Safety, Rehabilitation and Compensation Act 1988 ss 4(1)("aggravation", "ailment", "disease", "impairment", "permanent"), (8), 7(6), 14(1), 24(1)-(7A), (9)

Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399

The tribunal has decided that Mr Florit does not qualify for lump sum compensation in respect of his gastric ulcer condition. This is because it is not an "injury" under the Safety, Rehabilitation and Compensation Act 1988 for the purposes of the section governing lump sum compensation for permanent impairment. We considered also that, in any event, Mr Florit's situation did not meet the requirements of table 8.1 of the Comcare guide such as to generate a payment, even if Mr Florit had an injury.

Mr Giordano Giulio Florit ("the applicant") began working at the Canberra College of Advanced Education ("CCAE") as a security officer in 1982. The work involved six-hour foot patrols during an eight-hour shift. Mr Florit was allowed the use of no umbrella. When he was wet because of rain falling during a patrol he would change in an office. Healthwise Mr Florit developed pain in his hands in 1981, in his shoulders in 1984 and later in his knees and feet. He saw a CCAE doctor who in turn referred him for specialist attention. It seems he had a form of arthritis. The CCAE made Mr Florit the college's sole parking inspector in 1986. The arthritis grew worse. He ceased work at the CCAE in 1990 and retired in 1992. He has lived at Batemans Bay since 1990.

Comcare ("the respondent") accepted liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act")[1] for aggravation of Mr Florit's palindromic arthritis in a reviewable decision in January 1990. Further, in 1990, Comcare accepted liability for Mr Florit's stomach ulcer which was taken to have resulted from the medications Mr Florit took for his arthritis. On 2 February 2001 Mr Florit lodged with Comcare a claim for lump sum compensation for permanent impairment for which ss 24 and 27 of the Act provide. Comcare rejected this claim in a primary decision and again on reconsideration. Mr Florit appealed to the Administrative Appeals Tribunal ("the tribunal").

Mr Florit must have suffered an injury, as defined in s 4(1) of the Act, if he is to receive any compensation under the Act. An injury is defined in s4(1) as:

(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;

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;

Where a disease is involved it must satisfy the definition of a disease in s 4(1):

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;

The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

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.

In the present case Mr Florit has been found to have compensable injuries because of two diseases, aggravated arthritis and stomach ulcers. He is seeking a lump sum payment of compensation in respect of permanent impairment. An impairment is defined in s 4(1) of the Act:

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;

An impairment is permanent in accordance with the definition of "permanent" in s 4(1) where it is:

For an employee to succeed in a claim for an alleged permanent impairment the requirements in s 24 of the Act must be satisfied:

Compensation for injuries resulting in permanent impairment

24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, if:

(a) the employee has a permanent impairment other than a hearing loss; and

(b) Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

(7A) Subject to section 25, if:

(a) the employee has a permanent impairment that is a hearing loss; and

(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

an amount of compensation is not payable to the employee under this section.

...

(9) For the purposes of this section, the maximum amount is $80,000.

Section 4(8) of the Act makes abundantly clear that the "injury" referred to in s 24(1) must be one for which the respondent is liable under s 14(1) of the Act:

(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.

The issues that arise are therefore:

(a)

Does Mr Florit suffer from a compensable injury under s 14 of the Act so as to satisfy the basic requirement for a permanent impairment payment?

(b)

If the answer to (a) is yes, has Mr Florit an impairment under the Act?

(c)

If the answer to (b) is yes, is the impairment permanent?

(d)

If the answer to (c) is yes, what is the degree of permanent impairment?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A) DOES MR FLORIT SUFFER FROM A COMPENSABLE INJURY UNDER S 14 OF THE ACT SO AS TO SATISFY THE BASIC REQUIREMENT FOR A PERMANENT IMPAIRMENT PAYMENT?

Counsel for Mr Florit clarified at the start of the hearing that the permanent impairment claim relates to Mr Florit's chronic ulcer syndrome only and not to his arthritis. The argument was that Mr Florit's work at the CCAE aggravated his arthritis, that he took non-steroidal anti-inflammatories ("NSAIDs") for the arthritis, that these caused the stomach ulcer and the ulcer treatment caused a permanent impairment. Reliance was placed on table 8.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare guide")[2]. Table 8.1 accords levels of impairment relating to "Disorders of the oesophagus, duodenum, stomach, small intestine, pancreas, colon, rectum and anus".

Counsel for Comcare submitted that the aggravation of palindromic arthritis was temporary only and the effects ceased long ago. Any impairment had its onset before the Act commenced in 1988 and, applying the transitional provisions in the Act, there would be no compensation payable for permanent impairment. Comcare also argued that any ulcer suffered as a result of taking NSAIDs would have healed by 28 September 1990, the date of a report by gastroenterologist, Dr A Clarke, who found at that time, by means of an endoscope, that the ulcer had completely healed. Comcare also argued that, if Mr Florit still suffers from an ulcer condition, not all reasonable rehabilitative treatment has been undertaken. This is required under s 24(1)(c) of the Act.

It is possible that Mr Florit does not suffer any longer from a stomach ulcer condition. We base this on the following medical evidence. Mr Florit had not seen any treating specialists for a stomach ulcer since 1990 when he made his permanent impairment claim in 2001. Dr R Schellenberger, a general surgeon who saw Mr Florit for medico-legal purposes, took a history that he had had no gastric upsets since about 1988. He has, however, taken medication over the years to avoid stomach problems. He considers that he still suffers from stomach problems. He apparently has gastrointestinal problems when he stops taking Famotidine (in the form of Pepcidine). He develops symptoms in the epigastric area extending towards the umbilicus which are relieved by food. It is a dull ache without associated heartburn. His medications at the time of the hearing were Panadeine Forte, Vioxx, Panadeine, Feldene cream and Pepcidine, not all of them used daily and not all required for stomach problems. He identified the Panadeine and Pepcidine as medications to control his stomach problem.

Dr S J Moulding, Mr Florit's general practitioner, ascertained in 2003 that Mr Florit was infected with the Helicobacter Pylori organism which is associated with peptic ulceration. The Helicobacter Pylori infection was not associated with Mr Florit's employment. There is a two-week course of medication available to eradicate this organism. On 12 September 2003 a test indicated that a course of treatment had been successful and the organism had been eradicated. Dr Moulding considered, however, in a report dated 13 October 2003, that Mr Florit had a continuing need for anti-inflammatory medication for his arthritis, that such medication could induce a risk of stomach ulcers, and so Mr Florit had a continuing need for a "protective H2 antagonist or similar medication" on a permanent basis.

On this evidence, therefore, it is possible that Mr Florit does qualify for a payment under s 24 of the Act. It may help focus discussion if consideration is given to table 8.1 in the guide to see what must be present for a payment to be made. Mr Florit was arguing that his impairment was at a 15% level in accordance with table 8.1. The descriptor for a 15% award is:

Objective signs of disease present AND at least TWO of the following:

. dietary restrictions needed for control

. drugs needed for control

. weight loss of up to 10% of desirable weight

We see some difficulties here. There may be no objective signs present in this case. Also, a succession of medical expert witnesses told the tribunal that dietary control is no longer used to help manage stomach ulcers. Mr Florit's representatives made clear that he was not relying on weight loss. Mr Florit's representative did argue that the requirement for continuing NSAIDs was an objective sign of the disease. She also clarified that the particular ailment contended for was a chronic ulcer condition (according to evidence from Dr M Gillies, a gastroenterologist/physician) or chronic ulcer syndrome (according to evidence from Dr N A Talley, a physician/gastroenterologist). As an alternative formulation it was suggested that the ailment was a "predisposition to the developing of ulcers associated with taking NSAIDs". This raises a question whether a predisposition can in a medical sense be a disease or an injury under the Act. We return to this later. The above material was intended to indicate that the applicant in this matter must surmount a number of difficulties if he is to succeed.

On the question of whether Mr Florit bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399, 412-413. His conclusion was that in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where material necessary to an applicant's case is not laid before the tribunal the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant. In the present case it is in Mr Florit's interests to convince the tribunal that he should receive his compensation.

We proceed now to consider the medical evidence in order to ascertain the strength of Mr Florit's case. We had no modern evidence from Dr A Brook, a rheumatologist, who saw Mr Florit in 1986 and 1989. He provided Comcare with a report dated 5 September 1989 dealing with the arthritis. He diagnosed palindromic rheumatism, a condition that is recurrent, fluctuates, flares up and then settles. He said that, while nearly half of patients who suffer palindromic rheumatism develop chronic arthritis he divined from pathology results that the prognosis was good that Mr Florit would not develop rheumatoid arthritis. Dr Brook was confident that Mr Florit's employment was not a cause of the palindromic rheumatism. Studies had shown that the use of joints, injury to joints, climatic changes and local weather conditions were excluded as causes of arthritis.

Dr Schellenberger saw a connection between Mr Florit's employment and his arthritis. Exposure to inclement weather was able to cause joint inflammation with secondary joint degeneration, destruction and deformity. Such damage is irreparable. She rejected the suggestion that Mr Florit's employment, involving exposure to cold and rain, and much walking, caused only temporary exacerbation of the arthritis. She said that rheumatoid arthritis is erosive and causes a permanent worsening. Dr Schellenberger claimed a great deal of experience with rheumatoid arthritis. Dr Schellenberger tended to dispense with the diagnosis of palindromic rheumatism. She regarded all these conditions as rheumatoid arthritis with some instances more severe than others.

Mr Lenczner, for Comcare, queried whether Dr Schellenberger as a surgeon would be as au fait with the literature on rheumatology as a rheumatologist. Dr Schellenberger claimed she had engaged in continuous education that her surgical work is now more medically oriented than it used to be. However, she was unconfident in answering whether all palindromic rheumatism causes permanent damage to joints. She started by saying she did not know and then proceeded to say the thought that if one has inflammation of a joint then it must do permanent damage to the joint. Dr Schellenberger, who works in Melbourne, said that Melbourne's wet October had produced arthritic problems in that city in 2003. She did not address the views presented in [19] by Dr Brook. Likewise she disagreed with rheumatologist Dr I J Duncan who, in a report dated 9 April 1990, wrote that palindromic rheumatism does not cause joint destruction. Dr Schellenberger refused to countenance any studies showing a lack of correlation between climatic conditions and arthritis.

Dr Schellenberger was adamant that Mr Florit was at risk of ongoing stomach ulcers from taking NSAIDs. She considered that the Helicobacter cure was effective but that Mr Florit could still develop ulcers from taking NSAIDs. She explained the lack of symptoms since 1990 as perhaps the result of a "silent" ulcer. In her view, almost everyone taking significant amounts of NSAIDs develops stomach ulcers. She did say, however, that Vioxx, which Mr Florit takes, is understood to produce ulceration in very few people.

Dr Moulding told the tribunal in his evidence that Mr Florit remained on NSAIDs during the Helicobacter treatment. He had been unaware of Dr Talley's suggestion that the NSAIDs be suspended during the Helicobacter treatment. Dr Moulding said he would hesitate to remove the therapeutic medication as there could be problems without perceptible symptoms as a result. He had not dealt with Mr Florit as regards his diet. Patients are now recommended to avoid any foods they find cause trouble. He considered that Mr Florit's impairment was 15% under table 8.1. He saw the history of ulcers in the past as "objective signs".

Dr Gillies spoke in terms of Mr Florit having a predisposition towards developing stomach ulcers. Dr Gillies admitted to some difficulty in suggesting a diagnostic classification for the predisposition. There is not a diagnostic classification of chronic ulcer syndrome. The effect of taking NSAIDs would depend on the level of predisposition. Dr Gillies addressed table 8.1 and saw objective signs in that Mr Florit would have had an inflamed stomach discernible by gastroscopy were it not for Pepcidine. Dr Gillies agreed with Dr Schellenberger in not regarding the eradication of Helicobacter Pylori as necessarily the end of the ulcers. She saw ulcers as still a possible result of taking NSAIDs. She explained that Helicobacter Pylori causes duodenal ulcers and that NSAIDs cause gastric ulcers and aggravate duodenal ulcers. As regards dietary control, Dr Gillies said that dietary control is not used these days, that medication has obviated the need to prescribe diets. A patient can decide for himself or herself what to include or exclude in the diet.

Dr Gillies considered that Mr Florit has an impairment under the Act because he has a "malfunction of a bodily system" in that he either produces too much acid or the mucosal protection from his gastric mucous is less effective than it should be. Dr Gillies identified the epigastric discomfort Mr Florit reported suffering in 2003 if he lingers long between meals as tantamount to an ulcer. Dr Gillies referred to silent ulcers that may have been present after 1990. She said that ulcers tend to come and go.

Dr Talley agreed in large part with Dr Gillies. He diagnosed a persistent tendency to gastric ulceration. Peptic ulceration was said to be caused by NSAIDs and/or Helicobacter Pylori in 90-95% of cases, with the remainder being idiopathic. In a report dated 11 June 2003 Dr Talley considered that if Mr Florit suffers a recurrent ulcer every time he takes a NSAID, or experiences abdominal pain every time he takes a NSAID such as Vioxx, he has a permanent "incapacity" whether or not the symptoms can be controlled by Pepcidine. Dr Talley concluded on 9 November 2003 that, if Mr Florit's rheumatism is work-related then he has a chronic ulcer syndrome which is "perpetrated" (probably should read "perpetuated") by him taking medication for his arthritis and a 15% assessment would be consistent with the American Medical Association guide to evaluation of permanent impairment. Dr Talley said in his evidence that he had assigned a permanent impairment rating on the presumption that objective signs of an ulcer were present. He considered none of the descriptors in table 8.1 were met. There were no objective signs, of course, because of the treatment for Helicobacter Pylori. He withdrew his support for a 15% assessment in his oral evidence. Dr Talley placed the risk of ulceration from NSAIDs at only 1% per year.

Dr N W McGill, a rheumatologist, disagreed with Dr Schellenberger. He saw palindromic rheumatism as bouts of inflammation stemming from the immune system. It causes no progressive joint damage. It is to be contrasted with rheumatoid arthritis which produces damaged joints and swollen joints. Dr McGill said that cold weather does not cause inflammation in the joints. There is no data to suggest that it does. He noted that cold is a conventional form of treatment of acute inflammation. He did not accept that walking, as in patrolling as a parking inspector, can cause arthritis. He saw walking as beneficial along the lines of the "use it or lose it" aphorism. He saw no evidence that Mr Florit's palindromic rheumatism merged into rheumatoid arthritis. There were no signs of rheumatoid arthritis on examination.

Dr McGill addressed the use of the NSAID, Vioxx. Vioxx, he said, is known to cause less gastric ulceration than former NSAIDs such as Feldene. He thought there may be no risk at all.

Dr R Whittaker, another rheumatologist, was confident that Mr Florit's palindromic rheumatism had not become rheumatoid arthritis because the symptoms were transitory and he was seronegative. On examination Dr Whittaker had found no evidence of acute inflammatory joint disease or of any chronic deforming arthritis. He sided with Dr McGill on the lack of connection between climatic conditions and arthritis. He admitted that cold weather may emphasise pre-existent symptoms but he would go no further. Dr Whittaker disagreed with Dr Schellenberger's assumption ([21] above) that inflammation must cause joint destruction. He called it a flawed hypothesis. He saw Dr Schellenberger's own examination of Mr Florit as producing results inconsistent with this theory. She found no swelling in the ankles and feet but she found arthritic symptoms in the upper limbs. Dr Whittaker agreed with Dr McGill that walking is not problematic for arthritis sufferers. It is an activity recommended for patients.

Dr Whittaker had experience prescribing Vioxx, a new NSAID, which he considers relatively safe for patients with a past history of ulcers. He allowed that Vioxx can produce nausea or dyspepsia but they are a far cry from ulcers.

From this medical evidence we make the following findings. First, we find that Mr Florit has palindromic arthritis and not rheumatoid arthritis. We are most heavily influenced by the fact that Mr Florit was seronegative and by the evidence from the rheumatologists, whose area of specialty this is, that there were no signs of rheumatoid arthritis on examination. We note also that the rheumatologists were in agreement that the severity of arthritis is not affected by climatic conditions or by long distance walking. We found Dr Schellenberger's evidence on these matters less satisfactory. It seemed based on anecdotalism rather than the types of scientific study referred to by Dr McGill. This finding suggests that there is likely to be no connection between Mr Florit's work for CCAE and his need to take NSAIDs.

We find that Mr Florit has a predisposition to develop ulcers when he takes NSAIDs. The gastroenterologists were agreed on that point. However, this will avail Mr Florit little because his need for NSAIDs is not, in our view, associated with his former employment by the CCAE. Even if there was a connection, we consider it difficult to find table 8.1 satisfied such that a 15% assessment is in order.

The need for "objective signs" means, in our view, the need for objective signs of a stomach disorder to be present on an ongoing basis such as, for example, by way of endoscopy. In a medical context the adjective "objective" is used to refer to a sign or symptom that can be perceived by others in addition to the patient. A symptom only the patient can perceive is "subjective". The attempts in the evidence here to identify an objective sign in Mr Florit's case were tortured and artificial.

There was no evidence that Mr Florit must adhere to dietary restrictions for control of his condition. Dr Gillies obtained a history suggesting that Mr Florit needs to pace his food consumption or he has epigastric pain. Dr Talley noted that indigestion was not a major problem. Mr Florit does not appear to have to avoid specified foods on medical advice.

We also find it difficult to conceive of Mr Florit's predisposition to develop an ulcer as an injury for the purposes of s 24(1) of the Act (see [9] above). Such an injury would be in the nature of a disease. A disease must be an ailment or the aggravation of an ailment (see [4]-[5] above). Dr Gillies conceded (in [24]) that there is no diagnostic category covering a condition such as this. We would therefore find it difficult to hold that there is an ailment as defined in s 4(1) of the Act.

There is yet another conceptual problem in applying s 24 of the Act. Section 24(1)(c) requires that an employee must have undertaken all reasonable rehabilitative treatment for any impairment before the impairment can be a foundation for a compensation award. The policy reason for this requirement is that an impairment must be limiting to the extent required by the relevant table in the Comcare guide despite all medication and rehabilitation. The evidence here was that, so far as any ulcer or propensity towards developing an ulcer is concerned, it causes no problems if Mr Florit takes his Pepcidine.

We therefore find that Mr Florit does not have an injury such as to satisfy the requirement for an injury in s 24(1) of the Act. This means that issues (b), (c) and (d) in [11] do not arise.

We have decided that Mr Florit does not qualify for lump sum compensation in respect of his gastric ulcer condition. This is because it is not an "injury" under the Act for the purposes of lump sum compensation for permanent impairment. We considered also that, in any event, Mr Florit's situation did not meet the requirements of table 8.1 of the Comcare guide such as to generate a payment, even if Mr Florit had an injury.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M D Miller AO, Member

Signed: .....................................................................................

Associate

Dates of hearing 1 - 2 December 2003

Date of decision 15 April 2004

Counsel for the applicant Ms J Godtschalk

Solicitor for the applicant Pamela Coward & Associates Lawyers

Counsel for the respondent Mr J Lenczner

Solicitor for the respondent Sparke Helmore

[1] http://www.austlii.edu.au/au/legis/cth/consol\_act/sraca1988368/.

[2] http://www.comcare.gov.au/publications/pig/fs-cover.htm.