Anna Maria Garcia and Comcare
[2014] AATA 320
•23 May 2014
[2014] AATA 320
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3185
Re
Anna Maria Garcia
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 May 2014 Place Brisbane The Tribunal affirms the decision under review.
........................Sgd.............................................
Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Comcare and Department of Veterans’ Affairs employee – Reviewable decision that liability denied under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for “thoracic sprain” – Applicant suffers from mechanical thoracic back pain – Whether pre-existing injury aggravated by employment – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14
CASES
Coles v Australian Postal Corporation [2011] AATA 62
Comcare and Sahu-Khan (2007) 156 FCR 536
Comcare v Canute (2005) 148 FCR 232
Commonwealth v Beattie (1981) 35 ALR 369
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Ogden Industries Pty Ltd v Lucas (1967) 118 CLR 537
Re Smith and Comcare (1995) 39 ALD 715
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 May 2014
BACKGROUND
Anna Maria Garcia (“the applicant”) was employed by the Australian Public Service from 25 October 2004 with Comcare and then, from 2 May 2005, with the Department of Veterans’ Affairs (“DVA”) until she ceased work on 11 December 2011 on incapacity grounds. She was based in Canberra until she moved to Brisbane in October 2011.
On 20 January 2012, she completed a claim, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “[s]pinal scoliosis and significant osteopaenia that has caused back pain which has been aggravated by prolonged sitting and leaning towards computer”. In her claim form, she alleged that this occurred on the afternoon of 11 August 2005 while she was sitting and typing on her computer using her mouse and involved a “dibilitating [sic] electric shock” through her spine. On 19 April 2012, Comcare (“the respondent”) rejected her claim. That determination was affirmed in a reviewable decision on 5 July 2012. The applicant seeks review of that determination.
EVIDENCE
Documentary material
Medical treatment
The applicant commenced working with the Australian Public Service in October 2004 when she was employed by Comcare. There, her duties involved data entry which required her to sit at a desk using a computer. After a few months with Comcare, she had some back pain and sought relief by using a cushion in her chair. This was noted by her supervisor who arranged a replacement prototype chair of unusual design. This provided her with immediate relief from pain. She transferred to DVA in May 2005 and remained in its employ until she ceased work on 11 December 2011. Her duties with DVA again involved computer work and sitting at a desk for long periods as well as lifting heavy files. Her back pain recommenced gradually at DVA despite several workplace assessments conducted by Occupational Health and Safety Officers. These were conducted in September 2005, February 2006, September 2006, October 2008 and October 2011. On each occasion, adjustments were made to the applicant’s desk and/or chair including the provision of a sit/stand workstation which helped her manage her back symptoms at work from 2008. After her transfer to Brisbane, some six weeks passed before her Canberra work station arrived for her. In that time, she used a temporary chair which she found unsuitable.
The applicant identified her general practitioners (“GPs”) as Dr Sonia Res from
2002 until May 2008, Dr Siew Lo until she moved to Brisbane and then Dr Ross Taylor. She consulted them on many occasions for her thoracic pain and other matters. She saw Dr Res on seven occasions from June 2004 until July 2005 but not for back pain.
In June 2004, Dr Res’ clinical notes record the applicant with a history of hospitalisation for depression in 2002 in the context of marriage breakdown and domestic violence.
In June, July and October 2004, Dr Res recorded further episodes of serious relationship problems as well as general health issues. In June 2005, Dr Res noted that the applicant was still feeling depressed. On 11 July 2005, the applicant told Dr Res that she was moving into a new house that week. She did this on 13 July 2005.
On 24 August 2005, the applicant saw Dr Res and advised her of pain in the mid thoracic area of her back which had been present for “1-2 months”. In her clinical note that day, Dr Res wrote “? aggravated from move”. This was her first reference to thoracic pain. The applicant said that she had told Dr Res of the house move but did not implicate that move in relation to her back pain. In her evidence she said that her belongings were transferred by removalists and that she did not hurt her back at that time. In her note,
Dr Res made no reference to the applicant’s work in relation to the pain complaint.
In October and November 2005, Dr Res again recorded thoracic pain and noted that x-ray and CT scan reports did not explain the applicant’s symptoms. The pain was described as “constant”. On 1 November 2005, Dr Res referred her to sports physician Dr Kellett, describing a two month history of pain which kept her up at night. Dr Kellett reported, on 9 November 2005, that the cause of the applicant’s thoracic pain was not clear. He was concerned that she had a gastric ulcer which gave her pain adjacent to the thoracic component of her spine. Dr Res then referred the applicant to Dr Andrew Thompson, a gastroenterologist, who wrote a report on 30 November 2005. He suspected gastro-oesophageal reflux and arranged for a gastroscopy which revealed normal results except for a small stomach ulcer. This was treated by Dr Res. In March 2006, Dr Res reported that reflux symptoms were “much better” but that thoracic pains persisted despite the use of Mersyndol daily. Dr Res noted that the applicant was feeling depressed and that she had been treated with antidepressant medication in the past with limited success. Dr Res referred the applicant to Dr Geoffrey Speldewinde, a Consultant in rehabilitation, pain and musculoskeletal medicine.
Dr Speldewinde provided a report on 5 April 2006. He described the applicant’s thoracic pain as being episodic for 18 months but persistent for eight months. He wrote that it was aggravated by prolonged sitting at the end of her day at work. Dr Speldewinde did a local ligamentous injection at T5/6 and T6/7 interspinous ligaments which gave “good relief” to the applicant. He also wrote that low dose opiates may assist with thoracic vertebral dysfunction. He prescribed Norspan patches to be applied weekly. He also noted a history of depression and prescribed Endep, noting that the applicant stated that this had been “dramatically helpful” in 2005. On 26 April 2006, Dr Speldewinde advised Dr Res that the applicant was “responding extremely well to the combined analgesic regime, exercises and the T6/7 prolotherapy injections”. He authorised Dr Res to continue prescribing the Norspan patches. She did this from May to November 2006.
On 19 September 2006, Dr Res noted the applicant’s continuing complaint of thoracic pain as well as pressure in the coccyx region when sitting. Dr Res wrote that the pains worsened “after moving house last year (did it by herself)” and again referred her to
Dr Kellet who completed a report on 6 October 2006. Dr Kellett noted that her thoracic pain persisted and was “much more provoked by sitting for long periods” yet he noted that she could frequently “walk and even run without significant pain”. He also noted complaint of lower back pain in the region of the coccyx which was “provoked by long sitting”. He wrote that the applicant appeared to be significantly disabled and arranged for an MRI scan “in an absence of any proven diagnosis”. Neither Dr Res nor Dr Kellett referred specifically to the applicant’s work in relation to her thoracic pain.
In a clinical note on 6 November 2006, Dr Res wrote that the applicant had been without analgesics for two weeks because she had used her Norspan patches too quickly. She also wrote that she had cautioned the applicant against this because of possible side effects. Dr Res referred the applicant to Dr Jay Govind, a Director and Senior Staff Specialist at the Pain Management Unit at Canberra Hospital, who completed a report on
21 November 2006. Therein, Dr Govind referred to the recent MRI which revealed “minor disc bulge at T5/6 and T6/7” and noted that the significance of this was not known. He continued:
The only valid means by which the source of pain can be isolated is by way of controlled diagnostic nerve blocks.”
Pending that procedure, Dr Govind advised that he and the applicant had agreed on the following regimen: commence OxyContin 20 mg bd, wean herself off Norspan and discontinue Mersyndol. He suggested that, if satisfactory pain control was achieved with OxyContin, she remain on that medication until he was able to proceed with
the diagnostic injection techniques. Dr Res provided scripts for OxyContin in
December 2006 and January 2007 and, on 30 January 2007, Dr Govind reported that the applicant’s response to OxyContin had been “more than satisfactory” with a “reduction in pain level that has been quite dramatic” with an intensity of 3 out of 10.
On 8 March 2007, the applicant experienced two fainting spells which caused Dr Govind to cancel arrangements for his scheduled diagnostic thoracic zygapophyseal blocks.
On 12 March 2007, the applicant advised Dr Res of the cancellation which was “because of pain”. Dr Res prescribed OxyContin. On 18 March 2007, the applicant completed an Incident Report in which she advised that, on 12 March 2007, she had an episode of intense pain at work, she proceeded to the lift to take herself to the sick room, she “fainted from the pain in the lift” and was taken by ambulance to Woden Hospital.
On 14 March 2007, Dr Govind advised Dr Res that the applicant’s pain had been so intense in recent times that she had taken additional OxyContin leaving her without medication and causing her to attend the casualty section of the Canberra Hospital to request a further prescription. He again referred to the cancellation of the nerve block procedure in the previous week and advised that he had counselled the applicant about the use of controlled medication and that it was imperative that the applicant see Dr Res before increasing OxyContin on an ad hoc basis. On 15 March 2007, the applicant saw Dr Res and advised her that she had an “altercation” with Dr Govind during which he was “very upset with her”. The applicant said that she would not see him again. Dr Res referred her to Dr Wilson Lo, a Pain Specialist. Her referral letter advised him that the applicant had been suffering thoracic pain “since July 2005 after moving house”.
In March 2007, Dr Res again prescribed OxyContin.
On 5 April 2007, Dr W Lo referred the applicant to Consultant Physician, Cardiology and Rheumatology, Dr Edwin Cassar. On 19 April 2007, Dr Cassar completed a
Pain Management Rehabilitation Plan in which he diagnosed:
1. Scoliosis/ Mechanical Back Disorder
2. Chronic Back Pain for better management.
On the same day, Dr Cassar then referred the applicant to Pain Psychologist,
Mr Marshall O’Brien. Shortly thereafter, on 21 May 2007, the applicant completed the first of her compensation claims.[1] On that day, Dr Cassar wrote to Dr Res:
Clearly, the lady manifests much ongoing stress following marriage break up four years ago, current financial strains and evidence of emotional lability at her presentations to the clinic.
She is yet to present herself to our Consulting Psychologist for personality profiling and necessary cognitive behaviour therapy and you could help in this regard by developing a plan for the care of her complex case by involving the Psychologist Marshall O’Brien who is registered with Medicare for such purposes and would assist Ms Garcia in obtaining rebate for at least six sessions which she may not otherwise be able to afford.
Dr Cassar also advised Dr Res that he would support her application to continue with prescriptions of OxyContin.
[1] See below at paragraph 28.
On 29 May 2007, Dr Res noted that the applicant was having weekly deep tissue laser sessions in clinic with Dr Cassar and was feeling stressed about her finances. Dr Res noted that the applicant had “put in a work claim”. On 7 June 2007, Dr Res noted that the applicant had “talked to work re workers’ comp and work station issues”. Dr Res also arranged for a Mental Health Care Plan to be completed to “deal with psychological issues in relation to chronic pain”. For this, she referred the applicant to
Mr Marshall O’Brien.[2] The Mental Health Care Plan identified three issues:
1. Chronic pain and feeling frustrated with the pain levels when not adequately managed. Debilitating pain and worried that would not be able to work. Partner also unwell. Has had depression in the past over marriage break up. Has been on antidepressant medication. Finance stress/ability to get through the days when the pain was not managed.
2. Partner… has amyloidosis; Anna dealing with chronic conditions on a day to day basis. Still having difficulty with sitting for long periods.
3. Inability to control pain leads to stress and frustration.
One of the listed goals was for the applicant to “keep sewing and danc[ing]”.
[2] Also identified as Crawford Marshall.
On 28 June 2007, DTA Rehab Pty Ltd completed an Initial Needs Assessment Report at the request of DVA. Therein, the history of treatments is set out and the applicant is noted to have advised that her pain is aggravated by carrying bags (e.g. shopping), lifting/reaching overhead, dancing and prolonged sitting/driving. On 28 August 2007, DTA Rehab Pty Ltd closed the applicant’s case noting that she was making use of rest breaks in her daily work and that she had commenced an active gym program under the care of a personal trainer. In the meantime, in July and August 2007, Dr Res, supported by Dr Cassar, continued to provide the applicant with OxyContin scripts, and the applicant withdrew her first compensation claim.
The applicant commenced a gym program in August 2007 but did not continue with it because her trainer advised her that her high levels of pain in light workouts was not normal and that she may cause further injury if she continued. On 4 October 2007,
Dr Res referred the applicant to Neurosurgeon, Dr Justin Pik and Consultant General Physician, Endoscopist and Gastroenterologist, Dr James Riddell. In both referral letters, she noted that the applicant had suffered thoracic pain since July 2005 “after moving house”. On 1 November 2007, Dr Res advised the applicant’s gym that she was unable to continue membership because of her medical condition. Dr Pik reported to Dr Res on
15 November 2007. Dr Pik recorded a 3½ year history of pain in the applicant’s
mid-thoracic area which had been intermittent in nature but which had become constant, tending to waken her at night. He also noted that the pain used to be worse when sitting but that this was no longer the case. Dr Pik concluded that he was “at a complete loss to explain” the applicant’s symptoms and that he was not “able to identify any surgically correctable cause” for her symptoms.
On 21 November 2007, Dr Cassar wrote to Dr Res following a periodic review of the applicant’s case. He wrote:
Given failure to adequately control this patient’s chronic regional pain and particularly to allow removal of regular daily short acting narcotic consumption, I am trialling alternative Fentanyl in the form of Durogesic 25 skin patch 3 days at a time to allow for removal of OxyContin initially long acting but hopefully also short acting forms of that drug.
On 3 December 2007, Dr Res reviewed the applicant’s Mental Health Care Plan and, on 14 January 2008, Dr Riddel wrote to Dr Res stating:
Ms Garcia has been referred to you because of ongoing problems with pain in the mid thoracic region. This began 2½ years ago at a time when she was shifting form [sic] one job to another which was very busy, and when she was moving houses. Before that she had intermittent back pain but of a much lesser degree and the pain would usually settle with rest.
However in the last 2½ years the new pain problem is that of constant unremitting pain described as a nerve quality or a burning quality … The pain is there no matter what she does but it can be diminished to a degree by the use of analgesics such as her current regime of OxyContin 50 mg twice a day, and Oxynorm 15 mg at lunch and before bed…
Pain is made worse by sitting for any length of time, or by stress, or if she fails to take her OxyContin. Without the use of OxyContin the pain would become severe and unbearable and she was very articulate in describing the extreme misery that she would experience.
…
Not withstanding the pain she is maintaining good levels of function and activity. She goes dancing, keeps down full time work, and is not limited in her day to day functioning because of the pain.
…
She has had many investigations including two CT scans of the thoracic region, two bone scans, plain x-rays and MRI. No significant pathology has been identified to explain her pain.
I think it seems highly likely that Ms Garcia is describing a chronic pain syndrome, and her pain has neuropathic qualities. There may have been some preceding mechanical cause for the pain but that is not obvious so far down the track from its onset.
Psychologist, Mr O’Brien, advised Dr Cassar on 5 February 2008 that there was little value in persisting with psychological techniques for the applicant’s pain management.
In a report, dated 28 March 2008, Dr Cassar wrote to Dr Res advising that cognitive behavioural therapy for the applicant had been ceased. He also noted that her overnight pain had been managed by OxyContin but that prolonged sitting in occupational chores was proving to be unbearable. Dr Cassar advised that he had added two additional therapeutic treatments, including neuropathic agent Lyrica and IMI Celestone. He noted that, within days of her first IMI Celestone, the applicant contacted Dr Cassar to advise that she had had an excellent response to therapy. Dr Cassar wrote again on
28 April 2008. He advised that his clinic would no longer be involved with the applicant’s treatment. He considered that her future management would be with OxyContin, Lyrica and anti-inflammatory agents such as Brufen. He considered that the overall benefit of drugs of dependence was at best 30% and that the applicant was facing a poor diagnostic outlook, “given her failure to be able to cope with her condition without the use of drugs”. On 7 May 2008, Dr Res discussed with the applicant the cessation of treatment by Dr Cassar and advised her that she would be unable to provide further OxyContin scripts without continuing support from a specialist. She noted that the applicant became very upset at the thought of not being able to access her analgesics and wrote that the applicant was dependent on her narcotic medication. Dr Res referred her to Musculoskeletal Physician, Dr Paul Verrills and noted that her pain is a “burning nerve like pain, constant, and is aggrevated [sic] by intercurrent infection/sitting for prolonged periods/gym/stress”. Her clinical note of that day again implicated the applicant’s house move as the start of her thoracic pain. The final consultation by the applicant with Dr Res was on 15 May 2008.
The applicant saw Dr S Lo as her GP for the first time on 19 May 2008. Dr S Lo, on
27 June 2008, wrote that he was referring the applicant to Medical Director of Palliative Care, Dr Andrew Skeels, “who supports use of narcotics”. Through him, Dr S Lo prescribed OxyContin and Oxynorm until the applicant transferred to Brisbane in 2011.
Dr Verrills wrote to Dr Res on 3 September 2008 in relation to her earlier referral to him. Dr Verrills described the condition as complex right thoracic neuropathic pain and advised that the applicant had “negative medial branch blocks and negative costotransverse joint blocks” and a “negative discogram”. He wrote:
We then undertook a peripheral nerve lead trial which was overwhelmingly positive. She in fact went from being tremendously distressed to sitting up, happy and virtually pain free. She was immediately able to dramatically reduce her medication usage.
On 13 May 2011, Dr Speldewinde wrote to Dr S Lo. He referred to the treatment by
Dr Cassar and Dr Verrills noting that the latter had an excellent response for 2½ years with “good pain control, good pain masking”. Dr Speldewinde also noted that there had been spontaneous deterioration since January 2011, except for a month of improvement after reprogramming of the unit. His opinion was that the applicant had a chronic pain disorder with some neuropathic features. However, he was unable to make sensory findings in the thoracic, lumbar or sacral regions to light touch, point, cold or heat testing.
Clinical notes from Dr S Lo’s practice continued until September 2011 with references to thoracic and other pain and the prescription of various medications including OxyContin and Oxynorm. Some of the references to pain by the applicant related to her lumbar spine. However, on 19 May 2008, 15 May 2009, 3 August 2009,[3] 17 February 2010 and 16 June 2010, thoracic pain is recorded. Unspecified back pain is noted on 27 June 2009, 10 July 2010 and 28 March 2011. The clinical notes for that practice also refer to a house break-in and a horrible relationship on 31 January 2011, to “stress” from a “problem with hubby’s family” on 30 April 2010, to being upset about hospital treatment of her husband on 20 January 2010, to “depression on/off husband in intensive care” on 20 March 2009, and depression and frustration on 29 October 2008.
[3] This is recorded as “th” on 3 August 2009.
When the applicant moved from Canberra to the DVA offices in Brisbane, her work station equipment arrived after about six weeks. This included the sit/stand desk which had helped her previously to manage her pain at work. Waiting for the equipment from Canberra meant that she used other furniture and she believes that this worsened her back condition.
In Brisbane, the applicant’s GP was Dr Ross Taylor. He reported on 1 March 2012 that he first saw her in October 2011 when she requested narcotics. Dr Taylor confirmed the applicant’s bona fides by contacting the Queensland Health Department Drugs of Dependence Unit. He listed her history of pain complaints and associated treatment.
His opinion was that she had a musculoskeletal condition originally in 2005 which evolved into a neuropathic form of pain over time. On 10 January 2012, Dr Taylor certified that the applicant was totally unfit for work from 12 December 2011. Dr Taylor wrote that he had significantly reduced the applicant’s narcotic usage with medications Endep, Lyrica and Rivotril.
Workplace assessments
Workplace assessment reports, dated 14 September 2005 and 14 February 2006, from Jeffrey Frith were in evidence. In the first report, reference is made to the changes to the applicant’s desk and her telephone head set. In the second report, a Therapod high back task chair and a standing work point were recommended. Elizabeth Murphy completed a workplace assessment in September 2006 and this resulted in further adjustments to the applicant's furniture.
A Workplace Assessment Report was completed by Occupational Therapist,
Bianca Antoniolli on 9 October 2008. This resulted in provision of a kneeling chair to enable the applicant to alternate between standing, kneeling and sitting and also an adjustable desk. Ms Antoniolli noted that the applicant’s back condition began in approximately 2005 with intermittent pain which then became constant. Reference was made to Dr Verrill’s recent treatment where a peripheral nerve stimulator was surgically inserted anterior to her right scapular with 15 cm wires, a battery and a hand held remote. The applicant advised Ms Antoniolli that the procedure had assisted her but that she was still experiencing constant pain and taking OxyContin, Oxynorm, Lyrica and Ibrufin.
Other work station assessments were conducted in October 2008 and November 2011 by Jodie Donaldson and, again, adjustments to the applicant’s furniture were made.
Previous claim
Prior to her present compensation claim, the applicant completed a claim form for “chronic musculoskeletal pain in [the] thoracic spine” on 21 May 2007. She gave the time of the injury as 11am on 26 August 2005 which occurred while she was sitting at her desk “for long periods of time”. She also wrote in an attachment that, after starting with DVA, her pain progressively worsened and was aggravated when sitting at her work station and she noted this particularly after moving house in July 2005 though she denied that this was related to any aspect of her move. This claim was ultimately withdrawn on
9 July 2007.
Oral evidence
At the hearing, evidence was given by the applicant, Dr Speldewinde, Dr Taylor and
Dr Burke.
Dr Ross Taylor
The applicant’s GP in Brisbane, Dr Taylor, reported on 1 March 2012 and gave evidence. As noted above, he was able to change the applicant’s medication by substituting
non opiate drugs. His opinion was that she originally had a musculoskeletal condition in 2005 which evolved into a neuropathic form of pain over time. He explained that “her pain perception has learned to be triggered by simple stimulation of posture and movement – a common problem with chronic pain sufferers.” He considered that her recovery was hindered by depression and anxiety. As to the cause of the condition, he wrote:
In summary, her work situation contributed to her malaise by way of aggravation of a pre-existing condition, by prolonged sitting and the postural requirements of computer use.
In evidence, Dr Taylor agreed that he had not seen the clinical notes of Dr Res or Dr Lo but had seen some test results. He had not reviewed the various specialist reports in the Tribunal documents.[4] He said that his opinion had been misunderstood and that he did not consider there was a change in 2011. He considered that the condition had been with the applicant since 2005, that it was constitutional in nature, degenerative, unrelated to specific trauma and due to her long periods of sitting at her work station. Dr Taylor agreed that psychosocial factors may be relevant to the applicant’s condition and he referred, in that regard, to the applicant’s marital problems, her depression and her anxiety.
Dr Nicholas Burke
[4] Exhibit 1: documents provided by the respondent under s 37 of the Administrative Appeals Tribunal Act 1985.
Dr Burke completed reports on 5 April 2012, 27 November 2012 and 18 February 2013. He also gave evidence. Dr Burke advised that, in compiling his reports, he interviewed the applicant and reviewed the specialist reports completed in the applicant’s case as well as the clinical notes and letters of Dr Res, Dr Lo and Dr Taylor. He also viewed X-rays, CT scans and MRIs in relation to the applicant’s thoracic spine.
Dr Burke noted that pain in the mid thoracic region was first described 2005 when the applicant was working with Comcare. There was no specific injurious event. The pain settled after she was provided with a particular type of chair following a workplace assessment. The symptoms recurred later in 2005 when she was with DVA and another workplace assessment was undertaken with resultant changes to her work station. The pain became incapacitating and more severe, increasing in intensity and duration and went from intermittent to constant in 2006. Dr Burke noted the treatments from
Dr Speldewinde and Dr Cassar, and the surgical insertion procedure concerning a peripheral nerve stimulator by Dr Verrills which gave good control of symptoms for
2½ years. Dr Burke noted deterioration in 2011. He recognised that Dr Taylor was her GP in Brisbane and that he reduced her use of opiates. Dr Burke noted the applicant’s reference to lower back pain over the years. As to the applicant’s current status, Dr Burke wrote:
She continued to describe ongoing symptoms in her mid back region… She indicated that the pain is constant, tends to vary in intensity and tends to be made worse by activities such as prolonged sitting and prolonged standing. She stated that these were the most intense of the provoking factors. She indicated that she can bend reasonably carefully. Lifting and carrying items can result in increasing symptoms as well. There are no pins and needles and tingling and numbness of any significance. She can get radiation of pain downwards into the lumbar region as well as into the coccygeal region.
Dr Burke noted mild tenderness in the area of the applicant’s pain but no spasm or guarding and no significant sensory findings in the thoracic region in relation to light touch or similar. Dr Burke diagnosed “mechanical thoracic back pain”. He described this as a constitutional underlying condition and his opinion was that there had been no aggravation of the pre-existing condition and that her symptoms represented short term exacerbations. He concluded that the applicant’s condition was not caused or aggravated by her employment.
For his second report, Dr Burke had reviewed the report by Dr Taylor in which reference was made to an injury in October 2011. Dr Burke wrote that he would need to interview the applicant again before he could consider that issue. He did this on 7 February 2013. The applicant advised him that there had been no change to her condition in 2011 but also that she had not been able to use her Canberra workstation equipment for about
six weeks after arriving in Brisbane. She told Dr Burke that her seat was sub-optimal in that period and that she believed that her condition became a permanent deterioration at that time. In that third report and in his evidence, Dr Burke confirmed the opinions expressed in his first report. He said that after each exacerbation, the underlying condition in the thoracic region returned to its previous state without any permanent worsening of that underlying condition. Dr Burke also opined that sitting and standing would bring about these exacerbations regardless of where that activity was undertaken, for example at home, in driving a car or being at a desk. Dr Burke also agreed that psychosocial factors had relevance to an ongoing pain disorder.
Dr Speldewinde
Reference has been made above to the treatments provided by Dr Speldewinde to the applicant. He completed a report on 19 September 2013 in which he summarised the history of the applicant’s complaint and treatment and then gave an opinion on the cause of the applicant’s condition. He wrote:
With respect to the question of whether this is related to your work you describe that the only factor relevant to its onset in 2005 was the nature of your work in the Department of Veterans’ Affairs. However, there have been no specific injury events, rather a gradual progression of these pains through that time. I do not believe that work was a specific precipitant of your pains, but may be an aggravating factor in a variable fashion over the time of your employment which I understand was until 2011.
In his evidence, Dr Speldewinde explained that his reference to work being an aggravating factor in a variable fashion was to his understanding that pain does not develop in a straight line. Rather, he said, there are short term exacerbations. However, he agreed that these did not worsen the underlying condition. He described this as a constitutional condition which can become symptomatic without external stimuli.
His opinion was that psychosocial factors are also capable of triggering exacerbations and, in that regard, he noted that the applicant had suffered from depression and anxiety.
The applicant
The applicant was seeing Dr Res before she made complaint about her thoracic pain. She described an abusive relationship with her first husband which ended in divorce in 2004. Despite that, issues of domestic violence continued and she saw Dr Res in relation to depression. She purchased a house and moved into it in July 2005. She recalled telling
Dr Res of this but not in respect of having injured herself in the moving process. Rather, she mentioned it only as a time reference point. She denied that she told Dr Res that she moved herself into the house. Her first reference to her pain to Dr Res was in
August 2005 and she agreed that she may not have implicated her work at that time.
In the years 2007 to 2010, the applicant was involved in another relationship characterised by conflict. Her second husband had serious health concerns which required the applicant to provide care for him. Despite that he was abusive to her and she agreed that this was a turbulent period in her life. She said that she lived in fear of him and, at times, of his son. She recalled an occasion when the son entered her house at night and administered an injection to her while she was asleep.
Another stressful factor in the applicant’s life has been her financial situation.
In particular, she has had the burden of meeting the costs of her extensive consultations and medications.
The applicant described her interests as including sewing, in particular making quilts, and dancing. She said that she does not engage in these now and had ceased dancing by 2007 and had not resumed. She denied that she ceased seeing Dr Res because she was resistant to her continuing with opiates. She said that she moved on from Dr Res because Dr Res had “yelled at” her.
The applicant agreed that she had advised Dr Burke that the peripheral nerve implant had produced a miraculous result which helped her for over two years. In her evidence, she said that it had been very good at first but did not enable her to cease her OxyContin medication.
She agreed that, because of adjustments to her work station for her last four years in Canberra, she was able to transition from sitting, to kneeling and then to standing at her work station and to take breaks when she needed to and when the computer reminded her of the need to do so.
The applicant maintained that it was prolonged sitting at work which caused her pain. She agreed that, over time, her pain emerged whenever and wherever she was sitting but that, initially, it was only at work. She said that her work before taking up the Comcare position was as an office manager in a real estate firm where she was active and she thought that the change to the sedentary role with Comcare may have been responsible for the pain. The applicant agreed that she had undergone several work station assessments in which attempts were made to improve her working environment.
She described some benefit from these assessments but that, nevertheless, her pain continued. The applicant was referred to Dr Res’ clinical note on 6 November 2006 about the accelerated use of her Norspan patches and denied that she had done this. She also denied having accelerated the use of her OxyContin in March 2007 which caused her to seek further doses from the hospital. The applicant denied that she had become dependent on opiates but accepted that Dr Cassar had closed her case because of her unwillingness to withdraw from their use.
CONTENTIONS
For the respondent, Ms Nitra Kidson submitted that the diagnosis offered by Dr Burke of “mechanical thoracic back pain” was appropriate in this matter. Under s 7(4) of the Act, she submitted that the first treatment for this by Dr Res on 24 August 2005 was the time that she sustained that disease. As this was prior to the amendments to the Act in 2007, she submitted that the relevant provision of causation was in s 4 of the Act. Ms Kidson submitted that the applicant’s mechanical thoracic back pain was a disease not contributed to in a material degree[5] by her employment. She also submitted that, while temporary intensification of pain from the diagnosed condition can constitute an aggravation of a pre-existing injury, a distinction must be drawn between two situations: the first is where the pre-existing injury causes pain whether or not the worker is at work; the second is where the worker has a pre-existing injury and work-related activities cause the suffering of pain more intensely. Only in the second case, she submitted, was there a compensable injury under the Act. Ms Kidson submitted that the applicant’s thoracic pain impacted on her in all her activities away from the work place and that, accordingly, her circumstances were embraced by the first of those situations and that there was no aggravation of her condition under the Act.[6] Ms Kidson submitted that the applicant’s evidence should be treated with caution because of its demonstrable unreliability.
She also submitted that there were psychosocial factors relevant to the thoracic pain experienced by the applicant and that these were unrelated to her employment.
[5] Citing Comcare and Sahu-Khan (2007) 156 FCR 536 and Comcare v Canute (2005) 148 FCR 232.
[6] Citing Commonwealth v Beattie (1981) 35 ALR 369; Mellor v Australian Postal Corporation (2009) 108 ALD 159 and Coles v Australian Postal Corporation [2011] AATA 62 at [5]-[11].
For the applicant, Mr John Trungove agreed that the relevant provisions of the Act were those that pre-dated the 2007 amendments. He did not dispute the diagnosis given by
Dr Burke but submitted that the applicant’s underlying condition was a disease which was aggravated by the long hours of sitting at her work station which made a material contribution to the applicant’s mechanical thoracic back pain. He submitted that there was no evidence from Dr Speldewinde or Dr Burke that her condition returned to its base level after each occasion when the applicant experienced pain. Mr Trungove submitted that the applicant’s evidence was not unreliable and should be accepted. In particular, he submitted that Dr Res had wrongly attributed her pain to the move into her new home in 2005 when, in reality, the applicant had referred to that move as a time marker.
He described her as a workaholic who continued with her work regardless of the pain she experienced and despite the other matters that were occurring in her life. He also submitted that the applicant had not become addicted to opiates during her treatment.
He submitted that the decision under review ought to be set aside and that a decision be made that, under s 14 of the Act, Comcare is liable to pay compensation to the applicant in accordance with the Act.
LEGISLATION
The provisions of the Act in 2007 pertaining to this matter, in so far as relevant, are:
4 Interpretation
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
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.
…
injury means:
(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.
7 Provisions relating to diseases
…
(4) 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.
14 Compensation for injuries
(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.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
CONSIDERATION
The applicant has been referred to several specialists in relation to the condition in the thoracic region of her back. Apart from Dr Burke, their concerns were in treating the applicant for the condition and most of them provide no guidance on the diagnosis or the cause of it. A diagnosis has not emerged from X-rays, CT scans or MRI procedures.
Dr Kellett requested that an MRI be done “in the absence of any proven diagnosis”.
Dr Pik was at a “complete loss” to explain the applicant’s symptoms. Dr Verrill described the condition as complex right thoracic neuropathic pain. Dr Cassar described scoliosis, mechanical back disorder and chronic back pain. Dr Speldewinde, in his final report, referred to mid-thoracic back pain. Dr Burke, who was not involved in treatment of the applicant, diagnosed “mechanical thoracic back pain” and Dr Taylor wrote that the applicant had a musculoskeletal condition which evolved into a neuropathic form of pain. Given the generality of some of those descriptions and Dr Burke’s specialty, I am satisfied that his diagnosis should be adopted. That was the submission of Ms Kidson and, in his submission, Mr Trungove said that he did not dispute that diagnosis.
There are inconsistencies in the applicant’s evidence concerning the varying descriptions of her pain levels after particular treatments. Dr Speldewinde described good relief from his injections in April 2006 but, by October 2006, Dr Kellett noted persistent thoracic pain even though the applicant was able to “walk and even run without significant pain”. By November 2006, her pain was such that she is recorded as having used her four week supply of Norspan in two weeks and tried to obtain more. In January 2007, Dr Govind reported that the applicant’s use of OxyContin resulted in a “quite dramatic” reduction in pain level but, in March 2007, she reported fainting at work because of pain. At that time she took OxyContin at a rate faster than the prescribed dosage. In August 2007, she was well enough to commence a gym program but was unable to continue because of pain.
In November 2007, the applicant described a 3½ year history of pain which would mark a commencement in mid-2004 which was before she was employed by Comcare.
In January 2008, the applicant is recorded by Dr Riddell to have a 2½ year history of “constant unremitting pain” which is not consistent with the periods of relief from pain noted above or the intermittent pain she frequently described. Dr Riddell also noted that, despite the pain, the applicant had good levels of day to day function and activity including dancing and full time work. In March 2008, Dr Cassar described an excellent response from his treatment regime. In September 2008, Dr Verrills reported that his peripheral nerve lead trial was “overwhelmingly positive” such that she was “virtually pain free”. Dr Speldewinde noted, in May 2011, that the applicant experienced 2½ years of good pain control and pain masking but spontaneous deterioration from January 2011. Despite that, thoracic pain is reported in the clinical notes from Dr S Lo’s practice on
19 May 2008, 15 May 2009, 3 August 2009,[7] 17 February 2010 and 16 June 2010. Also, unspecified back pain is noted on 27 June 2009, 10 July 2010 and 28 March 2011. Those references to thoracic pain and back pain coincide with the pain free period identified by
Dr Speldewinde.
[7] This is recorded as “th” on 3 August 2009.
The applicant’s compensation claim forms also reveal inconsistencies. In her first claim form in May 2007, she alleged that her thoracic pain commenced on 26 August 2005 at 11am and that she reported this to Dr Res. The clinical notes of Dr Res record a consultation on 24 August 2005 where the applicant complained of pain for 1-2 months and Dr Res noted: “? aggravated by move”. No reference is made to the applicant’s work. As noted above, the applicant withdrew that claim. In her current claim, the applicant nominated the time of onset as the afternoon of 11 August 2005 while she was sitting and typing on her computer using her mouse and she identified “debilitating [sic] electric shock” through her spine at that time. In her evidence, she said that the feeling of electric shock may have occurred in 2007 rather than 2005.
Concern about inconsistency in the applicant’s evidence is reinforced by her denials of matters that are well documented. The applicant denied that she hurt her back when she moved house in 2005 and denied telling Dr Res that she did so or that she made the move herself. Dr Res’ clinical notes are clear. An absence of relevance of the move to the applicant’s back condition was not the understanding reflected in Dr Res’ clinical notes or her referral letters to treating specialists. Dr Res’ referrals to Dr Pik and Dr Riddell in October 2007 noted that the applicant had suffered thoracic pain since July 2005 “after moving house”. This was after Dr Res had been made aware of the applicant’s compensation claim for her thoracic pain. I am satisfied that Dr Res would not have done this, especially in her referral letters, if she did not consider it to have relevance to the applicant’s condition. Also, the applicant’s accelerated use of Norspan patches and OxyContin is well documented and I do not accept her evidence that she did not do so.
I accept Ms Kidson’s submission that the inconsistencies in the applicant’s evidence demonstrate her unreliability as a witness. Further, her claim that her work place duties aggravated her back pain is not supported by the medical evidence. As to the cause of the mechanical thoracic back pain, Dr Kellett wrote that this was not clear. Dr Verrill identified no cause. Neither Dr Cassar nor Dr Govind gave an opinion on causation.
Dr Taylor, in his report, concluded that the applicant’s work situation contributed it by way of aggravation of a pre-existing condition through prolonged sitting and the postural requirements of computer use. However, in his evidence, after review of the various specialist reports including those of Dr Burke, he said that the applicant’s condition was constitutional in nature, degenerative, unrelated to specific trauma and due to the applicant’s long periods of sitting at her work station. Dr Speldewinde concluded that the applicant had an underlying condition and that she experienced short term exacerbations which did not worsen the underlying condition. He described this as a constitutional condition which can become symptomatic without external stimuli. Dr Burke’s opinion was that the applicant’s mechanical thoracic back pain was a constitutional underlying condition and that her symptoms represented short term exacerbations without aggravation of the pre-existing condition by the applicant’s employment. As I read the opinion of Dr Taylor it supports that of Dr Speldewinde and Dr Burke. To the extent that it does not do so, I prefer the opinions of Dr Speldewinde and Dr Burke on the basis of their respective specialties.
To satisfy the requirements of an aggravation of a disease under s 4 of the Act, there must be contribution in a material degree by the applicant’s employment. On the basis of the opinions of Dr Speldewinde and Dr Burke, there was no worsening of the underlying constitutional condition. It has been stated that aggravation requires that an existing condition has been “made worse” and not that it has simply “become worse”.[8] In this matter, the specialist evidence is that the applicant’s condition was neither made worse nor became worse. I am satisfied that the applicant did not experience an aggravation to any degree of her underlying condition of mechanical thoracic back pain.
[8] See Ogden Industries Pty Ltd v Lucas (1967) 118 CLR 537 at 593.
There is authority that pain brought on by a work injury may constitute an aggravation of a pre-existing injury, even though no pathological change takes place. So much is seen in Re Smith and Comcare[9] and Commonwealth v Beattie[10] (“Beattie”). However, in Beattie, the Full Court said:
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury."
[9] (1995) 39 ALD 715
[10] (1981) 35 ALR 369 at 378.
That passage was referred to by Finklestein J in Tippett v Australian Postal Corporation[12] in the following way:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
[12] (1998) 27 AAR 40 at 44.
It was this distinction which was relied upon by Ms Kidson. I accept her submission that the applicant’s circumstances fall within the first of the two scenarios referred to in that passage. In his report, dated 14 January 2008, Dr Riddell wrote that the applicant’s “pain is there no matter what she does”. Pain at night was reported by Dr Pik, Dr Cassar and by Dr Res. Indeed, from her clinical notes, Dr Res was unaware of the applicant’s association of her thoracic pain with her work until May 2007. In the initial Needs Assessment on 28 June 2007, DTA Rehab Pty Ltd reported pain when shopping, lifting, reaching overhead, dancing and prolonged driving. Dr S Lo recorded thoracic pain when the applicant was vacuuming. The applicant discontinued her gym program in
August 2007 when her trainer advised her that the high levels of pain she experienced in light workouts were not normal. These are examples of non-work related activity during which the applicant experienced her thoracic pain and I am satisfied that her pain symptoms were not quarantined to her position at her work station. On that basis, I am also satisfied that the applicant’s work did not make a material contribution, as required by s 4 of the Act, to the aggravation of the applicant’s mechanical thoracic back pain
Dr Speldewinde, Dr Burke and Dr Taylor confirmed in their evidence that psychosocial factors are capable of triggering exacerbations of the kind of pain from which the applicant complained. There is evidence of such matters impacting on the applicant from 2002 through to 2011. Dr Res recorded experiences of abuse and violence in the applicant’s first and second marriages; she also noted that the applicant was burdened by the care needs arising from the severe health problems of her second husband; and there are many references in her treating doctor’s records of anxiety, depression and financial pressures impacting on her. The clinical notes from Dr S Lo’s practice, spanning from 2009 to 2011, refer to a house break-in, a horrible relationship, “stress” from a “problem with hubby’s family”, the applicant being upset about hospital treatment of her husband and “depression on/off husband in intensive care”. It may well be the case that these psychosocial influences played their part in the episodes of pain experienced by the applicant. Even if they did, they have no relationship to her employment with the Commonwealth.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .............................Sgd........................................
Associate
Dated 23 May 2014
Dates of hearing 23 & 24 April 2014 Advocate for the Applicant Mr John Trungove Counsel for the Respondent Ms Nitra Kidson Solicitors for the Respondent Australian Government Solicitor
[11] Beattie at 378 per Evatt and Sheppard JJ.
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