Balbi Kaur and Comcare
[2014] AATA 127
[2014] AATA 127
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0162
Re
Balbi Kaur
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Dr W Isles, MemberDate 10 March 2014 Place Sydney The decision under review dated 28 November 2012 is affirmed.
........................[sgd]................................................
Deputy President RP Handley
Catchwords
COMPENSATION – lumbar injury – whether the Applicant continues to suffer the effects of an injury – current symptoms not the result of the injury for which liability was accepted – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 16, 19
Cases
Zomer and Telstra Corporation [2012] AATA 601
REASONS FOR DECISION
Deputy President RP Handley
Dr W Isles, Member
Ms Kaur (the Applicant) has applied to the Tribunal for the review of a decision made by Comcare (the Respondent) that it is no longer liable to pay compensation to Ms Kaur for medical treatment and incapacity for work.
BACKGROUND
Ms Kaur was born in 1963 and is aged 51. She has been employed by the Department of Human Services (the Department) as a Customer Service Officer (CSO) at the Liverpool office of Centrelink since June 2006 but last worked in about September 2012. Since that time, she has been on leave without pay.
In late 2008 or early 2009, Ms Kaur began to experience neck and shoulder pain. She informed Centrelink of her injury, and underwent four sessions of physiotherapy funded by the Department. In 2010, she also began to experience stiffness in her back. In late March 2011, she was transferred to the Job Capacity Network (JCN) at the Liverpool office. After initial training lasting three days, Ms Kaur commenced work in her new role on 4 April 2011. Her duties primarily involved conducting telephone interviews and computer work, including typing. Shortly after commencing work in the JCN, Ms Kaur experienced neck, shoulder and back pain. At one point, on 6 April 2011, she states her pain was so unbearable that she took 2 hours leave, coming in to work late. The following day she attended her doctor and was issued a medical certificate for light work for the period 11 to 15 April 2011. She was subsequently certified unfit for work by Dr L Prasad, “Senior Injury Management Consultant”, from 13 April to 21 April 2011.
On 21 April 2011, at the request of the Department, she was assessed by Dr David Allen, “Specialist in Occupational and Environmental Medicine”, who deemed her fit to return to her normal duties. She commenced a graduated return to work program on 6 May 2011, involving a gradual increase in her hours from 4 to 7.3 hours per day (full-time) five days a week. She continued physiotherapy, two nights per week, through to June 2011.
On 30 May 2011, Comcare accepted liability for injuries suffered by Ms Kaur in April 2011, namely: neck sprain (right), sprain of the right shoulder and upper right arm, and lumbar sprain (left).
On 17 July 2011, Ms Kaur suffered a severe headache at work that required her admission to hospital where a lumbar puncture was performed. In late September 2011, Ms Kaur had a further lumbar puncture in respect of an unrelated condition and, on 15 October 2011, she had an x-ray and CT scan of her lumbar spine. In his report of the same date, Radiologist Dr Mark Waterford said the x-ray showed a minimal scoliosis convex to the left and the CT scan showed a normal L3/4 disc and a L4/5 disc with a minimal disc bulge which did not significantly compress the thecal sack.
Comcare requested that Ms Kaur attend an assessment by Associate Professor Nigel Hope, Orthopaedic Surgeon, on 21 May 2012. In his report dated 24 May 2012, Professor Hope stated that the injury to Ms Kaur’s cervical and lumbar spine had ceased and current symptoms were due to age-related degenerative change.
On 18 July 2012, Ms Kaur consulted Neurosurgeon Dr Renata Abraszko, who arranged for an MRI of Ms Kaur’s lumbar spine. This was performed on 31 July 2012 and revealed a disc protrusion. Radiologist Dr Shane Connolly, in a report of that date, stated the following conclusion:
1. Loss of disc height and disc desiccation with a left posterolateral L3/4 disc protrusion with annular tear causing displacement to the exiting left L3 nerve.
2. Minor broad-based L4/5 disc bulge.
In relation to L4/5, Dr Connolly said that the L4 nerves exit normally and that no nerve root compression was demonstrated.
In a report to Dr Eugene Chan, Ms Kaur’s General Practitioner (GP), dated 31 August 2012, Dr Abraszko said “MRI showed left side L3/L4 far lateral disc bulge which corresponds to her symptoms.”
In a decision made on 10 September 2012, a delegate of Comcare declined any further liability to pay compensation to Ms Kaur on the ground that she was no longer suffering from the effects of the injuries liability for which was accepted in May 2011. On 28 November 2012, an Authorised Review Officer (ARO) affirmed this decision and, on 14 January 2013, Ms Kaur applied to the Tribunal for a further review.
LEGISLATION AND ISSUES
The relevant legislation in respect of claims for workers’ compensation by Commonwealth employees is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an ‘injury’ (as defined in s 5A) suffered by an employee which results in incapacity for work. Liability under s 14 to pay compensation for neck sprain, sprain of the right shoulder and upper right arm, and lumbar sprain was accepted by Comcare on 30 May 2011 and is not in issue.
Pursuant to s 16 and s 19 of the SRC Act, Comcare has paid compensation for medical treatment and incapacity for work in respect of those injuries. Section 16(1) states:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 provides relevantly:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …
The issue for the Tribunal is whether Ms Kaur continues to suffer the effects of the injury to her back sustained in April 2011, or whether her current symptoms are the result of degenerative change.
THE APPLICANT’S EVIDENCE
Ms Kaur provided a statement dated 9 April 2013 and gave evidence at the hearing. She said her work as a CSO at Centrelink’s Liverpool office was sedentary work involving greeting customers, conducting face to face interviews, assessing payment qualifications and eligibility (mostly for age pension), and computer entry and typing. Ms Kaur said she began experiencing neck and shoulder pain in late 2008 and early 2009. She had reported this to her manager, and had four sessions of physiotherapy paid for by Centrelink. In 2010, she also began to experience stiffness in her lower back. In June 2010, she had a CT scan of her lumbar spine.
Ms Kaur said she continued to perform the same work and until March 2011 had not taken any time off work for her condition. On 29 March 2011, she was told that she would be transferred temporarily to a Job Capacity Network (JCN) processing team and, on 30 March 2011, she commenced three days of initial training. Ms Kaur commenced JCN duties on 4 April 2011. The work involved her conducting telephone interviews lasting up to an hour each, plus computer entry and typing. She said that none of her interviews lasted for less than an hour and that, as a result, there was no time for her to get up and move around between interviews because she was expected to undertake one interview every hour. She was allowed one break of 15 minutes in the morning, a break of 45 minutes at lunchtime (at 1.00 pm or later depending on the schedule of interviews), and a break of 15 minutes in the afternoon. The result was that there was less flexibility in her day, and she had less opportunity to get up and move around than when she was working as a CSO.
Ms Kaur said that during the course of the first day of undertaking JCN work (4 April 2011), she experienced more severe back pain. She felt a sharp pain in her left lower back on going home that did not improve overnight. The Panadol she took were of no help in easing the pain. The next day, the pain worsened and, on the third day, she was two hours late in arriving at work in the morning because of the pain and told her manager that the pain was very bad. Her manager told her to continue with the JCN work. On 8 April 2011, Ms Kaur went to see her GP, Dr Chan who certified her fit for light duties and referred her to Dr Prasad. She saw Dr Prasad on 13 April 2011 and he certified her unfit for work for eight days during which time she started physiotherapy that, she said, helped a bit. At the end of the eight days, Ms Kaur felt “slightly better”.
Ms Kaur went back to her previous work as a CSO, commencing a graduated return to work program on 6 May 2011, in the course of which she had ongoing physiotherapy. By mid-2011, she was back to full-time hours in what was a more flexible work environment. She said she still had lower back pain – she had good days and bad days - but it was more bearable – more manageable than in early April. She continued to also have shoulder and neck pain through this period.
On a day in July 2011, while at work, Ms Kaur experienced a severe headache accompanied by neck pain, as a result of which she felt giddy and her blood pressure was high. An ambulance was called and she was taken to hospital where she had a lumbar puncture. Ms Kaur said this did not change her lower back condition.
In late September 2011, Ms Kaur commenced extended leave for a non-compensable medical condition. During this time, she had a second lumbar puncture. She could not recall whether she had complained to medical staff about pain at the site of this lumbar puncture. She said after nearly two months away from work (she returned to work on 22 November 2011), her back was not any better. Ms Kaur said that in early 2012, she started experiencing pain in her left leg as well as increased pain in her lower back. The back pain continued to worsen through 2012. She was also experiencing unrelated problems with her hips and knees for which she had treatment.
Ms Kaur said she was off work from about 7 August 2012 and has not worked since. She enjoyed her work and would have liked to have returned to work had she been able. After she was examined by an Occupational Physician, Dr Uthum Dias, at the request of the Department on 19 November 2013, she received a letter from the Department stating that consideration was being given to the termination of her employment on the ground that she is unfit for work. In the week prior to the hearing, Ms Kaur received a further letter from the Department notifying her that her employment would be terminated from 3 March 2014.
Ms Kaur said she is in a lot of pain daily and could not work. She lives with her son who is a university student, and also her carer, and who does most of the housework. She is mostly at home. She attends hydrotherapy classes with a physiotherapist which she pays for herself. Her current medication is two 75 mg Lyrica tablets and one 10 mg Endone tablet daily. On the morning of her giving evidence, Ms Kaur did not take Endone because it tends to make her drowsy and, as a result, her back was painful. Financially, she said she is supported by income protection insurance payments and she has also enquired about accessing her superannuation.
MEDICAL EVIDENCE
The Tribunal was provided with expert medical reports from Orthopaedic Surgeons Dr James Bodel (dated 5 February 2013) and Associate Professor Nigel Hope (dated 23 May 2013 and 20 December 2013), and from Neurosurgeons Dr James Bentivoglio (dated 3 December 2012, 13 February 2013 and 7 May 2013) and Dr Peter Blum (dated 3 November 2013). Dr Bodel and Dr Hope gave evidence in person concurrently at the hearing and so did Dr Bentivoglio and Dr Blum, although Dr Bentivoglio’s participation was by conference telephone. At the Tribunal’s request, prior to giving evidence, the experts had a private discussion to identify those issues on which they agreed and on which they disagreed.
Dr Bodel and Professor Hope
Dr Bodel and Professor Hope referred to a report of an MRI of Ms Kaur’s lumbosacral spine by Radiologist Dr Shane Connolly dated 31 July 2012 which states, referring to L3/4:
Neutral (sitting) imaging: There is a posterior and left lateral, principally extraforaminal disc protrusion with annular tear. Appearances are indicative of displacement to the existing left L3 nerve in an extraforaminal location. The right L3 nerve exits normally. Early loss of disc height with disc desiccation noted.
Dr Bodel and Professor Hope agreed on the following,
1. The L3/4 disc changes on MRI [report dated 31 July 2012] are not related to the change in employment.
2. The L3/4 disc changes are arguable and may or may not be a pain generator.
3. There is no identifiable pain generator in the lumbar spine on upright MRI.
They agreed that the MRI report reveals a pathological abnormality. Dr Bodel said it is unlikely that such a significant change occurred as a result of Ms Kaur’s work practices. Professor Hope said there is no causal link between the change in her work practices and the changes at L3/4. They agreed that it is not clear what the pain generator is. Dr Bodel said the changes noted in the MRI report could be consistent with degenerative changes in Ms Kaur’s lumbar spine.
The doctors were asked about the weight that should be accorded to the results of a CT scan or an MRI when considering a soft tissue injury. They agreed that an MRI is of greatest value – it is the “Gold Standard” for such situations. However, the results of an MRI should only be interpreted in the light of having previously taken a relevant history and having examined the patient.
Dr Bodel said a change in work practices will not, of itself, cause substantial structural change. While you can get a sore back from sitting all day, if you have a normal spine there should be no lasting deficit. He said a disc becoming desiccated is part of the gradual ageing process which takes place over many years. The description of the L3/4 disc in the MRI report is that of a degenerate disc. An abnormal disc can become symptomatic on a particular day – for example, because of work practices - but that does not mean there has been a change in the pathology of the disc. There is a low probability that the disc protrusion is associated with any particular event.
Professor Hope said that Ms Kaur’s condition is unlikely to be related to whatever happened on the day that her work practices changed which should have long since resolved. Dr Bodel agreed.
In his report dated 5 February 2013, Dr Bodel said Ms Kaur is fit for “light duty activities at work” and “should be able to upgrade to pre-injury duties with appropriate work hardening and an exercise program” to strengthen her neck, shoulders and back.
Professor Hope, in his report dated 23 May 2013, noted the history of soft tissue injuries on 4 April 2011 “which have long since resolved”, and said that “Continuing symptoms are due to age related degenerative change”. He reiterated this in his report dated 20 December 2013.
Dr Bentivoglio and Dr Blum
Dr Bentivoglio and Dr Blum were in agreement that the results of the MRI of 31 July 2012 are indicative of degenerative disease. A tear to the annulus of a disc is usually associated with trauma: the annulus is quite tough and requires a significant force, usually a twisting or lifting force, to cause a tear. Dr Bentivoglio said, in his opinion, a change in sedentary work practices of the kind described by Ms Kaur, not involving any specific event, would not result in an annular tear.
Dr Bentivoglio said it is common for symptoms of nerve root irritation to arise some time after a disc prolapse. Recognising that the results of an MRI are a more reliable indicator of soft tissue injury than those of a CT scan, he and Dr Blum agreed that the results of the CT scans of June 2010 and October 2011 are consistent in showing no evidence of a frank injury. The scans are at odds with the MRI in July 2012. The doctors agreed that the annular tear probably occurred after October 2011.
In his report dated 3 November 2013, Dr Blum said he did not think Ms Kaur’s current condition is related to her employment with Centrelink but, rather, is a “general degenerative state which is normal in people of her age group”. Dr Bentivoglio, who treated Ms Kaur for back and leg problems between September 2012 and February 2013, said a “graded return to work program would be ideal for her”, with permanent restrictions on lifting, avoiding repetitive bending, twisting, kneeling and squatting, and limiting sitting to no longer than 60 minutes with the ability to stand after 10 to 15 minutes, and walking only as far as is comfortable.
Other Medical Evidence
The Tribunal has been provided with reports dated 31 August 2012 and 31 October 2012 from Ms Kaur’s Treating Neurosurgeon, Dr Renata Abraszko to whom Ms Kaur was referred by her GP, Dr Chan. In the earlier report, Dr Abraszko refers to Ms Kaur complaining about severe pain going down her left leg, not being able to move “occasionally” and being scared of moving.
The Tribunal has also been provided with reports from Occupational Physicians Dr Blair Christian (dated 1 September 2011, 26 November 2012, 20 March 2013 and 16 September 2013) and Dr Uthum Dias (dated 26 November 2013).
In his report dated 26 November 2012, Dr Christian referred to a number of conditions causing Ms Kaur back and leg pain. He said:
The low back pain, and the distal thigh pain and intermittent radiating left leg pain down to the foot, is likely related to the lumbar spine changes seen on the MRI scan.
Dr Christian said Ms Kaur is not currently medically fit for her usual duties and hours and “would not currently manage even part-time work with her levels of pain”; neither is she currently fit to undertake a rehabilitation program. In his report dated 20 March 2013, Dr Christian confirmed this opinion, noting that Ms Kaur’s pain levels appeared to have worsened since he last saw her. In his further report dated 16 September 2013, Dr Christian said his assessment had not changed but he now considered Ms Kaur “to have become totally and permanently incapacitated for work”.
In his report dated 26 November 2013, Dr Dias said Ms Kaur’s prognosis is poor in both the short and long term:
At present I believe Ms Kaur is a candidate for total and permanent incapacity. Given the chronicity and severity of her symptoms it is unlikely that she will ever recover to the point where she will be able to sustainably return to work in either a full-time or part-time capacity in a vocational role that is commensurate with her education, training and experience.
DISCUSSION
As Mr Grey, for the Applicant, pointed out, liability under s 14 of SRC Act is not in issue in this matter. At issue is whether Comcare is liable pay compensation to Ms Kaur under s 16(1) “in respect of the cost of medical treatment obtained in relation to the injury”, and whether, pursuant to s 19, Comcare is liable to pay compensation to Ms Kaur “as an employee who is incapacitated for work as a result of an injury”. The relevant injury for which Comcare accepted liability under s 14 on 30 May 2011 was described as “lumbar sprain (left)”.
Submissions
Mr Grey contended that Ms Kaur suffered a frank injury on 4 April 2011 in the course of her employment which resulted in incapacity for work and an ongoing need for medical treatment post 10 September 2012 when Comcare determined that “you do not presently suffer from the effects of your compensable condition”. However, even if it is accepted that it is unlikely that a disc rupture occurred in April 2011 as the experts agreed, the fact of there having been an onset of pain during the course of employment is sufficient. Mr Grey said that Ms Kaur complained of left-sided low back pain from the time of injury in April 2011. While, after she returned to work, Ms Kaur was able to manage the pain, it never went away and, in 2012, she began to experience left leg symptoms.
Mr Grey noted that no attack was made on Ms Kaur’s credit and there is no indication that Ms Kaur was exaggerating her symptoms. While the orthopaedic experts say that it is ‘unlikely’ that there is any relationship between Ms Kaur’s current symptoms and the injury in April 2011, the neurologists said it is possible: none of the experts said it was medically impossible. Mr Grey said the Tribunal should give more weight to the history given by Ms Kaur: see the approach discussed by Deputy President Jarvis in Zomer and Telstra Corporation [2012] AATA 601, at [51].
Mr Gollan, for the Respondent, said that the experts were unanimous that it is unlikely or improbable that a disc rupture occurred in April 2011 during the course of Ms Kaur’s employment. As Dr Bentivoglio and Dr Blum agreed, an annular tear requires a significant degree of force and sitting could not be responsible for such an outcome. Mr Gollan noted their evidence that the annular tear probably occurred after October 2011: Dr Waterland’s report dated 15 October 2011 notes a L3/4 disc that is normal. Mr Gollan suggested that there had been some “gilding of the lily” by Ms Kaur in her history of what occurred. For example, she was able to undertake a return to work program in May 2011 leading to her graduating to full-time hours.
With regard to s 16 of the SRC Act, Mr Gollan said while the Respondent accepts that Ms Kaur suffered a sprain to the lumbar spine in April 2011, the treatment she had from September 2012 was not in relation to this injury. Similarly, with regard to s 19, her incapacity for work from September 2012 was not as a result of the injury.
Consideration
The Tribunal has given careful consideration to the medical evidence. In our view, it is clear from the expert evidence that prolonged sitting of the kind that was involved in the JCN work that Ms Kaur commenced on 4 April 2011, and which ceased on 7 April 2011, is unlikely to have caused any structural change in Ms Kaur’s lumbar spine and, in particular, a disc prolapse at L3/4. We are not satisfied that Ms Kaur suffered a frank injury on 4 April 2011. It is likely that the injury she suffered at that time was, as accepted by Comcare, a “lumbar sprain (left)”. As Mr Gollan has noted, Dr Bentivoglio and Dr Blum considered that a significant force would be required to give rise to the annular tear in the L3/4 disc identified in the MRI report dated 31 July 2012 and there is no evidence of this occurring during the course of Ms Kaur’s employment.
Dr Bodel and Professor Hope agreed that the injury on that date has long since resolved and that “Continuing symptoms are due to age related degenerative change”. The Tribunal notes Dr Bodel’s comment that “Early loss of disc height with disc desiccation” (MRI dated 31 July 2012) is evidence of age-related degeneration. Dr Bentivoglio and Dr Blum also agreed that the MRI result is indicative of degenerative disease.
All four experts agreed that an MRI is the “gold standard” and provides more reliable evidence of soft tissue injuries than x-rays and CT scans. Nevertheless, the expert neurologists referred to the CT scans dated 4 June 2010 and 15 October 2011, noting that the results with regard to the lumbar spine are consistent with the L3/4 disc being normal at that time and are at odds with the MRI dated 31 July 2012. This led the neurologists to opine that the annular tear occurred after October 2011.
The medical picture that Ms Kaur presents for the period since September 2012 is complex and appears to be unrelated to the picture seen in April 2011. She has worsening low back pain but the Tribunal considers it more likely that this is due to the worsening of a degenerative spine condition. Ms Kaur also complains of hip pain on both sides. Dr Bentivolgio thought this to be trochanteric bursitis and treated her with injections with some limited success. The left knee pain of which she complains was investigated by Dr Jayker Dave, Orthopaedic Surgeon, who found inflammation and a bakers cyst. The parties agree that neither of these conditions are related to the injury of April 2011.
The other major symptom and the cause of quite some degree of disability for Ms Kaur is left leg pain which she describes as thigh pain sometimes going down to the foot. This appears to be related to the findings seen on the MRI scan taken on 31 July 2012. The timing of the onset of the leg pain is unclear but seems to be some time before May 2012 and after September 2011. Reports by Dr Prasad (6 May 2011), Dr Christian (1 September 2011), and Dr Hope (24 May 2012), make no mention of leg pain. However, Dr Dave (28 May 2012) and Dr Khan (23 May 2012) describe left leg pain for the first time in their histories taken from Ms Kaur. Dr Khan's report of the 29 May 2012 states that the “left thigh and knee pain” was present since July 2011 but this is contrary to the reports by all the other specialists so we assume this was an oversight by either Dr Khan or Ms Kaur in their history taking. Dr Bentivolgio in his report of 7 May 2013 mentions left leg pain of 17 months duration which would place the onset in early 2012. The timing of the onset of the leg pain corresponds with the opinion of the medical experts that the L3/4 disc protrusion seen on the MRI most likely occurred some time after October 2011.
The Tribunal notes that there is reference to a second lumbar puncture performed in late September 2011 having caused Mr Kaur to complain of pain, but finds there is no evidence to link this with the leg pain Ms Kaur now suffers. Dr Blum pointed out that while there may sometimes be a temporary aggravation of back pain, any permanent nerve damage would be unlikely and would have been noticed by Ms Kaur at the time as it would have been exceptionally sharp and painful.
The Tribunal is satisfied from the expert medical evidence that any medical treatment obtained by Ms Kaur from September 2012 was not obtained in relation to the injury and Comcare is therefore not liable to pay compensation to Ms Kaur for such medical treatment under s 16(1) of the SRC Act. In relation to s 19, the Tribunal is satisfied that, while the evidence of occupational physicians Dr Christian and Dr Dias, who have assessed Ms Kaur at the request of the Department, is that Ms Kaur continues to be incapacitated for work and is unlikely ever to work again, her current symptoms referrable to her lumbar spine are not, on the balance of probabilities, the result of the injury suffered by Ms Kaur in April 2011. Thus, the Tribunal is satisfied that Comcare is not liable to pay compensation to Ms Kaur for incapacity to work from September 2012.
DECISION
The decision under review dated 28 November 2012 is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley and Dr W Isles, Member ....................[sgd]....................................................
Associate
Dated 10 March 2014
Date(s) of hearing 24 - 25 February 2014 Date final submissions received 25 February 2014 Counsel for the Applicant LT Grey Solicitors for the Applicant Leitch Hasson and Dent Lawyers Counsel for the Respondent M Gollan Solicitors for the Respondent Australian Government Solicitor
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