Tran and Comcare [2010] AATA 719 (22 September 2010)

Last Updated: 23 September 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1854

GENERAL ADMINISTRATION DIVISION		)
	Re		IVY TRAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President D G Jarvis

Date 22 September 2010

Place Adelaide

Decision

The tribunal sets aside the decision under review, and (a) in substitution for that decision, decides that the respondent is liable to pay compensation for aggravation of the applicant’s pre-existing degenerated cervical spine; (b) remits the matter to the respondent for reconsideration in accordance with these reasons; (c) reserves liberty to apply within fourteen days in relation to the costs of the proceedings; and (d) orders that in the absence of any such application the respondent pay the costs of the proceedings.

D G Jarvis
(Signed)
Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – liability accepted for aggravation of degeneration of cervical intervertebral disc – subsequent determination that applicant no longer entitled to compensation – held that continuing aggravation did not require separate claims for compensation – held that AAT can consider psychological factors exacerbating pain notwithstanding absence of claim or prior determination by Comcare re psychological injury – evidentiary onus of adducing evidence – relevance of events subsequent to date of reviewable decision – held that sufficient evidence had been adduced to warrant cancelling entitlement to compensation – held that Comcare liable for aggravation of pre-existing degenerated spine causing increased pain.

PRACTICE AND PROCEDURE – Jurisdiction – Compensation – Commonwealth employee – liability accepted for aggravation of degeneration of cervical intervertebral disc – subsequent determination that applicant no longer entitled to compensation – evidence of different injury, namely aggravation of pre-existing degenerated spine causing increased pain – held that continuing aggravation did not require separate claims for compensation – held that AAT can consider psychological factors exacerbating pain notwithstanding absence of claim or prior determination by Comcare re psychological injury – evidentiary onus of adducing evidence – relevance of events subsequent to date of reviewable decision.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss4(1) and 14

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147

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

Brackenreg v Comcare [2010] FCA 724

Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426

Comcare v Nichols [1999] FCA 209

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

Comcare v O’Dea (1997) 26 AAR 252

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191

Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60

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

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342

Holt v Comcare [2003] FCAFC 221; (2003) 130 FCR 576

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Re Cavanagh and Comcare (2008) 106 ALD 143

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316

Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464

REASONS FOR DECISION

22 September 2010

Deputy President D G Jarvis

1. The applicant, Ivy Tran, has worked for Medicare Australia as a customer service officer since 1985. On 16 March 2007 she lodged a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “degenerated cervical spine. Impingement of left C4, right C5-C6 nerve”. She claimed that the parts of her body that had been most affected by her injury or illness were her neck, shoulder and right arm, and that what had led to her injury was repetitive work with her computer and her right hand.
2. Comcare accepted liability on 28 April 2007 for an “aggravation of degeneration of cervical intervertebral disc” (the accepted condition) with a date of injury of 7 April 2007. Comcare subsequently paid compensation for medical expenses and ongoing incapacity pursuant to ss 16 and 19 of the Act up to 2 December 2008 in respect of the accepted condition.
3. However, on 2 December 2008, Comcare decided that Ms Tran was no longer entitled to compensation pursuant to ss 16 and 19 for her accepted condition on the basis that that condition was no longer significantly contributed to by her employment with Medicare. That decision was subsequently affirmed by Comcare on 31 March 2009 in a reviewable decision made at her request on reconsideration. Ms Tran has applied to this tribunal for review of that reviewable decision.

ISSUES BEFORE THE TRIBUNAL

4. The issue before the tribunal is whether Ms Tran has been entitled to compensation pursuant to ss 16 and 19 of the Act during the whole or any part of the period from 2 December 2008 to the date of this decision.
5. In the circumstances of the present matter (being circumstances that appear to arise not uncommonly in matters of this kind), it is fundamental to the determination of the application before me to decide whether Comcare is liable for compensation on either of the following two grounds, namely:

(a) the issue that Comcare considered in this case, that is whether on the evidence available as at the date of the reviewable decision to cancel the entitlement to compensation, which included later medical evidence not available when liability was originally accepted, Ms Tran’s accepted condition was no longer contributed to to a significant degree (or more correctly, as I will explain below, in a material degree by her employment); and

(b) a further ground (which Comcare does not appear to have considered), namely whether on the evidence available as at the date of the reviewable decision, including later medical evidence available at the date of the reviewable decision, Ms Tran was incapacitated for work in a material degree from a further injury that was identified by such later medical evidence. That further injury was an aggravation, in the form of increased pain, of an underlying condition, being a degenerated cervical spine, which underlying condition is constitutional in nature and not contributed to by her employment.

6. In addition to the issues referred to in paragraph 5 above, a number of subsidiary issues are also raised. These include the following:

(a) whether in considering the injury which Ms Tran is asserting I have jurisdiction to consider psychological factors in the absence of first, a claim for compensation for such factors, and second, a prior determination by Comcare of liability for such factors;

(b) whether the claimed aggravation consisted of a series of episodes of increased pain, requiring a separate claim for compensation for each such episode;

(c) whether I can consider events subsequent to the decision by Comcare that Ms Tran was no longer entitled to compensation for the accepted condition in order to determine the two issues referred to in paragraph 5 above;

(d) which party bears the evidentiary onus of adducing evidence in relation to each of the issues referred to in paragraph 5 above; and

(e) whether Comcare has adduced sufficient evidence of changed circumstances to warrant cancelling Ms Tran’s entitlement to compensation.

7. In summary, and on my analysis of a number of authorities, to which I will refer below, I have concluded that when a decision-maker is considering whether an applicant has ceased to be entitled to compensation for an accepted injury, it is necessary to review the then current medical and other evidence as to the applicant’s condition. If it appears from that evidence that the diagnosis of the injury from which the applicant is suffering is an injury different from the condition for which liability has been accepted, it will be necessary for the decision-maker to consider not only whether the applicant has ceased to be entitled to compensation from the accepted condition, but also whether the original claim for compensation included, or was made in terms wide enough to have constituted, a claim for compensation for that different injury. If so, it will be necessary not only to consider whether the applicant is no longer entitled to compensation for the accepted condition, but also whether he or she is entitled to compensation for the different injury. For this purpose, evidence of events subsequent to the original decision and up to the date of the new decision (or in the event of an application to this tribunal, as at the date of the tribunal’s decision) may be taken into account. However, for the purpose of reviewing a cancellation decision, that is, a decision to the effect that the applicant is no longer entitled to compensation for an accepted condition, the tribunal should consider only events as at the date of the reviewable decision (except to the extent that subsequent events might inform the state of affairs that existed as at the date of that reviewable decision).
8. In her Statement of Facts, Issues and Contentions, Ms Tran also claimed compensation for permanent impairment and household assistance pursuant to ss 24, 27 and 29 of the Act. However, no reviewable decision has been made by Comcare in relation to any claim for compensation pursuant to those provisions. I accordingly have no jurisdiction to determine her entitlement to compensation pursuant to those provisions: Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.

BACKGROUND FACTS

9. The following background facts are not in contention, and are derived from the evidence of Ms Tran and the documentary material before me. I find that Ms Tran gave a careful and truthful account of her employment history and her symptoms, and I accept her evidence.
10. Ms Tran is aged 46. She was born in Vietnam and left there in 1980 by boat. She was subsequently processed as a refugee in Malaysia, and came to Australia, arriving here in December that year, when she was 16. She had very little English when she arrived. She went to school in Adelaide for three years, and completed her matriculation.
11. After completing one semester of a tertiary course in business administration, she obtained employment as a teller with a building society. With the approval of her manager, she assisted Chinese-speaking customers of Medicare, which occupied adjoining premises. After working at the building society for 11 months she accepted an offer of a position with Medicare.
12. After a short period of training, Ms Tran commenced work processing claims for customers. This involved entering information from claim forms on to a computer, using a keyboard, checking the customer’s entitlement, and then when (as commonly occurred) cash was requested, taking the amount involved from a drawer and handing it to customers.
13. Ms Tran was not a touch-typist, and English is not her first language. She had to constantly look from her keyboard to her screen and to the customer’s form to ensure the accuracy of her entries. She also dealt with a variety of other kinds of claims, and also processed membership registrations. A daily target was set for the data processing work, and she had to work very hard to meet her target as she was not a fast typist.

Symptoms prior to July 2006

14. In August 1996, while she was performing this work, she experienced neck, left shoulder pain and pins and needles in her right arm and hand. She took a few days’ sick leave and underwent physiotherapy, but did not lodge a claim for compensation. She said that her left shoulder pain was attributed to poor ergonomic furniture and posture and constantly opening and closing her cash drawer, and the neck pain and pins and needles were attributed to repetitive keying and looking up and down from her screen to claim documents. She was placed on restricted duties for three weeks, with reduced data keying and an exemption from her target. She also did not have any obligation to serve customers, thus avoiding having to open and close her cash drawer. She was also advised to take regular breaks.
15. However, as her condition was not improving and she did not want to lose all of her sick leave, she applied to work for only three days a week from 30 September 1996 to 27 June 1997 “to self manage recurring pain and give [her] body more rest.” (exhibit A2, page 4). She also said that part of the reason for this was her family responsibilities because her daughter was still young, but she always felt sick because of her aches and pains.
16. After that, she had two days’ sick leave in October 2000 and August 2001, for neck, shoulder and arm pain. In February 2002 she applied to work at reduced hours, and worked four days a week for 11 months. She said this was due to constant neck and shoulder pain. In September 2002, she claimed compensation for neck and shoulder pain, and her claim was accepted. She underwent chiropractic treatment, physiotherapy, massage and acupuncture treatment.
17. In February 2004, due to continuing neck and shoulder pain, she applied for reduced working hours for a third time, to four days per week. This was approved, and that arrangement has continued since then, but has required approval each year by Medicare.
18. After that, she again had periods of sick leave, including a period from March to July 2006, which she said was due to constant severe neck and shoulder pain. She said that during this period her pain improved, because she was not looking up and down repetitively, and did not have to look at her screen.
19. In the period from November 1997 until July 2006, Ms Tran had been moved from branch offices to other offices or sections within Medicare. Her work continued to involve screen-based processing work, as well as other duties which she found were producing neck and shoulder pain.

Symptoms after July 2006

20. From July 2006 until March 2007 she was transferred to the Medicare Complex Inquiry Team. Her duties included assessing and processing complex and lengthy Medicare patient claims, electronic funds transfer patient claims, EDI claims and manual bulk bill claims. She said that during this period she experienced increasing pain at work in her neck, shoulder and right arm. She had to do a lot of processing, and found it harder and harder to cope. Her pain increased during her working days from Mondays until Thursdays, but she found that while her pain persisted during her days off on Fridays, Saturdays and Sundays, it would gradually reduce over that period. She did not do a lot on her days off. Her partner performed house-hold chores such as vacuuming, cleaning, cooking and shopping, but with some assistance with some chores from Ms Tran.
21. On 7 March 2007, Ms Tran saw her general practitioner, Dr Cheung, and he certified that she was unfit for work, initially from 7 to 9 March 2007, due to “repetitive work [with] computer & repetitive work [with] hand” (exhibit R1, T3, page 13).
22. After that Medicare arranged a rehabilitation assessment, and a graduated return-to-work program was developed. She returned to work on 1 April 2007 for four hours per day, from Mondays to Thursdays (exhibit R1, T5, pages 99 – 102) until March 2008, when she reduced her hours to three and a half hours per day, Mondays to Thursdays. She has continued to work those restricted hours.
23. She said that her pain is reduced because she is spending less time at work, but when she is working her pain is intense and still very substantial. She said that when she comes home from work she needs to lie down very quickly and rest almost every day. On Fridays, Saturdays and Sundays her pain subsides to varying degrees; she said it is very manageable, she gets a lot of rest at home, but a niggling pain is always there. She takes Osteo-Panadol, and when she returned to work in April 2007 until about six months ago, she would take Panadol Forte before work, but not on her days off. Over the last six months, she has only taken Panadol Forte when required. She does not take Panadol Forte on her days off.
24. In July 2008 her duties were changed to processing on-line claims, cancelling and re-issuing cheques, processing returned-to-sender cheques, and being rostered to answer internal and external complex queries on the telephone. Her target has been reduced from reissuing 30 lost and cancelled cheques to 10, and this has assisted her.
25. Ms Tran acknowledged that Medicare have been supportive and have provided various items of equipment to help her, although she also said that she has had to wait some time before some of her requests have been complied with, and some of the equipment she has received is not altogether satisfactory. She tendered photographs which explain her evidence as to the relative location of the tilt boards, the keyboard of her computer, the screen and the pamphlets and manuals to which she refers in the course of her work. Ms Tran gave evidence that the changes to her work station have not eliminated the pain that she experiences during her time at work.
26. She also said in effect that her colleagues at work no longer treated her as they did before, and people no longer talked to her or asked her things as they had previously, and did not appear to understand that she was restricted in the duties she could perform. She said that she finds this troubling.
27. In cross-examination, she said that her pain was aggravated by repetitive neck movements, when she was looking up and down using her keyboard and the screen. She also said that looking down or moving her neck forward caused pain. She described many restrictions on activities apart from her work. She said she was unable to do mopping, vacuuming, cooking or slicing food, as these activities involved looking down. She has reduced the amount of driving she does, because she has pain after driving for about 15 to 20 minutes, and she tries to avoid driving for more than 15 minutes. She said that she is constrained by stiffness of the neck and by having to frequently turn her head. She is unable to do her shopping, except to pick up a limited number of small items which are not heavy. She said that she is unable to lift heavy things or hold objects for a long time, as these activities cause pain. She avoids cooking, and does not do the ironing. She also said that if she has to sit at home for more than 15 or 30 minutes she has to stand up. For this reason she does not watch television programs for more than 30 minutes. When she notices increased pain and stiffness while watching television, she stands up and walks to relieve her symptoms.

LEGISLATIVE SCHEME

28. Section 14(1) of the Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations. It provides 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.”

29. In order for liability to arise the requisite connection between the claimed medical condition and employment is provided for indirectly, via the definition of “injury” in s 4(1) of the Act. That word is defined relevantly as follows:

“injury means:

(a) a disease suffered by an employee; or

...
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.”

30. It was accepted by counsel for Comcare, Mr Krupka, that Ms Tran was taken to have sustained the injury for which she is claiming compensation prior to the 2007 amendments to the Act. Under the Act as in force prior to those amendments, the word “disease” was defined as follows:

“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”

31. The word “ailment” is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
32. Section 7(4) of the Act provides for when an employee is taken to have sustained an injury, being a disease, or an aggravation of a disease. It provides relevantly as follows:

“7(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”

Medical evidence

33. Ms Tran called Dr A C K Thoo, an occupational physician, who has seen her about 20 to 30 times since 2007 on referral from her general practitioner, and also Messrs P Carney, a neurosurgeon, and A J Munyard, an orthopaedic surgeon, who each provided a medico-legal assessment at the request of her solicitors. She also called her former general practitioner, Dr K C Cheung, and her current general practitioner, Dr K Y Ting, who has been seeing her for her neck and shoulder pain since at least January 2008. Comcare called Dr Richard Gibberd, a consultant orthopaedic surgeon, whom Comcare retained to provide a medico-legal assessment.
34. The history obtained by the doctors who gave evidence was largely consistent, and was also consistent with Ms Tran’s account of the development of the pain which she attributes to her activities at work. Messrs Carney, Munyard and Dr Gibberd, and Dr Thoo in a medical report that he provided before the hearing, all agreed that Ms Tran has degeneration of the cervical spine that was not caused by her employment, and that her employment has not aggravated or exacerbated this underlying condition. I accept their opinions to this effect. In his evidence, Dr Thoo said that notwithstanding what he had said to the contrary in an earlier report, Ms Tran’s employment might have accelerated the degenerative change to her cervical spine to an indeterminate extent, but I do not accept that. I prefer the views expressed by the other medical witnesses, who said that they were unaware of any published papers that link clerical or computer duties with a higher than normal incidence of cervical spine degeneration, and that that condition is constitutional in nature, and commonly caused by the ageing process, genetics or trauma.
35. All of the medical witnesses also considered that there were non-organic factors in Ms Tran’s presentation. These factors included non-dermatomal findings on sensory testing, and a weakness in strength testing of the right triceps muscle. In addition, Dr Gibberd noted differences between her range of movement of the neck on examination, compared with his observations of movement of her neck afterwards.
36. In his first report dated 23 June 2009, Mr Carney noted that on examination, Ms Tran had a “somewhat flattened affect and appeared somewhat depressed” (exhibit A1, page 11). In a subsequent report of 15 September 2009, Mr Carney referred to a letter from the Australian Government Solicitor to Dr Gibberd. According to Mr Carney’s report, this letter stated:

“Dr Dhillon [a psychiatrist] diagnosed her [Ms Tran] with a major depressive disorder with melancholic features of moderate severity, and also noted her anxious temperament, low self esteem and dependent personality features. He considered that potentially issues of loss involving her loss of role as a mother (her daughter being a mature age) and the emergence of her pain symptoms in the context of her work, may have triggered a major depressive disorder. Further, Dr Dhillon considered that this condition was impacting on her pain experience which possibly was excessive compared to the level of organicity, but indicated it was hard to gauge whether she had a pain disorder.” (exhibit A1, page 22)

37. Neither party tendered a copy of the report from Dr Dhillon to which the Australian Government Solicitor referred, or any other evidence from a psychiatrist. However, Dr Ting considered that Ms Tran was suffering from long-standing depression, and he referred her to Dr Dhillon. He later prescribed three different kinds of anti-depressant medications, but they produced side effects and Ms Tran stopped taking them. The references by Doctors Carney, Munyard and Gibberd to non-organic or psychosocial factors are consistent with the existence of a depressive condition. Doctors Carney and Munyard gave evidence as to the relevance of that condition to her presentation and to her experience of pain. In his above report dated 15 September 2009, Mr Carney said:

“The question of pain is made even more difficult if it is accepted that she has a major depressive disorder in that her appreciation of pain is likely to be significant [sic] influenced by her psychiatric state. This is consistent with the findings of non-organic responses on physical examination.
In ascribing a disability of 25% of cervical function I am not ascribing this to her degenerative condition through her work but am estimating that she has in very rough terms, a problem of 12½% cervical spine dysfunction due to degenerative change with exacerbation by pain in the course of her work approximately doubling this level of ascribed disability.
The additional psychiatric confirmation that she has major depression means that this also will be a significant factor in her appreciation of pain and it would be extremely difficult to state how much pain she would have absent the depression, except to say that it almost certainly would be considerably less.”

38. Mr Munyard had said in his report of 22 December 2009 (exhibit A1, page 28) that there might be “other psychological factors at play in her presentation” and wondered whether her pain was causing some of her “alleged depression or similar”. He suggested that assessment by a psychiatrist would be of benefit in assessing her problem. He also said in his evidence that Ms Tran had a “flat affect” when he examined her (transcript 9.06.10, page 140, line 14).
39. He was told in the course of cross-examination that a psychiatrist had made the following diagnosis:

“Major depressive disorder with melancholic features, anxious temperament, low self-esteem. Considered she had some dependent personality features. I suspect her role as a mother since her daughter has now reached mature age has some effect on her.” (transcript 9.06.10, page 152, lines 38 – 41)

This explanation did not include the further somewhat unclear reference in the letter to Dr Gibberd from the Australian Government Solicitor to the “emergence of her pain symptoms in the context of her work” (see paragraph 36 above), but Mr Munyard then said that he was “not surprised” that her presentation was in excess of the organic evidence (transcript 9.06.10, page 153, line 24), and added that this would change her pain and presentation. He said:

“I think that she’s got a neck that’s sore, and I think there are certain things that she does at work that make it sorer, and I – but I think compounding that is the fact that she has got this major depressive illness, which mucks things up, changes her perception of pain so that she feels that she is worse than she is.” (transcript 9.06.10, page 157, lines 38 – 41)

He added in effect that it was not possible to separate the causes of her pain because there was one problem, and the causes were intermixed. He said:

“I think the pain is probably making her depression worse. The depression is worse, the pain is worse. The worse the depression, the worse the pain. It’s just a vicious cycle. One is feeding the other.” (transcript 9.6.10, page 158, lines 5 – 8)

40. In a report to Comcare dated 11 August 2008, Dr Gibberd considered that Ms Tran was suffering from “cervical degenerative disease which has been significantly modified by psychosocial factors” and that the cause was “constitutional in nature and unrelated to her work” (exhibit R1, T34, pages 210-211). He thought that from an orthopaedic point of view, Ms Tran was fit to undertake full duties on a full-time basis. He added that psychosocial factors were the dominant cause of her continuing pain, and confirmed this opinion in a report dated 11 August 2009. Whilst he acknowledged in the course of his evidence that it was not within his expertise to determine the cause of the psychosocial aspects of her presentation, and that a number of factors might account for those aspects, he considered that the most likely explanation was that Ms Tran was deliberately exaggerating her symptoms.
41. Dr Cheung gave evidence that he had been Ms Tran’s general practitioner from 1986 until just after he received a CT scan report of her cervical spine in March 2007, but after that, he did not continue to see her or treat her in connection with her spinal condition. In a report dated 6 April 2007 to Comcare, Dr Cheung said that in his opinion, Ms Tran’s then current condition was an aggravation of her degenerated cervical spine. The letter from Comcare requesting the report included the question: “Any other factors that may have contributed to Ms Tran’s condition that are not related to her employment. If so, please advise.” (exhibit R1, T6, page 106), and Dr Cheung said in his report:

“She is an anxious person which could affect her recovery. A psychological assessment may be required if her progress shows any psychological overlay.” (exhibit R1, T7, page 108).

42. I prefer the evidence of Messrs Carney and Munyard and Dr Thoo to the evidence of Dr Gibberd to the extent that Dr Gibberd’s evidence differs from the views of those doctors, except for the specific matter where I have rejected Dr Thoo’s opinion, as explained in paragraph 34 above. Dr Gibberd only saw Ms Tran on two occasions, and it is apparent from her cross-examination that Ms Tran felt intimidated by him (see transcript, 10.06.10, page 235, lines 9 – 28) and it is likely this affected her presentation in some respects. Further, in providing his opinion that Ms Tran was capable of undertaking full duties on a full-time basis, I think that Dr Gibberd did not take sufficiently into account the particular difficulties which Ms Tran experienced in performing her work, or the long pattern of symptoms and difficulties which she has experienced from her employment over the period since 1996, notwithstanding periods of reduced working hours and changes to her duties. This is, I think, apparent from Dr Gibberd’s comment in his later report that it “may be advisable to restrict some of [Ms Tran’s] keyboarding activities” if she were to increase her current 3.5 hours of work per day (emphasis added, exhibit R1, T34, page 213). In addition, in view of the importance that he placed on psychosocial factors in formulating his opinion, it is somewhat curious that in his later report of 11 August 2009, he did not refer to the diagnosis of depression made by Dr Dhillon, notwithstanding the reference to this matter in the letter from the Australian Government Solicitor requesting his further report. I must, of course, assess Ms Tran’s working capacity in the light of all of the evidence before me, and not only from an orthopaedic point of view, and this was the approach which Mr Munyard, in particular, adopted.

Parties’ contentions

43. Counsel for Ms Tran, Mr Quinn, contended that she has an underlying condition of degeneration of her cervical spine, which constitutes a disease, and so an injury within the meaning of the Act; that she is suffering increased symptoms, namely pain, tenderness and restricted movement in consequence of her degenerated cervical spine; that her increased pain constitutes an aggravation of an injury within the meaning of the Act; and that that aggravation has been contributed to in a material degree by her employment by Medicare. Mr Quinn further submitted, on the authority of Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296, that Comcare had not produced any sufficient evidence to show that the condition, on which the claim was accepted, had changed in any material way that might support its decision to cancel her entitlement to compensation.
44. Mr Krupka submitted on behalf of Comcare that the underlying degeneration of Ms Tran’s cervical spine was due to constitutional factors, and had not been caused by her work. He further submitted that it was this condition and its natural progression that was causing her symptoms, and that the mixture of organic and non-organic factors meant that Ms Tran was virtually an invalid, with almost any activity, whether work-related or not, causing her pain. He also referred to evidence as to the steps that had been taken by Medicare to modify her work environment, and submitted that her work environment was more benign than when she was at home. In addition, he referred to Dr Thoo’s opinion that there was nothing else that he could think of that could be done to her workplace to improve it, and that there were no industrial issues or conflicts. He also referred to Mr Carney’s responses in cross-examination to the same effect, and to evidence that Ms Tran’s work, and moving her neck, might be beneficial to her.
45. Mr Krupka further pointed out that the applicant had not adduced any psychiatric evidence to establish that there was a nexus between the non-organic aspects of the applicant’s symptoms and her employment. He also pointed out that there was no evidence of a specific work-related incident that caused her underlying condition or pain, and submitted that Ms Tran was relying upon a series of temporary aggravations that she experienced each time she attended work. He submitted that such episodes of aggravation were not compensable, or if (contrary to his argument) they were compensable, it would be necessary for her to lodge a fresh claim for compensation for each such recurrent episodic short-term aggravation. In support of this submission he referred to the evidence of Dr Gibberd to the effect that any aggravation of symptoms would be of a short duration, and certainly not more than a week at most.
46. Finally, Mr Krupka contended that as the reviewable decision involved the cancellation of the previously accepted entitlement to compensation, the tribunal was required to look at the position as at the date of cancellation, and to decide whether that decision was correct having regard to the circumstances that existed up to the date of that decision. He submitted that the tribunal could not consider whether Ms Tran had a continuing entitlement to compensation after that date, and that any entitlement to compensation after the cancellation decision would require a new claim to be made, in accordance with s 54 of the Act. In support of his submission, he relied upon Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

CONSIDERATION

47. Certain of the contentions made by counsel for Comcare raise issues of jurisdiction. I will deal with these first.

Can the tribunal consider psychological factors in the absence of a claim for a psychological condition?

48. As mentioned above, I accept that the underlying degeneration of Ms Tran’s cervical spine was not caused or aggravated by her employment. It is also correct that no claim has been made for a psychiatric condition. But the effect of the claim is that Ms Tran has suffered an injury, namely increased pain brought about by her employment. It has been held that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place: see Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191 at 201.
49. If I accept that Ms Tran has been experiencing increased pain from her degenerated cervical spine, that increased pain would amount to an “ailment” within the definition of that word in s 4(1) of the Act, and so would constitute a “disease” and an “injury” within the meaning of those words in s 4(1). The question that I must determine is whether this asserted “injury” was materially contributed to by her employment, not whether any psychological condition from which she is suffering, and which is itself a factor in her injury, was materially contributed to by her employment (see the analysis by the High Court of the correct question for determination in Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115). Of course, the existence of any underlying psychological condition, and its cause, might be relevant to the question for determination, as well as to the degree to which employment contributed to the asserted injury (being an aggravation of a pre-existing condition in the form of increased pain), and also to the extent of the incapacity, and whether incapacity could be reduced by undertaking appropriate treatment. However, Ms Tran has not made a claim for compensation for any such underlying psychological condition, and in my opinion the absence of any such claim does not deprive me of jurisdiction to consider her claim for the injury she is asserting, or to consider whether she was no longer incapacitated by that injury, so that she is no longer entitled to compensation under the Act.
50. I think that this conclusion is consistent with the decision in Re Cavanagh and Comcare (2008) 106 ALD 143. In that case, the tribunal, of which I was the presiding member, considered a claim for arachnoiditis and incontinence arising from an accepted back condition, and found that the applicant suffered from a conversion disorder that exacerbated the effects of the arachnoiditis. In considering whether the tribunal had jurisdiction to determine a claim for a permanent impairment which referred to a diagnosis of arachnoiditis but not of a conversion disorder, the tribunal concluded that it had jurisdiction to take into account any permanent impairment that might result from a conversion disorder notwithstanding that that issue had not been the subject of Comcare’s reviewable decision. The tribunal said, at [32] and [33]:

“32. We consider that this view of the tribunal’s jurisdiction is consistent with such cases as Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213; 34 ALD 72 (Alvaro) and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; 211 ALR 261; 80 ALD 534; [2004] FCAFC 248 at [28] ( Zubair), which indicate that jurisdiction is not affected by any invalidity in the decisions of primary or second tier decision-makers, or by such matters as a failure to comply with a procedural requirement, or committing an error of law either in determining the applicable law or in applying it. We also regard our view as consistent with what has been referred to as the inquisitorial function of this tribunal in cases such as Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879 at [47] – [51], where the court said in relation to a claim for benefits under the Veterans’ Entitlements Act 1986 (Cth), that the tribunal “is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant.” The court did not suggest in that case that this tribunal’s jurisdiction was fettered by any failure on the part of the Commission or the Veterans’ Review Board to consider an alternative diagnosis which had not been claimed by the applicant.

33. 33. In addition, it seems to us that practical difficulties would arise if a narrow view were to be taken of the jurisdiction of this tribunal to assess and take into account the overall condition of an employee when reviewing a decision in relation to a claim for permanent impairment. As a general rule the tribunal is in a much better position than the person who made the reviewable decision to make such an assessment. The tribunal is usually constituted to include an experienced medical practitioner; it conducts a hearing de novo, the focus of which is not whether the reviewable decision was correct, but to arrive for itself at the correct or preferable decision; the tribunal has the advantage of hearing detailed oral evidence that has been tested in cross-examination; and each party is given an opportunity to identify and make submissions concerning issues that arise before and during the hearing. It is not uncommon (as occurred in the present proceedings) for one or more new issues or alternative diagnoses to be raised and for these to be fully investigated during the hearing in order to determine their relevance to other issues or diagnoses that were taken into account in the decision under review. If an overly restrictive view were taken of this tribunal’s jurisdiction to determine liability for some similar or kindred aspect of the employee’s condition relevant to a claim for permanent impairment, that would lead to assessments of permanent impairment being made on a piece-meal basis, and would protract the administrative decision-making process.”
    
51. The present case is, of course, distinguishable from Cavanagh (supra) because it does not entail reviewing a claim for permanent impairment. However, I consider that the above approach applies in the present case, and that it is consistent with Madgwick J’s judgment in Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147, where his Honour recognised at [19] and [21] that it was “a legally impermissible mode of interpretation, to hold the applicant irretrievably” to the original diagnosis of his condition when “(n)othing is more common than that medical diagnoses change and evolve, or are or become various.”
52. Ms Tran’s claim was based on increased symptoms from her degenerated spine. As mentioned in paragraph 41 above, Dr Cheung had signalled in his report of 6 April 2007 that her anxiety might affect her recovery, and might necessitate a psychological assessment if her progress showed any psychological overlay. Comcare was empowered under s 62 of the Act to reconsider its acceptance of the claim of its own motion. In fact it did so, and that led to the reviewable decision in issue in these proceedings to the effect that Ms Tran’s condition was no longer significantly contributed to by her employment. By the time it made that decision, Comcare had received the first report from Dr Gibberd, in which he advised that in his opinion, psychosocial factors were the predominant cause of Ms Tran’s continuing pain. In these circumstances, and bearing in mind that the essence of the claim is for employment-related aggravation of a pre-existing condition, I consider that there was no need for Ms Tran to have lodged a separate claim for a psychological condition, and that this tribunal has jurisdiction to consider the relevance of any psychological factors in order to review the decision that is the subject of these proceedings.

Was it necessary for Ms Tran to have lodged a fresh claim for compensation for each episode of increased pain?

53. The claim form lodged in March 2007, the earlier claim form therein referred to that was lodged in 2002, Ms Tran’s evidence as to the history of her injury and symptoms, and the history reported by the various medical witnesses are largely consistent. On my understanding of her assertions, Ms Tran claims that her work activities during her part-time work from Mondays to Fridays aggravate her pre-existing injury by causing increased pain; her pain reduces over the three succeeding days when she does not work, but does not go away, and then increases again where she resumes work; and this happens on a recurring or continuing basis. I consider that in these circumstances, it was not necessary for her to have lodged a separate claim in respect of each periodic aggravation that resulted in continuing symptoms of increased pain assertedly brought about by her continuing employment. The present case is unlike other matters, where a particular event causes an aggravation of a pre-existing injury for a period of time, after which the employee’s condition reverts to his or her former status; in such matters the claims that are made identify, and are based upon, the relevant event, and any claim for a further aggravation might well constitute a claim for a new injury, necessitating a new reviewable decision before this Tribunal has jurisdiction.

Should Comcare have considered whether it was liable for increased pain arising from the underlying degenerative condition, as well as whether it continued to be liable for the accepted condition, namely aggravation of that underlying condition?

54. Mr Quinn contended on behalf of Ms Tran that the decision under review entailed certain errors of law, and an unduly narrow or misconceived view of the facts or the basis of the claim for compensation. In particular, he submitted that Comcare had accepted liability for an “aggravation of degeneration of the cervical intervertebral disc” (emphasis added), but Ms Tran had made a claim (or her claim should correctly have been interpreted as a claim) for compensation for recurrent pain from her degenerated cervical spine.
55. I referred to the significance of this aspect in paragraph 5. In considering Mr Quinn’s submission, I bear in mind that proceedings in this tribunal are a hearing de novo. The tribunal is not bound by the findings of facts made by the decision-maker, and the application is heard afresh. The focus of the hearing is not whether the decision under review was correct, but to arrive at the correct or preferable decision on the material before the tribunal, not on the material before the decision-maker whose decision is under review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60 at 68.
56. The claim form dated 16 March 2007 states that the injury or illness for which compensation was claimed was “degenerated cervical spine. Impingement of left C4, right C5-6 nerve” (exhibit R1, T4, page 88). The parts of the body injured are stated to be “neck, shoulder and right arm”. The start of the chain of events that led to the injury is stated to be “repetitive work with computer and repetitive work with right hand”, and the form also asserts that “symptoms developed over the years”. The year “1996” is provided in answer to the question of when the claimant was injured or when the claimant first noticed that the claimant was ill, and this is also stated to be the year when medical treatment was first sought. The form also discloses that workers’ compensation had been claimed for a similar injury or illness in 2002, and refers back to the Comcare claim in 2002 (exhibit R1, T4, pages 85 – 93).
57. The s 37 documents do not clearly identify the medical certificate which accompanied the claim form. It appears likely that it was accompanied by either the medical certificate dated 14 March 2007 from Dr Cheung, or the medical certificate dated 17 March 2007, also from Dr Cheung. Each certificate includes a diagnosis identical to that described on the claim form, and says that the worker’s stated cause of the disease was “repetitive work [with] computer” (exhibit R1, T3, pages 14 and 16).
58. The 2002 claim form, which is referred to in the current claim form dated 16 March 2007, describes the diagnosed condition as “neck, left shoulder strained with myofascial pain syndrome”. In response to a question as to when the injury happened or when the illness was noticed it refers, like the 2007 claim form, to symptoms since 1996. The injury or illness is described as “recurrent neck pain radiating to both shoulders and the back of the head”, and reference is made to having had intermittent pain since 1996. The form attributes the injury or illness to processing claims using the keyboard and the visual display unit, and opening and closing the drawer to pay cash claims. It also records that Ms Tran has used sick leave in the past, and that dates could be obtained from her doctor (exhibit R2, T59, pages 271 – 275).
59. The current claim for compensation and the history referred to in it was broad enough to embrace the injury which Ms Tran is now asserting, that is, increased pain arising from her underlying degenerative condition, as opposed to the condition for which liability was accepted, namely “aggravation of degeneration of cervical intervertebral disc”. In Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253, Telstra had previously accepted liability under s 14 of the Act on the basis that the applicant’s work had contributed to his contracting Ross River fever, and paid him compensation for medical expenses and incapacity for work pursuant to ss 16 and 19 of the Act. Medical evidence then established that the employee was not suffering from Ross River fever, and on that basis Telstra determined that it was not liable to pay any further compensation. Telstra did not reconsider or revoke its original determination to compensate the employee. On an application to review the cancellation decision made by Telstra, it was held by a Full Court of the Federal Court that the tribunal had jurisdiction to make a finding of fact contrary to the original determination under s 14 whereby Telstra had accepted liability, notwithstanding that that determination was not the subject of review by the tribunal. Conti J said at [57]:

“The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer.”

60. I accordingly consider that I am not confined by the findings made by the reviewable decision as to the basis upon which Ms Tran’s claim was accepted. I am satisfied that I have jurisdiction to consider whether Comcare is liable for the injury for which Ms Tran claims compensation, namely an aggravation of her pre-existing degenerative condition in the form of increased pain from that condition, and I can review Comcare’s decision to accept liability for an aggravation of the degeneration of the cervical spine.

Can the tribunal consider events subsequent to the decision that Ms Tran was no longer entitled to compensation?

61. As mentioned above, Mr Krupka relied upon Freeman v Secretary, Department of Social Security (supra) in support of his contention that because the decision under review was to cancel Ms Tran’s entitlement to compensation, I had to consider whether that decision was correct at the date when it was made, and I should not consider any changes in circumstances since then. In that case the tribunal found that after a decision had been made by the Secretary to cancel the applicant’s widow’s pension, she had ceased to live in a de facto relationship, and so was then entitled to the pension. Nevertheless, the tribunal decided that the decision to cancel the pension was correct. The Federal Court dismissed an appeal from this decision, pointing out that it would have been necessary under the Social Security Act 1947 (Cth) for the appellant to have lodged a fresh application for a widow’s pension in order for her entitlement to be restored.
62. The circumstances in which this tribunal may take into account facts and circumstances existing after the time when the reviewable decision was made was considered by the High Court in Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286. The Court referred to the process adopted by this tribunal of receiving further evidence in the course of its review function, and decided that unless the legislation providing for the matter that is the subject of the reviewable decision requires the tribunal to consider the state of affairs as at the date of that decision, the tribunal should take into account new evidence that would update the facts and circumstances taken into account by the earlier decision-maker. As Kirby J said, at [41]:

“When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make ‘a decision in substitution for the decision so set aside’, as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.”

Nevertheless, Kirby J recognised at [44] that legislation might require the qualification for benefits such as pensions to be determined by reference to facts at the time of the decision. Similarly, in their joint judgment Hayne and Heydon JJ contrasted the provisions of the Migration Act there under consideration with legislation providing for pension entitlements, which under the relevant legislation depended on whether a criterion was met at a particular date, such as the date of cancellation of entitlements, and their Honours’ referred to Freeman (supra) as an example of such a case.

63. I therefore agree that when considering whether Ms Tran was no longer entitled to compensation, it is necessary to examine the circumstances that existed as at the date of the reviewable cancellation decision made by Comcare. However, I can of course also take into account later evidence that informs the situation that existed as at that date. I refer for example to Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, where it was held that evidence was admissible as to increases in the price of coal that had occurred after a notice had been given requiring the closure of the mine in determining the compensation payable to the owners of the mine. Lord Macnaghten said that the arbitrator should:

“... avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?”

64. In this case, Ms Tran’s condition has been assessed by the specialists who gave evidence in the period subsequent to the decision to cancel her entitlements, and there is no suggestion that her condition had changed significantly between the date of the cancellation and the date of the assessments made by those specialists. Ms Tran has continued to work on restricted hours at Medicare since the date of the cancellation decision, and has continued to suffer an aggravation in the form of increased pain from her underlying degenerative cervical condition. I think that I can properly take evidence of this continuing state of affairs into account for the purpose of elucidating the facts and circumstances that existed as at the date of the cancellation decision.
65. However, when I come to consider the further question of whether Ms Tran is entitled to compensation for an aggravation of her underlying degenerative condition, the position is different; I must consider the position by reference to the facts at the time of my decision. This was made clear in Shi (supra): see paragraph 62 above.

Has Comcare failed to adduce sufficient evidence of changed circumstances to cancel Ms Tran’s entitlement to compensation?

66. In Muratore (supra) a determination had been made that an employee was entitled to certain weekly payments of compensation representing the difference between what he would have been able to earn if he had not been injured, and his weekly pay following his injury. Subsequently, a determination was made that the employee was able to earn an amount not less than his weekly pay, and so he was not entitled to compensation at all. The High Court decided that the Commonwealth bore the onus of proof of matters that would enable the Commonwealth to vary the original determination. Mr Quinn relied on this case to support his argument that Comcare had not adduced evidence of changed circumstances since its determination in April 2007 to accept liability, and so Ms Tran’s entitlements to compensation should not have been cancelled.
67. The injury for which Comcare accepted liability was an “aggravation of degeneration of cervical intervertebral disc”. On the face of it, Dr Gibberd’s report of 11 August 2008 provides adequate evidence of changed circumstances so as to cancel entitlement to compensation for that accepted condition, because Dr Gibberd stated that the degenerative disease of her cervical spine was constitutional in nature and unrelated to her work, and that Ms Tran’s continuing pain (or the major component of it) was attributable to psychosocial factors and constitutional causes. Having regard to the nature of the condition accepted by Comcare, there was sufficient material to support the reviewable decision that entitlement for that accepted condition should be cancelled. However, as explained above, Ms Tran is now asserting a different injury, namely increased pain from her pre-existing underlying condition of a degenerative cervical spine. Comcare has never accepted liability for that claimed injury. It is therefore necessary for Ms Tran to adduce evidence in support of her entitlement to compensation for that injury. This is clear from the judgment of Heerey J in Comcare v Nichols [1999] FCA 209, where his Honour considered the question of which party was required to adduce evidence to support the position in which that party was asserting. On the facts of that case, the employee was receiving compensation in respect of a repetitive strain injury, and Comcare contended that she no longer suffered from that injury. It was held that it was necessary for Comcare to establish that fact. The employee also contended that she had a different work related injury, namely work-related cervical spondylosis which contributed to her incapacity, but because she had not adduced evidence of that position to the satisfaction of the tribunal, her claim failed. Heerey J treated the claim for cervical spondylosis as a new claim that had not previously been determined by Comcare. I think that that is the status of the claim which Ms Tran is making, and accordingly that it is not necessary for Comcare to adduce evidence of changed circumstances that would disentitle her to compensation for that injury.
68. I also note that in a recent case, namely Brackenreg v Comcare [2010] FCA 724, Mansfield J reviewed the relevant authorities, and reached a similar conclusion in a case where Comcare had not formally determined liability for certain changed conditions or symptoms. His Honour also cited Heerey J’s decision in Nichols (supra) with approval.

Was Ms Tran’s injury materially contributed to by her employment?

69. In considering this issue, I refer to my above finding that I accept Ms Tran’s evidence. I also accept the evidence of Wai On Lam, who has lived with her as her partner since 2000. I reject Mr Krupka’s challenge to Ms Tran’s credibility, which was based in part on her omission to disclose to Dr Gibberd that she had been involved in two prior motor vehicle accidents. I accept her evidence that the motor vehicle accidents entailed minor collisions, and that she had no reason to think that they had any relevance to the ongoing symptoms which she had been experiencing since 1996. I do not regard this matter, or other criticisms of Ms Tran’s evidence made by Mr Krupka, as significant. In particular, I do not regard as significant the evidence as to non-organic factors in Ms Tran’s presentation, as it appears from other evidence before me that she is also suffering from a depressive condition which affects her presentation.

What is the requisite causative relationship between the asserted disease and Ms Tran’s employment?

70. I do not accept a submission made by counsel for Ms Tran to the effect that once a link between the aggravation of the pre-existing cervical condition and Ms Tran’s employment is found, it does not matter whether the contribution from work is large or small. That formulation of the requisite relationship between the injury (being a disease) and employment was referred to in Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 at 323, and was repeated in a number of cases after that.
71. However, in Comcare v Canute [2005] FCAFC 262 French and Stone JJ drew attention to the inclusion of the words “in a material degree” in the definition of “disease” in the Act, and to the absence of those words in the legislation that was repealed by the Act. Their Honours also quoted an extract from the second reading speech of the Minister for Social Security when the Bill for the Act was read for a second time in the House of Representatives on 27 April 1988. The Minister then referred to the requirement in the 1971 Act for an employee to establish only that the employment was a contributing factor to the contraction of the disease, and said that this had frequently resulted in the Commonwealth being liable to pay compensation for diseases that had “little, if any connection with employment”. The extract continued:

“This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.”

Their Honours also referred to Treloar (supra) and another earlier case, and went on to say at [68] that the changes brought about by the enactment of the 1988 Act:

“ ... were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to (sic) said about this issue.”

72. The meaning of the expression “in a material degree” was later considered in Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536. In that case, Finn J referred to the change in terminology between the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and the SRC Act in relation to the requisite causative connection between an employee’s employment and the suffering or aggravation of an ailment in order for the employee to be entitled to compensation under the SRC Act. His Honour pointed out that by virtue of the definition of “disease”, the employee’s employment is now required to contribute “in a material degree” to the suffering or aggravation of an ailment. He concluded, at [16], that the definition of “disease”:

“(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.”

73. I accordingly consider that the formulation in Treloar (supra) as to the requisite connection between a disease and employment is no longer good law, and that the expression “in the material degree” must be interpreted in accordance with the approach referred in Canute (supra) and Sahu-Khan (supra).

Is Comcare liable for an aggravation of a pre-existing condition comprising increased pain?

74. It was also submitted on behalf of Comcare that it should not be liable for increased pain from the aggravation of the underlying degenerative condition because there was no evidence that Ms Tran had been left with enhanced susceptibility to continuing pain, unlike the position in some cases of claims for aggravation. However, I consider that it is not necessary for Ms Tran to establish increased susceptibility. In Holt v Comcare [2003] FCAFC 221; (2003) 130 FCR 576, a Full Court of the Federal Court, after discussing Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533, said at [42]:

“Asioty was a case that turned on its facts. It did not establish any principle of law that every case of aggravation of an underlying condition had to be treated as a case of enhanced susceptibility, or had to be considered as if it might raise that possibility. Each case must be determined according to the evidence.”

75. The factual issue which I need to determine is explained in Tippett v Australian Postal Corporation (1998) 27 AAR 40. Finkelstein J said, at 44:

“Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Fed Ct, Fc, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533.
However, as was pointed out by the Full Court in Commonwealth v Beattie, at 201 per Evatt and Sheppard JJ:
‘It does not follow in every case that a worker with a pre-existing injury, who carried out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.’
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”

76. In accordance with the above authorities, I now consider whether Ms Tran’s work activities materially contribute to her increased levels of pain “in a material” degree, or whether she suffers pain whether or not she is at work. In considering this question, I bear in mind that the Act does not impose an onus of proof on either party. My function is to find the relevant facts on the balance of probabilities from the material before me, and to apply the relevant provisions of the Act to the facts found. In doing so, I am exercising the powers conferred by the Act on the decision-maker who made the decision under review: Comcare v O’Dea (1997) 26 AAR 252 at 257, and the cases there cited.
77. Ms Tran described in her evidence the effect of her work on her neck, arm and shoulder pain, and also the measures she has taken over the period since 1996, with the cooperation of Medicare, to reduce the impact of her work-related activities by reducing her working hours and by varying the nature of her duties. In addition, Medicare adduced evidence of the various changes made to her work station and the equipment with which she is provided. Notwithstanding these measures and the various steps which Medicare has taken to assist her, Ms Tran still experiences significant levels of pain as a result of the work that she does during the four days a week when she works at reduced hours. The permission she has been given to have regular breaks from her work, to avoid sitting in one position for a prolonged period and to move her neck and shoulders as required have not been sufficient to overcome her symptoms. This is so, notwithstanding suggestions in the evidence before me that activity was beneficial to her, and that her place of employment was more benign than her home environment. I think it likely, from the views expressed by Messrs Carney and Munyard, that Ms Tran’s experience of pain is intensified because of a coexisting depressive condition. However, an aggravation of a pre-existing injury to which employment makes a material contribution will nevertheless be compensable notwithstanding that other factors also contributed in a material degree to the aggravation: Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795 (see the full text of this judgment, reported at [2002] FCA 1464, at [20]).
78. The co-existence of a depressive condition is also relevant because in considering liability for compensation, Comcare must take the employee as it finds him or her, that is with any pre-existing vulnerability to injury that the employee might have: Wiegand (supra) [2002] AATA 1464 at [20].
79. On all of the evidence before me, I am satisfied that Ms Tran’s work activities make a material contribution to her increased pain, and that her increased pain was an underlying condition, namely a pre-existing degenerated cervical spine. I am further satisfied that this injury resulted in incapacity for work.
80. However, Ms Tran also gave evidence as to non work-related activities that are productive of pain, and that she is now unable to undertake. I referred to these matters in paragraph 27 above. This evidence indicates that many activities, particularly where she has to look down or look up for comparatively short periods of up to 30 minutes, will produce increased pain. Mr Krupka contended that Ms Tran’s position can be compared with that of the worker with the fractured limb referred to in the example provided by Evatt and Sheppard JJ in Commonwealth v Beattie (supra) at 201, which was referred to in Tippett (supra) (see paragraph 75 above), and that Ms Tran’s pre-existing underlying condition was such that she suffers pain whether or not she is at work.
81. In considering this submission, I take into account Ms Tran’s evidence that she is a lot better when she is at home, and that her pain gradually subsides after she has finished her four days of work. She described her pain as subsiding to about four out of ten, or three out of ten on a good day, and even three or two out of ten if she is lucky on a Sunday, but then her pain would go “right up again” when she returns to work and has to look up or down repetitively when sitting at her desk, or when she is bending forward (see transcript, 8 June 2010, page 41, lines 41-47).
82. It is relevant to refer again to Treloar (supra) and Wiegand (supra). In each case, the courts applied a lower threshold to the requisite contribution for employment, and that aspect of the decisions is no longer a good law, as I have explained in paragraphs 70 – 73 above. However, the courts also referred to the relevance of employment activities in considering whether employment made a contribution to the existence of a disease suffered by an employee.
83. In Treloar (supra) a Full Federal Court comprising, Sweeney ACJ, Sheppard and Foster JJ, after considering Semlitch (supra) said, at [21]:

“In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.” (emphasis added).

84. In Wiegand (supra) von Doussa J substantially repeated the statements made by the court in Treloar (supra). His Honour said at [2002] AATA 1464, at [24]]:

“All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee.” (emphasis added).

85. In the present matter, Ms Tran and her partner, Mr Lam, gave evidence that Ms Tran restricts her household chores and her other domestic activities, and Ms Tran said that during the days when she is not working, her pain reduces significantly. It follows that on the evidence before me, Ms Tran is exposed to activities or a state of affairs at work that she is not exposed to in her domestic and other activities.
86. Further, apart from the above evidence as to what activities Ms Tran in fact engages in when she is not at work, she is able to regulate the extent of her non-work activities so that she avoids activities, or prolonged activities, that will be productive of pain. Her situation at work is different. Although she has been given breaks from her work every 25 or 30 minutes, she is mindful of the need to finish the tasks she has been given, and is conscious of the expectations of her fellow workers and their disapproval of her restricted duties.
87. In weighing the evidence before me as to this final issue, I refer also to McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. In that case Woodward J, after explaining in effect that the concept of a legal onus of proof was not appropriate to the determination of proceedings in this tribunal, discussed the evidential onus of adducing evidence as to facts relevant to a particular issue, and he referred to adopting a common-sense approach to evidence. His Honour said, at 358:

“The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go.”

88. In the present matter there is clear evidence that Ms Tran suffers significant increased symptoms and an incapacity for work in consequence of her work-related activities. In cross-examination Dr Thoo agreed to the proposition that Ms Tran had a compromised neck and neck function and would experience pain whenever she tries to use her neck beyond its limits, and to her case being analogous to someone with a broken leg who has difficulty putting it on the ground (see transcript, 09.06.10, page 112, lines 4 – 13). However, I must consider this evidence, and indeed all of the medical evidence, in conjunction with the lay evidence before me, including the history of Ms Tran’s condition and symptoms, and her evidence as to her symptoms and their effect on her according to her work and non-work related activities. Having regard to Ms Tran’s evidence as to these matters, her need to rest after she comes home from work, and her experience that her symptoms reduce over her days off work but do not recover, I think it likely that the symptoms she experiences during the three days each week when she is not working are due, in part, to the ongoing effect of her work activities. On weighing the evidence before me, I find that it is not the case that she would have suffered pain causing incapacity for work whether or not she was at work.
89. For all of the above reasons, I have concluded that the aggravation of Ms Tran’s pre-existing condition is contributed to in a material degree by her employment, and I am satisfied that she has suffered a compensable aggravation of her pre-existing underlying condition.

DECISION

90. The tribunal sets aside the decision under review, and

(a) in substitution for that decision, decides that the respondent is liable to pay compensation for aggravation of the applicant’s pre-existing degenerated cervical spine;

(b) remits the matter to the respondent for reconsideration in accordance with these reasons;

(c) reserves liberty to apply within fourteen days in relation to the costs of the proceedings; and

(d) orders that in the absence of any such application the respondent pay the costs of the proceedings.

I certify that the 90 preceding paragraphs are a true

copy of the reasons for the decision herein of

Deputy President D G Jarvis

Signed: .................. (Signed) ...........................

Associate

Date/s of Hearing 8, 9 and 10 June and 13 August 2010

Date of Decision 22 September 2010

Counsel for the Applicant Mr P Quinn

Solicitor for the Applicant Tindall Gask Bentley

Counsel for the Respondent Mr B Krupka

Solicitor for the Respondent Australian Government Solicitor