Tracy and Australian Postal Corporation
[2004] AATA 1128
•29 October 2004
DECISION AND REASONS FOR DECISION [2004] AATA 1128
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1912
GENERAL ADMINISTRATIVE DIVISION ) Re NORMAN TRACY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member Date29 October 2004
PlaceSydney
Decision 1. The reviewable decision dated 29 October 2003 is set aside.
2. Substituted therefor is the following:
(a) Mr Tracy suffered an injury to his neck in a motor vehicle accident on 9 March 2003 that resulted in occipital neuralgia which incapacitated him for work for the first time on 26 May 2003.
(b) Accordingly, the Respondent is liable pursuant to s 14 of the SRC Act.
[sgd] Senior Member
CATCHWORDS
WORKER’S COMPENSATION – liability under s14 SRC Act – whether symptoms related to workplace accident – conflicting diagnoses – held: occipital neuralgia arising from workplace accident – Respondent liable under s14 – decision set aside
WORKER’S COMPENSATION – jurisdiction – whether Tribunal has jurisdiction to determine a s16 SRC Act claim for medical expenses when not separately claimed by employee – s16 not considered in determination or reconsideration – whether ‘refusal’ or ‘failure’ to make a decision founds jurisdiction before the Tribunal – matter not adverted to by previous decision makers – held: no jurisdiction for Tribunal to determine s16 claim
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 14, 16, 54, 60, 61
CASELAW
Lees v Comcare (1999) 56 ALD 84
Tilley and Comcare [2002] AATA 560 (9 July 2002)
Comcare v Sassella [2001] FCA 1514 (8 November 2001)
Australian Postal Corporation v Oudyn [2003] FCA 318 (10 April 2003)
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
REASONS FOR DECISION
29 October 2004 Mrs Josephine Kelly, Senior Member BACKGROUND
1. The Applicant, Mr Norman Tracy, an employee of the Respondent, drove under a bridge at Erina Fair on the New South Wales Central Coast on 9 March 2003 in a high-top van in the course of his work. He was used to driving a vehicle with a lower roof which was not available on the day and forgot to take the height of the vehicle into account when he reached the bridge. The fibre-glass roof of the high-top van hit the bridge and was sheared off. In Mr Tracy’s words it “exploded”. He said he ducked forward and down. The centre of the steering wheel was the air-bag cover which was about 25 cm in diameter. He struck the left hand side of his face on the air-bag cover and the left-hand side of his skull struck the steering wheel rim. This incident will be referred to as “the accident”.
2. Mr Tracy filled out a document headed “Claim for Rehabilitation and Compensation” on 5 September 2003 (Ex T1 document T84) for occipital neuralgia – left side of neck and pain along left hand side of head and into left eye. Liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) was denied on 19 September 2003 (Ex T1 document T85) and Mr Tracy requested a reconsideration on 10 October 2003 (Ex T1 document T86). The reviewable decision of 29 October 2003 (Ex T1 document T88) affirmed the decision to deny liability.
THE ISSUES
3. There is no dispute that there was an accident. The issues are the correct diagnosis of Mr Tracy’s current condition and whether there is a causal link between his condition and the accident. The diagnosis determined by Professor Lance, Consultant Neurologist, and Dr Heard, treating Neurologist, who were relied upon by Mr Tracy, is occipital neuralgia which is said to be causally related to an injury suffered to Mr Tracy’s neck during the accident. Dr Mellick, Consultant Neurologist, called by the Respondent, determined a diagnosis of tension headache which he said was not causally linked to the motor vehicle accident.
4. A legal issue also arises. If Mr Tracy is entitled to compensation pursuant to s 14 of the SRC Act, Mr Richards, counsel appearing for Mr Tracy, argued that Mr Tracy’s entitlement to medical expenses pursuant to s 16 of the Act was a matter arising from the claim and the reviewable decision and is therefore a matter before the Tribunal for determination.
DID MR TRACY INJURY HIS NECK DURING THE ACCIDENT?
5. The essence of the Respondent’s case is that Mr Tracy did not injure his neck in the accident or if he did it fully resolved and does not cause his present condition.
6. Importantly, Mr Tracy filled out an incident report on the same day as the accident (Ex T1 document T74) in which he filled out the box headed “Nature of injury or illness apparent at time of report and part of body affected”. He put “sore top lip & front teeth sore neck” (emphasis added). The document was filled out according to Mr Tracy at about 8.30 pm in the presence of Mr Wayne Hart, his immediate supervisor.
7. The next day, Mr Tracy went to work. The Respondent stood him down from driving pending investigation and required him to be assessed for his driving duties (Exhibit T1 p 220), which involved having a medical assessment because of the severity of the accident (Exhibit T1 p 222). A facsimile was sent by Mr Hart that day to the Kariong Medical Centre which described the “Nature of Injury: Re-assessment for driving after serious accident” and asking “Please arrange for the employee to be examined in relation to fit for driving duties. Please fax a completed Fitness for Duty Certificate to the number above on completion of the examination” (Exhibit A3). He was taken to the Kariong Medical Centre by a fellow employee for the examination. The medical certificate completed by Dr Alhejaj and dated 10 March 2003 (Ex T1 p 223) recorded “physical examination normal, abnormal visual acuity need to check by optimetrist [sic]”. Mr Hart arranged an eye test with an optometrist which Mr Tracy passed (Ex T1 p 222).
8. In support of his case that there was no relationship between the accident and the symptoms, Mr Polin appearing for the Respondent emphasised that Mr Tracy did not seek medical attention for the symptoms of pain in the left eye and headaches on the left-hand side of his skull until May, and suggested that Mr Tracy had not reported his symptoms to Dr Alhejaj. He pressed Mr Tracy in cross-examination about there being no report of any person injured in the police report (Exhibit A8). He also questioned the fact that Mr Tracy had not mentioned the accident to a doctor until August 2003.
9. I accept Mr Tracy’s evidence that he did injure his neck at the time of the accident and sustained a headache, both of which improved, and that later the headaches returned and worsened. I also accept that he did report some of his injuries to the police officer at the time and the next day to Dr Alhejaj who told him he probably had a soft tissue injury. Mr Tracy also stated that in his request for reconsideration of 10 October 2003 that he had told that doctor that he had a sore neck, mouth and headache. Dr Alhejaj was not examining Mr Tracy as a patient but rather for the purpose of determining for Australia Post whether he was fit to drive. Having determined that his visual acuity was abnormal, he had done what he had been asked to do. From Mr Tracy’s evidence, he had gone to work that day and was not feeling too bad. It is likely he described his injuries to the doctor but said he was not feeling too bad. In that circumstance, Dr Alhejaj’s response that he had probably suffered soft tissue injury was accurate, and given the doctor’s task, the fact he did not note those injuries is not surprising.
10. I also accept that after the accident Mr Tracy had strange headaches that would come and go and which became more severe over a period of time until he went to see his general practitioner about them. He described how at that time when he bent over he felt as though his left eye was being forced out. He said the headache was concentrated for 5 to 15 minutes but would subside in time. He took soluble aspirin. His explanation for the delay in seeking medical attention provided in his reconsideration request dated 10 October 2003 is reasonable. He said he believed the erratic headaches he was suffering were caused by the “stress surrounding the incident and subsequent investigation from Australia Post management”.
11. As to why he had not reported the accident to a doctor before August 2003, Mr Tracy said that he had been told by three different “doctors”, Doctors Anderson and Hayes and by his superior Mr Hart whose wife was “almost” a doctor, that he had possibly had a stroke and was “conditioned” to thinking that he had and had therefore not linked the accident with his symptoms. He had also referred to this belief in his application for reconsideration.
WHAT IS THE CORRECT DIAGNOSIS OF MR TRACY’S CONDITION?
12. The first record of Mr Tracy’s complaining of left eye pain and headaches is in Dr Anderson’s Progress Notes (Exhibit A6). There are two such records in May 2003 but the photocopied document does not include the exact date. The second of the May Progress Notes has “urgent R to Dr P. Hayes 4.10 pm”. Dr Hayes is an ophthalmologist who saw Mr Tracy on a number of occasions (Exhibit A4), the first being 29 May 2003 upon referral by Dr Anderson.
13. From all of the evidence it is clear the first attendance on Dr Anderson was on 26 May 2003 when a Certificate of Sickness relating to the symptoms was issued by Dr Anderson (Exhibit T1 p 224) certifying Mr Tracy unfit for work on 26 and 27 May 2003. He attended Dr Anderson for the second time on 29 May 2003 when the doctor urgently referred him to Dr Hayes whom Mr Tracy saw the same afternoon. That is apparent from the note referred to above and Mr Tracy’s evidence.
14. There are numerous other Certificates of Sickness relating to the same symptoms and certifying Mr Tracy unfit for work thereafter from Dr Anderson and one from Dr Heard (Ex T1 document T76).
15. On 6 June 2003 Dr Hayes referred Mr Tracy to Dr Heard, neurologist. Doctor Heard recorded the following history from Mr Tracy in his report dated 16 June 2003 (Ex T1 document T79):
“Six weeks ago he began to experience pain in, above and behind the left eye. This was episodic initially with individual episodes lasting 15-30 minutes. Attacks would occur once or twice a day or he could go a couple of days without pain. ... At first he was not sure whether there was any particular trigger of the pain but as time has passed he realises that the pain is reliably brought on by coughing or bending over. If he coughs the pain may appear and then persist for 15-30 minutes after he has ceased coughing. Pain occurs during the night and seems to be worse if he rolls to the left side.”
16. The doctor noted “objective sensory loss above and behind the left ear possibly within the territory of the postauricular nerve. … There are multiple sites of severe tenderness, particularly over the left supraorbital ridge and the left temporal region.” Doctor Heard concluded “the cause of his pain is obscure at this stage”. He booked an MRI scan for Mr Tracy later that day.
17. In his report of 5 August 2003 (Ex T1 document T81), Dr Heard noted that the MRI scan was normal and continued:
“His left-sided headaches have continued but they have lessened in severity slightly. On examination today his scalp tenderness seems more obviously localised to the left nuchal ridge. There is exquisite tenderness over the occipital nerve where percussion will reproduce pain in the left forehead and retro-orbital regions. He also describes pain as being sharp or stabbing in quality. These features suggest that his pain maybe due to occipital neuralgia”.
18. He discussed treatment options with Dr Tracy of massage and a tricyclic at first with the possibility of other treatments if necessary.
19. In his next report of 26 August 2003 (Ex T1 document T83), Dr Heard noted that Mr Tracy’s headaches had continued to improve, he was tolerating the tricyclic well but was yet to organise massage. Significantly, he said:
“Today he added some further history which in retrospect could have been very useful at the time. He was involved in a single vehicle accident a few days before the onset of these headaches and it is very likely that he suffered a whiplash type injury. This would be an accepted cause of sub-occipital muscle spasm and occipital neuralgia.”
20. Professor Lance saw Mr Ewings for medico-legal purposes on 20 January 2004 and provided a report of the same date (Exhibit A2). He recorded the history of the accident and stated that Mr Tracy worked in the mail centre until 21 March 2003 when he was allowed to drive again.
“Since then, when bending down, he has felt a pain in his left temple and behind his left eye which may persist for 5-10 minutes. This seems to come on after he experiences a pain in the left side of the upper part of his neck and can be brought on by any jar, such as driving over a bump in the road.
“The pain in his left upper neck, left temple and orbital region became constant about the middle of April and progressively became more severe. He stopped driving early in May …”.
21. Professor Lance found tenderness “over [Mr Tracy’s] left occipital nerve and the upper facet joints on the left side of his neck. Sensation to pin prick was diminished over the back of his head on the left side, becoming normal just above his left ear which is the junction of the territory innervated by the left occipital nerve and the left trigeminal nerve”. His conclusion was that Mr Tracy had sustained a whiplash injury in the accident which caused a variety of occipital neuralgia. He gave a detailed explanation of the pathology of that condition. Professor Lance’s report of 6 August 2004 (Exhibit A2) considered three of Dr Mellick’s reports but maintained his diagnosis.
22. Dr Mellick provided four reports to the Tribunal (Exhibit R1). He saw Mr Tracy on 4 March 2004 and found no abnormalities on examination. He concluded that the symptoms Mr Tracy complained of, namely “soreness … over the vertex with some extension downwards into the occipital region and laterally and anteriorly in the left temporal region. … constantly present”, “did not include any which raised the likelihood of an intracranial, cervical or neural cause”. He also said any neck soreness would have been the result of mild muscle strain which would have fully resolved. “The pattern of the existing symptoms is in keeping with mild tension headache” unrelated to trauma. Dr Mellick provided critiques of the opinions expressed by Professor Lance and Dr Heard in his reports, particularly those of 15 July and 19 August 2004.
23. The Tribunal had the benefit of concurrent evidence given by Professor Lance and Dr Mellick personally, and by Dr Heard over the telephone. Each doctor maintained the diagnosis previously made despite cross-examination and vigorous debate.
24. Mr Polin emphasised inconsistencies in histories given to the various doctors and that optical neuralgia can have a spontaneous onset. He emphasised that Professor Lance and Dr Heard had taken histories of onset of pain immediately after the accident. Given the problems Mr Tracy said he had with his short term memory, Mr Polin argued I should rely heavily on Dr Anderson’s contemporaneous note and look at the objective corroborative evidence.
25. Having considered all the medical evidence, I prefer the opinions of Dr Heard, a treating doctor, and Professor Lance. While it is possible for occipital neuralgia to occur spontaneously, in the circumstances of this case I conclude that Mr Tracy suffers from occipital neuralgia which was caused by a whiplash injury suffered during the accident. Following the accident he suffered erratic headaches which gradually increased in severity to the point where on his second visit to Dr Anderson in May 2003, the doctor referred him urgently to Dr Hayes. The condition incapacitated Mr Tracy for work as is apparent from the medical certificates provided from 26 May 2003 onwards (Exhibit T1 Document 76).
DOES THE TRIBUNAL HAVE JURISDICTION IN THIS CASE TO MAKE A DETERMINATION PURSUANT TO S 16 OF THE SRC ACT?
26. As set out at the beginning of this decision, Mr Tracy filled out a form “Claim for Compensation and Rehabilitation” (Exhibit T1 document T84) on 5 September 2003 which was lodged with the Respondent on 16 September 2003. The claim specified the injury/disease as “oceipdel nearalgea Left side of my neck bad pain along l/h/s of head & into l / eye”. The determination of 19 September 2003 (Exhibit T1 document T85) denied liability under s 14 of the SRC Act. The content of that document indicates that the only medical evidence provided in support of the claim were certificates from Dr Anderson, one of which indicated that the cause was “obscure”. The request for reconsideration on 10 October 2004 (Exhibit T86) referred to Dr Heard and indicates that his reports were provided. The reviewable decision of 29 October 2003 affirmed the determination of 19 September 2003.
27. Mr Richards submitted that the Respondent failed to consider a clear claim pursuant to s 16 for medical treatment in 2003 and failed to serve a notice pursuant to s 61 providing the terms of the determination, its reasons for that determination and a statement as to the availability of a reconsideration of the decision.
28. He said the Respondent in its determination noted the treatment by Dr Anderson but failed to consider the neck injury which was referred to by Mr Tracy in the Incident Report (Exhibit T1, document T74).
29. As I understood his submission, Mr Richards’ argument was that at the time of the reconsideration, there should have been taken into account a claim for the “treatment” by Dr Alhejaj, Dr Anderson, Dr Hayes and Dr Heard in relation to neck pain, occipital neuralgia, headache and eye investigation resulting from the accident. On the material before the Tribunal, Mr Richards argued that I should make a determination pursuant to s 16 in respect of Dr Alhejaj, Dr Anderson, Dr Hayes, Dr Heard and Dr Khoury who carried out an MRI scan (Exhibit A5). He said it was reasonable for Mr Tracy to have had the treatment and investigations carried out by those various doctors.
30. In support of the submission, Mr Richards said s 14 is not a gateway or pre-requisite for the consideration of a s 16 claim and relied upon Lees v Comcare (1999) 56 ALD 84 at paragraph 18:
“Sections 15 and 16 of the Act provide for the payment of compensation to employees in circumstances which fall outside s 14 of the Act. … Section 16 provides for an employee who suffers an injury to receive compensation in respect of medical expenses whether or not the injury results in death, incapacity for work, or impairment” (emphasis added).
31. Mr Polin for the Respondent submitted that the claim form was not an application for medical expenses and that the reviewable decision only relates to s 14. He said a different form is to be submitted in relation to a s 16 claim. He referred to Tilley and Comcare [2002] AATA 560 (9 July 2002) paragraphs 35 to 39 to support a submission that a failure to make a decision does not enliven the jurisdiction of the tribunal. After the hearing, Mr Polin also supplied the decision of Comcare v Sassella [2001] FCA 1514 (8 November 2001). Further, he argued that there was not a failure to make decision and the Applicant seeks to imply into the application something that is not there.
32. Mr Richards disagreed with Mr Polin saying there was only one claim form for s 14 and s16 and pointed out that the claim form which Mr Tracy filled out asks when you first received medical treatment and must include a medical certificate. He also emphasised that there was no distinction between investigation and treatment for the purpose of s 16. He argued that Australian Postal Corporation v Oudyn [2003] FCA 318 (10 April 2003) was relevant rather than Tilley as it was a more recent decision.
33. The starting point for analysis of the matters arising in relation to this issue is s 54 of the SRC Act which relevantly provides:
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17 – a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.”
34. Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
35. The validity of Mr Tracy’s claim is not in issue. The question is whether it includes a claim for medical expenses. Although Mr Polin asserted there were different forms for claims pursuant to s 14 and s 16, he did not tender them.
36. On its face, the form filled in by Mr Tracy on 5 September 2003 is a form issued by the Respondent.
37. Following inquiries I made which disclosed various forms apparently approved by Comcare, including claims forms for medical expenses, the parties were invited by letter dated 12 October 2004 to make submissions about those forms. For convenience that letter was included in the evidence (Exhibit T3). The parties were united in stating that there was only one form used by Australia Post, that is a Claim for Rehabilitation and Compensation such as Mr Tracy filled out. The Respondent’s response became Exhibit R2 and the Applicant’s response became Exhibit A10.
38. Therefore, although s 54(2)(b) requires a medical certificate in a form approved by Comcare to be provided in relation to claims for compensation other than, relevantly, under s 16, it seems agreed that there is no such form relevant to Australia Post. There was no evidence as to any practice that is followed in relation to medical expense claims.
39. The claim form filled in by Mr Tracy has no space to claim, specifically, medical expenses. The application for reconsideration did not refer to medical expenses. The only reference in the claim form to medical information was a section headed “Authorisation for Medical Information”. It required the applicant to authorise the doctors who had treated him to provide reports to Australia Post. Mr Tracy specified the injury or condition as “OCEIPdEL NEARAGEA”, provided his full name in block letters, signed and dated it where required.
40. Below the section filled in by Mr Tracy, the form stated:
“Please make sure that:
. You have attached a medical certificate
and
. You have signed and dated the statement and the medical authorisation.”
41. Although not specifically identified in Exhibit T1, it seems from the determination of 19 September 2003 that Mr Tracy provided with his claim a number of certificates from Dr Anderson, the earliest being dated of 26 May 2003. The application for reconsideration (Exhibit T1 pages 250 and 251) includes reference to seeing Dr Heard. Exactly what comprised the five enclosures is not clear, although that Dr Heard’s reports of 16 June 2003 and 26 August 2003 were included as apparent from the reconsideration decision (Exhibit T1 pp 253 to 254).
42. The second last paragraph of the request for reconsideration said:
I hope that this renewed and additional information will help you find, like I have, that my condition was the result of physical injuries that I sustained in the vehicle accident I was in on 9 March 2003.
43. Although the decision-maker knew Mr Tracy had consulted various medical practitioners, there was simply no consideration of such a claim in the decision made on 19 September 2003 (Exhibit T1 page 249) or on reconsideration (Exhibit T1 page 254). Therefore, I consider that there has been no “decision” and no “reviewable decision” pursuant to s 60 of the Act in respect of a s 16 claim. This conclusion is consistent with the decisions in Tilley and Sassella. There has not been a “refusal” to make a decision such as was the case in Oudyn. The matter was simply not adverted to. It cannot be said that a mental process was engaged which gave rise to a conclusion and which in turn translated into a decision, to summarise the language used in Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422, referred to in Sassella. The fact that there is apparently no claim form specifically for medical expenses used by the Respondent does not affect this conclusion. The question is whether there has been a reviewable decision not whether there was an application (implied or express) for medical expenses.
44. Accordingly the Tribunal has no jurisdiction to make a determination pursuant to s 16 of the Act.
DECISION
45. The Tribunal decides as follows:
1. The reviewable decision dated 29 October 2003 is set aside.
2. Substituted therefor is the following:
(a) Mr Tracy suffered an injury to his neck in a motor vehicle accident on 9 March 2003 that resulted in occipital neuralgia which incapacitated him for work for the first time on 26 May 2003.
(b) Accordingly, the Respondent is liable pursuant to s 14 of the SRC Act.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member
Signed: Guy Moloney .....................................................................................
Associate
Date/s of Hearing 23-24 August 2004
Date of Decision 29 October 2004
Counsel for the Applicant David Richards
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Nick Polin
Solicitor for the Respondent Sparke Helmore
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