REASONS FOR JUDGMENT
BROMBERG J:
42 Between 1977 and 2008, the appellant ("Mr Smith") worked as a meat inspector. From 1983, he was engaged by a Commonwealth service now known as the Quarantine and Inspection Service. In November 2008, Mr Smith stopped work due to severe pain in his right hip. He was operated on and his hip was replaced. On 14 March 2010, he was medically retired from his employment with the Commonwealth.
43 Mr Smith applied to the Respondent ("Comcare") for worker's compensation. His application came to be dealt with by the Administrative Appeals Tribunal ("the AAT") (Smith v Comcare [2011] AATA 662). The AAT affirmed Comcare's decision to reject Mr Smith's claim. Mr Smith's challenge to the AAT's decision was dismissed by the primary judge (Smith v Comcare [2012] FCA 502).
44 There is no issue that Mr Smith suffers from hip osteoarthritis. The main issue before the AAT was whether Mr Smith's hip condition was a degenerative condition which had been aggravated by Mr Smith's work as a meat inspector. If Mr Smith's condition was aggravated by his employment, Comcare would be liable to pay Mr Smith compensation in accordance with s 14(1) of the Safety, Rehabilitation and Compensation Act (1988) (Cth) ("the Act").
45 At the time relevant to this litigation, the expression "injury" was defined by the Act to include, inter alia, a "disease suffered by an employee" and the definition of "disease" encompassed the aggravation of any ailment, being an ailment or aggravation that "was contributed to in a material degree by the employee's employment": s 4(1) of the Act and the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act (2007) (Cth), Sch 1, s 42. By reference to the definition of "disease", the critical question before the AAT was whether Mr Smith's employment had contributed in a material degree to the aggravation of his osteoarthritis.
46 Before the primary judge, Mr Smith's counsel argued that as well as determining whether the aggravation of Mr Smith's osteoarthritis had been contributed to in a material degree by his employment, it was also incumbent upon the AAT to determine when the aggravation had occurred. A deeming provision contained in s 7(4) of the Act governed that latter question. It provided:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
47 Mr Smith contended before the AAT that the scheme of the Act demanded a particular order for the resolution by the AAT of the material contribution and the s 7(4) issues. First, the AAT had to identify an ailment which had been contributed to in a material degree by the employment and second, and only when that first step had been completed, the AAT needed to ask the question posed by s 7(4) as to when the injury had been sustained. It was contended for Mr Smith before the primary judge that the reasons of the AAT showed that it had determined the s 7(4) question at an earlier point in its reasons (at [63]) than when it determined the issue of material contribution (at [72]-[82]). This was said to be not a matter of mere technicality, because by inverting the correct order in which the two questions were to be asked, the Tribunal had misled itself. Particular reliance was placed on [81] of the AAT's reasons because the contents of that paragraph, so it was argued, showed that the Tribunal had been misled into thinking that the question it had to consider was whether Mr Smith's employment in 1997 alone (the year that the AAT determined the injury occurred under s 7(4)) had contributed to the aggravation of Mr Smith's osteoarthritis in a material degree. Mr Smith contended that that was not the proper question at all, the correct question being whether Mr Smith's employment over the whole period of his employment had contributed to the aggravation of his osteoarthritis.
48 The primary judge was prepared to assume that the order in which those questions needed to be dealt with was as contended for by Mr Smith and that the AAT had inverted the correct order by determining the issue raised by s 7(4) before determining whether there was a disease by reason of the aggravation of Mr Smith's ailment. However, the primary judge rejected Mr Smith's contention that the consequence of the AAT inverting the correct order was that the AAT had only considered Mr Smith's employment in the year 1997, rather than considered the whole period of Mr Smith's employment, in determining whether that employment had contributed to the aggravation of Mr Smith's osteoarthritis in a material degree. The primary judge reasoned that when [81] of the AAT's reasons is read in the full context of those reasons, and particularly [79]-[82], the meaning that was sought to be ascribed by Mr Smith to [81] was not made out. The primary judge concluded that Mr Smith's reading of [81] was "antithetical to the surrounding context and the balance of the Tribunal's reasons". The primary judge was satisfied that the Tribunal's reasons demonstrated that its focus was not limited to Mr Smith's employment in 1997 and that the AAT correctly approached the issue of aggravation by looking at Mr Smith's employment over the whole period from 1977 to 2008.
49 The primary judge concluded that once that was accepted, no material error could arise from the AAT having considered the s 7(4) issue in advance of the material contribution question. Even if it had been incorrect for the AAT to consider the issue posed by s 7(4) before the existence of the disease in question had been assessed, that error had no impact on the manner in which the AAT approached the issue of material aggravation. The issue which Mr Smith sought to ventilate was therefore regarded as having no relevance to the outcome of the proceeding and, in those circumstances, the primary judge dismissed Mr Smith's application.
50 To provide a clear understanding of the issue before the primary judge and the basis for this appeal, it is necessary to set out [79] to [83] of the reasons of the AAT:
79. The majority of those studies and, indeed, the medical reports in evidence support the need for heavy lifting in employment in order to have an association with hip osteoarthritis. The Juhakoski report also implicated light objects but only in the context of "much lifting" thereof. Dr Browne, who implicated the employee's flexed position to be relevant, also required that to be done in the context of lifting. His evidence in relation to the DVD was that he observed no lifting. I am satisfied that Mr Smith's meat inspection duties at Wagga did not involve him in heavy lifting and that the only lifting of any moment was in relation to the turning of items at the viscera table. Even in that regard, the motion was more one of quickly flipping the item over rather than of lifting. I am satisfied that Mr Smith's inspection duties at Wagga did not make a material contribution to the aggravation of his hip osteoarthritis.
80. Mr Smith described a greater degree of heavy work when allocated to relieve at more remote abattoirs. However, there is no evidence specific to the nature of the work at those other abattoirs. In any event, I am satisfied that the short periods of Mr Smith's allocations to those abattoirs was not such as to make a material contribution to his hip osteoarthritis.
81. On Mr Smith's evidence, the work at Wagga was more onerous prior to 1993 when he was involved in mutton as well as beef inspections. However, the evidence of Dr Browne and Professor Sambrook was that the aggravation of Mr Smith's hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset.
82. There was no medical evidence which supported a material contribution to Mr Smith's hip osteoarthritis from repetitive turning by Mr Smith to sterilise his knife or to any specific incident of trauma to the hip. There is no evidence that Mr Smith's hygiene inspections and load out duties involved any lifting.
83. I am satisfied that Mr Smith's employment as a meat inspector did not materially contribute to his hip osteoarthritis. Accordingly, the decision under review is affirmed.
51 It is necessary to observe by reference to the findings made by the AAT at [11] and [18]-[25], that the meat inspection duties (at Wagga and "more remote abbatoirs") to which reference is made in [79] and [80] of the AAT's reasons is a reference to work which occurred in the period 1987-2008 and not the earlier period of 1980-1986 when Mr Smith worked at Forbes and Blayney as described at [12]-[17] of the AAT's reasons.
52 It is also necessary to set out [63] of the AAT's reasons. That paragraph was headed "Onset" and concluded with the AAT's finding in relation to s 7(4) of the Act:
Onset
63. Dr McGill described Mr Smith's hip condition as a constitutional and degenerative condition. Mr Smith was treated for a hip problem in 1970 but this settled in a few days. He received an injection in 1997 but Dr Browne's opinion, based on the apparent site of the injection, was that this was more related to the buttock area than to Mr Smith's hip. Dr Huntsdale noted complaint of hip pain in 1990 which was manageable at that time. Dr Browne noted that reference and said that the underlying constitutional condition may have demonstrated some aggravation at that time but he considered that this would not have remained latent for another seven years until 1997. His opinion was that the aggravation relevant to Mr Smith's claim was in 1997. Mr Smith saw Dr Miniter in 1997 for an injection to his hip. Dr Sambrook also recorded a history of onset in the late 1990s when Mr Smith had an injection for pain. I am satisfied that the aggravation of Mr Smith's hip osteoarthritis is a disease which, in accordance with s 7(4) of the Act, can be taken to have been sustained in 1997.
53 On the hearing of the appeal, Mr Smith emphasized the unnecessary and erroneous finding made by the AAT at [63] in relation to s 7(4) of the Act. From that platform Mr Smith contended that in dealing with whether Mr Smith's employment had made a material contribution to the aggravation of his ailment, the AAT's focus had been distracted by the s 7(4) question so as to limit to 1997, or shortly beforehand, the scope of its examination of the material contribution of Mr Smith's employment. The AAT's reasons at [81] were said to confirm the myopic approach which the AAT took.
54 I accept that having ultimately rejected that Comcare was liable to pay compensation to Mr Smith it was unnecessary for the AAT to determine the s 7(4) question. It is only when liability under s 14 of the Act is established that it becomes necessary for the deeming provision in s 7(4) to operate and for a finding to be made so that it can.
55 I accept also that the use by the AAT of the word "disease" in [63] is curious. If it was intended to be used by reference to its defined meaning in the Act, it raises a contradiction. The word "disease" is defined to encompass a condition which the employee's employment has contributed to in a material degree. The AAT concluded at [79] and [80] that no such material contribution was made. It is likely therefore that the AAT's use of the word was not intended to take its defined meaning. In any event, nothing turns on that curiosity. It was not Mr Smith's contention that, if meant in its defined sense, the use of the word demonstrated an error of any consequence to the disposition of the appeal.
56 The real issue that arises out of [63] of the AAT's reasons is whether it sign posts the AAT's departure from the task it was required to undertake of assessing whether the aggravation of Mr Smith's hip condition was contributed to in a material degree by his employment.
57 Although Mr Smith was employed as a meat inspector in abattoirs from 1977, his employment by the Commonwealth commenced in 1983 and concluded in 2008. To the extent that Mr Smith relied upon work performed by him in that period as making a material contribution, the AAT was required to examine and assess that work in combination with the medical evidence which dealt with the possible connection between the work and the aggravation of Mr Smith's ailment.
58 There was a rational basis for the AAT to have considered whether Mr Smith's employment contributed to the aggravation of his ailment, by identifying the date of clinical onset of that aggravation. The time at which an ailment becomes patent, in the sense that its symptomology becomes observable, may well be probative of the materially contributive event or events responsible for the ailment. That is clearly the case in circumstances where, as here, there was medical evidence before the AAT (to which the AAT referred at [56] and [63]) as to the period of time, from the date of causation, that a condition may be expected to remain latent. Dr Brown's evidence was that whilst osteoarthritis could occur spontaneously it would probably not be asymptomatic for a period as long as seven years. Dr Brown gave evidence, which the AAT appears to have accepted, that onset was likely to have occurred in 1997 and not earlier and was related to Mr Smith's duties performed from 1993-1997 (see at [56]).
59 It is apparent, however, that in addressing the issue of 'onset' the AAT did so, (at least in part) to make the unnecessary s 7(4) finding. Nevertheless, the findings made at [63] had a forensic purpose beyond the application of s 7(4) of the Act. The date of onset had, on the evidence before the AAT, a temporal connection to causation and was relevant for that purpose. For the AAT to have considered that connection does not demonstrate the AAT left the path it was required to travel.
60 In considering the relationship between Mr Smith's employment and the aggravation of his ailment, the AAT considered the medical evidence relied upon by both Mr Smith and Comcare. The AAT's reasons suggest that it understood that evidence to be based upon histories recounting the nature of Mr Smith's work as an inspector and his symptomology over the whole period of his employment.
61 The AAT dismissed Mr Smith's application because it was satisfied that his employment as a meat inspector made no material contribution to the aggravation of his hip osteoarthritis. It came to that view because the medical evidence and the evidence from studies of the causes of osteoarthritis which the AAT accepted concluded that there needed to be heavy lifting in the employment in order for that employment to have led to hip osteoarthritis.
62 The AAT was satisfied that whilst Mr Smith was engaged at Wagga his duties did not involve him in heavy lifting. That finding was made at [79]. On its face it appears to relate to the period 1987-2008 because that is the period in which Mr Smith worked at Wagga.
63 At [80] and [81] the AAT dealt with two aspects of Mr Smith's evidence which suggest his involvement in heavier or more onerous work than that which the AAT regarded as generally applicable to his work at Wagga. At [80] the AAT appears to accept that Mr Smith was involved in "a greater degree of heavy work" when allocated to relieve at more remote abattoirs. As the reasons elsewhere identify, this work was also performed in the period 1987-2008, whilst Mr Smith was substantively employed at Wagga. Given the short periods of Mr Smith's allocation to these abattoirs, the AAT was satisfied that the duties there performed made no material contribution to the aggravation of Mr Smith's ailment.
64 At [81], the AAT returns to Wagga and to Mr Smith's evidence that the work at Wagga was "more onerous" prior to 1993. It dismissed that evidence on the basis that the evidence of both Dr Brown and Professor Sambrook (each called by Mr Smith) "was that the aggravation of Mr Smith's hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset."
65 It is somewhat curious that the AAT returned to consider Mr Smith's duties at Wagga given its earlier finding that the work at Wagga involved no heavy lifting and made no material contribution to the aggravation of his ailment. That curiosity is relied upon by Mr Smith to contend that by so stating, the AAT made it clear that it did not take into account Mr Smith's Commonwealth employment other than the period immediately preceding 1997 to assess the contribution made by that employment to the aggravation of Mr Smith's ailment. That submission is somewhat assisted by the fact that nowhere, in its consideration of the relationship of the employment to the aggravation of the ailment, do the AAT's reasons refer to Mr Smith's Commonwealth employment at the Forbes abattoir between 1983-1986. The evidence and the manner in which Mr Smith's case was run, confirms that Mr Smith did rely upon that earlier period.
66 Those matters do suggest that the AAT focused upon Mr Smith's employment post 1993. Taken together with the AAT's reasons at [79] and [80], I would accept that the period of employment assessed by the AAT was 1993-2008. Whilst Mr Smith contends for a narrower period, his appeal is founded on the basis that the AAT confined its assessment to a narrower period than it should have because it erroneously answered the s 7(4) question and did so prior to determining liability.
67 It is the reference in [81] to "1997", the year which (at [63]) the AAT determined to be the year that the aggravation of the ailment was notionally sustained for s 7(4) purposes, which Mr Smith relies upon to connect the content of that paragraph to the s 7(4) finding. Without that connection, Mr Smith's contention that the AAT was distracted from examining the whole period of Mr Smith's employment is hollow because the asserted distraction has no nexus to the asserted error of law.
68 In my view there is no relevant connection between the content of [81] and the s 7(4) finding. At [81], the AAT dealt with the evidence of actual (not notional) onset given by Dr Brown and Professor Sambrook. It will be recalled that Dr Brown's evidence was that the likely 1997 onset was related to duties performed by Mr Smith from 1993-1997 and not earlier. It is that evidence which the AAT is referring to when at [81] it says "Mr Smith's hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset". Based on that evidence, the reasons at [81] suggest that the AAT came to the view that Mr Smith's duties prior to 1993 were not responsible for the aggravation. The AAT was entitled to come to that view on the evidence before it. Both Dr Brown and Professor Sambrook were called by Mr Smith and, unfortunately for Mr Smith, their evidence was not as helpful to his claim as he might have wished.
69 The fact that the AAT made the s 7(4) finding had no relevant impact on the finding made by the AAT at [81] and, in my view, no bearing upon the manner in which the AAT determined liability.
70 For those reasons, grounds 1 and 2 of Mr Smith's appeal must be dismissed.
71 Grounds 3-5 of the appeal relate to an observation made by the primary judge at [22]. His Honour there said that the appellant had not suggested that the AAT had erred in concluding that the injury should be taken to have occurred in 1997. Mr Smith contended that such a suggestion was implicitly made. However, whether or not the suggestion was made, the primary judge's observation was of no consequence to his decision to dismiss Mr Smith's application and the challenge to that observation can have no bearing on the disposition of the appeal.
72 The appeal should be dismissed with costs.
I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.