Thompson and Comcare (Compensation)
[2018] AATA 2707
•9 August 2018
Thompson and Comcare (Compensation) [2018] AATA 2707 (9 August 2018)
Division:GENERAL DIVISION
File Number: 2016/3772
Re:Douglas Thompson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Rayment QC
Date:9 August 2018
Place:Sydney
The reviewable decision is affirmed.
.....................................[SGD]...................................
Deputy President Rayment QC
Catchwords
COMPENSATION – workers compensation – osteoarthritis of the right hip – femoroacetabular impingement – whether applicant suffered an injury or disease – whether employment contributed to a significant degree – insufficient medical evidence to find that employment accelerated applicant’s condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A, 5B
Cases
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Australian Postal Corporation v Burch [1998] 85 FCA 264
Military Rehabilitation and Compensation v May [2016] HCA 19
Smith and Comcare [2011] AATA 662
Szabo v Comcare [2012] FCAFC 129
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Secondary Materials
Agricola et al, “Cam impingement causes osteoarthritis of the hip: a nationwide prospective cohort study (CHECK)” (2013) 72 Annals of the Rheumatic Diseases 918
Croft et al, “Osteoarthritis of the hip and occupational activity” (1992) 18 Scandinavian Journal of Work, Environment and Health 59
REASONS FOR DECISION
Deputy President Rayment QC
9 August 2018
Mr Douglas Thompson was employed by Airservices Australia as a fire fighter from 1984 until the year 2016.
His employment took him to airports in various parts of Australia where he was stationed and which were his bases of operation. It was strenuous work, and required a high level of fitness. It involved regular drills, regular gym work usually involving lifting weights and treadmill work, and other fitness activities including runs.
In June 2013, he was working at Ayers Rock airport for two weeks and used a treadmill as part of his ordinary fitness training. He experienced then, or shortly after then, a severe ache or pain in his left hip. He says that he did not then notice right hip pain, and it was late 2015 before he did experience such pain. In 2016, he had hip replacements of both hips, the left paid for by Comcare, and the right paid for by him after Comcare rejected his claim. These proceedings are concerned with the right hip.
He returned to Sydney and reported to his general practitioner, Dr Brookes. In July 2013, while still at work, he made a worker’s compensation claim to cover the treatment prescribed by Dr Brookes, being “X-ray, MRI scan and ultrasound”, describing the event which caused his injury as “workout in the gym”, that is, at Ayers Rock. He described his diagnosis as “persistent hip pain/sprain” and “bilateral direct inguinal herniae”.
His claim was accepted by Comcare and Dr Rashid of Southern Radiology Group reported on the left hip MRI on 1 August 2013. His report included the following comments:
1. Moderately advanced hip joint OA notable for grade IV involvement.
2. Predisposing factors for CAM type FAI with impingement lesions providing a degree of evidence of active impingement.
3. Subtle under surface erosion of the anterosuperior labrum, also supportive for cam type FAI.
4. Myxoid degeneration within the lateral labrum.
5. Myxoid degeneration of the foveal insertional fibres of ligamentum teres.
6. Mild psoas tendonosis.
This was the first time he discovered his femoroacetabular impingement, now recognised to affect both hips.
As explained to me by Professor Youssef during the evidence, femoroacetabular impingement (FAI) is a condition by which cam deformities, an abnormal shape of the femoral head, result in damage to the cartilage in the hip joint, being the acetabulum. Because the bones do not fit together perfectly, they rub against each other during movement, and this friction can set up an inflammatory process in the joint, causing pain and limiting activity. Dr Rashid found evidence of this condition in the left hip in August 2013. The condition was not treated surgically until 2016, and Comcare paid for a left hip replacement conducted by Dr Chen.
Femoroacetabular impingement is a condition which is thought to arise in individuals during adolescence, perhaps because of sporting activities. Mr Thompson had a very physical and energetic lifestyle from about the age of eight.
Around October 2013, Dr Loi operated to repair the left indirect inguinal hernia of Mr Thompson, also paid for by Comcare.
THE LEGISLATIVE BACKGROUND
Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) defines the word “injury”. It provides as follows:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
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.
Section 5B of the Act defines the word “disease”. It provides as follows:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the Act provides that in the Act, unless the contrary intention appears, “ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
It is apparent that the definition in s 5B is applicable to the use of the word “disease” in s 5A(1)(a), so that all cases of disease within s 5B are “injuries” within the meaning of s 5A.
On the other hand, in s 5A(1)(b), the phrase “injury (other than a disease)” uses the word “injury” in its ordinary, rather than its defined sense. Moreover, even if an “ailment” is suffered, if, because of the failure of the employment to have contributed in a significant degree to the ailment then the definition of disease in s 5B(1) is not engaged, and in the proper construction of s 5A(1)(b), the words “(other than a disease)” will be satisfied. That will leave it open to an applicant to establish that he or she has suffered an “injury” in the ordinary sense of that word.
In Military Rehabilitation and Compensation v May [2016] HCA 19; (2016) 257 CLR 468 at [72] and [73], Gageler J distilled four propositions which emerged from the decision of the Full Court of the Federal Court in Australian Postal Corporation v Burch [1998] FCA 264 at 268, and he stated that they ought now to be regarded as settled:
72 First, "disease" is used in its statutorily defined sense in each of pars (a) and (b). Second, "injury" is used in its ordinary sense in par (b). Third, the bracketed exclusion in the reference in par (b) to "an injury (other than a disease)" serves simply to clarify that the connection with employment required for an injury to meet par (b) has no application to a physical or mental condition which has the connection with employment required to meet the statutory definition of a disease.
73 Fourth, the questions posed by pars (a) and (b) need not be asked in their statutory sequence. There is no need to ask whether a physical or mental condition is a disease in the statutorily defined sense used in par (a), if that physical or mental condition meets the description in par (b). To meet the description in par (b), it is enough that the condition is an injury in the ordinary sense which arises out of or in the course of employment.
In Burch, the Full Court approved a process of reasoning in the reasons for decision of this Tribunal which had found that the applicant had suffered an injury in the ordinary sense which arose out of or in the course of his employment, and treated as unnecessary to be decided the alternative case made that there was a disease to which the employment had been a substantial contributing factor. (In the current statute, the employment must contribute to a significant degree, in the sense mentioned in s 5B(3)). The reason for that approach in the Full Court decision may be the remark of Murphy J in Accident Compensation Commission v McIntosh [1991] 2 VR 253 at 284, which was approved in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 335, to both of which decisions of the Full Court referred. In McIntosh Murphy J had said:
It is a remarkable development that today it is being suggested that in an Act which has consistently demonstrated a widening of cover to a worker, (being in the nature of social insurance or security) the inclusion in the definition of `injury' of references to disease contributed to by the employment has prompted argument that mishaps, formerly accepted without debate to be `injury', are no longer to be so considered, but are rather to be characterised as the very disease to which they are due, and excluded, unless work contributes to them.
In other words, the phrase “(other than a disease)” is not intended to cut down what would otherwise be an injury in the ordinary sense. That is precisely what Gageler J mentioned in the fourth proposition, set out in paragraph [73] of his reasons.
The reasons of the plurality in May proceed in a different way. They support an approach that requires this Tribunal to first satisfy itself whether there was a disease within the meaning of s 5B of the Act. If there was no such disease (for example, because the employment did not contribute to an ailment to a significant degree) then the question arises whether the applicant suffered an injury in the ordinary sense of that word.
Of course, in either case, the exclusion set out in the concluding words of s 5A(1) arises from consideration, as to whether the disease, injury or aggravation was suffered as a result of reasonable administrative action.
The plurality point out at [54] that it is not necessary for the Tribunal to consider the question of disease if the applicant admits it has no application. In such a case, it seems, the Tribunal may move immediately to the question of whether there was an injury in the ordinary sense. That seems to mean that there is little difference in practice between the different approaches of Gageler J and the plurality.
An applicant may choose between one basis of claim, that is, injury or disease, or seek to rely on each in the alternative.
As was pointed out in Burch, it is often somewhat easier for an applicant to prove an injury case than it is for him or her to prove a “disease” case. The terms of s 5B(3) may make the task of the applicant seeking to prove a “disease” case even more difficult.
THE CONDUCT OF THE TRIAL
In the usual way in this Tribunal, the applicant filed a Statement of Facts, Issues and Contentions. In it, he alleged a number of facts, or evidence of facts and said in paragraphs 30 and 31:
30. The Tribunal is called upon to determine whether the Applicant’s right hip condition, was contributed to, to a significant degree, by the Applicant’s employment with Airservices Australia.
31. Alternatively, the Tribunal is called upon to determine whether the Applicant’s right hip condition, on the balance of probabilities, has developed secondary to the Applicant’s accepted condition of “sprain of other specified sites of hip & thigh (left) and aggravation of osteoarthritis – localised – pelvis and thigh (left)”.
I take paragraph 30 to make a case of disease under s 5B and thus of injury under s 5A(1)(a). The meaning of paragraph 31 seems to hesitate between an allegation of injury and an allegation of disease. Its reference to the right hip condition being secondary to the accepted condition of the left hip seems to suggest that the condition of the left hip led the applicant to place more stress on his right hip and in turn, that led to the deterioration of the right hip.
Evidence was filed by the applicant and by the respondent before the hearing began. For the applicant, reliance was placed upon the reports of Dr Bodel, an orthopaedic surgeon. He was supplied with documentation and examined Mr Thompson after his left and right hip had been replaced by Dr Chen. He expressed the view that the osteoarthritic change to both hips was a constitutional ailment, and that the nature and conditions of his work caused a material aggravation of arthritic process in both hips. In oral evidence, he was asked whether the work contributed to a significant degree to the ailment, and replied in the affirmative. In other words, his evidence supported a disease case under s 5B(1)(b).
In response, the respondent called Professor Youssef, a rheumatologist, who expressed the view that the bilateral hip osteoarthritis was not contributed, to a significant degree, by the employment. It played, according to the professor, no more than a small part in the current condition of Mr Thompson. Dr Bodel in reply agreed that the femoroacetabular impingement and Mr Thompson’s age were the main predisposing factors leading to the condition but maintained that the employment aggravated the onset of the condition.
In opening, Mr Mrsic of counsel who appeared for the applicant, made it clear that the allegations in paragraph 31 of the applicant’s Statement of Facts, Issues and Contentions was not relied upon, and therefore that only paragraph 30 was pressed. At T4, he said: “This is a nature and conditions claim. There’s no frank injury that’s being relied upon.” Mr Mrsic said that as between cause and aggravation, he relied upon both in the alternative but “it’s really an aggravation case”. Such a remark can only apply to a case made under s 5B. At T10, he said relevantly: “The case I’m running is that the work this man did for over 30 years accelerated, aggravated, an underlying disease process.”
Written submissions were filed after the conclusion of the evidence. In those submissions for the first time, the applicant sought primarily to make an “injury” case and relied on the disease case in the alternative. The respondent objected to the “injury” case being made after the evidence had closed. It submitted that such a case would have required to be opened and exposed so that the witnesses called for the applicant, including the applicant himself, might be cross-examined with a view to findings being obtained from the Tribunal on that matter, and so that the respondent might be able to lead its own evidence on the matter. Instead, the applicant has in support of his primary case, referred to small parts of the existing evidence, the significance of which was not apparent to the respondent when it was led. The respondent also submitted that the applicant needed leave to amend his Statement of Facts, Issues and Contentions before such a case could be entertained, and correctly points out that the applicant had not applied for such leave. I heard the parties on this matter orally after the conclusion of argument on the main issues. Mr Snell for the respondent submitted on the authority of Szabo v Comcare [2012] FCAFC 129, that the Tribunal would not have jurisdiction to entertain such a case because Comcare had not considered a claim formulated on that basis and the jurisdiction of this Tribunal was confined to the review of the decision that Comcare had made. Having decided that the claim made was not one for a disease or injury that was aggravated or contributed to by the nature and condition of his employment, Emmett and Greenwood JJ said at [42].
That is not to say that it would not now be open to him to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal. There was no error on the part of the Tribunal.
That submission having been made, the applicant, by his counsel, withdrew the written submissions in support of what was previously put in writing on his behalf as his primary case.
It follows that I need only attend to what has been put by the applicant in the alternative, that is, in support of the “disease” case actually made by the applicant during the hearing.
DISEASE
There is no dispute that the need for a bilateral hip replacement of Mr Thompson was occasioned by an ailment, and the only issue arising under s 5B of the Act is whether the ailment or its aggravation was contributed to, to a significant degree, by the employment of Mr Thompson. Nor is there any credible basis to conclude that the ailment was caused by the employment, and the question is whether it was aggravated by the employment. The section provides that the words “significant degree” mean a degree that is substantially more than material. Section 4 of the Act defines aggravation to include acceleration or recurrence.
Mr Thompson was required to attain and maintain a high level of physical fitness as an incident of his employment. Airservices advised Comcare in 2013 that the position description of Mr Thompson required him, inter alia, to undertake all training requirements and maintain fitness levels appropriate to firefighting activities. The evidence includes a physical job description which lists a series of functions which an aviation fire fighter must be capable of carrying out, either in an emergency or whilst participating in training exercises. Each 90 days, an operational aviation fire fighter had to demonstrate his physical fitness for that purpose. Physical fitness instructors were to monitor and maintain a register of accredited personnel at each fire-fighting location.
Mr Thompson gave a clearly expressed and detailed account of his day-to-day activities over the long period of his involvement as an aviation fire-fighter, which exceeded thirty years. The period of time leading up to his last day of work, as distinct from the date of termination of his employment was some 32 years. He was required to maintain a high level of fitness, in order to be able to respond quickly to an emergency. For instance at paragraphs 24-27 of his statement, he said:
24. I always enjoyed my work as a fire fighter. The days were structured but we were always alternating roles. Most days would start with a roll call and the station officer would come out and assign you a truck for that day and designate your riding position for the day. There were six trucks, three at each station and usually two or three men in a truck. One day you would be driving a truck and the next day operating a truck or you could be up in the fire control centre for fire control centre duties. Every day it was usually something different.
25. After we were designated a truck and a role for the day, we would put on our gear: our helmet, over trousers, jacket and boots. Then, with the other person designated to your truck you would do the daily inspection of the vehicle. We would check all the ancillary equipment was functional and operational. We would check the breathing apparatus, the oil, water and the air pressure of the tires. We would then take the truck out and squirt water through the monitor on the roof to make sure it was operational and we would check ail the outlets were operating correctly. By the time we had completed all these checks we were confident that everything on the truck was functional and operational.
26. Once we were confident that the truck was fully operational we would take it back into the station, refill it with water, park it [sic] the engine bay and plug it back into the engine heater and battery charge plugs. All of this ensures that the trucks are ready to be utilised at a moment’s notice.
27. Once all of this is done we would be able to have breakfast. Once breakfast was over we would begin performing the drills that the station officer had assigned to us at roll call. These were often arduous and were designed to ensure that just like the fire trucks, we were ready to be utilised at a moment’s notice. The drills would usually rotate, we could be hose running, ladder climbing, using breathing apparatus or even dealing with a large mock up. Large mock ups comprise of setting a training aeroplane on fire and running through the full exercise of putting the fire out and entering the fuselage of the plane with our breathing apparatus on. There was usually a drill every day. Each drill would go for approximately an hour, except for the large mock ups which would take considerably longer. Large mock ups happened regularly, sometimes daily if there were fire fighters training to be station officers. Mock ups allowed them to practice their officer skills by directing fire fighters around the fire ground. On these large mock ups a lot of work is required, such as running hoses, using ladders and using your breathing apparatus.
He was required to be able to move quickly up and down ladders in order to assist casualties in a building which was on fire, and the drills for that purpose utilised dummies carried in a bear-hug which weighed 60 kilograms or 90 kilograms when wet. He drilled with heavy hoses, crawled through tight spaces wearing, and then removing, a breathing apparatus. There were effectively drills every day when he was on duty.
He would train in the gyms for up to an hour at fire stations that he attended, and if it was fine, he would go for a jog until 2013 for between 30 and 50 minutes over 5 to 10 kilometres. After June 2013 when he began to suffer left hip pain, he ceased to run.
He played sports before and after his employment as a fire-fighter. Earlier in his life, he played rugby league until he obtained his employment as a fire fighter when he was 27, and at the same age, he played A grade squash in order to help his state of fitness, until the age of 49. Sometimes he would play three to four matches of squash a week. On several occasions, he suffered groin pain when playing squash, which healed without treatment.
He fought in excess of fifty fires over his career, including bush fires in the Blue Mountains, and at Kurnell and Engadine. He was also from time to time, required to attend to bus and car crashes and other accidents at or near airports. He also responded to first aid calls as required.
In 2013, he continued working. He had a dull ache in his left hip for which he took anti-inflammatories, and understood from his surgeon that one day, he would need a left hip replacement, and that his right hip might also deteriorate. He first noticed symptoms affecting his right hip in later 2015. In 2016, as already mentioned, he had his left hip replaced at the expense of Comcare and later that year, at his own expense, the right hip was also replaced. His last time at work was in early 2016 and on 1 July 2017 his employment was terminated because the employer thought he was no longer fit for duty. The hip replacements allow him to walk without pain.
THE MEDICAL EVIDENCE
I heard from Doctor Bodel and Professor Youssef at first separately, and later in joint session. Neither Dr Brookes nor Dr Chen were called before me. The communications of those treating doctors with Comcare, in general, did not deal directly with the matters of difference between Dr Bodel and Professor Youssef, although Dr Brookes stressed the arduous nature of Mr Thompson’s employment as a cause or contributing factor for the deterioration of his hips, and Dr Chen notes, when commenting on Comcare’s refusal to pay for the right hip replacement, that both hips have been subjected to the same stressors throughout his work history as a firefighter.
Dr Bodel expressed the opinion that the arduous nature of Mr Thompson’s employment is likely to have accelerated the time when it would become necessary for him to have hip replacements on both the right hand side and the left hand side, perhaps by three to five years. That evidence was given against the background that the later surgery to both hips would have been inevitable in any event, and with an acceptance that femoroacetabular impingement was a predisposing factor to osteoarthritis. When pressed for the basis of his opinion, Dr Bodel referred to his clinical experience over many years. He made reference to the loads borne by the hip joint being greater in the case of a man with Mr Thompson’s occupation than in less arduous occupations. Dr Bodel would not agree to the importance attributed by Professor Youssef to squash activity, which Dr Bodel described as lighter, not involving abduction, although he was prepared to accept the squash activity as possibly a contributing factor. For the applicant, it was submitted that engagement in squash was one means by which Mr Thompson complied with the terms of his employment in any event, so that it was submitted that squash activities were work-related in any event.
Professor Youssef produced for the Tribunal’s inspection, a number of journal articles relating to epidemiological studies of persons suffering from osteoarthritis of the hip. The documented propensity of persons with cam lesions to develop osteoarthritis was the subject of some of those studies, and Dr Bodel acknowledged that fact during the joint session.
One study, that of Croft and others entitled “Osteoarthritis of the hip and occupational activity”, sought to establish whether there was any particular risk for the development of osteoarthritis associated with a range of occupations examined, and particular aspects of the work conditions were sought to be related to cases of severe osteoarthritis. The study was not concerned with osteoarthritis which developed in any particular way.
The occupations studied included famers and agricultural workers, underground coal miners, ceramic workers and labourers, construction workers and labourers, truck, bus and car drivers, warehousemen, clerks, and shop workers. There were 53 severe cases examined, of whom seven had had hip replacements for osteoarthritis.
The results of the study were stated as follows:
A comparison of all the cases with all the referents did not point to any occupational associations, but, when the analysis was restricted to severe cases, the odds ratio was moderately elevated for those who had worked for at least one year as a farmer or agricultural worker (OR 1.6) or as a construction worker or laborer (OR 1.5). To explore these associations further, we calculated the odds ratios according to the length of employment in each job (table 3). There was no evidence of a dose-response effect in relation to construction work, but among the farmers and agricultural workers the risk of severe disease was highest for those who had been in the job for more than 10 years (OR 2.0, 95% Cl 0.9-4.4).
Table 4 illustrates the relation between osteoarthritis-tis of the hip and the duration of exposure to occupational activities. The analysis using all of the cases showed significant associations with work that entailed standing for more than 2 h/d, but otherwise was unremarkable. When attention was restricted to severe cases, a more interesting pattern emerged. Again risk was increased for the men whose jobs had required them to stand for more than 2 h/d, particularly if they had done this work for at least 40 years (OR 2.7, 95% CI 1.0-7.3). There was also a significant association with employment for more than 20 years in jobs that entailed heavy lifting (OR 2.5, 95% CI 1.1-5.7). Weaker associations were found with work that involved walking more than 2 miles/d (3.2 km/d), particularly if this walking was over rough ground.
The most frequently reported sports activities were soccer, cricket, tennis, and running, but none of these sports was significantly associated with osteoarthritis, whether it was defined to include all cases or only more severe disease. The risk of more severe osteoarthritis increased with body mass index, but again not to the point of statistical significance. The odds ratio for the highest third of the distribution (>27.5 kg/m2) relative to the lowest third (<24.7 kg/m2) was 1.6 (95% Cl 0.7-3.4).
The associations with occupational exposure to standing, walking, walking over rough ground, and heavy lifting changed little with allowance for body mass index and participation in soccer, cricket, tennis, and running. They were, however, interrelated. Thus, when the four activities were examined in a single regression model, again with allowance for body mass index and sports, the risk estimates were generally lower than those shown in table 4. Severe disease was the most strongly associated with more than 20 years of exposure to heavy lifting (OR 2.1, 95% CI 0.7-6.6) and more than 40 years of exposure to standing (OR 1.6, 95% Cl 0.5-5.1).
The study included seven persons who had had a total hip replacement. The conclusion that persons with occupations involving the lifting of heavy weights for more than twenty years having an association with osteoarthritis is of potential application to this review. The study nominates weights of greater than 56 pounds or 25.4 kg as the cut-off weight. Mr Thompson’s evidence was that during a drill involving the rescue of persons from burning buildings (a drill which he was called upon to undertake from time to time), he would carry in a bear hug, a dummy weighing 60 kg when dry and about 90 kg when wet. He said that when charged with water in excess of 700kPa, the hoses, which would then be managed by two men typically, weighed up to 95 kg. His evidence included no estimate of the weight of a fire hose with a flow of no more than 700kPa, which was the norm for one fire fighter, in training drills. He also said that under rules introduced long after he started with Airservices Australia, pieces of equipment from fire vehicles over 20 kg in weight had to be lifted and carried around by two fire fighters. His evidence was that his regular gym drills mainly involved weight work.
Mr Thompson may or may not be a person who was required to stand in excess of two hours per day and over 30 years, although his evidence did not include any estimate of the period of time he was required to be standing.
The only occupational association for those studied which showed a correlation with severe osteoarthritis was with farmers and agricultural workers, but the correlation between the employments studied and Mr Thompson’s employment is hard to assess. Professor Youssef doubted whether the correlation was significant, appearing to disagree with the significance attributed by the study authors to that work category.
I have some reservations about drawing conclusions dispositive of these proceedings from the Croft study. First, the number of persons who underwent hip replacements is small, although it is true to say that the number of persons with less advanced osteoarthritis of the hip was much larger; the occupations are difficult to correlate with the applicant’s employment; the applicant may in any event be a person who regularly or at least occasionally carried heavy weights or stood for in excess of two hours per day; and the effect upon osteoarthritis for which femoroacetabular impingement was a predisposing condition was not the subject of the study. Moreover, as Dr Bodel pointed out, none of the papers to which Professor Youssef referred, including the Croft study, dealt with the question of whether the nature of a patient’s employment may have aggravated or accelerated the onset of symptoms of his osteoarthritis. Such a matter may not lend itself to epidemiological research because of the absence of data.
Professor Youssef’s comments on the Croft study were expressed in the following terms in his report:
With regards to the role of occupation, the study by Croft et al, Scandinavian Journal of Work and Environmental Health 1992; 18:59-63 (enclosed) documents that the overall occupational risk of hip osteoarthritis was not increased when compared with controls. It documents a possible doubling of the risk of hip osteoarthritis in agricultural workers working greater than ten years but not in other occupations. The risk in agricultural workers was only for severe osteoarthritis. Interestingly, even in this group which was found to be at highest risk, the confidence interval of the apparent increase in risk was 0.9 to 4.4 and therefore not statistically significant (because the confidence interval includes 1) raising the possibility that the risk was not in fact increased in this group. There was no increased risk in construction workers, underground coal miners, ceramic makers and labourers, warehousemen or truck, bus and car drivers. In this study, kneeling for greater than 30 minutes a day, squatting for more than 30 minutes a day, walking more than two miles a day on rough ground, running for more than one hour a day, climbing ladders or climbing more than thirty flights of stairs a day did not show an increased risk. There was an increased risk with lifting more than 25.4 kilograms by hand for over twenty years of exposure. Therefore, Mr Thompson’s occupation was not a significant contributor to the degenerative disease of the hips.
Professor Youssef also exhibited to his statement, a number of epidemiological papers which showed that femoroacetabular impingement was a significant risk factor for the development of hip osteoarthritis and both he and Dr Bodel were agreed upon this matter, and I also accept it.
The remaining question is whether it should be held that, as Dr Bodel asserted, the onset of symptoms making a bilateral hip replacement an indicated form of surgery, was accelerated by the employment of Mr Thompson, or, as Professor Youssef asserted, the employment made but a minor contribution to the onset of those symptoms. Dr Bodel expressed the opinion that once the osteoarthritis was established, the nature and conditions of his work becomes a more important factor. He said: “the joint is then abnormal and is much more easily materially aggravated by the nature of the work that he had been doing”.
Attention was drawn during the hearing to the papers referred to by Senior Member Kenny in Smith and Comcare [2011] AATA 662 at [78]. Professor Youssef was critical of several of those papers, and they tend in different directions as to whether arduous work may or may not be a pre-disposing condition for the development of osteoarthritis. Perhaps more importantly, they, like those referred to by Professor Youssef, are not directly concerned with the question of whether arduous work may accelerate the onset of osteoarthritis in a person suffering from femoroacetabular impingement.
I heard from Dr Bodel and Professor Youssef for a second time in joint session after the cross-examination of Professor Youssef was postponed at the request of the applicant.
Dr Bodel suggested that the description by the applicant of his employment involving the pushing off of his breathing apparatus in a low confined space was likely to put a more acute of flexion on his hip joint and, in effect, accelerate the effects of femoroacetabular impingement. Professor Youssef disagreed and made reference to the strong association shown between femoroacetabular impingement and the development of osteoarthritis in the hip and to the weak association found between most kinds of employment and the development of that condition. He resisted an analysis based upon an understanding of the mechanism by which femoroacetabular impingement resulted in osteoarthritis.
As to the age by which a person with femoroacetabular impingement might reach end-stage osteoarthritis (requiring surgery), Professor Youssef referred to the paper by Agricola and others attached to his statement, which recorded for end-stage osteoarthritis, a mean age of 57.7, plus or minus four years, or, as Professor Youssef said, there would at least be patients for whom you could double that period to plus or minus eight years. In 2016, Mr Thompson was 58 turning 59. The first operation was in March 2016 and the second was in August 2016. To that extent the age at which the applicant had his operations is close to the mean age for the operation of those with cam infringement. The age alone, with the deviations of plus or minus four, or even eight years, cannot be determinative of the outcome of the enquiry, of course, although it has some relevance.
Both doctors agreed that the question of acceleration has not been examined in the literature. Professor Youssef commented that while there is no data, the studies which looked at progression don’t indicate that it really progressed in people who did heavy work. He said: “They don’t look at it specifically but I think if that had come out as a major thing I think it may well have been mentioned in those studies”.
Even with the benefit of Professor Youssef’s expertise, I feel some reluctance in drawing the inference to which he referred from the absence of comment by the reporters, who may not have had information to enable them to link the progress of femoroacetabular impingement and its effects with work conditions during the development of osteoarthritis. The question posed by the Act is about cause and acceleration, and the question examined by the reporters is about cause, not acceleration.
CONCLUSION
Two questions require resolution on the disease case: The first is whether there was any acceleration of the osteoarthritis by reason of the arduous nature of the applicant’s work. The second is whether if so, the contribution by way of acceleration which it made was a significant contribution to a degree which was substantially more than material.
I did not take Professor Youssef expressly to agree that the mechanism by which femoroacetabular impingement causes osteoarthritis may be accelerated by arduous employment, I did not take him to dispute it categorically, and indeed I took him to assert that it likely made a small difference. Dr Bodel’s assertion that it may have accelerated the onset of symptoms such that it requires surgery by three or up to five years seems, with respect, to require more reliable evidence than is available to me in this matter, and I am unable to be satisfied that any acceleration of the onset of Mr Thompson’s symptoms was caused by his employment to a degree which was significant in the sense mentioned in s 5B of the Act.
The reviewable decision will therefore be affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC
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Associate
Dated: 9 August 2018
Date(s) of hearing: 27 -28 September 2017;
6 April 2018;
3 August 2018Date final submissions received: 11 May 2018 Counsel for the Applicant: Mr J Mrsic Solicitor for the Applicant: Mr A Ghaleb, Slater & Gordon Lawyers Solicitors for the Respondent: Mr M Snell, Lehmann Snell Lawyers;
Mr P Lehmann, Lehmann Snell Lawyers
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