Laviano and Comcare [2011] AATA 529 (29 July 2011)

Last Updated: 1 August 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2590

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Guy Laviano

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Senior Member Jill Toohey and Dr Ion Alexander

Date 29 July 2011

Place Sydney

Decision

The decision under review is set aside and the matter is remitted to Comcare to assess the amount of compensation to which he is entitled.

.................[sgd].............................
Senior Member

CATCHWORDS
COMPENSATION – eye condition – screen-based work – poor lighting – whether applicant suffered from underlying or pre-existing condition – whether employment contributed to a material degree to aggravation – whether applicant suffered eye injury at work – temporary aggravation – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14

Mellor v Australian Postal Corporation [ 2009] FCA 504

Ronald Coles and Australian Postal Corporation [2011] AATA 62

REASONS FOR DECISION

29 July 2011	Senior Member Jill Toohey and Dr Ion Alexander
Background

1. Mr Guy Laviano has worked as an administrative officer for the Fair Work Ombudsman (FWO) since March 2004.^[1] He started as a filer, retrieving information on a computer, and then later became an agreements assessor, checking workplace agreements and related documents for compliance with legislation. Most of his time was spent at a computer screen.
2. Mr Laviano says that, shortly after commencing at FWO, he started to feel spasms, throbbing and twitching in his left eye, and headaches.
3. In January 2005, Mr Laviano made a claim for compensation for an overuse injury to his right hand and arm, and for “eye strain” and headaches which he attributed to working long hours at a computer screen in poor lighting. In June 2005, Comcare rejected both claims.
4. In January 2009, Mr Laviano asked Comcare to reconsider its decision. Although his request came some years after the original determination, Comcare decided it should allow him an extension of time. On reconsideration, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the overuse injury but affirmed its decision to reject Mr Laviano’s claim for the eye injury and headaches. Mr Laviano seeks review of that decision.

The legislation

5. Comcare is liable to compensate an employee for an injury that results in death, incapacity for work or impairment: s 14 of the Act.
6. At the relevant time, injury in s 4 of the Act was defined to include:
   • (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;

7. Section 4(1) defined disease to mean:

(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.

8. Ailment meant any physical or mental ailment, disorder, defect or morbid condition whether of a sudden onset or gradual development: s 4.

The issues

9. We have to decide whether Mr Laviano is entitled to compensation. That requires us to decide:
   • (i) whether he suffers from an underlying or pre-existing eye condition;
   • (ii) if so, whether his employment contributed in a material degree to an aggravation of that condition;

if not:

(iii) whether he suffered an injury to his eye that was caused by his employment;
(iv) if so whether his employment contributed in a material degree to his injury and, if so, whether he is entitled to be compensated for the cost of spectacles.

Has Mr Laviano an underlying or pre-existing eye condition

10. Mr Laviano is 56. He has had amblyopia or “lazy eye” in his right eye since childhood. The vision in his right eye is reduced as a consequence but this has not had any appreciable effect. He has never worn glasses.
11. Mr Laviano was required to undergo a medical examination in February 2004, before starting work at FWO. The report of his Health Status Assessment noted that his distance vision was 6/18 in the right eye and 6/6 in the left, and near vision was N12 in the right eye and N5 in left. The assessor noted “Reduced vision in [right] eye but does not affect him so no glasses”.
12. Dr Peter Delaney, an ophthalmic surgeon, examined Mr Laviano in June 2011 at the request of Comcare. He has provided a written report and gave oral evidence.
13. Dr Delaney confirms that Mr Laviano has reduced vision in his right eye due to amblyopia which he has had since early childhood, and he has reduced distance vision in his left eye due to mild myopia which is a physiological refractive error. His near vision is reduced in both eyes due to presbyopia, a physiological change which comes with age and causes a loss of ability to focus on close objects. Dr Delaney could not specify when the onset of Mr Laviano’s presbyopia was but says onset is common between the ages of 40 and 50; Mr Laviano’s presbyopia is average for his age and would have been present when he started at FWO.
14. A report from Dr Barry Den, ophthalmologist, who saw Mr Laviano in January 2005, also confirmed his amblyopia, presbyopia and mild myopia as well as a “borderline tear deficiency”.
15. On the basis of the medical evidence, we find that Mr Laviano had an underlying, pre-existing eye condition, being a combination of amblyopia, myopia and presbyopia, as well as a mild tear film impairment, when he started work at FWO. His condition is a physical disorder or defect, and so an ailment within the meaning of the Act.

Did Mr Laviano’s employment contribute in a material degree to an aggravation of that condition

16. Mr Laviano says he had worked at a computer before but he had never experienced any eye problems before working at FWO. This is consistent with the pre-employment Health Status Assessment which noted that he did not wear glasses but certified him “medically capable of performing all duties of the specified job”.
17. Mr Laviano says he started to develop problems in his left eye in late March or early April 2004. His claim is taken to be one for an injury caused on 25 May 2004, being when Balmain Rehabilitation Services conducted an assessment of his work station: see 7(4) of the Act.
18. Mr Laviano says he developed eye strain as a result of spending long hours at a computer screen at work stations that had highly reflective white surfaces in conditions where “extremes of luminance and glare were a constant source of discomfort” to his eye. He describes the symptoms in his left eye as “a gritty feeling, like there was a foreign body in the eye”; he felt he should pull his eyelashes, as if there was an eyelash stuck in his eye; it gradually became “a throbbing pulsating muscular feeling in the left eye”.
19. Mr Laviano told the assessor from Balmain Rehabilitation Services in May 2004 that he had been experiencing spasms in his left eye since starting work. She recommended adjustments including a trial to increase the size of the font on the screen, move the screen closer, and having a larger screen. She also recommended he have an eye test.
20. In June 2004, Mr Laviano saw Ms Belinda Snashel, an optometrist at OPSM, for the recommended eye test. He complained of eye strain and throbbing in his left eye which he attributed to prolonged work at the computer screen. Ms Snashel’s notes show she recorded “Left eye seemed strained after prolonged VDU work. No specs yet – recheck 2 yrs ... .” She noted that Mr Laviano passed various tests which showed he was fit for screen-based work.
21. Around the end of July 2004, Mr Laviano told his team leader he was experiencing “eye strain” which he thought was due to his work. In September 2004, he saw his general practitioner for tension headache and symptoms of stress. He saw his doctor again ten days later, still complaining of headaches.
22. On 5 October 2004, Mr Laviano submitted an Occupational Health and Safety (OHS) Report to his employer. It stated that he had a throbbing sensation in his left eye and eye strain, “postural discomfort” in his neck and shoulder area, and pain in his right wrist. He attributed his eye strain to conditions at his workstation and inadequate rest breaks in “a high volume processing environment”.
23. Mr Laviano submitted a further eight OHS reports along similar lines between October 2004 and May 2005. Over that time, he moved work stations several times. He complains that his employer was slow to arrange assessments of his work station when he moved, and slow to respond to complaints from staff about poor lighting.
24. On 29 October 2004, Balmain Rehabilitation Service conducted a further assessment of Mr Laviano’s workstation. A report dated 31 October 2004 notes that he complained of “slight throbbing in the left eye” after one to two hours of screen-based work; he had been encouraged to take breaks in the past month. A number of recommendations were made including that Mr Laviano ensure regular rest breaks and review his symptoms after a month when he should seek medical advice if his symptoms had not settled.
25. In December 2004, Mr Laviano saw his general practitioner, Dr Jeremy Kong, who noted that he complained of eye strain and throbbing in the left eye (as well as symptoms related to his overuse injury). Dr Kong also recorded that Mr Laviano had seen an optometrist, and “deterioration in vision, needs glasses”.
26. On 27 January 2005, Mr Laviano saw Dr Barry Den at the Ashfield Eye Clinic. Dr Den reported to Dr Kong that Mr Laviano had “presbyopic symptoms and a dry feeling when using the computer for long periods”; he had mild myopia and presbyopia, and “borderline tear deficiency”. Dr Den wrote that he had recommended Mr Laviano obtain glasses for computer use and continue to use Refresh Tears Plus drops as required.
27. Until around September or October of 2004, Mr Laviano was commonly working 10 hours a day, most of it at the computer. The certified agreement which established employment conditions for staff allowed him to work these hours and enabled him to accumulate flex time to attend to family and other matters. However, because of his continuing eye problems, around September or October of 2004he was “counselled for working excessive hours” and advised to take appropriate breaks. The evidence is not entirely clear, but it seems that from around this time, he worked more standard hours.
28. Mr Laviano stopped exeriencing symptoms in his eye around mid-2005, when his duties changed and he was no longer required to work long hours at a screen. He had no further problems until around 2008 when a new manager changed his duties and he was again doing “visually demanding” work and he again experienced eye strain. He submitted a further OHS report in January 2008 complaining again of “left eye increasing eye strain”.
29. Balmain Rehabilitation Service conducted a further workplace assessment on 10 December 2008. At that time, Mr Laviano had been at his current work station for two weeks. He reported an increase in eye strain “due to glare from the overhead lights”. Recommendations were made including options for reducing glare. Mr Laviano told the assessor that he had seen an optometrist who had recommended glasses but he could not afford them; the Human Resources section was considering whether to meet the cost but he had not heard back from them.
30. In January 2009, Mr Laviano saw Mr David Anning, an optometrist at OPSM, who prescribed spectacles for his worsening presbyopia with lenses “specifically designed for his combined near and computer use in a work environment”.
31. A further assessment was conducted in February 2009. At that time, the assessor reported that she “observed a reasonable amount of glare” from, a light in the workroom and thought advice might need to be obtained from a lighting specialist as to how to reduce brightness. She agreed with a recommendation by a lighting specialist for a cover for Mr Laviano’s desk because the white desk top was “very reflective”. She also queried why Mr Laviano was still not wearing glasses and recommended he follow this up with the Human Resources section.
32. In June 2009, Dr Dwight Dowda, occupational physician noted, among other things, that Mr Laviano’s eye strain would be obviated by the use of suitable prescription spectacles.
33. Mr Laviano has not had any further symptoms since around mid-2009 when he moved to a new position as an information line adviser. He now takes telephone calls and can move around using a headset, and there is minimal work on the computer screen. Nor has he experienced any symptoms on weekends or during periods of leave, or when doing any tasks other than working at a computer screen.
34. A report dated 21 September 2009 of a “Lighting Ergonomic Assessment” at FWO by Safety & Environmental Services Australia (SESA) makes observations about the lighting for selected workstations. It refers to interviews with Mr Laviano and another staff member and it tends, in general terms, to support his claim that poor lighting exacerbated his symptoms. It notes strong lighting and glare at the inspected locations and suggests that the position of fluorescent lighting was not considered “in the initial design configuration of the work stations throughout the floor”. It notes “several anomalies regarding the illuminance readings over the workstations for screen based task” and states “variation of lighting levels ... contribute to the visual discomfort experienced by Mr Laviano”.
35. At the time of the Tribunal hearing, Mr Laviano had still not obtained the glasses that have been recommended several times. He says he cannot afford the cost of around $500 which he was quoted for glasses suitable for his working conditions. His employer has offered to pay approximately $170 towards glasses but Mr Laviano says that is insufficient for the glasses that he has been told he needs. Further, he says, he could still do his work without them so he took the prescription for glasses as a “recommendation” rather than as essential. He acknowledged before the Tribunal that glasses might help but, as he has not felt eye strain for the past two years since his duties have changed, it is not an expenditure that he plans to prioritise.

Dr Delaney’s evidence

36. Dr Michael Delaney, ophthalmic surgeon, examined Mr Laviano in June 2011 at Comcare’s request. He has provided a written report and gave oral evidence.
37. Dr Delaney gave evidence that the underlying cause of Mr Laviano’s symptoms was that he was becoming presbyopic with age. To some extent, he had been insulated from the effects of presbyopia because his left eye was short-sighted, allowing him to read up close what another person could only read with glasses but, as time went on, his myopia no longer compensated for his presbyopia. As his right eye was weak, he was straining to see, predominantly with his left eye with the result that he developed symptoms of high strain in his left eye, producing the ache he complained of.
38. Dr Delaney was not surprised that Mr Laviano requires glasses for working at a computer screen but is otherwise able to perform tasks such as reading and driving. He says Mr Laviano fits into a category “that half the world would give their right teeth for”. He is a little short-sighted at an age when most people need reading glasses but not so much that he need glasses for driving; he is able to read in most environments.
39. Dr Delaney also gave evidence that reading for long periods reduces the normal blink reflex, making the eye dry out, in turn producing symptoms of a “gritty foreign body sensation”. He noted that, although he did not notice any tear film impairment in Mr Laviano, Dr Den had reported a mild tear film imbalance, which would be consistent with being exacerbated by prolonged staring and focussing to read. Dr Delaney had no argument with Dr Den’s finding.
40. In his written report, Dr Delaney said that it was possible that work may have exacerbated Mr Laviano’s symptoms if the lighting was poor, but he did not have any permanent impairment as a result of his work environment. Dr Delaney wrote that he did not believe that “any employment factors have aggravated or exacerbated his physiological or aging changes except on a temporary basis” and, with appropriate spectacles, his symptoms would have been relieved.
41. Questioned at the hearing by Mr Laviano, Dr Delaney agreed that air-conditioning or low humidity in an office could make someone with a tear imbalance symptomatic, and that inadequate lighting, especially if dim, can lead to eye fatigue and headaches; very bright light may cause glare symptoms; and variations in light levels could also contribute to eye discomfort but not to any permanent impairment or harm.
42. Dr Delaney confirmed his opinion that “all of those situations only caused a temporary exacerbation of symptoms that were due to an underlying physiological refractive error which had not been corrected by the most obvious and basic means which is the use of a pair of spectacles”.

Medical certificates

43. A number of medical certificates are in evidence certifying Mr Laviano unfit for work on account of his eye strain, either on its own or in combination with symptoms of his overuse injury.
44. On 13 December 2004, Dr Kong certified Mr Laviano unfit for work on that day due to “headache/right forearm and wrist muscular/eye strain” and issued a Medical Certificate for Workers Compensation.
45. On 6 January 2005, Dr Azar at the Sydney Eye Hospital certified Mr Laviano unfit for work that day due to “eye consultation”. A further certificate relates to Mr Laviano’s appointment with Dr Den on 27 January 2005. On 5 April 2005, Dr Paul Ristuccia at The Ramsay Street Medical Centre certified Mr Laviano unfit for work that day due to “left eye strain”.
46. On 28 February 2008, Dr Roger Leung at The Ramsay Street Medical Centre certified Mr Laviano unfit for work that day due to “left eye/right hand and arm discomfort” and issued a Medical Certificate for Workers Compensation for condition including “[Left] eyestrain”. On 7 April 2009, Dr Mary Lamond at the same practice certified him unfit for a half day due to “eyestrain”.
47. Certificates for a further eight days between October 2004 and March 2009 were issued for headaches of varying severity but they make no mention of eye strain.

Consideration

48. Comcare contends that Mr Laviano suffers from presbyopia which is simply a change in the body that occurs with time. It is contended that he has had episodes of transient changes but not symptoms which resulted in any change to the underlying condition or an aggravation or acceleration of that underlying condition.
49. There is no requirement that a pathological change occur in an underlying condition in order to establish an injury for the purposes of the Act. An aggravation of a non-symptomatic condition without pathological change can constitute an injury: Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191; and see Mellor v Australian Postal Corporation [2009] FCA 504; see also Ronald Coles & Australian Postal Corporation [2011] AATA 62. Nor is there a requirement that an aggravation cause permanent symptoms; an aggravation may be temporary only and may cause only temporary incapacity.
50. We are satisfied that Mr Laviano experienced more than the eye fatigue many people feel at the end of a day at work. His underlying presbyopia combined with his amblyopia and myopia, and mild tear film imbalance, meant that, on occasions, he suffered a throbbing pain. Taking into account Dr Delaney’s evidence, we are satisfied, on the balance of probabilities, that Mr Laviano’s work caused a temporary aggravation of his condition while he was working long hours at a computer screen.
51. We are satisfied on the evidence that the aggravation of Mr Laviano’s underlying condition was materially contributed to by his employment in that he had at times to work at a visually demanding task in poor lighting. When his working conditions changed, he no longer experienced the aggravation of his condition.
52. Comcare has not pressed an argument that Mr Laviano should have mitigated his own damage by obtaining glasses when he was working at a computer screen, and we would not make a finding, on the evidence before us, to the effect that he has unreasonably refused treatment.
53. As Mr Laviano has been able to work for the past two years without symptoms and without needing glasses, we see no reason why Comcare should be liable for the cost of his glasses unless he is required in the future to work again at a computer screen for long hours.

Conclusion

54. The evidence is that Mr Laviano’s incapacity on account of his eye injury was limited to several days off work and, even then, it was not always the sole cause of his time off.
55. Mr Laviano appeared to us to give his evidence honestly and, by all accounts, his performance at work is good. It goes without saying that he is entitled to pursue any proper claim for compensation for an injury at work, even if temporary or of minor effect. However, it is apparent, and Mr Laviano was frank about this at the hearing, that his principal concern in pursuing these proceedings has been to achieve safe work practices at his place of employment. His concern may be genuine but the Tribunal is not the appropriate forum to seek to change work practices if, indeed, any changes are necessary.
56. We set aside the decision under review and decide instead that Comcare is liable to compensate Mr Laviano for is eye injury. The matter is remitted to Comcare to determine the amount of compensation to which he is entitled.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey

Signed: ..........................[sgd]......................................................

Diana Weston, Associate

Dates of Hearing 19 and 20 July 2011

Date of Decision 29 July 2011

Applicant Self-represented

Counsel for the Respondent Ms R Henderson

Solicitor for the Respondent Ms D Shiells, Dibbs Barker

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^[1] In March 2004, known as the Office of the Employment Advocate.