Christine Kisso and Comcare - [2015] AATA 35

[2015] AATA 35

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5835

Re

Christine Kisso

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Dr Ion Alexander, Member

Date 27 January 2015

Place Sydney
The Tribunal affirms the decision under review.

................................................
Senior Member J F Toohey
CATCHWORDS – COMPENSATION – shoulder bursitis – whether claim for injury or disease – whether nature and conditions of employment caused or aggravated the condition – whether employment contributed to a significant degree to the applicant’s condition – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5B(1), 5B(3), 14
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND

Christine Kisso worked as a Health Promotions Officer for Australian Hearing from 27 February 2013 until 12 June 2013 when her employment was terminated. Her job involved conducting preliminary hearing tests in community venues such as pharmacies, libraries and community centres. She used a small suitcase to transport equipment including a laptop, marketing material and a machine for testing hearing to each location.
On 28 June 2013, Ms Kisso claimed compensation for an injury to her right shoulder which she says was caused by carrying the suitcase to the various locations. The respondent denies liability to compensate her for her claimed injury.
RELEVANT LEGISLATION
By s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), the respondent is liable to compensate an employee for an injury that results in death, incapacity for work, or impairment.
By s 5A(1), injury means:
(a)a disease suffered by an employee; or
(b)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
(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), that is an aggravation that arose out of, or in the course of, that employment.
By s 5B(1), disease means:
(a) an ailment suffered by an employee; or
(b) 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. Significant degree means a degree that is substantially more than material: s 5B(3).
INJURY OR DISEASE
In her claim for compensation, Ms Kisso described her injury as “subacromial/subdeltoid bursitis”. Where the form asked when she was injured or first noticed she was ill, she recorded “9 May 2013” and “2.30pm”. Where it asked where the injury occurred, she indicated her home address and “my home stairs” and “I lifted my work bag with the equipment up my home staircase”.
The respondent was not satisfied that Ms Kisso’s injury arose out of, or in the course of, her employment. In particular, the respondent said she was not permitted to take the work bag home and there was no evidence that she sustained any injury while performing the duties of her employment.
The respondent appears to have dealt with Ms Kisso’s claim as one for a frank injury rather than a disease. Before the Tribunal, her claim was put on the basis that she suffers from a disease within the meaning of s 5B(1).
A report of an ultrasound of Ms Kisso’s right shoulder on 15 June 2013 showed “minor fluid distention of the subacromial/subdeltoid bursa with bunching at 60 degrees of abduction in keeping with bursitis”.
Dr John Bentivoglio, orthopaedic surgeon, gave evidence that bursitis normally “comes on slow” rather than as a result of a particular incident. He took a history from Ms Kisso of pain developing in her shoulder shortly after she started work at Australian Hearing which worsened at the time of an incident at a railway station in May 2013. In his view, her condition is appropriately considered a disease.
Dr Simone Ryan, occupational physician, gave evidence that, by its nature, bursitis is a disease process; however, it can be triggered by a single incident and she thinks that happened in Ms Kisso’s case because she described two specific incidents of pain: at a railway station and at home.
On the basis of the medical evidence, we find that Ms Kisso’s bursitis is an ailment, and so a disease, for the purposes of the SRC Act. Given the doctors’ evidence about the usual nature of bursitis and given that the first evidence of her condition is the ultrasound on 15 June 2013, shortly after she says she first felt pain, we are satisfied her condition pre-existed any pain she felt in May 2013.
We therefore have to determine whether Ms Kisso’s employment contributed to a significant degree to her condition.
MS KISSO’S EVIDENCE
Ms Kisso’s evidence was unsatisfactory in a number of respects. There were inconsistencies in her written statements, and between her written statements and her oral evidence, and in what she told her doctors at different times, about when and where she first felt pain in her right shoulder.
When pressed about inconsistencies or gaps in her evidence, Ms Kisso claimed her memory was poor, especially when under pressure or “overwhelmed” by events such as the hearing. The clinical notes from her general practitioners show that she has suffered for some years from psychological conditions requiring medication at various times. Dr Ryan gave evidence that she was unable to elicit a clear history from Ms Kisso, even with prompting.
We accept that Ms Kisso’s memory may be genuinely poor but we are not satisfied that the inconsistencies in her evidence are adequately explained by poor memory alone. It would not explain, for example, why contemporaneous medical records are at odds, or cannot be reconciled with, much of her claims, or why her accounts of her injury have varied as much as they have.
Claim form
On 28 June 2013, Ms Kisso completed a Claim for Workers Compensation for “subacromial/subdeltoid bursitis”. She identified the parts of her body most affected by her injury as her right shoulder, right upper back, neck, right arm and lower back. She also referred to another condition which is not the subject of these proceedings.
As set out above, Ms Kisso identified the time and place of her injury as 9 May 2013 at 2.30pm at her home address and the location as “my home stairs” when she “lifted [her] work bag with the equipment up [her] home staircase”. She stated on the form that she first sought medical treatment for her injury on 10 May 2013.
Clinical notes show that Ms Kisso saw general practitioner, Dr Young Cho, on 11 May 2013 for irritable bowel syndrome. Later that same day she saw general practitioner, Dr Akbar Husain, at another practice for the same condition. It is not clear why she saw different doctors on the same day for the same complaint but nothing turns on this. Neither doctor’s records show a consultation with Ms Kisso on 10 May 2013. There is no mention in Dr Cho’s notes for 11 May 2013 of pain in any of the areas identified on her claim form.
Statement dated 23 May 2014
On 23 May 2014, Ms Kisso, who was unrepresented at the time, submitted a signed statement to the Tribunal about the circumstances of her injury. The relevant part states:
When did i feel pain?
I felt some pain one day at Marrickville train station. I had an event in which another staff member (witness) saw me struggling to carry the bag down the Marrickville station stairs.
…
At Marrickville that day I had to get the other staff member to carry the bag down the station stairs. I believe this is when the injury truly began however taking it up my home stares (sic) was a more painful experience. It was a gradual built up i believe (sic).
This statement appears to put the incident at home after the incident at the train station, although this is not clear.
Statement dated 17 October 2014
In a statement signed on 17 October 2014 (at which time she was represented), Ms Kisso described the circumstances of her injury as follows. She stated she had finished an event at a clinic in Marrickville and went to the train station in order to return to the city office. She stated:
32.At Marrickville station there is no lift, so I went to pick up the suitcase, to carry down the stairs. As I did so, I noticed immediately pain in my right shoulder. I mentioned this to my colleague, who offered to carry the bag down stairs for me.
33.This was the first time I noted pain in the shoulder, and it extended into my neck.
Ms Kisso stated she told her manager, Lauren Calvert, when she got back to the office that she was having pain in her shoulder and Ms Calvert suggested she contact an occupational health and safety officer. On 29 May 2013, Ms Kisso sent an email to the occupational health and safety officer, Ashleigh Spicer about having problems with her bag. A copy of her email to Ms Spicer is in evidence.
Ms Kisso stated that, on the night of 31 May 2013, she was in so much pain that she went to see Dr Husain who referred her for an ultrasound which she underwent on 15 June 2013.
Dr Husain’s notes for 31 May 2013 show he saw Ms Kisso that day for “Rotator Cuff Tendinitis”. He recorded that she had restricted shoulder movement and noted:
pain on rt shoulder blade with restricted rt shoulder movement. she has had this pain for more than 2 [months].
Ms Kisso’s written statement clearly puts the incident at Marrickville station on or about 29 May 2013, and she confirmed several times in oral evidence that was her recollection. There is no reference in her statement to feeling pain at home on 9 May 2013 or at any other time.
The history taken by Dr Ryan
Dr Ryan saw Ms Kisso for assessment on 17 July 2014. Giving evidence by telephone, she said she had difficulty obtaining a clear history from Ms Kisso; she was “vague” and her presentation “flat” and “despondent”, and even with prompting, she was unable to elicit a history with any detail or specificity.
Dr Ryan took a history from Ms Kisso that “on one particular day, she was located in Marrickville at the end of an event”; she had to take the train to the city to return her bag; as she was going down the stairs, she felt “soreness (rather than pain) in her right upper back and arm more significantly than in her lower right back”; she went into the office; she was unsure if she spoke to her manager about her injury at that time but she did recall telling her manager that she did not know how she could continue to attend events in so many locations with just one travel bag.
Dr Ryan also recorded:
On one particularly “bad night”, Ms Kisso also recalled carrying the hearing bag up the stairs at home and thought to herself “this is really bad”. … [she] attended an evening medical centre at that time [where she saw Dr Husain] who did not want to be involved in a Workers’ Compensation issue and Ms Kisso then promptly attended her own GP.
According to this last record, the incident at home occurred after the incident at Marrickville station and, contrary to her earlier statement, it was the incident at home that prompted Ms Kisso to see Dr Husain.
The history taken by Dr Bentivoglio
Dr Bentivoglio saw Ms Kisso for assessment on 17 October 2014. He took the following history:
There was no specific incident. She noticed shortly after she started with Australian Hearing that she started to develop pain present in her right shoulder. There was a specific incident around May 2013 when she was at a railway station when her symptoms worsened. She advised me she had not had significant problems with her shoulder previously.
Dr Bentivoglio also recorded that Ms Kisso’s symptoms “eventually got to a point in June 2013 that she reported her shoulder complaint”. Although she talked to him about carrying the bag at train stations, there is no evidence that she mentioned an incident had occurred at home.
Ms Kisso’s oral evidence
Giving evidence before the Tribunal, Ms Kisso had trouble recalling the dates and sequence of events around the time of her claimed injury.
Ms Kisso said the first time she told Australian Hearing she was having any difficulties performing her duties was on 29 May 2013. As she recalled, she spoke to Ms Marshall, who acted as an adviser and scheduled the events, and Ms Calvert, her manager. She recalled telling Ms Marshall she wanted to speak to “somebody with an OH&S background” but she could not recall if she told Ms Marshall the reason. Ms Marshall gave evidence that she could not recall Ms Kisso telling her she had felt pain lifting the bag.
On 29 May 2013, Ms Kisso sent an email to Ms Spicer stating:
Hi Ashleigh,
I was wondering when it would be a good time for us to talk about the best way to travel with the travel bag I have been experiencing some setbacks and would appreciate your advice.
Ms Kisso gave evidence that, sometime before this, she mentioned to a colleague that she was having “difficulties” with the bag but the colleague advised her not to mention it because she could lose her job. She acknowledged that she was aware that she should tell her employer about any injury but said she had “no severe pain” before 31 May 2013 and it was only when it became “really bad” that she told Ms Calvert.
Ms Kisso was questioned at length about when she first felt pain in her shoulder and whether she first felt it at home or at Marrickville station. She confirmed that the first time she felt pain in her shoulder was at Marrickville station around the end of May although she could not recall the precise date. She claimed she did not refer to the Marrickville incident in her claim form because she was not sure what the cause of her pain was and the incident at home “also triggered the pain”.
Diary note
Ms Kisso produced to the Tribunal her diary for 2013 which she submits supports her claim to have been working in Marrickville on 9 May 2013. Entries for that date indicate she attended an event at Marrickville on that morning. However, if anything, the diary entry raises more questions than it answers.
For the period 9.30 to 12.30 the diary records “event” and “Marrick VS” which Ms Kisso told us means “Marrickville visiting site”. From 12.45 the diary shows:
12.45 taxi to Campsie station – lunch destination
1pm 1.30pm lunch
1.30 – 1.45pm walk to train station
2.05 catch train
2:20 pm arrive to “BKTN STN”
2.20 – [indecipherable] – walk to movie
Ms Kisso’s oral evidence was that, on the day she felt pain in her shoulder at Marrickville station, she had finished work at a location approximately 5 minutes’ walk from the station and from there she went into the city office to drop off the bag. She said she believed she told Ms Calvert on the same day.
The diary entry appears at odds with Ms Kisso’s evidence that she went into the city from Marrickville station to return the bag. It also appears at odds with her claim that she felt pain at home at 2.30pm on that date. In our view, it compounds the unreliability of her evidence.
Other evidence
With reference to Dr Husain’s note on 31 May 2013 that Ms Kisso had had right shoulder pain for more than two months, Ms Kisso said she could not recall this and was unable to explain it. She did not suggest she had any problems with her memory when she saw Dr Husain and we take it that his note records accurately what she told him. We are satisfied that Ms Kisso had been experiencing pain in her right shoulder since around late March or early April 2013.
Support for this conclusion is found in the notes of general practitioner, Dr Kissup Kim, who saw Ms Kisso on 31 January 2013 before she started work at Australian Hearing. On that date he recorded:
Right-sided back pain – scapular down to the lower back – 1 wk
When he saw Ms Kisso on 11 April 2013, Dr Kim recorded:
been getting physiotherapy – W Choi for the neck.
R upper back shoulder pain – tightness – down to the R mid back 1 wk
and
pain and tender R scapular
On 31 May 2013, Ms Kisso saw Mr William Choi, a physiotherapist. He gave her a letter addressed “To whom it may concern” which stated:
Miss Kisso complains of persisted neck and upper back pain following prolong sitting (sic). Work place assessment and back support will be recommended.
A note of a meeting on 6 June 2013 between Ms Kisso and Ms Calvert show they discussed Mr Choi’s certificate and Ms Calvert asked why it referred to “persistent neck and back pain due to prolonged sitting” when Ms Kisso had said that carrying the bag had caused her problems. According to Ms Calvert’s note, Ms Kisso said Mr Choi “got it wrong and that he meant he wanted her work station to be checked to ensure the problem didn’t get worse”.
Giving evidence, Ms Kisso said she could not recall what she told Mr Choi; she told him about the bag but initially he thought the pain was due to sitting and only later thought it was due to carrying the bag. Assuming Ms Calvert’s note recorded their discussion accurately, we find that explanation implausible.
On 15 June 2013, an ultrasound was done of Ms Kisso’s right shoulder. On 21 June 2013, Dr Husain’s notes show:
Pain rt shoulder. USS is in suggestion of subacromial/subdeltoid bursitis.
Dr Husain provided Ms Kisso with a certificate addressed “To whom it may concern” stating that she:
has been complaining of rt shoulder pain with restricted ROM and an USS revealed that she has subacromial/subdeltoid bursitis. She is under treatment.
On 18 June 2013, Ms Kisso saw Dr Cho again. He noted she had lost her job and was depressed. He noted:
injured at work – saw another medical centre doctor re: neck pain
started getting physio, did not work
right arm carrying bad all the time
ended up physio
really bad, advised to rest from work
On 28 June 2013, Ms Kisso lodged her claim for compensation. Dr Husain’s notes show that, on 6 July 2013, he had “long counselling” with Ms Kisso “re her WCC”. He noted she requested “a letter or opinion that her rt shoulder pain is due to carrying heavy stuff at work place” but he “declined to give an inference”. It is notable that this is the first record in the clinical notes of Ms Kisso carrying “heavy stuff” at work or of any other relationship between any injury and her employment.
On 31 July 2013, Dr Kim recorded that Ms Kisso had been “discharged from work”. He noted:
injured at work – R shoulder injury – pulling up the bag upstairs – in early June
Evidence of Dr Ryan and Dr Bentivoglio
Dr Ryan saw Ms Kisso for assessment on 17 July 2014. She provided a report of her assessment and gave oral evidence.
Asked about any relationship between Ms Kisso’s employment and her bursitis, Dr Ryan said she could not put her assessment higher than to say it “might well have been triggered through the carrying of her Australian Hearing work bag”.
Dr Ryan told the Tribunal she is not an orthopaedic specialist and nor is she an expert in shoulders, although she sees people with shoulder problems. Nor is she an expert in interpreting ultrasound reports of the shoulder; her expertise is in assessing the functional impact of injuries which includes seeing people with shoulder injuries. Her assessment of a possible connection between Ms Kisso’s employment and her bursitis was based on the ultrasound from 15 June 2013, her physical examination of Ms Kisso, the extensive clinical notes from her doctors and the history given by Ms Kisso.
Dr Bentivoglio saw Ms Kisso for assessment on 17 October 2014. He concluded that Ms Kisso’s “subacromial bursitis developed as a result of her employment with Australian Hearing”. At the same time, in response to a question from her solicitors as to whether her injury arose out of, or in the course of, her employment, he stated: “possibly”. Giving evidence, Dr Bentivoglio said in effect that he uses “possibly” and “probably” interchangeably.

Giving evidence, Dr Bentivoglio said he based his opinion entirely on the ultrasound performed in 2013 and the history given to him by Ms Kisso.
In response to questions from the Tribunal, Dr Bentivoglio readily agreed that he is “definitely not” an expert in ultrasound radiology, and he is “not a shoulder specialist”. He “stopped doing shoulders” in about 1990 and his current knowledge comes from attending lectures.
In the course of the hearing, Dr Alexander asked the doctors if they were familiar with journal articles concerning difficulties in diagnosing bursitis by ultrasound: Ultrasound diagnosis of subacromial impingement for lesions of rotator cuff in Australian Journal of Ultrasound in Medicine, Vol 13 Issue 2 May 2010; The clinical utility of ultrasonography for rotator cuff disease, shoulder impingement syndrome and subacromial bursitis in The Medical Journal of Australia, 2008, 188(1). Copies of the articles were provided to the parties following the hearing and they have provided comments on them.
The journal articles concern diagnosis of bursitis rather than causation. We have not relied on them in making our determination. Even if the diagnosis of bursitis is correct, the highest that the doctors can put it is that it is possible that carrying work bags could have caused Ms Kisso’s symptoms.
Consideration
We are satisfied, on the information before us, that Ms Kisso had pain in her right shoulder from early 2013 before she started work at Australian Hearing. The bursitis identified on the ultrasound in June 2013 may have been the cause of her pain but, if it was, we are not satisfied that it was caused or contributed to by her employment.
Given the inconsistencies in her accounts, we are not satisfied that Ms Kisso experienced an onset of pain in her right shoulder in or around May 2013. We are not satisfied that she suffered an onset or aggravation of her condition to which her employment contributed to a significant degree.
Conclusion
Even if we were satisfied that Ms Kisso’s employment made some contribution to her condition, we are not satisfied on the information before us that it contributed to a significant degree. We affirm the decision under review.

65. I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr Alexander, Member.

.........................................
Associate
Dated 27 January 2015

Date(s) of hearing

25 – 27 November 2014

Representatives for the Applicant

Mr John Mrsic, Counsel

Ms Emma Thomson, Turner Freeman Lawyers

Representatives for the Respondent

Ms Rhonda Henderson, Counsel
Mr Peter Lehman, Lehmann Snell Lawyers

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5835
Re	Christine Kisso
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J F Toohey Dr Ion Alexander, Member
Date	27 January 2015
Place	Sydney