and and Comcare
[2013] AATA 946
[2013] AATA 946
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2941
2012/2829
Re
Applicant M
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Senior Member J Toohey
Dr Michael CouchDate 24 December 2013 Place Sydney In matter 2829 of 2012, the Tribunal sets aside the decision under review and substitutes for it a decision that the applicant suffered an injury in the course of his employment in June 2008 for which the respondent is liable to compensate him.
In matter 2941 of 2011, the decision under review is set aside and remitted for assessment of the applicant’s non-economic loss.
.............[sgd]...........................................................
Senior Member J Toohey
CATCHWORDS
COMPENSATION – cervical spine – fusion surgery – agreed permanent impairment – whether injury related to employment – whether frank injury – whether aggravation or acceleration of underlying degenerative disease – Tribunal satisfied applicant suffered injury in the course of his employment – decision under review set aside – matter remitted for assessment
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth): ss 35(2)
Safety Rehabilitation and Compensation Act 1988 (Cth): ss 4, 5A(1), 5B(1), 5B(3), 14 and 27
CASES
Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 (CLR) 310
Kennedy Cleaning Services Pty Ltd v Petkovska [2000] HCA 45; (2000) 200 (CLR) 286
SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment – Second Edition
REASONS FOR DECISION
Senior Member J Toohey
Dr Michael CouchAPPLICANT M and COMCARE
Background
The Tribunal has made an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 prohibiting the publication in its written reasons of information that may identify the applicant. His name, details about his workplace, and other information that might identify him, have been omitted.
The applicant started work at a Commonwealth Government agency (the agency) in May 2000. In early June 2008, he started to feel pain in his left shoulder and elbow. Apart from a brief period in 2006 after a fall, and occasional soreness and stiffness after working at a computer all day, he had not previously experienced problems in his neck or shoulder. His symptoms worsened rapidly. Scans showed a disc prolapse and, in July 2008, he underwent surgery to fuse his cervical spine.
The applicant returned to work about two weeks after undergoing surgery. His symptoms resolved but, in about October 2008, he started to experience pain in his neck, right shoulder and arm. They were worse when working at a computer. Despite physiotherapy and medication, and working in different positions, his symptoms did not improve. In April 2009, he resigned from the agency.
After leaving the agency, the applicant worked in several positions for brief periods but was unable to continue because of his symptoms. Except for a brief period around March 2011, he has been on a disability support pension since June 2010.
Comcare denies liability to compensate the applicant under the Safety Rehabilitation and Compensation Act 1988 (the Act) for displacement of cervical intervertebral disc and cervical spondylosis without myelopathy, being the condition that required surgery in July 2008.
Comcare accepted liability under s 14 of the Act for neck sprain and sprain of shoulder and upper arm (right), being the injury suffered by the applicant in about October 2008, but denies liability to compensate him for permanent impairment and non-economic loss.
The legislation
By s 14 of the Act, Comcare is liable to compensate an employee who suffers an injury that results in death, incapacity for work, or impairment.
By s 5A(1), injury means:
a disease suffered by an employee; or
an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
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), that is an aggravation that arose out of, or in the course of, that employment.
By s 5B(1), disease means:
an ailment suffered by an employee; or
an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
Ailment means any physical or mental ailment, disorder, defect or morbid condition whether of sudden onset or gradual development: s 4. Aggravation includes acceleration or recurrence: s 4.
Significant degree means a degree that is substantially more than material: s 5B(3). Prior to amendments to the Act in April 2007, a disease was the result of employment if a person’s employment contributed to the disease in a material degree: s 4 of the Act as it was prior to 13 April 2007.
THE ISSUES
The applicant contends that, in early June 2008, he suffered:
(i)an injury (other than a disease) in the course of his employment, being a herniation of the C6/7 intervertebral disc, with subsequent C7 radiculopathy in the shoulder and left arm, requiring cervical fusion;
(ii)alternatively, that his condition was a disease, being the aggravation or acceleration of cervical degenerative disease to which, prior to 13 April 2007, his employment contributed in a material degree and, from 13 April 2007, to a significant degree, in particular as a result of long periods at a computer.
It is agreed that, having undergone a cervical spine fusion, the applicant has a whole person impairment of 28 per cent under Table 9.15 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment. Comcare contends, however, that any permanent impairment is unrelated to his employment. It is agreed that, if his claim succeeds, the matter should be remitted for assessment of non-economic loss under s 27 of the Act.
THE APPLICANT”S EVIDENCE
The applicant is in his late 50s. After completing a bachelor degree and a diploma of education, he worked in teaching positions, and then as an employment counsellor in a Commonwealth Government service. He then worked overseas for a time, and in adult education and secretarial work in Australia.
From May 2000 until he resigned in April 2009, the applicant held a number of full-time positions in the agency. He gave evidence that all of his positions involved working at a computer for up to 7.5 hours a day and longer when he worked overtime. He describes his computer work as “meticulous and exacting”, requiring long periods in a static posture with minimal breaks.
Comcare disputes the amount of time the applicant spent at a computer during these periods. In particular, the respondent says, the period from mid-2006 to June 2008, involved minimal computer work. The work that the applicant did at various times, including around the time of his surgery in July 2008, and when he returned to work, is set out below. However, as it goes to whether the applicant suffered a disease, rather than a frank injury, we have not considered it in detail.
August 2006
In August 2006, the applicant got out of a lift in the agency’s Sydney office, not realising it had malfunctioned and stopped above floor level. He “stumbled on one leg partly across the floor”. He felt a “very sharp pain ... like a knife” “towards the base of the middle of the neck and … upper back”. He was off work four or five days. By mid to late August, his symptoms had resolved. Comcare accepted liability for his injury.
The longer-term effect of the fall is a matter of some conjecture on the part of the medical witnesses. Dr Timothy Steel, the neurosurgeon who performed the fusion in July 2008, thinks it possible that the fall weakened the applicant’s C6/7 disc, but he could not put it higher than that. In any event, the applicant felt no further symptoms in his neck or shoulder or left arm, other than occasional stiffness and soreness at the end of the day, until June 2008.
June 2008
Around the first week of June 2008, the applicant became aware of “a dull constant pain” in his left shoulder and elbow. He thought it felt “like a viral ache” which became “a sharper shooting pain” when he performed certain activities such as sitting at his desk with his elbows bent. He did not know what to attribute his symptoms to; he did not attribute them to his work and was “mystified” by them.
The applicant’s evidence about when and where he first noticed his symptoms is considered further below.
On 10 June 2008, the applicant saw a local doctor, Dr Robert Senior, who prescribed Brufen and certified him unfit for two days. On 13 June 2008, he saw Dr Kate Bessey at his usual medical practice. She referred him for physiotherapy and prescribed painkillers. His symptoms rapidly became worse and he developed numbness and tingling down his left arm and fingers, and severe pain. Dr Bessey referred him to Dr Steel at St Vincent’s Hospital. The applicant had no symptoms in his neck at this point, but a CT scan on 30 June 2008 showed a central disc protrusion at C6/7.
July – August 2008
An MRI on 10 July 2008 showed:
At C3/4 there is severe left foraminal stenosis, at C4/5 there is severe right foraminal stenosis and mild canal stenosis, at C5/6 there is moderate right foraminal stenosis and at C6/7 there is impingement of the C7 nerve root on the left secondary to an extruded disc. There is also moderate canal stenosis at this level with minor indentation of the anterior cord but no cord oedema noted.
Dr Steel recommended urgent surgery. On 22 July 2008, he performed a C6/7 cervical fusion. The applicant recovered well following surgery and returned to work on 4 August 2008. This was earlier than the six to twelve weeks which Dr Steel says he would normally recommend in order for a fusion to stabilise. The applicant gave evidence that his neck and head still felt “wobbly” but his symptoms had largely resolved.
Just before undergoing surgery, the applicant moved from the agency’s Parramatta office to the Sydney office. He was granted a temporary “probationary” transfer on compassionate grounds, to be closer to his father for whom he was caring.
The applicant gave evidence that, given the transfer to the Sydney office was only temporary, he was keen to return to work as soon as possible after surgery and not lose the opportunity to be near his father. He says he was “under some pressure” to return to work but there is no evidence that anyone required him to return to work early or pressured him to do so.
The applicant was in the Sydney office for approximately two weeks when the transfer was cancelled because of the amount of sick leave he had taken. He went back to the Parramatta office but returned to the Sydney office on 5 September 2008 when another position became available there.
Throughout this period, the applicant’s positions involved mostly desktop publishing in various forms. When he first returned to work following surgery, he worked on an occupational health and safety guide for staff. He gave evidence that it involved sitting at his computer for up to the whole day “cutting and pasting and researching links on the intranet”.
September 2008
From September 2008, the applicant worked on a “training needs analysis” project. He gave evidence that the work involved repetitive use of his right hand to open, close, check, edit and move a high-volume of digital files to a shared drive and then renaming them. He sat at a computer for up to the full day with his neck in a fixed position, with few breaks. A “screen dump” shows some 700 files on which he worked over this period.
October 2008 – January 2009
Around 13 October 2008, the applicant no longer had the symptoms on the left side which he had before surgery but he started getting soreness and a sharp pain at the back of his neck and down the right side into his shoulder when working at the computer. The pain persisted as a dull ache at the end of each day.
The applicant’s symptoms became progressively worse. He attributes this to the duties he was being given and says that, even the alternative duties he was given involved long periods of computer work. From 17 November 2008, he was given alternative duties scheduling training but he says he still spent up to 100 per cent of his time at his computer, the only difference being that the work was less repetitive. From January 2009, he worked in another position that involved less computer work.
Resignation from the agency
In April 2009, the applicant resigned from the agency. He says he could not continue with computer work because of the pain in his neck and right shoulder and arm, and no suitable alternative work had been found for him. His symptoms resolved once he stopped work. However, he continues to experience soreness and stiffness in the base of his neck and “profound weakness” in his left arm which, it is agreed, are the effects of the fusion surgery.
In July 2009, the applicant worked briefly in a sales position but was unable to do the computer work involved. In the first half of 2010, he worked in a sales position that involved no computer work. Around this time he developed severe tendonitis in his ankles. He stopped working in June 2010 and went onto a disability support pension. He worked for several days at the end of 2010 but could not manage the computer work.
In 2011, the applicant did a course in massage with a view to supporting himself, but limitations on his neck flexion meant he could not work enough hours each week to support himself and he went back onto a disability support pension. He gave evidence that he now performs massage jointly with another masseur for an average of three to five hours a week. He avoids flexing his neck by watching himself in a mirror or by mirroring what his partner does.
Did THE Applicant suffer aN injury IN THE COURSE OF HIS EMPLOYMENT in June 2008?
If the applicant suffered a sudden or identifiable disturbance in the normal physiological state of his cervical spine while carrying out his duties then, assuming it results in death, incapacity or impairment, he will have suffered an injury in the course of his employment for which Comcare will be liable: Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 (CLR) 310; Kennedy Cleaning Services Pty Ltd v Petkovska [2000] HCA 45; (2000) 200 CLR 286.
When did the applicant first notice symptoms in his left shoulder and arm?
The applicant gave his evidence frankly and without any sign of exaggeration. However, his evidence about the onset of his pain was not always clear. The respondent submits that, with the passage of time, his recollection has become unreliable.
In a written statement tendered in evidence, the applicant stated:
In around June 2008, I experienced an onset of pain in my left shoulder and left elbow. The pain was more intense while sitting at a computer or seated while delivering training sessions at work. At the time I reported these symptoms to my work manager …
The applicant gave evidence that, while at work during the first week of June 2008, he became aware of “a sudden, deep constant pain in the left shoulder and left elbow that was intermittently sharper” with certain activities (at this stage he had no pain in his neck). The pain was “more or less constant” over several days, it was “quite random and intermittent” and he felt very weak; he thought it was “viral”’ it got progressively worse as the weeks went on and, by the end of the month, he had numbness in the left harm and tingling in the left hand and fingers as well.
Asked what he was doing when he first felt the pain, the applicant said he was sitting at his desk in the Parramatta office and he raised his arm. The pain became sharper when he performed certain activities, such as sitting at his computer elevating his arms and bending his elbows. He found that sitting with his legs elevated relieved the pain to some extent.
The Tribunal questioned the applicant closely about when he first felt pain. His responses were not always easy to follow because they tended to blur when he first felt pain and what made it worse. He said he sat down at his computer at some point in the first week of June 2008 “and it became sharper”. Asked whether he had the dull pain already, the transcript shows the applicant said:
I can’t be sure I’m sorry, yeah, just that it became worse when I performed that activity. … It came on during that week and, yeah, it was worse when I sat down at a computer at work.
The applicant repeated evidence to the effect that the pain was constant, but sharper on certain activities, several times. He was not clear what had caused it because it was “so sudden”. Questioned further by his counsel, he said his first recollection of the dull pain was that he was at work in Parramatta during that week. In cross-examination, he maintained that he recalled feeling the pain first at work because he had no symptoms prior to it. He confirmed in re-examination that he had “no recollection at all” of any problem outside work, and his first recollection of “the dull pain” was while at work in the Parramatta office during that week.
The applicant gave evidence that he reported his symptoms to his manager and he spoke to a colleague, P, about them. He recalls telling P that he had pain in the left shoulder and elbow that was sharper when he sat down with his arms and legs bent, and he could not explain it or why it was worse on certain occasions.
An email from P to the applicant was produced at the hearing. In it, P states only that he recalls the applicant talking at work about the pain. P was not called to give evidence but it does not appear he could say more than that he recalls the applicant talking about his symptoms at work. As it is not in dispute that the applicant felt pain while at work, P’s email is of limited assistance.
There is no reference in the general practitioners’ or Dr Steel’s notes to the cause of the applicant’s pain. Dr Steel gave evidence that he was concentrating on urgent treatment, rather than the cause of the pain. It seems unusual that none of the applicant’s general practitioners apparently asked him about the cause or, if they did, that they did not record it in the notes. We did not hear evidence from the general practitioners and draw no conclusions about why the clinical notes do not mention possible causes.
However, reports from Dr Steel and other medical witnesses show that the applicant has given a consistent account over a long period of first feeling pain while at work in the Parramatta office in the first week of June 2008.
We have no hesitation in accepting the applicant as a truthful witness. Although his evidence was not always entirely clear, we are satisfied that his recollection is reasonably reliable. We accept that he felt the sudden onset of symptoms in his left shoulder and arm while at work in the first week of June 2008.
Dr Steel’s evidence
Dr Steel saw the applicant on four occasions in 2008, in January 2009, and in January 2013. He has prepared written reports and gave oral evidence.
Dr Steel gave evidence that the symptoms which the applicant described, of a dull ache in the shoulder and elbow, becoming rapidly worse and progressing to weakness, and numbness and tingling in the arm and down into the fingers, were typical of a significant disc protrusion causing high-grade nerve compression, and were the reason he recommended urgent surgery. He thought it unusual, but not significant, that the applicant did not initially feel neck pain. He said many patients with significant nerve pain will have arm pain but very little neck pain.
Dr Steel gave evidence that, given the rapid onset of the applicant’s symptoms, it was unlikely the disc prolapse had been present and asymptomatic for some time, and the fact that it was soft indicated it was of recent origin. When he operated, he found “a big, acute disc protrusion” which was unlikely to have been present for any length of time without causing significant symptoms. (The doctors refer to the applicant’s condition as a disc protrusion, herniation and prolapse at different times. We have used these terms interchangeably).
At the time, Dr Steel said, he was more concerned with urgent treatment rather than causation. He did not investigate the applicant’s history beyond the four weeks of increasing pain that the applicant told him about, and the applicant did not indicate to him when he first noticed symptoms, or that they were more pronounced at work.
Dr Steel gave evidence that a prolapse can occur with movement as mild as coughing or sneezing. A person would probably, though not necessarily, feel the onset of pain immediately on a herniation of the kind the applicant had. In the presence of chronic disc degeneration, it is usually a slow, progressive process rather than an acute event but he thought the rapid escalation in the applicant’s symptoms pointed towards something happening quickly.
Dr Steel gave evidence that it can be difficult, in the presence of widespread multilevel degeneration, to say whether the cause of a herniation is traumatic or endogenous. Persons with a degenerative condition are commonly asymptomatic. In approximately 50 per cent of cases a disc protrusion will occur without a traumatic event and, even where trauma is involved, a person will not necessarily feel symptoms at the time. He said it is always difficult to know what impact sitting in a static position at a computer might have on a disc protrusion because there is no “clear cut activity” that causes a protrusion, but a significant percentage of patients will complain of pain while looking at computer screens.
Dr Steel thought it probable that the fall in August 2006 set off a “degenerative cascade” in the applicant’s cervical spine which culminated in the disc protrusion in June 2008. He acknowledged he had not seen any direct evidence of this, such as in an MRI, but it was a common pattern and, he thought, the most likely explanation. The fact that the applicant had not experienced symptoms between the fall in 2006 and June 2008 did not cause him to alter his opinion although he agreed that intervening symptoms would make the connection more likely.
Dr Wallace’s evidence
Dr Raymond Wallace, orthopaedic surgeon, saw the applicant for assessment in September 2010 and April 2012. He has provided written reports and gave oral evidence.
Dr Wallace took a history that the applicant “noted the onset of neck pain in the course of his duties at work …” although, giving evidence, he clarified that he did not take a history of precisely when the applicant first noticed his symptoms in 2008.
In Dr Wallace’s opinion, the applicant’s employment involving prolonged work at a computer and static posture over several years at the agency contributed to his disc prolapse in 2008. He gave evidence that keeping the head in one position over long periods can cause micro-trauma to the cervical spine and, in that posture, supporting muscles become fatigued, placing stress on the bone and disc, causing trauma to the spine and disc protrusion. He said the risk factors for a disc protrusion include minor trauma to the cervical spine, poor posture, muscle fatigue, and twisting and bending. He thought the work described by the applicant was consistent with micro-trauma and that long periods using a mouse and keyboard place additional stress on the cervical spine. He agreed that it was possible that the protrusion occurred outside work but, without imaging, it was very difficult to say.
Dr Wallace agreed with Dr Steel that the fall in 2006 could have weakened the applicant’s cervical spine without causing a disc protrusion and, if so, that it could have predisposed him to later disc protrusion. He agreed that, merely because the applicant fell and felt pain immediately, it did not follow that he suffered disc damage, and he thought it only possible rather than probable. He thought the work that the applicant was doing in 2008 may have been “the straw that broke the camel’s back” causing injury to his cervical spine.
Dr Wallace agreed with Dr Steel that symptoms do not necessarily occur at the time of a prolapse. He said there is divergence of views in surgeons as to how immediate pain is following disc prolapse, varying from one week to three months. In his view, it can take up to four to six weeks before the onset of symptoms.
Dr Potter’s evidence
Dr Stephen Potter, clinical rheumatologist, saw the applicant for assessment in January 2009. He has provided written reports and gave oral evidence. His evidence went largely to whether the applicant’s employment could have aggravated his pre-existing condition.
Dr Potter does not dispute that the applicant experiences genuine pain but, in his view, there was no work-related injury because his “pain pattern and pain territory” were different from pre-surgery; nothing in the workplace could have caused physical injury; nothing in his pattern of pain was anatomically consistent with injury; and using available data, in particular the College of Physicians Guidelines, it was clear that the pain, though genuine, was not work-related.
Dr Potter could find no basis for the applicant’s pain following surgery. He thought it was muscle tension because the applicant was not happy at work and there was conflict with management because he was not given the opportunity to return to work on his own terms.
There is evidence from the applicant that he found the absence of any offer of alternative work by the agency frustrating, but the evidence does not support the conclusion that there was any significant conflict at work of the kind Dr Potter describes in the period between the applicant’s return to work in August 2008 and October 2008.
Dr Jones’s evidence
Dr Donald Jones, orthopaedic surgeon, saw the applicant on 13 November 2008 to assess his fitness for work following the October 2008 injury. He has provided written reports and gave oral evidence. As his evidence concerns only the October 2008 injury and symptoms that developed after the applicant returned to work post-surgery, we will not consider it further.
Dr Gray’s evidence
Dr Rhys Gray, orthopaedic surgeon, saw the applicant for assessment in November 2010 and August 2012. He has provided written reports and gave oral evidence.
Dr Gray first saw the applicant in relation to the October 2008 injury. The applicant gave him a history of pain in the right side of his neck, right shoulder, right forearm and right hand. Dr Gray was later asked to comment on any relationship between circumstances in the applicant’s workplace and the need for surgery in July 2008.
Dr Gray thought it a possibility, but “highly unlikely” that the fall in 2006 aggravated the applicant’s degenerative condition and that it was subsequently contributed to by long periods at the computer, as the applicant described, leading to his symptoms in June 2008. He “could not see computer work causing a specific aggravation of degenerative changes” and he does not believe it causes structural damage in the neck. He said he did not recognise what Dr Wallace meant by “micro-trauma” from computer work. He does not know, and he thinks no one else knows, the specific cause of the prolapse, whether spontaneous or due to trauma.
Consideration
Dr Steel and Dr Wallace agree, and we accept, that a disc herniation may be caused by almost any activity, and is not necessarily trauma-related. We accept their evidence that there may be a lapse of some weeks between a herniation and the onset of pain. Dr Steel thought it unlikely to have been more than about four weeks in the applicant’s case, and Dr Wallace thought roughly the same. None of the other doctors have suggested otherwise. That makes it possible that the applicant’s herniation occurred outside the workplace. On balance, however, we are reasonably satisfied that it occurred while he was at work.
The applicant has given a consistent account of the sudden onset of pain while at work in the Parramatta office. Although his evidence was not always clear, we accept that is what occurred. We are satisfied that his first experience of pain consistent with a disc herniation occurred while he was at work, and reasonably satisfied he suffered a sudden, identifiable physiological change, being the disc herniation, while at work.
It follows that we are satisfied that the applicant suffered an injury in the course of his employment. As the applicant’s claim succeeds on this ground, it is not necessary to determine his case in the alternative.
CONCLUSION
Some confusion has arisen about the applicant’s claim for compensation for permanent impairment. On 12 October 2010 he made a claim for permanent impairment. It is clear from the claim form that it was in respect of the June 2008 injury but the applicant described it in the form as the “accepted condition” which it was not (liability having been accepted for the October 2008 injury only). Comcare treated the claim as one for permanent impairment in respect of the October 2008 injury and rejected it.
None of this matters except that counsel for the applicant invited us to record any findings of fact we think might help parties to resolve any future issues of entitlement to compensation under ss 16 and 19. No claim has yet been made for incapacity payment and treatment expenses and we have decided against doing as suggested.
In matter 2829 of 2012, the decision under review is set aside and a decision substituted that the applicant suffered an injury in the course of his employment in June 2008 for which the respondent is liable to compensate him.
In matter 2941 of 2011, the decision under review is set aside and remitted for assessment of the applicant’s non-economic loss.
73.
74. I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr Michael Couch.
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Associate
Dated 24 December 2013
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