Trajanoski and Comcare
[2003] AATA 385
•6 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 385
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/50
GENERAL ADMINISTRATIVE DIVISION ) Re VELICE TRAJANOSKI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date6 March 2003
PlaceCanberra
Decision For reasons given orally the Tribunal sets aside the decision under review dated 16 January 2002 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:
(a) Mr Trajanoski’s compensable condition of an aggravation of his cervical spondylosis has not ceased;
(b) Mr Trajanoski continues to be entitled to incapacity payments pursuant to section 21 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”);
(c) Mr Trajanoski has not been able to earn any amount in suitable employment;
(d) Mr Trajanoski continues to be entitled to compensation for reasonable medical treatment pursuant to section 16 of the Act;
(e) Consultations with Mr Trajanoski’s general practitioner are reasonable medical treatment;
(f) Additional evidence is required to establish whether chiropractic treatment, massage treatment and gym expenses are reasonable medical treatment.
The Tribunal orders the Respondent to pay the Applicant’s costs as agreed or taxed.
....................(sgd)..................
Member
CATCHWORDS
COMPENSATION – neck pain and cervical spondylosis – whether underlying condition aggravated – whether aggravation has ceased – whether employment made material contribution to aggravation – whether continues to be partially incapacitated – ability to earn in suitable employment – entitlement to medical expenses
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 21
Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Casarotto v Australian Postal Commission (1989) 86 ALR 399; 17 ALD 321; 10 AAR 191
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Martin v Australian Postal Corporation (1999) 29 AAR 420
Commonwealth v Beattie (1981) 35 ALR 369
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
REASONS FOR DECISION
29 April 2003 Mr G A Mowbray History of the Application
1. On 11 February 1997 Velice Trajanoski made a claim for rehabilitation and compensation for "neck and shoulder pain" with the date of injury given as 3 February 1997. The pain occurred when mopping, stripping and polishing for long periods. Both Mr Trajanoski and his doctor believed the injury was the result of prolonged and repetitive use of the same muscles. On 5 June 1997 Comcare advised that it had accepted the claim for "C5/6 disc prolapse".
2. On 22 April 1999 Mr Trajanoski completed a compensation claim for permanent injury. On 23 June 1999 Comcare determined that compensation for permanent impairment was not payable and the applicant's solicitors requested a reconsideration on 11 July 1999. On 21 October 1999 Comcare affirmed the determination denying compensation for permanent impairment. On 21 March 2000 the Tribunal issued a consent decision assessing Mr Trajanoski's level of permanent impairment arising from "C5/6 disc prolapse" as 10 per cent under table 9.6 of the guide approved under the Safety Rehabilitation and Compensation Act 1988 (“the Act”) with no other permanent impairment assessable.
3. On 9 October 2001 Comcare notified Mr Trajanoski it intended to cease liability for his condition. On 19 November 2001 Comcare determined it was no longer liable to pay compensation "under any provision of the Act". On 20 November 2001 Mr Trajanoski's solicitors requested a reconsideration. On 16 January 2002 an independent review officer affirmed the determination of 19 November 2001. The application for review of this decision was made to the Tribunal on 31 January 2002.
4. The hearing for this matter was held on 25-27 February 2003. Mr Trajanoski was represented by Mr Allan Anforth and Comcare was represented by Mr Ben Dubé.. Oral reasons for decision were given on 6 March 2003 setting aside the decision under review and remitting the matter to Comcare. On 18 March 2003 the Tribunal received a request for written reasons for the decision from Comcare’s solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Background
5. Mr Trajanoski was born on 9 April 1960. He obtained employment as a cleaner with the Department of Defence in 1986. On 10 March 1999 the Department of Defence informed him it intended to declare him excess as his cleaning position was to be abolished. He subsequently took a redundancy package, his employment officially ceasing on 9 July 1999.
Issues
6. There are two broad issues before the Tribunal. The first is whether Mr Trajanoski is entitled to compensation under section 19 and related provisions of the Act since 19 November 2001 for his cervical spine condition, which is expressed in pain in the shoulder and neck and in headaches. The second is whether Mr Trajanoski is entitled to compensation under section 16 of the Act for certain expenses since 19 November 2001.
7. Both parties agreed on the following
· Mr Trajanoski suffers from an underlying constitutional degenerative condition to his cervical spine, that is cervical spondylosis. This was described in a variety of ways by doctors in their written reports and oral evidence. For example Dr Griffith described it as "minor cervical disc prolapse C5/6 and disc bulge C4/5"
· Mr Trajanoski suffers from neck and shoulder pain and headaches
· Mr Trajanoski's employment did not cause the cervical spondylosis. This was conceded by Mr Anforth for Mr Trajanoski for the purposes of this application as unnecessary for his case
· there was no specific incident or trauma at work which might have caused a discrete or frank injury
· the termination of Mr Trajanoski's employment with the Commonwealth was not voluntary
· the Commonwealth had not offered Mr Trajanoski any suitable employment since his redundancy.
8. The Tribunal therefore is left with the following questions
· has Mr Trajanoski's underlying cervical spondylosis been aggravated
· if so, was any such aggravation temporary and has it ceased
· if any such aggravation has not ceased, did Mr Trajanoski's employment by the Department of Defence as a cleaner make a material contribution to this aggravation
· is Mr Trajanoski incapacitated for work as a result of any such aggravation or injury
· what was Mr Trajanoski able to earn in suitable employment
· is Mr Trajanoski entitled to compensation for any medical expenses as a result of any such aggravation or injury?
Legislation
9. The relevant provisions of the Act are as follows. Section 19 is reproduced as it was prior to 1 April 2002, that is prior to the amendments in Act No.144 of 2001
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“aggravation” includes acceleration or recurrence.
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
…
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
“medical treatment” means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
…
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
…
…
“suitable employment”, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…
“therapeutic treatment” includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…”
“14 Compensation for injuries
(1) 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.
…”
“16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…”
“19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated using the formula:
NWE – AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a) where the employee is not employed during that week—of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…”
“21 Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
(1) This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3) The amount of compensation is an amount calculated under the formula:
where:
AC is the amount of compensation that would have been payable to the employee for a week if:
(a) section 19, other than subsection 19(6), had applied to the employee; and
(b) in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).
SA is the superannuation amount; and
SC is the amount of superannuation contributions that would have been required to be paid by the employee in that week if he or she were still contributing to the superannuation scheme.”
Evidence
10. The Tribunal had before it “T-documents” (lodged under section 37 of the Administrative Appeals Tribunal Act 1975) T1 to T242, Applicant's exhibits A1 to A8 and Respondent's exhibits R1 to R17.
11. Oral evidence was provided by the following
· Mr Trajanoski
· Dr John Azoury, Mr Trajanoski's general practitioner
· Professor Sidney Nade, consultant orthopaedic surgeon
· Dr David McGrath, musculoskeletal, occupational and pain medicine physician
· Dr Gytis Danta, neurologist
· Dr Graeme Griffith, consultant surgeon
· Mr Mark Ryan, Mr Trajanoski's chiropractor
· Mr Harold Schaeffer, consultant neurosurgeon
· Dr Alan Searle, consultant occupational surgeon.
Consideration of Issues and Findings
Cease liability effects decisions
12. As I have said before, in many “cease liability” or “cease effect” decisions under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated
“49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.
50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.
…
55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.
56. That is to say, the effect of the determination that “liability in respect of this injury ceased on and from 5 February 1995” was not a decision to “cease liability” altogether or to “cease liability” under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.
…
58. The conclusion I have reached, namely, that at its highest, Telstra’s determination only ceased payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236.”
13. Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt.
14. In these proceedings the reviewable decision is a cease liability decision. Mr Dubé for Comcare accepted that the effect of the determination is to cease liability under sections 16 and 19 and related provisions of the Act from November 2001, consistent with the Carson decision. That is how I will deal with this matter.
The burden of persuasion
15. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the “burden of persuasion” in these matters.
16. First, in relation to claims to establish liability for an injury or permanent impairment flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the permanent impairment and that they were work related. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]
“However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element.”
17. Secondly, where the relevant reviewable decision is one “ceasing liability” the authorities refer to an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O’Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances
“In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances.”
18. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms
“I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist.”
19. In Comcare v Nichols Justice Heerey said at [22]
“In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied.”
20. Nichols is consistent with the earlier authorities and is the approach I will adopt in considering this “cease liability” matter in these proceedings.
Has Mr Trajanoski's compensable injury ceased to have effect?
21. In this section I propose to deal with the first three questions set out at paragraph 8 above, namely
· has Mr Trajanoski's underlying cervical spondylosis been aggravated
· if so, was any such aggravation temporary and has it ceased
· if any such aggravation has not ceased, did Mr Trajanoski's employment by the Department of Defence as a cleaner make a material contribution to this aggravation?
These questions have to be posed and answered in the context of a cease liability reviewable decision, that is, where the Tribunal has to be satisfied of a change in circumstances since liability was accepted.
22. By virtue of the definitions of “disease” and “injury” in section 4(1) of the Act, an aggravation of an ailment is a disease and therefore a compensable injury. An aggravation includes an acceleration or recurrence.
23. I was referred to a number of authorities on what constituted an aggravation. In Casarotto v Australian Postal Commission (1989) 86 ALR 399; 17 ALD 321; 10 AAR 191 Justice Hill said at 405; 327; 197
“These quotations illustrate what appears in any event from the ordinary English meaning of the words "aggravation" and "acceleration", namely that "aggravation" connotes the disease becoming more severe and "acceleration" connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of the disease.”
24. In Tippett v Australian Postal Corporation (1998) 27 AAR 40 Justice Finkelstein said at 44
“This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”
25. More recently Justice Gyles in Australian Postal Corporation v Bessey (2001) 32 AAR 508 noted at 509-10
“6. It has been well settled by a series of decisions starting from Jordan CJ’s judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
7. In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
8. This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.”
26. Mr Anforth also brought the decision of Justice Burchett in Martin v Australian Postal Corporation (1999) 29 AAR 420 to my attention, especially the following paragraphs at 431-2
“24. The same problem came under consideration in the High Court of Australia in Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19. The appeal there involved a worker suffering from a spinal infection which had not disabled him but would, unless treated, in the ordinary course of events have progressed to produce a collapse of vertebrae and incapacity. He suffered at work an injury, aggravation or acceleration of his condition, resulting in total incapacity. The appellant contended, as Barwick CJ said (at 22), that “any aggravation … was of limited duration, that is to say, was limited to that period which would elapse between the date of the collapse of the vertebrae and that time at which in any event the disease of its own course would have caused incapacity.” Barwick CJ pointed out (at 23) that there was “no evidence upon which the time could be established at which total incapacity would have occurred due to the progress of the infection alone”. He said (at 26-27):
“An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s 9 of the [Workers’ Compensation Act 1926]. … If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.”
It is obvious that this reasoning could equally be applied to the Act with which I am concerned, which also contains provisions (noted above) bringing an aggravation or acceleration within the statutory concept of an injury.
…
In my opinion, Casarotto should not be understood as trenching upon the well accepted principle stated by Barwick CJ in Darling Island, but as an instance of minor injuries that did not produce any acceleration or significant aggravation of the underlying condition. The tribunal of fact had held such aggravation as had occurred to have been but evanescent in its effects. Casarotto was quite a different case from the present, where Mr Martin’s asymptomatic condition was made symptomatic, not just for a time, but so as to continue increasingly to cause pain and disability thereafter.”
27. The decision in Commonwealth v Beattie (1981) 35 ALR 369 at 377 confirms the proposition that
“[T]here may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology. Whether there is an exacerbation or an aggravation in such a case will be a question of fact.”
Furthermore, it is also authority for the view (at 378) that
“[P]ain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”
28. This is further reinforced by Justice Finkelstein at page 44 in Tippett:
“What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival at 179-180; 209-210.”
29. For an aggravation of an ailment to be a disease, and therefore an injury, it must be “an aggravation that was contributed to in a material degree by the employee's employment“ – see section 4(1).
30. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 the Full Federal Court said at 323; 328; 541-2
“In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic of or condition in which the work was to be performed” and that such exposure was in truth a “contributing” factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a “contribution”… All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not “contribute”.
The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
31. I now turn to the evidence in the current matter. Firstly, the evidence of Mr Trajanoski can be summarised as follows
· he commenced work with the Department of Defence at HMAS Harman as a cleaner in October 1986
· prior to this he was free of any neck or back injury, nor had he suffered headaches before this time
· Mr Trajanoski's work duties included using a polishing machine, carrying a backpack vacuum cleaner, stripping and polishing floors, buffing, moving heavy tables and chairs, emptying rubbish bins and cleaning toilets and bathrooms
· he could not recall when he first experienced neck pain. However it was well before he reported it
· in 1992 he saw Dr Azoury for neck pain, although he could not recall any shoulder pain or headaches at that time
· between 1992 and 1995 he experienced neck pain from time to time and by 1995 the symptoms had increased
· by early 1995 he was suffering stronger pain in the neck and shoulder and headaches. As a consequence, he had his eyes, ears and teeth examined
· following his return to work after the 1996 Christmas break he had severe neck and shoulder pain and Dr Azoury sent him for a CT scan, which showed a disc prolapse
· later in 1997 the cleaning jobs at Harman were outsourced, and Mr Trajanoski was thereafter employed in a variety of administrative and clerical tasks elsewhere in the Department of Defence
· he finished with the Department of Defence on 9 July 1999.
32. Mr Trajanoski said that since 1997 he has had neck and shoulder pain which is virtually continuous. His first severe headaches developed between 1995 and 1997. Although he accepted that he had had leave on a number of occasions before then for headaches, some of this leave might have been for migraines and unrelated headaches. The severity of the headaches significantly increased from about 1994/95 onwards. The neck and shoulder pain and headaches have affected his capacity to sleep.
33. Mr Trajanoski testified that he had not undertaken anything outside work that had contributed to his condition or made it worse. He had been involved in soccer principally as a coach but did play some games in 2002, although only one was a full game. He avoided things like heading the ball. He had jogged on occasion but this aggravated his neck. He had been attending a gym to do stretches and exercise. Some times he had done chin ups, but if he felt a pain in his neck or shoulder he would stop. He had not been attending the gym continuously. There had been breaks in his attendance. His doctors had encouraged him to do certain muscle strengthening exercises at the gym. Mr Trajanoski had also attempted work as an electrician's assistant for a couple of months, but had found he could not continue because of his condition.
34. Mr Dubé for Comcare challenged the credibility of Mr Trajanoski and the reliability of his evidence. He submitted that Mr Trajanoski’s evidence on events since ceasing employment with the Commonwealth was evasive. He was untruthful or not frank with the doctors. He had difficulty remembering events even the day before the hearing. Some of his evidence was contradictory and inconsistent. He gave some evidence begrudgingly.
35. Mr Anforth for Mr Trajanoski strongly contested this view. He submitted Mr Trajanoski was perfectly consistent, open and not evasive, even if he had struggled as anyone would in seeking to remember certain events or their details.
36. I largely accept Mr Anforth's submissions on the credibility and reliability of Mr Trajanoski. I observed Mr Trajanoski's demeanour in the witness box and his response to the questions put to him. I found him open and honest. He might have exaggerated a little, or have been somewhat casual. He also may have been more broad-brush than is desirable and there certainly were some contradictions in his evidence. But overall I am satisfied that he attempted to be truthful and that his evidence is generally reliable.
37. In his report of 25 October 2001 (T232) Dr Azoury, Mr Trajanoski's general practitioner, said
“I would like to clarify some issues in Mr Trajanoski's work related injury. He has cervical spine related pain with headaches.
He noted these were aggravated at work especially when his neck was in extreme positions of flexion and extension.
These pains occurred intermittently and were certainly worse when performing his normal duties.
A CT scan did in fact show disc prolapse/bulging at two levels C4/5 and C5/6…
A recent MRI scan has shown left C5/6 disc bulge with left C6 nerve root compromise.
…
The conclusion after much deliberation and input as well as various trials of a graduated return to work was that he had developed a chronic painful neck condition and that he would not be able to return to his former duties in cleaning.
…
In summary
He remains in intermittent pain from his neck. This is aggravated by physical work especially when his neck is in extreme positions.
…”
38. Dr Azoury confirmed this in his oral evidence. He noted
· Mr Trajanoski's pain was intermittent and recurrent
· at 19 November 2001 there had been no improvement in Mr Trajanoski's condition
· the first record he had of neck pain was in March 1995 and for headaches October 1995, although Mr Trajanoski had said on that occasion that he had experienced headaches for about two years
· he was aware Mr Trajanoski was attending a gym and he would encourage him to do so for muscle exercise and rehabilitation.
39. Professor Nade, a consultant orthopaedic surgeon, reported on 24 May 2002 (Exhibit R8)
“Mr Trajanoski has cervical spondylosis, a constitutional degenerative condition affecting intervertebral discs and synovial joints of his cervical spine, particularly at the levels between the fifth and sixth, and sixth and seventh cervical vertebrae.
…
[I]t is my opinion that the condition commenced some years prior to 1997, although it is not possible to state how many.
…Mr Trajanoski said that there was no specific incident at work that precipitated his headaches. Headaches were his initial symptom for which he consulted his general practitioner. He did not advise me of any incident that occurred at work that might have precipitated cervical spondylosis. In my opinion, work as a cleaner is not an initiating factor of cervical spondylosis.
…
…Mr Trajanoski did not relate the onset of headaches to his employment until he found that when he took a holiday of six weeks he had less headaches…
I do not consider that the applicant's employment was a material contribution to his current state.”
40. Professor Nade testified in oral evidence that
· work as a cleaner would not aggravate an underlying cervical spondylosis unless there was a specific incident. Wear and tear would not be sufficient
· there is no correlation between the degree of spondylosis and pain
· it is unknown what causes the transition from a pain-free to a painful condition
· he was not in a position to say whether robust activity such as cleaning could make cervical spondylosis symptomatic
· cervical spondylosis may be made more painful by repetitive movements of the neck
· some people with cervical spondylosis suffer occipital headaches which may be related to that condition, but shoulder pain could not be due to that condition
· if a joint is already painful, exercise to that joint would increase the pain.
41. Mr Trajanoski attended Dr McGrath, a musculoskeletal, occupational and pain medicine physician, on 28 November 2002 at the request of his lawyers. His report (Exhibit A6) includes the following passages
“[T]he origin or source of his neck pain has never been precisely established and a diagnosis therefore does not exist other than non-specific neck pain…
Some doctors have stated that he has cervical spondylosis. Unfortunately this is not a diagnosis of a painful condition as its correlation with pain is very poor… He may have cervical spondylosis and in fact does as evidenced by the radiological finding but this is largely immaterial to his pain. When cervical spondylosis is interpreted as a risk factor for the development of pain in the lumbar spine it calculates to be around 30% fraction. Assuming similar figures apply for both the neck and the lower back a person in pain who has cervical spondylosis could be seen as having a 30% contribution from cervical spondylosis to his or her pain. Stated another way cervical spondylosis does confer risk of having pain to a 30% etiological contribution. 70% of Velice's pain must be explained by other means.
With respect to his occupation as a cleaner the epidemiological data is far from complete. People with physical occupations do have a higher rate of sprains to the spine but Velice does not report a history of discrete events. Occupational contribution to spinal pain is not as great as is often assumed. Data from South Australia tends to imply that a physically demanding occupation only contributes around 15% to the total problem when compared with sedentary occupations. It would appear that general constitutional or environmental factors account for the majority of spinal disability. No one occupation or class of occupation appears to be immune from the development of this problem. To the extent that Velice was involved in a physical occupation modern epidemiology credits him a 15% contribution from work.”
42. In his oral evidence Dr McGrath said
· as a consultant to a large cleaning company in Canberra he had over 15 years experience with workers in the cleaning industry
· Mr Trajanoski's cervical spondylosis was a little more than expected for a 37 year old man
· although there were multiple causes for spondylosis, demanding physical occupations increased the risk of spondylosis by 10 per cent
· there is no correlation between cervical spondylosis and pain, but a person with spondylosis has a 25 to 30 per cent greater risk of chronic pain
· people in physical occupations such as cleaners have a 15 per cent greater risk of chronic neck pain compared with those in sedentary occupations
· these three risk correlation statistics were separate and should not be linked. Nevertheless, cleaners were at greater risk of developing spondylosis and also of developing neck pain. In Dr McGrath's experience there was in fact an increased incidence of spondylosis and neck pain with cleaners
· often pain from an injured neck can last for many years, for example up to seven years for whiplash injuries. In his view, Mr Trajanoski's ongoing pain was still due to whatever had triggered it in 1992-1995
· it was quite common to recommend muscular strengthening in a gym for people with such neck pain, and a responsible person would desist from certain activities if they caused pain
· he would not discourage a person from coaching soccer if they felt up to it
· a person with neck pain has probably been injured, but this could involve a gradual accumulation of minor traumas over time.
43. Dr Danta, a neurologist, saw Mr Trajanoski on 19 September 2002. He reported as follows (Exhibit A5)
“His symptoms are due to spondylosis and he has headache which is intermittently connected with his neck pain and would be regarded as cervicogenic headache. The cause of all this is wear and tear and one would have to hold his work as a cleaner in large parts responsible for his symptoms, although day to day movement outside the workplace no doubt contributed to his overall state. The pain has now become chronic and he has the disability and the prognosis is very poor and he is likely to continue with the pain and disability indefinitely.
…
…The condition is in part caused by his former employment as a cleaner but is also due to progressive degenerative changes. The employment as a cleaner would contribute to the condition by way of contributing to the degenerative changes… The continued work as a cleaner has certainly aggravated the condition but, is as so often the case, the aggravation does not resolve when aggravating physical activities have ceased and, in fact, his condition has worsened overall since he finished work.
In so far as one holds the work conditions partly responsible for his neck symptoms one would have to also attribute the cervicogenic vascular headache to the work injury.”
44. Dr Danta affirmed these views in oral evidence, noting
· Mr Trajanoski's degree of spondylosis was average or slightly worse than average for his age and sex
· spondylosis can be due to wear and tear, with the more physical the activity the greater the degree of change in the spine
· the cleaners he had seen were more prone to degenerative change than sedentary workers
· he would expect patients with specific spondylosis to be more likely to suffer pain
· once a person experiences neck pain, these symptoms do not necessarily go away
· although physical strengthening exercises in the gym and soccer coaching were acceptable, this would depend on the various activities undertaken.
45. Dr Danta had no doubt that work activities had contributed to the acceleration of Mr Trajanoski's underlying pathological condition and to making the spondylosis painful.
46. Comcare sent Mr Trajanoski to see Dr Griffith, a consultant surgeon, on 1 June 1999. His opinion (T171) included the following
“Currently, it is my opinion that the claimant suffers from:
1. Constitutional degenerative disease of the cervical spine, specifically
1. Minor cervical disc prolapse, C5/6
2. Disc bulge C4/5
2. Secondary stenosis, left cervical foramina C5/6, C4/5.
3. Irritative neuropathy, left C7 dermatome (without positive neurological signs).
Sequel:
1. Myofascial pain, cervical and cervico-dorsal musculature.
2. Mild reactive anxiety/depression (largely resolved currently)
Associated Condition:
1. Cervicogenic headache
2. Cervicogenic migraine (unilateral, occipito-temporal headache).
In my opinion, the disc prolapse seen is consistent with degenerative disease of the spine, and is of long standing. It is not specifically due to any injury suffered on 3.2.97 – this is merely the index date of his claim. It is likely that the degenerative disease present is the cause of his referred pain in his cervical and cervico-dorsal musculature, and to the protective muscle spasm associated with it, itself engendering focal points of myofascial tenderness.
It is likely that the cervical pain is triggering the migraine, with a further contribution from his introspection and stress…
Degenerative disease of this nature progresses slowly over many years in the absence of major trauma. There is no such history to suggest a traumatic origin in this case.
…
Mopping, sweeping and using a back pack vacuum cleaner (a notoriously non-ergonomic device) is consistent with aggravation of the symptoms due to his underlying condition. I do not consider that his employment precipitated the degenerative disease however: it long preceded his index injury date and it is of prior origin.
There is no specific injury related to his neck. He is suffering degenerative disease of C5/6, which is not uncommon in individuals in the 4th decade of life.
…
[In answer to the question “If you believe that an underlying pre-existing condition was aggravated by employment, would you please specify how the aggravation has affected the pre-existing condition.”] I am of this opinion. I consider that the aggravation has produced an increase in his perception of pain. It has not produced any specific acceleration of the degenerative disease of his cervical spine.
[In answer to the question “Is the condition and/or any aggravation likely to be permanent or temporary?] Theoretically, any aggravation should be temporary. There will of course be underlying pain attributable to the condition itself in the absence of aggravation. It is important that this difference is appreciated.
Employment based aggravations cease within a period of some weeks following cessation of his employment related activity…
The condition suffered by Mr Trajanoski, i.e., his repeated aggravation, is related to his employment only as long as he engages in that activity. I would not consider the underlying condition, for the reasons already outlined, is due to his employment or to aggravation by it. I remain of the opinion that the underlying radiological changes seen in the lower cervical spine are of constitutional degenerative origin.”
47. In oral evidence Dr Griffith
· agreed that commercial cleaners were in the exposed risk category for spondylosis
· said that they were very likely to suffer aggravation of spondylosis
· agreed that Mr Trajanoski's workplace did exacerbate his spondylosis, making it symptomatic
· stated that the pain may continue without an obvious cause, and if it had been intermittent between 1992 and 1995 and continuing since 1996 it was likely to become longstanding. This history may suggest neuropathic pain
· said that cervicogenic headaches were rarely unrelated to cervical pain
· said he would prescribe muscle-strengthening exercises in a gym for a person with spondylosis – a person should do what he could tolerate. The same applied to jogging and soccer.
48. Mr Mark Ryan, a chiropractor who first saw Mr Trajanoski for his neck in February 1997 and then on many occasions since, also gave oral evidence. On 1 November 2001 he reported (T235)
“Mr Trajanoski has suffered from recurring aggravation of a lower cervical spine prolapse between C5 and C6.
…
It is clear both clinically and diagnostically Mr Velice Trajanoski has a lower cervical spine prolapse with associated chronic pain and bouts of acute irritation to the C6 nerve roots on occasion.”
49. Mr Ryan's oral evidence was not particularly helpful as he held no clinical notes other than “in my head". He said that if he had felt that soccer was aggravating Mr Trajanoski's condition he would have told Mr Trajanoski to stop for a while.
50. Mr Trajanoski saw Mr Schaeffer, a consultant neurosurgeon, on 19 September 2001 at the request of Comcare. Mr Schaeffer, reported (T230)
“I have found this to be an unrealistic presentation.
He presents as a man who grossly embellishes his condition. There is in fact, no history of any specific injury occurring at work or elsewhere. He simply describes a gradual development of symptoms involving the head, neck and back area, commencing a few years ago.
…
In fact, apart from the existence of some mild degenerative change, consistent with his age group, I can find nothing wrong with Mr Trajanoski and I certainly do not consider that the reported degenerative change would be responsible for the incapacity which he suggests..
I point out further, the diffuse nature of his symptomatology, which is not suggestive of a true physical condition and it should also be understood that symptoms of headache as described by him, are not consistent with a cervical disc lesion.
…
I am unable to arrive at a diagnosis of any physical disease or injury that would explain his persisting allegations of pain and discomfort…
…In fact, I can find no evidence to suggest that he has any true medical condition.
…I do not consider that there is a question of aggravation of a pre-existing condition by the alleged injury in this case.
In my opinion, Mr Trajanoski is not suffering from any effects or disability as a result of the injury of 3 February 1997 or from any sequel of that injury.
…
I do not agree with the apparent diagnosis of “cervicogenic” headache/migraine and cervical brachialgia.
It is my opinion that his presentation is non-physical in origin.”
51. In a second report dated 14 November 2001 (T237) Mr Schaeffer said
“[T]he reported appearances on the CT and MRI scans of the cervical spine are typical of a mild to moderate degree of degenerative spondylosis in the mid-cervical spine, this being a constitutional condition associated with aging. The reported appearances would be commonplace in a 41 year old gentleman. The appearances do not signify the existence of trauma.
…
…I point out yet again the fact that there has never been any clear history of injury in this case and that his symptom complex is totally inconsistent with an injury to the C5/6 disc and that he presents with evidence of a marked degree of magnification of the consequences of injury at the clinical examination.
Furthermore, he has never presented a clinical picture of left sided C6 radicular brachialgia, which would be expected if the appearances at the C5/6 level had any relevance.”
52. Mr Schaeffer confirmed the substance of his reports in his oral evidence. He noted
· the degeneration in Mr Trajanoski's cervical spine was commonplace and consistent with his age
· there was no correlation between one's occupation and spondylosis
· where degenerative change does exist there is a predisposition to aggravation, but the disease would only be extended if there had been a localised injury such as a fracture or trauma
· for pain to continue, one would expect to see major abnormality involving structural change in radiological findings
· chronic pain is more likely to have a non-physical origin
· generalised headaches were not a symptom of cervical spondylosis
· other medical opinion disagreed with his view that pain cannot develop from soft tissue injuries without physical signs.
53. Dr Searle, a consultant orthopaedic surgeon, saw Mr Trajanoski on 5 February 2002 at the request of his solicitors. His opinion was as follows (Exhibit A4)
“The general nature and conditions and obligation of this man's employment caused the gradual development of cervical degenerative changes including disc protrusions and capsulitis of both shoulders… The ongoing symptoms from his neck and shoulder injuries are permanent and cause a moderately severe degree of disability.
…
At the age when these symptoms developed, 35 years, spontaneous development of symptoms from degenerative changes at that age would be very much more possible than probable. In fact such an occurrence would be unlikely. Repetitive minor trauma is one of the commonest causes of the development of degenerative changes. I believe that his current neck and shoulder problems are directly a result of his employment with the Department of Defence. This includes his headaches which are fairly typical of cervicogenic headaches.
I note in the report from Dr Schaeffer dated 27/9/01 that he recorded the painful restriction of movement but overlooked the important unilateral muscle spasm. It is difficult to believe that there was such a change in the physical signs in his shoulder joints between September 2001 and my examination in February this year [2002]…
Whether or not the appearances of the CT scan are “commonplace” at the age of 40 years is irrelevant because the x-ray appearances do not show the presence or absence of pain. Dr Schaeffer also points out that there is no history of any specific injury, but as far as I am aware the patient has never claimed that.
Dr Schaeffer also mentions the man has never presented a clinical picture of left-sided C6 radicular brachialgia and implies that the appearances at C5-6 are therefore irrelevant. He would surely agree that such appearances could cause neck pain.”
54. In his oral evidence Dr Searle stated
· Mr Trajanoski's cervical spondylosis was greater than expected for a person of his age
· spondylosis is a result of both genetic factors and wear and tear on the discs
· certain robust work activities can make spondylosis painful or aggravate the pain already there
· such conditions may settle down but also may persist indefinitely. This is quite common even without any intervening trauma
· in his view Mr Trajanoski's neck and headache pain was partly attributable to his work as a commercial cleaner
· it was quite common for repetitive minor trauma to produce these symptoms. In fact this was more likely than major trauma
· he would support muscle-strengthening exercises at a gym on a trial and error basis. If they were beneficial that would be okay, if painful the person should cease. He had a similar view on soccer coaching, but Mr Trajanoski should not be running.
55. Over the years Mr Trajanoski also was examined by a number of other medical practitioners in relation to his neck condition. A consultant surgeon, Dr Glen, concluded on 25 February 1998 (T72) that it was likely that the cervical disc prolapse was causing Mr Trajanoski's symptoms. Work may or may not have caused the prolapse but it had rendered it symptomatic.
56. On 22 April 1998 Dr Corry, a consultant in rehabilitation medicine reported (T86) that Mr Trajanoski had recurrent migraine which might or might not have been cervicogenic in its precipitation. It was highly unlikely that his employment was significantly contributing to the pathological changes. Dr Corry appears to suggest that employment was probably acting as a temporary aggravant.
57. On 21 September 1998 Dr Cassar, a consultant in pain management
“[C]onfirmed problems of left neck and arm pain based on the cervical C5/6 disc injury and complicating disc prolapse irritation of the adjacent nerve root manifesting as left cervicogenic brachyalgia.” (T114)
58. Dr Roebuck, an orthopaedic surgeon reported on 2 February 2000 that Mr Trajanoski had
“[A] clear significant permanent residual disability in both his neck and his arms as a result of an occupational overuse syndrome sustained [from his employment]” (T200)
59. As noted at paragraph 21 above, because this application involves a review of a decision ceasing liability I have to be persuaded there has been a change in circumstances such that at 19 November 2001 the entitling circumstances had ceased to exist, or put another way that at that date Mr Trajanoski no longer suffered from the compensable condition.
60. I have of course had regard to all the relevant evidence, some of which has been set out above, but in particular
· I have broadly accepted Mr Trajanoski's evidence. He says that since 1997 he has had virtually continuous neck and shoulder pain. I note his evidence regarding his headaches. He says that there has been no significant intervening event
· of the medical specialists only Professor Nade and Mr Schaeffer rejected the view that cleaning could aggravate constitutional cervical spondylosis without a specific incident or trauma
· of the other medical specialists who accepted that cleaning could result in an aggravation, Drs Griffith and Corry were of the view that the aggravation had ceased
· most of the specialists accepted that though there were multiple causes for cervical spondylosis and that cervical spondylosis did not necessarily cause pain, demanding physical occupations increased the risk of spondylosis
· they accepted that a person with cervical spondylosis was at greater risk of chronic pain and that cleaners had a greater risk of chronic neck pain when compared with those in sedentary occupations
· most of the practitioners agreed that spondylosis can be due to wear and tear in one's occupation
· most also accepted that Mr Trajanoski's degree of cervical spondylosis was a little greater than expected for his age and sex
· furthermore, pain from an injured neck can last for many years, even without any change in the underlying pathology. It was also generally accepted that Mr Trajanoski continued to suffer shoulder and neck pain and headaches.
61. Overall, Mr Schaeffer and Professor Nade do not accept that Mr Trajanoski has suffered an aggravation to his cervical spondylosis and certainly not one that was caused by his employment. Drs Corry and Griffith accept that there was a work-caused aggravation but considered it was temporary and has ceased. The other medical practitioners, especially Drs McGrath, Danta and Searle accepted that Mr Trajanoski continued to suffer from a painful aggravation to his cervical spondylosis which aggravation had been materially contributed to by his work. Although other activities such as gym and soccer may have played some part in the pain, these doctors were satisfied that employment as a cleaner at the Department of Defence continued to play a role – a material and non-trivial contribution.
62. In evaluating the medical evidence, I did not find that of Mr Schaeffer convincing. I have real doubts about the comprehensiveness of his consultation with Mr Trajanoski. His notes on the consultation (Exhibit A8) include nothing on the arms and lower limbs and are relatively brief on the head and neck. His evidence is inconsistent in certain respects with other doctors retained by Comcare.
63. On the other hand, the evidence of the other medical specialists presented by both parties was particularly helpful. I was most impressed with that of Drs McGrath and Griffith who brought thoughtful, balanced but realistic assessments to their analyses of the evidence before them.
64. Although it is finely balanced, in the end I cannot be satisfied that Mr Trajanoski's compensable condition had ceased at 19 November 2001, nor that it has ceased to affect him today.
65. Although it is not free from doubt, on the evidence before me I believe that
· Mr Trajanoski's underlying cervical spondylosis was aggravated
· the wear and tear of cleaning work for the Department of Defence to 1997 made a material contribution to this aggravation
· although there may have been little change to the underlying pathology, this has resulted in ongoing and increased shoulder and neck pain and cervicogenic headaches
· this pain in itself is an aggravation of the underlying cervical spondylosis disease and therefore a compensable injury (see Beattie and Tippett at paragraphs 27 and 28 above)
· this injury was not temporary and has not ceased.
The evidence presented by Comcare has not persuaded me otherwise as required (see Nichols at paragraph 19 above).
Is Mr Trajanoski incapacitated for work as a result of this injury?
66. Section 4(9) provides
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
67. No one suggests that paragraph (a) applies, that is, Mr Trajanoski is not totally incapacitated. The issue is whether he continues to be partially incapacitated as a result of his injury.
68. Of all the medical specialists, only Mr Schaeffer contends that Mr Trajanoski is
“[F]it to return to cleaning work on an unrestricted basis in spite of his allegations to the contrary.” (T230, p.349)
69. Professor Nade and Dr Griffith disagree with Mr Schaeffer. Professor Nade said in oral evidence that robust physical work might aggravate Mr Trajanoski’s discomfort and pain in his neck, and would therefore be inappropriate. This confirmed his written view. Dr Griffith stated that if Mr Trajanoski continued in cleaning activities he could anticipate further episodes of aggravation. He said his translation into a physical non-demanding workplace was of great importance and should be encouraged. It would be most unwise for Mr Trajanoski to return to cleaning.
70. I do not need to quote the other medical practitioners who all have found in effect that Mr Trajanoski is partially incapacitated for work as a result of his injury in terms of section 4(9)(b) of the Act. Having regard to all the evidence, I am satisfied that he continued to be so incapacitated at 19 November 2001 and continues to be so today.
71. In light of my findings, Mr Trajanoski has continued to be entitled to incapacity payments pursuant to sections 19 and 21 from 19 November 2001 to the present. Strictly speaking it is section 21 that applies as Mr Trajanoski has received a lump sum superannuation benefit (T186 and T187), but that section refers to the calculations made according to section 19.
What was Mr Trajanoski able to earn in suitable employment?
72. Section 4(1) relevantly defines suitable employment as follows
“suitable employment”, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to…”
73. Mr Dubé for Comcare conceded that paragraph (a) applied to Mr Trajanoski. He did not subsequently terminate his employment for the purposes of that paragraph. Mr Dubé also concedes that the Commonwealth made no offer of suitable employment to Mr Trajanoski during the relevant period. It is therefore unnecessary to determine the particular types of jobs that might constitute suitable employment for Mr Trajanoski. Mr Trajanoski has not been able to earn anything in suitable employment since his redundancy, and I so find.
Is Mr Trajanoski entitled to compensation for any medical expenses as a result of the injury?
74. Section 16(1) provides
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Section 4(1) relevantly defines “medical treatment” as
“(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
…
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
…”
The same section defines “therapeutic treatment” as including
“[A]n examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.”
75. In view of my findings above I am satisfied that Mr Trajanoski continues to be entitled to compensation for medical treatment for his compensable injury that it was reasonable for him to obtain in the circumstances. But was the medical treatment for which Mr Trajanoski seeks compensation reasonable in the circumstances? Indeed, was it all medical treatment for the purposes of the Act?
76. Although it is not totally clear from the evidence, it appears that Mr Trajanoski is seeking compensation for
· consultations with his general practitioner
· certain gymnasium expenses
· chiropractic treatment, and
· massage treatment.
77. There is some evidence before me in relation to some of these claims. For example a number of the medical practitioners question the value of chiropractic and massage treatment. On the other hand Mr Trajanoski said that these alleviated his pain and allowed him to work in his new job.
78. However there is no satisfactory evidence of the nature of the chiropractic and massage treatment provided by Mr Ryan, which would allow me to make a finding whether it was reasonable to obtain in the circumstances. There is not much more than invoices, although I note that Comcare had previously provided compensation for massage and chiropractic treatment.
79. Similarly on the evidence I am not in a position to make a finding about any gym expenses, that is, whether it is medical treatment and whether it is reasonable. On the other hand I believe that the consultation expenses for the general practitioner would be acceptable.
80. I therefore propose to remit this part of the claim to Comcare for determination. Mr Trajanoski should provide additional specific evidence to Comcare in support of these claims.
Conclusions
81. In summary
· I am not satisfied that Mr Trajanoski's compensable condition had ceased at 19 November 2001, nor that it has ceased to affect him today
· Mr Trajanoski has continued to be entitled to incapacity payments pursuant to the relevant sections of the Act from 19 November 2001 to the present
· Mr Trajanoski has not been able to earn anything in suitable employment since his redundancy
· I am not able to reach a view on whether Mr Trajanoski is entitled to specific medical expenses other than those from his general practitioner. I propose to remit that matter to Comcare for a determination.
Decision
82. The determination of the Tribunal is to set aside the review of the decision of 16 January 2002, and to remit it to Comcare to reconsider in accordance with these reasons for decision. The Tribunal orders Comcare to pay Mr Trajanoski's costs as agreed or taxed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
............(Trevor Mobbs)................................
AssociateDates of Hearing 25-27 February 2003
Date of Decision 6 March 2003
Date of Written Reasons 29 April 2003
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Mr P Harris (Canberra Lawyers)
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Ms L Tolland (Dibbs Barker Gosling)
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