Aloma Sagigi and Comcare
[2012] AATA 705
•11 October 2012
[2012] AATA 705
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3247
Re
Aloma Sagigi
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr I Alexander, MemberDate 11 October 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Presiding Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – accepted condition – applicant no longer entitled to compensation – claim for permanent impairment – applicant not entitled for permanent impairment – whether applicant continues to suffer the effects of her condition – whether her employment made a material contribution to her new conditions – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 19, 24, 27
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr I Alexander, Member11 October 2012
Ms Sagigi was employed by the Australian Customs Service as a Customs Officer from May 1989 until she resigned in December 1997.
On 5 November 1996, she suffered an injury at work while lifting baggage for security examination at Sydney Airport’s International Terminal. She claimed workers’ compensation for acute muscle strain. Comcare accepted liability for her condition of ‘lumbar sprain and torn erector spine muscles’. In November 1997, Comcare issued a determination that from 9 August 1997, Ms Sagigi was no longer entitled to compensation in respect of her accepted condition.
Ms Sagigi made claims for permanent impairment of her back and for plantar fasciitis. These were the subject of an application for review by the Tribunal and were dismissed.
On 6 January 2006 Ms Sagigi submitted a further claim for permanent impairment of her back, also denied by Comcare.
Ms Sagigi sought review of this determination by the Tribunal. The Tribunal affirmed the decision under review being satisfied that her injury of November 1996 was not the cause of her current conditions and that she had no permanent impairment as a result of the injury.
In April 2010, Ms Sagigi made a further claim for lower back muscular tear and plantar fasciitis. She noted that her right knee was most affected by her injury. Comcare denied liability for aggravation of the lumbar sprain, plantar fasciitis and sprain of unspecified side of knee and leg (right).
On 8 December 2010, Ms Sagigi lodged a further compensation claim for permanent impairment of her back, her plantar fasciitis and her knee. On 18 March 2011, Comcare issued a reconsideration affirming the determination of 28 May 2010.
Comcare was satisfied her current conditions are not related to her work injury in 1996. All claims were rejected in a reviewable decision dated 30 June 2011.
On 9 August 2011, Ms Sagigi lodged an application for review with the Tribunal.
ISSUES
The issue for us to consider are:
(i)whether Ms Sagigi continues to suffer from the effects of her injury of 5 November 1996;
(ii)whether she suffers from bilateral plantar fasciitis and, if so, whether her employment at the Customs Service made a material contribution to the condition; and
(iii)whether Ms Sagigi’s employment made a material contribution to the her leg condition.
DOES MS SAGIGI CONTINUE TO SUFFER FROM THE EFFECTS OF HER INJURY OF 5 NOVEMBER 1996?
Ms Sagigi said that the injury to her lower back occurred when she bent over to check a passenger’s baggage. As she rose, she straightened and twisted to check the next assignment. She said she had felt something was not right in her back.
She was diagnosed with ‘musculo-ligamentous strain lumbo-sacral spine.’ Dr Kirsh orthopaedic surgeon, saw Ms Sagigi on 23 May 1997 and reported on 27 May 1997 that a CT scan was normal. He noted that she had “90 degrees of straight leg raising of her lower limbs and a good range of movement of the lumbar spine [and] is tender in the left para-vertebral region.”
Dr Berry specialist general surgeon, saw Ms Sagigi on 7 June 1999, and noted that a CT scan showed no evidence of disc protrusion. He considered that “her history and physical findings are consistent with a discogenic injury and it may be that there has been an annular rupture or internal derangement of the disc rather than a frank protrusion.”
Ms Sagigi saw Dr Rosenberg orthopaedic surgeon, on 11 December 2003. He said in a report dated 15 December 2003 that Ms Sagigi suffers from “chronic back pain, in keeping with disc injury.” In a report of the same date, this time addressed to her GP, Dr Pillotis, he said she had “some slight loss of lumbosacral disc height but no evidence of significant instability.” The x-ray report of 18 December 2003 stated that there were “a small degree of disc space narrowing…at the L4/5 level” and suggestions of “muscle spasm” with mild degenerative changes in the lumbosacral facet joints. Dr Rosenberg also recommended further MRI scans if her symptoms became unmanageable.
Dr McGill consultant rheumatologist, examined Ms Sagigi on 16 March 2001. He concluded that any genuine effect of the physical aspects of her work ceased to play a role in her condition by three months after the injury in November 1996. When Dr McGill examined her again on July 10 2006, he repeated that opinion. He also added that there was no physical symptom or condition related to her employment. He indicated that minor degenerative disc disease is more likely because most 39 year old people have some degree of lumbar disc degeneration.
On 22 February 2008 Dr McGill saw Ms Sagigi again and reported:
She had excellent muscle bulk, a normal neurological examination and she demonstrated a full range of spinal movement. With respect to her lumbosacral flexion, she reached such that her fingertips were 1cm above the dorsum of her feet while maintain her leg straight. Schober’s test (a more specific assessment of lumbar flexion than simple observation) showed an excellent range of lumbar movement.
After his last examination of Ms Sagigi, on 12 June 2012, Dr McGill reported that she demonstrated reduced lumbar flexion (75% normal) but said “there is no relationship between her employment with Customs and the physical structure of her low back, her functional capacity, or her symptoms.”
Dr Bodel orthopaedic surgeon, examined Ms Sagigi on 2 August 2007. His diagnosis was “non-specific mechanical backache.” He reported:
[t]he exact pathology present here is uncertain and a high resolution CT scan or an MRI scan would be required to be absolutely certain of the pathology present. Clinically it is likely she does have minor disc pathology at the lumbosacral junction and that is a cause of her symptoms and that leaves her vulnerable to further recurrences in the future.
Dr Rosenberg saw Ms Sagigi on 26 October 2011. He reported “she continues to struggle with ongoing back pain radiating down the backs of her thighs.” On examining Ms Sagigi he reports she is tender in the lower spine and “quiet stiff”. He states that the only tests he saw in the past was the x-ray he requested in 2003 and made further requests for investigations including a requisite MRI scan as he had asked of her in 2003.
In oral evidence Dr Rosenberg conceded, that the history he obtained from Ms Sagigi was inadequate to assess whether her back pain was contributed to by the 1996 incident.
In oral evidence Dr McGill characterised Ms Sagigi’s injury as a minor muscle strain, given there is no radiculopathy and no disc protrusion and given the nature of the activity that caused the initial injury. He said that the effects of this minor strain had long passed.
DOES MS SAGIGI SUFFER FROM BILATERAL PLANTAR FASCIITIS AND IF SO, WAS IT CONTRIBUTED TO BY HER EMPLOYMENT?
Comcare contends that Ms Sagigi does not suffer from bilateral plantar fasciitis.
The only early medical information available on this condition is in the reports of Dr Kirsch. On 27 May 1997 he reported, “there is also some right medial calcaneal tuberosity tenderness indicating plantar fasciitis.”
Dr Berry in a report dated 7 June 1999 could not associate the pain in her heels to her back pain.
The only other medical evidence on this condition is from her general practitioner, Dr M Piliotis. He listed plantar fasciitis as a condition in numerous medical certificates for Ms Sagigi. In his report dated 21 November 2001, he wrote “she was also felt to have clinical evidence of bilateral plantar fasciitis,” later in the report adding “she later developed pain in both heels consistent with plantar fasciitis apparently due to prolonged walking at work.”
In the same report Dr Piliotis cited x-ray investigations of Ms Sagigi’s heels, taken on 7 October 1997. On that investigation he commented: “No evidence of calcaneal fracture. No calcaneal spurs. No soft tissue calcification. Normal plain film examination of both heels.”
In an examination of Ms Sagigi on 2 August 2007, Dr Bodel could find no sign of plantar fasciitis.
Dr McGill saw Ms Sagigi on multiple occasions. In an examination of 16 March 2001 he found no evidence of plantar fasciitis. In an examination of 10 July 2006 he found “it was clear that she did not have significant tenderness under either heel or elsewhere in either foot.”
On the last occasion in June 2012, Dr McGill said Ms Sagigi reported “experiencing pain in her feet when walking both in her forefeet and under her heels.”
On examination Dr McGill found:
She had bilateral flat fleet but a normal gait. She could walk on her forefeet and on her heels but she indicated that both actions caused pain under the feet. Although she reported discomfort under her heels when walking on her heels, there was no tenderness to firm thumb pressure.
Dr McGill concluded that Ms Sagigi does not have plantar fasciitis, stating: “[a]lthough she reported some discomfort under her heels when walking…she also reported discomfort under her forefeet when walking…[t]he overall pattern of her responses was not that of plantar fasciitis.”
In oral evidence, Dr McGill stated that this condition cannot be linked to her back strain in 1996.
We are not satisfied that there is sufficient medical evidence to suggest Ms Sagigi currently suffers from plantar fasciitis. In any event we found no medical evidence to support a connection between this condition and Ms Sagigi’s back injury or any contribution to her condition by her employment. Consequently Comcare has no liability in respect of this condition.
DID MS SAGIGI’S EMPLOYMENT MAKE A MATERIAL CONTRIBUTION TO HER LEG CONDITION?
Ms Sagigi suffered an injury to her right knee when she fell in a shopping centre car park in October 2009. She advanced the theory that she fell because her back injury had made her unsteady on her feet. There was no medical evidence to support any connection between her back injury and the injury to her knee.
Dr Kirsh examined Ms Sagigi on 26 February 2010 and reported she has diminished flexion of only 110 degrees as a consequence of that injury and it was possible she had torn her anterior cruciate ligament and/or collateral ligament. Dr Rosenberg reported “she barely forward flexes to her knees and extends in a dysrhythmic manner.”
Dr McGill reported that she flexed both knees symmetrically but subsequently indicated an inability to bend her right knee to no more than 20 degrees because of pain. He also noted that when Ms Sagigi was putting her shoes and socks on she demonstrated full flexion of both knees.
Dr McGill had difficulty making a full assessment of her knee condition as Ms Sagigi reported any attempt to bend the knee would cause unacceptable pain. He reported she demonstrated substantial inconsistency with respect to her ability to move her right knee and a non-organic pattern of alleged sensory disturbance and weakness. He concluded there is “no objective abnormality on the basis of the examination which she allowed but I could not exclude the possibility that she has pathology in the right knee.”
In oral evidence, Dr McGill said that Ms Sagigi has no evidence of radiculopathy in her back and so it is unlikely to have any weakness that would lead to an imbalance that would cause her to fall.
Dr Rosenberg in oral evidence said it was not reasonable to blame Ms Sagigi’s knee injury on a back injury.
We find no connection between Ms Sagigi’s knee condition and her back condition. Consequently, Comcare has no liability in respect of her knee.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell and Member Dr Alexander.
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Associate
Dated 11 October 2012
Date of hearing 24 September 2012 Applicant In person Counsel for the Respondent Ms D Dinnen Solicitors for the Respondent Australian Government Solicitor
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