Willocks and Comcare - [2000] AATA 678

DECISION AND REASONS FOR DECISION [2000] AATA 678

ADMINISTRATIVE APPEALS TRIBUNAL )

)No A1999/16; 202; 420; A2000/197

GENERAL ADMINISTRATIVE DIVISION          )
           Re      GRAHAM K WILLCOCKS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Mshl IB Gration, AO, AFC, Member

Date8 August 2000
PlaceCanberra

Decision The tribunal affirms the decisions under review of 23 December 1998 and 28 June 1999. The tribunal sets aside the decision under review dated 12 November 1999, and in substitution therefor disallows the applicant's claim for compensation for psychological counselling for the applicant's lower back condition and decides the applicant has no entitlement to compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988.

...............(Sgd.)........................
Pamela Burton Senior Member
CATCHWORDS
WORKERS' COMPENSATION – injury to back at work – whether pre-existing degenerative disease – whether new injury at work, or temporary or permanent aggravation of degenerative disease – whether disc prolapsed at work or in a subsequent incident away from work – whether stress at work and/or back pain caused psychological injury – whether compensable. Whether applicant failed to disclose previous episodes of back pain and psychological problems – whether wilful and false representation.

Legislation
Safety Rehabilitation and Compensation Act 1988 ss4, 7(7)
Authorities
Comcare v Porter (1996) 70 FCR 139

REASONS FOR DECISION

8 August 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Mshl IB Gration, AO, AFC, Member

The applicant sustained an injury to his low back while lifting a printer in the course of his employment with ACT Health and Community Care on 29 January 1996, for which the respondent has admitted liability. The applicant claims that the incident caused, or materially contributed to, his degenerative lumbar spine condition and that, as a result of the back pain and stress at work, he suffers a severe anxiety condition, for which injuries he claims compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act").
The decisions under review
Several matters are before this tribunal arising out of four decisions of the respondent. In matter No 16 of 1999 the respondent made a determination on 19 August 1998 (T86 of 16/99) not to meet the cost of an exercise bike and an air walker unit recommended by the applicant's physiotherapist, Mr Trevor Beswick. Instead the respondent indicated that it would consider approving a gymnasium membership to allow access to a wider range of exercise equipment in a supervised environment. The independent review officer (the "IRO") affirmed this decision on 23 December 1998 (T103 of 16/99). The applicant seeks tribunal review of this decision.
In matter No 202 of 1999, by determination of 8 April 1999, the respondent refused liability for the applicant's condition of "severe anxiety". The IRO affirmed this decision on 28 June 1999. The applicant also seeks review of this decision.
In matter No 420 of 1999, by determination of 15 April 1999 (copy not provided to the tribunal), the respondent disallowed the applicant's claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Willocks and Comcare

Details

AGLC: Willocks and Comcare [2000] AATA 678
Case: [2000] AATA 678
Decision Date: 8 August 2000

CaseChat Overview and Summary

In the case of Willocks and Comcare, the applicant, Mr Willocks, sought compensation for injuries sustained at work and psychological injuries resulting from the stress caused by his physical condition. The matter was heard by the Administrative Appeals Tribunal (AAT). The primary issue for determination was whether the applicant's injuries were caused or materially contributed to by the incident at work or were a result of pre-existing conditions or subsequent incidents. The tribunal also had to decide whether the applicant had failed to disclose previous episodes of back pain and psychological problems, potentially constituting a wilful and false representation.

The tribunal found that the applicant had a pre-existing degenerative lumbar condition and psychiatric condition prior to the work incident. It was established that the applicant had a history of back pain and had sought chiropractic treatment for this condition before the work incident. The tribunal noted that the extent of degeneration revealed in a CT scan conducted after the work incident was unlikely to have developed in the two months between the incident and the scan. The tribunal also found that the applicant's account of his medical history provided to certain medical experts was incomplete and inaccurate.

Based on the evidence, the tribunal concluded that the applicant sustained an injury to his low back at work, for which Comcare had admitted liability. However, the tribunal found that the applicant's degenerative lumbar spine condition and severe anxiety condition were not caused or materially contributed to by the work incident. The tribunal also found that the applicant had failed to disclose previous episodes of back pain and psychological problems, which may have constituted a wilful and false representation.

The tribunal reviewed the decisions of Comcare and found that Comcare had no ongoing liability in respect of the injury the applicant suffered at work. The tribunal also found that Comcare was not liable for the applicant's condition of severe anxiety or for psychological counselling related to his compensable low back condition. The tribunal affirmed the decisions of the independent review officer (IRO) in these matters.

Orders

Orders of the court

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Background

Background to the litigation

The applicant gave evidence over a period of two days. His partner, Ms Janice Martin, gave evidence in person on his behalf. Dr Dwight Dowda, consultant occupational physician, Dr Peter Stevenson, consultant physician, and Dr June Donsworth, consultant psychiatrist, gave telephone evidence on behalf of the respondent.Background The applicant is 46 years old. On 22 September 1993 he commenced employment with ACT Health and Community Care as an Information Technology Officer, level 2. The applicant sustained an injury when he lifted a printer in the course of his employment on 29 January 1996. He saw his chiropractor the next morning. He had visited chiropractors on many occasions previously for "adjustment" to his back. He continued to attend work over the next month, before taking leave for an extended motoring holiday around Australia with his partner, Ms Martin. In the course of that trip he had some trouble with his back, and saw a chiropractor en route. Shortly after arriving in Perth, as he was unloading an overnight bag from the car, he felt acute pain which immobilised him. He sought chiropractic treatment and was referred to a doctor. After several days' rest he resumed his journey, but he suffered pain throughout the remainder of the trip, seeking treatment as required. On his return to Canberra, his regular chiropractor referred him to a doctor for further treatment. On 30 May 1996 the applicant claimed compensation for low back injury (T8 of 16/99), attributing the pain to the incident which occurred at work in January 1996. The respondent accepted liability for an aggravation to a pre-existing condition, determining the condition to be "aggravation of degenerate L4/5 disc with annular bulging most pronounced [in the] right lateral intra foraminal portion of the disc". The respondent paid the applicant compensation for medical expenses, incapacity, and permanent impairment on the basis of an assessment of 10% whole person impairment. The central issue for the tribunal is whether the acute onset of pain in Perth and the condition from which he is now suffering was caused, or materially contributed to, by the injury the applicant sustained at work in January 1996. The first issue for consideration, therefore, is whether the applicant suffered either a pre-existing degenerative lumbar disease condition and/or a pre-existing psychiatric condition. Previous health The tribunal is satisfied that, at the time the applicant commenced employment with ACT Health and Community Care, he suffered from a degenerate L4/5 disc. The lumbar spine CT scan on 21 March 1996 revealed degenerate L4-5 disc with annular bulging (T4 of 16/99). The applicant's past medical history supports the overwhelming medical opinion that the degenerate spine at L4-5 pre-dated the injury he sustained in January 1996 at work. The applicant was admitted to Woden Valley Hospital on 9 February 1972 with a six-week history of left lumbar backache and left sciatica. His condition was diagnosed as "acute protrusion lumbar intervertebral disc". He was treated with bilateral skin traction and diazepam therapy for nine days (Exhibit 8). He was admitted to Woden Valley Hospital on 30 March 1972, suffering from severe pain in his left leg and lower back following a fall from a chair. He was treated with bed rest and traction and discharged on 21 April 1972. He was diagnosed with "lumbar disc lesion" (Exhibit 9). The applicant believed that he was under the care of Dr Roebuck, orthopaedic surgeon, at the time. Exhibits F and G relating to the two periods of hospitalisation verify this. Medical receipts indicate that he was treated by both Drs Vance and Roebuck.

Evidence

Evidence Before The Court

The applicant says that he is now experiencing pain in his left side as well as his right. His medication includes morphine and he is trying to reduce its intake by finding better ways of managing his pain levels. Medical evidence The applicant relies on the evidence of Dr Robert Scott, occupational physician. In his report dated 15 June 1999 (T18 of 420/99) Dr Scott seemed not to have a history of the extreme pain and disability the applicant suffered on arriving in Perth. He reported "he eventually reached Perth, having seen various chiropractors on the way. His pain in the back and foot were said to be bad. In Perth he saw a chiropractor who allegedly referred him to a Sports Physician." In addition, Dr Scott had a past history of "no significant musculoskeletal problems". He thought that there may have been some prior lumbar spondylosis which is common in people the applicant's age, but which was asymptomatic at the time of the lifting incident. In his report of 24 June 1999 (Exhibit B) he again assumes no history of significant musculoskeletal problems. Unfortunately the history given to Dr Scott was incomplete and inaccurate. He attributes the significant degeneration and bulging shown in the CT scan dated 21 March 1996 (T4 of 16/99) as having occurred in the lifting incident at work in January of that year. We note that the scan was conducted after the Perth incident and, on the evidence before us, we have concluded that the disc bulge it shows is likely to have occurred on 20 March 1996, during the unloading of the car in Perth. We also think that it is highly unlikely that the extent of the degeneration revealed in the CT scan could have developed in the period of two months between 29 January and 20 March1996, as suggested by Dr Scott. Dr Scott dismisses the fact that the applicant had considerable chiropractic treatment before the lifting incident as of no consequence. It would seem that he did not have access to the summons material which contained Dr Keynes' notes, as they provide evidence of the applicant's regular attendance on his chiropractors for treatment of significant back problems and leg pain beginning in 1972. Dr Keynes' notes provide a valuable source of contemporaneous evidence concerning the timing of the applicant's complaints of back pain and the onset of his spinal problems. Dr Scott's opinions must, therefore, be regarded with caution. In particular, his conclusion that the applicant sustained an acute back injury as a result of the incident on 29 January 1996 resulting in disc degeneration requiring surgical intervention, can be given no significant weight. Dr Jeremy Hopkins, consultant orthopaedic surgeon, first assessed the applicant on 9 September 1998. The tribunal was not provided with a report of his findings from that assessment. In his report of 7 June 1999 (T16 of 420/99) he says that he considers that the sole cause of the applicant's current status and the disc protrusion was the lifting incident of January 1996. This seems to be based on his assumption that there was no evidence of any underlying condition. This conclusion arises out of the history he was given, which was not an accurate or full history of the applicant' pre-existing condition.

Decision

Reasons for decision

The applicant sustained an injury to his low back while lifting a printer in the course of his employment with ACT Health and Community Care on 29 January 1996, for which the respondent has admitted liability. The applicant claims that the incident caused, or materially contributed to, his degenerative lumbar spine condition and that, as a result of the back pain and stress at work, he suffers a severe anxiety condition, for which injuries he claims compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act"). The decisions under review Several matters are before this tribunal arising out of four decisions of the respondent. In matter No 16 of 1999 the respondent made a determination on 19 August 1998 (T86 of 16/99) not to meet the cost of an exercise bike and an air walker unit recommended by the applicant's physiotherapist, Mr Trevor Beswick. Instead the respondent indicated that it would consider approving a gymnasium membership to allow access to a wider range of exercise equipment in a supervised environment. The independent review officer (the "IRO") affirmed this decision on 23 December 1998 (T103 of 16/99). The applicant seeks tribunal review of this decision. In matter No 202 of 1999, by determination of 8 April 1999, the respondent refused liability for the applicant's condition of "severe anxiety". The IRO affirmed this decision on 28 June 1999. The applicant also seeks review of this decision. In matter No 420 of 1999, by determination of 15 April 1999 (copy not provided to the tribunal), the respondent disallowed the applicant's claim for compensation for psychological counselling for the applicant's compensable low back condition on the ground that it was not therapeutic treatment. The IRO affirmed this decision on 12 November 1999. On that occasion the IRO also considered a determination dated 28 June 1999 (of which a copy was not supplied to the tribunal) which assessed the applicant's whole person impairment at 10% pursuant to section 24 of the Act. The applicant, through his solicitor, by letter dated 1 July 1999 requested that that assessment be reconsidered. The IRO on 12 November 1999 affirmed the determination of 28 June 1999. At the hearing the tribunal was informed that the respondent on its own motion reconsidered liability in these matters and decided that it had no ongoing liability in respect of the injury the applicant suffered to his back in the course of his employment on 29 January 1996. The tribunal notes that matter No 197 of 2000 raises the issue of initial liability, although no decision in writing pursuant to section 63 of the Act was brought to the tribunal's attention. This does not prevent the respondent from contesting liability generally. The respondent contends that liability was wrongly accepted for the applicant's ongoing complaints of pain, and psychological reaction to it. The respondent further contends that the applicant had a pre-existing back condition and psychiatric condition of which he was aware and that he is precluded from receiving compensation pursuant to section 7(7) of the Act.

Ratio Decidendi

Legal Principle Established

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