An aggravation of a pre-existing disease may be established by showing heightened susceptibility to debilitating symptoms, even where immediate symptoms abate upon ceasing work, and the Ordinance does not require an aggravation of the symptoms of a disease.
Later decisions that cite Asioty v Canberra Abattoir Pty Ltd
Decisions cited by Asioty v Canberra Abattoir Pty Ltd
ASIOTY v. CANBERRA ABATTOIR PTY LTD [1989] HCA 40; (1989) 167 CLR 533
F.C. 89/036
Workers' Compensation (A.C.T.)
High Court of Australia
Mason C.J.(1), Brennan(2), Dawson(3), Toohey(4) and McHugh(5) JJ.
CATCHWORDS
Workers' Compensation (A.C.T.) - Incapacity - Disease due to nature of employment - Aggravation of pre-existing disease included in "disease" - Worker suffering from constitutional dermatitis not caused by employment - Employment causing condition to flare - Abatement on ceasing work - Condition more difficult to treat - Workmen's Compensation Ordinance 1951 (A.C.T.), ss. 6(1) "disease", 9(1).
HEARING
1989, May 31; June 1; September 20. 20:9:1989DECISION
MASON C.J. I agree with the reasons for judgment of Toohey J.BRENNAN J. I agree with the reasons for judgment of Toohey J.
DAWSON J. I agree with the reasons for judgment of Toohey J.
TOOHEY J. The appellant suffers from a condition which produces a dermatitis of the hands. One medical view is that it is a constitutional condition called Amyloidosis Cutis, which may have a genetic factor. Another view is that it is "a dermatitis of unknown cause". It will be necessary to say more about this difference of medical opinion later in these reasons. The appellant also has a condition called Lichen Amyloidosis, described by one medical witness as "a disease of unknown origin". This condition, it seems, also causes a dermatitis which affects the appellant's feet.
2. The appellant was born in Egypt in 1931. For much of his life he has worked as a waiter, at first in Egypt and more recently in Australia. On 10 October 1980 he began work with the respondent as a slaughterman. Not long after he started work, the appellant developed dermatitis of his hands and also, it appears, of his feet. As a result he was off work from time to time. For these periods he was paid workers' compensation; it must have been accepted that the dermatitis constituted an injury in the nature of a disease which was caused or aggravated by the appellant's employment. However, the matter has proceeded on the basis that any compensable injury relates to the dermatitis of the hands only.
3. On 12 January 1983 the respondent filed an application under the Workmen's Compensation Ordinance 1951 (A.C.T.), seeking a termination of weekly payments of compensation from 30 June 1982. The appellant countered with an application, seeking a continuance of payments on the basis of total incapacity for work, alternatively on the basis of partial incapacity. On 13 December 1984 the Court of Petty Sessions, acting as arbitrator under the provisions of the Ordinance, made an award to the effect that the appellant was entitled to weekly payments on the basis of partial incapacity. Both parties appealed to the Supreme Court of the Australian Capital Territory. Kelly J. allowed the present appellant's appeal and substituted a finding of total incapacity. The Full Court of the Federal Court allowed the present respondent's appeal to that Court and ordered that payments of compensation cease from 18 August 1983.
4. The approach taken by the Federal Court appears from a passage which it is
necessary to set out in full:
" The evidence before the Court of Petty
Sessions established that Mr Asioty was
suffering from a disease of the chronic type
which was not caused by his work as a
slaughterman. It was a constitutional
condition called Amyloidosis Cutis. That
condition was not subject to any perceptible
progress if some external stimulus was
applied. Nevertheless the evidence
established that the congenital condition
was aggravated by Mr Asioty's work as a
slaughterman, in that the work produced
additional symptoms or an intensifying of
existing symptoms which were temporarily
incapacitating. Thus the worsening or
itensifying (sic) of existing symptoms may
properly be described as an aggravation. It
does not follow, in our view, that once
those worsened or intensified symptoms had
abated the likelihood of a return of the
symptoms, or the fact that the condition may
be harder to control at some time in the
future, amount to an aggravation of the pre-existing
condition. An aggravation involves
the onset of additional symptoms or the
intensifying of existing symptoms.
A return of the symptoms of the disease
if Mr Asioty resumed certain types of work
could amount to a further aggravation or
recurrence of the pre-existing disease, but
the likelihood of a return of the symptoms
could not be described as an aggravation or
recurrence within the meaning of the
definition of 'disease'. The fact that it
may be inadvisable for Mr Asioty to return
to his work as a slaughterman is due to the
nature of the congenital disease itself and
not to the aggravation which incapacitated
him until 18 August 1983 and which was the
basis of compensation payments to that date."
restoration of the orders made by Kelly J.
5. The appellant's entitlement to compensation depends on s.9(1) of the
Ordinance which, at the relevant time, read:
" Where -The term "disease" is defined by s.6(1) to include -
(a) a workman is suffering from a disease
and is thereby incapacitated for work;
or
(b) . . .
and the disease is due to the nature of the
employment in which the workman was
employed, his employer shall . . . be liable
to pay compensation . . . as if the disease
were a personal injury by accident arising
out of or in the course of his employment."
"any physical or mental ailment, disorder,
defect or morbid condition, whether of
sudden or gradual development, and also
includes the aggravation, acceleration or
recurrence of a pre-existing disease".
6. It is apparent that the Federal Court accepted that so long as the appellant's work produced additional or intensified symptoms, he was suffering from a disease within s.9(1) of the Ordinance. But, in that Court's view, once the symptoms had abated the likelihood of their return did not constitute a disease.
7. There can be no doubt that the dermatitis of the appellant's hands,
whether produced by Amyloidosis Cutis or otherwise, constitutes
a physical
ailment, disorder, defect or morbid condition; it may answer each of those
descriptions. It is also clear that the symptoms
produced while the appellant
was at work constituted an aggravation of that condition, hence that the
appellant was then suffering
from a disease within the terms of the Ordinance.
Once the appellant ceased work and his symptoms abated, compensation continued
to be payable only so long as
a) he was still suffering from a disease; b) the disease was due to the nature
of his employment; and c) he was thereby incapacitated
for work.
8. The phrase "aggravation, acceleration or recurrence of a pre-existing disease" in the Ordinance definition of "disease" is not as extensive as that considered by this Court in Federal Broom Co. Pty. Ltd. v. Semlitch [1964] HCA 34; (1964) 110 CLR 626. The Court was there concerned with a definition of "injury" in the Workers' Compensation Act 1926 (N.S.W.) which included "the aggravation, acceleration, exacerbation or deterioration of any disease". Windeyer J. commented, at p 639: "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 same is no doubt true of the words in the Ordinance with which we are presently concerned.
9. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankinson [1967] HCA 10; (1967) 117 CLR 19, at p 26, Barwick C.J. noted that the words in the New South Wales Act "may overlap in their denotation but none the less they connote different consequences of work in the employment upon pre-existing non-employment disease". Some of the cases - Hankinson is one - are concerned with the progress of a disease which itself is progressive in nature. Although, in the present case, one of the medical witnesses, Dr Robinson, considered the appellant's condition to be Amyloidosis Cutis and slowly progressive, that was not the evidence preferred by the arbitrator. And, despite the conclusions of the Federal Court, which rely very much on Dr Robinson's evidence, there was no challenge to the arbitrator's rejection of Dr Robinson's opinion.
10. The arbitrator preferred the evidence of Dr Heeler because, being the
"treating doctor for some time", he was in "the best position
to make an
assessment". Kelly J. also relied on Dr Heeler's assessment, which was that
the condition of the appellant's hands had
started off as constitutional but
that it was aggravated by something the appellant handled at work. Dr Heeler
was of the further
opinion that, if the appellant returned to work as a
slaughterman, "I would expect his hands to flare up again". He expected the
same consequences if the appellant took up any occupation that "involves
having his hands constantly wet or handling potentially
irritant chemicals
like acids, alkalines, strong solutions, and similar sorts of preparations".
Indeed, Dr Heeler thought that the
underlying dermatitis condition was now
more chronic, "more liable to a flare up". It is necessary to note one other
comment by Dr
Heeler because it finds its place in the passage from the
judgment of the Federal Court set out earlier in these reasons. The doctor
said:
"If you have an underlying constitutionalThat observation, I understand to be the source of the reference by the Federal Court to the appellant's condition being "harder to control at some time in the future".
dermatitis, the more you make it flare up,
by whatever means, the more recalcitrant it
becomes and difficult to treat. It tends to
resist treatments which could have got it
under control."
11. In the same passage the Federal Court said, in regard to Amyloidosis Cutis: "That condition was not subject to any perceptible progress if some external stimulus was applied." This observation seems to have been derived from remarks of Moffitt J. in Federal Broom Co. Pty. Ltd. v. Semlitch (1964) NSWR 511. In that case the worker's schizophrenia, a condition which had produced recurring delusions of abdominal pain but resulted in no incapacity for work, deteriorated after an injury at work to the worker's right side. The injury produced abdominal pain, the physical cause of which ceased but, as a result of the worker's psychiatric or psychological condition, her delusions of abdominal pain were accompanied by a belief that she was incapacitated for work. The question for the Court was whether her condition fell within the definition of "injury" in s.6 of the Workers' Compensation Act 1926 (N.S.W.). By majority the Full Court of the Supreme Court of New South Wales held that it did.
12. Moffitt J. said, at p 519:
" A disease which is progressive according
to its nature may, by reason of external
stimuli, have its progress accelerated.
Before such acceleration can be found to
have caused incapacity there must be more
severe or additional symptoms arising from
the acceleration which have produced an
incapacity which would not otherwise have
existed. In this event there is an
incapacity caused by an acceleration of the
disease. Symptoms in the case of a
progressive disease however may be only
evidence of the acceleration without
producing in themselves any harmful effects,
in which event there may be an acceleration
of the disease with no present resultant
incapacity."
13. In the case now before this Court, however, the appellant's condition is not to be taken as progressive. The question is not therefore whether external stimuli accelerated its progress. More to the point are later comments of Moffitt J. when dealing with a disease which "once contracted may be of a chronic type not subject to any progress or any perceptible progress" (at p 519). In such a case, his Honour continued, at pp 519-520: "The production of incapacitating symptoms, or the intensifying of existing symptoms, to the point of their becoming incapacitating is incapacity arising from a deterioration or aggravation of the disease." While these dicta may be appropriate to determine what constitutes an aggravation of a disease in many cases, they are not conclusive in all situations. In each case the ultimate issue to be resolved must be whether the employee's situation falls within the terms of the Ordinance.
14. In the course of its reasons in the present case, the Federal Court
said:
" It was mutually agreed on the hearing ofIf this statement is to be read as suggesting that the three questions identified earlier in these reasons were not live issues before the Federal Court, I am satisfied, having regard to the course of the hearing in that Court, that the statement does not reflect the entirety of the argument. Instead, the statement tends to elide the three questions.
the appeal to this Court that the Supreme
Court had correctly identified the issue to
be whether the pre-existing disease (the
basic dermatitis) was so aggravated as a
result of the nature of Mr Asioty's
employment by the company that in its then
quiescent state it constituted an
aggravation, acceleration or recurrence of
the pre-existing disease which causes the
incapacity from which Mr Asioty suffers."
15. While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.
16. But, in that form, is the disease due to the nature of the appellant's
employment with the respondent and is the appellant thereby
incapacitated for
work? The answer to each of those questions is "yes", for the reasons given by
Kelly J. His Honour said:
" If -
(a) a workman has a chronic,
non-incapacitating pre-existing
disease;
(b) the nature of his employment causes for
the first time a temporary
incapacitating aggravation of the
disease;
(c) the aggravation ceases when the workman
stops work;
(d) the aggravation is renewed when he
again starts work in the same
employment; and
(e) the pre-existing disease rendered more
recalcitrant by the episodes of
aggravation now prevents the workman
from working in a large range of
occupations because such work will
cause a similar aggravation
it seems to me that the nature of the
employment has aggravated the pre-existing
disease to the point where it is incapacitating."
17. I have underlined the words "for the first time" and "now" in Kelly J.'s summary because I think it was the failure of the Federal Court to direct attention to what underlies those words that led their Honours into error. To say, as their Honours did, that "the likelihood of a return of the symptoms could not be described as an aggravation or recurrence" is to overlook that it was the appellant's employment with the respondent that caused for the first time an aggravation which was incapacitating and which is still incapacitating because it prevents the appellant from returning to work, at any rate work of a certain kind.
18. The Federal Court concentrated on the fact that once the appellant ceased work with the respondent his symptoms abated. That is not disputed but, in treating that fact as conclusive, their Honours applied the dicta of Moffitt J. in Federal Broom Co. Pty. Ltd. v. Semlitch too strictly. It is true that Moffitt J. spoke of the aggravation of a disease as consisting of the production or intensifying of its symptoms. And this will often be the case. However, there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. The Federal Court did not meet the appellant's claim that, by reason of the aggravation caused by his employment with the respondent, he is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work.
19. To reach the conclusion that the appellant is suffering from an aggravation of a disease (and therefore a disease within the terms of the Ordinance), that that disease was caused by the nature of his work with the respondent and that he is thereby incapacitated is not necessarily to hold that the appellant is totally, as distinct from partially, incapacitated for work. That is a matter with which the Federal Court did not deal because, on its approach, there was no relevant incapacity. In addition to the medical evidence, the arbitrator heard from Kenneth Kinnane, an employment counsellor with the Commonwealth Employment Service, that given the need for the appellant to avoid irritant substances, blood, prolonged wet work and high temperatures and any job requiring the wearing of rubber or leather gloves, coupled with his limited knowledge of English, there were no jobs available to the appellant in Canberra. Kelly J. held that, in the light of that evidence, the appellant must be regarded as totally incapacitated for work.
20. That was a conclusion Kelly J. was entitled to reach on the evidence. It is consistent with the approach taken by this Court in Arnotts Snack Products Pty. Ltd. v. Yacob [1985] HCA 2; (1985) 155 CLR 171 and there is no reason why this Court should interfere with it.
21. The appeal should be allowed. The orders of the Federal Court should be set aside and the orders made by Kelly J. restored. The appellant should have his costs of the appeal to the Federal Court and of the appeal to this Court.
McHUGH J. I agree with the orders proposed by Toohey J. and with his reasons.
ORDER
Appeal allowed with costs.Set aside the orders of the Full Court of the Federal Court and in lieu thereof order that the appeal to that Court be dismissed with costs.