Delov v Caldipp Pty Limited t/as Slaven Motors [2002] ACTSC 2 (20 February 2002)

Last Updated: 14 May 2002

Pero Delov v Caldipp Pty Limited t/as Slaven Motors [2002] ACTSC 2 (20 February 2002)

CATCHWORDS

WORKERS COMPENSATION - appeal from arbitration - applicant suffering from fibromyalgia, a condition of unknown aetiology - symptoms of pain exacerbated by working as motor mechanic - no evidence that work contributed to progression of underlying disease - whether temporary increase in pain an aggravation of the disease - whether appellant's employment could have been a factor contributing to the aggravation of the disease.

Workers' Compensation Act 1951 (ACT), s 6, s 9(1) & (2), Sch 4, s 26

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Asioty v Canberra Abbattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533

PERO DELOV -v- CALDIPP PTY LIMITED T/AS SLAVEN MOTORS

No. SCA 43 of 2001

Judge: RYAN J

SUPREME COURT OF THE ACT

Date: 20 FEBRUARY 2002

IN THE SUPREME COURT OF THE )

) No. SCA 43 of 2001

AUSTRALIAN CAPITAL TERRITORY )

On appeal from the Magistrates Court (WC No 148 of 2000) of the Australian Capital Territory

BETWEEN: PERO DELOV

Appellant

AND: CALDIPP PTY LIMITED T/AS SLAVEN MOTORS

Defendant

ORDER

Judge: RYAN J

Date: 20 FEBRUARY 2002

Place: CANBERRA

THE COURT ORDERS THAT:

1. The appeal be stood over to 9.30 am on 22 February 2002 for the purpose of receiving submissions as to the orders, including any orders as to costs which should be made to reflect the reasons for judgment published this day.

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Magistrate Burns sitting as an arbitrator pursuant to Schedule 4 of the Workers' Compensation Act 1951 ("the Act"). The learned Magistrate, on 14 May 2001, ordered that the appellant's application for arbitration of his claim under the Act be dismissed. Pursuant to s 26 of the Act, the appellant appeals from that order. Section 26 provides;

"(1) Where a committee or the Court gives a decision or makes an order or award with respect to any matter which may be or is required to be settled by arbitration under this Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court.

(2) Part XIXA of the Magistrates Court (Civil Jurisdiction) Act 1982 applies in relation to an appeal under subsection (1) -

(a) as if it were an appeal from a judgment or order of a kind specified in subsection 282C(2) of the Act; and

(b) in the case of an appeal from a decision, order or award by a Committee - as if the decision, order or award was a decision, order or award of the Court."

2. The appellant is now aged 52, having been born in Yugoslavia on 23 January 1952. He migrated to Australia in December 1987 and shortly thereafter commenced work for the respondent as a motor mechanic. The learned Magistrate accepted that part of his work, particularly on trucks and buses, had been heavy and physically demanding. In about 1996, according to the appellant, he began to experience difficulty in heavier work on larger vehicles and, on 7 May 1998, he consulted his general practitioner, Dr Milosevic, complaining of muscle spasms, around his jaw and face which had been of some months duration. He also noted that, whilst at work, he had been increasingly clenching his jaw, especially when tightening or loosening nuts and the like, and had been experiencing headaches. Over a period of some months he was treated by Dr Milosevic and other practitioners without success. By July 1998, when he was complaining of "pain and weakness", which he first noticed at work, he was referred to Dr Brook, a rheumatologist. The weakness was of gradual onset and it and the pain gradually increased over time.

3. According to the appellant, an increase in pain accompanied the performance of work requiring the application of strength. The pain and weakness continued until his employment by the respondent was terminated in April 2000. The only remission occurred at the end of 1999 when he took a two month vacation to return to his homeland. When he was not working, the symptoms were tolerable, but the pain and weakness returned immediately upon resumption of his normal duties.

4. On the strength of the certificate from Dr Milosevic, the appellant was put on light duties for a time, during which there was a "corresponding decrease" in his experience of pain. However, the respondent was not prepared to maintain him on light duties indefinitely and he was forced to give up his employment in April 2000. Since ceasing work, the appellant has continued to experience fatigue and pain after physical exertion but not to the same extent as when he had been working.

5. The learned Magistrate accepted medical evidence that the appellant suffers from fibromyalgia, a condition of unknown aetiology for which there is no known form of satisfactory treatment. He noted that the condition is a disturbance of the pain perception mechanism, the symptoms of which are painful fatigue made worse by activity but not cured by rest. The learned Magistrate in his reasons, continued;

"Dr Brook noted that epidemiological studies did not support any connection between the development of fibromyalgia and occupations involving heavy physical labour. The evidence does not support the proposition that the applicant's employment with the respondent caused the onset of his fibromyalgia.

It is clear from the evidence of Dr Brook that working, especially heavy work such as the applicant undertook with the respondent, makes the symptoms of fibromyalgia worse, in that it makes the pain worse. It appears from the evidence of Dr Brook and the applicant that resting reduces the incidence of fatigue and pain, but that some degree of fatigue and pain are usually evident whether the applicant is working or resting."

6. No issue was taken on the appeal with the learned Magistrate's finding that fibromyalgia is a "disease" for the purposes of the Act. As defined in s 6(1) of the Act;

""disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;".

7. From the premise that the appellant's condition was essentially a "disease", the learned Magistrate identified, in these terms, the question which he was required to resolve;

"The evidence does not support the proposition that the applicant's employment with the respondent caused or was a contributing factor to the contraction of fibromyalgia. In order to succeed, the applicant must establish that his employment with the respondent aggravated or accelerated the disease within the meaning of those words as used in the Act. Indeed, this was the applicant's argument: the increased pain and fatigue he suffered when he worked for the respondent amounted to an aggravation or acceleration of his fibromyalgia."

8. The reasoning which the learned Magistrate applied to determine that question was encapsulated in this passage;

"In the instant case there can be no doubt that Mr Delov suffers from a disease, being fibromyalgia. It is also clear from the authorities that I have referred to that the temporary increase in symptoms, such as pain and weakness that he suffers when he works, amount to an aggravation of his disease; and this aggravation is itself a disease for the purposes of the Act.

However, there is no evidence that would support any finding that the applicant had developed any enhanced susceptibility to symptoms such as pain and weakness through his employment with the respondent; nor that his employment with the respondent was responsible for increasing the base level of his symptoms, when the symptoms abate after he ceases work above the level that would naturally occur with the underlying disease of fibromyalgia.

In other words, there is no evidence that would satisfy me that when the applicant ceases work and his symptoms abate, the symptoms abate to any level above those that would naturally occur with his underlying fibromyalgia.

The applicant's employment with the respondent has not permanently raised the level of his symptomology. This is important because it means that once the temporary aggravation of his symptoms have abated, his claim to entitlements to payments under the Act falls to be determined on the application of the usual tests to the applicant's underlying disease of fibromyalgia.

He is not entitled to any payments under the Act for the period of temporary aggravation, because there is no evidence of any relevant incapacity, in the sense of inability to earn, caused by those purely temporary aggravations. He was, in fact, in employment during those periods of aggravation.

Whilst he has not been in employment since April 2000, his incapacity is attributable to his underlying fibromyalgia and not to the temporary increase of symptoms he suffered when he was employed. Sadly, the applicant has no entitlement to any award under the Act and I decline to make an award in favour of the applicant."

9. Mr Lunney of Counsel for the appellant took particular issue with the observation in the passage just quoted that there was no evidence that the appellant's employment "was responsible for increase in the base levels of his symptoms, when the symptoms abate after he ceases work, above the level that would naturally occur with his underlying fibromyalgia."

10. Counsel pointed, first, to the evidence of the appellant himself to the effect that there had been a gradual increase in the pain and weakness which he had experienced and that the pain was made worse whenever he engaged in work which required the application of strength or pressure and the condition "basically, every day was getting worse and worse until I stopped working." However, that evidence, whilst it confirms what seems to be accepted on both sides to be the progressive nature of the appellant's condition, does not tend one way or the other on the issue of whether his work aggravated the progression or accelerated it beyond the base level plus the normal progression of the disease. Certainly, the appellant negatived any amelioration as a result of his having left work with the respondent when he said in evidence-in-chief;

"Basically like I don't feel any better at all."

11. He also acknowledged severe pain and the feeling of "muscle inflammation" after driving to Sydney and back, after fishing and after gardening or helping his wife in her occupation as a cleaner.

12. Dr Milosevic expressed the opinion that the appellant's condition "is being exacerbated by that type of work and I have certainly observed that his condition progressively has got worse over the period ......[of] approximately 12 to 18 months." Under cross-examination of Dr Milosevic by Mr Stretton of Counsel for the respondent, this exchange occurred:

Mr Stretton: "And you can't say that work has affected in any way the underlying pathology of the condition, can you?

Dr Milosevic: "The underlying pathology really is unknown."

Mr Stretton: "Therefore you cannot say that work has affected the underlying pathology of the condition, can you?

Dr Milosevic: "I can only express my opinion that having physical type of work would exacerbate underlying conditions."

13. In the same context, Dr Milosevic acknowledged that mowing the lawn or standing for long periods watching soccer "exacerbates his condition", by which he meant "exacerbates his pain". Pain was experienced for longer periods at work because the appellant did not have the chance to rest from the pain-inducing activities as he did at home or elsewhere in his own time. Under re-examination, Dr Milosevic reiterated his observation that, over a period of twelve to eighteen months, there had been a definite increase in the appellant's symptoms which he attributed to the inability to rest and recuperate as necessary. He also noted that the appellant's sleep was disturbed during the week and "he was not able to recover for the next day of his work. So I felt that work really has ...... contributed to the worsening of his pain symptoms."

14. Dr Brook was called by Counsel for the Respondent. He had seen the appellant on 19 July and 2 September 1999 and 17 February and 11 May 2000. In a written report dated 20 September 2000 he recited;

"On the first visit I did not have a clear diagnosis but suspected he might be developing fibromyalgia as did Dr Milosevic. When reviewed on 2^nd September 1999 this diagnosis seemed more likely. The pain had become more diffuse particularly in the extensor aspects of both forearms and into the lower upper arm. He was also getting some pain in the legs particularly above and medial to the knee though this was difficult to interpret as he had osteoarthritis in the knee. He started to get spinal pain.

He was stiff in the mornings and cold intolerant. His arms were aching greatly when he was doing his heavy work as a motor mechanic but he still obtained his strength.

Once again there was only a vague tenderness to find. He had not responded to anti-inflammatory drugs which was against an underlying arthritis and in favour of fibromyalgia.

He then took a holiday and reported that he felt more comfortable but since returning to his job as a mechanic the pains had recurred. When reviewed on the 17^th February 2000 he was complaining of widespread pain he had developed more tenderness involving all the limbs and now quite prominent in for example, the 1^st interspace, proximal extensors and the insertion of deltoid.

I explained that there is no satisfactory treatment for fibromyalgia but urged him to keep as fit as possible and take some tricyclic drug to improve his sleep disturbance.

When last reviewed on the 11^th May 2000 he told me that he was no longer coping with his work and there were no light duties available to him."

15. Dr Brook's report concluded with this description of fibromyalgia;

"Fibromyalgia is a condition of unknown origin. It is known to occur after spinal injury by which I mean a significant spinal injury such as a motor vehicle accident. It can also follow certain infectious diseases. I obtained no history of accident or infectious disease to account for the occurrence in this case. I believe it to be so called idiopathic fibromyalgia, that is, of unknown cause.

The fibromyalgia is a disturbance of the pain perception mechanism. Treatments have little effect on the disability. It tends to be of permanent in the sense of being of indefinite duration. The problem is one of painful fatigue made worse by activity but not cured by rest. Those who suffer are capable of a certain amount of work but are limited by the time that they are able to work and the speed at which they work by the level of the pain."

16. In examination-in-chief, Dr Brook noted that fibromyalgia was, by definition, a "disorder of painful fatigue" and was asked;

"But the fact that you might, once you started going to mow the lawn and go fishing or work and suffer increased pain, does that affect, in any way, the underlying pathology of the condition or degree?"

17. That question was answered in the negative. Under cross-examination, Dr Brook acknowledged that the history which he had taken from Mr Delov suggested that there had been a gradual onset of symptoms and his symptomatology had become worse and worse, apparently associated with the performance of the heavier duties of his work. After an acknowledgment that the appellant had said he was better when he was on holiday, the cross-examination continued with this exchange;

Mr Lunney: "That is consistent with the diagnosis of fibromyalgia, isn't it?

Dr Brook: "Well, yes, it is - it's - I'm sorry, I'm not very helpful - there's no doubt that if you can help - patients with fibromyalgia don't like being entirely - don't like complete rest, they get uncomfortable if they have to lie down or sit around for too long. So gently moving about and being able to choose your own time and pace and be able to rest when you want to, is when one's at one's most comfortable, and of course a holiday affords you that opportunity."

Mr Lunney: "So that your understanding of the onset of the symptoms was that there was a gradual onset?"

Dr Brook: "Yes."

Mr Lunney: "Yet there were some interruptions as it were while he was on holidays?

Dr Brook: "That's my understanding - I'm sorry, say that again?

Mr Lunney: "There were some increases - there were some interruption in the increase of his symptoms while he was away on holidays?"

Dr Brook: "That's correct."

Mr Lunney: "And then there was a resumption of the increase in symptoms while he was - when he returned to work?

Dr Brook: "Yes, at least every - he told me that he had felt better on holiday but he had problems again now that he was back at work, even though it was an easier job."

Mr Lunney: "And then when he stopped work, I think that on the last occasion that you saw him, he'd been out of work since April 2000?

Dr Brook: "He, he said he'd been on light duties for a month but felt no better."

18. Dr Brook then rejected the suggestion that the appellant's work was a "trigger" for the symptoms that he experienced, explaining;

"...there's been work on fibromyalgia and occupation which shows that they're not very closely knit or closely associated. But the disability of fibromyalgia is that they show that obviously heavy work is much more intolerant of the condition, he would find it much more difficult to keep going. It is true that the symptoms came on while he was working as a mechanic, I know this is undeniable, and he didn't have them before despite years of being a mechanic. But I - I'm not sure that that - that doesn't convince me that that's, that the work caused the fibromyalgia, the fact is we don't know what caused it."

19. After conceding that, in some cases, a dramatic event like a motor car accident has precipitated fibromyalgia, Dr Brook pointed out that nothing of that kind had occurred in Mr Delov's work history. Dr Brook was then asked whether it was not the case with Mr Delov "that the same process had happened, that the heavy work that he has been doing has caused the onset at a fairly minor level of fibromyalgia which has then progressed with continuing heavy work?" The cross-examination continued;

Dr Brook: "Well, it may sound logical, but unfortunately the literature on fibromyalgia does not suggest an association between heavy work or any form of occupation and fibromyalgia, so given that there's no - there's no epidemiological - the only way to look at that is to look at the epidemiology. Fibromyalgia is not so uncommon, and to see what work sessions it occurs in. And there isn't any evidence that suggests it's associated with heavy work. There is evidence to suggest that the disability is worse with heavy work, but that's intuitive anyway. So that's why I have difficulty in - I - I - think it doesn't."

Mr Lunney: "All right. Well could I just ask you this one final question in this particular area, and that is if one accepts that injury can cause fibromyalgia, isn't it an extraordinary coincidence that Mr Delov should be working away doing this heavy work and the condition occurs, isn't that really the only explanation for the onset of the condition, if one accepts that injury can cause the condition?"

Dr Brook: "Well, I don't think it's a coincidence, because nearly everybody - well, we hope are gainfully employed, so virtually everyone that gets fibromyalgia in the community is occupied in some way. I mean, they may well be a housewife or something of that sort, but they - they are in fact operating an everyday life, so it's not so extraordinary being a motor mechanic. I mean, I don't feel it's a coincidence, I just feel it's - I just see it as a part of life. I mean, if he developed - if he developed lung cancer is it associated with being a motor mechanic or it associated with smoking? We know that it's likely to be associated with the smoking and not with the occupation, but it's only by looking at the epidemiology of it that one can answer those questions. And in my view there's no evidence that the ordinary wear and tear of everday life causes fibromyalgia."

20. Later in the cross-examination, Dr Brook accepted that the appellant's symptoms had definitely got worse over the period in which Dr Brook had seen him, and that it was for that reason that the appellant had gone on to light duties. The cross-examination of Dr Brook continued with this exchange;

Mr Lunney: "Well, isn't that increase in symptom pathology - doesn't that inevitably lead one to conclude that it is the work which is producing the increase in symptoms?"

Dr Brook: "Yes, I accept that work is - made the symptoms much worse. I mean, that is just what the complaint is about. I mean, it is a complaint of painful fatigue."

Mr Lunney: "Certainly, but ?

Dr Brook: "And I entirely accept that point that work made him - made him uncomfortable, and I also accept the fact that he got worse over the period that I saw him - over those 10 months. Yes, things got worse."

Mr Lunney: "Yes. And you accept that it was his work duties that contributed to that worsening of his condition?

Dr Brook: "Well, we get back to the business of what's aggravation. I mean, there's no doubt that work duties made him feel more uncomfortable. That fact was his major complaint, really. That's what it was all about. But whether it made any - whether it makes any difference to the underlying condition or not, is a different point."

Mr Lunney: "Yes, of course. But it's the symptoms that - ?

Dr Brook: "But the symptoms got worse over the time that I saw him. There's no doubt about that."

Mr Lunney: "Yes. And it is the symptoms that lead to a deterioration in his work capacity?

Dr Brook: "Yes, that's right. They are in fact the cause of it."

Mr Lunney: "Yes ?"

Dr Brook: "His inability to cope at work."

21. The learned Magistrate referred to the judgment of the High Court in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 and noted that Kitto J, with whom Taylor and Owen JJ agreed, had "discussed the concept of exacerbation of a disease and was prepared to accept that a temporary increase in the severity of the symptoms of a disease amounted to an exacerbation of the disease". His Worship also referred to the analogy formulated by Kitto J in this passage, at 635;

"Moffitt J was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism". Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound."

22. However, the learned Magistrate did not go on to indicate why he regarded Federal Broom as distinguishable in the present case. In my view, once it is accepted, as it seems on the authorities it must be, that the experience of pain or increased pain may be aggravation of a disease, even though there is no deterioration of the underlying pathology, whether one or more episodes of pain at work are an aggravation of the disease within the meaning of the Act is a question of fact.

23. In Commonwealth of Australia v Beattie (1981) 35 ALR 369, the following two questions of law had been referred to a Full Court of the Federal Court;

"(1) Does pain doing no pathological harm constitute an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971?

(2) Does pain doing no pathological harm constitute an aggravation of a pre-existing injury caused in non-compensable circumstances within the meaning of the Act."

24. After noting that Federal Broom had concerned the use of the words "aggravation", "acceleration", "exacerbation" and "deterioration" in the New South Wales legislation in relation to disease, Evatt and Sheppard JJ in their joint judgment observed, at 377;

"The Federal Broom case is, therefore, subject to the differences in the legislation, an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology. Whether there is an exacerbation or an aggravation in such a case will be a question of fact."

25. Their Honours went on to observe that the absence of the word "exacerbation" from the Commonwealth legislation did not detract from the force, in the same context, of the word "aggravate". They then continued, at 378;

"Notwithstanding what was said by Windeyer J in the Federal Broom case it may be true, as Kitto J said, that more is involved than the notion of a condition being made worse in the sense of it producing more serious symptoms. On the other hand we have difficulty ourselves in perceiving why what Windeyer J said was not an accurate statement of the position. But if one accepts the view of Kitto J it is nevertheless true to say, when one considers the whole of his judgment, that there can be cases where there will be an exacerbation - and thus in our view an aggravation - of a previously existing injury by activity which increases or precipitates pain. Rubbing salt into a wound, the example taken by Kitto J, is but an instance of this.

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 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. The evidence earlier recounted shows this to be a very different type of case. Thus 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.

We would answer the second question by saying that such pain may do so. we do not find it necessary to answer the first question."

26. The learned Magistrate in the present case seemed to think that the central question was to be resolved by application of Asioty v Canberra Abbattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533, rather than Federal Broom as explained in Commonwealth v Beattie. In Asioty, the workman was suffering from an underlying constitutional dermatitis not caused by his employment. However, the condition flared up as a result of his work as a slaughterman. The more it flared up the more recalcitrant and difficult to treat it became. Toohey J, with whom the other members of the Court agreed, referred to the judgment of Moffitt J in Federal Broom [1964] NSWR 511 at 519, which Toohey J considered concerned a progressive disease, and continued, at 539;

"In the case now before this court, however, the appellant's condition is not to be taken as progressive. The question is not therefore whether external stimuli accelerated its progress. More to the point are later comments of Moffitt J when dealing with a disease which "once contracted may be of a chronic type not subject to any progress or any perceptible progress" ([1964] NSWR, at p 519). In such a case, his Honour continued ([1964] NSWR, at pp 519-520): "The production of incapacitating symptoms, or the intensifying of existing symptoms, to the point of their becoming incapacitating is incapacity arising from a deterioration or aggravation of the disease." While these dicta may be appropriate to determine what constitutes an aggravation of a disease in many cases, they are not conclusive in all situations. In each case the ultimate issue to be resolved must be whether the employee's situation falls within the terms of the Ordinance."

27. After referring to the reasoning of the Full Court of the Federal Court from which the appeal in Asioty had been brought, Toohey J went on to observe, at 540-541;

"While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.

... ... ... ... ...

To say, as their Honours did, that "the likelihood of a return of the symptoms could not be described as an aggravation of recurrence" is to overlook that it was the appellant's employment with the respondent that caused for the first time an aggravation which was incapacitating and which is still incapacitating because it prevents the appellant from returning to work, at any rate work of a certain kind.

The Federal Court concentrated on the fact that once the appellant ceased work with the respondent his symptoms abated. That is not disputed but, in treating that fact as conclusive, their Honours applied the dicta of Moffitt J in Federal Broom Co Pty Ltd v Semlitch ([1964] NSWR 511) too strictly. It is true that Moffitt J spoke of the aggravation of a disease as consisting of the production or intensifying of its symptoms. and this will often be the case. However, there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. The Federal Court did not meet the appellant's claim that, by reason of the aggravation caused by his employment with the respondent, he is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work."

28. The learned Magistrate after referring to an earlier passage from the judgment of Toohey J in Asioty concluded that "in Mr Asioty's case his enhanced susceptibility to dermatitis was by virtue of the definition of disease in the Ordinance, a disease in itself. That disease was due to the nature of his work .....". In the present case, by contrast, on the Magistrate's finding, there was no enhanced susceptibility or deterioration of the underlying condition after each or any episode of pain at work. Hence, there was no aggravation of the disease. However, that analysis ignores the distinction adverted to by Toohey J that the present appellant's condition is progressive so as to attract the conclusion reached by Moffitt J in Federal Broom that;

"Symptoms in the case of a progressive disease however may be only evidence of the acceleration without producing in themselves any harmful effects, in which event there may be an acceleration of the disease with no present resultant incapacity."

29. In my view, the learned Magistrate's analysis, like that of the Full Court of the Federal Court criticised by Toohey J in Asioty "did not meet the appellant's claim that by reason of the aggravation caused by his employment ...... he is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work." I consider that the evidence in the present case permits a finding that the episodes of increased or exacerbated pain which the appellant claimed to have experienced in the course of his work could have amounted to an aggravation of the disease of fibromyalgia within the definition of "disease" in s 6(1) of the Act reproduced at [6] of these reasons. Sub-sections 9(1) and (2) of the Act provide;

"(1) Where -

(a) a worker contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the worker by his or her employer was a contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment;

subsections (2) to (5) (inclusive) have effect.

(2) If -

(a) the death of the worker; or

(b) the total or partial incapacity for work of the worker,

results from the disease, or the worker obtained medical treatment in relation to the disease, then, for the purposes of this Act, unless the contrary intention appears -

(c) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the worker arising out of the employment of the worker by his or her employer; and

(d) the date of the death, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury."

30. In the light of the principles to be distilled from the authorities analysed above, if it be accepted that the appellant experienced episodes of increased pain attributable to his underlying fibromyalgia when required to perform aspects of his work, it would follow that his employment was a contributing factor to the aggravation of the disease. That would be so even if, as the learned Magistrate seems to have accepted, the episodes of pain did not accelerate the natural progression of the fibromyalgia or otherwise affect the underlying symptomatology. This is not a case like that postulated in the extract from Commonwealth v Beattie quoted at [25] above, of a worker with a fractured leg who suffers pain on putting the leg to the ground. In that case it would be fortuitous whether the pain was suffered in the course of the employment or outside it. In the present case, by contrast, it is open to find that the suffering of pain or increased levels of pain was a consequence of the requirements of the appellant's work and that, in the absence of those requirements, that suffering could be avoided or mitigated.

Conclusion

31. It will be apparent from the reasons which I have endeavoured to express that I consider that the learned Magistrate erred in confining his inquiry to whether the appellant's episodes of pain at work had raised the level of the symptoms attributable to the underlying fibromyalgia. Upon that question being answered in the negative, the confined inquiry resulted in the conclusion that the "temporary aggravations" being the episodes of increased pain at work, did not cause "any relevant incapacity in the sense of inability to earn". However, in my view, the authorities also require inquiry into whether the episodes of increased pain at work, being concededly aggravations of the fibromyalgia, were what precluded the appellant from continuing in employment with the respondent. Applying the analogy formulated by Kitto J in Federal Broom quoted at [21] above, the heavier demands of his work were the salt applied to the appellant's wound (fibromyalgia). The question remained whether that exacerbation of the disease and its likely repetition in the future resulted in the appellant's total or partial incapacity for work.

32. The observation of Evatt and Shepherd JJ in Commonwealth v Beattie in the passage quoted at [25] of these reasons that each case must depend on its own facts applies, I consider, to the questions which I have concluded have been left unanswered by the learned Magistrate in this case. My tentative view, therefore, is that the order of 14 May 2001 should be set aside and the application for arbitration should be remitted to Magistrates Burns to be determined in accordance with law. However, I shall stand the appeal over to next Friday at 9.30 am to receive submissions from Counsel as to the orders (including any order as to costs) which should be made to give effect to these reasons.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Date: 20 February 2002.

Counsel for the Appellant: Mr G Lunney

Solicitor for the Appellant: Higgins Solicitors

Counsel for the Respondent: Mr G Stretton

Solicitor for the Respondent: Hunt & Hunt

Date of hearing: 30 July 2001

Date of judgment: 20 February 2002.