Winsall and Comcare [2003] AATA 51 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1544

GENERAL ADMINISTRATIVE DIVISION )

Re ROHAN WINSALL

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date 17 January 2003

Place Melbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Winsall is entitled to compensation in respect of the disc prolapse for which he first sought medical treatment in July 2001.

(Sgd) Joan Dwyer

Senior Member

COMPENSATION - disc prolapse - sustained while on leave - whether compensable "injury" - heavy work as a boilermaker - earlier compensable back injury - evidence that prolapse would not occur without pre-existing defect - some back pain at work shortly prior to prolapse - agreement of medical witnesses that heavy work causes damage to annulus of disc and makes it vulnerable to prolapse - whether prolapse is a "disease" within definition of injury in s 4(1) of Act - whether relevant that prolapse was not an "inevitable" part of the disease process - decision under review set aside - prolapse is an "injury"

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1),

Compensation (Commonwealth Government Employees) Act 1971 s 29(3)

Australian Postal Corporation v Burch (1998) 156 ALR 483

Kavanagh v The Commonwealth (1960) 103 CLR 547

Re Williams and Australian and Overseas Telecommunications Corporation (1993) 17 AAR 308

Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302

Accident Compensation v McIntosh [1991] 2 VR 253

Comcare v Laidlaw [1999] FCA 40

REASONS FOR DECISION

17 January 2003 Mrs Joan Dwyer, Senior Member

1. This is an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). That decision affirmed a determination made 25 July 2001 which decided that Comcare was not liable to pay compensation to Mr Winsall in respect of "disc prolapse", for which Mr Winsall first sought medical treatment on 2 July 2001.

2. Mr Perry of Counsel appeared for Mr Winsall. Mr Ferwerda of Counsel appeared for Comcare. Mr Winsall gave evidence. Evidence on his behalf was also given by four boilermakers who had worked with him at Australian Defence Industries ("ADI"), Mr Leckie, Mr Milikans, Mr Cooney and Mr Mullins. In addition evidence on behalf of Mr Winsall was given by Dr Sexton, a chiropractor, by Dr Van Der Spek and Dr Snow, treating general practitioners, by Mr McCullough, the treating orthopaedic surgeon, and by Mr Phillips, a general surgeon. The respondent called Mr MacAgue who is Mr Winsall's supervisor at ADI and also Mr Shannon, an orthopaedic surgeon. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.

BACKGROUND

3. Mr Winsall, who was aged 35 at the date of hearing, started working for ADI as a boilermaker in 1994.

4. On 30 November 1999 Mr Winsall reported (T4 p15) that he had suffered a lumbosacral sprain on 24 November 1999, causing him to feel pain in the lower back right side when cooling down after work. At the time Mr Winsall was building roof panels for ships' engine rooms, which was his usual job. He was required to lift heavy steel parts out of a rack or to manoeuvre them on to and off fork lifts. Mr Winsall said that it was his belief that he had injured his back lifting heavy parts out of the racks. Mr Winsall had a day off work when he saw Dr Sexton, a chiropractor, but went back to work on two weeks of light duties the following day. After those two weeks on light duties he saw the chiropractor once again and then returned to his full duties. The incident was accepted as compensable.

5. From November 1999 to June 2001 Mr Winsall had no time off work because of his back, nor did he seek any medical treatment or take pain killers because of his back.

6. Mr Winsall finished work on Wednesday 27 June 2001 and started recreation leave on Thursday 28 June 2001 (T6 p17). On that day he drove to Charlton for a family funeral. He said he found it difficult to sit in church and kept shifting around in an attempt to find a more comfortable position. He drove back to Bendigo after the funeral. The following day he took things easy. The main task he did was wash his car getting ready to sell it. He said he only worked on the outside of the car, which was something he had done many, many times, during the six or seven years he had owned the car. The next day, when he woke up, he had pain in his left buttock and from the buttock to the calf down the left leg. He got out of bed and found it difficult to walk because he was sore down the left hamstring. He could not straighten his leg properly and more or less had to drag it when walking.

7. Because it was a Saturday he could not see Dr Sexton that day. He put up with the pain on Sunday and saw Dr Sexton on Monday 2 July 2001. Dr Sexton told him to go home and see how it was by Wednesday, but the pain became significantly worse over the Monday. On Tuesday 3 July, Mr Winsall rang Dr Sexton who suggested that if it was so bad he should get some pain killers. Mr Winsall tried to get into the car to drive to the pharmacist but the pain was such that he could not sit in the car.

8. On Wednesday 4 July Mr Winsall's father came over from Charlton to drive him to see Dr Sexton. Mr Winsall could not sit in the car. He had to lie across the back seat. As soon as Dr Sexton saw him he wrote a referral to Dr Van Der Spek. Dr Van Der Spek sent Mr Winsall for a CT scan and certified him unfit for work. The next day Dr Van Der Spek told Mr Winsall that the CT scan showed a disc bulge or disc prolapse at the L5/S1 level (T7 p18).

9. The report on the CT scan performed on 4 July 2001 (T7 p18) stated "at the L5/S1 level there is a broad based left para median posteria disc protrusion abutting and slightly compressing/displacing the arising left S1 nerve root."

10. Mr Winsall was off work, taking pain killers and anti-inflammatories, for about seven weeks. At that stage his doctor was prepared to send him back to work on light duties, and he was prepared to go back, but ADI said they had no suitable duties. Mr Winsall did not return to work until about October 2001 when ADI found light duties in an office environment. He performed light duties for about a month in the office and then returned to work as a boilermaker, but in number 8 shop where he was doing lighter work, cutting sections and dressing small parts, standing at a bench. He coped. His back felt okay but his legs were a bit sore. In about November he returned to his usual area but not to the same work he had done previously. He worked on construction of wind towers for green energy.

11. Mr Winsall still has lifting restrictions. He is meant to lift no more than 15kgs. He has never returned to his pre-injury duties. He now does a different job building high speed tractors. Those duties are described as light fabrication, and are lighter than the duties he performed up to 27 June 2001.

12. On 5 July 2001 Mr Winsall claimed compensation for disc prolapse. He wrote that he had first noticed it on 30 June 2001. With that claim he lodged a three page handwritten statement in which he said "during the last month of work, I've had niggling irregular lower back soreness in the same area as old injury. This soreness was visibly apparent to others I work with when soreness was present."

13. Mr Milikins and Mr Leckie provided statements dated 10 July 2001 reporting that they had noticed Mr Winsall limping or walking with an abnormal posture shortly before he went on leave, and that he had indicated to them that his back was sore again.

14. On 25 July 2001 Mr Winsall's claim was refused. That determination seems to have been made in accordance with a recommendation from Ms Stewart, Injury Management Co-ordinator at ADI, dated 16 July 2001 (T13 pp24-25). Ms Stewart wrote in her memorandum that she had discussed the diagnosis of lumbar disc prolapse with Dr Marks. He did not give evidence at the hearing, although his report of 22 August 2001 was relied on by the delegate who made the reviewable decision on 24 October 2001.

15. Ms Stewart in her recommendation made the point that the event occurred while Mr Winsall was on annual leave. She noted that Dr Van Der Spek had attributed Mr Winsall's lumbar disc prolapse to an aggravation of his previous injury, even though he had not seen Mr Winsall at that time. She wrote "I am of the opinion that it is preposterous to attribute a lumbar disc prolapse to the injury of 24 November 1999," and set out four points which in her (non-medical opinion) seemed to indicate a lack of connection with that incident. She then went on to say that the statements of the two fellow boilermakers were of little, or no value, in supporting the claim "as they simply state that Rohan was experiencing back pain whilst at work. They do not provide any evidence or precipitating event that even suggests the low back pain was attributed to by his employment."

16. That memorandum of Ms Stewart and Dr Marks' report of 22 August 2001 raise significant concerns. In his report dated 22 August 2001 and addressed to Ms Stewart, Dr Marks (T21 p45) sets out information given to him, presumably by Ms Stewart, which was inaccurate. In paragraph 3 he wrote:

Mr Winsall's job is that of a boilermaker and this involves him welding and assembling sides of the GE enclosures. His work can involve bending, twisting and lifting metal components. The heavy components such as side bars and heavy channels (56kg) are lifted into position by crane. The metal components and tools that have to be lifted by Mr. Winsall weigh less than 10kg.

No witness suggested that prior to the accidents Mr Winsall only lifted components weighing less than 10kg. It seems that whoever was responsible for obtaining an opinion from Dr Marks, provided him with inaccurate information. That, and the fact that Dr Marks wrote his report to Ms Stewart without seeing Mr Winsall who would no doubt have been readily available for consultation and examination, led to an unreliable opinion being before the delegate who made the reviewable decision of 24 October 2001. Ms Stewart and Mr van Beveren, the Occupational Health and Safety Manager, in their memoranda (T22 & T23 pp47-50), seem to have been more interested in minutely dissecting the supporting statement of their employee Mr Milikins, than in considering Mr Winsall's detailed statement of 14 August 2001 explaining the heavy nature of his duties (T18 pp36-42)

17. If a more independent medical expert, such as Mr Shannon, had been asked to examine Mr Winsall at an earlier stage, the reconsideration delegate would have had a more reliable medical opinion. It was not until after the application for review by this Tribunal had been lodged, that the respondent arranged to obtain a report (R1) from Mr Shannon, who is an orthopaedic surgeon. He saw Mr Winsall on 13 May 2002 and wrote a report dated 17 May 2002 stating that Mr Winsall's back was made vulnerable to the disc prolapse by both the incident in 1999 and the general heavy nature of his employment.

18. Mr Shannon in his report set out his opinion as follows:

Opinion

Mr Winsall has sustained a lumbosacral disc prolapse with left sciatica. He seems quite genuine in his description of this condition and his symptoms. The disc prolapse has responded to conservative measures, and he has resumed moderate physical work, although he has ongoing sciatica.

The incident occurred while he was on leave, although he would indicate that his back had been sore in the last few days prior to his leave. He states, however, that although he drove to a funeral one day and washed his car the next day, he did not feel any increase in pain associated with these activities, and that the pain came on the next morning when he got out of bed.

Other reports in your file would suggest that pain seemed to come on after washing the car, and that there was, perhaps, a little more than just a vague temporal association between washing the car and the development of left sciatica.

On the other hand, it does appear to be established that he had a work related injury to his low back in December 1999, and this may well have resulted in aggravation of degenerative change, and certainly resulted in a period of light duties with an accepted claim.

He describes ongoing intermittent stiffness after a hard day's work, although no major episode until the disc prolapse occurred. I think it is likely that the disc prolapse was precipitated by non-work related activities, but that his back was made vulnerable to the disc prolapse by both the incident in 1999 and the general heavy nature of his work.

To this extent, I believe that there has been some contribution by his employment to the subsequent disc prolapse.

In answer to your specific questions:

1 The history is outlined above.

2 He has sustained a lumbosacral disc prolapse

3 The cause of the disc prolapse is essentially disc degeneration.

4 I think his employment contributed to the disc degeneration.

5 He has resumed most of his normal occupation.

FINDINGS ON THE EVIDENCE

19. I find that Mr Winsall performed very heavy work as a boilermaker from 1994 to June 2001. He described that work both in his detailed statement (T18 pp36-42) written on 14 August 2001 and in his evidence. I find that he was an honest witness who gave a careful description of his work in his statement written shortly after the incident and at the hearing. Mr Winsall wrote (T18 pp38-41):

This job involves extensive manual lifting of heavy folded sections on to work benches and fixtures. It has always been common work practice to handle these manually as they don't lend themselves to be easily or efficiently lifted by cranes. The first aspect of job involves mainly working up on a bench for 4 days. In this position you're required to kneel on both knees, lean forward and lift/slide sections into position to tack weld. This is after you've carried them from rack to bench. Many plates also have to be positioned/tacked while in this kneeling/lean forward position. Job also involves standing on floor, leaning over bench to assemble and weld. It has been raised at meetings by other co workers that these benches are of bad design and cause people to work in discomfort. To weld job you are required to continually kneel/crouch, lean forward and weld then stand move to next position and repeat for about 8hrs. The next aspect of job involves assembly of heavy folded sections on to turning jig. This jig doesn't raise/lower so sections have to be lifted manually to height of approx' 1.5 metres. These sections and some for previous job would weigh approx' 50kg. They are stored in racks at difficult heights and are hard to access. It has been common practice to drag these out of racks and lift on to benches/jigs, one person to drag it from rack until 2^nd person can get a hold to help carry. The majority of manual handling is done by one person. This part of job takes approx' 8 hrs to join 8 sections. The result is 2 heavy square frames. The next job requires more lifting from racks to different jig. Two of these sections would be over 20kg each and are carried by 1 person (myself) to jig 15 metres away. Job again takes about 8hrs with fabrication involving standing at jig and bending forward to assemble and weld. Once these parts are fabbed they are lifted from jig (by hand) and loaded on to forklift. They are taken to press for straightening. They are lifted up on to press by me, straightened, loaded back on fork by hand and returned to roof jig. Here they are slid off forks on to floor under jig. The combined weight of these would be at least 50kg. The remainder of job involves joining all sub-assemblies on roof jig. This jig is also too low as stooping is required even for shorter people. Constant bending is required to line up string lines, marking out, tacking, welding, grinding and drilling. The sub assemblies are lifted by crane on to jig before aligning. Final positioning is by leaning over jig to adjust jacking bolts or by levering with pinch bar. Once the centre section and 2 frames are joined, the edge bars are then picked up off floor by hand and lifted into position. More sections are then lifted from racks and joined to job. Once assembly is complete, job is fully welded. This requires plenty of bending forward for long periods. Once welding is complete, job is then drilled. Many of the smaller drilling jigs are carried some distance and positioned by hand.

...

The whole job takes about 130hrs to complete on your own. It requires a lot more heavy lifting (by hand) than any other job in the section and is about 2 1/2 times bigger in hours compared to any other (next biggest). All workers in this section know this job is the biggest and involves the majority of the "heavy work" here.

It is with this description of the job that I've been doing on my own that I believe it is probable, that is, more likely than not that this job caused my injury.

...

20. Mr Winsall said he had raised the difficulty of moving those pieces of steel out of the racks at boilermakers' meetings called "Toolbox Talk". He had suggested that it would be much easier to attach cranes to the sections if they were stored on different racks, so that they stood vertically rather than horizontally. Mr Winsall said he had attributed his first injury to trying to manoeuvre the pieces of steel out of the racks and had therefore been concerned to try and avoid further injury. He said that he had raised the matter with the foreman and the occupational health and safety boss in the presence of an engineer and he had been told to speak to the engineer and describe to her the racks he wanted made. He said he had showed her what to make, but the same racks were still in use.

21. Mr Winsall's estimates of the weights he lifted and carried were not challenged. He said the heaviest component was about 48kgs, another was 40kgs and others were up to 25 or 30kgs. In fact it may be that the heaviest component weighed 56kgs as stated in Dr Marks' report, or up to 60kgs as agreed by Mr MacAgue in his evidence (trans p124).

22. In cross-examination Mr Winsall agreed that it was not uncommon for workers to ask for help occasionally when lifting or dragging heavier parts. He was asked whether having an apprentice working with him for a period of somewhere between one and three months before he went on leave, did not make the work easier. He explained (trans p43):

Well, I know for a fact that I still made the frames. The apprentice, I got him to do jobs like cutting a bit of steel on the saw. He might have made them edge bars for the end, took them over and done a bit of scraping, but I was still lifting the heavy sections out of the rack. That never changed.

23. Mr Winsall's evidence was supported by the evidence of other boilermakers who had worked with him at ADI. Mr Leckie, who knew and worked with Mr Winsall from 1994, said that some boilermaker's tasks are heavier and more physical than others. He said (trans p58) "I have done what Rohan has done and that is heavy and physical, yes." He added (trans p59):

The job Rohan was doing was actually his job and he was required to do that virtually every day, whereas I am not, right, so I might get put into that, if he is not there or somebody else is not there, I might get put into that place, to be able to do that, but at that stage, that heavy work was Rohan's job. That is virtually all he did.

24. Mr Milikins, who has worked at ADI since January 1995, described the task of dragging the heavy sections out of the racks. He said (trans p80):

We would have to drag them out of the racks, out far enough to actually either get a crane to put them on or handle them ourselves. It was very difficult to actually drag them out of the rack because they were stacked on top of one another and they used to be intertwined and you had to sort of use a crowbar or a pinch bar to force them apart and to drag them out.

He said it was not possible to simply put the crane or a chain or rope hanging from a crane directly on to the piece of metal and lift it out that way. He explained why (trans p81):

Well, they were similar components and they were stacked on top of one another and they were interlaced between one another so you had to actually wedge them apart with a jemmy bar or lift them and place a bit of wood under it before you could actually put a crane on them and then when you lift them with the crane, the crane couldn't get to the centre point of the beam because that was in the middle of the rack where the actual cables of the chain couldn't be put into. It would have been unsafe practice to do it that way.

25. Mr Milikins said he was working in the same shop as Mr Winsall, although, not on the same tasks. He said he had seen him lifting things, because they worked together, twenty feet apart. He was asked whether Mr Winsall would normally lift things on his own and he replied (trans p85):

Well, most of those things when he was working on the roof he actually lifted most of them on his own and most people did that. Now there is another practice ... that we have to either use the crane or get somebody to help you.

26. Mr Milikins was asked about the suggestion, made by the supervisor, Mr MacAgue, in his statement (R2) that cranes were used for a lot of the lifting. He explained: "you could have used the crane but it is a lot more time consuming to use the cranes in some of the components". Further, he said that the cranes were not always available as there were two cranes, and 17 or 18 people. He said that the work practice was that people did manually carry the components. He added "That is the way we carried out our work" (trans p88). He said that early in the year 2002 a new system had come in and they had been told to use the crane more. He said that had only been implemented after Mr Winsall's injury, in the last six to eight months.

27. Mr Cooney, another boilermaker from ADI, said that 90% of the work done by boilermakers at ADI, collecting and moving steel parts for welding to make frames, was done manually. He said they would be dragged out of the rack and put together on a jig before being lifted off the jig with a crane. Mr Cooney said that he was never told, and no other boilermaker was ever told in his hearing, not to carry the sections manually.

28. The only evidence which in any way contradicted Mr Winsall's evidence, was that of Mr MacAgue. He did not dispute the weights estimated by Mr Winsall but in his unsigned statement (R2) he said at paragraphs 7,8 and 9:

...

7. The issue of manual handling and working in awkward positions was raised in the past. The issues raised were dealt with by ADI and resulted in the following aids being purchased:

(a) knee pads and cushions were provided;

(b) trolley on welding bridge provided;

(c) height adjusted welding chairs and stools were provided.

8. In my opinion, the manual handling equipment available is generous in both variety and volume for the tasks undertaken in the area. It is therefore with some surprise that I note Rohan's allegations regarding his requirement to lift heavy sections of steel and carry them manually.

9. I have not seen Rohan lifting the sections he has described in his letter. Whilst the lifting aids are not always available on demand, they are generally available within ten minutes and each fabricator always has alternate tasks they can continue with whilst waiting. The fabricators presently working in number seven workshop who work on the duties described by Rohan use the lifting equipment provided and thus do not lift the weights Rohan has described.

29. In his evidence Mr MacAgue said that there had been discussion at ADI about getting people in the area to help with heavy lifting where possible. He said he could not remember what year that change took place. He also said he had never seen Mr Winsall lift heavy things but he said he had seen him pulling "the Zs" out of the racks and putting them against the table.

30. In cross-examination Mr MacAgue continued to be quite imprecise about when the new system of having help with heavy lifting had come in, but he denied that it was only in 2002. He did however admit (trans p130) that there had been a change in the practice because of Mr Winsall's injury.

31. Mr MacAgue said he had not seen any of the boilermakers who gave evidence lift heavy parts from the racks to the jigs either manually or using a crane. He could only name one man he had seen using a crane for the task. He said he had not seen any one else use a crane to lift parts weighing no more than 60kg.

32. Mr Perry suggested to Mr MacAgue that if he had not seen how Mr Winsall got the heavy parts moved from the racks to the jigs, he was not in a position to contradict the evidence of Mr Winsall. Mr MacAgue agreed with that proposition.

33. I find that Mr MacAgue was not totally frank with the Tribunal. I find that as a supervisor he would have been aware of the work practices of the boilermakers. I prefer the evidence of Mr Winsall and the other ADI boilermakers to that of Mr MacAgue. I find it was misleading for Mr MacAgue to suggest that it was the practice for cranes to be used to lift parts weighing up to 60kgs, although he had only ever seen one man do so. I find he also was deliberately vague about when the system was changed to encourage more shared lifting, although he was aware that the change was after Mr Winsall's injury.

34. I also find that Mr Winsall did have some pain and stiffness on occasions between the 1999 incident and when he went on leave in late June 2001, even though he never had to take medication or see a doctor. I accept Mr Winsall's evidence that he had some lower back soreness during June 2001. I also find that Mr Leckie, Mr Milikins, and Mr Mullins had noticed and commented on Mr Winsall's limping or walking in an uncomfortable way or having a strange posture at times. Mr Milikins said (trans p83):

... It was actually - this mightn't have much to do with it. It was actually a part of the joke with some of the blokes in number 7 when Rohan was walking around and looked very uncomfortable in his walk and it was a bit of a banter that people sort of

made fun of him and I thought that was fairly unfair for his own work mates to sort of make fun of him. So I am not the only person who had seen him limping prior to that date, even though you haven't got people [to put] their hand up to say so ...

I find further that Mr Winsall had some low back soreness, and was noticed to be in some difficulty by Mr Milikins and Mr Leckie in June 2001, before he went on leave.

35. Mr McCullough is an orthopaedic surgeon. He saw Mr Winsall on referral from his treating general practitioner on 10 September 2001. He said the CT scan he saw showed a prolapse of the contents of the lower disc in the lumbar spine. He said that is usually due to damage to the outer fibrous ring of the disc. He said that damage "produces a weakness that allows the contents to bulge" (trans p64). He said the cause of such damage to the outer fibrous ring of the disc is usually "trauma or heavy lifting or heavy work".

36. Mr McCullough said the damage may be caused either by work over a period of time or by an isolated event. In this case, the history suggested it was work over a period of time. He was asked about the role of events after Mr Winsall went on leave and about the role of the washing of the car in the disc prolapse. He replied (trans p65):

...It is simply the last final straw. Often a pretty trivial trigger that can produce this. It is a very typical sort of story. You don't need a lot of - or a big injury to produce that last step where the disc bulges and herniates.

...

37. Mr McCullough, in answer to a question from Mr Ferwerda, said that you cannot have "a spontaneous prolapse". He explained (trans p67):

...

You need something to trigger it. You need a pre-existing defect in the disc wall for it to occur... If the disc was intact and in good condition then a prolapse just can't occur. You need a defect in the disc for the prolapse to occur. It might not be symptomatic but it has to be there.

...

38. In answer to a question from the Tribunal, he added (trans p70):

...

The disc is built like a tyre. It has got an outer sort of fibrous very tough ring and then a central pulp which is what prolapses out. The ring tears and it always tears at the back, generally off to one side, but it can do it in a series of episodes. And it can fret and fray and degenerate over a period of time.

...

He also explained the mechanism of tearing (trans p70):

...

It is probably best to think of it as a process of tearing, like the ligaments strain. The disc is under enormous pressure even when you just bend down or rise from a sitting position, if you add a load, particularly if it is sort of on the end of your arms and you have got the leverage effect of the upper body, the force on the disc is massive and it simply tears the fibres of the disc.

...

I think it inevitably happens over your life time. If you look at the discs of older people there is always some degeneration in it.

39. Mr McCullough did not accept that washing the car could have caused a tear in the disc. He said (trans p68):

...

I think it could cause a prolapse to occur through a tear in the disc. The disc is a very strong structure. It is incredibly tough. In most people it doesn't tear. It takes more than just bending over to actually tear the disc.

...

You can tear an annulus in one major specific event or you can do it over a period of time, small tears that eventually coalesce and break down and form a defect.

40. Mr McCullough agreed with Mr Ferwerda that it was his opinion that the work Mr Winsall was doing at ADI had caused a tear over time, or in a specific incident, and that it then made Mr Winsall much more susceptible, so that a fairly innocuous physical activity could then cause a prolapse. Mr McCullough said the only factor in Mr Winsall's lifestyle, of which he was aware, which could cause a tear of the annulus, was the nature of his work, which was heavy work.

41. Mr Phillips, who provided a medico-legal opinion, is a general surgeon with 30 years experience in orthopaedics. He agreed with Mr McCullough's statements that Mr Winsall's disc had been weakened, because he said a normal disc is not likely to rupture and prolapse with the simple burden of washing a car. He said a history of heavy work is quite consistent with such weakening. He explained (trans p92):

The heavy work can result in the gradual rupture of some of these fibres so that the actual structure of the disc becomes weak and a minor injury, even in some cases rolling over in bed, can finally rupture the disc. But it wouldn't have happened say if a person was doing some very unphysical work.

42. Mr Ferwerda put to Mr Phillips, as he had done to Mr McCullough, that the heavy physical work had not brought about the prolapse but had brought about "a defect which has made him susceptible to it" (trans p93). Mr Phillips agreed with that proposition and added that the prolapse was an indirect result of Mr Winsall's work because the heavy lifting caused the defect.

43. As to the role of the work duties, Mr Phillips said the damage to the disc would be mainly caused by heavy lifting but the way you lift also contributes. He said that working in a bent position for a prolonged period of time would also have an aggravating effect on a damaged disc.

44. Mr Shannon confirmed that his report of 17 May 2002 was correct. In that report he expressed the opinion that there was some contribution by Mr Winsall's employment to the prolapse. In evidence he explained that Mr Winsall's back was made vulnerable to the disc prolapse by the general heavy nature of his work. He said that one cannot put a time on the prolapse. He said the CT scan in July 2001 showed disc narrowing, therefore the lumbosacral disc was degenerate prior to the prolapse.

45. Mr Shannon said that the history of back pain in June 2001 was consistent with disc degenerative change in the lumbar spine and probably in the lumbosacral disc. He said the disc prolapse is part of the disc degeneration. He added "Disc prolapse is part of the degenerative process although not an inevitable part of the degenerative process" (trans. p140). He said Mr Winsall did not have an isolated traumatic event. He agreed with Mr Perry that Mr Winsall had minor tears in the annulus which, over a period of time, lead to a breaking down of the wall of the annulus and a leakage of the pulp of the disc, constituting the prolapse.

46. I find that Mr Winsall's heavy work at ADI caused disc degenerative change including lumbosacral disc degeneration, namely weakening of the annulus of the disc. Thus the heavy work caused the lumbosacral disc to become defective. The disc prolapse was a further stage in that degenerative process. I also find that the car washing was the final straw which caused the disc degeneration to progress from the stage of a weakened annulus with tears, to the more advanced stage of a prolapse. I find that the prolapse could not have occurred without a pre-existing defect of the disc, and that the defect resulted from the heavy work in which Mr Winsall had been engaged at ADI. I find that the normal action of washing a car would not have caused a prolapse in a healthy disc. Were it not for the defects in the annulus, caused by the heavy nature of Mr Winsall's employment, he would not have suffered a prolapse when he did. I find that, as Mr McCullough said, you need a pre-existing defect in the disc wall for a prolapse to occur. I find that the prolapse was contributed to in a material degree by Mr Winsall's employment.

APPLICATION OF THE RELEVANT LEGISLATIVE PROVISIONS

47. Mr Ferwerda submitted that as the condition causing incapacity and giving rise to a requirement for medical treatment was the L5-S1 disc prolapse, and as that probably occurred while Mr Winsall was on leave, he was not entitled to compensation for incapacity resulting from his disc prolapse. He acknowledged that the respondent's medical witness, Mr Shannon, had clearly expressed the opinion in his report and in his evidence that Mr Winsall's employment contributed to the disc degeneration which was the cause of the prolapse. But Mr Ferwerda submitted that authorities indicated that it was only if the disc prolapse was the "inevitable result" of the disc degeneration, that Mr Winsall was entitled to compensation for incapacity resulting from the prolapse. Mr Ferwerda did refer to certain authorities to which reference will be made in these reasons, but not to any passage on which he relied for that submission. Mr Perry simply relied on the fact that all the medical evidence pointed to a work contribution to the disc prolapse. He did not refer to the definition of "injury" in the Act at all.

48. It was somewhat difficult to understand the respondent's position in view of Mr Ferwerda's summary of the medical evidence. He said (trans. p161):

I think the doctors generally acknowledge - and I will take the Tribunal to specific references if necessary, but where there is a high susceptibility or an increase of susceptibility to prolapse as seems to be the general evidence here, then it can be a trivial trigger, to use the words of Mr McCullough, or a fairly innocuous physical activity that was used by another medical practitioner, that can cause the extrusion of the disc material through the outer ring.

49. In order to consider the issue it is necessary to set out the relevant legislative provisions. Section 14(1) of the Act provides for liability to pay compensation in respect of an injury which results in incapacity for work. It reads as follows:

14 (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

The term "injury" is defined in s 4(1) 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;

The term "disease" is also defined in s 4(1) as is the term "ailment". The definitions provide:

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;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

50. Mr Ferwerda submitted that, because the onset of pain and incapacity resulted from the prolapse and not from the disc degeneration it did not result from a disease, and because it commenced at home, it could not be said to be:

(b) an injury (other than a disease) ... arising out of, or in the course

of, the employee's employment ...

51. That submission overlooks the statutory meaning of the word "disease". It is helpful to look at the explanation of that term given by the Full Court of the Federal Court in Australian Postal Corporation v Burch (1998) 156 ALR 483. Mr Burch suffered a stroke at work. The evidence was that it was a result of a disease of the heart and/or cerebral blood vessels and that this was an ailment which was not contributed to in a material degree by employment. The Full Court explained at page 486 to 487:

The matter can be approached in this way. In lay terms injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury.

Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.

The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need not be a causal connection.

...

The definition of "injury" in s4(1) is consistent with this analysis, although some confusion is caused because the alternative meanings of "injury" are set out in a somewhat illogical sequence. It would make more sense if the first possible meaning of "injury" was injury (in the ordinary sense) arising out of or in the course of employment. If an employee satisfied this lower test of work connection there would be no need to go any further. However, it is we think reasonably clear that the expression "(other than a disease)" is inserted to make it clear that par (b) of the definition, which requires only the lower level of work connection, is referring to something different from disease (in the statutory sense) referred to in par (a) which requires the higher level of work connection (contribution to a material degree).

...

52. The Full Court also stated that an "injury" does not require "something external to the body." The Full Court referred to the comments of Dixon CJ in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 533 to the effect that a rupture of the gullet was "an injury by accident". Thus it is clear that Mr Winsall's disc prolapse could be characterised as an "injury". If so, although it did not arise in the course of employment, it would still be compensable if it arose out of employment. Such a finding would be open on the medical evidence.

53. However, the definition requires consideration of "disease" as referred to in paragraph (a) of the definition of injury in s 4(1) of the Act first, as it is only "an injury (other than a disease)" which is covered by paragraph (b).

54. As the Full Court explained in Burch, "disease" in "lay terms" is not the same concept as "disease (in the statutory sense)" The Tribunal in Re Williams and Australian and Overseas Telecommunications Corporation (1993) 17 AAR 308, at p319 explained:

Under the Act a disease is now by definition an injury and not a deemed injury. However, as already set out, an ailment or the aggravation of an ailment does not become a disease unless it was "contributed to in a material degree by the employee's employment". The 1988 Act has three separate entities - ailment, disease, and injury. Their relationship may be expressed by the following equations:

ailment + work contribution = disease

disease = injury

55. The definition of "ailment" covers "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". On the evidence, I have found that Mr Winsell's employment caused him to suffer disc degeneration which made his lumbosacral disc defective. The disc prolapse was part of the degenerative process. The car washing was the final straw which caused the disc degeneration to progress from the stage of a weakened annulus with tears, to the more advanced stage of a prolapse. I find that the lumbosacral disc prolapse is an "ailment" as defined in the Act. It is a "physical . . . ailment disorder, defect or morbid condition". I have found that the normal actions of washing a car would not have caused a prolapse in a healthy disc and that the prolapse could not have occurred from such activity, without a pre-existing defect in the disc wall.

56. I find that prolapse of the lumbosacral disc, which occurred while Mr Winsall was on leave, was due to the lumbosacral disc degeneration, consisting of the weakening of the annulus of the disc, which was caused by his employment. Thus the disc prolapse is part of the degenerative process affecting the disc. It is clearly an ailment as defined in s 4(1) of the Act, as it is a physical defect. On the medical evidence, including that of Mr Shannon, it was contributed to by Mr Winsall's employment. Thus, it is an "injury" as defined in s 4(1) of the Act, and Comcare is liable under s 14(1) to pay compensation in respect of that injury, if it results in incapacity for work.

57. Mr Ferwerda seemed at times to suggest that because the medical experts agreed that the disc prolapse was not an inevitable part of a degenerative process caused by Mr Winsall's employment, it was not compensable as a disease contributed to by employment. He claimed to rely for that submission on Federal Court authorities of Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302 and Burch. In Van Reesch, Northrop J said at pp307-8:

From a consideration of the reasons for judgment in Zickar,[Zickar v MGH Pastic Industries Pty Ltd (1996) 140 ALR 156] it follows that the first matter that should have been determined by the tribunal in the present case was whether personal injury arising out of or in the course of her employment, was caused to Mrs Van Reesch. It may be accepted that there was evidence before the tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a "right S1 nerve root compression due to extended nucleus L5-S1" arising out of or in the course of her employment with the commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and s 29 of the 1971 Act. But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury.

In the same way, the conclusion of Kirby J can be applied. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. (emphasis added)

The word "inevitability" was used by the Tribunal in paragraph 102 of the decision in Burch where, as quoted by the Federal Court at page 485, the Tribunal said:

I am further satisfied that the disease was not such on 29 September 1994 that, as a matter of inevitability, Mr Burch would experience complications.

58. However, it is important in looking at Van Reesch and Burch to bear in mind that in both those matters the underlying condition, or "disease (in the non-statutory sense)", could not be found to be compensable.

59. In Van Reesch the Tribunal had found that Mrs Van Reesch had made a "wilful and false representation" that she did not suffer from a back disease in a pre-employment medical questionnaire. Thus the Tribunal held that because of s 29(3) of the Compensation (Commonwealth Government Employees) Act 1971, Mrs Van Reesch was not entitled to compensation in respect of that disease. However her "wilful and false representation" did not exclude her from receiving compensation in respect of an "injury" in the "lay" sense. Thus she relied on "injury" not "disease".

60. In Burch, the underlying "ailment" or "disease (in the non-statutory sense)" was a disease of the heart and/or cerebral vessels which, on the medical evidence, had not been contributed to by employment. Thus, although it was an "ailment", it was not a "disease" in the statutory sense and so the stroke was not a compensable injury unless it could be characterised as an "injury (other than a disease)". It was in finding that the stroke was "an injury (other than a disease)", that Senior Member Gibbs pointed out that, as the complication of the stroke was something in addition to the underlying condition, it could be compensable in its own right as an "injury".

61. The reason in those cases why there was consideration of the concept of inevitability was that in the circumstances, although the "ailment" or underlying "disease (in the lay sense)" was not compensable, the facts that the prolapse in Van Reesch, and the stroke in Burch may have arisen "out of or in the course of employment" and were not an "inevitable" part of the ailment, were relevant in deciding whether they could be characterised as an "injury (other than a disease)", and thus be compensable under the Act. The Act does not provide that compensation is payable only for inevitable consequences of a "disease". The course of a "disease" or "ailment" varies from individual to individual. All that the Act requires for an ailment to be a compensable "injury", is that the "ailment" be "contributed to in a material degree by the employee's employment". If that test is satisfied the "ailment" is a "disease" and a compensable "injury" as defined in part (a) of the definition of "injury" in s 4(1) of the Act.

62. It is significant that Northrop J said in Van Reesch that, "A worker is entitled to succeed if he or she can bring a claim within either head of recovery". As the Full Court said in Burch at page 486, sometimes the characterisation of a condition as an injury or a disease, in the non-statutory sense, may be problematic. In those cases it is appropriate in dealing with beneficial legislation to use the characterisation which is more helpful to an injured worker.

63. The approach that "injury" and "disease" are not mutually exclusive and that an applicant can choose on which to rely, was endorsed by the Full Court in Burch. It quoted with approval, at pp487-8, from the decision of the Full Court of the Supreme Court of Victoria in the matter of Accident Compensation v McIntosh [1991] 2 VR 253 as follows:

In Accident Compensation Commission v McIntosh [1991] 2 VR 253 there is an extensive discussion of the concept of accident (in the ordinary sense) by Murphy J, a judge of great experience in workers' compensation. In a judgment in which Crockett and Cummins JJ concurred his Honour said (at 263):

Long before the inclusion of these references to "disease" in the definition of "injury" [in the New South Wales legislation considered in O'Neill v Lumbey (1987) 11 NSWLR 640], claims for coronary occlusions, cerebral haemorrhage, ruptured aneurysms, aorta, oesophagus etc had commonly been made and had succeeded if occurring during a protected period, on the basis that they were "injury by accident", being clearly a physical injury -- and accidental -- being unexpected by the worker at the time that they occurred: cf Clover, Clayton & Co Ltd v Hughes [1910] AC 242.

His Honour went on to observe (at 264):

It is a remarkable development that today it is being suggested that in an Act which has consistently demonstrated a widening of cover to a worker (being in the nature of social insurance or security) the inclusion in the definition of "injury" of references to disease contributed to by the employment has prompted argument that mishaps, formerly accepted without debate to be "injury", are no longer to be so considered, but are rather to be characterised as the very disease to which they are due, and excluded, unless work contributes to them [emphasis in original].

The Full Court commented:

McIntosh was approved by Toohey, McHugh and Gummow JJ who were members of the majority in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; at 335; 140 ALR 156. (Of course under the Act it is only necessary to show injury (in the ordinary sense), not injury by accident: Zickar at CLR 319.)

64. Mr Ferwerda acknowledged that in Burch and in Comcare v Laidlaw [1999] FCA 40 the Federal Court had held that "disease" and "injury" are not mutually exclusive bases for recovery of compensation. In Laidlaw, Finn J said:

1 Such is the history of this matter that one of the two basic issues that Comcare, the applicant in this appeal from the Administrative Appeals Tribunal ("the Tribunal"), sought to have resolved, has since been determined by the decision of the Full Court of this Court in Australian Postal Corporation v Burch (1998) 156 ALR 483. Comcare had wished to contend that, for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"), "disease" and "injury" provide mutually exclusive bases for the recovery of compensation for incapacity for work. By "mutually exclusive" I understood Comcare to mean that there could be no possible overlap between the two so that a condition that satisfied the definition of a "disease" for example was not capable as well of founding an "injury (other than disease)" claim. The decision in Burch's case is inconsistent with that contention, as are decisions of this and other courts on relevantly similar workers' compensation legislation: see eg Petkoska v Kennedy Cleaning Services Pty Ltd [1998] FCA 1289 and the cases referred to therein. I merely note that in the present matter Comcare has again sought formally to rely upon this contention while accepting that it must be unavailing.

65. In spite of that very clear statement, Mr Ferwerda submitted more than once, that I would have to find that the prolapse was an injury (see trans. pp154, 163, 165-166). He explained his submission when he said, at trans. p163,:

And if the Tribunal says yes, that defect was caused by physical stressors and strains at work, we say well his - there is no connection with work any more when a not inevitable event happens during annual leave that produced the incapacity and the need for medical treatment.

I find nothing in the authorities which establishes that a work connection is broken "when a not inevitable event happens during annual leave". Where employment has contributed to the ailment constituted by that event, the ensuing incapacity still results from the "disease (in the statutory sense)".

66. I find that the prolapse is an ailment which was contributed to by employment. Thus it satisfies the statutory definition of a "disease". It is therefore an "injury" as defined in paragraph (a) of the definition of injury in s 4(1) of the Act. Therefore paragraph (b) of that definition has no relevance. It only applies to "an injury, (other than a disease)".

67. The decision under review will be set aside. In substitution I will decide that Mr Winsall is entitled to compensation in respect of the disc prolapse for which he first sought medical treatment in July 2001.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: G.A. Carney

Associate

Date/s of Hearing 27, 28 November & 11 December 2002

Date of Decision 17 January 2003

Counsel for the Applicant Mr J Perry

Solicitor for the Applicant Petersen Westbrook Cameron

Counsel for the Respondent Mr J Ferwerda

Solicitor for the Respondent Hunt and Hunt