(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.
Ailment “means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.[3]
[3] Subsection 4(1).
Significant degree “means a degree that is substantially more than material.”[4]
[4] Subsection 5B(3).
D. ISSUES
In respect of each of the conditions which Mr Thelian claims was caused by his employment it is necessary to decide:
(1) has Mr Thelian suffered an “injury” as defined in section 5A of the Act;
(2) if so, is Comcare liable to pay compensation in respect of the injury in accordance with section 14 of the Act?
E. EVIDENCE
Mr Thelian’s evidence
Mr Thelian arrived at the polling booth just before 7am on 7 September 2013. He commenced work at 7am and continued working until 1:30am the following morning.
Between 7 am and 8 am, Mr Thelian helped set up the booth. During polling hours (8 am to 6 pm) he sat at a table marking off voters’ names and distributing ballot papers. He says that the chair which was provided for his use was designed for a child and was smaller than a normal chair. He did not notice that the chair on which he was sitting appeared to be smaller than usual until he was counting votes later that day and draping the voting papers over the back of it.
From 6 pm to 1:30 am the following morning, Mr Thelian was engaged in counting votes. He says that the Senate voting papers, which were extremely long, were placed on the floor for counting. This required him to sit or kneel on the floor.
During the time he was working, Mr Thelian was allowed only two 15 minute breaks from the tasks he was undertaking. During these times he had something to eat and drink.
The room in which he was working was hot and by 9:30am Mr Thelian was sweating profusely. At about 1pm he began to feel pain in his back and in his stomach. From about 9am onwards Mr Thelian was unable to pass urine, despite his attempts to do so.
After he finished work, Mr Thelian went home. He had something to eat and drink and took his usual medication. He felt fatigued, he was sweating, he felt sick in his stomach and generally felt very unwell. He went to bed for a short time and then attended the Fairfield Hospital at about 5am.
Fairfield Hospital notes[5]
[5] Exhibit R1 p.7.
The Admission Summary records that Mr Thelian reported that he had had no meal breaks and poor ergonomic conditions when he was working the night before and that he then got myalgia, muscle spasms and stiffness in the morning. It is also recorded that on examination he was “not ill looking”. He was administered fluids intravenously.
Evidence of Professor Dickson, Director Ambulatory Care, Liverpool Hospital
Professor Dickson provided several reports which appear in exhibit R1 and as exhibits A2-A6 inclusive. He also gave evidence.
Mr Thelian has been a patient of Professor Dickson since the late 1990s. During this time Professor Dickson has treated Mr Thelian in respect of his mild autism and ongoing muscular pain. Mr Thelian has an unusual condition known as hyperCKemia which has been present since 1998. It is a condition of an above normal level of creatine kinase (“CK”), an enzyme produced by the muscles. It is associated with complaints of unusual muscular pain. Mr Thelian’s pattern of creatine kinase elevation has been consistent over the years.
When Mr Thelian attended Fairfield Hospital on 8 September 2013 complaining of muscle soreness, his CK was unusually high for him. In the opinion of Professor Dickson this confirmed that Mr Thelian had been engaged in some unaccustomed form of muscle activity.
Mr Thelian consulted Professor Dickson on 9 September 2013. On the same day Professor Dickson reported to the General Practice Unit:
He complains of severe muscle soreness since working for the Electoral Commission ……
His abdomen shows no masses. He has mild generalised muscle tenderness. there are no signs of dehydration.
Given his sedentary lifestyle, severe muscle soreness and dehydration after a long shift in hot and less than optimal conditions ergonomically is not surprising. His symptoms should resolve over the next week.[6]
[6] Exhibit R1 p.14.
In his report dated 30 October 2013[7] Professor Dickson provided the following diagnosis of Mr Thelian's condition:
Acute severe muscle soreness from unusual physical activity, and acute transient dehydration, probably contributing to renal calculus formation. These conditions induced acute anxiety on a background of chronic low grade anxiety. He has taken longer to recover than I initially predicted, probably because of his underlying muscle disorder and rheumatoid arthritis.
Professor Dickson stated further:
His acute to lower mid-back pain,[sic] abdominal pain, mental state disorder and small kidney stone represent exacerbation of pre-existing conditions as a result of the unusual demands placed upon him during his work on 7 September 2013.
[7] Exhibit R1 p.76.
In the opinion of Professor Dickson, consistent mildly elevated CK is consistent with a non-psychological cause of muscular pain. The rise in the level of CK and the level of mild renal impairment was entirely consistent with Mr Thelian's initial complaint that he became hot and stressed and experienced back pain while at work. However there is a psychological element present in Mr Thelian's case as he is very angry with the fact that, in his opinion, he was not taken seriously concerning his complaints.
Prior to September 2013 Mr Thelian had consulted Professor Dickson on a number of occasions concerning pain in his back at various levels, all of which appeared to be of a muscular nature. In the opinion of Professor Dickson his complaint of pain immediately after 7 September 2013 was of pain which was different from that he normally experienced. Professor Dickson had not noted a sudden spike in Mr Thelian's CK level previously. This spike was well above the level he normally experiences, which is consistent with a mild muscle injury.
Professor Dickson was asked in cross-examination as to his understanding of the mechanism, in a biomechanical or biological sense, by which Mr Thelian's symptoms arose. Professor Dickson related the symptoms to unusual posture, working off the floor, reaching forward to sort papers and sitting in a very small chair which he found uncomfortable.
In the opinion of Professor Dickson, sitting in unusual postures for prolonged periods of time can cause some transitory muscle soreness. He agreed that transitory muscle soreness is different to an injury. He said that he was not able to identify clearly in his initial report what the underlying mechanism for the back pain was but that he accepted the fact that Mr Thelian has back pain and continues to have back pain. He originally thought that this soreness should settle fairly quickly. He agreed also that there is no method by which it can be satisfactorily resolved that Mr Thelian has some form of mechanical back problem.
Evidence of Dr Knight, General Practitioner
Dr Knight has been Mr Thelian's General Practitioner for almost four years. He provided a report dated 1 September 2014[8] and gave evidence.
[8] Exhibit A8.
Mr Thelian has suffered pain in his back intermittently since 1995. He reported back symptoms to Dr Knight in July 2013, two months prior to his employment at the polling booth. Dr Knight regarded the temporal association between the recurrence of back pain and Mr Thelian's employment by the Commission as evidence that the latter may have contributed to exacerbating his pain. He agreed that Mr Thelian had expressed a range of physical symptoms for which there appeared to be no readily identifiable organic basis. He agreed also that there is a psychological component in Mr Thelian's experience of symptoms. For this reason a psychologist is involved in Mr Thelian's care.
In the opinion of Dr Knight it was reasonable to conclude that some sort of thoracic back strain arose from the events of 7 September 2013. He was also of the opinion that prolonged sitting in a particular posture may result in injury.
The spike in Mr Thelian's CK was significant – from 154 to 799 to 197 over a very short period. A rise in a person’s CK is not unusual. It is an indicator of muscle damage in the course of exercise which can vary from mild to severe and which is expected to be accompanied by pain.
A person who has a problem in the mid-thoracic spine may feel pain in the front of the body as the nerves from that part of the spine go to the abdomen. This is a possible explanation of Mr Thelian feeling pain in his stomach.
Further, it was Dr Knight’s opinion that it was probable that the kidney stone located in the scan performed on 8 September 2013 had been developing for some time and it may have worsened as a result of the dehydration suffered by Mr Thelian.
Report of Dr Griffin, General Practitioner [9]
[9] Exhibit R1 p.87.
Dr Griffin practised in the same General Practice Unit as Dr Knight and was also consulted by Mr Thelian after 7 September 2013.
On 4 November 2013 Dr Griffin reported:
I have diagnosed Mr Thelian's condition as mechanical back pain with radiation to the abdomen. He is also concerned by sleep disturbance and psychological disturbance since the Date of Injury…. I think that the abdominal pain was related to the back pain rather than the renal calculus as the pain was bilateral and persisted after the stone had passed. … I am uncertain whether difficulty sleeping is related to the Date of injury. It is possible that the change in Mr Thelian's sleep cycle may be related to the long shift on the Dated Injury followed by attendance at the Emergency Department.
…
In my opinion, Mr Thelian has mechanical back pain with radiation to the abdomen that started after the Date of injury. I am uncertain whether Mr Thelian's pre--existing conditions contributed to this and to what extent. I think that the conditions Mr Thelian describes on the Date of injury (prolonged sitting in chairs designed for schoolchildren and prolonged sitting on the floor to count ballot papers) may have contributed to Mr Thelian's mechanical back pain.
Evidence of Ms Bortolussi, Psychologist
Ms Bortolussi has been Mr Thelian's treating psychologist for about five years. She provided reports dated 7 November 2013[10] and 5 May 2015[11] and gave evidence.
[10] Exhibit R1 p.128.
[11] Exhibit A7.
Mr Thelian was initially referred to Ms Bortolussi for the management of anxiety, stress and depression. At the time he was suffering moderate depression and anxiety. However during the past two years these conditions have been more profound. His depression has been more reactive than genetic as a result of many things happening in his life. Mr Thelian has a long-standing autistic spectrum disorder of a mild nature. By reason of this condition he becomes very focused on certain things.
On 7 November 2013 Ms Bortolussi reported that Mr Thelian's experience on polling day “appears to have exacerbated Mr Thelian's self reported levels of stress and anxiety.”[12]
[12] Exhibit R1 p.129.
Ms Bortolussi agreed that the longevity of Mr Thelian's symptoms was in part the result of Mr Thelian feeling that no one took his claim seriously and that part of his presentation relates to the compensation process, rather than the events of 7 September 2013. The disruption of his sleep patterns could have been a result of his underlying sleep apnoea rather than the consequences of his employment by the Australian Electoral Commission.
The evidence of Associate Professor McGill, Consultant Rheumatologist
Professor McGill assessed Mr Thelian on 23 October 2014 at the request of Comcare’s Solicitors. He provided a report dated 23 October 2014[13] and gave evidence.
[13] Exhibit R3.
Professor McGill reported:
I think the physical effect of the work he performed on 7 September 2013 would have resolved within one week. Because of his long history of symptoms not explicable on an organic basis, I think it is impossible to know to what degree the symptoms he reported in the days following 7 September 2013 were related to physical changes but it is quite possible that he had some muscle soreness and stiffness as result of having performed unaccustomed activity. I think there is no realistic possibility that there was any ongoing effect of his day of work with the Electoral Commission subsequent to one week after the day of work in respect to the musculoskeletal system or the neurological system. In the week following that day I think the effect of his work with the Electoral Commission would have been minor in comparison with his long standing symptoms.[14]
[14] Exhibit R3 p.7.
Mr Thelian's muscle soreness in the thoracic area was likely the result of unaccustomed exercise, including sitting in unusual positions. Aching of muscles is a healthy response to exercise and it is usual that such exercise will cause a spike in the level of CK. In a male the size of Mr Thelian, a spike to 800 is “a minor, relatively mild, spike.”[15] The rapid rise and fall in the level is the expected result of unaccustomed exercise.
[15] Transcript 26/08/15.
Evidence of Dr Hong, Consultant Psychiatrist
Dr Hong assessed Mr Thelian on 16 December 2014. He provided a report dated 24 December 2014[16] and gave evidence.
[16] Exhibit R2.
In his report Dr Hong stated:
Mr Thelian reported a period of feeling stressed and having sleep problems following his employment with AEC on 7 September 2013. He has since returned to his baseline psychological functioning except for anxiety relating to his Workers’ Compensation claim (especially if his claim is rejected). Aside from this, there are no other psychiatric problems or psychiatric disability, beyond his pre-existing baseline psychological condition. …. [His] intermittent anxiety and depressive symptoms are manifestations of his autism, which causes him to have difficulty relating to other people and manage issues in everyday life.
In the opinion of Dr Hong Mr Thelian “may have suffered brief anxiety, depression and sleep problems in a context of working for AEC and this would have resolved within four weeks.”
Evidence of Mr Brown, Divisional Office Manager
Mr Brown has been employed by the Commission since 1996. He is currently employed as Divisional Office Manager, Division of Parramatta Office. He provided a statement dated 6 March 2015[17] and gave evidence.
[17] Exhibit R4.
Records of the Commission show that the hall at Fairfield West Public School was inspected for suitability as a polling place on 25 June 2013 and a report was prepared. There was nothing in the report to suggest that the chairs proposed to be used on polling day were unsuitable for adult use.
In March 2015 Mr Brown was informed by the Deputy Principal of the School that the chairs used in the School Hall were of adult size and in good condition and were the same chairs used on polling day in 2013. This information was confirmed by Ms Wooley, the Officer in Charge of the polling place on 7 September 2013.
F. CONSIDERATION
F.1 Acute mid to lower back pain and abdominal pain
There is very little evidence as to the nature and/or cause of the abdominal pain which Mr Thelian says he suffered during his employment by the Commission. However, based on the evidence of Dr Griffin and Dr Knight I am satisfied that this pain experienced by Mr Thelian radiated from his back. On this basis I intend to deal with the abdominal pain as part of the claim for an injury to the back.
Has Mr Thelian suffered an “injury” within the meaning of the Act?
I am satisfied that Mr Thelian suffered muscle soreness as a result of his prolonged and unaccustomed activity whilst employed by the Commission. I base this finding on the opinions of Professor Dickson and Professor McGill.
As to the duration of this condition I prefer the opinion of Professor McGill that the effects of the work performed by Mr Thelian would have resolved within one week. This is consistent with the expectation of Professor Dickson expressed in his report of 9 September 2013. I accept Professor McGill’s explanation that the spike in Mr Thelian's CK level was a usual consequence of unaccustomed exercise.
A condition of muscle soreness resulting from activity is clearly not a “disease” as defined in section 5B of the Act. It remains to consider whether it is “an injury (other than a disease” within the meaning of subsection 5A(1).
Many of the judgements and decisions dealing with the definition of “injury” in section 5A and earlier provisions of the Act and other workers’ compensation legislation, are concerned with the distinction between what is often referred to as an “injury simpliciter” and a “disease”. However the Full Court of the Federal Court considered the former in Australian Postal Corporation v Burch[18].
[18] (1998) 85 FCR 264.
The Court said:
“As to the second argument, counsel for the appellant accepted that an injury in the ordinary sense did not necessarily require something external to the body. Such a concession was obviously correct. In Kavanagh v The Commonwealth (1960) 103 CLR 547 at 553 Dixon CJ said a rupture of the gullet was an “injury by accident”. Such an episode was
“… a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection.”
However the appellant’s counsel in the present case argued that there could not be an injury in this sense without some “rupture” or “breaking” of some tissue. Here, counsel said, there was merely an occlusion, that is to say a blocking.
However the fact that cases such Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature. In Accident Compensation Commission v McIntosh [1991] 2 VR 253 there is an extensive discussion of the concept of accident (in the ordinary sense) by Murphy J, a judge of great experience in workers’ compensation. In a judgment in which Crockett and Cummins JJ concurred his Honour said (at 263):
“Long before the inclusion of these references to ‘disease’ in the definition of ‘injury’ [in the New South Wales legislation considered in O’Neill v Lumbey (1987) 11 NSWLR 640], claims for coronary occlusions, cerebral haemorrhage, ruptured aneurysms, aorta, oesophagus etc. had commonly been made and had succeeded if occurring during a protected period, on the basis that they were ‘injury by accident’, being clearly a physical injury – and accidental – being unexpected by the worker at the time that they occurred: cf. Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242.””[19]
[19] At pp.268-269.
Although an “injury” does not require a “rupture” or “breaking”, the examples given all involve some form of malfunction of the human body and would commonly be regarded as injuries. In my view, in the case of Mr Thelian's muscle soreness, there has been no such malfunction. On the evidence of Professor Dickson and Professor McGill, all that happened was that Mr Thelian's muscles released additional amounts of an enzyme as part of his body’s normal reaction to exercise. As Professor McGill put it, this reaction “can be seen as a healthy response to exercise”.[20] The distinction is similar to that drawn in relation to mental functioning[21] – to be a physical injury the condition must be outside the boundary of the normal functioning of the human body.
[20] Transcript 26/08/2015.
[21] See Comcare v Paul Mooi [1996] FCA 1587.
I am not satisfied that the pain Mr Thelian continued to experience in his back after about the week following 7 September 2013 arose out of, or in the course of, his employment on that day. I am not persuaded by the opinion of Professor Dickson that his continuing back pain is related to his employment. Professor Dickson could not suggest any mechanism by which an injury could have occurred to Mr Thelian which would account for the ongoing symptoms of which he complains. It is understandable that as Mr Thelian's treating specialist, Professor Dickson would accept Mr Thelian's description of the ongoing effects of his employment.
I am satisfied that the autism suffered by Mr Thelian has given rise to his belief that his employment has been the cause of his ongoing problems. This has been strengthened by his very firmly held belief that the Commission failed to observe proper health and safety requirements and that his complaints have not been taken seriously.
Considerable detail was provided at the hearing as to the type of chair used by Mr Thelian during a significant part of the day.
I have taken into account that Mr Thelian is a fairly large man and that the chair may have seemed small to him. However based on the evidence of Mr Brown I am satisfied that the chair used by Mr Thelian on the day was a chair designed for use by adults. In any event, I am not satisfied that the size of the chair contributed to any of the conditions suffered by Mr Thelian.
Is the injury compensable under subsection 14 of the Act?
As I have decided that the condition claimed by Mr Thelian is not an “injury”, this question does not arise. However, in case I am wrong in the conclusion I have reached I will consider the further issue.
Comcare is only liable to pay compensation for those injuries which result in “death, incapacity for work, or impairment.” [22] In this case there is no evidence to suggest that Mr Thelian's muscle soreness in his back was of such a nature as to incapacitate him for work. In any event he had not been working for some years prior to 7 September 2013.
[22] Subsection 14(1).
Impairment is defined in subsection 4(1) to mean:
… the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Taking into account the evidence that the cause of Mr Thelian suffering pain in his back was his engaging in unaccustomed activity and was a normal reaction to exercise, I am not satisfied that this condition comes within the definition. He did not lose, or lose the use of, any part of his body or any bodily system nor was there any damage or malfunction of his body or any bodily system.
F.2 Mental state (anxiety) and interference with sleep pattern
Has Mr Thelian suffered an “injury” within the meaning of the Act?
In his claim form Mr Thelian indicated that he suffered stress which interfered with his sleeping.[23] He described the injury as “anxiety”.
[23] T1 p.28
If Mr Thelian suffered a mental condition properly diagnosed as anxiety it comes within the definition of “disease’ to which I have already referred. If so, the question then arises whether the disease was contributed to, “to a significant degree” by his employment by the Commission.
For a condition of stress to be an “injury” it must be shown that the employee is “in a condition that is outside the boundaries of normal mental functioning and behaviour.’[24]
[24] Comcare v Paul Mooi [1996] FCA 1587at para 12.
Ms Bortolussi has been treating Mr Thelian for anxiety, stress and depression since about 2010, well prior to the events of 7 September 2013. Although she expressed the opinion that Mr Thelian's employment by the Commission “appears” to have exacerbated his levels of stress and anxiety, she did not provide a detailed diagnosis for the basis of her opinion, bearing in mind Mr Thelian's pre-existing conditions. Ms Bortolussi agreed that Mr Thelian's symptoms were in part the result of his feeling that his claims were not taken seriously and in part related to the compensation process.
Although Dr Hong was of the opinion that Mr Thelian's intermittent anxiety and depression is a result of his autism, he did acknowledge that Mr Thelian may have suffered brief anxiety, depression and sleep problems for about four weeks.
The evidence of both psychiatrists is equivocal as to the diagnosis of the condition actually suffered by Mr Thelian. In the light of their reservations I do not accept the evidence of Professor Dickson that Mr Thelian's muscle soreness, acute transient dehydration and renal calculus formation “probably” induced acute anxiety as an exacerbation of his pre-existing conditions. He did not give reasons for his conclusions. I prefer the evidence of those specialising in psychiatry and psychology.
According to Ms Bortolussi the interference with Mr Thelian's sleep pattern may have been a result of his underlying sleep apnoea rather than his employment. Dr Griffin, who examined Mr Thelian shortly after 7 September 2013 was uncertain as to the cause of his difficulty sleeping.
Based on the evidence of Ms Bortolussi and Dr Hong I am not satisfied that Mr Thelian suffered anything other than a stressful reaction to a very long day at work which subjected him to unaccustomed physical activity. I am not satisfied that his mental condition was “outside the boundaries of normal mental functioning and behaviour”.
Taking into account the evidence of Ms Bortolussi and Dr Griffin I am not satisfied that the difficulties in sleeping experienced by Mr Thelian were related to his employment, either directly or as a result of a compensable injury.
It follows that I am cannot be satisfied that Mr Thelian's mental condition was an “injury” within the meaning of the Act.
F.3 Kidney stone
Has Mr Thelian suffered an “injury” within the meaning of the Act?
The development of a kidney stone (renal calculus) over time is a “physical … disorder … of … gradual development” and is therefore an “ailment” within the definition set out in subsection 4(1) of the Act. For this reason it is necessary to consider whether the condition suffered by Mr Thelian is a “disease” as defined. This requires a determination of whether Mr Thelian's employment contributed to a “significant” i.e “substantially more than material”[25] degree to the condition.
[25] Subsection 5B(3).
The kidney stone was detected on 8 September 2013 when Mr Thelian attended the Fairfield Hospital. The evidence as to its cause is limited.
Professor Dickson expressed the opinion that Mr Thelian's dehydration probably contributed to renal calculus formation. He said also that he considered that the stone represented an exacerbation of a pre-existing condition. As before, Professor Dickson did not provide reasons for either of these views and I am not persuaded by either of them.
I prefer the evidence of Dr Knight that it was probable that the stone detected on 8 September 2013 had been developing for some time. In so doing I have taken into account that Mr Thelian had previously suffered from kidney stones. Dr Knight said that the stone may have worsened as a result of dehydration but was unable to say to what extent, if at all.
Taking into account this evidence I am not satisfied that Mr Thelian's employment made a significant contribution to the development of the kidney stone. For this reason I am not satisfied that this condition was in “injury” within the meaning of the Act.
G. CONCLUSION
The reviewable decision, being the decision of Comcare made 29 April 2014 denying liability to compensate Mr Thelian for back and abdominal pain, mental state (anxiety), sleep disturbance and kidney stone, will be affirmed.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of ...............[sgd].........................................................
Associate
Dated 7 December 2015
Date(s) of hearing 25-26 August 2015 Date final submissions received 26 August 2015 Applicant In person Counsel for the Respondent M Snell Solicitors for the Respondent Australian Government Solicitor
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