XBBS and Australian Capital Territory (Compensation)
[2019] AATA 1057
•29 May 2019
XBBS and Australian Capital Territory (Compensation) [2019] AATA 1057 (29 May 2019)
ReviewNumber: 2015/6808, 2015/6809, 2015/6810, 2017/4725
Division:GENERAL DIVISION
File Number(s): 2015/6808, 2015/6809, 2015/6810, 2017/4725
Re:XBBS
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal: Mark Hyman, Member
Date: 29 May 2019
Place:Canberra
The decision in matter 2015/6810 is set aside and in substitution the tribunal decides that the Australian Capital Territory is liable to pay compensation to the applicant, in respect of his physical injury, under sections 16 and 19 of the SRC Act from 1 July 2015 to the date of this decision.
The decision in matter 2015/6809 is set aside and in substitution the tribunal decides that the Australian Capital Territory is liable to pay compensation to the applicant under section 14 of the SRC Act in respect of his psychological injury.
The decisions in matters 2015/6808 and 2017/4725 are remitted to the Australian Capital Territory for consideration in light of the above decisions.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – where applicant has an accepted physical injury and a secondary psychiatric condition for which liability has been denied – whether employment contributed in a material degree to the physical condition – equivocal medical evidence – whether employment continues to contribute to applicant’s physical condition – whether physical condition contributed in a material degree to psychiatric condition – whether compensation payable for permanent impairment and non-economic loss – two decisions set aside and substituted – two decisions remitted to the respondent
Legislation
Administrative Appeals Tribunal Act 1988, ss 35, 37, 38AA
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 24, 27, 71
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
Cases
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 36; (1989) 167 CLR 533
Australian Postal Corporation v Bessey [2001] FCA 266
Bailey v Broadsword Marine Contractors [2017] FCAFC 219
Beezley v Repatriation Commission [2015] FCAFC 165
Comcare v Martin (2016) 258 CLR 467
Comcare v Mooi [2006] FCA 1587
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie (1981) 35 ALR 369
Commonwealth v Borg [1991] FCA 710
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Fletcher and Comcare [2015] AATA 430
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Mellor and Australian Postal Corporation [2010] AATA 502
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Portors v Comcare [2018] FCA 914
Prain v Comcare [2017] FCAFC 143
Rutledge and Comcare [2011] AATA 865
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Tippett and Australian Postal Corporation [1998] FCA 335
XBBS and Comcare [2018] AATA 4041Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, Fifth edition, American Psychiatric Association
REASONS FOR DECISION
Mark Hyman, Member
29 May 2019
This decision is about the continuing rights to workers’ compensation on the part of the applicant (a confidentiality order has been made under section 35 of the Administrative Appeals Tribunal Act 1988 (the AAT Act) preventing disclosure of the applicant’s name; he is identified by the acronym “XBBS”). The applicant claimed compensation on 13 August 2003 for tennis elbow and right C6 nerve root impingement, identifying November-December 2002 as the time at which he noticed his symptoms, and 26 March 2003 as the date of first medical treatment. Comcare, the respondent, accepted liability for “aggravation of intervertebral disc disorder – cervical region (right)” on 1 September 2003. In 2014 and 2015 the respondent, having obtained new evidence, took a series of decisions denying liability: on 20 October 2014 the respondent denied the applicant a claim under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for permanent impairment and for non-economic loss in respect of his accepted condition; on 14 November 2014 the respondent denied a claim under section 14 of the SRC Act for compensation for a psychiatric condition (“depression”); on 1 July 2015 the respondent decided that the applicant had no present entitlement in respect of medical expenses and incapacity as at that date, in respect of his physical condition, under sections 16 and 19 of the SRC Act. The applicant requested reconsideration of all three decisions, and all three were affirmed in a single reconsideration determination dated 2 September 2015. The applicant applied to this tribunal for review of the reconsideration determination on 23 December 2015. That application covers the three matters: respectively 2015/6808, 2015/6809 and 2015/6810.
The respondent made a further decision on 9 January 2017 to deny the applicant’s claim for permanent impairment and non-economic loss in respect of his claimed psychiatric condition under sections 24 and 27 of the SRC Act. The applicant requested reconsideration, and on 28 July 2017 the respondent affirmed the decision in a reconsideration determination. The applicant applied to this tribunal for review on 9 August 2017. That application is matter 2017/4725.
The tribunal heard all four matters together, beginning on 22 and 23 August 2018, resuming on 4 October 2018, resuming again for a short period on 4 April 2019 and completing the hearing on 15 and 16 April 2019. The explanation for that extended program is that an initial question of jurisdiction arose, leading to the need for me to make a ruling; that ruling was then recognised as needing to be revisited in the light of additional material that came forward to the hearing but had not previously been provided to the tribunal. The jurisdictional issue is explored in XBBS and Comcare [2018] AATA 4041, and that decision also recounts the problems of incomplete materials, leading to the need to adjourn the hearing and subsequently resume. In April 2019 further problems relating to availability of witnesses and counsel led to the need to schedule the hearings at disparate times.
Throughout the hearing the applicant was represented by Mr Christopher Ryan of Counsel, briefed by Dwyer Lawyers, and the respondent by Mr Peter Snell of Counsel, briefed by Lehmann Snell Lawyers. The applicant appeared in person and gave evidence, and called two lay witnesses, namely his wife, and a former supervisor, Mr John Wigan. He called two expert witnesses, Dr Caroline Tan, a neurologist and Dr Anne-Marie Rees, a consultant psychiatrist. The respondent called no witnesses. The applicant’s wife appeared in person and Mr Wigan and the two expert witnesses appeared by telephone. The tribunal was assisted by a large volume of documentary material, comprising the documents (the “T-documents” and supplementary T-documents) submitted under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1988 (the AAT Act); documents obtained from the applicant’s employer, Calvary Hospital, and provided by Comcare under section 71 of the SRC Act; and the following documents tendered at various stages of the proceedings:
| Document | Date | Exhibit number |
| Correspondence between the applicant and Dr Minh Nhut Ho | 10 August 2017 | A1 |
| Applicant’s annual leave 2001-2005 | - | A2 |
| Document titled “workload as at June 2003” | - | A3 |
| Letter from Dr Garth Eaton to Dr Minh Nhut Ho | 24 September 2003 | A4 |
| Letter from respondent to Canberra Injury Management | 23 September 2005 | A5 |
| Letter from respondent to applicant accepting liability for psychology sessions | 23 September 2005 | A6 |
| Leave application by applicant | 21 October 2005 | A7 |
| Witness statement of Mr John Wigan | 14 August 2018 | A8 |
| Witness statement of Mr John Wigan | 3 October 2018 | A9 |
| Medical report of Dr Caroline Tan | 5 November 2016 | A10 |
| Additional medical reports of Dr Tan | 15 and 18 May 2017 | A11 |
| Bundle of documents sent to Dr Tan on 9 April 2019 | various | A12 |
| Letter to Mr Graeme Brazenor from applicant’s solicitors dated 10 August 2018 and two letters in response | In response, 17 and 20 August 2018 | A13 |
| Witness statement of applicant’s wife | 13 August 2018 | A14 |
| Medical report of Dr Anne-Marie Rees | 19 June 2017 | A15 |
| Medical certificate signed by Dr Mohan Mirpuri | 16 May 2014 | R1 |
| Medical report of Dr Zoltan Zsadanyi, with briefing letter | 8 June 2016 (report) 27 April 2016 (letter) | R2 |
| Notes of Dr Minh Nhut Ho | Notes of various dates, filed 30 March 2017 | R3 |
| Handwritten consultation notes of Mr Graeme Brazenor | 29 August 2003 | R4 |
| Report on X-ray of cervical and lumbar spine | 3 October 2000 | R5 |
| Medical report of Dr Ross Gurgo | 18 July 2016 | R6 |
| Supplementary medical report of Dr Gurgo | 29 November 2016 | R7 |
During the history of this matter up to and including the hearings held in 2018, Comcare was the respondent. That changed on 1 March 2019, when the decision to grant a licence to the Australian Capital Territory under the SRC Act took effect. With that decision liability under the SRC Act in the present matter transferred to the Australian Capital Territory, which became the respondent.
ISSUES
The applicant has four matters before the tribunal. Two concern a physical condition and two concern a psychiatric condition. The issues before the tribunal for decision in respect of the physical condition are:
·the diagnosis of the applicant’s condition;
·whether the condition was an ailment or an aggravation of an ailment;
·whether the condition was contributed to, and as at 1 July 2015 and since, continues to be contributed to, in a material degree, by the applicant’s employment;
·whether the applicant continues to suffer from the condition;
·whether the applicant, at and since 1 July 2015, reasonably required medical treatment in relation to the physical condition;
·whether the applicant, as at 1 July 2015 and since, is incapacitated by the condition;
·whether the applicant suffered permanent impairment as a result of the condition;
·if so, the degree of that impairment and the amount of compensation payable for non-economic loss.
The issues before the tribunal in respect of the psychiatric condition are:
·the diagnosis of the condition;
·the date at which it was first suffered;
·whether the condition was contributed to, to the requisite degree, by the applicant’s physical condition;
·whether the applicant suffered permanent impairment as a result of the condition;
·if so, the degree of that impairment and the amount of compensation payable for non-economic loss.
The jurisdictional issue that first arose in this matter concerned whether the applicant’s psychiatric condition is to be considered as a primary condition purportedly directly arising from the conditions of employment, or as a secondary condition purportedly arising from the primary physical condition. In XBBS and Comcare [2018] AATA 4041 I decided that the condition had always been claimed and advanced as a secondary condition, a sequela to the physical condition. That is a legal rather than a medical conclusion (that is, it relates to how the claim was pursued and what case was put to Comcare, rather than how, from a medical perspective, the matter first arose). That issue having been decided, it is apparent that if I were to find that the applicant has no present entitlement to compensation under sections 16 and 19 of the SRC Act in respect of the physical condition, because it never exhibited the necessary connection with employment, then there can be no compensable impairment, nor can the secondary psychiatric condition be compensable, as the primary physical condition on which it depends is not itself compensable. Put another way, if I decide against the applicant in matter 6810, the other three matters will all fall away; if on the other hand I decide for the applicant in matter 6810, the other three matters will each have to be separately decided.
It would therefore seem appropriate to turn first to matter 6810; the hearing focused closely on that matter, in recognition that it was the pivot on which the case turned. But in practice the evidence of the physical and psychiatric conditions is closely intertwined, and the most straightforward way of dealing with it is to set out both the physical and psychiatric evidence before turning to questions of causation.
THE LEGISLATIVE FRAMEWORK
The SRC Act provides for compensation to be paid in respect of injuries occasioned by employment. A critical issue in the present matter is whether the applicant’s condition or conditions (referred to henceforth in the plural for convenience) had the nexus with employment that is required for compensation to be paid. In turn, that is influenced by the date of onset of the conditions, as the SRC Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No. 54/2007), which commenced on 13 April 2007, to change the test to determine the required nexus. There is sufficient uncertainty regarding the diagnosis and onset of the applicant’s conditions that the legislative history of the SRC Act needs to be kept in view.
Subsection 4(1) of the SRC Act, as it stood before amendment, defined an injury, for the purposes of the Act, as follows:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Subsection 4(1) also defined a disease, as follows::
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
Once amended the SRC Act included in section 5A text that is identical for present purposes to that produced above for the definition of “injury” (the changes made to the text above relate to the “reasonable disciplinary action” in the last part of the text, which has no application in the present matter). Section 5B then relevantly defines “disease” in terms that differ from the extract above, 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.
In other respects, so far as is relevant for present purposes, the SRC Act remained the same before and after amendment.
Subsection 4(1) of the SRC Act defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 14 of the SRC Act is the gateway provision for compensation within the Act’s legislative framework. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later parts of the Act then provide for compensation to be paid in particular circumstances where specified criteria are met; in particular, section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.
Subsection 16(1) of the SRC Act provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Subsection 4(1) of SRC Act contains a definition of “medical treatment”. It includes (relevantly) medical or surgical treatment, by or under the supervision of, a legally qualified medical practitioner (paragraph (a)); or therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b)). Section 4(1) also defines “therapeutic treatment” to include treatment given for the purpose of alleviating an injury.
Section 24 of the SRC Act provides for compensation to be paid where an employee’s injury results in permanent impairment. The employee’s degree of impairment is determined under subsections 24(5) and (6) as a percentage, in accordance with the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide), a legislative instrument made under section 28 of the SRC Act. The amount of compensation payable is set by subsections 24(3) and (4) as the percentage of the maximum amount payable that is the same as the percentage impairment determined under subsection 24(5). Subsection 24(9) sets the maximum amount payable as $80,000. Subsections 24(7), (7A) and (8) provide that, with exceptions not presently relevant, compensation is not payable where the degree of permanent impairment is less that 10%.
Section 27 provides for the payment of compensation for non-economic loss where compensation is payable to an injured employee in respect of a permanent impairment. The amount so payable is specified in subsection 27(2) as the sum of the degree of permanent impairment multiplied by $15,000 and the degree of non-economic loss as determined under the guide, also multiplied by $15,000.
THE MEDICAL EVIDENCE
Medical evidence comes from the applicant himself, in respect of the onset of symptoms, the nature and course of those symptoms and their treatment; from his wife and colleague (Mr Wigan); from the extensive documentary record detailing the examinations he has undergone and the various diagnoses of his conditions; and from the expert witnesses.
Evidence of the applicant
The applicant’s evidence was given over an extended period, and went into great detail about the nature of his employment, the stress placed upon him by that employment, and the various events that characterised the period of his employment until his departure from it in 2006. Most of that evidence, however, is not contested; the respondent’s case is not about the events associated with the applicant’s employment, but rather that the applicant’s employment made no contribution to his condition. The case rests, therefore, largely on the medical evidence. For that reason I have provided an abbreviated summary of much of the material that came forward, focusing on those aspects of the evidence which in my view throw light on the matters that may influence the decision.
In adducing the applicant’s evidence, Mr Ryan was understandably at pains to illustrate the events in his employment that in his submission contributed to the applicant’s conditions, both physical and psychiatric. Because of the jurisdictional ruling that I had made and later confirmed in the written interlocutory decision, certain evidence with regard to the applicant’s psychological state could be regarded as relevant and certain evidence would lie outside the boundaries of my jurisdiction. Thus evidence of the applicant’s psychological state arising from his employment is relevant so far as it goes to the effect on his physical condition; and the effect of his physical condition on his psychological state, especially as it relates to the development of psychiatric symptoms or a psychiatric disorder, is relevant; but evidence that shows that his employment directly caused psychiatric symptoms or a psychiatric condition is not. It is plain that these things are significantly intertwined; considerable attention has been given in this decision to determining which evidence bears on the matters at hand and which does not, but the interplay between employment and the psychiatric condition of the applicant does not always allow the factors to be easily teased apart. I return to this issue below.
Some time was spent by counsel for each party in attempting to establish whether or not the applicant experienced symptoms associated with his condition before beginning his period of employment at Calvary Hospital. The applicant distinguished his symptoms at any earlier time from those he encountered after his work at the hospital began, saying that the earlier pain was in the lower part of his shoulder, near or under the scapula, not in his neck. He did not recall ever reporting to Dr Ho that he suffered four weeks of neck pain, and thought he had only spoken to him of lower back pain. He also suggested that the previous pain he reported to Mr Brazenor at his first consultation related to pain under the scapula, not in the neck. He said that his wife had corrected Dr Brazenor at the time.
The applicant in the period in which the accepted condition came to attention was Chief Information Officer for Calvary Hospital, and was therefore in charge of all the information technology (IT) systems for the public and private hospitals and the associated hospice. His evidence was that his workload and the demands on him during the critical period at Calvary Hospital were very great. That evidence is corroborated by his work records, including leave records and the like, and shows that he worked very long hours in both a formal sense, and in a less formal sense through supplementary work at home, in the evenings, and on weekends. None of this evidence was contested. Exhibit A3 is a document, titled “Workload as at June 2003” setting out the applicant’s typical workload for a week, showing 10 hours each weekday, with an extra hour and a half each weekday evening and two and a half hours on the weekend. The applicant said that he was on call at any hour, and for a hospital the IT systems were critical on a 24 hour basis; as a result he had to field calls at any time of the day or night. He took very little leave: his leave record (Exhibit A2) shows about six working days in calendar 2001; 10 days in calendar 2002; and then 14 days during January 2003.
The applicant recounted the appearance of symptoms in late 2002, consisting of shoulder pain, muscle tension and sharp pain on keyboarding. The applicant also reported feeling a great deal of stress because of the demands of his work. He took time off in January 2003 and travelled by car to Queensland for a wedding, but the pain persisted and the extended hours sitting in the car did not help. On his return the pain was still present, and in March 2003 the applicant consulted Dr Ho about it for the first time. In May 2003 an action plan was drawn up by the hospital in an attempt to reduce the stresses upon the applicant and allow him to continue as a productive worker (T6, dated 27 May 2003). He worked on reduced hours during June 2003 and later took some sick leave, but on his return to work the pain also returned, and indeed it lasted through the whole of 2003. Through this period the applicant also had problems with a new supervisor, with whom he had a difficult relationship. That changed in 2004, when Mr John Wigan took over as the applicant’s supervisor. The applicant said that the change in supervisor led to a significant reduction in stress, and with that reduction in stress, a reduction in pain.
To this point the treatment afforded the applicant consisted of physiotherapy (which in fact began even before the applicant was acutely conscious of symptoms) and various forms of analgesia. In early 2005 the applicant took further sick leave, from 11 January to 7 March (T142, folios 589-92), being certified as unfit for work. Despite being on leave, the applicant said that he continued to attend to work matters, both by telephone and on his laptop. That pattern continued, including during a period of recovery from surgery in 2005. In 2006 an IT consultant was hired, supposedly to review the IT function at the hospital. That consultant, it transpired, had been engaged to replace the applicant, and did so in July 2006. The applicant departed the workplace, apparently under some pressure from the hospital, taking a combination of different types of leave - long service and sick leave. The applicant said that his pain levels were further elevated by the stresses involved in this change in circumstances. He did not at any subsequent time return to substantive employment at the hospital.
The applicant’s employment with Calvary Hospital came to an end on 9 March 2007, when he was given a redundancy notice (T66). He sought employment elsewhere, but without success. The years immediately after his departure were difficult for the applicant, but in 2015, as part of a further attempt at rehabilitation, Calvary Hospital assisted him to begin further studies in property management, and those have helped him to find a new way forward and contemplate a different kind of work in an environment where he can pace himself and manage his continuing pain issues.
The documentary medical evidence
There are records of the applicant suffering various symptoms of musculoskeletal problems from before the lodgement of his compensation claim. On 19 July 2000 he saw Dr Minh Nhut Ho, his general practitioner; the notes of the consultation (Exhibit R3 - taken as handwritten notes at the time and typed up from those records in 2017 for present purposes) record “3 year history of Low back pain. 4/52 history of right side neck pain. No history of injury noted. Low back pain happened after construction of his home” [sic]. The applicant had a full range of motion in his neck and was not tender there, but was tender over the “right shoulder area”. There was no neurological deficit. Dr Ho notes record his ordering an X-ray of the lumbosacral spine (in practice, apparently of lumbar and cervical spines – see below).
A report of the X-ray is at Exhibit R5. It notes slight narrowing of disc space in the lumbar spine but the critical findings are for the cervical spine. There was “moderate degenerative disc space narrowing at C5/6 with accompanying neurocentric joint hypertrophy to the right side, resulting in quite marked right C6 foraminal stenosis.” On 5 October 2000, having seen the report on the X-rays, Dr Ho diagnosed osteoarthritis of the cervical and lumbosacral spine. He noted that the applicant refused the non-steroidal anti-inflammatories he advised, and undertook acupuncture in place of that treatment. Dr Ho continued with acupuncture for about a year.
The onset of the accepted condition
The applicant lodged an accident report with Calvary Hospital on 26 March 2003 (T5), reporting that his problem, which had arisen from “kbyd – typing and screen interaction” had occurred as “gradual pain over period of weeks until pain become sharp & intense. Relocation position of mouse & kbyd height etc provided temporary relief” [sic]. The applicant described the pain in the following terms: “pain at times is chronic/severe while performing keyboard related activities”. He gave his weekly hours as 45-55. The applicant indicated that his neck, shoulder, elbow, wrist and arm were affected. His supervisor signed the form, noting that corrective action had comprised “work hours & typing reduced. Commenced physio x2/52” [scilicet: physiotherapy twice weekly).
Dr Ho’s notes over this period record (Exhibit R3) that the applicant had his last acupuncture session on 18 September 2001. On 3 July 2002 he sought a referral to Calvary Hospital for physiotherapy (the part of his body to be treated was left unspecified). Then on 26 March 2003 the applicant reported a painful right arm and shoulder and once again asked Dr Ho for a referral to physiotherapy at Calvary Hospital, which was given. At a consultation on 19 June 2003 the applicant asked for a medical certificate for reduced hours (four hours per day on Monday, Tuesday, Thursday and Friday, with Wednesday off work). On 8 July 2003 the applicant asked for a medical certificate for a fortnight. They had a discussion, and the applicant asked if his condition was work-related or not; Dr Ho said he thought it was not, and that he would not “do work compensation” for the applicant.
The applicant lodged a claim for compensation with Comcare on 31 July 2003. He noted on the claim form that the problem had arisen in November-December 2002; that he had raised the accident form on 26 March 2003 and had first sought medical treatment on that date; and identified the diagnosis of the problem for which he was claiming as “tennis elbow” at the time of the accident report, but the current diagnosis as “right C6 nerve root impingement”. He described the injury as “inflammation and impingement of nerve – C6” and identified the affected parts of the body as “right neck, shoulder, arm, hand & thumb fingers”. The injury came about as “pain experienced while sitting. Pain exacerbation with stress. Concentration difficult due to pain.” The equipment involved in the injury was described as “computer workstation incorporating std kybd mouse and monitor configuration”. The applicant noted that he had never been off work completely over the period from March to July but had reduced his hours.
In answer to a question on the form asking what had contributed to his injury, the applicant attached a short statement identifying the relevant factors as increased workload (“extended hours, stress, increased keyboarding, increased responsibility and reduced autonomy”), with his injury initially diagnosed as tennis elbow, easing with reduced duties, and then increasing again after a period of “prolonged work effort”; that led later to a CT scan and the diagnosis of nerve root impingement and referral to a neurosurgeon. A leave form (T8.2) shows that the applicant applied for sick leave for the period 24 June to 18 July 2003, with the notation “available for 16 hours per week”. In a report on the CT scan, dated 30 June 2003 (T8.4), the radiologist identifies at C5/6 mild disc height loss, and a moderate posterolateral disc bulge with associated endplate spurs; the bulge indents the theca and abuts the cord. Neurocentral joint osteophytes moderately encroach upon the right C6 neuroforamen, as does the disc bulge. These features are described as “in keeping with right C6 nerve impingement”.
Dr Ho referred the applicant to Dr Charles Howse, a sports physician, who in turn referred him to Mr Graeme Brazenor, a neurosurgeon. In the referral, dated 27 August 2003 (T10), Dr Howse noted that the applicant’s neck pain had been first noted in December 2002 and had increased in intensity in March 2003. It appeared to be aggravated by prolonged sitting and keyboarding; eased when he was away from work on weekends; and his condition included paraesthesia in the thumb and index finger of the right hand. The applicant had suffered neck pain some three years previously, but this had settled.
Comcare sought advice from Dr Howse on 25 August 2003 regarding the diagnosis of the applicant’s condition (T9). Dr Howse replied on 28 August 2003 (T11) reporting a diagnosis of “chronic right C6 nerve impingement”, and stated his opinion that the applicant’s work duties had aggravated a pre-existing condition. On 1 September Comcare accepted liability for “aggravation of intervertebral disc disorder – cervical region (right)” (T12).
The handwritten notes of Mr Brazenor on what appears to be his first consultation with the applicant (Exhibit R4), dated 29 August 2003, record that he had suffered “neck pain soon after getting married” (this is documented as having occurred in 1986) and then had “niggly neck pain” three years before the consultation, with lower back pain worse at that time. Mr Brazenor noted the history of the applicant’s condition to that time as involving pain in the arm from November 2002, associated with use of a keyboard; a diagnosis of tennis elbow; reduced time at the keyboard; and subsequently a return to full hours, with the pain becoming severe and involving both neck and arm. Part-time work had not helped but a fortnight completely off work had led to improvement. The pain had returned in the second week back at work after that break. By the time of the consultation the pain was worst in the neck; pain was associated with stress, sitting, writing and typing. There was “deadness” in the right arm (the right brachioradialis region) and tingling in the right thumb, index and middle fingers.
Dr Ho referred the applicant to Dr Garth Eaton, an occupational physician. Dr Eaton’s report (T13), dated 24 September 2003, notes the symptoms of neck and arm pain, and observes that those symptoms appear to be aggravated by computer work and by tension and stress. Dr Eaton notes that the applicant has a personality which makes him susceptible to stress and anxiety: “[t]here is no doubt a component of his pain condition has been further aggravated by stress in the workplace and his personality and desire to be an effective senior IT executive.” Dr Eaton identified the applicant’s loss of autonomy in his work as a contributing factor; he recommended a mix of medication, physical therapy and psychological counselling and behavioural pain management.
A further MRI report dated 17 December 2004 (T17) noted general loss of disc height in the cervical spine and confirmed nerve impingement at C6 on the right. The impingement is described as “high grade compromise to the exiting right C6 nerve and mild cord compression and rotation”. An osteochondral bar is also noted at C5/7 and there is a small disc protrusion at C6/7.
Two other sets of symptoms developed over about this period that may have some connection to the applicant’s spine condition and associated issues. The first was the development of clenching and grinding the teeth (bruxism). The applicant reports this in a letter to Comcare (T19, dated 15 April 2005) and attaches a report from his dentist, Dr Sharon Mathai (T19.1, dated 2 March 2005), who recommended an occlusal splint, noting that this would protect his teeth “and to a certain extent, may give some relief to his muscles and related symptoms”. The second condition was the development of irritable bowel syndrome: Dr Haynes referred the applicant to Dr Michael Corbett, a gastroenterologist, on 21 April 2006 (T45). Dr Corbett’s report (T49, dated 18 May 2006) diagnosed irritable bowel syndrome and he sent the applicant for a gastroscopy and colonoscopy (reported at T52 and T53). Dr Corbett’s final report (T56, dated 13 July 2006) noted that the applicant’s symptoms had “almost completely settled” since leaving work.
Surgery and afterwards
A report from Mr Brazenor to Comcare (T20), dated 27 April 2005, notes that at that time the applicant had been away from work for 4-5 weeks, and was in pain from cervical disc-generated symptoms. Mr Brazenor sought Comcare’s approval for the applicant to have disc replacement surgery, which he rated as a very good chance of resolving the applicant’s problems. The applicant had the surgery on 23 June 2005 with Mr Brazenor inserting artificial discs at C5/6 and C6/7 (T79); a report by Mr Brazenor, dated 29 July 2005 (T26), noted that the applicant had not recovered as expected; a month later (letter of 31 August 2005 at T27) he was better, with pain limited to an area medial to his right scapula. Mr Brazenor certified him fit for full hours and prescribed Prothiaden (which I understand to be an antidepressant with wider applications) and Mobic, an anti-inflammatory. In this later letter Mr Brazenor said that “the whole operative experience has brought out the fact that this is a deeply neurotic man”. On 28 October 2005 Mr Brazenor reported om a post-operative review on that date, noting that the applicant’s neck was recovering well; that his psychological equilibrium was taking much longer; that what equilibrium he did have was due in large measure to the Prothiaden , which he (the applicant) wished to discontinue; and that “this is a man with a fragile psyche, and this whole neck injury and operation business has been extremely stressing for him, so much so that I think for a while there there was a good chance that he was simply not going to function at all”.
At about this point the applicant was put on a graduated return to work program, and as part of that program he was referred to Canberra Injury Management Centre, where he had some sessions with a psychologist, Ms Vicki Coghlan. Ms Coghlan diagnosed “pain disorder due to a general medical condition and psychological factors”, making the following further comments in her report (T31, dated 9 September 2005): the applicant, while not at that time depressed, had suffered a depressive episode earlier in the year; he had a history of anxiety and stress; he had specific pain-related cognitions; his cognitive style implied a low frustration tolerance and unrealistically high expectations of himself and others; he was likely to have difficulty in pacing his activity.
A series of reports by Mr Brazenor provide post-operative follow-up on the applicant. On 7 April 2006 Mr Brazenor found (T44) that the applicant was not as well as he had been the previous October; that he was weaning himself off the Prothiaden, which was inadvisable; and that his neck was stiff to movement, with muscle spasms at the extremes of all ranges, although the ranges themselves were “pretty good”. He was sent for scans. A report of a CT scan of the cervical spine, dated 30 June 2006 (T54) found no complications from the prosthetic discs at C5/6 and C6/7, although residual osteophytes at C5/6 were noted to protrude into the canal and marginally narrow the right foramen at C5/6. A bone scan found a largely normal cervical spine, with minor non-specific post-operative bony remodelling around the disc prostheses.
On 14 July 2006 Mr Brazenor noted (T57) the good results from the CT and bone scans, and that that the applicant’s arm pain had subsided to a dull ache after a busy or stressful day; the report also noted that he had strongly advised the applicant to continue with Prothiaden, as he was in a stressful situation, although on long service leave at the time. A letter of 16 March 2007 to Dr Haynes (T69) reported on a further consultation on that date, in which the applicant complained of periscapular pain on the right and heaviness of the right arm but no paraesthesia. He noted that the applicant seemed to be neurologically intact. He sent the applicant off for further films, noting that he was taking Prothiaden and had “just been fired”. In a letter of 4 April 2007 (T70) Mr Brazenor reported that the films (reports on which appear not to be in evidence) showed that while the C6/7 disc was firmly welded in place, that at C5/6 was not, with isotope uptake around its endplate and a tiny cavitation above the C5 endplate. Mr Brazenor attributed the applicant’s periscapular and interscapular pain, neck discomfort and reduced work stamina to these findings. He foreshadowed the possibility of dealing with them by spinal fusion at C5/6 and noted the applicant’s refusal to undertake further surgery, describing this as “not particularly realistic”, given the applicant’s position.
On 6 February 2008 Mr Brazenor responded to a request from Comcare by providing a detailed report (T79). This noted the applicant’s history (very much along the lines set out above) and identified an initial diagnosis of “a right-sided ‘mound’ of disc prolapse and osteophytes at C5/6, and that he also had a left paramedian disc bulge at C6/7”. Initial treatment had been conservative, involving walking as exercise and instructions for how to sleep. This made no progress, and so the applicant underwent the surgery, and the subsequent ups and downs of recovery, as set out above. The most recent review by Mr Brazenor had occurred on 19 December 2008 (no report is in evidence), when he noted of the applicant that “he looked physically well but psychologically ravaged” and was “incredibly self-obsessed”. Mr Brazenor goes on to summarise the case, noting the failure of conservative therapy; that there was “a history of aggravation of his symptoms by long hours at the computer in the course of his job”; that his recovery after surgery “has been dominated by severe constitutional anxiety”; and when last seen he was “physically fit for full-time employment” but held back by psychological problems.
Mr Brazenor saw the applicant again on 23 June 2008, with the benefit of new CT scans, which are not in evidence. He noted that things remained as they were, with chronic neck pain, and that the osteophytes at C5/6 were bigger than a year previously but not at a size where they would cause canal stenosis.
Dr Stuart Haynes, the applicant’s general practitioner from about 2005, referred the applicant to a psychologist, Mr Jeff Parsons on 5 March 2007 (T65). On 12 June 2007 Mr Parsons made a tentative diagnosis of “pain disorder with both psychological factors and a general medical condition – chronic” and recommended that the applicant have six sessions of psychological treatment He noted that the applicant’s personality included “significant obsessional qualities”; that he lacked the cognitive strategies to manage the thoughts that elevated his anxiety; and that his anxiety contributed to his pain. Mr Parsons stated that although he was rated under the Beck Depression Inventory as having severe mood problems he did not think that the applicant was at that time suffering a formally diagnosable major depression. Mr Parsons treated the applicant, reporting on 22 November 2007. He confirmed the earlier diagnosis, reiterated the obsessional aspects of the applicant’s personality, adding that he had an “angry mood” and that these qualities added to his pain. He also commented that family tensions appeared also to have been contributing to more intense pain. He recommended six further sessions while noting that the prognosis was poor given the length of time since he had worked, his personality and his history of focusing on his pain rather than on his psychological issues.
At Comcare’s request (T80.1), Mr Parsons provided a detailed report, dated 20 March 2008 (T80). Mr Parsons formally confirmed his diagnosis; he noted reported elevation of pain with fine motor activity and with psychological distress (anxiety or anger); symptoms included poor appetite, depressed mood, feeling emotionally empty and tearful, suicidal ideation without evidence of planning, loss of energy and libido, feelings of heaviness and restlessness, impaired concentration and short-term memory, guilt and lowered self-worth. Some of these related in particular to family relationships. By November 2007, Mr Parsons thought that the applicant was suffering a major depressive episode. Mr Parsons noted that medical opinion was needed to establish the cause of the applicant’s physical condition; that his personality made him more than usually susceptible to the kind of conditions he suffered from; and family issues were the most significant factors in contributing to his anxiety and mood problems.
Attempts at rehabilitation
The record shows that attempts were made to manage the applicant’s workload so as to allow him to continue his usual hours and duties. Action plans were signed off by Dr Ho on 27 May 2003 (T6), 30 October 2003 (T14), 23 September 2004 (T15), 6 November 2004 (T16) and 21 December 2004 (T18). These plans are all very similar to one another: they contemplate maintaining full work hours but limiting extended periods of keyboard use and of sitting, and they signal various forms of treatment (e.g. osteopathy, acupuncture) and consultations with specialists (e.g. Mr Brazenor).
In June 2005 an outsourced rehabilitation provider was engaged. An initial needs assessment dated 14 June 2005 provided a detailed analysis of the applicant’s position at the time, which was shortly before his surgery. Following surgery and a period of recovery, the rehabilitation provider drew up a graduated return to work program (T30), which was then the subject of a large number of progress reports, replacement plans and amendments (T32, T34, T35, T37, T38, T39, T40, T41, T42, T43, T46, T47, T48, T50, T51, T58, T59). The return to work programs attempted to enable the applicant to increase his hours on a gradual basis, but although he did so he found that his pain and anxiety levels increased (see e.g. T47, T51). The case was deferred for the second half of 2006 because the applicant was on long service leave (T60). The provider resumed the program in February 2007 (T63), and there were several further revisions and replacements (TT64, T67, T68, T73, T74) but by this time the applicant had been declared excess to the hospital’s requirements (T61, T62). The program was closed in late 2007 (T75, T76, T77) on the basis that the applicant was medically unfit to return to work for the foreseeable future.
In 2013 a different rehabilitation provider carried out new initial needs assessment (T100). In a response dated 5 March 2014 the applicant took issue with that report (T107). A rehabilitation consultant was engaged (T110, T113) and a rehabilitation program under section 37 of the SRC Act was signed on 1 October 2014 (T119). It was amended on 30 January 2015 (T129) and again on 30 April 2015 (T132). The program was closed in the middle of 2015 in the light of Comcare’s decisions with regard to liability (T134, T140). The program did not succeed in getting the applicant back into the workforce, but it did allow him to complete successfully a first unit in property management at Deakin University.
Subsequent medical evidence
From 2008 Comcare began obtaining medicolegal reports from a variety of practitioners. Three of these reports were provided by a consultant orthopaedic surgeon, Mr William Coyle (T82, dated 19 September 2008; T87, dated 3 August 2011; and T93, a supplementary report, dated 3 January 2012). In the first of these reports Mr Coyle stated that the applicant had suffered no injury at work but rather had developed a symptomatic spinal degenerative disease from 2001. His condition was “symptomatically aggravated while he was at work”. Mr Coyle said that, on the balance of probabilities, the condition was related to the natural progression of an underlying condition, and not related to work. His employment did not continue to contribute to his condition at the time of examination, as he had no history of injury to his neck, nor were his duties such as to cause such an injury. His initial condition had not been superseded by another condition such as a chronic pain syndrome. In his second report Dr Coyle reiterated most of his findings in the earlier report. At this stage the applicant had been away from work for four and a half years, and Mr Coyle commented that he did not think he was motivated to return to work or a more normal life.
The applicant took issue with Mr Coyle’s two reports, and wrote to Comcare on 6 December 2011 (T91). He attached a detailed response to a number of Mr Coyle’s findings and opinions, including those going to the cause of his condition, whether or not surgery had been successful, and his motivation to work. In the course of these comments the applicant said that his condition had worsened between the examinations in 2008 and 2011, to the point that his pain levels were almost back to those immediately preceding surgery. In his third report Mr Coyle stated that the applicant’s comments did not prompt him to alter his earlier opinion.
Comcare asked for a report by a consultant psychiatrist, Dr Zoltan Zsadanyi, whose report (T83), dated 2 October 2008, diagnosed the applicant as suffering from “major depressive disorder, recurrent, severe, in partial remission”. Dr Zsadanyi saw the episodes of severe depression suffered by the applicant as arising from his physical pain and the failure of surgery to relieve it, although he also appeared to see other events, such as the applicant’s loss of his job at Calvary Hospital, as making a contribution. He believed that the applicant was unable to work at that time, from a combination of pain and depression, and that the applicant should undertake further psychotherapy and go on antidepressant medication.
In 2010 the applicant’s general practitioner since 2005, Dr Stuart Haynes, left the practice and his place was taken by Dr R Hendry (T85). Dr Hendry wrote some brief letters to Comcare, noting that he applicant was a new patient for him and that he was limited in what he could say about his condition and its origin. He did, however, volunteer the view that the applicant’s psychological issues arose from losing his job at Calvary Hospital (T86, dated 8 June 2011), but in a later letter (T89, dated 19 September 2011) stated that it was difficult to disentangle the psychological impact of pain and surgery on the one hand and from his being forced to take leave by his employer, on the other.
In 2012 Dr Mohan Mirpuri became the applicant’s general practitioner. On 6 March 2013 he wrote to Comcare (T98) describing the applicant’s injury as “work-related” (apparently basing that conclusion entirely on the applicant’s account) and noted that the applicant’s depression was the result of his injury and ”the consequences at work following this”. Dr Mirpuri said he had ordered a bone scan to check for any facet joint degeneration. The report of that scan (T99) found a normal cervical spine apart from increased uptake at C5, C6, C7 associated with the disc replacements and “mild discovertebral disease”. There were no signs of facet joint arthropathy.
Comcare sent the applicant to Dr Marcus Navin, a consultant occupational physician for an assessment of his chances of being able to return to work. Dr Navin’s report (T106), dated 27 December 2013, notes that the applicant at this time had not worked for several years; that he was now fearful of returning to the workplace; that he had lost interest in IT as a career and could not contemplate resuming such work because of the amount of sitting involved. Dr Navin noted that the medication the applicant was taking was minimal and that he was choosing to use alternative therapies and medications. Dr Navin said that in his view the applicant’s condition had resolved by the time of the consultation; that remaining symptoms arose from musculoskeletal deconditioning; and that he had no functional impairment or difficulty. Of the treatment he was currently receiving, Dr Navin identified massage as a treatment that in his view served no purpose.
The applicant took strong issue with Dr Navin’s report, sending Comcare a long response dated 29 January 2014 (T108 – 18 pages in length compared to nine pages in Dr Navin’s report). The applicant was upset in particular by what he saw as Dr Navin’s pre-determined attitudes and dismissive response to things said to him. He provided detailed additional information in response to almost every paragraph of Dr Navin’s report. Dr Navin’s report was evidently also provided to Dr Mirpuri, who sent a letter to Comcare on 19 May 2014 (T112) disagreeing with Dr Navin’s opinion that the applicant’s pain following surgery had settled, and suggesting instead that the applicant had developed a chronic pain disorder. He noted too that Ms Brazenor had contemplated further surgery and had noted the mobility of the C5/6 disc, commenting that these opinions suggested that Mr Brazenor agreed that the condition had not resolved. Dr Mirpuri supported the provision of massage on an ongoing basis and the provision of further psychological treatment.
Dr Mirpuri referred the applicant to Mr Brazenor for a further review. In his brief report (T116) dated 15 September 2014 Mr Brazenor confesses some perplexity regarding the applicant’s continued symptoms, although he suggested that facet joint arthropathy in the cervical spine, revealed on scans taken at the time, was the source of the pain. He ordered more detailed scans in the hope of identifying facet joints that were more likely to be causing symptoms and could therefore be candidates for treatment.
Dr Mirpuri also sent the applicant to a second neurosurgeon, Dr Caroline Tan, for a second opinion. Dr Tan wrote back to Dr Mirpuri on 16 September 2014 (T117), noting the applicant’s history and suggesting that the growth of osteophytes at C5/6 had now reached the point that there was some narrowing of the spinal canal and moderate to severe encroachment on the right C6 neural foramen. There was also evidence of generalised facet arthropathy. Dr Tan suggested that the treatment regimen followed by the applicant on Mr Brazenor’s advice, which appeared to offer no relief, might be varied. The applicant should consult a physiotherapist and a pain management clinic.
Comcare sent the applicant to an orthopaedic surgeon, Dr Anthony Smith, who provided a report dated 30 September 2014 (T118). Dr Smith decided that the applicant had always suffered from a degenerative spine, a condition that is common to everyone because of the ageing process, but occurs more severely in some people. In his view, the disc replacements in 2005 were a mistake, as they did not address the underlying arthritis in the neck that was the source of the pain. He may have aggravated his arthritis in 2003, and that aggravation could have occurred at work or at home, or in any recreational activity. Symptoms from such aggravations are temporary and will settle over some period of time. There was no connection with employment. Dr Smith noted callouses on the applicant’s hands (especially the right) and concluded that he was engaged in manual activity, and was “manufacturing” restricted movement in his neck and weakness in his right arm.
Dr Smith was asked to make an assessment of permanent impairment. His opinion was that there was an impairment, which arose from the surgical intervention by Mr Brazenor, which had had a similar effect to a spinal fusion. He assessed the applicant as having a 28% whole person impairment. Dr Mirpuri wrote to Comcare commenting on Dr Smith’s report (T131, dated 16 March 2015). He was not persuaded by the data that Dr Smith quoted regarding degenerative cervical disease, and proposed that the asymptomatic nature of so many people who have degenerative disease suggests that another cause may be at work in the applicant’s case. Dr Mirpuri noted the applicant’s psychological issues, suggested a diagnosis of adjustment disorder with depressive and anxiety symptoms, and noted that the applicant was being treated by a psychologist under a mental health care plan.
Medical evidence obtained for the proceedings
Both applicant and respondent, in the usual fashion, obtained specialist reports in the course of preparing for the tribunal proceedings. In two cases – Dr Zsadanyi and Dr Ross Gurgo, a neurosurgeon, the specialists were unable to appear at the hearing, but their reports remain available to assist me in making a decision. Further comment was also sought by the applicant from Mr Brazenor.
Dr Zsadanyi provided a further report dated 8 June 2016, based on a re-examination of the applicant conducted on 10 May 2016 (Exhibit R2). Dr Zsadanyi notes that the applicant himself attributed his depression to both his employment environment and his chronic pain. He stated that the applicant had suffered recurrent (at least three) depressive episodes and formally diagnosed major depressive disorder, with recurrent episodes. He saw the source as multifactorial, with causation by the pain, the redundancy and the consequences of the redundancy. He denied somatic symptom disorder as a diagnosis (the equivalent of the diagnosis by Ms Coghlan and Mr Parsons, but updated in accordance with the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM5), issued by the American Psychiatric Association). Dr Zsadanyi noted that when the applicant realised that surgery had not eliminated his pain, that realisation would have contributed to his depression. He noted the interplay between physical pain and depression. He concluded that “there is a significant contribution to his depressive disorder from the effects of his cervical spine injury and how the latter experience has continued to affect his mental state”. Dr Zsadanyi concluded that at the time of the examination the applicant did not present with any symptoms of a major depressive disorder, although it was not clear when he ceased to suffer those symptoms.
Dr Gurgo provided a report dated 18 July 2016 (Exhibit R6) and a supplementary report dated 29 November 2016 (Exhibit R7). In the first report Dr Gurgo attributed the applicant’s condition to have resulted from ”an exacerbation of pre-existing but clinically asymptomatic cervical spondylosis and an exacerbation of multilevel invertebral foraminal stenosis”. Dr Gurgo thought that the effects of that exacerbation would cease by mid-2018. Symptomatology beyond that date would be due to non-specific degenerative changes in the cervical spine. He assigned a whole-person impairment of 28%.The respondent asked Dr Gurgo for clarification of a number of matters, especially in light of Dr Tan’s later report. In the report prepared in response, Dr Gurgo was cautious with regard to whether or not employment exacerbated pre-existing cervical spondylosis, noting the complexities of situations like that of the applicant, but agreed that there had been no acute injury to the cervical spine. He repeated his view that the surgery in 2003 was attributable to employment, and amended his earlier report to state that employment-related factors did not continue to contribute to any condition of the cervical spine.
The applicant’s representatives wrote to Mr Brazenor on 10 August 2018 asking if he retained an opinion on the cause of the applicant’s neck pain in light of the bone scan of 2013 (Exhibit A13 is that letter and the responses). Mr Brazenor wrote two letters in reply: that of 17 August 2017 stated that the bone scan, which he had not previously seen, did not help him discover the source of the pain; there was no evidence suggesting that it was the consequence of surgery, arthritis or a psychiatric condition; a follow-up letter suggests that the applicant had, over time, developed a psychological rather than physical inability to work.
The evidence of the expert witnesses
Dr Caroline Tan
Dr Tan provided two further written reports, the first dated 5 November 2016 (Exhibit A10), and the second dated 15 May 2017, with a further paragraph supplied in a letter dated 18 May 2017 (together Exhibit A11). Dr Tan took a lengthy history, reviewed the medical records (including several not in evidence before me) and conducted an examination. Her very detailed and considered report considered five possible diagnoses of the applicant’s current condition (facet joint arthropathy; C6 radiculopathy; myofascitis; muscle contracture and secondary neck stiffness secondary to conditioning; and neuropathic pain). In terms of the original condition, Dr Tan thought that the applicant’s pre-existing condition was made symptomatic by “sustained poor posture at his desk, possibly contributed to by poor ergonomics, with failure to take breaks to relieve muscle tension”. She also noted that his condition was probably “compounded by poor coping response to stress”. There was no change to the underlying pathology involved. She said that his current symptoms are:
… a combination of the pre-existent degenerative cervical disease, which is naturally continuing because it has not been definitively corrected by surgery, and other unfortunate superimposed factors such as his chronic neck stiffness (owing to prolonged fear of moving his neck) and depression (from his loss of work capacity and social consequences of same).
Dr Tan noted that despite all the comments about the applicant’s psychological fragility, he had an objective ground for his pain, which was in turn an adequate explanation for his psychological distress.
In her supplementary report Dr Tan was asked to comment on a number of specific questions. The first was whether the applicant’s neck condition had been symptomatic before the events of late 2002 and early 2003. On the basis of Dr Ho’s record, Dr Tan thought that symptoms had been apparent in the year 2000, and that was consistent with the imaging done at that time. The remaining questions related to the applicant’s incapacity and impairments: whether in the absence of aggravation in his work the applicant would have suffered incapacity and impairment, or suffered them later, or suffered them to a lesser degree. Dr Tan said that in fact the reported incapacity and impairment was out of proportion with the pathoanatomy of the applicant’s spine. There was no spinal cord injury, and the symptoms were greater that the remaining pinched C6 nerve would explain.
The applicant’s pain appeared to be in part driven by his experiences in employment and the adversarial process leading up to the present proceedings: “… if he had not believed that his work had caused a serious neck condition, he would probably not have ended up functionally incapacitated or impaired”. Dr Tan further said that the timing of when the applicant might have experienced symptoms in the absence of employment was uncertain, but that without employment she suspected his incapacity or impairment would be less. His employment was still aggravating his condition at the time he had surgery by Mr Brazenor. In her additional paragraph provided three days later Dr Tan said that in her view the surgery undertaken by Mr Brazenor “has probably contributed significantly to a perpetuation of his symptoms”.
In oral evidence Dr Tan reiterated a number of the opinions voiced in her written reports; and repeated her view that while the symptoms of spinal degeneration are episodic, the process is continuous and a function of age. In some patients, movements will trigger or highlight symptoms, but that is not inevitable; it depends on the patient, the kind of movement, and other variables. Dr Tan’s attention was taken to materials sent to her on 9 April 2019 (Exhibit A12), including a pain chart for the applicant dated 27 October 2016 and a letter from Dr Mirpuri to the applicant’s solicitors dated 28 August 2018; the covering email set out the kind of intensive program that the applicant was undertaking at Calvary Hospital at about the time of onset of his neck and arm pain.
Dr Tan agreed that her information was very incomplete (e.g. she had no knowledge of the ergonomics of the applicant’s work area), but she agreed that in the absence of regular breaks, especially, the work program described could aggravate his underlying condition. Dr Tan declined to comment on whether keyboard work continued to contribute to the applicant’s current condition, noting that he was no longer in a role that required keyboard work. Dr Tan confirmed that spinal degeneration was a broad process affecting discs and facet joints and included the accretion of osteophytes; that it could go on for a long time before becoming symptomatic; and that there had been significant degeneration before the year 2000, when X-ray imaging already showed significant neural impingement.
Dr Anne-Marie Rees
Dr Rees provided a report dated 19 June 2017 (Exhibit A15). Dr Rees diagnosed the applicant with a chronic adjustment disorder with anxious and depressed mood, noting that at an earlier stage the diagnosis of major depressive disorder, as found by Dr Zsadanyi, would have been appropriate. Dr Rees noted that there appeared to be elements of the kind of central sensitisation of pain that pain specialists deal with. Accordingly, she also diagnosed a pain disorder, referring to the diagnoses along those lines by Ms Coghlan and Mr Parsons, and noting that under DSM5 this is now known as somatic symptom disorder. The applicant did not have a personality disorder.
Dr Rees stated that on the balance of probabilities, both conditions (the adjustment disorder and the pain disorder) arose from employment at Calvary Hospital. She thought that it was likely that physical pain, factors such as central sensitisation and psychological factors probably all contributed to the applicant’s perceptions of pain. The applicant would not be able to return to work in IT and certainly not to Calvary Hospital, but he may, in time, be able to undertake other forms of work. For his psychological impairment, Dr Rees assigned a rating of 10% whole person impairment, to continue indefinitely.
In oral evidence Dr Rees explained that she could arrive at a diagnosis of a pain disorder as a psychiatrist regardless of what an appropriate specialist might say about the physical dimension of the problem. When the apparent improvement in the applicant’s mental state in the recent past associated with his completion of his studies was described, Dr Rees said she could not offer an opinion without an assessment, but that he sounded improved. She had predicted that that was possible under certain conditions. She noted the recent DASS 21 assessment by Dr Mirpuri (included in the bundle at Exhibit A12), which found significant depressive symptoms; Dr Rees said that if she had made a similar assessment with that result she would have regarded it as significant and followed up with a detailed assessment.
The evidence of Mr John Wigan
The applicant tendered two witness statements by Mr Wigan, dated 14 August 2018 and 3 October 2018 (Exhibits A8 and A9 respectively). These statements note Mr Wigan’s role as Chief Operating Officer for Calvary Hospital from May to December 2004, and that in that role one of his direct reports was the Chief Information Officer, namely the applicant. He noted the applicant’s commitment to his work; his innovative approach to it; his willingness to be on call at any time, and the frequency with which he was in fact called on in that capacity; that the facilities available to IT staff during the period were “very rudimentary” and that the hospital did not have a good occupational health and safety regime to oversee the provision of facilities; and that the applicant’s work involved very frequent use of a keyboard, whether in the workplace or at home, although it also involved other kinds of work, such as meetings. Mr Wigan noted that when he had returned to Canberra and had met the applicant for lunch, he found the applicant to lack the energy and enthusiasm he normally associated with him.
In oral evidence Mr Wigan recalled the way in which the applicant had attempted to cope with his injuries. He had not noticed at the time that the applicant had been at the keyboard a great deal, but then he had not been present in the applicant’s office most of the time. He had noticed the applicant being careful about sitting and standing, including for how long he spent sitting at a time. He repeated the evidence in his statements about the applicant’s commitment to work and willingness to put in the necessary hours and to be on call at any time.
The evidence of the applicant’s wife
The applicant’s wife is a naturopath who works in the complementary medicines part of the national regulator for such products. She provided a witness statement (Exhibit A14), which describes lower back pain in the late 1990s, which settled; the onset of symptoms, at first in the right arm and then in the neck and shoulder, after beginning work at Calvary Hospital; and the worsening of that condition over time, with effects on the family, his mood and ability to socialise as the pain became worse. Following surgery some symptoms resolved but others persisted. The Prothiaden that was prescribed for him had significant side effects, and the applicant eventually replaced it with herbal medicine, meditation and acupuncture. Over the later period since leaving employment the loss of employment income, the loss of Comcare benefits and the debts from unpaid medical expenses have had a significant financial and emotional impact; that has now started to improve with the applicant’s application to study in a new field, although he remains affected by low mood and anxiety from time to time.
In oral evidence the applicant’s wife suggested that in giving his history to Mr Brazenor the applicant had been stressed, flustered and finding it hard to focus. Mr Brazenor had been too quick in his speech. She suggested that as a result, some of his notes were inaccurate, for example his reference to neck pain in 1986 is an error. She had tried to correct Mr Brazenor from time to time, but although he acknowledged what she said he had not appeared to record it. She thought that her husband’s visit to Dr Ho in 2000 had been for lower back pain. She noted that her husband continued to treat himself with over the counter medications (Nurofen, Panadol) and with herbal remedies that she provided. She could tell he was in pain by such aspects of his appearance as his posture, movement and face, or by his use of liniments and the like; he did not verbalise his pain.
THE ARGUMENTS OF THE PARTIES
The applicant’s case is that he had a degenerative condition of the spine that was made symptomatic by the extreme demands of his workplace at Calvary Hospital, with symptoms appearing in late 2002 and becoming sufficiently acute by March 2003 that he consulted Dr Ho, and worse thereafter to the point that he lodged a claim for compensation. The stress of his work, and physical manifestations of that stress, such as muscle tension, contributed to his pain levels. The course of the condition from that time is one without interruptions or any break in the chain of causation. The events that follow – surgery, rehabilitation programs with reduced hours, leave, cessation of employment, and the Comcare decisions under review in this matter – none of these break the chain of causation from 2002-03 to the present. The chronic pain that the applicant grappled with then brought about a set of psychiatric symptoms constituting a mental ailment that also has a continuity from its initial recognition to the present, again without interruptions. The applicant has never been able to return to his pre-injury levels of capacity, on either a physical or a psychological basis. He remains entitled to compensation; the respondent is also liable for his secondary psychiatric condition.
The respondent’s case is that on the evidence that is now available it is clear that the basis for the decisions under review taken by Comcare must be revisited; those decisions were based on the evidence available at that time, but cannot be sustained given the evidence now available. Applying that evidence leads to the same outcome as in the decisions under review, but on a different basis. The available evidence does not support that employment made the required contribution either to the symptoms of the physical ailment, or to its underlying pathology. The critical issue is whether prior to employment with Calvary Hospital the applicant suffered the claimed ailment at a level that was already symptomatic. The indications that he did are the radiological evidence from 2000; Dr Ho’s notes from the consultation on 19 July 2000, which record a history of neck pain from two years previously, suggesting a longstanding problem; and Dr Brazenor’s notes from the first consultation, again suggesting that there was a history of spinal symptoms extending back to well before employment at the hospital. The X-ray is significant because it points to the likelihood of symptoms in exactly that part of the body where they later appeared. Further, Dr Tan gave evidence that the applicant’s work could not affect the condition, which would be worse in a work environment but was not caused by it. The condition had not been converted from asymptomatic to symptomatic by work because it was already symptomatic before the work began. Dr Tan thought that the 2000 X-ray showed a condition that she would expect to become symptomatic in time.
In the alternative, the respondent suggested that the psychiatric condition would not meet the relevant test to be compensable: it was not the case that but for the pain the condition would have been outside the bounds of normal functioning.
CONSIDERATION
This matter comes forward on a similar basis to that in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87. The respondent’s decisions and argument are based on the thesis that the original condition sustained by the applicant was not a workplace injury; it would then follow that if the respondent’s decision in matter 6810 is affirmed, the respondent’s liability under section 14 of the SRC Act would remain undisturbed, but the applicant would have no present entitlement to compensation under sections 16 and 19 of the SRC Act for medical expenses and incapacity.
There was some discussion in the hearing relating to what form of onus lay upon which party. It is accepted that there is no formal onus in tribunal matters, the role of the tribunal in merits review being rather different to the role of a court in an adversarial system, but such concepts as a “practical onus” or “evidential onus” are urged from time to time. Mr Snell for the respondent pointed to Beezley v Repatriation Commission [2015] FCAFC 165, where the full Federal Court noted the absence of a formal onus in tribunal proceedings and interpreted the statement that an applicant “must satisfy” a particular provision not as a comment on onus in a hearing but merely a description of the test that the relevant statute imposed. But I am also conscious of the remarks by Jenkison J in Commonwealth v Borg [1991] FCA 710 that a decision that liability has ceased requires a decision-maker to be satisfied that at least one entitling circumstance no longer applies.
A great deal of evidence was advanced in the course of the hearing that appears to me to have at best a peripheral bearing on the matter. Mr Ryan went to some trouble to establish a picture of the applicant’s employment: that he was a man committed to his work at the hospital, into which he threw all his energy; that when he became injured it was a severe blow to him, not only because of his pain, but also because he could no longer fulfil the expectations of his position at the hospital; and that when the hospital became impatient with his inability to fulfil an essential role it managed him out of his position; the hospital then managed him out of his employment, in a similarly callous, indeed almost brutal way; and that this had a devastating effect on the applicant. But the detail of the applicant’s employment, including how he came to leave employment, can only be relevant for my purposes so far as it can be shown to have an impact on his accepted physical condition; its direct psychological impact, which might be considerable, is ruled out for the jurisdictional reasons discussed above. The heart of the matter, indeed, is the medical evidence and what that evidence reveals about causation.
Some things, however, do seem to be clear: the applicant suffered from a spinal condition from before his employment at Calvary Hospital; significant symptoms appeared during the course of the years that the applicant worked at the hospital; the surgery that the applicant had in 2005 corrected some of those symptoms but left others unresolved and/or left the applicant with new symptoms from the surgery itself; the applicant’s symptoms persisted after he left employment and are still apparent; the applicant also suffered a psychiatric condition arising during his years at the hospital; that condition also persists, although its severity may have lessened.
The matter might now follow a number of paths. If I find that the applicant’s physical condition does not have the requisite nexus with employment, then he is not entitled to compensation because his condition was not caused by his work. All the other matters then fall away and I would affirm all four decisions under review. But if I do find the requisite nexus to obtain, then further questions remain to be answered. If the surgery in 2005 left the applicant with an injury, then that injury might itself be compensable, under subsection 4(3) of the SRC Act. If the applicant’s condition had resolved by 1 July 2015 (the date of the determination), or if the condition no longer displayed the necessary nexus with employment at that date, then there would be no entitlement to compensation for the condition after that date, but there might be an entitlement to compensation for the psychiatric condition. It is also possible that the original accepted condition has been replaced by a new condition, secondary to that original condition, and then the same questions of causation and persistence might need to be answered, those questions would also need to be answered for the psychiatric condition.
What is the diagnosis of the applicant’s physical condition?
It is very common that a claimant succeeds in establishing an entitlement to compensation, but at a later time new medical evidence suggests that the original diagnosis of the injured employee’s condition was mistaken. With that new medical perspective comes the likelihood that if the diagnosis was mistaken then the causation of the condition needs to be revisited. This is not a case of that kind. From the beginning the applicant’s condition, for which Comcare initially accepted liability, was characterised as “aggravation of intervertebral disc disorder – cervical region (right)” and the claim form and other documentation from the time identify the C6 vertebra as the source, or likely source, of the condition. The intervertebral spaces at C5/6 and C6/7 were the site of the surgical intervention by Mr Brazenor; that area has been identified on successive scans as the part of the spine of most concern; Dr Tan most recently pointed to a renewed post-surgical impingement that had developed at C6; and Mr Coyle and Dr Young identified degeneration of the cervical spine as the source of the applicant’s problems.
It is common ground between the parties that the spinal condition was not originally caused by employment. It was accepted by Comcare as an aggravation, and it is now the respondent’s position that that acceptance was in error and no aggravation occurred. But the applicant is not arguing that the condition originated after he started employment at Calvary Hospital. There is disagreement between the parties about whether the condition became symptomatic before he took up employment at the hospital, but not that there was already evidence of a spinal condition before that time.
It has been postulated by several doctors and allied health professionals that the applicant, after the 2005 surgery, developed a different condition, namely a chronic pain syndrome or similar condition. This has been put forward by Dr Mirpuri, and a similar position seems to have been arrived at by Ms Coghlan, Mr Parsons and Dr Rees. In the cases of the last three, the psychiatric diagnosis is accompanied by recognition that a medical diagnosis (i.e. a physical diagnosis) is required to complement the psychiatric diagnosis. But no referral has occurred to the kind of doctor that specialises in the diagnosis and treatment of such conditions at the physical level, such as a rheumatologist or a pain specialist.
That said, the original diagnosis cannot be the entire story. The persistence of the applicant’s pain over many years has presented doctors with a challenge, and a number have struggled to find an answer. Dr Navin saw the applicant’s problem as muscular deconditioning; Mr Brazenor identified unresolved issues from surgery for a period, but once there was effectively fusion at C5/6 and C6/7 confessed himself puzzled; Mr Coyle and Dr Young suspected that the applicant was exaggerating or manufacturing the pain; Dr Tan made the most detailed assessment, declining to make a definite diagnosis, but identifying five possible options: cervical facetogenic pain; C6 radiculopathy; myofascitis; muscle contracture and neck stiffness secondary to conditioning; and neuropathic pain. The first of Dr Tan’s possible conditions represents a refinement of the cervical spine degeneration identified by several doctors. The second is effectively a proposal that the applicant’s continuing condition is associated with the 2005 surgery. The third and fifth are new possible diagnoses. The fourth posits a different cause, relying especially on the advice from Mr Brazenor regarding how the applicant was to avoid further injury.
The determination of a clear diagnosis is not a necessity to establish liability or its absence under the SRC Act (see Abrahams v Comcare (2006) 93 ALD 147; Szabo v Comcare (2012) 58 AAR 52; McNamara v Comcare [2018] AATA 3688), but it certainly assists in determining causation. Each of Dr Tan’s possible diagnoses needs to be examined from the perspective of causation, noting that the period each possible diagnosis might have contributed to the applicant’s condition differs from one to another.
Were the physical and psychiatric conditions ailments?
The SRC Act divides compensable injuries into “diseases” and “injuries other than diseases” (the latter sometimes referred to as “frank injuries” or “injuries simpliciter”); the terms “disease” and “injury” for the most part are used in contexts that imply that the relevant nexus with employment has been established. The word “ailment” is used for a disease where that nexus is yet to be established.
There is extensive case law dealing with the sometimes difficult distinction between an ailment and a frank injury (i.e. an injury other than a disease). Relevant cases include Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 (May); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning); Bailey v Broadsword Marine Contractors [2017] FCAFC 219; and Prain v Comcare [2017] FCAFC 143. Generally, a condition that is an injury (other than a disease) will involve “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning, at 300 (Gleeson CJ and Kirby J)). In May, Gageler J referred to an “injury in the ordinary sense” in the following terms: “An injury … is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable’” (at [75]; citations omitted). The plurality in May (French CJ, Kiefel, Nettle and Gordon JJ) understood the drafting of the SRC Act to imply that the first inquiry of the decision-maker is whether the employee suffered a disease; if the answer to that question is in the affirmative, no inquiry regarding an injury other than a disease is required (at [44]). Gageler J dissented from that construction, taking the view that the questions posed by the subsection did not need to be asked in statutory order (at [73]).
It is common ground in the present matter that the applicant’s physical condition, if it meets the relevant tests, is an aggravation of an ailment under the SRC Act and that his psychiatric condition is also an ailment. An aggravation of an ailment is compensable in the same way as an ailment, so for present purposes I will refer to both as “ailments”. They fit the definition of ailment as a physical disorder, defect or morbid condition. If they meet the causation tests, they will be diseases (and therefore injuries) under the SRC Act.
Was the physical condition or its aggravation contributed to, in a material degree, by the applicant’s employment?
Assuming the condition to have arisen before April 2007 (and that is not at issue), the test of causation is that the applicant’s employment contributed “in a material degree” to the aggravation of an ailment. It is accepted that the 2007 amendments to the SRC Act tightened the test, by replacing the test of a “material” contribution with a test of a “significant” contribution, where “significant” means “substantially more than material”. But it is the earlier “material” test that applies in respect of the physical condition.
Was the applicant’s physical condition an aggravation?
In the first place, I do not accept the applicant’s contention that his cervical spine condition was asymptomatic until he began work at the hospital. The evidence to the contrary, as summarised by Mr Snell, is just too strong – the notes made by Dr Ho and Mr Brazenor and the imaging from 2000. The explanation offered by the applicant – that his pain as reported to Dr Ho was under his scapula and not near his shoulder or neck - although I am sure he is sincere in offering it, is of the kind that an applicant persuades himself of. At a remove of twenty years, I do not find it compelling. Nor am I persuaded by the limited support given by his wife, whose evidence, on such matters, I would need to treat with caution in any case. But, despite Mr Snell’s contention, that is not fatal to the applicant’s case. It is not necessary for a condition to be converted from asymptomatic to symptomatic by employment for liability to arise. Doctors draw a clear distinction between symptoms and the medical condition underlying them, so that in the present case, for example, they might distinguish between the applicant’s symptoms and the degeneration of the cervical spine that gives rise to those symptoms. The doctors are agreed that the applicant’s work did not make his spine any worse. But the law does not draw the distinction in the same way.
It is well established in the case law that in workers’ compensation the pain that the employee suffers is not distinct from the injury, but part of it. In Commonwealth v Beattie (1981) 35 ALR 369 (Beattie) the Full Federal Court (Evatt, Sheppard and Kelly JJ), relying on Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 (Semlitch), concluded that:
…each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
The general conclusion that flows from that point – that pain resulting from or increased by work without worsening an underlying condition can be an aggravation under the legislation - is now very well established as a matter of law: see for example Commonwealth Banking Corporation v Percival (1988) 20 FCR 176, where the court (Davies, Sheppard and Ryan JJ) noted (at 180) that:
It is indeed fundamental to compensation law that a symptom of an injury or a disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease.
Other cases leading to similar conclusions include Tippett and Australian Postal Corporation [1998] FCA 335; Mellor and Australian Postal Corporation [2010] AATA 502; Rutledge and Comcare [2011] AATA 865; Fletcher and Comcare [2015] AATA 430; and Comcare v Reardon [2015] FCA 1166.
The Full Court in Beattie added an important rider to the notion of an aggravation:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his [or her] injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.
Mr Snell sought to distinguish the present matter from Beattie on the basis that the applicant’s pain did not even represent an exacerbation, but rather a worsening of symptoms in a work environment, but with no real contribution by the work. The Full Court decided in Beattie that pain brought on by activity in employment may constitute an aggravation of an injury, and whether in any particular case it does so is a question of fact for the tribunal to determine. The Court’s discussion makes it clear that the same conclusion would apply in the context of a disease (Semlitch, on which the Court relied, was a disease case).
In Australian Postal Corporation v Bessey [2001] FCA 266 (Bessey) Gyles J drew a distinction between a temporary aggravation to an underlying condition, which settled after the duties leading to the temporary aggravation had stopped, and a continuing injury. The case involved spondylosis of the back in a postal worker using a motorcycle to deliver mail.
Mr Ryan for the applicant urged on me that I should take note of and apply the High Court’s findings in Asioty v Canberra Abattoir Pty Ltd [1989] HCA 36; (1989) 167 CLR 533 (Asioty). But although that case may be authority for the proposition that an increase in symptoms may constitute an aggravation of a pre-existing condition even if that increase is itself temporary and abates once the injured employee leaves employment, the particular feature that distinguishes the case is that the underlying condition in the matter (a form of dermatitis) became more refractory to treatment with each exacerbation in the workplace. I would distinguish the present matter from Asioty because in the present matter the underlying condition and its progress was, according to the medical evidence, unaffected by employment.
In the present instance, despite the applicant’s spine condition having been symptomatic from before taking up employment with the hospital, there was a major worsening of the symptoms in late 2002 and 2003; indeed previous symptoms of the applicant’s spine problem appear to have settled before he began work at Calvary Hospital, so that when he began his employment there he was free of any immediate symptoms. It does not seem, therefore, that the rider in Beattie applies here: on the evidence, this was not a person whose pre-existing condition was bound to manifest itself. Nor is Bessey a good parallel, in that here the applicant’s symptoms did not disappear once he had stopped undertaking the duties that are suggested to have had a causal link with them.
The applicant’s symptoms a couple of years after starting work at the hospital seem to me to have the necessary increased severity and persistence, and their appearance to be sufficiently disjunctive with the previous course of events, to be counted an aggravation of the underlying cervical spine condition.
Was that aggravation materially contributed to by employment?
A more difficult question is whether it was the applicant’s employment at the hospital that caused the aggravation to arise, or contributed, to the requisite degree, to its arising. Given the simultaneity of the appearance of symptoms and employment, two possible pathways present themselves: first, the degeneration of the applicant’s spine may have coincided with that particular period, leading him to associate his pain with employment even if in fact there was no connection, or an insufficient connection, between the two; or, alternatively, the activities in his employment may have made his condition symptomatic or contributed materially to that process. This is a question of fact to be resolved by the evidence.
The evidence on this point is at best equivocal. Several doctors have asserted in very emphatic terms that the kind of duties the applicant undertook are unlikely to have caused symptoms of the severity he reported. I note that, by contrast, contemporaneously a number of doctors readily accepted the causal connection: Dr Howse (T8); Dr Eaton (T13); Mr Brazenor (Exhibit R4); although it could be argued that these are simply records of what the applicant told the doctors on seeing them (Mr Brazenor explicitly accepted the causal connection in his report at T79). It was a number of years later, and after surgical intervention and an unsatisfactory recovery from it, that the applicant attended specialists who brought a more considered and careful eye to causation questions. Thus Mr Coyle (T82) concluded that the applicant’s condition was the result of naturally progressing spinal degeneration in which employment played no causal part. Dr Navin (T106) was unable to identify any functional impairment and thought that the applicant’s problem was muscular deconditioning. Dr Smith (T118) diagnosed cervical degenerative disease and said that the applicant’s condition would have been exactly the same whether he worked or not. He noted that the typical age of onset of symptoms in people with a symptomatic version of the condition is around age 40 – the age at which the applicant’s condition became acutely symptomatic. Dr Gurgo, on the other hand, accepted that causation was from employment (Exhibits R6 and R7), although he believed that that causation would no longer apply by mid-2018 (Exhibit R6) or no longer applied at the time of his report (Exhibit R7). Dr Tan took a nuanced and equivocal position on causation.
There is a particular element in the applicant’s make-up that needs to be taken into account. From the beginning it appears that a psychological overlay was in some way caught up in his condition. There are very frequent references to the possible contribution of stress, muscular tension and personality. The thesis is that the position was inherently a very demanding one; that the applicant’s personality led to his committing to his work at the hospital with more than usual energy; the demands of the work, and the loss of autonomy involved, in turn created a psychological stress which he responded to in a way that imposed additional physical stresses on his body by way of muscle tension; and that these demands and tensions interacted to worsen his physical symptoms.
To some degree this account is dependent on the applicant’s self-report, but he consistently referred to this element from the earliest point, and others also recognised it. Thus it is mentioned at length in the claim form and associated documents (T8) and in the supervisor’s statement made at the same time (T7, dated 8 August 2003), where Ms Janet Fuller, Human Resources Manager at the hospital noted the causal contributions to be “Nature of work. Pressure of work to achieve deadlines & outcomes”. It is explicitly recognised in the report by Dr Eaton (T13) and in an early post-operative report by Mr Brazenor (“a deeply neurotic man”) (T27). It is certainly recognised in the reports by Ms Coghlan and Mr Parsons (T31, T73), although as psychologists they are not in a position to comment authoritatively on the physical results of the applicant’s personality and attitudes.
It is not clear that Mr Coyle, Dr Navin and Dr Smith have taken these qualities into account. Their reports suggest that they have been sent earlier materials, but those materials are not listed. Mr Coyle’s reports refer only to the imaging he has been sent, although he does refer to the applicant having a “reactive depression” which he attributes to his neck condition and to his loss of employment and inability to work. Dr Navin’s briefing letter is not included in the T-documents, although in his report he notes the applicant’s “underlying emotional turmoil”. Dr Smith records much of the history but makes no mention of psychological aspects. Dr Gurgo held the view that the applicant’s recovery from his condition, and from surgery, was retarded by the inadequate support he was given by the hospital, and that it was only when he was supported in further study for an alternative career that his condition really started to improve. Dr Tan notes the frequent references to the applicant’s psychological state, and comments that ”it would be a rare person who does not suffer major psychological distress in response to chronic incapacitating pain”; she also comments that “his inability to handle the stress of workload and tensions with his immediate supervisor could well have amplified his symptoms at the time”. But she clearly accepts a psychological overlay to his physical condition, noting that “he has had a major stress response to the ongoing pain, not just in terms of physical manifestations but with secondary physical manifestations such as bruxism and irritable bowel disease”.
From these comments I note that although some of the specialist reviewers have recorded the effect of the applicant’s condition on his psychological state, only Dr Gurgo and Dt Tan have made a substantive comment on his psychological make-up as a contributing factor, that is, as an input to his physical condition rather than an output from it.
A further consideration is that the applicant has been reluctant to follow the pharmacological recommendations of most of his doctors. He was unsure of the benefits of Prothiaden, despite the urging of Mr Brazenor, and did his best to wean himself off it; he resisted the usual anti-inflammatories. A number of doctors have commented on this, and it is possible that it has had an effect on the amount of pain he has suffered and on the interplay between his psychological and physical conditions. No doubt his wife’s profession as a naturopath has had an influence on his choices. But none of the treatments at issue is curative, and none had any connection to the causation issues at the heart of this matter. I cannot see that my conclusions are affected by the applicant’s choices regarding medication.
Turning then to the critical reviews, I am not persuaded by that of Dr Young. His account of the progression of the disease, diagnosed as symptomatic spinal degeneration (which I take to be similar to Dr Tan’s hypothesis of facet joint arthropathy), postulates a series of aggravations, brought on by any kind of activity, including possibly activity at work (but not because it was a work-related activity), or even by no activity. Symptoms would arise from time to time and then settle over a variable period, ranging from minutes to a few weeks at the outside. But the course of the applicant’s condition as reported by him and as recorded in the medical documentation does not align with the course of degenerative arthritis Dr Young outlines. He identifies a process which is episodic symptomatically but where there is a continuing underlying degeneration. That is not reflected either by the medical imaging or by the history of the condition, which goes to a high level of intensity in 2003, is ameliorated in some respects by surgery, but continues thereafter. Any periods of recovery or easing of pain appear to be short-lived.
I also find the report of Dr Navin less than compelling. His theory of muscular deconditioning as the source of the applicant’s problems (despite an absence of atrophy in either arm) is shared by no other doctor, and is based entirely, it appears, on tests he undertook with a Jamar dynamometer. Mr Coyle’s reports align, in large part, with those of Dr Young. His conclusion is very clearly that no connection can be made between the underlying pathology of a degenerative cervical spine and the applicant’s work, but he does accept that work could make the condition symptomatic. Dr Gurgo accepts that it was work that brought on the symptoms and it was inadequate support at work that contributed to their continuing.
Dr Young suspected the applicant of having “manufactured” his pain, and the implication of Dr Navin’s report is that he suspected something similar. I do not accept that evidence; one thing in this case I have no doubt of is that the applicant is not someone who has fabricated a case in order to access compensation. He is rather a man who threw himself into a demanding job, found himself unable to continue at the necessary level, and was devastated by that outcome. I am persuaded that when he says he is in pain he is reporting exactly what he perceives. It remains to be shown that this pain was caused by his work to the necessary extent, but I found the applicant to be a reliable historian and to have done his best to put the truth before the tribunal.
Dr Tan considered five possible conditions, and each has potentially a different causal connection with employment.
Dr Tan’s reasoning regarding facet joint arthropathy is as follows:
(a)Mr Brazenor noted at their first consultation that the applicant held his neck like a person protecting the facet joints;
(b)the applicant found that cervical traction made his neck pain worse, when it should have relieved radicular pain, but might have accentuated facet joint pain;
(c)negative findings in nuclear medicine SPECT scans do not necessarily imply that facet joint arthropathy is absent;
(d)arthritic pain of this kind might have persisted after the surgery at C5/6 and C6/7 effectively eliminated movement at those joints.
On the basis of the reasoning above, Dr Tan postulates facet joint problems for the applicant throughout the course of his condition; but as she herself admits, that is a hypothesis rather than a diagnosis, and would need to be confirmed by further tests. Further, while tests might confirm a current diagnosis, only the available medical evidence can be used to determine what the applicant might have been suffering from at the time of his claim.
With regard to her other possible diagnoses, there is no evidence relating to myositis. Dr Tan offers little explanation or analysis of how that could fit in with the history and the rest of the evidence. Once again, this is a hypothesis.
There is evidence, however, to support and even connect the other three possibilities: the continuing radicular pain contributed to by what Dr Tan regards as ill-advised and not entirely successful surgery; the stiffness in the neck from faithfully abiding by Mr Brazenor’s instructions, which Dr Tan clearly regards as misguided; and neuropathic pain, which Dr Tan sees as the possible long-term consequence of unresolved chronic nociceptive pain. On that basis the course of events would be as follows:
·the applicant’s condition becomes symptomatic in late 2002;
·conservative treatment fails to resolve it;
·somewhat later the applicant undergoes surgery, not entirely successfully;
·he has continued symptoms, arising from the sequelae of surgery and compounded by instructions regarding his carriage of the neck, how he sleeps, and avoiding physiotherapy;
·he continues to suffer pain, with the possibility that over time this nociceptive pain may evolve, or has evolved, into a neuropathic pain condition.
It is clear that there are at least two issues to be resolved here. The contribution of surgery and how the applicant held himself post-surgery are only relevant if the initial symptomatology arises from employment, as later developments necessarily hang off such a conclusion. Thus the question at this stage concerns whether the applicant’s condition when it first arose in 2003 met the required nexus with employment, that is, whether there was a material contribution to the condition from employment. A subsequent question then arises whether that contribution still subsists at a later time and at the date of the decision under review, and indeed up to the date of this decision.
Taking all of the above into account, I note that a number of the reviewing doctors have made a distinction between the applicant’s underlying pathology and his symptoms. Mr Coyle, for example, was adamant that the condition was not compensable (a legal rather than medical conclusion) but accepted in two reports (T82, T87) that the symptoms of the condition had been aggravated by work. Dr Navin did not comment on original causation (his was a rehabilitation assessment) but he appears to have accepted that there was an aggravation, which he regarded as having resolved. Dr Young saw no relation to work whatsoever. Dr Gurgo accepted that the symptoms of the condition were work-caused.
Dr Tan’s evidence is the most equivocal. In her report of 5 November 2016 (Exhibit A10) she said that his underlying condition “was unfortunately aggravated by the sedentary nature of his work and further compounded by poor coping response to stress”, and noted the contribution of both physical and psychological factors. In her later report (Exhibit A11) she did not comment specifically on this point but noted the disparity between the pathoanatomy of the applicant’s spine and the severity of his symptoms. In oral evidence Dr Tan was pressed to confirm that there was a particular impact from keyboarding, both in the past and up to the present, and she declined to make that concession; but she did accept that in certain circumstances high pressure sedentary work, undertaken for long periods and in an otherwise difficult work environment, without regular breaks, might aggravate the underlying condition; and that some kinds of movement might have exacerbated the applicant’s symptoms.
The question is plainly not clear-cut; but on the balance of probabilities I am satisfied that the applicant’s underlying spinal degeneration became symptomatic over the period from late 2002 to early 2003; and that his employment made a material contribution to the aggravation process and to the appearance of the pain symptoms he experienced, both through the physical demands of his position, from the long and demanding hours he worked, by the absence of reasonable breaks, and through the contribution of the applicant’s tightly wound personality. For the reasons explored earlier in the context of an aggravation, the case law shows that an aggravation can consist of the appearance of symptoms, including pain, even where the underlying pathology is not worsened. That is the case here. The applicant’s condition at the time of claim was a disease, and therefore an injury, under the SRC Act. It met the requirements for a compensable injury under section 14 of that Act.
Does the applicant’s employment continue to contribute to his physical condition?
The medical evidence explored above is directly relevant to this issue. Again, several possibilities arise: the original condition may continue over the years; the applicant’s pain may arise from a new condition or a different condition, for which no claim has been made or which has no causal connection with employment; the applicant’s condition may continue but the original causation has been broken or crowded out by later developments; or the original condition may have resolved. Support for some of those possibilities can indeed be found in the medical evidence.
It has been noted by a number of doctors that some aspects of the applicant’s condition in recent years appear to derive from the surgery undertaken by Mr Brazenor in 2005. That opinion is most apparent in Dr Tan’s reports but can also be found in those of Dr Gurgo. Subsection 4(3) of the SRC Act provides that where reasonable medical treatment of an accepted injury under the Act leads to a new injury, that new injury is also an injury under the Act. In this instance compensation was payable in respect of the original neck injury, and the surgery for the neck injury was obtained with Comcare’s agreement, and so was reasonably obtained. It follows that an injury resulting from the surgery for the neck injury is an injury under the SRC Act: see Portors v Comcare [2018] FCA 914 (at [31]). In that case Robertson J also noted, obiter, that the injury resulting from surgery must have been the subject of a claim under the SRC Act if it is to be considered an injury under that Act.
In this instance I am not persuaded that the complications of surgery constitute a new ailment; rather, there is a new symptom, or a collection of continuing symptoms that have survived or been caused or been exacerbated by surgery. For that reason I do not see that subsection 4(3) has any application.
Some of the doctors have also suggested that the applicant’s original condition has been replaced by a chronic pain condition, or that such a condition has arisen in parallel with the continuing original condition. That view is held by Dr Mirpuri, and appears to receive support from Ms Coghlan, Mr Parsons and Dr Rees, and possibly from Dr Tan (in postulating a role for neuropathic pain). But no chronic pain condition has been agitated in the proceedings and no specialist medical opinion lends it substantial support. I do not believe that the evidence allows me to make a finding on this point.
The leading opinions on the continuing causation of the applicant’s condition are:
·that it has always been or has been replaced by a generalised degeneration, involving especially the facet joints; or
·that through surgery, a poor recovery, misguided instructions regarding post-operative care and behaviour, and the reappearance of discogenic problems in the cervical spine, the applicant continues to suffer from the original condition and its sequelae; or
·that the condition has resolved.
The first of these is the view of Mr Coyle and Dr Young and one of the hypotheses of Dr Tan; the second is the alternative view of Dr Tan; and the third is the view of Dr Navin and it appears of Dr Gurgo, the latter prospectively (that is, he anticipated that the condition would resolve, or that it had resolved since he examined the applicant). I think the third position can be put to one side: the imaging reported by Dr Tan clearly points to a continuing problem at the C6 level (“the foramen is narrowed to moderate severe degree”; “he has some right C6 foraminal stenosis”), and Dr Tan attributes that continuing problem directly and plainly to Mr Brazenor’s surgery. That suggests that there is an ongoing condition, but it leaves open the possibility of a different condition or different causation having replaced the original condition or causation. It is also apparent that by the time of the decision under review new elements in the applicant’s degenerative condition were making or had made an appearance: imaging viewed by Dr Tan clearly showed facet joint arthropathy by September 2014. That suggests that the first of the positions enumerated above has significant evidentiary support.
My conclusion is that by the time of the decision by Comcare that the applicant had no present entitlement in respect of the physical condition, that is, by 1 July 2015, the applicant was affected by two distinct aspects of his degenerative spine: on the one hand by a degeneration largely affecting the facet joints; and second by a continuing problem arising from or aggravated by surgery and the course of recovery and post-operative care. On the balance of probabilities, each of these developments made a material contribution to his pain at that time. It follows that the original causation still obtained at the time of Comcare’s decision, and the respondent remains liable for medical expenses and incapacity under sections 16 and 19 of the SRC Act
Does the applicant’s psychiatric condition have the requisite connection with employment?
It is apparent from the evidence, and is common ground between the parties, that the applicant has a psychiatric condition, to which there are two significant contributing factors: his pain arising from his physical condition; and the treatment he received at the hospital. The first factor falls within my jurisdiction, in that the psychiatric condition is, as I have found, jurisdictionally a secondary condition arising from the physical condition; the second falls outside my jurisdiction.
What is the diagnosis and date of onset of the applicant’s psychiatric condition?
The psychologists and psychiatrists the applicant has seen have arrived at a variety of diagnostic conclusions. That is not unusual where psychiatric disorders are concerned and is usually not an issue with regard to causation. Ms Coghlan reported in September 2005 that he suffered from a pain disorder, but noted that he reported symptoms from earlier that year consistent with a major depressive episode. Mr Parsons saw the applicant in June 2007 and also diagnosed a pain disorder, while denying a diagnosis of major depression, although in his later report of March 2008 he decided that a diagnosis of major depressive disorder was appropriate. Dr Zsadanyi saw the applicant in 2008 and diagnosed major depressive disorder, recurrent, and reaffirmed that diagnosis in 2016. Dr Rees saw the applicant in June 2017 and concluded that although he had suffered from a major depressive disorder in the past he was now somewhat better and his condition had eased to a chronic adjustment disorder with anxious and depressed mood. In formal terms for compensation purposes the condition should be identified by that most recent diagnosis.
The applicant did not submit a claim for a psychiatric condition until 2014. But I note that in 2005 it was felt appropriate to send him to Ms Coghlan as part of his treatment, and that Comcare accepted liability for the costs of treatment (Exhibit A6). Clearly something was psychologically amiss at an early stage; Ms Coghlan diagnosed a psychiatric disorder and noted that a major depressive episode appeared to have occurred earlier that year. It is established law that a psychiatric condition reaches the stage where it constitutes an ailment for the purposes of the SRC Act where it is “outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi [2006] FCA 1587 (Mooi) at [12] (Drummond J)). To my mind a formal diagnosis is sufficient evidence to establish that the onset of the applicant’s psychiatric condition, to the degree required by Mooi, occurred at this time. For formal purposes, applying subsection 7(4) of the Act, the date of onset is the date of his first appointment with Ms Coghlan, i.e. 9 September 2005.
The usual practice is that a psychiatric condition is considered an ailment under the SRC Act rather than a frank injury, and there is no basis for departing from that practice in this instance. It follows that the test of causation to be applied in respect of the psychiatric condition is the same as that applied in respect of the physical condition, namely whether the applicant’s pain condition contributed, in a material degree, to the psychiatric condition.
Did the applicant’s physical condition contribute, in a material degree, to his psychiatric condition?
Mr Snell contended that the applicant’s psychiatric condition would not meet a “but for” test of causation – that is, that the evidence does not support a conclusion that were it not for his physical condition and, in particular, the pain that accompanied it, the applicant would not have suffered the psychiatric condition. But, with respect, that is not the test set by the statute. A “but for” test is a test of a necessary cause, and such tests are called for by the statute in particular contexts. Best known is probably the test regarding the application of the “reasonable administrative action” exclusion in section 5A of the current SRC Act. But that provision uses the language that a disease arises “as a result of” reasonable administrative action, prompting the High Court to require a “but for” test (Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43). The test in the definition found in section 4 of the unamended SRC Act is that employment makes a material contribution. It is evident, as a matter of logic, that more than one factor could contribute to a condition, and equally that more than one factor could contribute to a degree that was material.
The evidence here is that the two contributions - the applicant’s pain condition and the circumstances and incidents of his employment - were both recognised as contributing to his psychiatric condition. Dr Hendry noted the difficulty of telling apart the contribution of one vis-à-vis the other (T89). The contributions of both are recognised throughout the evidence as having directly contributed to the applicant’s psychological distress.
I have no difficulty in concluding that the applicant’s employment contributed, through his physical condition, in a material degree, to his psychiatric condition. He received medical treatment, including by psychologists; Dr Zsadanyi identified him in 2008 (T83) and in 2016 (Exhibit R2) as having an incapacity for work, and Dr Rees agreed (Exhibit A15); and according to Dr Rees he has suffered an impairment. Comcare is liable to pay compensation under section 14 of the SRC Act in respect of a psychiatric injury identified as “chronic adjustment disorder with anxious and depressed mood”, with a date of injury of 9 September 2005.
Has the applicant suffered permanent impairments under the SRC Act, and if so, to what degree, and what compensation is payable for non-economic loss in respect of each impairment?
The applicant has been assessed by Dr Young and Dr Gurgo as having sustained a 28% whole person permanent impairment in respect of his physical injury. He has been assessed by Dr Rees as having sustained a 10% permanent impairment in respect of his psychiatric injury. All those assessments are now somewhat old and should be revisited. The question of the degree of impairment and the amount of compensation for non-economic loss in respect of both conditions is accordingly remitted to the respondent.
I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
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Associate
Dated: 29 May 2019
Date(s) of hearing: 22-23 August 2018; 4 October 2018; 4 April 2019; 15-16 April 2019
Counsel for the Applicant: Mr Christopher Ryan Solicitors for the Applicant: Mr Terence Dwyer, Dwyer Lawyers Counsel for the Respondent: Mr Michael Snell Solicitors for the Respondent: Mr Peter Lehmann, Lehmann Snell Lawyers
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