UDO JANUS and JOHN HOLLAND GROUP PTY LTD - [2009] AATA 951

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 951
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5340; 2009/4251

GENERAL ADMINISTRATIVE DIVISION )

Re UDO JANUS

Applicant

And

JOHN HOLLAND GROUP PTY LTD

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date11 December 2009
PlaceBrisbane (heard in Mackay)

Decision In each application the decision under review is affirmed.

..............Signed.................
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – previous compensable episode of back pain occurring at work – episode of back pain occurring at home while putting on boots – no sufficient connection to employment that physical injury could be regarded as arising out of employment – insufficient evidence that the episode was the final in a series of insults to worker’s back – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5B, 6
Ashworth & Telstra Corporation [1994] AATA 80
Henderson v Commissioner of railways (WA) (1937) 58 CLR 281
Humphrey Earl ltd v Speechley (1951) 84 CLR 126
Ledwidge & Optus Administration Ltd [2008] AATA 58
REASONS FOR DECISION

11 December 2009 Deputy President P E Hack SC

Introduction

Mr Udo Janus is a boilermaker. From about April 2007 until late 2008 he was employed in that capacity by John Holland Group Pty Ltd at the 7X Project at Dalrymple Bay. On the afternoon of 24 August 2008 Mr Janus was at home getting ready to start work on the afternoon shift at 4 p.m. As he bent over to put on his work boots he felt severe back pain. That pain prevented him from going to work that day and for a considerable time thereafter.
In these proceedings Mr Janus contends, in a variety of ways, that the pain experienced by him on 24 August 2008 and thereafter was the result of an “injury” as that term is used in s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). He seeks compensation in accordance with that Act in respect of that injury.
Legislative framework
John Holland is a corporation that is licensed under Part VIII of the SRC Act and thus is a “licensee” as that term is used in that Act. By a combination of ss 14 and 108A of the SRC Act John Holland is liable to pay compensation, in accordance with the SRC Act, in respect of an injury suffered by an employee, if the injury results in death, incapacity or impairment. There is no question that Mr Janus was an employee of John Holland.
So far as is presently relevant the term “injury” is defined in s 5A of the SRC Act in this way:
“(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include [irrelevant exceptions]”
…”
Thus in the case of an injury, as distinct from a disease, the injury, or an aggravation of it, must be one arising out of, or in the course of, the employee’s employment. Section 6 of the SRC Act sets out, in a non-exhaustive way, circumstances that may be treated as having arisen out of, or in the course of, employment. It will suffice to notice s 6(1)(b) which refers to an injury sustained “while the employee was at the employee’s place of work…for the purposes of that employment.”
Disease is defined in s 5B of the SRC Act as follows:
“(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.”
Thus, in the case of a disease, there must be an ailment that was contributed to, to a significant degree, by the employment. Ailment is defined in s 4 of the SRC Act as meaning:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
Factual background
I do not understand what follows to be in issue. Mr Janus is now aged 56 years and has been a boilermaker for much of his working life. He commenced working on the 7X Project in April 2007. In December 2007 he was manhandling a heavy piece of equipment whilst bending and twisting his back to pass underneath a steel platform. He felt pain as he did so. That pain affected Mr Janus intermittently over the following days. The pain was so severe on occasions that he was transported by ambulance to hospital where he was given painkilling drugs.
It appears to be common ground that in this event Mr Janus suffered an acute disc protrusion at L5/S1[1]. Mr Janus lodged a claim for compensation for this injury which was accepted on 31 January 2008. John Holland accepted liability in respect of an injury described as “aggravation of pre-existing lumbar spondylosis with nerve root irritation”. Mr Janus had some days off work but returned to work, undertaking light duties, in early January 2008. He continued on light duties until early March 2008 at which time Dr Valena, his general practitioner, certified him fit to return to normal duties from 9 March 2008[2]. Despite that Mr Janus adapted his work practices over the ensuing months to avoid lifting heavy weights. He says that over this period his back “started to get better” but that the symptoms remained. He continued exercising at home to strengthen his back and stomach muscles.
[1] See e.g. Dr Scott Campbell, exhibit 4 at p. 5; Dr John Cameron, exhibit 7 at p. 6
[2] Exhibit 1, p. 60
Mr Janus says that in early August 2008 he was involved in a task that required him and another employee to lift weights of 25 kg up over his head and then undertake welding above his head. This task caused him considerable pain thereafter such that on 13 August 2008 he attended Dr Valena. That doctor’s notes record a complaint of “sore back 1 week, no particular injury, no pain in legs, only [lower] spine, pain with cough, normal sensation and power”. Dr Valena prescribed Tramal, an analgesic used to relieve moderate to severe pain.
Mr Janus had some time off after this incident however he worked all of the week commencing 18 August 2008. On the afternoon of Sunday 24 August 2008 Mr Janus was due to start work at 4 p.m. He was required, along with the other employees, to report to a car park where they boarded a bus that took them to the worksite. Employees were required to be appropriately dressed, including wearing safety boots supplied by John Holland, before they were permitted to board the bus. According to Mr Janus, whose evidence on the point was not challenged or contradicted, there were no facilities at the car park for employees to get dressed. On this afternoon, as Mr Janus bent down at home to pull on his boots, he felt a sharp pain in his lower back. He was unable to go to work.
Mr Janus saw Dr Valena the following day. There is an issue about the complaints he made. According to Mr Janus he told Dr Valena that he had severe pain in his lower back and numbness down the inside of his right leg. Dr Valena’s clinical notes[3] record “pain in back is gone, but has pain and numbness inside R thigh, and calf”.
[3] Exhibit 3. I have corrected obvious typographical errors in the notes.
It seems likely that on this occasion Mr Janus sustained an acute disc protrusion at the L3/4 disc space causing L3/4 nerve root compression on the right. I will discuss the medical evidence in greater detail below.
Mr Janus lodged a claim for compensation in respect of this injury on 29 August 2008. The claim was rejected on 2 September 2008 on the footing that Mr Janus’ injury had not been sustained in the course of his employment. Mr Janus asked that the decision be reconsidered but the decision was affirmed on reconsideration on 14 October 2008.
On 13 November 2008 solicitors acting for Mr Janus lodged an application (2008/5340) in the Tribunal seeking a review of this decision. Subsequently a further claim was made for compensation for the injury, on this occasion based upon the notion that the event of 24 August 2008 was the precipitating event of a series of insults to Mr Janus’ back in the course of his employment. That claim too was rejected and the decision affirmed on reconsideration. It is the subject matter of application 2009/4251.
The parties’ cases
The case for Mr Janus was put in a variety of ways in the applications lodged on his behalf but at the hearing Ms Heyworth-Smith of counsel advanced the case on two bases which I paraphrase in this way:
(a)that the act of putting on work boots, even at home, was sufficiently connected to his employment to require that a physical injury sustained in the process of putting on work boots was to be regarded as an injury arising out of employment;
(b)that the event of 24 August 2008 was merely the final insult in a series of employment related insults to Mr Janus’ back. Particular reliance was placed on the decision in Ashworth & Telstra Corporation Ltd[4].
[4] AATA 9389, 29 March 1994
Mr Clark, for John Holland, submitted that there was no sufficient nexus between the act of putting on work boots and employment to regard that act as arising out of, or in the course of, employment. Moreover, he submitted, the evidence established that Mr Janus had pre-existing degenerative back problems and the employment events of which he complains did not contribute “to a significant degree” to Mr Janus’s ailment.
Arising out of, or in the course of, employment
For the purposes of this discussion I propose to assume, rather than decide, that Mr Janus suffered a physical injury on 24 August 2008 and to consider whether, on the basis of that assumption, that injury arose out of, or in the course of, Mr Janus’ employment with John Holland.
It is to be remembered that it is the words of the statute that must be given primacy rather than any interpretation of the words. Nonetheless it is useful to recall some authoritative statements that have been made about a phrase that has been found in compensation statutes for a very long time.
In Henderson v Commissioner of Railways (WA)[5] Dixon J said:
“The general principle governing the ascertainment of the ‘course of employment’ appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. A number of them, taken from leading authorities, will be found in the judgment of this court in Pearson v. Fremantle Harbour Trust (1929) 42 CLR 320. Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight.”
[5] (1937) 58 CLR 281 at 294. What his Honour there said was recently referred to with approval in Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 where the Court was concerned with the expression “arose out of, or was attributable to, any defence service” in the Veterans’ Entitlement Act 1986 (Cth).
Subsequently in Humphrey Earl Ltd v Speechley[6] Dixon J said:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties…”
[6] (1951) 84 CLR 126 CLR at 133
To somewhat similar effect McTiernan J referred in Henderson[7] to the following observations of Lord Dunedin in Charles R. Davidson & Co. v. M'Robb[8] where his Lordship said:
“in my view ‘in the course of employment’ is a different thing from ‘during the period of employment.' It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master."
McTiernan J continued:
“Are the circumstances in this case such that it can be said that the worker was engaged at the time of the accident in doing something which was an adjunct to or an incident of his service to his master?”
[7] 58 CLR 281 at 297
[8] [1918] AC 304 at 321
Despite the able argument of Ms Heyworth-Smith I am unable to accept it. Mr Janus was employed as a boilermaker. His employer supplied work boots and he was required to wear them before he got on the bus to travel to the work site and while at work. But John Holland did not require Mr Janus to put on his boots at home nor was that expected or authorized. That was, no doubt, convenient for him but on the evidence in the present case the matter can be put no higher than a matter of convenience. And whilst it may have been more comfortable for employees to put their boots at home rather than whilst sitting in a car in the car park but it was nowhere near impossible to do so.
There is no evidence on the point however I am prepared to assume that Mr Janus’ supervisors at John Holland were aware that employees like Mr Janus were putting their boots on at home rather than at the car park and, in that way, might be said to have tolerated that practice on the part of employees. Nonetheless I am not satisfied that John Holland could be said, in that manner, to have expected its employees to do so. What was required and expected was that employees would wear safety boots when they boarded the bus, there was no earlier requirement or expectation. From the moment of boarding the bus Mr Janus came under the control of his employer. That control did not exist earlier. In a limited sense the wearing of work boots was an incident of Mr Janus’ employment however it only became an incident of employment at the point where Mr Janus was required by his employer to wear the boots, not at the earlier time when it was merely convenient for him to do so. Prior to the time that John Holland required Mr Janus to wear work boots it had no interest in whether he wore the work boots or not.
Reliance was placed by Mr Janus on the decision in Ledwidge & Optus Administration Ltd[9] but I regard that case as readily distinguishable from the present. Mr Ledwidge was an Optus technician who operated from a van provided by his employer. He injured his back when off-duty on a Sunday while organizing the interior of his van for the following week. There was evidence that Mr Ledwidge and other technicians routinely washed and tidied their vehicles outside regular hours. That evidence led the Tribunal member to conclude that Mr Ledwidge had been engaged in an activity that he was reasonably expected to undertake when he injured his back.
[9] [2008] AATA 58
I am, then, not satisfied that Mr Janus’ assumed physical injury was one arising out of, or in the course of, his employment and thus I reject the first basis on which the case for Mr Janus is advanced.
The final insult
It will be helpful to an understanding of the alternative formulation of Mr Janus’ case to first consider the case upon which reliance is placed, Ashworth & Telstra Corporation[10]. Mr Ashworth commenced employment with the predecessor of Telstra in 1970 at the age of 18 years and was engaged in heavy labouring work in the course of his duties between 1971 and 1988. In February 1988 he injured his back in the course of his employment. It was accepted that that injury was a disc prolapse. Thereafter until 1992 he was plagued by back troubles of varying intensity. He was placed on alternative duties in 1988 and continued doing so until 1992.
[10] AATA 9389, 29 March 1994
In November 1992 Mr Ashworth was at home getting dressed for work. He was lifting his foot to put it on a chair to tie his shoe laces when he felt a pain in the same area of his back as had been injured in 1988. There was medical evidence, accepted by the members of the Tribunal, that prior to 1988 Mr Ashworth was suffering from lumbar disc degeneration and that the injury of 1988 would not have occurred were it not for that condition. It was accepted that the heavy work undertaken by Mr Ashworth prior to that first injury would have contributed to the onset of that degeneration. The Tribunal determined that the disc degeneration was an ailment, to which Mr Ashworth’s employment had made a material contribution, and was thus a disease as defined in the SRC Act. The members of the Tribunal accepted, as well, evidence of a medical specialist that one of the consequences of that disease was that “further recurrences of pain were expected at irregular intervals following the incident in February 1988.” It was on this basis that the Tribunal was satisfied that Mr Ashworth’s incapacity occasioned by tying up his shoe laces in November 1992 was compensable.
As it seems to me the case of Mr Janus is quite different at a number of levels. Where Mr Ashworth had spent his entire working life with Telstra, Mr Janus has spent the majority of his working life with employers other than John Holland. Thus while the Tribunal in the case of Mr Ashworth could be confident that any employment contribution to his back condition was attributable to Telstra the same is not true of Mr Janus.
But of greater significance is the medical evidence that enabled the Tribunal in Ashworth to reach the factual conclusion that the pain in November 1992 was a consequence of the accepted injury of 1988.
I had the benefit of reports and evidence of Dr Scott Campbell, a neurosurgeon, Dr John Cameron, a neurologist and Dr Peter Steadman, an orthopaedic surgeon. I found the evidence of Dr Cameron particularly helpful. It was expressed with evident logic and reasoning. Dr Steadman’s evidence was, if I may say so, less helpful because he had the habit in his reports in going beyond expressions of opinions on medical matters and making observations of a much wider scope. Thus he observed in his report of 28 October 2009[11]:
“A contemporaneous public comment which has been the subject of some media interest recently is in relation to the opinions of unions in regard to the new retirement age of 67, and they believe that many of their members would be unable to continue to work to this age because of progressive musculoskeletal problems from degeneration.
With that in mind, one needs to weigh up the aspects of degeneration versus the mechanism of injury (one, each, or all occasions), and versus the onset of symptoms and/or resolution, and reach a conclusion about whether Mr Janus’ ongoing pathology is related to degeneration, or does the liability rest with his employer because of either a poor work practice or an event/injury which occurred at work which led to Mr Janus’ progressive degeneration and/or accelerated it.”
[11] Exhibit 9

Leaving aside that the first paragraph is a complete non sequitur, what appears in the second paragraph seems to me to address matters of causation and statutory construction and appear to have influenced the subsequent “Conclusion Reached” by Dr Steadman. To be fair to Dr Steadman I observe that in many of the instances where he has provided an opinion on a matter of law he was invited to do so by those who engaged him. I do not regard it as being at all helpful to seek the opinion of a medical practitioner on the question whether a diagnosed condition “has … been materially contributed to by some incident or aspect of … employment or … work generally.” Nonetheless I propose to act on the basis that I should have regard to the other medical evidence on matters of controversy.
As I have observed there is general agreement that Mr Janus suffered an acute disc protrusion at L5/S1 in the December 2007 incident. So far as the medical evidence is concerned he appears to have made a reasonable recovery from that injury. He saw Dr Valena on three occasions up until March 2008 complaining of symptoms evidently associated with his L5/S1 injury. On the last occasion Dr Valena recorded that he was relatively well and certified him as fit to resume normal duties. Mr Janus next consulted Dr Valena on 13 August 2008 following the occasion when he was required to lift, and weld, above his head.
Mr Janus told Dr Campbell in February 2009 that he continued to experience lower back pain and left sciatica, symptoms of the L5/S1 injury. Similarly Mr Janus reported to Dr Steadman (April 2009) and Dr Cameron (April 2009) that he had pain on occasions up until the events of August 2008. That accords with Mr Janus’ own evidence, and that of his fellow workers, Mr Roxo and Mr Michie, that he continued to experience back pain, albeit not at that same level as originally experienced and not requiring any further attendances on his general practitioner. But it must also be borne in mind that all three medical witnesses agree that Mr Janus has degenerative disc disease. I find it impossible to attribute Mr Janus’ complaints of pain during this period to the L5/S1 injury as opposed to his overall degenerative condition all the more so given the evidence of Dr Cameron that the “aggravation [of a pre-existing degenerative condition] caused by the injury in 2007 had ceased at the time of the second injury in August, 2008.”
The next event of significance occurred in early August 2008. I am satisfied by the evidence of Mr Janus that, following the performance of the work as described by him, he experienced lower back pain that caused him to visit Dr Valena on 13 August 2008. The more difficult issue is the relationship between that pain and the incident of December 2007 and the incident later in August 2008. Dr Valena’s notes refer to the absence of leg pain, which I take to mean an absence of radicular symptoms which ordinarily indicate the presence of a disc protrusion causing nerve root compression. Dr Campbell said of this occasion that “(t)here was no particular injury” although he described it as “an acute episode of lower back pain”. So far as I can tell neither Dr Cameron nor Dr Steadman have referred to this incident, presumably because it was not referred to in the briefing letters sent to them. The position, however, is that there is no evidence that Mr Janus sustained any physical ailment in early August 2008 although there is no doubt that he suffered from lower back pain at that time.
The next medical reference is the note made by Dr Valena on 25 August 2008. Dr Valena recorded on that occasion that “pain in back is gone”. The complaint then made was of radicular pain in the right leg. The medical evidence satisfies me that that injury was a physical injury. I accept the view of Dr Cameron who said this:
“The injury related to the August 2008, event I believe is a new injury. The scan performed the day after the injury on that occasion demonstrated disc protrusion at L3/4 with nerve root compression of L3 and L4 nerve roots on the right. In support of this, it appears he developed right lower limb symptoms, particularly sensory changes in an L4 pattern in the right leg. One would conclude that the right leg symptoms were therefore a result of the disc protrusion at L3-4 and not at the lower level (L5/S1) which pre-existed this injury.”
Dr Campbell too regarded this as a “right L3/4 disc protrusion”. Dr Steadman did not regard it in these terms but rather treated the incident as the consequence of degenerative disease.
But the medical evidence does not satisfy me that there was any connection between the injury of 24 August 2008 and any earlier employment related event. As appears from the extract from Dr Cameron’s report set out above he regards the 24 August 2008 injury as a “new” injury. That view is supported by Dr Valena’s notes of an absence of back pain on 25 August 2008 and the presence of right-sided radicular pain consistent with right-sided nerve compression but not consistent with the radicular pain that might be expected from the earlier L5/S1 injury.
Dr Campbell has a somewhat contrary view. His view is that the nature of the work performed by Mr Janus prior to his visit to Dr Valena on 13 August 2008 was consistent with a disc protrusion at L3/4. The difficulty that I have in accepting that view is that it appears at odds with the history noted by Dr Valena which seems to me to draw a clear distinction between the symptoms of back pain without more on 13 August 2008, and an absence of back pain and the presence of right radicular pain on 25 August 2008. But even were it to be consistent, that appears to me to be an insufficient basis on which I could be satisfied, on the balance of probabilities, that the events of early August 2008 precipitated an aggravation of the December 2007 injury. The better view, in my opinion, was that the events of early August 2008 caused some pain which had ceased by 25 August 2008. That pain is not the subject matter of either of the proceedings before me. To the extent that Mr Janus suggested that his early August back pain continued to and past this date I am unable to regard that evidence as being accurate.
As I have said, Dr Cameron’s opinion that the incident of 24 August 2008 is a new injury is supported by logic. I accept that opinion. I am unable to regard that injury as being related at all to the earlier injury in December 2007.
In the absence of a relationship between the August 2008 injury and the December 2007 injury or some evidence from which it could be concluded that all that ails Mr Janus’ back must, necessarily, be attributed to his employment with John Holland the alternative basis on which his case was put is not made good. As is evident the medical evidence here does not allow the making of the factual findings that permitted the Tribunal in Ashworth to reach the conclusion that it did.
Conclusion
I would add that I have considerable sympathy for Mr Janus and considerable admiration for the way in which he has stoically returned to work with significant impairments to his back. But the evidence does not permit me to reach a conclusion favourable to him in these proceedings. I am satisfied that Mr Janus’ suffered a physical injury, a L3/4 disc protrusion, on 24 August 2008 but I am not satisfied that it was one that answers the description of injury in the SRC Act because I am not satisfied that it arose out of, or in the course of, his employment on either of the bases on which his case was put. It follows that I would affirm the decision under review in each application.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .............Signed.......................................................
  Associate
Dates of Hearing  16 – 17 November 2009
Date of Decision  11 December 2009
Counsel for the Applicant         Ms C Heyworth-Smith
Solicitors for the Applicant        Macrossan & Amiet
Counsel for the Respondent     Mr CJ Clark
Solicitor for the Respondent     Sparke Helmore

11 December 2009	Deputy President P E Hack SC
Introduction