Thompson and Comcare (Compensation)

Case [2018] AATA 2707

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

  1. Mr Douglas Thompson was employed by Airservices Australia as a fire fighter from 1984 until the year 2016.

  2. 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.

  3. 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.

  4. 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”.

  5. 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…

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AGLC
Thompson and Comcare (Compensation) [2018] AATA 2707
Case
[2018] AATA 2707
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Thompson against a decision by Comcare regarding his claim for workers' compensation. The dispute centred on whether Mr. Thompson had suffered an "injury" or "disease" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (Cth) due to osteoarthritis of his right hip, which he alleged was contributed to by his employment as a firefighter. The decision was heard by Deputy Rayment QC P.

The court was required to determine two primary legal issues. Firstly, whether Mr. Thompson's employment as a firefighter contributed to his condition of osteoarthritis of the right hip to a "significant degree," as defined by section 5B of the Act, meaning a degree substantially more than material. Secondly, the court had to consider whether Mr. Thompson's employment had accelerated the onset of his symptoms requiring hip replacement surgery, and if so, whether this acceleration constituted a significant contribution.

Deputy Rayment QC P considered the medical evidence from Dr. Bodel and Professor Youssef. While Dr. Bodel opined that the arduous nature of Mr. Thompson's employment likely accelerated the need for hip replacements by three to five years, the Deputy President found this assertion lacked sufficient reliable evidence. Professor Youssef's evidence, while acknowledging that arduous employment might make a small difference to the progression of femoroacetabular impingement leading to osteoarthritis, did not provide a basis for inferring acceleration to a significant degree. The court noted that the studies reviewed by Professor Youssef focused on the cause of osteoarthritis rather than its acceleration. Ultimately, the Deputy President was not satisfied that any acceleration of Mr. Thompson's symptoms was caused by his employment to a significant degree as required by section 5B of the Act.

Consequently, the reviewable decision was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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