4 O 4 CATCHWORDS Workers' Compensation - Appeal from Administrative Appeals Tribunal - Degeneration of spine - Series of incidents resulting in incapacity for which compensation awarded - Further incident not in course of duty resulting in further incapacity and eventual retirement - Whether earlier incidents aggravated or accelerated underlying organic defect or merely temporary aggravation of pre-existing condition - Whether Tribunal "preoccupied" with medical evidence. Compensation (Commonwealth Government Employees) Act 1971 s.27, 29 GUISEPPE CAMPIONE Vv. AUSTRALIAN | TELECOMMUNICATIONS COMMISSTON No. VG172 of 1983 CORAM: Sweeney, Fisher and Neaves JJ. 23 November 1984 Melbourne IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY' "7" +") ) GENERAL DIVISTON > No. VG172 of 1983 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL. BETWEEN: GUISEPPE CAMPIONE Applicant AND oo AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent JUDGES MAKING ORDER: Sweeney, Fisher and Neaves JJ. DATE OF ORDER: 23 November 1984 WHERE MADE: Melbourne THE COURT ORDERS THAT - 1. The appeal be dismissed 2. The applicant pay the respondent's costs of the appeal. IN_THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG172 of 1983 ) GENERAL DIVISION ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL. BETWEEN: GUISEPPE CAMPIONE Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent Coram: Sweeney, Fisher and Neaves JJ. Place: Melbourne Date : 23 November 1984 REASONS FOR JUDGMENT THE COURT: On 26 November 1979 a delegate of the Commissioner for Employees' Compensation (the Commissioner) made a determination (the determination) that the back condition suffered by Guiseppe Campione (®he applicant) on 24 December 1978 was not the result of any injury or disease, or any aggravation, acceleration or recurrence of either, for which the Commonwealth or the Australian Telecommunications Commission (the -Commission) was liable -to pay him compensation under either the Commonwealth Employees' Compensation Act 1930 (the 1930 Act) or the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). The determination was reconsidered and confirmed by the Commissioner in November 1981. The applicant then applied to the Administrative Appeals Tribunal (the Tribunal) for review of the determination. This appeal is from the decision of the Tribunal, 'made on 9 September 1983, affirming the determination. The applicant commenced working for the Postmaster-General's Department of the Commonwealth as a driver collecting mail in 1965. In 1975, when the Commission was established and the Postmaster-General's Department was abolished, he become an employee of the Commission and remained such until he was compulsorily retired on 21 December 1982. On 15 dune 1966, while he was working ina tunnel, a rack on the wall of the tunnel gave way and a cable fell on him. He lost consciousness and subsequently had pain in his lower back. On 12 July 1966 he submitted a claim for compensation for sprains and strains to the back. On 22 July 1966 a delegate of the Commissioner determined that he had sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth, namely a strained back. The cost of his medical treatment was paid by the Commonwealth and compensation for temporary total incapacity was paid for the period of days that he was absent from work as a result of the injury, from 16 June 1966 to 21 June 1966. After that short 'absence he returned to similar-- work. On 13 August 1967 he was lowering a. pipe from -the.-= vehicle he was driving to the ground when he felt a pain in his lower back. It was not bad enough for him to be absent from work. However, on 7 September 1967 he submitted a claim for compensation in respect of it, stating the nature of his injury as slipped disc and -~.strained back. On -26 September 1967 a delegate of the Commissioner determined that he had sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth on 13 August 1967, namely a strained back. The cost of the medical treatment which he had received was paid to hin. He was absent on sick leave because of pain in his back from 22 January 1968 to 23 February 1968. During that time he was examined by Dr D.5B. Berryman, an orthopaedic surgeon, who thought that it was likely that he had "incurred pain of discogenic aetiology", although he recorded that there was no definite evidence of any specific disc lesion on plain x-rays at that stage. After reviewing his progress two weeks later Mr Berryman recommended that he return to work but on light duties and wearing a back brace. On 4 July 1969 a delegate of the Commissioner made a determination that, because of the strained back which he had suffered on 13 August 1967, he was entitled to the payment of compensation for total incapacity for the eleven days of his absence from duty from 13 February 1968 to 23 February 1968. After his return to work he was placed on light -duties. He was subsequently offered a chauffeur's job. He accepted that and continued in that job until his compulsory retirement in .1982. .0n 4 November 1971 while -helping -to move office furniture he again experienced a severe pain in his lower back. He did not go to hospital but he was taken toa doctor, given tablets and put off work for one week. On 23 November 1971 he submitted a claim for compensation in respect of that incident. - On 25 January 1972 a delegate of the Commissioner made a determination that he had sustained personal injury on that date arising out of or in the course of his employment by the Commonwealth, namely a sprained back, and that he was entitled to compensation for total incapacity for the period of eleven days from 5 November 1971 to 15 November 1971. On 5 June 1974 the applicant submitted a claim for compensation for a "neck injury (whiplash)" alleged to have been suffered on 23 February 1970 when another motor vehicle ran into the back of the Government vehicle which he was driving. He was examined by a medical referee, Mr W.W. Swaney, an orthopaedic surgeon, who found that he was suffering from a minor degree of cervical spondylosis. On 10 December 1974 a delegate of the Commissioner made a determination that the condition of cervical spondylosis was not due to personal injury or disease for which the Commonwealth was in any way liable. That condition is irrelevant to the present proceedings. On 7 April 1975, after the applicant had parked the car he was driving outside an office, he slipped and suffered again a severe pain in the lower back. On that occasion he was off work:'for -two weeks. - On°23°-May 1975 he submitted a Claim for compensation in respect of that injury describing it as "ricked back". On 2 January 1976 a delegate of the Commissioner made a determination that he had sustained a personal injury on that day arising out of or in the course of his employment, namely low: back strain, and that he was entitled to compensation for the period of total incapacity from 7 April 1975 to 18 April 1975 and to reimbursement of the cost of the medical treatment he had received. On 24 December 1978, not in the course of duty, the applicant bent down to lift up a crate of bottles of soft drink in a shop which was owned by his wife. Before he had picked up the crate he experienced very severe pain in his lower back. He was taken immediately to the Southern Memorial Hospital. He remained in hospital from 24 December 1978 until 9 January 1979 under the care of Mr M. Fogarty, an orthopaedic surgeon. On Mr Fogarty's advice he did not return to duty until 30 June 1979. On 22 February 1979 he submitted a claim for compensation for the injury he sustained on 24 December 1978 which he described as "back injury (injury disc)". On 26 November 1979 the determination which is the subject of the appeal was made. The applicant's back condition apparently deteriorated and he suffered increasing pain. He was referred to Mr P.G. Petty, a neurosurgeon, who, after discography had revealed that the L3-4 disc in his spine was degenerate, removed that disc and performed a posterior inter-body fusion. He expected the applicant's condition to improve so that he would be able to return to work after about three months. However, the back pain apparently persisted and on 21 December 1982 the applicant was compulsorily retired because of his back condition. At the hearing before the Tribunal of the application for review, evidence was given on behalf of the applicant by the applicant himself, his wife, Mr Petty, Mr Berryman and Mr Fogarty. Evidence on behalf of the Commission was given by Mr Swaney. The documents lodged with the Tribunal in pursuance of section 37 of the Administrative Appeals Tribunal Act 1975 included medical reports by Mr Berryman dated 7 February 1968, 26 February 1968 and 4 March 1981, by Mr Swaney dated 19 June 1974 and 10 October 1979, by Mr Fogarty dated 30 January 1979 and by a Commonwealth Medical Officer, Dr J. Sullivan, dated 7 May 1968 and 22 November 1973. At the hearing the applicant tendered in evidence his sick leave record for the period from 1967 until his retirement, the report dated 21 December 1982 of the Commonwealth Medical Officer who recommended his retirement, two reports dated 10 August 1982 and 24 June 1983 by Mr R. Beetham, an orthopaedic surgeon, and a report by Mr Petty dated 11 August 1982. Annexed to the medical report of Mr Petty were notes of the operation for the removal of the L3-4 disc and the posterior inter body fusion which he carried out on the applicant on 28 June 1982. Although the incidents which occurred in 1966 and 1967 occurred before the commencement of the 1971 Act and compensation was paid in respect of incapacity arising from those incidents under the 1930 Act, the parties were agreed that the application which was before the Tribunal and which is the subject of this appeal is to be resolved by reference to the provisions of the 1971 Act. Sub-section 27(1) of the 1971 Act provides: "If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act." "Injury" is defined in sub-s.5(1) of the 1971 Act to mean "any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease." Section 29, so far as material, provides: ""(1) Where- (a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and (b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect. (2) If- (a) the death of the employee; (b) a loss to the employee of a kind referred to in section 39 or 40; (c) facial disfigurement to the employee; (d) a loss to the employee of the sense of taste or smell; or (e) the total or partial incapacity for work of the employee, results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears- (£) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and (g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury. (3) 2. . ." The grounds of appeal set out by the applicant in his notice of appeal filed on 30 September 1983 were: "(a) That the Tribunal misdirected itself at law in that it failed or failed properly to consider whether the Applicant had suffered an aggravation or acceleration of a disease to which the Applicant's employment by the Respondent had been a contributing factor. (b) (c) (ad) That the Tribunal misdirected itself at law in that it decided the Applicant's claim upon a consideration of whether there had been any permanent pathological damage done to the Applicant. That the decision of the Tribunal to disallow the Applicant's claim for compensation was such that a reasonable man, properly instructed in law, could not come to. That the evidence adduced before the Tribunal compelled the conclusion that the Applicant's incapacity for work resulted from aggravation or acceleration of a disease to which aggravation or acceleration the Applicant's enployment by the Respondent was a contributing factor." The questions of law sought to be raised on the appeal as set out in the notice of appeal were: "(a) Did the Tribunal misdirect itself in law in (b) (c) (d} failing or failing properly to consider whether the Applicant had suffered an aggravation or acceleration of a disease to which the Applicant's employment by the Respondent had been a contributing factor. Did the Tribunal misdirect itself in law in deciding the Applicant's claim upon a consideration of whether there had been any permanent pathological damage done to the Applicant. Was the decision of the Tribunal such that a reasonable man, properly instructed in law, could not come to. Did the evidence adduced before the Tribunal compel the conclusion that the Applicant's incapacity for work resulted from aggravation or acceleration, the Applicant's employment by the respondent was a contributing factor (sic)." The Tribunal was confronted with a conflict of expert evidence as to the effect upon the applicant's back condition of the incidents in June 1966, August 1967, November 1971 and April 1975. In its reasons for decision the Tribunal summarised this conflict at paragraph 12 saying: The concluded "All the surgeons who gave evidence or whose reports were in evidence agreed that the applicant suffered from degeneration of his spine at least until the operation which was performed by Mr Petty in June 1982. However, what is not agreed is whether any of the incidents aggravated or accelerated the underlying organic defect and whether any of them added to it an injury, that is to say a ruptured disc. A number of different opinions were expressed on that question by the various surgeons. At one extreme Mr Swaney took the view that none of the incidents from 1966 onwards which occurred in the course of the applicant's employment and to which I have referred did anything more than temporarily aggravate the symptoms of the degenerated condition of the applicant's spine. At the other extreme were Mr Petty and Mr Fogarty who considered that each incident had contributed to the deterioration of the degenerated condition of his spine. In between was Mr Berryman who considered that the applicant "did a disc" in 1966 and that that precipitated his back problen. With regard tc the incidents which occurred after that, he took the view that, if the pain continued to be worse than it was before, the incident had aggravated the underlying disease but that, if the pain was not worse, all it had done was to aggravate the symptoms only temporarily." Tribunal considered these differing opinions and (at paragraph 21): "Having given full consideration to the opinions of all the surgeons who gave evidence and the reasons they gave for those opinions, and having given them that consideration in the light of the facts established regarding the intermittent episodes of pain suffered by the applicant, mainly related temporarily to particular incidents, I am satisfied that the opinion of Mr Swaney is to be preferred. On a balance of probabilities I find that the applicant suffered on each of the occasions in 1966, 1967, 1971 and 1975 an injury to a disc in his spine, that the disc was degenerate and pre-disposed him to each of those injuries, that each injury temporarily aggravated the symptoms of that degeneration but that none of the injuries caused, aggravated or accelerated it or caused it to recur. Accordingly, I also find on a balance of probabilities that, although the incident on 24 December 1978 occurred because of the pre-dispostion of the applicant to suffer injury because of the degenerate condition of a disc in his spine, that condition Was not caused, contributed to, aggravated or accelerated by any of the earlier incidents, or in any other way by the applicant's employment by the respondent Commission or the Commonwealth." Farlier in its reasons for decision the Tribunal had said in relation to the intermittent episodes of pain suffered by the applicant (paragraph 15): "Having regard to all the evidence, particularly the records made by Mr Swaney and Mr Fogarty in 1974 and 1979, I am satisfied that between July 1966 and December 1978 the applicant did not suffer continual pain in his back or his leg and that the only lengthy periods during which he suffered such pain followed the incidents to which I have referred above. The days on which he was absent from work apart from those periods were few and isolated from one another." Counsel for the applicant submitted that the only conclusion open to the Tribunal on the evidence before it was that the injury suffered by the applicant on 15 June 1966 (which was admitted by the respondent to be an injury by accident arising out of or in the course of his employment by the Commonwealth and in respect of the incapacity arising from which compensation was paid under the 1930 Act) contributed to the incapacity which manifested itself following the incident of 24 December 1978 and led to the appellant's retirement from his employment on medical grounds in December 1982. The Tribunal, he said, misdirected itself in its approach to the evidence: it failed to view the material as a whole and was, in counsel's words, preoccupied with the medical evidence. The Tribunal had, he submitted, failed to take into account what 'counsel described as the uncontradicted evidence of the applicant that he had suffered continuous pain in his back since the incidents in 1966, 1967 and 1971. The inference was irresistable, he said, that the incident in 1966, or the series of incidents from 1966 to 1971, had resulted in a pre-disposition in the applicant to further back injury. In particular, counsel submitted that the finding of the Tribunal to which reference has already been made that the applicant did not suffer continual pain in his back between July 1966 and December 1978 was wrong and there was no evidence to support it. The evidence of the applicant on the point was, he said, uncontradicted and the applicant had not been cross-examined upon the matter or been given an opportunity to dispute or explain the statements to the contrary attributed to him in the medical reports tendered in evidence. We are not persuaded that the -Tribunal fell into any error of law. It is apparent from a reading of the reasons for decision given by the Tribunal that the Tribunal gave careful consideration to the whole of the material placed before it including the evidence of the applicant. His evidence was that he had been discomforted by pain in his lower back of various degrees of intensity ever since the incident in 1966. However, Mr Fogarty, one of the medical practitioners called as witnesses on behalf of the applicant gave evidence in chief that the applicant had told him in 1979 that "he had variable back pain on occasional days, but not all the time". Mr Fogarty's report dated 30 May 1979 was to similar effect. In answer to questions from the Tribunal, Mr Fogarty said that the applicant had told him that he had only slight trouble with his back until 24 December 1978 and that "it was only after lifting the crate at that time that his pain suddenly became bad again". During the cross-examination of Mr Swaney it was put to him that the applicant had given evidence that from the time of the first incident in 1966 he continued to have a degree of pain in his back. Mr Swaney stated that that was not what the applicant had told him when he saw the applicant in 1974: that the applicant had said that the back pain produced by the accident in 1966 had eventually settled down and that he had again developed back pain following the incident in 1967. Further, in his report dated 19 July 1974 Mr Swaney said - "His previous complaint of low back pain appears to have settled down entirely since there are no symptoms nor any signs of this persisting." It was not suggested to Mr Swaney that he had not correctly recorded what the applicant had told him in this regard. The significance to Mr Swaney of the degree and continuity of pain experienced by the applicant was explained in his evidence. He said that if the applicant could show that he had a condition which was .continuously troublesome and was not relieved at all between the episodes referred to, -he would agree -that: the applicant had aggravated his condition permanently. He added that if the applicant had permanently aggravated his condition, he would have had not a constant but an increasing level of pain. Mr Berryman also considered that the frequency and level of pain in the lower back suffered by the applicant over the period were significant. Mr Berryman's evidence on this aspect has already been set out in the passage at paragraph 12 of the Tribunal's reasons for decision already quoted. In the light of the totality of the evidence it was, we think, clearly open to the Tribunal to find as it did that the applicant did not suffer continual pain in his back between July 1966 and December 1978. This finding being open to the Tribunal, as we are satisfied it was, we are umable to conclude, as counsel for the applicant urged us to do, that the Tribunal was "preoccupied" with the medical evidence to the exclusion of that given by the applicant. As previously mentioned the Tribunal preferred the evidence of Mr Swaney to that of the other medical practitioners evidence. In his report dated 17 October 1979, Mr Swaney said that the applicant appeared to have suffered a low back strain on 24 December 1978 and that "on the balance of probability this was due to an episode which occurred on 24-12-78 and was completely unrelated to all the previous episodes. This patient has a degenerate disc, which I think is unrelated to his previous episodes and is a constitutional condition and this was just another episode, which occurred in his own time and is unrelated to the previous episodes." In his evidence before the Tribunal Mr Swaney said that he believed each of the incidents to be isolated temporary aggravations of a pre-existing condition, mamely disc degeneration. He would not accept the suggestion that the first incident in June 1966 could have caused or initiated the applicant's disc degeneration. He explained the temporary nature of the aggravation caused by each of the incidents in the following terms: "But on the pathology of this condition I believe that each of these episodes has been a temporary aggravation. Now, if I may just explain to you what I mean by that, that this man had a degenerate nucleus in this disc, whichever disc it was - and it surprises me that it is as high as it is; that disc may remain quiescent until it fragments and then it may stretch the annulus of the disc, which gives rise to pain. That may not be a permanent stretching force, because fragments of the disc will replace themselves, such as a torn cartilage in a knee will do so. If they do not do that, the annulus will reinforce itself, and this is why bed rest is essential in the treatment of this condition in the early stages, to ailow the annulus to reinforce itself and contain that disc. Now, if this man had done permanent damage, that nucleus would have been progressively stretching the disc and ultimately it would burst but there would have been no relief in between these episodes." The essential question before the Tribunal was one of fact to be determined on the -material before it. It had the advantage of hearing the oral evidence of the medical practitioners and of questioning them upon the considerations relevant to the issues which it had to determine. We, of course, do not have that advantage and, in any event, it was for the Tribunal to determine on the whole of the material which of the conflicting views it should adopt. It was clearly open to it to accept that advanced by Mr Swaney and it has not been demonstrated that the Tribunal fell into any error of law in its approach to the material before it. The applicant's counsel was critical of the references in the Tribunal's decision to section 29 of the 1971 Act, submitting that the Tribunal had demonstrated that it was confused as to the true issue that arose and that the Tribunal "confused the approach to injury in the sense of 8.27 of the Compensation (Commonwealth Government Employees) Act 1971 with the approach to injury in the sense of s.29 of the Act". At one stage of his address counsel asserted that s.29 of the Act could have no application in the circumstances of this case. However, in reply, he contended that the applicant was entitled to compensation under 5.27 (injury) or 5.29 (disease) or, indeed, s.30 (disease due to the nature of employment). Counsel's argument, in our view, failed to take into account the grounds which were set out in the application to the Tribunal or the submission put to the Tribunal on the applicant''s behalf that the case was one of disease under 8.29 of the Act rather than of -injury under s.27.- Once these Matters are appreciated, the references in the Tribunal's reasons for decision to s.29 of the Act are readily understandable. We are unable to perceive anything in those reasons from which the conclusion can be drawn that the Tribunal was confused as to the basis upon which the applicant's case was rested or as to the relationship between ss.27 and 29 of the Act or their possible application to the facts as found by the Tribunal. As to the reliance before the Court on s.30 of the Act, it is enough to say that no case was made before the Tribunal based on that section and the applicant cannot be allowed to raise it for the first time on an appeal which, by reason of s.44 of the Administrative Appeals Tribunal Act 1975, is limited toa question of law. In our opinion none of the submissions for the applicant can be upheld. We are satisfied that the Tribunal did not misdirect itself as to the law to be applied and that the findings of fact which it made were clearly open to it on the material before it. In those circumstances the appeal must be dismissed with costs. I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment herein of their Honours Mr Justice Sweeney, Mr Justice Fisher and Mr Justice Neaves. 'Rho Cader. Associate Dated: 23 Noy ITS