Dimoski and Comcare

[2003] AATA 1265

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1265

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/151

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUZANA DIMOSKI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date12 December 2003

PlaceCanberra

Decision The decision under review is affirmed.  The applicant qualifies for no costs associated with this application.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – permanent impairment claim – injury in the form of aggravation of underlying cervical spine facet joint disease – any impairment does not result from an injury – tribunal can consider whether an injury exists where that not raised in reviewable decision

Safety, Rehabilitation and Compensation Act 1988 s 4(1) (“aggravation”, “ailment”, “disease”, “impairment”, “injury”, “permanent”), s 4 (8), s 7(6), s 14(1), s 24(1) and s 24(2)

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Comcare v Hill (1999) 56 ALD 487

Comcare v Miles (1995) 129 ALR 427

Comcare v Moon [2003] FCA 569

Re Frosch and Comcare [2003] AATA 1207

Power v Comcare (1998) 56 ALD 141

REASONS FOR DECISION

12 December 2003 Michael Sassella, Senior Member           

RESULT

The tribunal has found that Ms Dimoski was not suffering from a compensable injury when she lodged her claim for lump sum compensation for permanent impairment and that she does not now suffer from a compensable injury.  Suffering from such an injury is a precondition to payment of compensation in respect of permanent impairment.  Ms Dimoski’s appeal has therefore failed.

BACKGROUND

1.      Suzana Dimoski (“the applicant”) was working for the Commonwealth Department of Health and Aged Care when she successfully claimed workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act)[1] for injury affecting her upper back, shoulder and neck.  The date of injury was 9 April 1998.  On 11 July 2001 Ms Dimoski lodged a claim for lump sum compensation for a permanent impairment resulting from the compensable injury.  Comcare (“the respondent”) rejected the permanent impairment claim.  That rejection is now before the Administrative Appeals Tribunal (“the tribunal”).

[1] An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

…

3. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

4. The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

5. An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

6. If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

7. In the present case the applicant is seeking a lump sum payment of compensation in respect of permanent impairment. An impairment is defined in s 4(1) of the Act:

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

An impairment is permanent in accordance with the definition of “permanent” in s 4(1) where it is:

likely to continue indefinitely;

8. For an employee to succeed in a claim for an alleged permanent impairment the requirements in s 24 of the Act must be satisfied:

24 Compensation for injuries resulting in permanent impairment

(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(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's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

…

9. Section 4(8) of the Act makes abundantly clear that the “injury” referred to in s 24(1) must be one for which the respondent is liable under s 14(1) of the Act:

(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.

10.     The issues arising are:

(a)Has Ms Dimoski suffered an injury under the Act?

(b)If the answer to (a) is yes, does Ms Dimoski have an impairment under the Act?

(c)If the answer to (b) is yes, what is the duration of the impairment?

(d)If the answer to (b) is yes, what is the likelihood of improvement in Ms Dimoski’s condition?

(e)If the answer to (b) is yes, has Ms Dimoski undertaken all reasonable rehabilitative treatment for the impairment?

(f)If the answer to (b) is yes, is the impairment permanent?

(g)If the answer to (f) is yes, what is the percentage impairment?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A)Has Ms Dimoski suffered an injury under the Act?

11. The apparent answer is yes. Comcare accepted liability for “neck, thoracic sprain and stereotyped repetitive movements (bilateral)” in February 2001. Comcare paid weekly compensation under s 19 of the Act between November 2000 and January 2001 and paid medical expenses referable to treatment in 1998, 1999, 2000, 2001 and 2002. Comcare has never purported to determine that its compensation liability has ceased. However, in its statement of facts and contentions for the tribunal Comcare asserts that Ms Dimoski no longer suffers from the compensable injury.

12.     Ms Dimoski saw keyboard duties as the cause of her injury.  Ms Dimoski’s evidence for the tribunal was that early in 1998 she started work on a spreadsheet detailing up to date prices of some 8,000 prosthetic devices.  She worked each day from 8.00 or 8.30 am until 5.00 pm or later doing this work.  Her evidence was vague regarding just how much of the time each day was devoted to keyboard work but it seems that it was a great deal of each day.  At the onset of pain Ms Dimoski did exercises involving standing and stretching.  This was to limited avail and she worked through 1998 experiencing pain in the upper back, neck and shoulder. 

13.     In April 1999 Ms Dimoski took maternity leave until May 2000.  The pain persisted.  She returned to work doing data entry and the pain in the earlier nominated sites continued and had worsened by August 2000.  By October 2000 Ms Dimoski was taking time off work.  She returned on reduced hours in November 2000.  She left work in August 2001.

14.     At the time of the hearing in March 2003 Ms Dimoski reported daily pain in the upper back, neck, shoulders, the back of the head, the arms and hands.  She said she finds her condition distressing.  She seeks compensation for problems involving the cervical spine, left arm, right arm and headaches.  The headaches have, of course, not been accepted as compensable at any time by Comcare.

15.     The respondent’s bases for suggesting that Ms Dimoski no longer suffers from a compensable injury were several.  One was that Ms Dimoski had suffered from headaches before the identified problems commenced in 1998.  The applicant argued that the headaches she now has are a consequence of her cervical spine injury and that they are different from the pre-1998 migraine headaches she used to have.  The earlier headaches were mentioned as early as 1992 and, as with the current headaches, travelled from the neck to the head

16.     Mr O’Donovan (for Comcare) identified inconsistent histories Ms Dimoski had given to health professionals since October 2000.  Dr D McGrath, a musculoskeletal and occupational physician, recorded on 13 March 2003 that Ms Dimoski had intermittent neck and shoulder girdle pains before 1998.  (Ms Dimoski said that these pains were not like the 1998 pain.) 

17.     Mr O’Donovan pointed out that Ms Dimoski claimed compensation on 1 November 2000 in respect of pain with an onset on 10 April 1998.  She had a completed incident report dated 16 April 2000 which she submitted when she claimed compensation.  She said she had completed it in 1998 and retained it.  She had seen general practitioner Dr J K Azoury on 9 April 1998 for a chiropractic referral.  Dr Azoury in a report dated 11 January 2001 noted that, on 9 April 1998, Ms Dimoski told him she had similar symptoms for two or three months.  Comcare had ascertained that Ms Dimoski had spinal manipulations at the City Chiropractic Centre on 4, 6, 7, 9 and 22 April 1998.  A copy of the chiropractor’s invoice was before the tribunal.  This disagreed with Ms Dimoski’s written statement dated 11 March 2003 in which she said she first saw a chiropractor in “about May 1998”.  (Ms Dimoski conceded that she probably saw the chiropractor when the chiropractor’s invoice said she did.  However, she said she could not recall seeing a chiropractor before seeing Dr Azoury on 9 April.)  Mr O’Donovan suggested that the discrepancies between documents dating from around April 1998 and Ms Dimoski’s statements in the incident report, coupled with there being no copy of the incident report held by her employer, mean that Ms Dimoski prepared that report after 1998, possibly in 2000. 

18.     When Ms Dimoski saw the chiropractor on 9 April 1998 she completed a questionnaire which indicated she was “much better”..  In that document the sites of pain were limited to the rear neck and shoulders and upper back.  There was no mention of pain in the arms or of headaches.  (Ms Dimoski said she had headaches but they were not as disabling as the conditions she did cite.) 

19.     Mr O’Donovan noted that Dr Azoury’s notes from 1998-1999 show that Ms Dimoski saw him only once for the neck, shoulder and back problem between April 1998 and April 1999.  It appears also that she did not mention the problems to another doctor and she took no leave for the condition.  She was prescribed no medications for the condition.  She had seen Dr Azoury frequently about other matters in the period.  Ms Dimoski first reported arm symptoms to Dr Azoury during her maternity leave (April 1999 to May 2000).  Dr Azoury had Ms Dimoski’s left arm problem investigated.  He recorded that the problem mended. 

20.     Mr O’Donovan noted that in April 2000 Ms Dimoski told Dr Azoury of a “tender lumbar spine” while on maternity leave.  She saw it at the time as related to her pregnancy.  She reported no neck pain to Dr Azoury at that time, although she had on one occasion around this time on 23 December 1999.  (Ms Dimoski said that the neck pain was still present but had “calmed down”.)  In May 2000 Ms Dimoski returned to her work and made no mention of neck pain to her workmates.  Ms Dimoski agreed with Mr O’Donovan that she first reported neck problems to others at work and to Dr Azoury in October 2000. 

21.     In her written statement for the tribunal Ms Dimoski referred to the onset of pain in both arms “by August 2000”..  In oral evidence Ms Dimoski said this pain was unbearable.  However, Dr Azoury’s notes indicated that Ms Dimoski saw him about a sore throat on 21 August 2000 and she made no mention of sore arms.  Mr O’Donovan noted that Ms Dimoski did not refer to arm pain or headaches in her compensation claim dated 1 November 2000.  Ms Dimoski had leave at about this time.  She agreed with Mr O’Donovan’s proposition that the less she worked the worse her symptoms seemed to become.  Mr O’Donovan noted that Ms Dimoski left work in 2001 yet her symptoms are said to have worsened.

22.     Mr O’Donovan suggested that there was probably an aggravation of an underlying cervical spine condition in April 1998 but the effects of the aggravation later ceased. 

23.     Dr C J Andrews, a neurologist, was of that view.  Dr Andrews recorded, in a report to Dr Azoury dated 22 August 2001, that he had advised Ms Dimoski about her neck and upper thoracic pain as early as February 1998.  He thought there was a degree of amplification and exaggeration in her symptomatology.  On 10 June 2003 in a report to Comcare Dr Andrews, who had seen Ms Dimoski in February 2003, said he had difficulty relating Ms Dimoski’s ongoing symptomatology to her workplace in 1998 and thought the symptoms “probably” not connected.

24.     Dr Andrews saw Ms Dimoski again on 21 March and 7 April 2003.  Dr Andrews in oral evidence regarded the facet joints at the back of the neck as the source of any back or neck problems.  Facet joints can be adversely affected by trauma or can spontaneously create problems.  Dr Andrews was aware of no trauma in Ms Dimoski’s case.  In oral evidence Dr Andrews said that Ms Dimoski could have a condition aggravated by her work.  However, he said that office work is unlikely to adversely affect the cervical spine.  Asked whether prolonged data entry might cause spinal symptoms Dr Andrews said it depended on what diagnosis a doctor made at the time.  He said that soft tissue injury would settle with rest and cessation of the problematic activity.  In principle he agreed that a facet joint condition could be temporarily aggravated by work.  This would occur because of maintenance of a particular posture for a long time.  (Dr Azoury had proffered such a diagnosis in a report to Comcare dated 11 January 2001.)  However the likelihood of any work connection recedes as time passes.  He said that he is prepared to accept a work connection when symptoms vary in direct proportion to work done. 

25.     Dr Andrews told the tribunal that he does not accept that cervical spinal injury can occur by way of gradual onset.  His experience in practice argues against it.  The cervical spine, he said, is generally injured by sudden rotation not flexion, and generally in motor vehicle accidents.  The facet joint might be injured if the head is flexed forward while rotated but an injury would not occur as a result of keyboard work involving looking forward and to the side in successive repetitive movements.  Dr G G Griffith, a surgeon, in a report dated 9 May 2001 was prepared to accept that Ms Dimoski’s condition could have been one of gradual onset.  However he proffered no precise diagnosis other than to say she has occupational overuse syndrome or repetition strain injury, diagnoses which he then described as imprecise, descriptive, lacking in intellectual rigour and generally unacceptable.  In his report of 19 November 2002 Dr Griffith diagnosed chronic neuropathic pain syndrome “presumably” triggered by her facet joints in the cervical spine at one or more levels.  In oral evidence he noted that Ms Dimoski has cervical spondylosis at several levels, consistent with her age.  She has also bilateral epicondylitis.  These diseases have caused a chronic pain syndrome.  Dr Griffith agreed in cross-examination that the arm symptom was likely not connected with work as it had its onset during maternity leave. 

26.     Dr McGrath, one of Ms Dimoski’s treating doctors, gave evidence at the tribunal.  He explained that Ms Dimoski has a chronic deficiency of spinal function at the base of the neck.  Her spinal joints below C6-7 do not contribute to her spinal function.  He thought Ms Dimoski’s work contributed to the development of her problems.  In cross-examination he said the connection was circumstantial and based only on Ms Dimoski’s symptoms worsening with work and reducing when she was away from work.  He confirmed that Ms Dimoski’s 1992 and 1998 neck pain was the same, merely a pain in the back of the neck and not involving the shoulder. 

27.     In cross-examination Dr McGrath was asked to consider a situation based on Ms Dimoski’s written statement dated 11 March 2003 where Ms Dimoski said she was experiencing pain in the neck and upper back when going on maternity leave, albeit at a lower level than previously.  In December 1999 she had pain in the upper back and neck with swelling in the lower left arm.  Thus, what was put was that there were no clinically significant symptoms between April 1998 and the cessation of work in April 1999, but a problem then emerged in December 1999.  Ms Dimoski returned to work in May 2000 but symptoms did not re-emerge until August 2000 when she says she had pain in both arms.  Dr McGrath had understood the relationship between the onset and severity of symptoms to be related in time terms to work.  However, there appeared to be no such direct relationship. 

28.     It should be noted that Dr R D Whittaker, a rheumatologist, in a report dated 25 May 2001 diagnosed a regional pain syndrome involving Ms Dimoski’s neck, shoulder girdle and upper limb and he saw the cause as the duties she was required to perform in early 1998.  He was unaware of any specific pre-existing or underlying condition.  He was also under the impression that Ms Dimoski’s symptoms were worse when she was working than when she was not working. 

29. Mr Walker (for Ms Dimoski) argued that she has a persisting injury under the Act. In 1998 she was required to engage in intense data entry needing to look from side to side. The situation worsened so she saw a chiropractor and Dr Azoury. She has had pain ever since at the back of the head and across her shoulders. The pain was said to persist in 1998 and to the present. The headaches are presented as a sequela of the cervical spine pain and differ from headaches she had before 1998. Mr Walker regarded it as significant that on her return to work Ms Dimoski was given the same duties as before she went on maternity leave.

30.     Mr Walker suggested that Dr Azoury’s notes in 1999-2000 may have omitted reference to cervical pain reported by Ms Dimoski because of an emphasis on issues relating to the pregnancy and birth.  Dr Azoury conceded that this may be so in his evidence.  Mr Walker referred to the number of doctors who seemed to see a connection between Ms Dimoski’s work and her spine condition. 

31.     I found Mr O’Donovan’s submissions in [19] – [21] above convincing.  There is considerable evidence that Ms Dimoski did not report cervical spine-related symptoms to Dr Azoury or her workmates at times when, according to her own statement, she was concerned about them.  I considered Dr Azoury generous in conceding that he may have failed to record such symptoms as reported because of the emphasis on pregnancy-related matters.  Dr Azoury did record complaints of viral conditions and a sore throat at one relevant time.  At other times he gave considerable prominence to Ms Dimoski’s neck, arm and cervical spine pain in his notes.  I think it unlikely that he would have failed to record complaints relevant to the compensable condition if they had been made. 

32.     I am influenced also by the cogency of Dr Andrews’ opinion in [24] and [25] above.  Dr Andrews had adopted an objective point of view in providing his assessment.  His evidence regarding the necessary nature and impact of any trauma causing an effect on the cervical spine was consistent with evidence I have heard in other matters before the tribunal.  In [27] above Dr McGrath effectively fell into line with Dr Andrews when apprised of an objective history of Ms Dimoski’s symptomatology.  I preferred the evidence of these two specialists to that of Dr Whittaker because Dr Whittaker was unaware of some of Ms Dimoski’s symptomatology before 1998 and erroneously understood there to be a direct relationship between her attendance at work and her symptoms.  I preferred the evidence of Drs Andrews and McGrath to that of Dr Griffith because Dr Griffith was alone in addressing but minimising the likely effects of Ms Dimoski’s cervical spine pathology. 

33.     On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413. Comcare has never accepted that Ms Dimoski qualifies for lump sum compensation for permanent impairment. The court in Casarotto stated that in a practical sense, if not in a strict legal sense, it is the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision in the applicant’s favour.  There is an evidentiary onus in fact, if not in law, on Ms Dimoski in these proceedings.  While Ms Dimoski, through Mr Walker, did suggest a scenario that, if uncontradicted, would justify her receiving her lump sum, Comcare, through Mr O’Donovan, presented a counter-argument.  Unfortunately for Ms Dimoski I found Comcare to have the better argument in this matter as explained in [31] and [32] above.

34. Mr Walker expressed concern at the start of the second day’s proceedings that Comcare was asserting the lack of an ongoing injury generating a permanent impairment under s 24(1) of the Act. This had not been asserted in Comcare’s reviewable decision. The basis of the reviewable decision had been that the impairment had not become permanent. For reasons discussed by me in Re Frosch and Comcare [2003] AATA 1207 I consider that the Federal Court cases of Comcare v Hill (1999) 56 ALD 487, Comcare v Miles (1995) 129 ALR 427 and Power v Comcare (1998) 56 ALD 141 permit the question of whether there is an injury to be raised in a permanent impairment appeal even if the issue was not addressed in the reviewable decision. In Frosch I explained why I considered that Comcare v Moon [2003] FCA 569 was inconsistent with those earlier cases which were to be preferred.

35. My formal finding is that Ms Dimoski suffered an injury in April 1998 in the nature of a temporary aggravation of an underlying cervical spine facet joint disease. However, I am satisfied that there is and that there was, by the time of Ms Dimoski’s permanent impairment claim, no injury as defined under the Act from which any permanent impairment had resulted. The answer to question (a) is therefore no.

36. In view of this answer it is unnecessary to consider whether the specific requirements of s 24 of the Act, as reflected in issues (b) to (g) in [10], have been met.

CONCLUSION

37. As I have concluded that there is no compensable injury from which any impairment suffered by Ms Dimoski has resulted, s 24(1) of the Act is not satisfied. Section 24(1) lays down mandatory requirements, ie that there is an impairment, that it is permanent and that it results from an injury. The absence of any of these means that the claim for lump sum compensation must fail.

DECISION

38.     The decision under review is affirmed.  The applicant qualifies for no costs associated with this application.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Dates of hearing  26 March and 19 June 2003
Date of final submissions         22 August 2003
Date of decision  12 December 2003
Counsel for the applicant          Mr P Walker
Solicitor for the applicant          Slater & Gordon, Lawyers
Counsel for the respondent      Mr D O'Donovan
Solicitor for the respondent      Sparke Helmore, Lawyers