Dufty and Comcare [2008] AATA 1011 and Monti and Australian Postal Corporation [2008] AATA 878 involved claims for injury which pre-dated the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 amendments.
The 'material contribution' test set out in Comcare v Sahu-Khan (2007) 156 FCR 536 therefore applied in both cases to the level of causation required for an 'injury' to be established under section 4(1) (as it was then) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Both cases provide a useful indication of the kind of medical evidence the Administrative Appeals Tribunal (Tribunal) requires to be satisfied that, on the balance of probabilities, the requisite causal connection exists.
MONTI AND AUSTRALIAN POSTAL CORPORATION [2008] AATA 878
On 3 November 2006, during his shift as the 'bull ring' supervisor in an unloading area at Australia Post, Mr Monti experienced what he first described as numbness, and later as pins and needles, in the three middle toes of his right foot. On the following day, he developed pain in his right thigh, and leg, and approximately a month later, reported to his general practitioner that he suffered some back pain.
Mr Monti had a previous workers' compensation claim for an episode of lower back pain on the right side in 2000, for which liability was accepted. He made a full recovery and returned to his normal duties after this injury.
The Tribunal was satisfied that Mr Monti was a credible witness of truth who had related what had happened to him to the best of his ability.
The Tribunal preferred the evidence of a Dr Maxwell, who examined Mr Monti at Australia Post's request over the evidence of the treating doctor, Dr Mahony, primarily on the basis that all reports showed a disc protrusion on the left side of Mr Monti's spine while his reported symptoms were on the right side of his body.
The Tribunal stated (at paragraph 53):
'Dr Mahony would have us believe that a disc protrusion on the left side as shown on the MRI could cause the symptoms of which Mr Monti complains which are on the right side. That is just anatomically impossible, and was confirmed by Dr Maxwell when he gave his evidence'.
The Tribunal concluded that:
'...whilst there may be a temporal connection in Mr Monti developing numbness in his right foot during his work hours on 3 November 2006, we cannot be satisfied that this extends it to a causal connection with his work within the terms of the legislation, that is that he suffered an ailment or an aggravation that was contributed to in a material degree by his employment or that he suffered either a physical or mental [injury] arising out of, or in the course of, his employment (Comcare v Sahu-Khan (2007) 156 FCR 536)'.
This decision is important in that the Tribunal made it clear that a temporal connection between work and the relevant injury is not enough to establish the causal link required to establish an 'injury' as (then) defined under section 4(1) of the SRC Act. Rather the Tribunal showed a requirement for 'definitive and unambiguous' medical evidence to establish that connection.
DUFTY AND COMCARE [2008] AATA 1011
On 22 November 2002, Ms Dufty was injured when she slipped and fell as she was walking through a shopping centre during her lunch hour. Comcare accepted liability to compensate her in respect of injuries to the neck, right shoulder and upper arm, contusions of wrists and hands, bilateral ankle sprain (bilateral) and sprain of other specified sites of the right hip and thigh.
On 3 May 2005, Comcare affirmed an earlier determination that, as at 7 January 2005, it was not liable to pay compensation for medical expenses and/or incapacity arising from the accident. The reason for this decision was that at that time Ms Dufty did not suffer from the effects of the compensable injuries.
In August 2006, Ms Dufty claimed to have suffered cervical and cervicodorsal myalgia, lumbar injury, chronic adjustment disorder with elements of anxiety and depression, and headaches arising from the previously compensable circumstances. Comcare denied liability in respect of the new conditions.
Apart from deciding whether Ms Dufty's previous injuries had resolved, the primary issue before the Tribunal was whether the necessary causal connection existed between the new conditions and the fall in 2002.
The Tribunal affirmed Comcare's decision that Ms Dufty had ceased to suffer the effects of the conditions which had resulted from her fall in 2002, for which liability had previously been accepted.
However, the Tribunal found that the new conditions of cervical and cervicodorsal myalgia, chronic adjustment disorder with anxiety and depression, and headaches had a sufficient connection to the fall in 2002 so as to satisfy the causal connection required for an 'injury' to be established under the definition (then) at section 4 of the SRC Act. It consequently found that Comcare should accept liability for those new conditions.
The Tribunal also concluded that Ms Dufty's claimed lumbar condition was not materially contributed to by her employment and that liability should therefore not be accepted in respect of that condition.
This decision is notable in that the Tribunal was willing to accept a connection between Ms Dufty's psychological condition and her physical myalgia condition. Although it had found that the effects of the physical conditions had ceased by January 2005, the Tribunal was persuaded that Ms Dufty's psychiatric condition had been caused by the pain of her physical injuries, even after the physical cause of her pain had resolved.
It is also notable in that the Tribunal was unwilling to conclude that Ms Dufty's fall, and the resulting effects, represented an aggravation or acceleration of her degenerative spinal condition. This conclusion was a result of a careful examination, in the context of the balance of probabilities, of the causation of Ms Dufty's current back problems, and particularly the role played by the trauma of the fall, and the natural ageing process, in her condition reaching its current state.
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