Fyfe and Comcare [2000] AATA 769 (1 September 2000)

Last Updated: 7 September 2000

DECISION AND REASONS FOR DECISION [2000] AATA 769

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/414

GENERAL ADMINISTRATIVE DIVISION )

Re PAUL FYFE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Air Marshal I.B. Gration (Member)

Date 1 September 2000

Place Canberra

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

COMPENSATION - back injury - aggravation - whether temporary increase in pain symptoms is an aggravation - aggravation considered - application of section 48 of the Safety Rehabilitation and Compensation Act 1988 - whether receipt of common law damages prevents recovery in respect of aggravation

Safety Rehabilitation and Compensation Act 1988 s.48

Telstra Corporation Limited v Barrow (1994) 19 AAR 523

Casarotto v Australian Postal Commission (1988) 10 AAR 191

Re Doherty and Comcare (AAT 10454, 6 October 1995)

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Workers' Compensation Board (Queensland) v Technical Products Pty Ltd [1988] 165 CLR 642

McIntyre v Comcare (1998) 50 ALD 416

Telstra Corporation Limited v Barrow (1994) 19 AAR 523

REASONS FOR DECISION

1 September 2000 Senior Member J.A. Kiosoglous MBE Air Marshal I.B. Gration (Member)

1. This is an application by Mr Paul Fyfe (the applicant) for review of a decision of a review officer of the respondent dated 5 October 1999 (T111), which affirmed a decision of a delegate of the respondent dated 23 December 1998 (T98) denying liability in respect of a claimed aggravation of lumbar spine injury.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T111), together with twelve exhibits, seven lodged by the applicant (Exhibits A1-A7) and five lodged by the respondent (Exhibits R1-R5). In addition, the Tribunal heard evidence from the applicant, who also called Dr F. Tomlinson, Neurosurgeon and Dr R. Garsia, General Practitioner. The respondent called Dr J. Cameron, Consultant Neurologist, as a witness. The applicant was represented by Mr D. O'Gorman and the respondent was represented by Mr D. O'Donovan, both of counsel.

3. The issues before the Tribunal are whether or not the applicant is barred from seeking compensation as a result of the application of section 48(4) of the Safety Rehabilitation and Compensation Act 1988 (the Act); and if not, whether the applicant suffered a compensable aggravation of a lumbar spine condition in or about October 1995.

history of the application

4. The applicant was involved in a motor vehicle accident during the course of his employment with the Australian Federal Police (AFP) on 29 November 1992 ("the 1992 accident"). Liability for this incident was accepted by the respondent in respect of upper lumbar back and neck pain on 24 December 1992 (T6) and subsequently extended to include lower back pain.

5. The applicant accepted a redundancy offer from the AFP in June 1993.

6. The applicant commenced common law proceedings in the ACT Supreme Court on 20 October 1993 (T13), particulars of which were lodged in April 1997 (T95) and in respect of which, terms of settlement were lodged on 18 March 1998 (Exhibit R1(2)).

7. The respondent decided to cease paying compensation on 13 July 1995, considering that any ongoing problems resulted from degenerative change (T22). The applicant sought reconsideration of that determination, which was affirmed upon review dated 2 August 1995 (T25). On 26 March 1996 the respondent revoked that decision and accepted liability for neck and lumbar back injury as and from 13 July 1995 (T33).

8. On 29 March 1996 the applicant applied for compensation for permanent impairment (T36), and, on 20 May 1996 (T39), for additional incapacity payments in respect of the 1992 accident.

9. Between December 1997 and November 1998 correspondence ensued between the parties in respect of the relationship between the common law claim settlement and the respondent's entitlements pursuant to sub-section 48(2) of the Act. The respondent commenced action in the Federal Court in February 1999 to recover amounts outstanding in this regard. On 15 September 1999 the Federal Court ordered the applicant to pay to the respondent compensation he had already received.

10. The applicant submitted a claim on 17 August 1998 for aggravation and acceleration of lumbar spine condition in relation to an alleged incident on 19 October 1995 ("the October 1995 incident") (T83).

11. On 23 December 1998 the respondent rejected the applicant's claim (T98) on the basis that he had recovered damages in respect of his injuries and so was barred from further recovery pursuant to section 48 of the Act. This decision was affirmed upon review dated 5 October 1999 (T111), with the review officer stating (inter alia):

"...

... Accordingly I find that the employee's post October 1995 symptoms related to his injury in 1992. The 1995 incident produced no injury and can best be described as a flare up of symptoms caused by the 1992 injury.

...

Further, the employee recovered $250,000.00 in damages which far exceeds his pre1995 loss as particularised. Accordingly, one of two conclusions can be drawn. Either damages were recovered in respect of the ongoing effects of the 1995 incident, or the 1995 incident caused no ongoing effect and the employee's incapacity and need for medical treatment etc. all related to the 1992 injury.

On either scenario, no compensation is payable, On the first scenario because of the operation of s48(4), on the second scenario because the requirements of s14 are not satisfied.

..."

applicant's evidence

12. The applicant told the Tribunal that in October 1995 he drove from Brisbane up to Oakey to give a lecture at the Oakey Army Base, and that the trip took some three and a half hours there and three hours back, bearing in mind that he had to pick up and drop off a colleague. He recalled picking up a Toyota Corolla sedan the night before, and noticed that it had a wheel balance problem. He stated that he called DAS Fleet but was told it was the only available vehicle. He further stated that, having arrived in Oakey, he removed the over-head projector from the car, set it up, gave a lecture for about one hour, attended a brief lunch in the mess and returned to the car. He said that he began to feel pain towards the end of the lecture, such that he did not eat any lunch, and had to stop driving during the return journey due to the pain, getting his colleague to take over. In this regard, the colleague, Mr A. Bridge, stated in a letter dated 27 April 1998 (T72):

"...

From memory the outward journey took just over two hours after a brief stop in Toowoomba. ...

...

On the way back to Brisbane Mr Fyfe re-commenced driving the vehicle however after having driven back past Toowoomba he was unable to continue to drive due to an onset of back pain and I drove the remainder of the way back to Brisbane. In changing drivers I observed that Mr Fyfe appeared very uncomfortable when alighting from the vehicle and also placed the front passenger seat in a reclining position for the remainder of the journey. I recall that Mr Fyfe was subsequently absent from duty for many weeks following the trip to Oakey."

13. The applicant stated that, by the time he returned to Brisbane, he was in agony. He attended Dr Garsia the following day and stated that subsequently he had some seven to eight weeks off work.

14. He stated that, after that incident, it became difficult to visit his mother in Hervey Bay, and that he needed to take more time off work than he had previously done so.

15. He agreed, in cross-examination, that he had back pain prior to 1995, and had significant back problems in 1993, culminating in epidural injections received as from early 1994. He stated that in July 1995 he was coping reasonably well with the pain and with work, and that he had discussed with Dr Tomlinson that, if it got to the point where he could no longer cope, surgery was an option.

16. He stated that he only thought to lodge a compensation claim in respect of the Oakey trip after preparing a time off work spreadsheet for the purposes of the third party claim, at which time he noticed that the Oakey trip appeared to be a significant event. In response to cross-examination, he denied that he did not claim because he knew that the October 1995 incident was related to the 1992 accident. He stated that this claim was lodged on the basis of the available medical evidence, and Dr Tomlinson's view in particular.

17. He was unsure what he was doing on 26 to 31 October 1995, but opined that he might have been on public holidays. He stated that he does not recall reporting to Dr Garsia that he "missed his footing" on 1 November 1995, but that he would accept that he did if it was in Dr Garsia's notes. He commented that he loses his footing on occasion as a result of the 1992 accident.

18. He did not recall specifically mentioning the Oakey trip to any doctors he saw in the years after 1995, and stated that in his letter to Mr Tony Smith MP dated 19 September 1996 (Exhibit R4), he had recalled events to the best of his ability at that time.

19. He stated that his intention in the common law proceedings was to recover damages for the period in 1995 and thereabouts. He further stated that he asked for the settlement to remain confidential because he did not want his work colleagues to find out how much money he had received, and knew that they would search the databases to find out, given their knowledge of compensation matters. He considered that he was then in a quandary in so far as informing Comcare of the settlement details, because he considered himself to be bound by the ACT Supreme Court confidentiality order.

medical evidence

dr f. tomlinson

20. Dr F. Tomlinson, Neurosurgeon, has seen the applicant on a number of occasions and prepared four reports in relation to the applicant. In a report dated 28 July 2000 (Exhibit A5) he stated (inter alia):

"...

5. If it was necessary on 19.10.1995 for Mr Fyfe to sit in the motor vehicle for a period of greater than five hours, then I believe that the injuries and disabilities of 19.10.1995 can be categorised as a distinct injury from those sustained in the motor vehicle accident of 1992."

21. In oral evidence, in support of his reports, he stated that he considered the October 1995 incident to be distinct, as it was a problem caused by the effects of vibration, which was quite different to the traumatic injury sustained in 1992. He considered that the mechanisms involved were quite distinct, and as such they were separate injuries. He considered that driving over five hours' duration for a person predisposed to back pain would be more likely than not to cause back pain. He could not say whether the applicant would have sustained problems in the October 1995 incident if not for the 1992 accident. He stated that this particular journey was adverse and out of the ordinary, in that the car was different and problematic, and he considered that, given the applicant sought medical attention the following day, there was a real phenomenon at work.

22. He stated that there is no record in his notes of the Oakey trip, and that he first recorded it in 1998.

dr r. garsia

23. Dr R. Garsia has been the applicant's General Practitioner since February 1995.

24. In oral evidence, he stated that the applicant's back problem related to the 1992 accident, and that he did not focus upon the October 1995 incident, as it was part of the ongoing aggravation felt by the applicant from time to time. He deciphered his notes for 25 October 1995 as "Back pain has improved a lot with physio, still needs a little more on Friday" and for 3 November 1995 as "back is hurting again, he has sciatica, SLR is restricted to about 85%. He apparently missed his footing and had a jolt.".

dr j. cameron

25. Dr J. Cameron, Consultant Neurologist, saw the applicant on 17 May 1996 and prepared two reports dated 22 May 1996 (T40) and 6 April 2000 (Exhibit R2). In the latter he stated (inter alia):

"...

The description of event which occurred on 20.10.95 are typical of a transient aggravation of a chronic pre-existing back condition with nerve root irritation. The aggravation seemed to improve over a 5 day period. I would not regard this as a new injury. I would regard it as a temporary aggravation of an underlying, pre-existing condition.

...

The pain Mr. Fyfe experienced in October, 1995 would have been very unlikely to have occurred had he not suffered a back injury in 1992. Therefore, one would have to conclude that the 1995 event was ultimately caused by the 1992 event.

I would not conclude that the event in October, 1995 was a separate injury.

..."

26. In oral evidence, in support of his reports, he stated that he agreed that the mechanisms involved in the October 1995 incident were different to the 1992 accident. He considered the 1992 accident to be a result of trauma, whereas the October 1995 incident was a minor aggravation caused by posture and vibration. He stated that driving predisposes people with degenerative back problems to symptoms of pain, and that the driving to Oakey would be sufficient to cause an aggravation. He stated that it would only be a minor aggravation however, and wouldn't cause any underlying structural change.

applicant's submissions

27. Mr O'Gorman submitted, on behalf of the applicant, that there is no double dipping were the applicant to succeed, as the respondent will not have to pay compensation for anything for which the applicant has already received compensation.

28. He submitted that the injury in 1992 and that of 1995 are distinct, as the former is a trauma-based injury, and the latter vibration-based. He further submitted that even if the October 1995 incident is only an aggravation of the 1992 injury, there is still an entitlement to compensation for the October 1995 aggravation.

29. He submitted that the consent judgment lodged in the ACT Supreme Court proceedings is too vague to be of any assistance, and that the statement of claim in those proceedings dated 20 October 1993 (T13) could have been amended to encompass the 1995 period, but was not. He considered that the applicant was not barred from recovery pursuant to sub-section 48(4) of the Act as no damages were recovered in respect of the October 1995 injury.

30. He submitted that, whilst the applicant will suffer ongoing pain from the 1992 accident, the October 1995 incident was of such severity that the applicant went to see Doctor Garsia the following day and was required to take time off work. On this basis, he submitted that it can be considered a separate and distinct injury.

respondent's submissions

31. Mr O'Donovan submitted on behalf of the respondent that the intention of the settlement agreement in the ACT Supreme Court proceedings was to include the 1995 period, and all ongoing effects of the 1992 accident. He noted that pain from driving was included in the particulars of claim.

32. He submitted that the symptoms described in the particulars of claim equate with those described to Dr Garsia, and that the size of the settlement indicates that an extensive period, inclusive of 1995, was intended to be covered, and that 1995 was never isolated from the common law proceedings.

33. He submitted that the applicant had fluctuating symptoms from 1992 onwards, to the extent that he had an increasing number of days off from June 1994 and considered surgery in mid-1995, indicating that the October 1995 incident was yet another flare up in symptoms related to the 1992 accident. He noted the attendance on Doctor Garcia on 3 November 1995 following a further incident of lost footing, which would diminish the significance of the October 1995 incident. He also noted that the applicant did not mention the October 1995 incident for a further three years, and that it only became significant at the time when he owed Comcare a lot of money.

34. He submitted that the Tribunal should prefer Dr Cameron's opinion that the October 1995 incident was a temporary increase in pain, which is not compensable.

discussion and findings

35. The Tribunal has only briefly set out the evidence and submissions before it, but takes all such evidence and submissions into account in coming to its decision. It will refer to the numerous authorities proffered by the parties as appropriate.

36. There are two issues before the Tribunal. The first is whether or not the October 1995 incident constitutes an aggravation for the purposes of the Act. The second is whether the applicant is barred from seeking compensation in respect of the October 1995 incident pursuant to sub-section 48(4) of the Act. The Tribunal notes that the question of whether sub-section 48(4) of the Act is applicable depends upon the characterisation of the October 1995 incident. For sub-section 48(4) to apply, the injury for which the employee recovers damages must be the same injury as that for which compensation is payable (Telstra Corporation Limited v Barrow (1994) 19 AAR 523 as upheld by the Full Federal Court (1994) 35 ALD 671). The question becomes, then, whether or not the common law settlement was received in respect of injuries inclusive of the October 1995 "aggravation"?

37. It is appropriate to first consider how the October 1995 incident should be characterised. Dr Tomlinson opines that it is hard to say that, in the absence of the 1992 injury, a "normal person" might suffer lower back pain undertaking such a six hour drive. He considered that the disc injury was a common thread between the 1992 accident and October 1995 incident, but that the mechanism involved was different. Dr Cameron considers the October 1995 incident to be a minor "aggravation" (on his understanding of the word) of the 1992 injury, without there being any underlying structural change.

38. Taking into account the entire history of the applicant's lower back problems, the Tribunal is somewhat sceptical that the October 1995 incident should be given any particular significance. The applicant continued to have fluctuating symptoms from 1992 onwards, resulting in intervention in 1994 involving epidural injections. By mid 1995, prior to the October incident, he was having discussions with doctors suggesting (at the very least) that surgery might be a necessary option. Whilst it is clear from the records of his time off work (Exhibit R3) that subsequent to October 1995 he had more time off work, there is a notable gap between the alleged date of the incident (19 October), after which the applicant had time off from 20-25 October 1995, and the next lot of time off work, which comprises two days from 1-3 November 1995. The Tribunal can find no record of public holidays in Queensland in October or November 1995, and it remains unaccounted for.

39. Further to that, the applicant reported to Dr Garsia on 25 October 1995 that his back pain had "improved a lot with physio", and upon reporting to the doctor on 3 November 1995, the problem is related to an incident on 2 November 1995. There is then no further specific reference to the October 1995 incident until several years later when the applicant was going through his work history for the purposes of compensation proceedings.

40. The Tribunal would note at this point that it found the applicant to be a credible witness. In particular, the Tribunal was impressed by the fact that the applicant did not profess to have an answer for everything, and was prepared to stand corrected if the documentary evidence ran contrary to his memory. He was a matter-of-fact witness, and the Tribunal did not gain the impression that he was attempting to reconstruct events in a more favourable light or exaggerate the significance of certain incidents.

41. The statement of Mr Adam Bridge (T72), who accompanied the applicant on the trip to Oakey, corroborates the actual events of the trip, save for some time discrepancies; but, in the light of the medical records and the records relating to time off work (Exhibit R3), the Tribunal can only regard Mr Bridge's statement that the applicant had "many weeks off work" subsequent to the Oakey trip as somewhat ambiguous.

42. Aside from the time off immediately following the Oakey trip, the Tribunal is sceptical as to whether there is anything more than a temporal relationship between the October 1995 incident and the increased time off in subsequent months. Given the effluxion of time and the vagaries of the contemporaneous medical evidence, it is of course difficult to speculate in this regard. The Tribunal is mindful however, that the applicant had a degenerative back condition which had been significantly aggravated by the traumatic injury in 1992. Indeed as Dr Tomlinson expresses it, the degenerative problems were secondary to the acute lumbar disc rupture resulting from that accident (T32). One would expect in such a condition to find fluctuating symptoms of pain, and a gradual worsening of the condition over time. That is the nature of a degenerative back problem. Taking the available medical evidence into account, the Tribunal does not consider that, on the balance of probabilities, it can be satisfied that the events of October 1995 can be described as anything more than a "temporary aggravation of an underlying pre-existing condition" as Dr Cameron labels it in his report dated 6 April 2000 (Exhibit R2) which "seemed to improve over a 5 day period". The Tribunal accepts Dr Cameron's evidence that the "aggravation" of October 1995 caused no change to the underlying compensable condition.

43. Of course the use of the word "aggravation" by Dr Cameron is problematic, given that the legal and medical understanding of that word can be at odds at times. Whilst the Tribunal is mindful of the different mechanisms involved in producing the October 1995 symptoms (as against the 1992 traumatic injury), it notes that Dr Tomlinson stated that it is not possible to say that, in the absence of the 1992 injury, the applicant would or would not have experienced the symptoms he did in October 1995. Dr Tomlinson noted the disc injury as a common link, and Dr Cameron stated that driving predisposes people with degenerative backs to symptoms of pain. The Tribunal considers that, whilst "normal people" can experience temporary symptoms of back pain following a drive of six hours or more, the extent of the applicant's experience of such symptoms strongly suggests that it is more likely than not that there is a connection between the October 1995 symptoms and the degenerative back problem, as taken over by the acute trauma of 1992. As Dr Cameron noted, a degenerative back predisposes someone to experience such symptoms when driving long distances, and it follows that the trauma of 1992 would also cause such a predisposition.

44. On that basis, the events of October 1995 could be said to be a temporary experience of symptoms caused by a different mechanism, but related in a material way to the applicant's degenerative back condition and the acute trauma of 1992. Mr O'Gorman submits that the temporary experience of pain symptoms constitutes an "aggravation" and is therefore a separate compensable injury. The Tribunal is reluctant to ascribe such a label to the October 1995 incident because it is clearly appropriate that, as a matter of public policy, it should not be the case that every temporary flare up in someone's back condition be treated as a separate injury.

45. The Tribunal is mindful of the authorities in respect of "aggravation", and notes in particular paragraphs 19-23 of Casarotto v Australian Postal Commission (1988) 10 AAR 191 wherein Hill J provides a useful summary of various authorities, albeit within the context of whether a distinction is to be drawn between "aggravation" and "acceleration". Pain brought on by a work injury may constitute an aggravation of a pre-existing injury, even in the absence of pathological change (per Senior Member Hallowes in Re Doherty and Comcare (AAT 10454, 6 October 1995) at paragraph 12, citing the Full Federal Court in Commonwealth of Australia v Beattie (1981) 35 ALR 369. Re Doherty provides useful guidance for our consideration of this present application, because in that case the Tribunal accepted that, whilst only for a relatively short period of time, the applicant experienced an increase in her pain symptoms as a result of particular work requirements, and was accordingly entitled to compensation for the resultant incapacity.

46. The Tribunal considers that there is a degree of comparability between Re Doherty and the present application. In the present case, the Tribunal is satisfied that the particular job requirements in October 1995 (the Oakey trip) resulted in the applicant experiencing a temporary increase in pain symptoms. For the reasons above, the Tribunal is further satisfied that there is a connection between such an increase and the 1992 compensable injury. It is consistent with the authorities on this issue that the more severe pain the applicant experienced in 1995 as a result of work requirements constitutes an "aggravation" and the Tribunal so finds. The Tribunal has not canvassed the "material contribution" question but, suffice to say, considers that the applicant's work contributed to a material degree to the said aggravation.

47. Characterisation of the events of October 1995 as an "aggravation" means that there is in effect a separate "injury" in so far as the Act is concerned. With respect to section 48 of the Act therefore, the Tribunal is required to consider whether damages were received in respect of that particular injury. Were the common law damages intended to cover the 1995 aggravation?

48. Sub-sections 48(1) and (4) provide:

"(1) This section applies where:

(a) an employee recovers damages in respect of an injury to the

employee or in respect of the loss of, or damage to, property used

by the employee, being an injury, loss or damage in respect of which

compensation is payable under this Act; or

(b) damages are recovered by, or for the benefit of, a dependant

of a deceased employee in respect of the death of the employee and

compensation is payable under this Act in respect of the injury that

resulted in that death.

...

(4) Compensation is not payable under this Act to the employee in

respect of the injury, loss or damage, or to, or for the benefit of,

the dependant in respect of the injury that resulted in the death of

the employee, after the date on which the damages were recovered by

the employee or by, or for the benefit of, the dependant, as the

case may be."

49. In The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] 165 CLR 642 at p653-4, Wilson and Gaudron JJ stated (inter alia):

"...

Undoubtedly the words "in respect of" have a wide meaning although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co. Ltd. v. Reilly (23), that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends. ..."

50. In McIntyre v Comcare (1998) 50 ALD 416, Madgwick J considered the applicability of section 48 of the Act, drawing distinctions between incapacity and injury for the purposes of the section (inter alia) at p419-420:

"...

As formally constituted, the common law proceedings could only have permitted the recovery of damages in respect of the 1986 injury. There was no formal document incorporating the 1989 injury as one of the results of that earlier injury. Of course, it is a common, indeed everyday occurrence, and well-sanctioned in law (see Willis v Commonwealth (1946) 73 CLR 105) that a later injury can be treated as the compensable sequel of an earlier one which primarily gives rise to the liability of a defendant to pay compensation.

It would be wrong, however, in my view, to confine consideration of the matter to the formal documents. The reality of litigation in New South Wales of the kind in question is and was that formal particulars as required by Pt 33 of the Rules of the Supreme Court of New South Wales are and were often supplemented by particulars given in letters between solicitors. The question is whether what emanated from Messrs Walsh and Blair amounted to the incorporation of the 1989 injury in the common law proceedings as a claimed, compensable sequel of the 1986 incident.

It seems to me that what Walsh and Blair were concerned to do was to incorporate the 1989 incapacity (and the subsequent incapacity) as a consequence of the 1986 injury as to which it was alleged that the defendant had been negligent, and that, therefore, there was a liability in the defendant to pay damages for loss of wages (instead of mere weekly compensation), pain and suffering, and perhaps damages for a voluntary carer based on Griffiths v Kirkemeyer (1977) 139 CLR 161; 15 ALR 387. Mr McIntyre's solicitors were concerned that that incapacity should not be attributed to the 1989 injury. They were not, it seems to me, seeking to have the 1989 injury treated as a compensable result of what had occurred in 1986. It is true that it is possible to read some of the imprecise language in the letter as if that was their intention, but it will be seen that such language was not really appropriate to the question they were purporting to answer. Hence, there is a powerful argument that the applicant did not recover "damages in respect of [the 1989] injury". However, the first supposed error is whether there was any material that enabled a contrary answer and I think it is clear that there was.

It seems to me however that the second of the errors of law suggested has been made out. It was in the interests of Mr McIntyre as plaintiff to have as little concern as possible given to the1989 injury in the proceedings arising out of the 1986 injury. It was not the 1989 injury which was likely to be a "salient feature of the negotiations leading to the settlement"; it was the incapacity following the 1989 incidents and whether it could be attributed to the 1986 incident, which would be relevant. The 1989 incidents were no doubt part of the matrix of facts which, in a forensic way, were "relevant" to the quantification of the award of damages by agreement which constituted the settlement, but s 48 does not ask whether an employee has previously recovered damages in respect of incapacity now asserted to have been due to the injury in respect of which it is sought to obtain compensation. It does not need to: only incapacity resulting from a qualifying injury may be compensated; if the incapacity was attributable to another injury (whether or not damages have been had in respect of it) and not to that in respect of which the claim is made, it will not be compensated as the result of that injury.

..."

51. Carr J provided further analysis of section 48 of the Act in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 wherein he drew a distinction between section 48 and related cases concerning the relevant provisions in the Social Security Act 1947, stating (inter alia) at p533:

" ...

In my view Siviero's case is distinguishable from the present case because s 48 of the Act does not refer to incapacity; it refers to "injury". As Davies J pointed out in Siviero's case at 443:

"... the term 'incapacity' does not mean 'injury'. Incapacity is a consequence of disability, injury or disease, but is not itself disability, injury or disease."

...

"

52. Mr O'Gorman submitted that the common law particulars (T95) in this case do not include the October 1995 incident and that, since those proceedings did not settle until well past 1995, there was room to amend the particulars of claim. The Tribunal concurs with Madgwick J that it is not appropriate to give slavish attention to the particulars, for it is necessary to consider the common law settlement in a more global sense. Given that the common law proceedings settled before going to trial, the Tribunal must consider what was the implicit intent of that settlement?

53. It is appropriate to have some regard to the particulars of claim (T95) however, from which the Tribunal notes the following:

"A. Injuries

a. Shock

b. Headaches

c. Injury to Neck

d. Injury to mid and lower back

e. Chest pains

f. Pain extending down through groin, buttocks and both legs

g. Sciatica

h. Marked central L5/Sa1 disc prolapse

B. Disabilities

a. Constant lumbar pain following the accident becoming more severe over time

...

o. Continuing pain in mid lumbar spine

p. Restriction in spinal movements

...

y. Restricted ability to drive motor vehicle because of lumbar pain and pain in both legs

...

aa. Restricted ability to perform employment duties to a satisfactory pre-accident standard

bb. Increasing feeling of frustration and anxiety on failure to return to and perform work commitments

...

Continuing Disabilities

a. Constant lumbar pain

b. Occasional neck pain

...

h. Continuing pain in mid lumbar spine

i. Restriction in spinal movements

j. Continuing pain extending down through the buttocks and both legs

...

p. Restricted ability to drive motor vehicle because of lumbar pain and pain in both legs

..."

54. The Tribunal notes that the particulars are dated 16 April 1997. In the initial statement of claim dated 20 October 1993 (T13), the applicant claimed:

"PARTICULARS OF PERSONAL INJURIES:

(a) Lower back pain;

(b) Pain in the mid back;

© Bilateral stabbing leg pain;

(d) Whiplash type injury to the cervical spine;

(e) Severe headaches.

PARTICULARS OF CONTINUING DISABILITIES:

(a) Continuing back pain;

(b) Necessity to attend physiotherapy treatment.

..."

55. In such a settlement, one must consider that the intention of the payer is perhaps more important than the payee. Whilst a person may claim for many things, the payer (the insurance company in this case) must ultimately agree to pay a certain amount, and in agreeing to such an amount, the payer would be mindful of what such a settlement is intended to cover. In that regard, the Tribunal is not greatly aided by the documentary evidence, which contains a letter dated 17 October 1995 (T28) alluding to "proceedings ... arising out of injuries he allegedly sustained in a motor vehicle accident which occurred in Canberra on 29 November 1992." and requesting particulars of all payments made by Comcare. There is a further letter dated 9 March 1998 (T66) which again simply refers to injuries arising out of the 1992 accident. The consent judgement (T68) is of no particular help.

56. Mr O'Donovan submitted that the quantum of the common law damages is significant, in that the sum of $250,000 suggests that the intent was present to cover a period extending beyond 1992 and clearly encompassing the events of 1995, even if such is not made explicit. The Tribunal is mindful that there is a distinction drawn between intent to cover future periods of incapacity relating to the 1992 accident and any future injury that may arise, which has some connection to the 1992 accident.

57. Taking into account the evidence before it, particularly in relation to the particulars of claim and eventual negotiated outcome in the common law proceedings, the Tribunal concludes to its reasonable satisfaction, as a matter of fact, that the scope of the damages received by the applicant in the common law proceedings was intended to cover subsequent related injuries such as the aggravation suffered in October 1995. The nature of that aggravation is that it is a temporary increase in the applicant's experience of pain. On Dr Cameron's evidence, which the Tribunal accepts, it resulted in the applicant being incapacitated for several days, and caused no ongoing problems or structural change. Whilst a distinct injury therefore, the effect was akin to a minor flare up in the 1992 condition resulting in temporary incapacity. Bearing in mind the particulars of claim and the medical evidence as to the ongoing effects of the accident, the quantum of the damages could be reasonably said to have included payment in respect of possible minor aggravations of the applicant's condition which result in temporary increases in pain symptoms and some incapacity for work. Given the applicant received damages in 1998, it is reasonable to conclude that any such aggravation in 1995 would have been contemplated in the damages settlement.

58. The Tribunal is mindful in reaching this conclusion that the aggravation is a separate injury to the 1992 one. For the reasons stated however, on the available medical evidence the Tribunal has considered it more probable than not that there is a connection between the two. Whilst section 48 speaks of "in respect of an injury", the Tribunal considers that it is reasonable to expect that common law damages can be paid in contemplation of an injury, and, by virtue of the quantum and particulars of the settlement, contemplate subsequent related aggravations of that injury. Such aggravations might be separate injuries, but common law damages can be paid in respect of more than one injury.

59. Accordingly, section 48 of the Act applies in this case, and the Tribunal finds that compensation is not payable pursuant to the Act in respect of the October 1995 aggravation.

decision

60. For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Air Marshal I.B. Gration (Member)

Signed: ....................Signed.........................................................

Personal Assistant

Date/s of Hearing 3 & 4 August 2000

Date of Decision 1 September 2000

Counsel for the Applicant Mr D. O'Gorman

Solicitor for the Applicant Howes Powrie Rowe

Counsel for the Respondent Mr D. O'Donovan

Solicitor for the Respondent AGS