Tucker and Comcare (Compensation)
[2019] AATA 1136
•6 June 2019
Tucker and Comcare (Compensation) [2019] AATA 1136 (6 June 2019)
Division:GENERAL DIVISION
File Numbers: 2016/6561 and 2016/6596
Re:Edward Tucker
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member Richard West
Date:6 June 2019
Place:Melbourne
1.In Application No. 2016/6561 the Tribunal affirms the decision of the delegated review officer of the Respondent dated 4 October 2016 to affirm the determination of the review officer dated 10 May 2016 to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.
2.In Application 2016/6596, the Tribunal affirms the decision of the delegated review officer of the Respondent dated 4 October 2106 to affirm the determination of the review officer dated 1 August 2016 that on and from 1 August 2016 the Applicant had no current entitlement to compensation under sections 16, 29 and 134 of the SRC Act in respect of the Applicant’s ‘sprained dorsal back and cervical muscles’.
.........[sgd]................................
Member Richard West
Catchwords
Compensation – back and neck pain – liability to pay compensation for permanent impairment and non-economic loss - sprained dorsal back and cervical muscles - no current entitlement to compensation - decision affirmed
Legislation
Compensation (Commonwealth Government Employees) Act 1971
Safety Rehabilitation and Compensation Act 1988
Cases
Blackman v Australian Telecommunications Corporation [1990] FCA 295
Comcare Australia (Department of Defence) v Maida [2002] FCA 1284
Commissioner for Safety Rehabilitation and Compensation of Commonwealth Employees v Brennan (1993) 45 FCR 475
Brennan v Comcare [1994] FCA 1147
Department of Defence v West (1998) 156 ALR 651
Australian Postal Corporation v Bessey [2001] FCA 266
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
Member Richard West
6 June 2019
Background
1.The Applicant was born in 1937. He is a former civilian employee of the Department of Defence (DoD).
2.He commenced employment with the DoD on or about 26 October 1979 as a painter, performing painting and maintenance duties at the H.M.A. Naval Dockyard at Williamstown in Victoria.
3.On 30 October 1979 the Applicant suffered pain in his upper back and neck when he turned while passing a heavy toolbox to a colleague while standing on a ladder (the 1979 Incident).
4.On 16 April 1980 the Applicant sustained a ‘sprained dorsal back and cervical muscles’ injury when he slipped and fell descending stairs on HMAS Cook (the 1980 Incident).
5.On 21 May 1980 the Applicant’s claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) in relation to the injury sustained in the 1980 Incident was accepted.
6.On 27 June 1980 the Applicant resigned his employment with DoD.
7.From 28 June 1980 to 1 April 1982 the Applicant worked for the Liquor Trades Union assisting with member services and completing clerical work. For a brief time from 1 to 9 July 1982, he worked as a casual employee answering the telephone and posting letters in the office of a Senator. From August to November 1982 he worked as a casual taxi driver.
8.The Applicant has not worked since 1982.
9.The Applicant received weekly compensation payments and other benefits under the 1971 Act and, from 1 December 1988, under the Safety Rehabilitation and Compensation Act 1988 (SRC Act), until 1 August 2016.
10.On 21 March 2016 the Applicant made a claim for compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in relation to ‘sprained dorsal back and cervical muscles’. The claim was rejected by the Respondent by determination of 10 May 2016.
11.On 1 August 2016 the Respondent determined that as of 28 July 2016, the Applicant had no present entitlement to compensation in respect of medical expenses (section 16), compensation for incapacity payments (section 134), or for household services and attendant care services (section 29) under the SRC Act, in respect of the ‘sprained dorsal back and cervical muscles’ injury sustained in the 1980 Incident.
12.The Applicant sought a review of each of the determinations. On 4 October 2016 the Respondent affirmed both the 10 May 2016 and 1 August 2016 determinations (the Reviewable Decision)
13.On 2 December 2016 the Applicant lodged an application for review of the Reviewable Decision by this Tribunal.
Matters for Review
14.The matters for review by the Tribunal pursuant to section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) are:
a. the decision of the delegated review officer of the Respondent dated 4 October 2016 to affirm the determination of the review officer dated 10 May 2016, to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of the Applicant’s ‘sprained dorsal back and cervical muscles’ ( Application 2016/6561); and
b. the decision of the delegated review officer of the Respondent dated 4 October2016 to affirm the determination of the review officer dated 1 August 2016, that the Applicant had no current entitlement to compensation under sections 16, 29 and 134 of the SRC Act in respect of the Applicant’s ‘sprained dorsal back and cervical muscles’ ( Application 2016/6596)
Evidence
In conducting the review the Tribunal has had regard to:
a)each of the documents produced to the Tribunal by the Respondent pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the T-Documents), excluding the supplementary medical report of Dr Loretta Reiter dated 23 April 2018[1];
[1] The Respondent did not seek to rely on the evidence of Dr Reiter or tender the supplementary report which had been lodged with the Tribunal under section 38AA.
b)the oral evidence of the Applicant, Professor Richard Bittar, Dr Ales Aliashkevich and Dr HJP Khursandi;
c)the following documents tendered by the Respondent:
i.clinical notes of Dr Ronald Suss dated 16 April 1980 - Exhibit R1;
ii.clinical notes of Dr Suss dated 28 April 1980 – Exhibit R2; and
iii.report of Dr Khursandi dated 11 October 2018 – Exhibit R3.
d)the following documents tendered by the Applicant:
i.report of Professor Bittar dated 17 August 2017 – Exhibit A1; and
ii.report of Dr Aliashkevich dated 5 November 2018 – Exhibit A2.
Application 2016/6596
16.The issue to be determined on review in Application 2016/6561 is whether the Respondent is liable to pay compensation to the Applicant for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of an impairment resulting from the 1980 injury, namely ‘sprained dorsal back and cervical muscles’.
17.Before considering this issue it is necessary to consider the threshold matters raised by the transitional provisions of the SRC Act.
Transitional Provisions
18.The injury sustained by the Applicant in the 1980 Incident was determined to be compensable[2] in accordance with the 1971 Act, which was in effect at the time.
[2] T-Documents, T6 at pp.14-15.
19.At the commencement of the SRC Act on 1 December 1988, the Applicant was entitled[3] to continue to receive weekly compensation as a “former employee”[4] as determined in accordance with Division 3 of Part X (sections 131, 132, 132A, and 134) as well as medical expenses and household and attendant care services under sections 16 and 29 of the SRC Act[5]
[3] See section 124(1A) of SRC Act.
[4] Section 123 defines former employee as a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day.
[5] If amounts under sections 16 or 29 arose prior to the commencement day they were to be paid in accordance with the 1971 Act.
20.Section 124 (3) of the SRC Act provides that:
A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
a.the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
b.the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
i.where the impairment or death occurred before the commencement of the 1930 Act--under the 1912 Act;
ii.where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the impairment or death occurred; or
iii.in any other case--under the 1971 Act as in force when the impairment or death occurred.
21.It is accepted by both parties that the Applicant was suffering a permanent impairment which occurred prior to the commencement date. Notwithstanding the acceptance by the parties, the Tribunal is required to determine on the evidence whether, prior to 1 December 1988, the Applicant had suffered an injury resulting in an impairment which was likely to continue indefinitely and was therefore a permanent impairment[6].
[6] See Comcare Australia (Department of Defence) v Maida [2002] FCA 1284 at [16] citing Commissioner for Safety Rehabilitation and Compensation of Commonwealth Employees v Brennan (1993) 45 FCR 475 per Neave J. at [41] and affirmed on appeal in Brennan v Comcare [1994] FCA 1147 see [31].
22.There are three steps involved in determining whether a permanent impairment from injury occurred before the commencement date: firstly, the occurrence of an injury; secondly, the resulting impairment, as defined; and thirdly, that the impairment must have been permanent, i.e. likely to continue indefinitely. Each of these states of affairs must be reached before the commencement date[7].
Injury
[7] Comcare Australia (Department of Defence) v Maida [2002] FCA 1284 at [18] citing Gummow J. in Blackman v Australian Telecommunications Corporation [1990] FCA 295.
23.Notwithstanding some inconsistent evidence regarding the precise circumstances of the initial accident, the evidence clearly establishes that the Applicant sustained an injury to his cervical back during the course of his employment on 16 April 1980 when he slipped and fell while descending a ladder in the engine room of HMAS Cook[8]. The injury claimed by the Applicant was ‘sprained dorsal back and cervical muscles’[9] and liability was admitted in respect of that condition[10].’
Impairment
[8] See T-Documents, T4 at p.10 and T19.1 at p.39.
[9] T-Documents, T4 at p.8.
[10] T-Documents, T6 at pp. 14-15.
24.The Applicant was treated for the injury by his general practitioner Dr Suss. In his reports of 7 February 1981[11] and 18 February 1982[12] Dr Suss noted that the Applicant had complained of back pain following the 1979 Incident but it improved with rest and analgesics within a week. He noted that following the 1980 Incident the Applicant experienced symptoms of pain below his shoulder blades and in his neck, which persisted despite intensive chiropractic treatment and a variety of analgesic and anti-inflammatory drugs. He noted that an x-ray taken on 22 April 1980 had revealed mild to moderate osteoarthritic (i.e. degenerative) changes of the mid and lower cervical spine and the mid and lower dorsal spine. He opined that the symptoms were due to a combination of muscle strain and arthritis in the neck and dorsal spine precipitated by the 1980 Incident. Dr Suss expressed the view at that time that the Applicant would have ‘occasional flare ups but [they should settle and] not lead to any permanent disability’.
[11] T-Documents, T8 at pp. 18-19.
[12] T-Documents, T9 at pp. 22-23.
25.The report of the x-ray of the Applicant’s cervical and dorsal spine taken on 22 April 1980[13] noted established degenerative 'changes to both the cervical spine including spondylosis:
narrowing of the intervertebral disc spaces and osteophytes are seen projecting into the lower intervertebral foramina of the cervical spine. Osteoarthritic changes of the apophyseal joints of the cervical spine.
…old healed osteochondritis of the episphyseal plates of the lower dorsal vertebrae. Schmorl’s nodes… [and] spondylitic lipping of the margins of the bodies of the middle and lower dorsal vertebrae and at the adjacent right lateral margins of the bodies of the ninth and tenth dorsal vertebrae [with] marked spur formation...
[13] T-Documents, T5 at p.12
26.On 12 June 1984 Dr William Swaney, orthopaedic surgeon, reported that the Applicant was suffering from spondylolysis of the fifth lumbar vertebra, which had been subject to various strains. He stated that he thought the Applicant’s fall on 16 April 1980 was a temporary aggravation of a constitutional condition. He said that the condition was not permanent and static and may vary from time to time.
27.Dr Suss reported on 5 July 1984[14] that the Applicant was suffering from ‘cervical spondylolysis, dorso-lumbar spondylolysis, as well as lumbosacral spondylolysis of probably a minor to moderate degree.’ He said that the Applicant’s prognosis was not good. The Applicant had had ‘a variety of treatments – physiotherapy, acupuncture, chiropracty, drugs – and he still has great difficulty even doing the most menial of jobs, for example sweeping leaves or prolonged sitting in a car.’ He stated that the Applicant’s disabilities incapacitated him 100% as far as manual work was concerned but with rehabilitation he may ‘be able to do something in a non-manual way.’
[14] T-Documents, T20 at pp. 41-42.
28.Dr David Syme, forensic psychiatrist, examined the Applicant on 22 June 1984. He noted in his report dated 12 July 1984[15] that the Applicant had said that the headaches and neck pain he was having had cleared up in 1984. However, the Applicant complained of chronic back pain, which occurred in the middle of the back and occasionally radiated up the left side to between the shoulder blades.
[15] T-Documents, T22 at p.49.
29.Dr Suss reported on 11 December 1984[16] that the Applicant continued to suffer from ‘cervical spondylolysis, dorsal lumbar spondylolysis as well as lumbar sacral spondylolysis probably to a minor degree.’ He stated that these conditions were ‘of a permanent nature with frequent recurrence of symptoms.’
[16] T-Documents, T23 at p.51.
30.A report of an x-ray taken on 30 January 1986[17] concluded that ‘fairly advanced degenerative changes are seen in all parts of the spine.’
[17] T-Documents, T24 at p.57.
31.The Applicant was reviewed by Dr J.R.F. Downie, General Surgeon, on 6 August 1987. In his report of 8 August 1987[18] Dr Downie, noted that the Applicant had significant discomfort in his neck virtually all the time. He also noted that the Applicant’s neck movement of flexion and extension were about three quarters of normal, but rotation and lateral flexion were barely half of normal and appeared to be uncomfortable. He concluded that the Applicant suffers from ‘a multi-level degenerative condition throughout his spine which is probably constitutional in origin’. The constitutional condition may have been aggravated insofar as his lumbar pain was concerned by the 1979 Incident, and the 1980 Incident may have aggravated his cervical problems. He stated that it is possible those incidents ‘set in train a situation of continuous deterioration.’
[18] T-Documents, T26 at p.59.
32.A careful reading of section 24 of the 1988 Act suggests that the word ’impairment’ where it appears in section 24(1) is to be given the meaning set out in the definition of that expression in section 4(1).[19] Section 4(1) defines impairment as a loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
[19] Commissioner for Safety Rehabilitation and Compensation of Commonwealth Employees v Brennan (1993) 45 FCR 475.
33.On the basis of medical evidence prior to 1 December 1988, the Tribunal is satisfied that the injury sustained by the Applicant in the 1980 Incident, described by the Applicant in his claim form as ‘sprained dorsal back and cervical muscles’, had aggravated the underlying degenerative condition of the Applicant’s cervical spine and resulted in damage to, or malfunction of, a part of the body, namely the cervical spine. Accordingly, the condition suffered by the Applicant prior to the commencement date was an impairment as defined in section 4(1) of the SRC Act.
Permanent
34.Section 4(1) of the SRC Act defines ‘permanent’ as ‘likely to continue indefinitely.’ Section 24(2) provides that for the purpose of determining whether an impairment is permanent regard is to be had to the following factors:
a. the duration of the impairment;
b. the likelihood of improvement in the employee’s condition;
c. whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
d. any other relevant matters.
35.The evidence clearly establishes that the Applicant’s impairment persisted from 1980 when the injury first occurred until at least August 1987 when the Applicant was examined by Dr Downie. Medical examinations conducted since 1987 have identified the progressive degeneration of the Applicant’s cervical and lumbar spine and this ultimately led to the Applicant requiring multilevel spinal fusions of his cervical and lumbar spine.
36.Although the earlier reports of Dr Suss[20] suggested that the Applicant’s condition would be unlikely to lead to a permanent impairment, the later medical opinions of Dr Suss and Dr Downie were consistent in confirming the degenerative nature of the Applicant’s impairment and the progressive deterioration in his condition.
[20] T-Documents, T8 and T9.
37.Dr Suss reported that the Applicant had undertaken various forms of treatment prior to the commencement date, to address the symptoms of his condition, including physiotherapy, acupuncture, intensive chiropractic treatment and a variety of analgesic and anti-inflammatory drugs.
38.Having regard to these factors and considering the medical evidence regarding the degenerative nature of the condition affecting the Applicant’s cervical spine, the Tribunal is satisfied that the Applicant’s impairment was permanent prior to the commencement date.
39.The 1971 Act[21] did not provide lump sum compensation for a permanent impairment of the lumbar, thoracic or cervical spine.
[21] See section 39 of the 1971 Act and the table appended to sub-section 39(4).
40.Where an impairment came into existence prior to the commencing day for which there was no entitlement under the 1971 Act, there is no entitlement to compensation under the SRC Act for impairment by reason of section 124(3) even where the impairment increases because of the progress of a compensable disease[22].
[22] Blackman v Australian Telecommunications Corporation [1990] FCA 295 at [13].
41.Accordingly, the Applicant was not entitled to compensation under sections 24 and 25, and as a consequence section 27[23], in respect of the permanent impairment occurring prior to 1 December 1988.
New Impairment
[23] Under section 27 compensation for non-economic loss is conditional on the claimant being entitled to compensation in respect of a permanent impairment under section 24.
42.The Applicant relies on Department of Defence v West[24] and, in particular, the conclusion of Justice Merkel at p.669:
A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan, where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. It also avoids capricious and arbitrary outcomes under workers' compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at FCR 559 and the cases there referred to.
[24] (1998) 156 ALR 651.
43.The Federal Court in Comcare Australia (Department of Defence) v Maida[25] noted that the nature and extent of the loss of use or malfunction of part of the body is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. The Court summarised the state of the law as follows:
"The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment."[26]
[25] [2002] FCA 1284 at [25].
[26] Ibid [28].
44.In this case the Applicant’s claim submitted under cover of letter dated 21 March 2016[27] is for a permanent impairment of cervical spine fusion. The Applicant contends that, ‘there is a clear patho-physiological change such that quantitatively and qualitatively, there is a new impairment wholly occurring after the commencing date of the SRC Act. That impairment is marked by the fusion of C5-C7 due to surgical arthrodesis performed by Mr Aliashkevish on 27 August 2014’[28].
[27] T-Documents, T79 at pp.185-189.
[28] Applicant’s Final Written Submissions, dated 4 February 2019 (Emphasis added).
45.The Respondent asserts that there is no evidence that there was a significant change in the Applicant’s underlying patho-physiological condition or a significant worsening of the Applicant’s impairment such as to constitute a new impairment.
46.The Applicant’s submissions do not clearly identify any specific ‘patho-physiological changes’ resulting from or associated with the cervical fusion. Patho-physiological changes are changes of mechanical, physical and biochemical functions either caused by disease or resulting from an abnormal syndrome. The Tribunal finds the statement made in the Applicant’s submission that the new impairment ‘…is marked by the fusion of C5-C7 due to surgical arthrodesis’ to be unhelpful. It is not clear whether it is intended to indicate that the Applicant’s mechanical or physical functions had changed prior to the surgery or had changed as a result of the surgery. The statement that an impairment is marked by a surgical procedure is essentially meaningless.
47.The Tribunal accepts the Applicant’s assertion that the degree of impairment to the cervical spine following surgery should be assessed as 28% in accordance with Table 9.15 of the Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (the Guide). Professor Bittar[29], and Dr Aliashkevich[30], both confirmed this assessment, as did Dr Khursandi[31]. The Respondent accepted in its submissions that the degree of permanent impairment following the cervical fusion should be assessed at 28% for the purposes of sections 24, 25 and 27 of the SRC Act.
[29] Exhibit A1; p. 5, question 5.
[30] Exhibit A2.
[31] Mr Khursandi originally reported a level of impairment of only 8% in his report of 11 October 2018 but conceded in cross-examination that the true level of impairment following surgical arthrodesis was 28 percent.
48.The Applicant’s written submissions do not point to any evidence that demonstrates any quantitative and qualitative changes to the Applicant’s mechanical or physical functions to support the contention that there was a new impairment. The submission merely highlights from Table 9.15 of the Guide that a 28% degree of impairment may be evident from a ‘loss of motion of a motion segment due to a developmental fusion or successful or unsuccessful attempt at surgical arthrodesis’. The submission makes no effort to identify evidence of quantitative and qualitative changes resulting from such loss of motion in the Applicant’s case.
49.The fact that the Applicant had a 28% impairment of the cervical spine following a cervical fusion operation does not, of itself, establish that the Applicant was suffering a new impairment. The report of Dr Aliashkevich[32] states that the cervical surgical arthrodesis was successful. The operation was intended to relieve the Applicant’s pain in his cervical spine. The Applicant stated in the non-economic loss questionnaire submitted with his claim:
In September 2014 I had a triple level cervical spine fusion. Prior to the operation I hardly slept and I used to get pins and needles down my right and left arm. Since my operation, the pins and needles have mostly subsided and the pain has decreased[33].
[32] Exhibit A2 and T-Documents, T53 at pp.119-120.
[33] T-Documents, T79 at p.196.
The Applicant confirmed this in his oral evidence[34].
[34] Transcript of proceedings, 10 December 2018, p.28.
50.He stated in the questionnaire that following the 1980 Incident he was only able to do gardening for short periods, he was unable to prune his trees, play golf or go swimming. The Applicant’s evidence was that he had been suffering from ongoing pain in his cervical spine since the 1980 Incident and that he had been prescribed various painkillers. He said he agreed to see Dr Aliashkevich about surgical intervention because he ‘was starting to get really bad and I thought I better do something about it’[35].
[35] Transcript of proceedings, 10 December 2018, p.24.21.
51.The medical history provided in Professor Bittar’s report of 17 August 2017[36] confirmed the Applicant’s evidence of his symptoms prior to the operation and noted that the Applicant had ‘experienced a very significant benefit following surgery in terms of his neck pain, arm pain and mobility.’
[36] Exhibit A1.
52.On the basis of this evidence the Tribunal is satisfied that the Applicant continues to suffer an impairment to his cervical spine. However, the evidence does not establish that the cervical fusion surgery performed by Dr Aliashkevich in August 2013 resulted in quantitative and qualitative changes to the Applicant’s mechanical or physical functions causing a significant worsening of the Applicant’s impairment which could properly be regarded as giving rise to a new impairment.
53.The consequence is that the Tribunal finds that the Applicant is not entitled to compensation under sections 24 and 25 of the SRC Act.
Decision – Application 2016/6561
54.The Tribunal affirms the decision of the delegated review officer of the Respondent dated 4 October 2016 to affirm the determination of the review officer dated 10 May 2016 to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.
Application 2016/6561
55.On 21 May 1980 the Applicant’s claim for compensation for ‘sprained dorsal back and cervical muscles’ sustained in the 1980 Incident was accepted under the 1971 Act. The Applicant commenced receiving weekly compensation from 27 June 1984[37] .
[37] T-Documents, T25 at p.58.
56.At the commencement of the SRC Act on 1 December 1988, the Applicant was entitled[38] to continue to receive weekly compensation as a “former employee”[39] as determined in accordance with Division 3 of Part X (sections 131, 132, 132A, and 134); as well as medical expenses and household and attendant care services under sections 16 and 29 of the SRC Act[40].
[38] See section124(1A) of SRC Act.
[39] Section 123 defines former employee as a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day.
[40] If amounts under sections 16 or 29 arose prior to the commencement day they were to be paid in accordance with the 1971 Act.
57.He continued to receive weekly compensation after 1 December 1988 until 1 August 2016. His entitlement was altered on and from the date he turned 65 years of age pursuant to section 134 of the SRC Act.
58.The Respondent determined that on and from 1 August 2016 the Applicant had no current entitlement to compensation under sections 16, 29 and 134 of the SRC Act, on the basis that the Applicant did not continue to suffer from the effects of the compensable injury accepted initially in 1980, namely ‘sprained dorsal back and cervical muscles’.
59.The Applicant is seeking the reinstatement of those payments from 1 August 2016.
60.The Applicant has asserted that the Tribunal should have regard to the evidence of injury to the Applicant’s lumbar spine and the effect of fusion surgery to the lumbar spine in assessing the Applicant’s claim. However, the claim which was initially accepted by the Respondent was a claim for injury to the cervical spine, namely ‘sprained dorsal back and cervical muscles’. The Applicant has made no claim for compensation in relation to a low back injury and there is no reviewable decision before the Tribunal concerning whether the Applicant sustained a low back injury under section 14 of the SRC Act.
61.The Tribunal does not accept that the Respondent’s decision of 20 October 2014 to pay for the reasonable costs associated with L2/3 and L3/4 fusion surgery under section 16 of the SRC Act constitutes acceptance of a claim in respect of the Applicant’s lower back condition. Section 54(1) makes it clear that a claim for compensation must be made in accordance with that section and compensation is not payable unless such a claim is made. Accordingly, the compensable injury for the purpose of the review is the injury to the Applicant’s cervical spine, namely ‘sprained dorsal back and cervical muscles’.
62.On the basis of medical evidence prior to 1 December 1988 the Tribunal is satisfied that the injury sustained by the Applicant in the 1980 Incident, ‘sprained dorsal back and cervical muscles’, aggravated the underlying degenerative condition of the Applicant’s cervical spine and resulted in damage to or malfunction of the cervical spine.
63.The Tribunal is further satisfied that the Applicant has continued to suffer the impairment to his cervical spine resulting in neck pain and other symptoms from 1 December 1988 to the present day.
64.There is, therefore, no question that the injury sustained in the 1980 Incident was a causal factor in the development of the impairment. The question is whether by 1 August 2016 that injury continued to be a significant contributing factor to the impairment or whether it was, by that time, due to the degenerative changes to the Applicant’s cervical spine.
65.The essential issue in this case is encapsulated in the following extract from the decision of Justice Gyles in Australian Postal Corporation v Bessey[41], where his Honour stated at [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] NSWStRp 50; (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 and Casarotto v Australian Postal Commission [1989] FCA 116; (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.
[41] [2001] FCA 266
66.The Respondent relied on the report of Dr Khursandi, dated 11 October 2018[42]. Dr Khursandi examined the Applicant on 27 September 2018. In his report, Dr Khursandi opined that the 1980 Incident had resulted in an ‘exacerbation of symptoms of the cervical spine related to pre-existing degeneration’ but the effects of the incident of 16 April 1980 ‘would have ceased after approximately 6 weeks following the incident.’ In his oral evidence, Dr Khursandi accepted that the exacerbation of the Applicant’s cervical degeneration may have lasted between 6 weeks and 3 months.
[42] Exhibit R3.
67.The Applicant submits that the injury sustained on 16 April 1980 was, to adapt the words of Sir Frederick Jordan in Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157,
the catalyst which precipitates disability in a medium of disease …[and] which did not previously exist and which would not otherwise have then come into existence, or it prematurely increases the extent of a previously existing disease incapacity. The effects of the injury do not disappear. They continue, in combination with the effects of the disease, to contribute to the premature occurrence of disability which would not then have been produced by the disease alone, and to the continuance of the incapacity so occurring. In the long run the disease would have caused the disability but the injury anticipates it.
68.The Applicant relied primarily on the reports of Professor Bittar, consultant neurosurgeon, dated 17 August 2017[43] and Dr Aliashkevich, treating consultant neurosurgeon, dated 5 November 2018[44] together with their oral evidence.
[43] Exhibit A1.
[44] Exhibit A2.
69.Professor Bittar concluded that the injury sustained in the 1980 Incident remains a significant contributing factor to the Applicant’s cervical and lumbar spine conditions and a significant contributing role to the Applicant’s ongoing pain, disability and requirement for treatment. He stated that, in the absence of the injury, it is unlikely that the Applicant would have required such extensive spinal surgery simply on the basis of constitutional and degenerative changes in his spine.
70.Dr Aliashkevich also stated that the injuries to the Applicant’s neck and the back, albeit in the setting of some pre-existing degeneration, represented a continuous process of pain and incapacity that were due to the employment injury and the nature of the employment.
71.In assessing these conflicting opinions it is important to note that the medical experts were asked to make an assessment in circumstances where there was little reliable objective evidence. There was an absence of reliable scanning results. CT or MRI scans were not available at the time of the incident and not conducted on the Applicant until many years after the 1980 Incident. Each of the experts conceded that the x-rays taken at around the time of the incident were not particularly useful.
72.In addition many of the assumptions about the nature of the Applicant’s injuries arising from the 1980 Incident were based on an unreliable history. The Applicant gave only a very brief description of the incident in his claim form[45] on the day after the incident. There were no witnesses to the incident and the employer did not conduct an independent investigation of the incident. Various histories were taken by medical practitioners over the years subsequent but, as the Applicant admitted in his evidence, the effluxion of time affected the Applicant’s own recollection of the incident and especially of the mechanism of injury. This made it necessary for the experts to make assumptions about what occurred to the Applicant and the precise mechanism of injury.
[45] T-Documents, T4 at p.10.
73.The key assumption of Dr Khursandi was that the injury sustained by the Applicant was in the nature of a ‘soft tissue injury’; and upon this assumption he drew the conclusion that it would have resolved in a matter of weeks or months after the incident.
74.There is support for Dr Khursandi’s opinion in the evidence. From the outset the Applicant’s injury was diagnosed as a soft tissue injury. The claim form lodged by the Applicant on 17 April 1980 described his injury as ‘sprained dorsal, back and cervical muscles’[46] which the Applicant stated was based on the opinion of Dr Suss[47].
[46] T-Documents, T4 at p.8.
[47] T-Documents, T4 at p.10.
75.On 6 June 1980 Dr Suss, wrote a statement ‘To Whom It May Concern’, stating that the Applicant was continuing to suffer from ‘torn back and neck muscles’ and that light lifting caused recurrence of the injury and led him to advise that ‘he changes his job to something less strenuous’[48].
[48] T-Documents, T7 at p.17.
76.Dr Suss’ opinion in February 1981 was that the Applicant’s symptoms were due to a combination of muscle strain and arthritis in the neck and dorsal spine, precipitated by the 1980 Incident. The report of the x-ray of the Applicant’s cervical and dorsal spine taken on 22 April 1980[49] had confirmed that there were degenerative changes to the cervical spine and the mid and lower dorsal spine. Dr Suss expressed the view at that time that the Applicant ‘would have occasional flare ups but they should settle and not lead to any permanent disability’.
[49] T-Documents, T5 at p.12.
77.In his subsequent reports 5 July 1984[50] and 11 December 1984[51] Dr Suss reported that the Applicant was suffering from cervical spondylolysis, dorso-lumbar spondylolysis, as well as lumbosacral spondylolysis of probably a minor to moderate degree. Neither report states that the Applicant was suffering from the continuing effect of the ‘sprained dorsal, back and cervical muscles’ injury, although the latter report does state that it was highly probable that the Applicant’s incapacity for work was directly related to the 1979 Incident and 1980 Incident.
[50] T-Documents, T20 at pp. 41-42.
[51] T-Documents, T23 at p.51.
78.On 12 June 1984 Dr Swaney stated[52] that he thought the Applicant’s fall on 16 April 1980 was a temporary aggravation of a constitutional condition.
[52] T-Documents, T19 at p.36.
79.Professor Bittar and Dr Aliashkevich based their opinions on the assumption that the Applicant suffered more than a soft tissue injury in the incident. Professor Bittar accepted in his oral evidence[53] that there was no direct evidence in the form of scans or otherwise to indicate any particular structural injury and said that he had inferred that there was unspecified structural damage from the way the Applicant’s condition subsequently developed.
[53] Transcript of proceedings, 11 December 2018, at p.89.08
80.Dr Aliashkevich’s reasoning on the issue is similar. He acknowledged, in his oral evidence, that X-rays of the Applicant did not show damage to the annulus of his discs. He based his opinion regarding damage to the Applicant’s cervical spine on the basis of an assumption that the Applicant ‘…hit his mid-back, he sustained whiplash injury, he sustained disruptions to his ligaments, intervertebral discs, epiphyseal joints, muscles. And as a result he has got his pain’[54]. Dr Alaishkevich was asked whether, given the Applicant’s underlying degenerative changes in April 1980, it was possible that at some point in the following 30 years he would get to the point of requiring fusion surgery to his cervical spine due to the degenerative changes unaffected any longer by what happened in April 1980. Dr Aliashkevich responded:
It is very difficult to tell to be honest because it is, you know, it's such a long time and we all have degeneration by the age of, you know, 60, 70, as you will have degeneration. But in my opinion if he didn’t have this fall and didn’t have this whiplash type injury he may have lasted for much longer, maybe for another 10, five years without needing to have surgery and developing myelopathy.[55]
[54] Transcript of proceedings, 12 December 2018 at p.109.24
[55] Transcript of proceedings, 12 December 2018 at p.110.14
81.The assumption regarding a whiplash-type injury was at odds with the views of Professor Bittar. When it was put to Professor Bittar that there was no evidence that the Applicant had suffered a whiplash effect that damaged his neck, he responded
Yes, you’re right. I’m not saying in this case there was definitely a whiplash injury involved. I can’t say whether there was or there wasn’t. There might have been but there might not have been[56].
[56] Transcript of proceedings, 11 December 2018 at p.70.18
82.Professor Bittar acknowledged that it was possible that the Applicant’s degenerative cervical spine condition would have got to the stage of requiring fusion surgery without the 1980 Incident due to the ordinary progression of the disease. However, he opined that this was very unlikely and added:
I think that’s - given his clinical, you know, his wellness leading up to that point, I think it’s quite unlikely that for some reason he would have just deteriorated spontaneously. Turning the clock 40 forward 30, 40 years, yes, it’s so hard to predict whether someone would have needed surgery or not. It’s possible that he might have, it’s quite possible that he may not have. It’s very - it’s an imprecise estimate that I could give you of that likelihood.[57]
[57] Transcript at p.84.39
83.Central to the reasoning of Professor Bittar and Dr Aliashkevich was the continuing nature of the pain in the Applicant’s cervical spine. It was asserted that the recovery from the 1980 injury posited by Dr Khursandi was not borne out by the evidence.
84.The Applicant was firm in his evidence that, while the pain in his cervical spine fluctuated, he was never pain free following the 1980 Incident.
85.The Tribunal accepts that the Applicant was a careful and responsive witness who genuinely sought to provide truthful evidence. However, the Applicant had some limitations in providing his evidence, especially his ability to recall past events. This was understandable given that he is 81 years of age, he was in some discomfort while in the witness box, there was a long time period over which the events had played out, and he has attended for medical examinations on multiple occasions over the years.
86.While the Tribunal accepts that the Applicant has experienced considerable pain and discomfort throughout the 39 years since the 1980 Incident, it is not satisfied that the pain he experienced directly as a result of the fall in April 1980 was continuous over the entire period. Although the medical evidence during the period prior to 1 December 1988 is not complete[58], there is independent evidence to suggest that the Applicant may have recovered from the initial injury (as opined by Dr Khursandi) and pain that arose later was due to his degenerative condition.
[58] The Respondent referred to several medical reports mentioned in the report of Dr Sime, consultant psychiatrist, of 12 July 1984, but as Dr Sime and the authors of those reports were not called and the full reports not tendered these reports were given no weight.
87.In this regard the Tribunal notes that the Applicant completed his shift on the day of the incident and was able to undertake sedentary employment after leaving the dockyards in 1980 for 2 years. Furthermore, he gave evidence that he was able to play golf until 1996, albeit to a limited extent and with some discomfort.
88.Dr David Sime, consultant psychiatrist, who examined the Applicant in July 1984 stated in his report that the Applicant had said the headaches and neck pain that he had been suffering had cleared up in 1984. The Applicant was cross examined about this aspect of Dr Sime’s report. The Applicant denied that he was ever pain free in his cervical spine prior to surgery in 2013 and his pain had not cleared up in 1984.
89.Dr William Swaney, who examined the Applicant on 12 June 1984, reported that the Applicant was suffering from spondylosis of the lumbar spine. However, the history taken for the report made no mention of the Applicant suffering from neck pain, nor did the Applicant report any findings in relation to neck pain upon examination[59].
[59] T-Documents, T19 at p.36
90.Dr Suss’ report of 18 February 1982 notes that the Applicant complained of neck pain (especially on flexion) and occasional back pain between the shoulder blades when the Applicant saw Dr Suss on 10 September 1980. Dr Suss reported further that he last saw the Applicant on 10 August 1981 after the Applicant sustained some minor trauma which aggravated his neck problem and he assumed this had settled. He stated that he expected the Applicant to have occasional flare ups. This report infers that the Applicant may not have been in constant pain during the period between September 1980 and August 1981.
91.Having regard to this evidence, the Tribunal is not satisfied that the conclusions of Dr Khursandi can be dismissed on the basis that it could not be reasonably concluded that the Applicant did not recover from the injury sustained in the 1980 Incident within the approximate timeframe suggested by Dr Khursandi.
92.In addition to the medical evidence of Professor Bittar, Dr Aliashkevich and Dr Khursandi there were two further medical reports which were ambivalent about the continuing effect of the injury sustained by the Applicant in the 1980 Incident and his ongoing impairment.
93.Dr Downie, general surgeon, in his report of 8 August 1987[60], noted that the Applicant was in significant discomfort in his neck virtually all the time and had developed neuralgic symptoms. He diagnosed that the Applicant was suffering from a ‘multi-level degenerative condition throughout his spine which was probably constitutional in origin’. He said it was impossible to state whether the aggravation that occurred at work in 1980 was still present and whether or not the Applicant’s residual disability is purely the result of the underlying constitutional disorder.
[60] T-Documents, T26 at p.59
94.Dr Nicholas Maartens, who examined the Applicant in April 2009 for assessment and management of cervical spondylosis myeloradiculopathy, opined that the Applicant was ‘suffering from spondylosis cervical radiculopathy initiated/accelerated by a fall in 1980’. He went on to say that it was difficult for him to comment accurately on the relationship between the fall and the Applicant’s neck pain as it had occurred 30 years earlier and, to a large extent, all he had to go on was the Applicant’s account as he did not have previous medical reports.
95.Having considered all of the medical evidence, the Tribunal is not satisfied that the opinions of Professor Bittar and Dr Aliashkevich should be preferred over the opinion of Dr Khursandi.
96.Dr Khursandi’s opinion is based on the assumption that the Applicant sustained no more than a soft tissue injury in the 1980 Incident. It is consistent with the initial diagnosis of Dr Suss, which provided the basis of the Applicant’s claim for which liability was accepted.
97.X-rays taken shortly after the incident did not reveal any structural damage to the Applicant’s cervical spine. While this evidence is not conclusive, as there may have been structural damage which did not show up on the x-ray, the evidence that there was nothing detected beyond a degenerative condition does add weight to the initial diagnosis of Dr Suss, in that there was nothing positive in the x-ray results which would contradict his diagnosis.
98.The evidence that the Applicant was able to complete his shift following the 1980 Incident also gives some weight to the conclusion that the injury sustained by the Applicant was likely not to have involved structural damage.
99.There is some doubt regarding Dr Khursandi’s opinion that the soft tissue injury would have resolved in a matter of weeks or months after the incident. The Applicant was firm in his evidence that he had continual pain following the 1980 incident, but for reasons discussed above, the evidence leaves open the possibility that the effects of the injury did resolve within the timeframe posited by Dr Khursandi. If Dr Khursandi is right, that the pain experienced by the Applicant as a result of the soft tissue injury would have been replaced at some stage by the pain arising from the underlying degenerative condition, then it is quite probable that this change was experienced by the Applicant as a continuing, although fluctuating, pain in his cervical spine.
100.On the other hand, the opinions of Professor Bittar and Dr Aliashkevich in relation to the nature of the injury sustained by the Applicant are not supported by any objective evidence. Professor Bittar acknowledged this in his oral evidence. Their assumption that the Applicant sustained structural as well as soft tissue damage in the incident is entirely based on supposition. In Dr Aliashkevich’s case, he postulated that the Applicant sustained a whiplash-type injury. This view was not shared by Professor Bittar and, as the Respondent noted in its submissions, reports of the incident made at the time did not indicate a whiplash-type mechanism; and there was no reliable evidence from which to draw such a conclusion.
101.Further, the Tribunal is not satisfied that there is any reliable evidence from which a conclusion about the precise mechanism of injury could be drawn.
102.Each of Dr Khursandi, Professor Bittar and Dr Aliashkevich noted inconsistent histories of the 1980 Incident. Dr Aliashkevich reported[61] that on:
16/4/1980 between midday and 3 pm, (the Applicant) came up to the upper deck, he then needed to step down to the lower deck, and because it was raining his foot slipped out from under him and he landed on his feet but then hit his back and neck on the steps behind him.
[61] Exhibit A2
103.Professor Bittar reported[62] that:
‘he fell approximately 3 metres between decks. He initially landed on his feet and then fell backwards, striking his head and spine against some steps. He cannot recall many other details about the incident given the amount of time that has passed.’
[62] Exhibit A1
104.Dr Khursandi described the 1980 Incident[63] as the Applicant:
‘was climbing down some steps with a pair of gloves during his afternoon break; it had been raining at the time and his gloved hand slipped on the railing, he lost his balance and slid down a few steps landed on the bottom deck with his feet and then fell backwards hitting his head and upper back.’
[63] Exhibit R3
105.Reports of the incident contained in the histories taken by other medical practitioners and recorded in subsequent medical reports were scant, imprecise, and inconsistent. They relied solely on the recollection of the Applicant, which became increasingly remote from the actual events with the passage of time.
106.The Applicant stated in his claim form dated 17 April 1980[64] that he was descending a steel ladder to the engine room of Cook (HMAS Cook), when I slipped on a metal step of the ladder. I was descending face forward, holding the handrails as I went down. My boots were wet and slipped on the step. I fell backwards, landing on the steps striking the upper part of my back, just below the shoulders. Dr Suss described the incident in his report of 7 February 1981[65] as…he was going down some steps in a ship with his back to the steps. He slipped on a wet step and fell about six steps and hit mid dorsal area of the spine on the steps and landed on his feet. Dr Swaney’s report of 12 June 1984[66] states that, when walking down steps on the ship in April 1980, he slipped and fell backwards and struck his back and head on the steps. Dr Sime reported on 12 July 1984[67] that he was working on the Captain Cook and he slipped on some steps. He landed on his feet and fell backwards onto the steps and hit his head, neck and back. He was not knocked unconscious but did jar his back. Dr Maartens reported on 17 March 2009[68] that while walking down some steps from a ship under construction, he slipped onto his back hitting the back of his neck on the steps and sustaining an injury to his neck. Dr Khurana reported in 17 October 2014[69] that he was going out for an afternoon smoko and it had been raining and he was going down some steps, with some gloves on, and he slipped and landed on the bottom deck. I asked him how many steps he may have fallen down and he said “I don’t know, I can’t remember but it would have been a few”.
[64] T-Documents, T4
[65] T-Documents, T8
[66] T-Documents, T19
[67] T-Documents, T22
[68] T-Documents, T36
[69] T-Documents, T55
107.The Applicant admitted in cross-examination that his recollection of the incident was not very good given the passage of time.[70]
[70] Transcript of proceedings, 10 December 2018, p.32.24
108.Furthermore, without some evidence of structural damage caused by the 1980 Incident, it is difficult to accept that a soft tissue injury in the nature of a muscle strain had persisted since 1980, and despite extensive medical treatment over that time it remained a significant contributor to the Applicant’s impairment by 1 August 2016.
109.Taking these matters into account, the Tribunal is satisfied on the balance of probabilities that the Applicant sustained a soft tissue injury, namely ‘sprained dorsal back and cervical muscles’ in the 1980 Incident; and that this injury had resolved so that by 1 August 2016 it had ceased to be a significant contributor to the impairment suffered by the Applicant at the time.
Decision - Application 2016/6596
110.The Tribunal affirms the decision of the delegated review officer of the Respondent dated 4 October 2106 to affirm the determination of the review officer dated 1 August 2016, that on and from 1 August 2016 the Applicant had no current entitlement to compensation under sections 16, 29 and 134 of the SRC Act in respect of the Applicant’s ‘sprained dorsal back and cervical muscles’.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Member Richard West.
....[sgd]..................................................................
Associate
Dated: 6 June 2019
Dates of hearing: 10 December 2018
11 December 2018
12 December 2018
20 December 2018
2 April 2019Advocate for the Applicant: Mark Carey Solicitors for the Applicant:
Advocate for the Respondent:
Maurice Blackburn Lawyers
John Wallace
Solicitors for the Respondent: Lehmann Snell Lawyers
0
6
0