COMPENSATION FOR INJURY BY AGGRAVATION OF A PRE-EXISTING DISEASE WITH PARTICULAR REFERENCE TO

LONG v KMART AUSTRALIA LIMITED [2016] TASSC 6

 BY W.A. AYLIFFE SC[1]

 

 Introduction

 A claim by a worker for compensation arising from an injury which is an aggravation of a pre-existing disease often proves to be particularly challenging and more difficult than a claim arising from an injury simpliciter.

Most of the difficulties associated with an aggravation claim arise from the particular definition in section 3(1) of the Workers Rehabilitation and Compensation Act 1988 (“the Act”).  This definition provides:

Injury includes -

(a)    …

(b)    the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration …”.

The judgment of Porter J in Long provided helpful clarification in relation to a number of issues which often arise in aggravation claims. Consistent with the methodology in the judgment of Porter J in this case note where the context admits the term ‘aggravation’ is generally used to embrace the five (5) substantives:

“recurrence, aggravation, acceleration, exacerbation or deterioration”.

A temporal link between the employment and the injury is not essential

 It is not necessary that the worker prove a physiological change consequent upon the aggravation occurred during working hours.  In fact it is not essential that the relevant recurrence, aggravation, exacerbation or deterioration commenced at work.

In Long it appears the disc in the worker’s low back may have prolapsed immediately after the worker had driven home from work.  It was argued that the bending, twisting, lifting and arching of the worker’s back on a continuous basis during his employment in particular on the two (2) days prior to the prolapse were causative.

At [78] in Long Porter J stated:

“The test does not require an ‘aggravation’ to occur, commence or conclude in the course of the employment.  The question is simply whether there has been an ‘aggravation’ of a pre-existing disease, and whether the employment has the requisite degree of causal connection”.

At [43] the learned Judge stated:

“However, unless specifically dealing with one substantive, it is convenient when referring to the collection, to use ‘aggravation’ as a shorthand reference”.

The substantives should not be interpreted in an unduly restrictive manner

 In Long the burden of the worker’s case was that the repetitive physical work provided a continuous taxation of the worker’s pre-existing degenerative disease particularly so on the 1st and 2nd March 2013 because on the afternoon of the 1st March 2013 the worker had commenced to suffer an unrelenting and continuous low back pain.  It was put on behalf of the worker that continuing to work on these two (2) days provided added insult to the worker’s worsening degenerative low back disease.

Between [43] and [50] of his decision Porter J carefully traced the law with respect to the meaning to be attached to the various substantives referred to in the relevant definition in section 3(1) of the Act which is set out above.

The learned Judge emphasised that the various substantives while assisting in describing shades of meaning should not be approached in a mutually exclusive fashion and that in many cases there will be overlap between the various substantives.

At [50] Porter J concluded:

“The substantives have different connotations but may overlap.  The essence of the operation of the provision is that, irrespective of whether the existing disease pathology has been advanced or worsened, there is a relevant ‘aggravation’ if the symptoms and difficulties emanating from it have increased and become more serious.”

At [70] in the determinative part of the decision in Long the learned Judge held that the relevant substantives:

“are not synonymous, and carry different shades of meaning, but at the same time as they might connote different things, there is nothing to suggest that they are mutually exclusive, and further, that they do not overlap”.

By way of an example the substantive aggravation may well involve acceleration, exacerbation and deterioration particularly in respect of a pre-existing degenerative low back disease.

If the employment was the major or most significant causative factor in  worsening the pre-existing disease then that is sufficient whether or not the worsening fits tidily into a particular substantive.  The overarching question is whether the employment as the major or most significant causative factor has worsened the pre-existing disease.

At [50] Porter J observed:

“In either event, where the employment has contributed to the requisite degree, there is an ‘injury’.  The injury is the ‘aggravation’ of the pre-existing disease, not the aggravated disease. In the case of progressive disease, the concept of acceleration may be more readily applicable, depending on the circumstances. …”.

At [48] Porter J quoted with approval from the judgment of Windeyer J in Semlitch v Federal Broom Co Pty Ltd[2]:

“The words have somewhat different meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another.  The question each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in the effects upon the patient. …”

The employment must be the major or most significant contributing factor to the ‘aggravation’ not to the pre-existing disease

 As already noted Porter J at [50] observed that the injury is the aggravation of the pre-existing disease not the aggravated disease.  It is not necessary for the worker to prove that the employment was the major or most significant causative factor of the aggravated disease.  It is sufficient if the worker proves that the employment was the major or most significant contributing factor to the aggravation.

Accordingly, in the author’s view, matters such as previous incidents, accidents and insult to the diseased lower back which pre-date the relevant employment and also matters such as hereditary factors are not relevant to the judgment as to whether the employment has been the major or most significant contributing factor to the aggravation.  Accidents and insult which have occurred outside of work after the relevant employment has commenced could be relevant in assessing whether the employment was the major or most significant causative factor to the aggravation.  However it seems passably clear pre-employment issues that have contributed to the pre-existing disease are not relevant to the judgment as to whether the employment was the major or most significant causative factor of the ‘aggravation.’

Porter J stated between [78] and [80]:

“The question is simply whether there has been an ‘aggravation’ of a pre-existing disease, and whether the employment has the requisite degree of causal connection. … some of what the Commissioner said suggests that he looked to whether the employment had the required causal contribution, not to the particular ‘aggravation’ of the pre-existing disease, but also to the disease itself. … It is the ‘aggravation’ as such to which the employment must have the required causal connection”.

 Circumstances between the injury and the incapacity

 Depending on the facts it may be enough if the incapacitated worker establishes that the employment was the major or most significant contributing factor to an aggravation of a pre-existing back injury even if the aggravated disease further progresses outside of the employment to a final pathological outcome resulting in incapacity.  In Long the employer suggested the prolapse did not start until the worker arrived home after the worker left the workplace.  It was contended by the employer that the act of driving home and twisting to get out of the car caused the prolapse.

At [77] in Long Porter J stated the inquiry into causation by the Tribunal might include a scenario where:

“the work conditions, superimposed on the disease, have created a situation in which the minor physical acts of driving and attempting to get out of the car have precipitated the prolapse”.

In the author’s view it appears clear that in some circumstances the incapacity will be held to “result from”[3] the injury not withstanding subsequent non employment precipitating factors. The causation test requires a common sense evaluation of the causal chain.[4]

 Medical evidence does not exclusively determine the primary questions

 The decision in Long reminds us that the primary questions to be resolved are whether there has been an ‘aggravation’ and whether the employment is the major or most significant contributing factor to the aggravation. These issues are to be resolved on all the evidence not just an expert opinion from a doctor or ergonomist. Even if there is no expert conclusion in favour of the worker the understory of the expert evidence combined with factual evidence may be sufficient to resolve liability in favour of the worker.

Medical evidence is of course important but it is not determinative.  The overall burden of the medical evidence and the factual evidence is to be considered in order to address these two (2) primary questions which arise in an aggravation case.

The burden of the primary questions is whether the employment has worsened the pre-existing disease.

It will often be quite impossible for a doctor or radiological evidence to ascribe an actual commencement point to a pathological change in a pre-existing disease.

In the author’s view  Long establishes that the worker does not carry such an onus and often the worker could not possibly meet such a test.

Nor in the author’s view is it necessary for a worker to persuade a doctor to label his or her diagnosis as coming within one or more of the substantives (of course it is helpful if the doctor is prepared to designate one or more of the substantives).  The ultimate question however  is whether the medical evidence and the factual evidence viewed as a whole makes out the case of the worker id est establishes the employment was the major contributor in the worsening of the pre-existing disease.

Porter J at [46] of his decision in Long stated:

“The question of whether there has been an ‘aggravation’ is purely a question of fact based on a common sense evaluation of the whole of the evidence, and not exclusively on the medical evidence: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45(1940) 64 CLR 538 per Rich ACJ at 563, Starke J at 565, McTiernan J at 573”.

Further at [51] of his decision Porter J noted:

“Whether or not the employment is “the major or most significant” contributing factor is a matter of judgment, bearing in mind that the qualifying phrase is, as with ‘substantial’, used in a relative sense: Mercer at 747 [27]”.

Inadequate reasons and failure to make critical findings

 The Tribunal has a duty in most cases including after a lengthy and complicated hearing to give reasons and make critical findings of fact.

At [96] of his decision Porter J held:

“In general terms, a failure to state material findings of fact may be an error of law. This is because the reasons fail to serve the purposes of facilitating an appeal, and of informing the parties. At the same time, a failure to state findings of fact may conclusively show that the decision-maker has failed to take into account relevant material or has taken the wrong approach: Attorney-General v Smith no A87/1994 at p 9, [1994] TASSC 138 at [34]Yung v Adams (1997) 80 FCR 453 at 482”.

At [97] Porter J noted that it is the law in Tasmania that there was a judicial duty required of a magistrate to “make findings with respect to the essential facts relevant to the elements of the charge”.  The learned Judge went on to note in that paragraph that the principle has been applied with  the necessary modifications to an appeal from the Workers Rehabilitation and Compensation Tribunal.

At [98] of his decision Porter J concluded:

“Whatever be the true jurisprudential basis, there are authorities in this State which establish, (under the umbrella of inadequate reasons), that it is an error of law for the Tribunal to fail to make findings which are, at least, essential to the application or operation of one of the substantive provisions of the Act”.

In Long it was of the essence of the worker’s case that the continuous taxation of the worker’s back particularly on the 1st and 2nd March 2013 after the worker’s low back became symptomatic had been the major or most significant causative factor in the aggravation ultimately resulting in the prolapse.

At [106] of his decision Porter J stated:

“In my view, specific findings as to the nature of the tasks undertaken in the employment, and to the extent the evidence permitted, the likely effects on Mr Long’s spine and underlying pathology, were essential. This follows from reasons which I have given in relation to the proper approach to the ultimate question. The situation is very similar to that considered in Attorney- General v Smith (above). Such findings have not been set out; they ought to have been made and stated. Ground 2 is also made out to that extent”.

The learned Judge in footnote 6 of his decision at page 23 had observed that the absence of reasons and findings must, if such absence is to amount to an error of law, relate to the relevant reasons.  His Honour referred to Civil Aviation Safety Authority v Central Aviation Pty Ltd.[5]

It will be appreciated that the right of appeal of an aggrieved party from a decision of the Tribunal to a Judge of the Supreme Court of Tasmania is determined by section 63(1) of the Act which limits the right of appeal to a point of law.

It will be readily appreciated that failure to give reasons or make findings of fact on matters which appear irrelevant to the legal tests and principles that must be applied will probably not amount to an error of law.

Author’s observation

 It is the author’s view that the jurisdiction of the Workers Rehabilitation and Compensation Tribunal is a potentially very large and important jurisdiction.  In Long there was no dispute that the worker had been incapacitated since the onset of the prolapse on the 2nd March 2013.  There may have been dispute as to whether the worker remained into the future totally incapacitated but undoubtedly the worker had a strong case to that effect.

 Where the worker has undergone a fusion he or she is likely to have a claim for 20% or more whole of person permanent impairment and therefore prima facie has a claim to a substantial lump sum under section 71. If also permanently incapacitated he or she will  have a claim to ongoing wages for 20 years from the date of the injury as well as substantial past and future medical costs.

Given that a litigant in the Supreme Court is able to appeal on both a question of law and a question of fact[6] it is respectively submitted that it is unjust to workers and employers to deprive them of a right of appeal on questions of fact.

Dated: 30 August 2016

W.A. AYLIFFE SC

BARRISTER   

Derwent & Tamar Chambers


[1]     Counsel for the worker at the Tribunal hearing and on the appeal heard by Porter J.

[3]     Section 69 of the Act

[4]     Jones v Devonfield A8/1996; Kooranga Cement P/L v Bates (1994) 35 NSWLR 452 at 463

[5]     (2009) 253 ALR 263 per Perram J

[6]     Section 40 Supreme Court Civil Procedure Act 1932