CLARA EZEKIEL and COMCARE
[2010] AATA 391
•26 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 391
ADMINISTRATIVE APPEALS TRIBUNAL ) N2005/0090, N2005/1098,
)N2006/0181, N2006/1518,
GENERAL ADMINISTRATIVE DIVISION ) N2006/1519
Re CLARA EZEKIEL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr J Campbell, MemberDate26 May 2010
PlaceSydney
Decision 1. The reviewable decisions in applications N2005/1098, N2006/0181, N2006/1518 and N2006/1519 are affirmed.
2. The reviewable decision in application N2005/0090 is affirmed to the extent that it rejects Ms Ezekiel’s claim for compensation for permanent impairment of her back. To the extent that the reviewable decision states that Ms Ezekiel has no current entitlement to incapacity payments, the decision is set aside and remitted to Comcare with directions that Ms Ezekiel is partially incapacitated for work in that she is able to earn in suitable employment of 20 hours per week and, in respect of calculating a weekly incapacity payment, if any, she is retired from her employment and has received a lump sum benefit under a superannuation scheme.
………...........[sgd].............................
Ms N Bell, Presiding Member
CATCHWORDS – workers compensation – permanent impairment – date of permanent impairment – voluntary redundancy – suitable employment – degenerative spondylosis – material contribution
Safety Rehabilitation and Compensation Act 1988
Re Ezekiel and Comcare [2007] AATA 1418
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr J Campbell, Member3.
In 1983, while on her way to work at the Australian Taxation Office,
Clara Ezekiel fell down the stairs at Bondi Junction Railway Station, landing on her buttocks. Comcare accepted liability for the injury and then purported to cease liability in 1988. In 1990 the Tribunal set aside that decision. Comcare has continued to accept liability for “injury to lower back and buttocks”.
4. Mrs Ezekiel has made some additional claims, all of which have been rejected by Comcare. She seeks review of the following decisions of Comcare:
·
N2005/0090: A decision of 23 November 2004 affirming a determination of
27 August 2004 denying any entitlement to compensation for permanent impairment for the Applicant’s back condition and incapacity payments under sections 19, 24 or 27 of the Safety Rehabilitation and Compensation Act 1988.
·
N2005/1098: A decision of 9 August 2005 affirming a determination of
19 April 2005 rejecting a claim for “an aggravation of C3/4 and C5/6 cervical spondylosis” as a result of an incident occurring on 11 April 1983.
·
N2006/0181: A decision of 9 January 2006 affirming a determination of
25 October 2005 that the Applicant was not entitled to compensation in respect to permanent impairment of both lower limbs relating to a lower back and buttock injury occurring on 11 April 1983.
·
N2006/1518: A decision of 20 October 2006 affirming a determination of
10 August 2006 rejecting the Applicants claim for aggravation of a neck and right arm condition due to the nature and conditions of her employment.
·
N2006/1519: A decision of 23 October 2006 affirming a determination of
25 July 2006 rejecting a claim for compensation under sections 24 and 27 of the Act for the “right upper extremity and cervical spine”.
5. These five applications for review lodged by Ms Clara Ezekiel were heard by the Tribunal on remittal from the Federal Court. Much of the evidence tendered in the original Tribunal proceedings was taken in as evidence in these current proceedings. The transcript of evidence of Dr Bleasel was specifically excluded from evidence in the current proceedings.
6. We were assisted in this complex matter by the parties’ statement of agreed issues which identified a number of questions to be answered in these applications. Necessarily, in a matter of this complexity and because some of the applications made by Ms Ezekiel covered similar claimed injuries and impairments, some of the questions were repetitive and made redundant by some of our conclusions.
7. We have found that at the heart of the parties’ agreed questions are three major issues:
i) when impairments to Ms Ezekiel’s back, legs, neck and shoulders, if any, became permanent;
ii) what caused Ms Ezekiel’s neck and shoulders condition; and
iii) did voluntary redundancy reasonably remove Ms Ezekiel from suitable employment?
8. The answers to these broad issues will inform and determine the answers to the questions identified by the parties. For clarity’s sake, we have reproduced the parties’ agreed questions and our answers to them, as far as they arise, at the conclusion of these reasons for decision.
when did ms ezekiel’s impairments become permanent?
9. It is common ground that, pursuant to section 124 of the Act, liability for permanent impairment of Ms Ezekiel’s back will only arise if the impairment became permanent after 1 December 1988 which was the date the 1988 Act came into operation. We note that on Ms Ezekiel’s behalf, it was submitted that any impairment that she suffers in relation to her legs is as a sequela to her injury to her back. To quote Counsel, they are “bundled together”.
10. In relation to her back, Ms Ezekiel’s evidence was that since the date of the fall she has suffered constant low back pain and stiffness. Early reports and clinical notes of treating doctors support that evidence.
11. Of the various medical opinions, only Dr Bleasel maintained that the impairment did not become permanent until after 1 December 1988. He did so, in his report of 21 March 2006, even though he stated in that report that after the fall she was “troubled by constant back pain”. It is difficult to see what it was that Dr Bleasel thought kept the impairment from permanence prior to December 1988. He made reference to intermittent pain experienced by Ms Ezekiel prior to 1988, but her evidence is that her pain has always been constant.
12. On the background of this evidence, Ms Ezekiel sought to establish permanence of that impairment only after December 1988 by urging the Tribunal to regard a referral to a pain clinic in 1989 and a discussion in 1990 with Dr Stening about a possible spinal fusion as indications of the time at which Ms Ezekiel had undertaken “all reasonable rehabilitative treatment for the impairment”. These words appear in section 24 (2) (c) of the Act, in context, as follows:
“24 Compensation for injuries resulting in permanent impairment
….
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.”
13.
We note that Dr Fearnside’s evidence was that, generally, people are referred to a pain clinic when it is expected by their doctors that they are likely to continue to experience pain. In relation to the surgery discussed with
Ms Ezekiel, Dr Fearnside considered that, while surgery was not an irresponsible issue to raise, it would not have been “a proposition which would be actively advocated” and may have been placed on the table in order to be taken off the table in the course of discussing all available treatments.
14.
With reference to the other factors mentioned in section 24(2), the duration of the impairment had been more than five years since the fall. That is a lengthy period of constant symptoms. The likelihood of improvement, the other listed factor in section 24(2), tends to diminish as time goes by and, given
Dr Fearnside’s evidence about the significance of Dr Stening raising the possibility of a spinal fusion in 1990, we do not think that the mere existence of the possibility of an alternate course of treatment about which medical opinion is divided is sufficient to render a longstanding condition not permanent.
15.On this basis, we consider that any impairment of Ms Ezekiel’s back was permanent before 1 December 1988.
16.
In relation to the impairment to Ms Ezekiel’s legs, it was submitted for
Ms Ezekiel that the contested impairment to her legs should be “bundled together” with that of her back; that the time at which her back impairment became permanent is the same point at which her leg impairment became permanent. On this basis, and given are conclusion in relation to Ms Ezekiel’s back, it follows that any impairment to her legs became permanent prior to
1 December 1988.
17.There is comparatively little medical evidence of any discrete impairment of Ms Ezekiel’s legs. Dr Bleasel asserted that Ms Ezekiel’s leg pain was caused by nerve root irritation as a result of the 1983 fall. Dr Johnson merely referred to symptoms of sciatica in her legs. Dr Fearnside said there were no objective signs to support her complaints of heaviness, paraesthesia and her leg giving way. Dr McGill said there is no evidence of radiculopathy in her lower limbs.
18.I note that Ms Ezekiel made immediate complaint of pain in her legs after the 1983 fall. Given our conclusions in respect of her back, we are led to the conclusion that any impairment she may have to her lower limbs was permanent before December 1988.
19.In relation to Ms Ezekiel’s neck and shoulders, for reasons that follow, it is unnecessary for us to consider the issue of permanence.
were ms ezekiel’s neck and shoulder conditions caused by her employment?
20.
It is common ground that Ms Ezekiel did not complain of neck pain until some 18 months after the fall in 1983. It is also common ground that Ms Ezekiel had suffered cervical spondylosis in 1976. This is supported by the clinical notes of
Ms Ezekiel’s general practitioners.
21. Dr Dixon however, in his report of 21 July 2004, made mention of a history of dizziness immediately following her fall. This history has not been reported by any other medical practitioner.
22. The preponderance of medical opinion is that Ms Ezekiel’s neck pain is unrelated to the fall. Not only is this view shared by Drs McGill and Cummine, who were qualified by the Respondent, but also by Drs Bleasel and Fearnside, both qualified by Ms Ezekiel.
23. We conclude that Ms Ezekiel’s neck condition was unaffected by the fall.
24. An alternative claim is that Ms Ezekiel’s neck injuries were caused by the nature and conditions of her employment with the Australian Taxation Office where she commenced work in 1969.
25.
Ms Ezekiel was engaged in data entry, initially with magnetic tapes and later with computers. She would collect a bundle of 40 to 50 tax returns, place them to the left of the computer keyboard and enter the data into the machine or computer with reference to the tax returns on her left. She estimated this data entry took approximately 45 minutes to complete. She would then stamp each return to show it had been dealt with. She did this by holding the stamp, which was described by
Ms Ezekiel as heavy, in her right hand. She would then commence working with another bundle of returns. This process would be repeated four or five times and
Ms Ezekiel would then take all of the returns she had worked on to storage. The process would be repeated again, with 400 to 500 returns being completed in a full working day.
26. After her fall in 1983, Ms Ezekiel returned to full time work with some periods of absence and later ceased full time work in 1986. She returned to full time work in 1988 and from 1990 she worked four hours per day, five days per week. For some of that time she undertook modified duties. She ceased employment in 1995.
27. Ms Ezekiel relies primarily on the report of Dr Bleasel to support her contention that her work at the Australian Taxation Office caused her neck and shoulder problems. Dr Bleasel noted that the nature of the work required her to repetitively “swing” her head to the left to read documents and that the stamp she used was heavy.
28. Dr Cummine examined Ms Ezekiel in August 2006. In his report he reviewed the substantial documentation of Ms Ezekiel’s conditions and noted degenerative changes in respect of her cervical spine. He concluded that Ms Ezekiel sustained no injury to her neck in the 1983 fall. Dr Cummine believed that Ms Ezekiel suffered temporary aggravations of her underlying pre-existing cervical spondylosis in 1976 and again in about 1984 or 1985. He considered that the nature and conditions of her work had no effect on the progression of this underlying disease. In his report of December 2008, Dr Cummine said he considered Ms Ezekiel had suffered no injury to her neck or shoulders as a result of the nature and conditions of her employment.
29. Dr McGill, in his report of 11 December 2008, said the nature and conditions of Ms Ezekiel’s work had no influence on the progression of the degenerative changes in her cervical spine. Dr McGill said that there is no scientific medical literature that supports a link between clerical duties and the onset of or acceleration in degenerative spine disease and nor is it plausible in his view.
30. Dr Fearnside, in his report of 17 February 2009, said that Ms Ezekiel’s employment had aggravated the symptoms of her cervical spine condition. However in cross examination, he agreed that the work Ms Ezekiel was doing could be described as light clerical work and agreed with the opinion of Dr McGill that generally, the progression of an underlying disease is more likely to be affected by “circumstances of repetitive or prolonged exposure to a stimulus with some sort of physical strain being applied to the spine.”
31.
These views are echoed in the report of Dr Waks. We note that in 1988,
Dr Mendelsohn considered Ms Ezekiel would be able to carry out her then current duties for the foreseeable future.
32. Counsel for Ms Ezekiel submitted that it was a matter of commonsense that a weakened spine is more vulnerable to damage by repetitive work than an intact one. However, we are not satisfied that there was “damage” to Ms Ezekiel’s cervical spine. Rather, the evidence weighs in favour of the view that Ms Ezekiel’s degenerative cervical spine disease simply took its natural course.
33. In the face of the expert evidence, we cannot accept the contention that the nature and conditions of Ms Ezekiel’s employment, which we note were light and later modified, contributed to her neck and shoulder conditions. We find that she suffers from a degenerative condition that bears no relation to either the fall in 1983 or the nature and conditions of her work.
did voluntary redundancy reasonably remove ms ezekiel from suitable employment?
34. Section 19(4) of the Act provides for a range of matters to be taken into account in determining the amount per week that an employee is able to earn in suitable employment. This amount is an element of the formula in section 19(2) of the Act for calculating weekly payments for incapacity. The more a person is able to earn in suitable employment, the less will be the person’s weekly payments for incapacity.
35. Section 19(2) provides:
“19 Compensation for injuries resulting in incapacity
…
(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:
NWE - AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.”
36. Ms Ezekiel submits that she is totally incapacitated for work and has been since she left work in 1995.
37. In 2006, Dr Bleasel considered that Ms Ezekiel has been incapacitated for work since the cessation of her employment in May 1995 as a result of injuries sustained in April 1983 “which caused her to have constant back pain, but the nature and conditions of her work were responsible for the neck/arm pain and this was the final reason for her ceasing to work for the ATO”.
38. We note, in this respect, that it was submitted on behalf of Ms Ezekiel that her back pain was the primary cause of her departure from work in 1995. We also note our conclusions in respect of the causation of her neck and shoulder pain.
39. Dr McGill said he doubts that any of Ms Ezekiel’s current impairment is due to the fall in 1983. He also considered that Ms Ezekiel could work at light duties. He considered that, should Ms Ezekiel choose to return to work, she would be capable of performing the normal clerical duties she performed up until she took voluntary redundancy in 1995.
40. We note that in 2004, Dr Dixon reported:
“[T]he natural effects of the underlying condition are starting to surpass any aggravation by employment. She is now 59 years old and has degenerate changes as would be expected for her age in her lower back. Her cervical spondylosis was pre-existing at the time of injury.”
41. As to Ms Ezekiel’s prognosis for return to work, Dr Dixon believed that any prognosis must be “guarded”, however he considered that her impairments had stabilised over the previous five years.
42. Dr Cummine considered that, noting Ms Ezekiel’s age, she could work at office or administrative duties part time.
43. Dr Fearnside, in his oral evidence, said Ms Ezekiel could work two to three hours per day on three days per week on Monday, Wednesday and Friday. He considered it reasonable for Ms Ezekiel to recommence work at that rate with a gradual increase and then to “see what happens”.
44. Ms Ezekiel’s evidence was that the main reason she took voluntary redundancy was that she was in so much pain and because she was taking so much medication and felt drugged. She was working for four hours light duties per day in 1995 and had done so for five years. She said that the Australian Taxation Office had not suggested to her that she should take her voluntary redundancy and that her job continued to be open to her in 1995 if she wished to remain there. She said that when she took voluntary redundancy she also took her long service leave, recreation leave and lump sum superannuation.
45. Ms Ezekiel said that when working her four hours per day she was able to get up and move around and stretch to relieve her pain. Ms Ezekiel agreed that she would be able to do so again, were she working at the Australian Taxation Office. However, Ms Ezekiel contended that she would be unable to function systematically because of all of the medication she is taking now. When pressed, Ms Ezekiel said she had also felt such effects from the medication when she was still working. She also gave evidence that she plays cards as a social outlet but said that although it requires some concentration it is different because she can play cards for just short periods and get up and walk around.
46.
We note the report of Dr Waks in 1990 recommended that Ms Ezekiel should continue her then duties of four hours per day sedentary work with a progressive increase of half an hour per day per month. In April 1994, occupational physician
Dr Crocker considered Ms Ezekiel to be fit to continue her then part-time clerical duties with appropriate variations of work duties and postures.
47. Ms Ezekiel has not sought other work in the intervening period.
48.
We consider that the preponderance of medical evidence is that in 1995
Ms Ezekiel was partially incapacitated for work and was able to perform clerical duties for four hours per day for five days per week. At the time she left, she had suitable work of that kind and for those hours was available to her. We consider, on the basis of the balance of expert medical evidence, that it was not reasonable in all of the circumstances for Ms Ezekiel to have not continued in that suitable employment. In reaching this conclusion we are mindful of Ms Ezekiel’s stated difficulty in continuing to work, however, we do not consider that her difficulty was so great that she was unable to continue to work or that she had “no choice”, as it has been put on her behalf, but to take voluntary redundancy.
49. Ms Ezekiel left her employment some 15 years ago. She is now aged 63. It was urged on us that, given her advancing age, her condition has necessarily deteriorated. However, there is no direct medical evidence of marked deterioration over the last 15 years. We accept that advancing age will generally affect any person’s capacity to some greater or lesser extent but in the absence of any objective evidence of diminished capacity to work, or any current assessment of her current capacity to perform the type of employment she undertook in 1995, we cannot be satisfied that the work Ms Ezekiel left in 1995 is no longer suitable employment.
50. On this basis, we consider that Ms Ezekiel’s failure to continue to engage in suitable employment was not reasonable and that any calculation of payments under section 19 of the Act should incorporate earnings in suitable employment of 20 hours per week. We note that Ms Ezekiel received a lump sum superannuation payment and thus the relevant provisions of the Act concerning the effect of such payments on the calculation of weekly incapacity payments will also be applicable.
the parties’ agreed questions
51. The parties’ agreed questions that were submitted to the Tribunal are provided below with our answers to those questions. Given our conclusions on the essential issues in these applications above, it is unnecessary to canvass some questions.
N2005/0090 - Back
·Did the back injury suffered on 11 April 1983 result in permanent impairment?
·If so, whether any such impairment became permanent prior to 1 December 1988?
·Whether the applicant is entitled to any and if so, what compensation under sections 24 and 27 of the Act having regard to section 124(3)(b)(iii) of the Act and section 39(4) and (14) of the 1971 Act?
The impairment to Ms Ezekiel’s back became permanent prior to
1 December 1988. It follows that she is not entitled to compensation.
·Whether the applicant is entitled to compensation in respect of incapacity for work under Part II Division 3 of the SRC Act, having regard to the fact that she accepted a voluntary redundancy on 10 May 1995?
Yes, subject to the incorporation of earnings from suitable employment of 20 hours per week.
N2005/1098 – Neck
·Did the applicant sustain a neck injury or the aggravation of cervical spondylosis (“neck injury”) as a result of the fall on 11 April 1983?
No.
·Whether liability for a neck injury should be accepted under section 14 of the Act?
No.
N2006/1519 – Neck, Impairment
·Did the applicant, as a result of a neck injury suffered on 11 April 1983, result in a permanent impairment to her neck and if so to what degree?
No.
N2006/1518 – Neck and Upper Limbs, Nature and conditions
·Did the applicant suffer an injury in accordance with sections 4 and 7 of the Act (as it then was) in respect of her neck and upper limbs?
No.
·Whether liability for neck and upper limb injuries should be accepted under section 14 of the Act?
No.
·Did the applicant, as a result of a neck and upper limb injuries, suffer a permanent impairment to her neck and/or upper limbs and if so to what degree?
No.
N2006/0181- Legs
·Did the applicant suffer an injury to her lower limbs in the fall of 11 April 1983?
·Did an injury suffered to the applicant lower limbs of on 11 April 1983 result in the applicant suffering a permanent impairment of her lower limbs?
·Did the back injury suffered in the fall of 11 April 1983 result in the applicant suffering a permanent impairment of her lower limbs?
·If so, whether any such impairment became permanent prior to 1 December 1988.
·If so, is the applicant entitled to lump sum compensation in accordance with sections 24 and 27 of the Act having regard to sections 124(3)(b)(iii) of the Act and section 39(4) and (14) of the 1971 Act.
·
Did the applicant suffer permanent impairment to her lower limbs on or after
1 December 1988 as a result of the fall suffered on 11 April 1983? If so, to what degree?
Any impairment to Ms Ezekiel’s lower limbs became permanent prior to 1 December 1988 and is therefore not compensable.
Work Capacity Questions
·Does the applicant continue to suffer the effects of any work related injuries resulting in an incapacity for work? If so, to what extent?
Yes. She is partially incapacitated.
·If the applicant does continue to suffer an incapacity for work in respect of work related injuries to what extent, if any, does section 19(4) of the SRC Act apply in determining the amount of compensation payable to the applicant?
Ms Ezekiel has suitable employment of 20 hours per week.
·In considering the application, if any, of section 19(4) of the Act the following question arise:
(a)Whether the applicant voluntarily removed herself from suitable employment with the Commonwealth by accepting a voluntary redundancy on 10 May 1995?
Yes.
(b)Whether the applicant is capable of earning, in suitable alternative employment, an amount equal to or greater than the amount the applicant would have continued to earn in pre-injury employment if she had not accepted a voluntary redundancy?
No.
(c)Whether the applicant has made reasonable attempts to obtain suitable alternative employment? If not, whether the applicant’s acceptance of a voluntary redundancy and lack of attempts at finding suitable employment was reasonable?
No.
(d)Whether the applicant’s failure to continue to engage in employment was reasonable in the circumstances?
No.
decisions
52. The reviewable decisions in applications N2005/1098, N2006/0181, N2006/1518 and N2006/1519 are affirmed.
53. The reviewable decision in application N2005/0090 is affirmed to the extent that it rejects Ms Ezekiel’s claim for compensation for permanent impairment of her back. To the extent that the reviewable decision states that Ms Ezekiel has no current entitlement to incapacity payments, the decision is set aside and remitted to Comcare with directions that Ms Ezekiel is partially incapacitated for work in that she is able to earn in suitable employment of 20 hours per week and, in respect of calculating a weekly incapacity payment, if any, she is retired from her employment and has received a lump sum benefit under a superannuation scheme.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, and Dr J Campbell, Member
Signed: ............................[sgd]....................................................
Associate: Lloyd DohertyDate/s of Hearing 2 & 3 December 2009
Date of Decision 26 May 2010
Counsel for the Applicant Mr John Mrsic
Solicitor for the Applicant Mr Grant Watson of TD Kelly & Co Solicitors
Counsel for the Respondent Mr John Wallace
Solicitor for the Respondent Ms Anella Bartone of Sparke Helmore Solicitors
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