CLEO VASILOKOPOULOS and COMCARE
[2012] AATA 639
•21 September 2012
[2012] AATA 639
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2256
Re
CLEO VASILOKOPOULOS
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 21 September 2012 Place Melbourne The decision under review is affirmed.
(sgd) John Handley
Senior Member
COMPENSATION – Applicant employed part-time by Centrelink – work involved sitting, twisting, bending, squatting, standing, walking and lifting bundles of moderately heavy files – back pain first reported in 2007 – increased episodes of pain subsequently but no report of pain or attending for treatment until after disc rupture, at home, in April 2010 – no evidence of any injury at work or proximate to rupture – no material contribution by employment – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5B, 7(4)
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007
REASONS FOR DECISION
Mr John Handley, Senior Member
Mrs Vasilakopoulos, the applicant in these proceedings, has been an employee of the Department of Social Security (DSS) and subsequently Centrelink since 1993. She contends that she suffered aggravation and acceleration of pre-existing disc degeneration by her employment which resulted in an L5/S1 disc protrusion and left-sided S1 nerve root compression.
The respondent does not dispute the diagnosis of the injury. The relevant pathology causes the injury to be more precisely described as a disease within the meaning of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
In a reviewable decision made on 11 May 2011 (T42, p.113-117), the respondent affirmed a primary decision to deny liability to pay compensation to the applicant on the basis that the employment did not contribute to the disease in a significant degree.
Section 5B(3) of the Act provides that a significant degree means a degree that is substantially more than material.
The respondent deemed the injury to have been sustained on 7 April 2010 being the date that it decided was the first occasion the applicant sought medical treatment (s7(4) of the Act). Although the applicant said she first sought treatment on an earlier date, the treatment and periods of incapacity occurred after 13 April 2007. From that date, the liability of the respondent to pay compensation with respect to a disease changed from employment contribution in a material degree to a significant degree (refer Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007).
THE APPLICANT
The applicant was initially a part-time employee but commenced full-time employment with DSS in either 1996 or 1997. Later she became employed by Centrelink being a service delivery agency for DSS. She was absent from the workplace on maternity leave for about 3 years from June 2000 until 2003. In the interim, she gave birth to 2 children. Both children were born prematurely and have learning difficulties. The applicant elected to return on a part-time basis of 3 days per week which permitted her to take the children, on the other 2 days, to medical practitioners, which has been frequently required.
The evidence in chief from the applicant was aligned to a statement she completed on 15 March 2012 which was received as Exhibit A5 and adopted by her.
From 2005 the applicant was engaged by the Darebin Centrelink Customer Service Centre in Preston. She was primarily engaged in the disability team. Her work required her to interview customers, assess and grant claims and book medical appointments. The work was predominately computer-based and was undertaken in a seated position at her desk. Files were located in a filing cabinet behind her workstation. Access to the filing cabinet was obtained by turning in her chair, stretching and bending to reach and remove files.
In about 2007 the office structure and the applicant’s work changed. Some of her duties required her to work at the reception counter where she interviewed customers and escorted them from the counter to her workstation. This would require her to twist and stand up from her desk, walk to the counter and then return with the customer over a distance of about 20 feet, to her desk.
The volume of customers, in the fast track queue, which the applicant said considerably increased in about 2007, only permitted her to spend about one and a half minutes with each customer. She would then escort the customer to the other side of the reception counter and then return with another customer. This work was done in 3 hour blocks.
Some work was also done at the front counter alone which required her to twist and become seated on chairs of varying sizes, some being such a height that her feet could not reach the floor. The location of computer screens on the front counter also caused additional twisting of her upper body to access client information.
The applicant first experienced lower back, neck and shoulder pain in September 2007. It was the subject of an incident report made by her on 14 November 2007 (T3, p.6). The applicant explained that the delay in completing a written report occurred because she thought that the pain would pass. When cross-examined, the applicant said she did not know, in September 2007, that she was required to complete an incident report. She was informed about that requirement when she reported her back pain to her team leader in November.
An occupational therapist assessed her workstation and adjustments were made. Her chair and desk were lowered to reduce the elevation of her arms and give support to her hips and legs. The back of her chair was adjusted and she was provided with a foot rest. Adjustments were also made to her keyboard and the location of her computer mouse which permitted her elbows to rest on the desk (Report of Bridge Rehabilitation T4, p.7). Thereafter, the applicant said that she had continuing pain only in the middle of her lower back. She no longer had neck or shoulder pain.
From 2008 the applicant’s role changed again. She then worked as a member of the back office team, so named because it did not involve any face-to-face customer contact. The applicant worked at her desk, often up to 2 hours without a break. She recalled that she experienced back pain and discomfort and was frequently shifting and changing her posture whilst seated. Her work involved extensive use of a telephone, especially receiving calls which she estimated to be about 15 per hour. Her work station was not initially provided with a telephone headset and on the occasions that she received telephone calls, she would have to reach across her desk to lift the hand piece. A headset was later provided.
The applicant said in cross-examination that she did not report the back pain she was then experiencing to her team leader because she thought that it would go away and she believed that it would get better (Transcript, p.29). She did not complete another incident report. Initially the pain was intermittent but thereafter it occurred on a more frequent basis and it became severe towards the end of 2009. She said her team leader was aware she was having trouble with her back.
When she was again challenged in cross-examination about her failure to lodge any written report concerning increased pain at about this time, the applicant said her focus was on going to work, doing my job, going home, and then having to deal with, you know, the issues of my children and so forth. She denied the suggestion put to her that it was not true that her work was responsible for her back pain. She said that reporting her back pain was not on top of my list. She said that she was not emotionally in the right frame of mind and had been seeing Dr Gates, her general practitioner regularly, with whom she had a good relationship (Transcript, p. 30 - 31).
The applicant was cross-examined about the absence from the report of Bridge Rehabilitation (Mr Angel) of any complaint by her of low back pain. The applicant said if there was an absence in the report of an injury of that description, it was probably because she did not refer to it in those terms. (The report of Mr Angel refers to reported neck shoulder and back pain in the first paragraph (T4, p.7). In the second paragraph he refers to a discussion with the applicant were he recorded she advises she had recently experienced tension and pain across her neck, shoulder and back which was more prominent across her left hand side).
In about June 2009, the Darebin customer service centre moved to another location in Preston. The applicant again worked in the back office. However, she became the main contact for customers making enquiries about their claims and call centre staff transferred calls to her. The enquiries were mainly answered after locating claimants’ files which were stored in pigeonholes within one of 4 cabinets which the applicant estimated had shelving up to about chest height. The pigeonholes extend from floor level to chest height.
Obtaining files required the applicant to twist and stand from her desk, walk a distance of about 10 metres to the pigeonholes and then locate the file. Files, which the applicant estimated to contain between 5 and 20 pages, were stored alphabetically on top of each other. The pigeonholes were frequently tightly packed with files. This required the applicant to pull out the entire bundle of files and rest them on an adjacent desk or hold the bundle in order to locate the required file. Depending on the location of the pigeonhole, the applicant was also required to bend or stoop or, in the case of pigeonholes located at floor level, to work on her knees.
At the conclusion of the first day of evidence it was agreed, subject to permission from Centrelink and making appropriate arrangements, that a view would be conducted at the Darebin office, where the applicant worked, in order to comprehend her work practices. It was not possible to make those arrangements, however the representatives of the parties attended and photos were taken which were received into evidence when the hearing resumed (Exhibit R2).
Photographs of the work place
Seventeen photos, individually numbered, were the subject of evidence from the applicant, who was recalled when the hearing resumed.
Photographs 1 and 2 depict two batch storage cabinets. They are very tall and are either of steel or timber construction. Each has two doors behind which are located shelves upon which files are stored. The applicant said that these cabinets were located about 20 steps from her desk.
Photographs 3-7 depict the batch storage cabinets with their doors open showing files stacked on shelves. One cabinet (photographs 4 and 5) depict 5 shelves within it. The bottom of that cabinet also has files stacked on it. The other cabinet (photograph 3) has 4 fitted shelves. The fifth (lowest) shelf which exists in the other cabinet is missing. Files are also stored on the bottom of this cabinet. The files are stacked on top of each other with shelving being approximately 15 inches in height. Two stacks of files are shown on each shelf in each photograph. The cabinet without the fifth shelf (photograph 3) has 3 stacks of files on the base. The shelving is wide enough to take 3 stacks of files (refer also photograph 7). It was the applicant’s evidence that when she worked at the Darebin office there were 3 stacks of files on each shelf. The applicant also said that there were more files on each stack when she was working and each file was thicker.
The applicant said that the files were stored alphabetically and it was sometimes difficult to obtain a file within a stack. In order to do so, she would either drag the whole of the stack towards her and rest it on an angle to her body against the front edge of the shelf and support the weight of the stack with her left hand and extract a file with her right hand. Alternatively, she would remove the whole of the stack and place it on an adjacent desk or, in the case of lower shelves, place a stack on the floor. When removing stacks of files from lower shelves she would have to bend and reach forward into the cabinet. To remove a file from a stack at floor level, she would either squat, which occasionally precipitated back pain. When that occurred, she would then work on her knees or sit on the floor.
After a file was located, she would then either push the stack of files back onto the upper shelves (if she had been standing) or in the case of lower shelves, she would lift the stack that she had removed and return it to a shelf. The applicant estimated that she would attend the batch storage area to obtain a file on up to 10 occasions per day.
Photographs 8 and 9 depict the workstation used by the applicant. It shows a desk, a computer monitor, keyboard, mouse and swivel chair without arms. To the left of the desk, there is a cabinet comprising an upper part of shelves appearing to be 3 or 4 inches in height. It is accessed without bending. The lower part of it contains a cabinet made up of 3 drawers and the hard drive of her computer. The top of it is below the level of her desk. Files were located in the drawers. In order to extract them, the applicant would turn to her left, whilst remaining seated on her chair and lean and bend forward into the draws. She said that practice caused her back to be uncomfortable. If she had been working with a stack of files on her desk and had been asked at short notice to attend to a customer, her practice was to remove the stack of files from her desk and place it on the floor. Later that practice was changed and files were returned to a drawer. The applicant said that she would extract files from one of the draws either 5, 10 or 20 times per day.
Photographs 10-13 depict two timber cabinets each containing 3 vertical rows of shelving. The cabinets contain pending, rejected and finalised claims. The photographs indicate that access to the documents within each shelf can be obtained with relative ease. However, it was the applicant’s evidence that when she worked at the Darebin office, the shelves were often filled with forms and documents and it was necessary to slide the shelves out to obtain access to them. The applicant said that when retrieving files from the lower shelves, she would have to bend which caused her pain and discomfort in her lower back. One of these cabinets depicts a ledge at about mid-height where documents and files can be rested when working with them. The applicant said she could not recall whether that or a similar cabinet had a ledge when she was working at the Darebin office.
Photographs 14-16 show the front counter area where the applicant also worked either for one hour continuously or on 5 occasions per day at 15 minutes. The counter benches are higher than the work desks depicted in photographs 8 and 9. Shown also, are tall swivel chairs on castors of a height greater than the desk chairs. The height of the chair was adjusted on each occasion that the applicant worked at the front counter. That was achieved only by the applicant sitting on the chair and lowering it. Access to the chair was obtained by placing her right foot on a lower footrest and pulling herself onto the chair whilst holding onto the bench.
Photograph 17 depicts the office area where the applicant worked. The photograph is taken from the back of the office and at the other end of the office, as depicted, is the front entrance.
In order to achieve a greater understanding of the work practices of the applicant, it was decided on the second day of the hearing to convene in an area occupied by the Tribunal for the storage of its files. That location has a large shelving unit of pigeonholes where files are stored.
The applicant said that the pigeonhole shelving was not as tall as the batch storage cupboards at Centrelink. She demonstrated reaching into the top pigeonhole where files were located and it was noted that she elevated herself on her toes with both arms extended above her head and withdrew a stack of files towards her. A Tribunal file being 130mm thickness (approximately 5 inches) was weighed at 5.5 kg. Two files being 200mm thick (approximately 8 inches) was measured at 7.75 kg. The applicant demonstrated withdrawing a stack of files towards her, resting it on the front edge of the pigeonhole and holding it from underneath with her left hand. In the workplace she would either then withdraw a file from the stack with her right hand or if it was difficult or the stack was large, she would place the stack on an adjacent desk or on the floor and then sort through it. The applicant said that she would withdraw files from the batch storage cupboard on approximately five occasions per day.
The applicant said when withdrawing stacks of files from the batch storage cupboard it was not uncommon for lower level shelves to over balance or become free of their mounting blocks. When that happened, she would be required to lift and reposition the shelf, containing all of its files, before a stack of files she was attempting to access could be safely removed.
In response to a question from Mr Wallace, the applicant said an average Centrelink file was as thick as a file depicted in the middle of photograph 7, located between two other stacks of files. It was learnt during the hearing that a file was placed deliberately in the position depicted to demonstrate that the batch storage cupboard was capable of having 3 stacks of files on each shelf.
The applicant also demonstrated withdrawing files from some shelving at the Tribunal approximately equivalent to the black shelving shown in photographs 10-13. Files were withdrawn and rested on the front edge of the shelving and the applicant would sort through them with her right hand to locate a file. If files were located below waist height, access was difficult and required her to bend forward and lean into the shelf to pull out a stack. Rejected claim files were located at the bottom of the right-hand cupboard depicted in photographs 10-13. Access to those files was described by the applicant as also being difficult because it required her to bend forward or to squat. The applicant said on a busy day she could access files in the black cupboards on up to 10 occasions per hour and on an average day it would be more likely to be 5 occasions per hour. Approximately 5 hours per day was spent working with or obtaining access to files located in the black cupboards. Access to rejected claims files on an average day would occur on approximately 3 occasions per hour.
History and complaints of pain
The applicant said (and recorded in her statement – at paragraph 14) that she experienced back pain on an intermittent basis from 2007 until 2009 where the extent and level of pain increased dramatically. She found it difficult to work. She said the pain restricted her activities and she was cautious in her movements, especially when standing and bending. The applicant said that if she forgot to think about how she would stand or bend the pain would hit. She said her team leader, Mandy Jackson, knew of the pain that she was experiencing and arranged to take her off the front counter reception duties because it was known the applicant was having difficulty climbing onto the tall chairs. Mark O'Brien, the office manager, arranged to have an office chair with arm rests and a straight high back provided to the applicant. The applicant disputed the contents of a report completed by Irene Hadjion on 14 October 2010 (T19, p. 53-54). That report was apparently provided at the request of the respondent. The injury is described as back discomfort. The applicant said that Ms Hadjion was not her manager and she had never worked with her. The applicant said from about September 2009, she reduced the amount of work she could undertake at home. She washed dishes and used a vacuum cleaner but said that it was a struggle. She was unable to change the linen on the beds. Previously she said she had no restrictions in her house work. She said that she would struggle when walking and could only complete short distances. She experienced difficulty getting into and out of her car. She found the seats of it to be uncomfortable and had increased pain when driving.
The applicant first experienced incapacity because of low back pain between 1 and 5 February 2010. The applicant then claimed sick leave. She said she consulted Dr Gates, her general practitioner, who provided a medical certificate. The applicant was adamant that she did consult with Dr Gates in February 2010 who did give her a certificate for absence from work. Sick leave records tendered by the respondent, indicated that the applicant was absent from work between 1 and 5 February 2010. The stated reason was sick w/o evidence. The applicant agreed that entry indicated that sick leave was taken without documented evidence of being sick. The applicant said that she was entitled to some sick leave each year without having to provide medical certification. Although she remained adamant that a certificate was provided, it was common for the employer to record sick leave being taken without evidence, even if documented evidence was provided. Entries after 1 February show sick leave was taken with evidence.
The applicant acknowledged that the clinical files of Dr Gates do not have a record of her consulting or issuing a certificate in February 2010, nor consulting with her between 16 November 2009 and 7 April 2010. The applicant worked for the remainder of February and March undertaking the same duties, except the front counter work, without any modification. She recalled that her back continued to deteriorate (statement at paragraph 16) and she was only able to complete her work with the assistance of others. She was unable to open the back door of the office when entering it from the staff car park and found that she would have to walk to the front of the building and enter through automatic doors. She also found it difficult to climb stairs in the workplace. The applicant recalled that she could only stand up from a seated position pushing herself using armrests. She was unable to bend into pigeonholes at floor level and on those occasions she asked colleagues to retrieve files for her. If she was seeking files at or about waist or chest height from the pigeonholes, she would remain in a seated position and pull out bundles and rest them on her knees. All movement caused increased pain and she thought that the extent of it was becoming worse.
On 31 March 2010 the applicant recalled that she was walking down the stairs at the back of her office. She said that she suddenly lifted an arm to waive away a wasp and felt excruciating pain in the lower back. She also found that lifting her arms when showering at home caused increased back pain.
When at home during Easter in April 2010, the applicant said she suffered increased pain. She recalled that she was helping one of her sons to get dressed and had to kneel on the floor to do so. She needed assistance from her husband to stand up. On Easter Saturday she spent most of the day lying in bed because of pain. On Easter Sunday she rolled off the bed and her husband lifted her onto her feet.
On 7 April 2010 the applicant attended Dr Gates. She then had severe leg pain and was unable to attend work. She has not returned to the workplace except on one occasion, approximately 2 weeks later, when she attended for a rehabilitation assessment. Dr Gates has subsequently treated her and she has been prescribed morphine, Panadeine Forte and Voltaren medication. She was offered the use of a TENS machine which she used for about 10 days. Her physiotherapist also recommended home exercising but she was unable to undertake it because of pain.
In late May 2010 the applicant attended the Austin Hospital as an outpatient and had a CT scan. In June she was admitted for an emergency MRI and was put on a waiting list for a micro discectomy with Mr Quan, an orthopaedic surgeon. The applicant said that he had told her she had suffered a compressed sciatic nerve and needed the surgery. That procedure was undertaken as a public patient on 31 August 2010.
In December 2011 the applicant had revised surgery with Mr Quan. He then completed an L5/S1 discectomy and fusion. The applicant said that her back pain is worse subsequent to the surgery but her leg pain has reduced.
Subsequent to the 2nd operation the applicant attended the Austin Hospital and attempted physiotherapy sessions which required her to complete exercises, walk on a treadmill and ride a bike. She found each of those activities to be very difficult. Mr Quan suggested that she should cease that activity and recommended that she undertake hydrotherapy which continues twice per week.
MEDICAL EVIDENCE
Mr Peter Mangos
Mr Peter Mangos is a general surgeon who examined the applicant at the request of her solicitors. He provided a report dated 24 August 2011 (Exhibit A7).
At the commencement of examination in chief, Mr Mangos was taken through the photographs of the workplace (Exhibit R2) and asked to consider the applicant's evidence with respect to the frequency of lifting and manoeuvring stacks of files from various locations. He was also asked to consider the weights of the stacks of files.
It was his opinion that the applicant suffered an aggravation of an underlying pathology in her lumbar spine by those activities, especially by twisting and bending. He said that persons with a normal back would experience strain by the activities that she was undertaking.
Having become familiar with the work undertaken by the applicant, as described to him, Mr Mangos remained of the opinion that the conclusions in his report had not altered, namely:
…This lady had an early multilevel disc degenerative disease of her lumbar spine. This undoubtedly has been significantly contributed to by her employment with Centrelink. She seems to be very stoical in continuing to work. There is no doubt in my mind that her work has been a significant contributing factor to her severe incapacity of her back and left leg (Exhibit A7, p. 3).
In cross-examination Mr Mangos confirmed that he had been in practice since 1964 as a general surgeon, mainly undertaking abdominal and medico-legal work. He had undertaken orthopaedic work when he was a Registrar and in a trauma unit at the Alfred Hospital for 5 years and for 3 months as part of an Alfred Hospital team in South Vietnam.
Mr Mangos reported that the work of the applicant involved a good deal of prolonged sitting from time to time and in customer service she was required every 30 seconds or so to stand from a seated position… (Exhibit A7, p. 1).He said that passage of his report was meant to convey that at times she was inactive on a chair which he regarded as causing pressure on her discs, which would be an aggravating factor. Mr Mangos conceded that his report of prolonged sitting was inconsistent with having to stand every 30 seconds. He said he may have been mistaken in offering that opinion and added that he had concentrated in his report on the strenuous nature of her employment.
It was his opinion that having to lift stacks of files, potentially weighing up to 14kg was strenuous, especially if the lifting was above shoulder height and involved twisting. He said that there was research, which he could not quote, that pointed to lifting weights on approximately 10 occasions per day on 3 days per week would aggravate degenerative lumbar disease. He said bending, pushing, twisting and pulling stacks of files in the manner described would aggravate her lumbar disease and said that there was no doubt about that (Transcript, p.51).
In his report under the subheading of History of Injury, Mr Mangos recorded, I have no doubt that she had mild back ache prior to late 2007 when she first felt a sudden pain in the lower back (Exhibit A7, p. 2). He explained that he had been given that history by the applicant. He said he was unable to locate that history in the notes he took during the consultation and conceded that he may have made an assumption. Nonetheless he said it was logical and possible that she would have had a backache before 2007 having regard to the work that she had been undertaking (Transcript, p. 52). The reference in the history to the applicant having suffered sudden pain in the lower back was significant to him because it had occurred in the workplace. A later reference in that part of his report to the applicant having continued to work until the back pain passed but then continued intermittently and worsening until April 10 pointed to a relationship, in his opinion, with the ultimate disc rupture because she would have had continuing minor tears in that disc (Exhibit A7, p. 2 and Transcript, p. 53).
Mr Mangos was asked to consider that the first complaint of low back pain in the clinical records of the applicant’s treating general practitioner was found on 7 April 2010. In those circumstances he was asked whether it was possible that the applicant did not have prior pain or at least as severe as he had recorded. He thought that maybe you didn't get the history properly. But she did have pain from January 2010 (Transcript, p.54).
Mr Mangos was asked to consider opinions expressed by Mr Michael Shannon, an orthopaedic surgeon who examined the applicant at the request of the respondent. At paragraph 4.4 of his report, Mr Shannon recorded that the disc degeneration suffered by the applicant was age related, long-standing and the disc prolapse was spontaneous without any incident or injury. Mr Mangos disagreed and said that the applicant was only 39 years of age and he did not regard her age as significant. He agreed with the conclusion of Mr Shannon that the employment did not cause her injury but disagreed with his conclusion that there was no significant contribution to it by the employment. It was noted that Mr Shannon recorded that he did not know of any other factor contributing to the applicant’s injury other than her obesity, however Mr Mangos obtained a history that although the applicant was 98kg at the time that he examined her, she had gained 30kg in weight since the injury occurred (Exhibit A7, p. 3). He was not aware that the clinical notes of Dr Gates on 22 April 2010 recorded that the applicant, then, had a BMI of 38.3 which he agreed suggested that she was morbidly obese.
In re-examination Mr Mangos agreed that obesity and the work undertaken by the applicant would have contributed to an aggravation of her lumbar disease but the work more so (Transcript, p. 61).
Mr Michael Shannon
Mr Shannon is an orthopaedic surgeon who has been in private practice since 1971 and who examined the applicant at the request of the respondent. He provided a report dated 6 September 2011 (Exhibit R4).
He obtained a history from the applicant that she had worked 3 days per week from 2003 and first had trouble with her back in November 2007. He also reported that the applicant had not suffered any specific incident or injury (Exhibit R4, p.1). He recorded that the applicant found that she had difficulty pulling files (at p.2). There is no other reference in his report to the work of the applicant involving the locating and lifting of files as she described in her evidence. Mr Shannon said that the applicant did not elaborate upon her comment of difficulty pulling files and he did not go into the details. She didn’t present this as a major problem. It was simply part of the things that she was doing (Transcript, p.66 - 67).
Mr Shannon reviewed the MRI films taken before and after the applicant’s surgery. He was satisfied that she suffered disc degeneration at two levels, being L4/5 and L5/S1, together with an annular tear at L4/5. He noted modic changes at the border of L5 (which indicated to him that the changes were evidence of a long-standing degenerative condition) and a very large left sided sequestrated lumbosacral disc prolapse. An MRI subsequent to surgery indicated residual disc bulging at L5/S1, a right-sided bulge at L4/5 and granulation of tissue adjacent to the S1 nerve root.
Mr Shannon said that degenerative changes start when persons are about 18 or 19 years of age irrespective of injury. He said the process involves an increase of fluid retention in discs which cause some bulging and desiccation, later, by the normal ageing process. He agreed that heavy lifting can accelerate degenerative changes but usually associated with heavy labouring type activity. It was his view that lifting weights of between 1kg and 14kg above head height would not be regarded as heavy manual work but would be regarded as moderately heavy for an office worker. He said these were not uncommon weights to carry (Transcript, p.68).
Mr Shannon said that it was difficult to comprehend an opinion expressed by Mr Mangos that bending and twisting to lift and take files from a shelf or a drawer would change the underlying pathology of the applicant. He said that it could be argued that activities described by the applicant might aggravate degenerative changes but there was no evidence known to him that the applicant had suffered significant symptoms which were reported. He said a spontaneous rupture would occur only if it was associated with an injury or an incident having occurred a few days previously where there was also a previous history of significant pain. Only in those circumstances was he prepared to accept that there was connection between the injury suffered by the applicant and her employment.
In cross-examination Mr Shannon said there was no evidence available to him, either in the history that he obtained from the applicant or the documents that he was provided prior to his consultation, indicating any incident or injury suffered by the applicant in proximity to the occasion of the rupture.
It was his opinion that working in an office offered persons the opportunity to sit, stand and walk around which he did not regard as necessarily a bad thing (Transcript, p. 72).
He agreed with a number of propositions put to him by Mr Carey, namely that increased bending, lifting heavy weights, twisting and carrying objects with extended arms will cause an increased strain on a lower back, however increased strain on a disc, in his opinion, will not necessarily cause an increase in the process of degeneration.
He again reaffirmed an opinion expressed in evidence in chief that in order for degenerative changes to contribute to a process leading to rupture, there would need to be documented evidence of injury or an incident, either in the form of a report or in clinical notes of a treating doctor. He did not regard the episodes of strain of the applicant's lower back as being significant, especially in the absence of a report of injury or treatment for it.
Mr Shannon noted from the clinical notes of Dr Gates that whilst the applicant had attended her clinic between January and April 2010, there was no complaint of back symptoms until 7 April 2010. He regarded the severity of an event or incident and symptoms to which there was complaint or treatment as being important when considering whether work contributed to an injury. He said if the clinical notes recorded the applicant had complained of pain at work, associated with her work activities, it would probably point to a process of degenerative changes which may have led to a rupture.
Mr Shannon concluded that the only factor contributing to the injury other than the natural progression of the pre-existing condition, in the absence of an incident or injury in the workplace, together with subsequent symptoms and treatment, was the obesity of the applicant (Exhibit R4, p. 7).
Dr Merrilyn Gates
Dr Gates is a general practitioner who first consulted the applicant on 10 November 2006. Her clinical notes were received as Exhibit R6. She was not called to give evidence.
Prior to 7 April 2010 the applicant attended the Darebin Road Medical Clinic for treatment both with Dr Gates and some of her colleagues. She attended on many occasions. I can find no entry in the clinical notes of a back injury or a complaint of back pain before 7 April 2010. On that occasion the handwritten entry records several days lower back pain injury painful 3/12 ago but not as severe – got better. rad L buttock/thigh neuro tend L3/4à?Sciatica. Medication of Voltaren and Panadeine Forte was prescribed, a certificate for one week absence was issued and consideration was given to referral to a physiotherapist.
There is a reference on 9 November 2009 to the applicant having been on RTW plan had returned to full-time duties 30th September feel ok coping well team leader supportive HR wanted a Dr to sign the RTW plan happy by returning to full duties. I am unable to determine from that entry whether the return to work plan or returning to full duties had any association with back injury or back pain. If so, no record was made of it in the notes. There are entries also on 2 October 2008 of agreed back to work plan; on 9 December 2008 work – no change. needs new contract but staying on same hours until boss can fit in review; 5 May 2009 work plan; and 21 September 2007 work problems ++ disc. re this. There is nothing in any of those entries pointing to any association with back pain or back injury. (The word disc, I assume, is an abbreviation of discuss or discussion).
In a report of 28 May 2010 addressed to the neurosurgery outpatients unit at Austin Hospital, Dr Gates recorded Cleo has had niggly lower back pain since January but didn't think much about it until early April when the pain became severe (T10, p.22).
In a report of 31 October 2010, Dr Gates recorded the applicant presented on 7 April 2010:
…complaining of several days of lower back pain. She reported no particular injury. She reported that she had back pain 3 months previously but it was not as severe and it resolved… (T25, p.68)
Mr Gerald Quan
The applicant’s treating surgeon was Mr Quan. He was not called to give evidence. In a report dated 25 October 2010 he concluded:
Prior to the onset of her symptoms this year there was no relevant history, pre-existing or underlying condition suffered by Mrs. Vasilakopoulos. In my opinion, this is a new condition which is not an aggravation, acceleration or recurrence of a pre-existing or underlying condition. The cause of her condition (extruded intervertebral disc) is variable and may indeed not even be due to any specific activity or event. Intervertebral disc herniations may be precipitated from jobs that require constant sitting or repetitive heavy lifting, and can occur after a fall or accident. However symptomatic degenerative disc disease may also occur as part of the normal ageing process and general wear and tear, without any specific initiating event. In Mrs Vasilakopoulos’ case there does not appear to be a particular incident (in or out of employment) which caused her condition (T24, p. 67).
CONCLUSIONS AND REASONS FOR DECISION
There was no issue between the parties of the injury suffered by the applicant. This review is confined to whether the employment significantly contributed to it.
There were few reports by the applicant of her back pain, both documented and given orally to colleagues. Statements tendered from work mates corroborated the work duties but made no mention of any complaint by or being aware the applicant suffered back pain. The clinical file of Dr Gates has no record of the applicant complaining of or attending for treatment of back pain until April 2010.
I am not satisfied that her credit is diminished by the absence of this (documented) evidence. I am satisfied the applicant was a truthful witness, who did not exaggerate and who did not give histories to doctors (after April 2010) and other persons in anticipation of litigation. I also regard her as being stoic and a person who has suffered low back pain from 2007.
I make that finding in the context of the applicant being a person who did work in pain and frequently attended the workplace without complaint. She is a person who I am satisfied had a commitment to her employer but significantly, in my view, worked on a part-time basis only to be available to her two children who frequently needed her care and who required her to take them to appropriate medical specialists. It is also clear to me, having read her clinical history that she was suffering from other medical issues personally. Those matters will not be documented in this decision save that it would appear, as may be discerned from the clinical entries, that her focus for many years was not confined only to her low back pain.
There does not seem to be any issue raised by the respondent that the applicant did report low back pain in November 2007 (T3, p.6) although the applicant did say in evidence that the pain was first experienced in September 2007. The employer was aware of those symptoms and incapacity in the same month as recorded by its representative in the employer’s part of the applicant’s claim form (T17, p.43).
It appears that the incident reported in November 2007 gave rise to the employer making available an occupational therapist, Mr Angel to inspect the applicant’s work station and conduct an assessment. Mr Angel recorded in his report that the applicant had complained of neck, shoulder and back pain (T4, p.7).
Whilst it is true, as Counsel for respondent submitted during cross-examination and in his submissions, that there is no record in the medical file of Dr Gates of any report of back pain prior to April 2010, it is worthy to note that Mr Angel recorded that the applicant had given him a history of having consulted her GP in relation to her symptoms and that she has discussed the nature of her work with him (T4, p. 7).The identity of that doctor is not known and is not apparent from Dr Gates’ file. Before 7 December 2007 (the date of the report of Mr Angel) the typed part of her file records the applicant having a consultation on 22 February 2007 with Dr Philip Smith. Nothing is recorded at that date about the reasons for presentation or the nature of treatment. There is a record that a letter was created and printed which was identified only as Phil’s referrals. The handwritten part of the file does not record the applicant attending on 22 February 2007. However, within the file produced from that clinic there is a handwritten document under the letterhead of the Northern Hospital in Epping where the words back pain appear. It is dated 19 November 2007 and the clinician is recorded as Dr Craig Winter. He may be the male doctor to whom the applicant had consulted and to whom she referred in the history recorded by Mr Angel.
The employer’s sick leave records received as Exhibit R3 indicate the applicant was absent between 19 November 2007 and 23 November 2007 being the day before the employer’s representative recorded that the applicant returned to work (T17, p.43). The sick leave record shows that the absence was approved with evidence which was learnt later in the hearing to mean that the absence was supported by medical certification.
From November 2007, the applicant worked frequently in the presence of low back pain. (She did not continue to experience pain in her neck or shoulders). There were many occasions when the pain in her lower back was exacerbated and she associated it with her work which frequently required her to bend, lift and twist her lower back. She was also obliged to lift heavy bundles of files and on occasions when those bundles were located in storage cupboards at floor level, she extracted and worked on them in either a squatting position or on her knees or by sitting on the floor. Postures of that type also exacerbated the extent of her pain.
Written incident reports were not given to the employer although the applicant said that her team leader was aware that she was having back pain. The applicant said that she had been focused on attending work and having to deal with issues associated with her children. She said that making reports in the workplace would not be on top of (her) list and she was not emotionally in the right frame of mind (Transcript, p. 30 - 31). Having reviewed the clinical file of Dr Gates after the hearing, that explanation is now well understood.
Towards the end of 2009, the applicant noticed that she was having severe low back pain on a frequent basis which caused her to reduce the extent of her housework. She also said that she had difficulty walking and getting into and out of her car.
There are a number of medical and other documents lodged in these proceedings recording that the applicant was experiencing back pain in January 2010. None of the authors of those documents gave evidence in this review.
Although Dr Gates does not have any documented record of complaints of back pain before 7 April 2010, her notes record on that day several days lower back pain – injury, painful 3/12 ago but not as severe – got better (Exhibit R6). That entry would suggest that the applicant had lower back pain in January 2010. It is consistent with the content of a letter Dr Gates wrote to the neurosurgery outpatient unit at the Austin Hospital on 28 May 2010 where in part she recorded Cleo has had niggly low back pain since January but didn't think much about it until early April when the pain became severe (T10, p.22). It is also consistent with a questionnaire Dr Gates completed in June 2010 (found within her clinical file) when the applicant was being considered for admission for treatment in the outpatient clinic. Dr Gates recorded the date of onset of symptoms was ? January 2010.
The employer referred the applicant to Mr Haig, a consultant orthopaedic surgeon in December 2010. In his report, he records a history given to him that by the end of January 2010 there was an increase in low back pain and she took a week off work (T32, p.93). In a rehabilitation assessment report of 5 November 2010, completed by a rehabilitation case manager employed by Centrelink (found within the clinical file of Dr Gates), there was a reference to the applicant experiencing low back pain in January 2010 at which time she was certified unfit to all work duties for a period of one week.
I am satisfied that the back pain in January 2010 referred to immediately above, was responsible for the incapacity for 5 days at the beginning of February 2010. That period of incapacity will be discussed below however, at this stage it should be noted that in addition to the history obtained by Mr Haig and the rehabilitation officer referred to above, they both recorded a history of the applicant then attending her general practitioner. There is no record of such an attendance. There is a reference in Mr Haig’s report that the applicant had mentioned her back pain to Dr Gates incidentally on previous occasions when she attended for other reasons (T32, p.93) which suggests she did not mention her back pain on each occasion that she attended Dr Gates. It might also explain how Dr Gates was able to record in a letter to the neurosurgery outpatient clinic and in the questionnaire that the applicant had back pain from January 2010 despite no recording of it in the clinical notes.
Records of the employer indicate the applicant was absent on sick leave between 1 and 5 February 2010 (Exhibit R3). The applicant said she was then incapacitated because of back pain. She also said that she had consulted Dr Gates who provided a certificate for that period of time. The employer record indicates that sick leave was approved, without evidence (w/o evidence) of a certificate being provided. There is nothing in the clinical file of Dr Gates, nor can I find a reference in any of the other medical material within her clinical file of a certificate being issued by another practitioner.
The applicant said that it was common for the employer to record sick leave being taken w/o evidence even if it had been provided. The records at Exhibit R3 indicate many occasions where sick leave was approved with evidence. Evidence was not heard from the employer to explain the practice of recording sick leave. There are many references in the sick leave records of the applicant being absent where sick leave was approved without evidence. Each of those occasions was for single days only. I cannot reconcile her evidence of provision of a medical certificate with the employer records which indicates that a certificate was not provided. Nonetheless, the summary of the medical evidence recorded earlier with respect to her complaints of back pain in January 2010 does satisfy me that pain was then being experienced and which was responsible for incapacity in the first week of February 2010.
On 31 March 2010 the applicant felt lower back pain that she described as excruciating when descending stairs at the workplace. The applicant has not worked since that date being the Wednesday immediately before Good Friday. It was during the Easter period that she experienced the episodes of severe back pain at home that she described in evidence. It gave rise to the consultation with Dr Gates on 7 April which set in train the treatment largely undertaken, subsequently, at the Austin Hospital.
During the Easter period, the applicant said that she suffered increased pain when at home. She said she had difficulty dressing one of her infant children and needed assistance from her husband. On Easter Saturday she spent most of the day in bed because of pain and on Easter Sunday she had difficulty getting out of bed and needed assistance from her husband who lifted her onto her feet. A few days later she consulted with Dr Gates and eventually the radiology and opinions expressed by doctors at the Austin Hospital indicated the presence of a disc rupture.
The evidence of Mr Mangos and the contents of his report were equally disappointing. I do not regard him as having equivalent experience or practice as Mr Shannon, an orthopaedic surgeon. On some occasions Mr Mangos expressed opinions in the absence of a history and on the basis of assumption. His conclusions were not well reasoned. He supported his conclusions by research but was unable to identify it. His comprehension of the work undertaken by the applicant was in some respects erroneous and poorly expressed. For example, it was his opinion that the applicant’s work involved periods of prolonged sitting but in the same part of his report he also referred to her having to stand every 30 seconds. I think no weight should be given to the opinions that he has expressed.
Mr Shannon said that the work undertaken by the applicant which involved sitting, standing and moving around was not a particularly bad thing for your discs. He added that it would help to develop musculature (Transcript, p. 72). He accepted that the weights of files lifted by the applicant could be regarded as moderately heavy and the postures involving bending, stooping, squatting and twisting would put increased strain on the applicant’s back, especially bending.
Mr Shannon was not satisfied that the work undertaken by the applicant would have increased the rate of desiccation, deterioration or fraying of her lumbar discs. Put another way, he was not satisfied that in the absence of an injury, the rate of degenerative changes in the applicant’s spine pre-existing April 2010 would have been altered, that is increased, and therefore, responsible for the eventual rupture.
Mr Shannon said that in the absence of any report or record of injury or strain in the workplace, he could not be satisfied that an injury in fact did occur. Despite the valiant attempts on the part of Mr Carey to have Mr Shannon reconsider the opinions that he had expressed, indeed to comprehend the nature of the applicant’s work (which was not apparent from his report), Mr Shannon remained resolute that evidence of injury would need to exist before he would support the proposition that the employment contributed to the rupture, which he regarded as spontaneous (Transcript, p.81-82).
As the examination persisted, he acknowledged that the applicant did have pre-existing degenerative changes which were responsible for her disc prolapse but there was nothing he had heard or read which satisfied him that the employment had any significant effect. He acknowledged that the applicant was stoic but the absence of any evidence of increasing back pain associated with her work or reported to her superiors or doctors and the absence of any prescription of medication, satisfied him that the rupture occurring during Easter was spontaneous and not associated with the employment.
In re-examination he said if the rupture occurred within a few days of injury it would be consistent with significant contribution by work. He said proximity is important as a prelude to the rupture and the severity of the event and the severity of the symptoms were relevant (Transcript, p. 85).
Mr Quan, the treating surgeon provided a report to the respondent. Whilst I acknowledge that the nature of the applicant's employment is not apparent from his report and he was, in the absence of him being called, not asked to consider it in evidence, no support for the applicant's case can be gleaned from the opinions that he has expressed.
I am satisfied that the opinions expressed by Mr Shannon are sound and are to be preferred.
The evidence heard and read in these proceedings satisfies me that from 2007 the applicant did suffer low back pain which did from time to time fluctuate in intensity and did progressively become more severe. Towards the end of 2009 and early in 2010, it would appear also that the applicant had pain which did start to affect her domestically and incapacitated her from employment in the first week of February 2010 but not subsequently until 31 March 2010 which is the last day she was rostered to work before commencing the Easter vacation.
In an entry made on 7 April 2010, Dr Gates recorded that the applicant gave a history of lower back pain 3 months previously but it was not as severe as it was at the date of consultation because it got better. Dr Gates wrote to the neurosurgery outpatient’s clinic at the Austin Hospital and identified the pain suffered by the applicant since January 2010 as niggling. Nothing from her clinical file or from her letter points to any injury or significant event in proximity to the rupture of the disc at home during Easter in April 2010.
Additionally there is nothing in the clinical file of Dr Gates indicating that the applicant was prescribed any painkilling medication at any time before 7 April 2010. The list of prescribed medication found within her file, commencing in November 2006 indicates that Voltaren and Panadeine Forte were first prescribed on 7 April 2010. None of the medication prescribed previously was for pain relief.
There is no report – documented or oral – of any complaint to any person immediately prior to April 2010 of any injury or event which would give the connection or proximity to the rupture during Easter.
I am therefore satisfied that the ruptured disc suffered by the applicant was spontaneous and there was no contribution in a significant degree to it by the employment.
DECISION
The decision under review is affirmed.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member........................[sgd]........................
Associate
Dated 21 September 2012
Date(s) of hearing 7 May 2012, 10-11 July 2012 Counsel for the Applicant Mr M. Carey Advocate for the Applicant Ms S. Hill Solicitors for the Applicant Ellis Palmos & Co Counsel for the Respondent Mr J. Wallace Advocate for the Respondent Ms K. Latta Solicitors for the Respondent Sparke Helmore
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