Erin McGorlick and Comcare
[2013] AATA 477
•9 July 2013
[2013] AATA 477
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0867
Re
Erin McGorlick
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 9 July 2013 Place Melbourne The decision under review denying liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 is set aside and in substitution it is decided that:
1.the respondent is liable to pay compensation to the applicant for reasonable medical and like expenses and payments for incapacity pursuant to s 16 and s 19; and
2.the respondent is liable for the applicant's legal costs and disbursements pursuant to paragraph 6.8 of the Tribunal's Guide to the Workers' Compensation Jurisdiction.
(sgd) John Handley
Senior Member
COMPENSATION – Applicant employed as a customer services officer with Medicare – the work exposed her to repetitive movements of her neck and upper back – injury treated conservatively – finding of C6-C7 cervical disc prolapse on MRI – contention that the applicant suffered three injuries unrelated to employment – absence of evidence in support – employment did contribute to a significant degree – decision under review set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16 and 19.
CASES
Comcare v Canute (2005) 148 FCR 232
REASONS FOR DECISION
Mr John Handley, Senior Member
9 July 2013
Ms McGorlick, the applicant, commenced employment with Medicare Australia in January 2007. She was engaged as a customer service officer, working at a desk, processing claims and responding to customer enquiries.
In October 2008 she first experienced upper back and neck pain and stiffness. She was subsequently incapacitated from time-to-time and her symptoms fluctuated but later increased in frequency and intensity.
The applicant claimed compensation contending that her employment contributed to an intervertebral disc disorder in her cervical region. In its reviewable decision, Comcare decided that the applicant suffered an ailment being a cervical disc bulge. It also decided that the applicant's employment did not contribute to a significant degree to the development of that ailment. It denied liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act1988 (the Act) (T25, p 89-93). The relevant legislative provisions and the respective submissions of both counsel on these issues will be discussed later in these reasons.
During the hearing, I had the benefit of hearing and observing the applicant give her evidence. I also heard evidence from her treating general practitioner, Dr Marinucci and Mr Brownbill, a consultant neurosurgeon who examined the applicant at the request of her solicitors. Evidence was also heard by Mr Haig, an orthopaedic surgeon engaged by the respondent. Having heard submissions from Mr Carey and Ms Dowsett on behalf of the applicant and the respondent respectively and having also reviewed a significant quantity of documents tendered in evidence, I am satisfied, for reasons which will follow, that the decision under review should be set aside.
The work
After an initial period of training, the applicant worked with Medicare at 3 locations in the Melbourne CBD. Later in 2007, she was transferred to a Medicare office at the Southland shopping centre in south suburban Melbourne. It was the applicant's belief and later confirmed in evidence by one of her managers that the Southland office is the busiest Medicare office in Australia.
The applicant worked between 8:30 and 5:15, Monday to Friday, with routine meal and rest breaks during the day. Some Saturday work was available and on those occasions the applicant worked between 8.45 and 12.30 with a 15 minute break. The applicant said during an average day she would attend to 100 customers. There were occasions where she would attend to 140 customers.
The applicant said that she worked at a desk with a perspex front shield. A customer would sit on the other side of the shield and the applicant would sit behind it. The front of the desk was straight and the other side of the desk occupied by the applicant was curved in shape. She worked with a computer screen, keyboard and an eftpos type receipt printer to her left. Cash drawers were located under her desk to her right. The applicant sat on a chair with a swivel seat without arms and which was mounted on castors. When she first started at Southland the floor surface was lino. Carpet was fitted later and the applicant recalled that it was difficult to manoeuvre her chair across the carpet surface.
The applicant described a typical transaction commencing with receiving a customer’s receipt/s together with their Medicare identity card. She would swipe the card and the customer’s membership details would display on the computer screen. She then moved to the left of her desk, whilst remaining seated, by holding the front edge of her desk with her left-hand and pulling herself towards the computer screen and keyboard. She would turn her body over approximately 45° to face the computer screen. Relevant data was typed and the refund entitlement was displayed on the screen. She would then move to the right side of her desk, whilst remaining seated by holding the front edge of the desk with her right hand and pulling herself towards the cash drawers. She turned her body over 45° and then tilted her neck down in order to face the cash drawers which she would have opened using her right hand. The applicant leaned into the draw and the refund amount was counted twice and two receipts were printed from the eftpos device located near the computer screen, which caused her to return to the position that she had previously occupied.
The applicant gave one receipt to the customer to sign and the refund was counted again at a position at the front of the desk, immediately under an opening at the bottom of the screen where it could be observed and received by the customer. The signed receipt was retained by the applicant on which she recorded the denomination of the notes and coins comprising the refund (to assist balancing, if necessary, at the end of the day). The other receipt was stapled by the applicant to the processed receipts which were then returned to the customer with the monies. That manoeuvre required the applicant to extend her arms forward and place the receipts and monies on the outside of the screen, where the customer was sitting.
The cervical symptoms suffered by the applicant first emerged in October 2008. They eventually settled (except for a brief period in August-September 2009) and returned in or about June 2011. The following, under the subheadings of October 2008 and June 2011 will summarise the applicant’s circumstances at or about and following those respective dates.
October 2008
In her statement, the applicant recorded that on a date in late October 2008 she felt tiredness and soreness across the top of my back and shoulders and into the neck to the base of my head (Exhibit A1, paragraph 9). In her claim form she also recorded her left arm was affected (T11, p.26).
In evidence the applicant said that she recalled having difficulty holding up her head and on occasions she would lean forward, rest her left elbow on her desk and hold her head up with her hand. She also moved around to alleviate pressure she felt in her neck. The applicant consulted Dr Mezhof on 23 October 2008 who has a clinic in the Southland shopping complex. He provided a certificate of incapacity for 2 days (ST77, p.331). That was the first occasion that the applicant consulted a doctor with respect to her cervical symptoms and it was her belief that those symptoms first occurred on that date.
The applicant said that her symptoms disappeared during those 2 days. However, when she returned to work, the symptoms re-emerged. She worked the following week with cervical symptoms and then consulted her treating general practitioner, Dr Janczarski, on 6 November 2008 (T29, p.130) who issued a certificate for 4 days incapacity and referred her to Mr Telermanis, a physiotherapist.
Medicare arranged for Mr Angel, an occupational therapist from Bridge Rehabilitation to assess the applicant and/or her workstation. In a report of 5 November 2008, he recorded that he recommended adjustments to the applicant’s work station by reducing the height of her chair and suggested a posture she should adopt whilst seated (ST5, p. 10-12). He noted that she tended to extend her neck when viewing the monitor increasing the tension in the muscles of her neck and shoulders (at p. 11). He then recommended that the monitor be lowered. (The date of his consultation with the applicant is not known. It would appear from the contents of the second paragraph of his report that he attended upon the applicant at her workplace after 23 October when she first had symptoms).
On 11 November 2008 the applicant resumed work at the Medicare headquarters in Melbourne. She was undertaking telephone training and work in a call centre type environment. The applicant then worked at a desk facing a computer monitor and wearing a telephone headset. She was not required to undertake any movement involving turning or twisting of her neck or shoulders nor leaning forward. She did not then have symptoms and was not consuming medication.
On 26 November 2008, Dr Janczarski issued a certificate of incapacity in favour of the applicant until 3 December 2008 (T29, p. 126). In late November 2008, the applicant commenced 3 weeks of annual leave. From 29 November 2008, she participated in the Great Victorian Bike Ride over 8 days and a distance of approximately 600 km, in which she had previously participated. She recalled that she had neck pain and stiffness during the first day of the ride only but thereafter she was symptom-free. She said she rode a cross-trainer bicycle with straight handlebars and was able to maintain a posture of looking forward only. She said she did not have to turn her head which she would otherwise have done had she been riding in traffic. On a number of occasions, the roads that she and many other persons were cycling were closed to motor vehicles.
In cross-examination the applicant said that she had paid a fee to participate in the event and it was not refundable. She did not know on 29 November 2008 whether she would be able to complete the course but was aware that a bus was available for people who needed it or who became injured. The applicant said that she spoke with Mr Telermanis about the ride but could not recall whether she had told him that Dr Janczarski had certified her as incapacitated from 26 November 2008. (In a letter dated 11 August 2011, Mr Telermanis recorded that he advised the applicant that the bike ride would be appropriate because she would have an upright posture and regular breaks (T20, p. 70)).
The applicant was at home for one week after the ride and returned to work on 15 December 2008. Her neck and shoulder symptoms resumed after a few days of working and she consulted with Dr Nguyen on 19 December 2008. His clinical file was received as Exhibit A4 and the history taken by him is as follows:
Has had neck & upper & shoulder pain last 6 wks, been seeing physio, told strained ligs, dullache discomfort, on & off, worse w prolonged sitting, better when not at the desk, a/w NIL. went back to work and then got worse again since ytday, works at Medicare on the counter, had a new chair at work & good. No similar pain B4.
The applicant returned to work after the Christmas break in early January 2009 and her symptoms soon resumed. Between January and April 2009 she worked alternating between normal counter duties and telephone duties in the back office of the Southland branch. At paragraph 14 of her statement, the applicant recorded that performing the telephone duties alleviated her symptoms and permitted her to undertake more work on the counter.
In April 2009 the applicant was directed to undertake more work on the front counter (and therefore less telephone work). By June 2009 her symptoms returned and Mr Walsh, another occupational therapist from Bridge Rehabilitation, returned to her workplace and adjusted her chair.
In August 2009 the applicant continued to suffer from cervical symptoms which she described as being worse than she experienced in 2008. She consulted with Dr Molloy at the Hampton Bayside Medical Centre on 12 August (ST61, p. 189). (The applicant decided to transfer her medical care from Dr Janczarski to Dr Molloy). This is the same clinic where Dr Marinucci practices. The history recorded by Dr Molloy at that consultation is as follows:
Recurrent periods of neck weakness and some ache occurring late in the day at work when operating keyboard at front desk. First occurred about 1 year ago and settled when moved to new role at head office on phone. Recurrent about 3 months ago after change in seat adjustment. Eventually settled with readjustment of seat. Recently has had further recurrence with more significant pain and weakness in neck across traps and in anterior neck. Settles with lying down and resting neck. Does not occur when doing other duties. No nocturnal pain. No other injuries or PHx of neck pain. No neuro Sx’s in arm. Working with Medicare for 2 1/2 years.
Initial treatment for neck strain with physio. More benefit from alt duties.
Dr Molloy issued a certificate on 12 August 2009 recommending that the applicant be removed from continual use of a keyboard until 12 September 2009. It was his opinion, and recorded on the certificate, that use of the keyboard is clearly provoking her neck symptoms (T77, p. 338).
At about this time or because of the certificate from Dr Molloy, the applicant’s work was modified. For one hour each morning and afternoon she processed claims using a keyboard and a computer in the back office. For the rest of each day she processed applications and cheque refunds to customers which were posted. The applicant recalled that her symptoms were reduced and she was comfortable, especially in the morning.
In her statement at paragraph 17 and in evidence, the applicant said that she was symptom-free over the weekend of 29 and 30 August 2009. However, when she resumed work on Monday 31 August 2009, her symptoms reappeared about 10 minutes after commencing. She visited Dr Schindler, a chiropractor in South Melbourne later that day who issued a certificate for 3 days incapacity (T77, p. 339). The applicant said that she became symptom-free during those 3 days but her pain and discomfort re-emerged when she returned to work.
The clinical notes of Dr Schindler record that the applicant did return to her clinic on 2 September 2009 (being the date that the certificate issued 3 days earlier had expired). The clinical entry against that date is much better, then felt tighter after yoga (Exhibit R1). The applicant said she could not recall giving that history.
On 30 September 2009 she was assessed by Dr Turnbull, an occupational health physician, at the request of Medicare, to determine her fitness for duty and to comment on a proposed roster which provided for rotation of duties at work. It was his opinion that the applicant should undertake the roster for 3 months and she should then be reviewed (ST13, p. 32-38; ST14, p. 39-41). Dr Turnbull noted that the applicant was then working full-time and had been rotating her duties during the previous month (ST13, p. 35). He reported that telephone work in the back office was easier for the applicant to undertake than working at her desk because she could sit and stand at will as opposed to remaining in a seated position. He also noted that the applicant had been participating in yoga. In evidence the applicant said she participated in Bikram yoga, which she said was undertaken in a heated room, involving 26 postures, each lasting between 1 and 1½ minutes with 30 seconds rest between each posture.
One of the applicant’s managers, Suzanne Driscoll, recorded in her statement prepared on 30 May 2013 that the applicant and other persons who performed similar customer service work at a desk were asked to walk to a nearby cabinet to retrieve forms when needed rather than retain forms at their desk (Exhibit R2). This had the advantage of causing persons to move from a seated to an upright position where they could walk and stretch. The applicant agreed that this information had been given to her and others and it was a practice that she adopted. She estimated that she would need to walk to a document cabinet on average about twice daily and up to 6 occasions on busy days. She would also move from the desk and walk to copy documents for customers and at the end of each day she would walk to a printer to retrieve a summary of her work for that day and a monetary reconciliation report.
In late November or early December 2009, the applicant again participated in the Great Victorian Bike Ride without adverse symptoms. She returned to work on a full-time basis and recalled that she experienced pain in her left arm. The applicant also worked on 4-hour Saturday shifts at other Medicare locations. This entitled her to have a day off during the following week, in lieu of payment for working on Saturdays.
Thereafter, the applicant continued to work at the Southland branch throughout 2010 but for a 3 month period of long service leave between May and August 2010. During that time the applicant travelled to Central America. She was backpacking and carried a 10 kilo pack. She learnt to scuba dive and surf during that trip. She said she did not have any symptoms of pain or any discomfort during that 3 month period. She resumed work with Medicare at Southland in September 2010 and thereafter worked on the front counter until June 2011. During this time the applicant worked without pain or discomfort.
In the first half of 2011 the applicant attended a local gym from time-to-time. She said that on some weeks she attended the gym on 3 occasions per week but on other weeks she would not attend at all. When she did attend, she engaged in cross training exercises which she described as the use of her arms and legs and in pump classes, which she said involved squatting, and lunging and the use of weights. On occasions, she would also engage in bicep repetitions where she would lift 5kg, being 2 x 2.5 kg weights located on each end of a bar.
June 2011
During the last week of May and the beginning of June 2011, the applicant noticed a recurring of discomfort and pain affecting her neck and upper back, which she described as having tightened significantly (Exhibit A1, paragraph 22). She was then working at the front counter and recalled that at the end of each day her pain and discomfort was relieved by resting at home. When she returned to work the following day the discomfort, pain and tightness would re-emerge during the afternoon.
On Saturday 4 June 2011, the applicant worked during the morning and had worked all of the previous week. She noticed on the Saturday morning that the top of her back and her neck and shoulders had become tight. She attended a yoga class after ceasing work that morning and recalled that the symptoms of tightness and discomfort were present before and after the class.
The applicant said that she had arranged with a friend to attend another yoga class on the following day (Sunday) but she still endured symptoms (from the previous day) and decided to cancel. Unlike her experience in the preceding fortnight, her symptoms were not relieved by resting overnight.
On Monday, 6 June 2011 the sensation of tightness and discomfort was present when the applicant awoke. She decided that she would arrange an appointment with Dr Schindler after work that day. She decided to have a hot shower because she thought it might relieve some of her symptoms. It did not and she was able to arrange an appointment with Dr Schindler that morning before work. As she was driving her car on the Nepean Highway in traffic, she recalled that when she put her foot on the accelerator, her neck and shoulders froze. She was able to stop her car at a cafe owned by some friends. She telephoned her father who arranged to collect her. The applicant then rang Ms Kuperman, who was her supervisor, and told her that she was unable to move her neck and shoulders, that she was on the way to visit her chiropractor and had been collected by her father.
Ms Kuperman completed a statement which was received into evidence (Exhibit R3). At paragraph 12 she recorded that she kept a diary where she would make notes of events that occur in or affecting the workplace. She recorded that on Monday 6 June 2011 Erin called in sick – she was doing yoga after Saturday trading and pulled her muscles on her back/neck. (A copy of that entry was annexed to her statement). She also recorded that she remembered that the applicant had been working on the Saturday morning, she then went to yoga and pulled her muscle on her back/neck and she said that she is lying flat.
The applicant said that she was aware that Ms Kuperman had made the above recording in her statement. Save that she agreed that she did work on the Saturday morning and had attended a yoga class, the applicant said that she did not tell Ms Kuperman that she had pulled muscles in her neck and back at yoga or at all. She also denied that she was lying flat. At the time she telephoned Ms Kuperman, the applicant said she was seated in her car with her father.
Dr Schindler issued a certificate on 6 June 2011 for 2 days incapacity (T77, p. 341). The applicant said following the consultation, she was unable to return home and decided to stay with a friend overnight in South Melbourne near Dr Schindler's clinic. She slept on a couch. When she woke the next morning (7 June), she was in pain and needed assistance from her friend to get up. She was taken to see a local general practitioner, Dr Mallon. He prescribed Valium which the applicant understood to be a muscle relaxant. (It was learnt during the hearing that Dr Mallon was practising as a locum. Attempts to locate him were unsuccessful. The applicant could not recall the location of the clinic in South Melbourne where he was then practising).
In her statement at paragraph 25, the applicant recorded that she was in extreme pain on the following day, 8 June 2011. She was taken by a friend to see another general practitioner near her home. The notes of that practitioner – Dr Chen – were received as exhibit R4. The doctor recorded the following history:
pt states that she did yoga on Sat and developed pain over left shoulder girdle and scapular region that night, saw chiropractor twice and it helped, pain got worse again and saw a GP yesterday and was given Valium and sample pack of celebrex but still has pain and stiffness in the area
On examination, Dr Chen recorded:
no cervical spine tenderness, left clavicle not tender, some tenderness over left trapezius
The applicant said that Dr Chen had taken an incomplete and inaccurate history. She made a cursory examination only and was rude during the consultation. She said that she did not develop pain over her left shoulder girdle and scapular region on the Saturday night after yoga. The applicant reaffirmed that she had suffered tightness across her shoulders and neck over the weekend; on Monday morning she had discomfort and pain across the shoulders and neck and a sensation of her neck and shoulders being frozen when driving to see Dr Schindler.
The applicant said she consulted with Dr Mallon and Dr Chen, despite Dr Molloy being her doctor, because he was always heavily booked.
On Thursday 9 June 2011, arrangements had been made for the applicant to attend state headquarters for training. The applicant recorded in her statement (at paragraph 26) that prior to leaving home that morning she notified Ms Kuperman that whilst she would attempt the training program, it was unlikely that she would be returning to work later that day. Before leaving home, the applicant consumed Panadeine Forte (which had been prescribed by Dr Chen), Valium and some anti-inflammatory medication.
The applicant travelled into the city by train but by the end of the journey she was in severe pain and in tears. She was assisted to the workplace by a friend (who coincidentally was a passenger on the train). She was observed to be in a distressed state at headquarters and was escorted into a small room where she rested for about 2 hours, having also consumed additional medication. She was then given a taxi voucher and left the premises.
On the way home she asked the taxi driver to stop at the Alfred Hospital where she was attended by a doctor in the Emergency department. Oxycontin and Endone medication were prescribed and she was given a certificate of incapacity until 13 June 2011.
On 14 June 2011, the applicant attended the Medicare office at Southland but was then suffering from stiffness in her neck. Ms Kuperman directed her to attend her doctor and obtain a certificate. She consulted Dr Marinucci later that day. He made arrangements for the applicant to have a CT scan on 16 June 2011. He also issued a certificate of incapacity until 17 June 2011 (T77, p. 342). The CT scan revealed degenerative changes at C5-C6 and the presence of a disc protrusion at that level (ST19, p. 49).
Dr Marinucci consulted with the applicant again on 18 June 2011 and issued her with a certificate for lighter modified work from 20 June until 4 July 2011. The applicant resumed work on 20 June and performed light back office type work and also attended head office for some training. On 21 June she attempted some front counter work but experienced severe upper back and neck pain. The applicant has not worked at the front counter, since that day.
In early July 2011, the applicant was approached by Mr Walsh, formerly of Bridge Rehabilitation. She was then in severe pain and consuming prescribed medication. On 19 July she lodged a claim for compensation (T11, p. 25-32). Later in July Mr Walsh met with the applicant and arrangements were made for her to undertake some telephone work in the back office at Southland.
Dr Marinucci arranged for the applicant to have an MRI examination which was undertaken on 4 November 2011. The radiologist was aware of the previous CT finding of a C5-C6 disc prolapse. The MRI revealed a large focal left-sided disc extrusion at C6‑C7 and substantial cord and left C7 nerve root compression. The radiologist recorded that …This lesion is no doubt responsible for the patient's symptoms ... Consideration should be given to surgical referral (ST31, p. 83).
Dr Marinucci later referred the applicant to the Neurosurgery Department at the Alfred Hospital for management. She was placed under the care of Professor Rosenfeld who reported in April 2012 that a nerve block (neuroforaminal injection into the C7 nerve root) did not provide lasting pain relief. He recommended an anterior cervical discectomy and fusion (ST49, p. 138). At review on 9 July 2012 it was decided that any surgical intervention should be deferred (ST59, p.165). The applicant accepted that advice.
In approximately September 2012, the applicant attempted a gradual return to work under a plan which involved undertaking telephone duties and standing at a work station. The symptoms persisted. Later in 2012, the applicant was given the opportunity to return to work as a customer liaison officer with Medicare at its office in Bentleigh. The plan was to work 2 hours per day over 3 days per week with the intention to gradually increase to 5 days per week. The applicant has not progressed beyond 3 days per week.
In March 2013, the applicant commenced a pain management course at the Caulfield Pain Management Clinic. Since then, she has continued working at the Centrelink office in Oakleigh for 2 hours per day over 3 days per week, scanning and filing documents and delivering items to be dispatched by post to a local post office. She is also engaged in a disability support course at the Kangan Institute of Tafe for one day per week. The applicant said that she did not regard herself as having any future as an employee with Medicare and she hoped that a qualification following completion of this course would give her greater work opportunities. She is unable to complete course work using a computer at home and has been given a 6-month extension to complete the work.
The applicant said her pain has been greater after June 2011 than previously. She consumes Panadol-osteo, Endep and Endone. She has ceased yoga, bike riding and no longer attends a gym.
Damien Marinucci
Dr Marinucci first consulted with the applicant on 14 June 2011. Having obtained a history, he made immediate arrangements for her to undergo CT scanning at the Alfred Hospital, 2 days later, on 16 June 2011. He attended the applicant from time-to-time after that procedure and in November 2011 arranged for her to return to the Alfred Hospital for an MRI scan.
Dr Marinucci also referred the applicant to the neurosurgery department at the Alfred Hospital where a cervical fusion was considered. At that time, the applicant presented to him with:
…significant pain and stiffness in her neck…. intermittent pins and needles or burning pain down the arm…made worse by prolonged postures.
It was his opinion that her pain:
…was worsened by her duties at work at the time and she was fairly limited in her home activities as well for the same reasons (Transcript of 4 June 2013, p. 4).
In cross-examination, Dr Marinucci said that on the occasion of his first consultation with the applicant on 14 June 2011, he did not have a history of the applicant participating in a yoga class on 4 June with subsequent muscle tightness over the next 2 days nor a history of a freezing or locking sensation together with pain across her neck and shoulder whilst driving her car on Monday 6 June 2011.However, he did obtain a history of increasing neck and upper back pain over the previous weeks, having attended a chiropractor on Monday, 6 June 2011 and subsequently attending 2 other general practitioners and the Alfred Hospital in that same week.
Dr Marinucci was also aware that the applicant consulted with Dr Molloy on 29 June 2011 who then recorded in the clinical notes, having apparently observed the report of the CT scan, that despite the presence of a disc protrusion at C5-C6, there was no nerve compression. Despite that entry, Dr Marinucci said that the supine posture of a patient during CT scanning may produce a different result to a patient being in an erect posture during MRI were a nerve is compressed by the weight of the patient's head. He said it was preferable to interpret radiology on the basis of clinical findings (Transcript, p. 9). He was also satisfied that the MRI which revealed a significant disc prolapse at C6-C7 indicated that an interpretation of the CT films of a protrusion at C5-C6 was an error. He said it would be difficult to determine the level of prolapse, with any degree of accuracy, in the absence of an MRI which, in his opinion, produced a superior result than a CT scan. Additionally, he said that symptoms originating at a prolapse at C5-C6 and C6-C7 overlapped and could easily be attributed to prolapse at either level (Transcript, p. 12).
Dr Marinucci was asked to comment on his clinical entry of 27 July 2011 that an examination of the neck revealed a good range of motion. An entry on 5 August 2011 recorded that she again had a good range of motion, but there was a minor reduction with extension and flexion (ST61, p.61). He agreed that those entries might indicate a change in her presentation but in his experience, persons having similar neck injuries as the applicant, have symptoms that tend to fluctuate and persons have some good days and some bad days, so this is consistent with her description of symptoms and the nature of the problem (Transcript, p. 10).
Dr Marinucci was also asked to comment on an entry he made at consultation with the applicant on 28 October 2011 namely, has a lot of tingling in left arm since last seen (ST61, p. 182). He dismissed the suggestion that was the first occasion symptoms of that type had been reported to him. He said on reflection, he had received a history in similar terms previously and the reason he recorded it on 28 October 2011 was those symptoms, on the history he then obtained, had been occurring more consistently (Transcript, p. 11).
David Brownbill
Mr Brownbill is a consultant neurosurgeon who examined the applicant on 7 July 2012 at the request of her solicitors. He prepared a report on 19 July 2012 following that consultation (Exhibit A3).
Mr Brownbill had examined the MRI films taken in November 2011. He was also aware that a previous CT scan had reported degenerative changes at C5-C6. It was his opinion that an MRI scan is a definitive investigation, it is more sensitive than a CT scan and a surgeon would not operate without MRI films (Transcript of 4 June 2013, p. 16). It was his opinion that the applicant's cervical lesion is located at C6-C7. He said both the CT and the MRI demonstrated the presence of a disc protrusion. The MRI much more reliably and accurately demonstrated the presence of it at the C6-C7 level. He said it would be very difficult clinically and sometimes bordering on impossible to determine the level of referred symptoms without radiology. He said it would not be uncommon, based on his experience, to be 1 or 2 levels out in a clinical determination of the precise level of referred pain. He said he would place no reliance on a finding made by a practitioner, including a physiotherapist or a chiropractor, who determined that the applicant had symptoms indicating a lesion at C5-C6 (Transcript, p. 15-17).
In cross-examination, Mr Brownbill was informed of an opinion expressed by Mr Telermanis, the physiotherapist who in November 2008 reported that the applicant had a cervical strain at the C2-C3 level (T4, p. 12). He said he would not place any emphasis on that opinion. He said it was likely that the applicant was tender over her cervical spine and she probably had restriction of movement. He said it is well-known that when a person suffers injury, surrounding muscle may spasm as a protective mechanism. The site of the spasm may be confused with the site of the strain, neither of which necessarily points to the site of injury. Nonetheless, he did concede that the reported presence of cervical strain may not necessarily indicate the presence of disc pathology but rather it could be an indication of the presence of muscle strain only.
Mr Brownbill had not obtained a history of the applicant participating in the Great Victorian Bike Ride in 2008 or 2009. He said if the applicant had ongoing severe neck pain he would not have expected her to have been able to participate. However, if her pain fluctuated, it was possible that she would be capable of riding. When he was informed that the applicant participated in the ride in 2008 during a time when she was certified as totally incapacitated by her general practitioner for work, he said he may not necessarily have agreed with a finding of total incapacity. In his opinion, if the applicant had fluctuating symptoms, she may have been incapacitated for certain forms of employment only which would not necessarily preclude her from a long-distance bike ride. On balance, he said with fluctuating pain or an improvement in her symptoms, he would not have been surprised that the applicant was capable of riding a bike.
Mr Brownbill was not aware that the applicant had participated in yoga. He was not familiar with Bikram yoga nor the 26 postures apparently adopted as part of its process. It was his understanding that yoga, in general terms, was a gentle exercise that enabled pain relief. Additionally, he was not aware that the applicant had travelled overseas for 3 months in 2010 and had carried a 10 kg backpack. He said a backpack has straps over a person's shoulders and is unlikely to cause any strain on the person's neck.
Mr Brownbill said the applicant had degenerative changes in her cervical spine. In his experience, persons with a similar condition suffer fluctuating symptoms. They could also enjoy long periods where they are symptom free. He said symptoms could emerge without any precipitating cause or incident. When pressed on this issue, he said there does not need to be any frank injury or aggravation to cause the emergence of symptoms which had previously been dormant.
The applicant's circumstances commencing on Saturday, 4 June 2011 and the subsequent symptoms, set against a preceding period of 6 to 9 months being symptom-free was of no surprise to Mr Brownbill. He said that history was consistent with the overall fluctuations that do occur with previously aggravated degenerative changes in the cervical spine. He said the fluctuations may occur on a day-to-day basis, they may be six‑monthly, they may even be a yearly basis that those symptoms will come without obvious cause (Transcript p.29).He said he had no reason to change the opinion expressed in his report at page 5, namely:
Noting the onset of neck discomfort in the described work activities with repeated neck twisting/flexion which would recur in a fluctuating manner with similar repeated actions and with resolution when she was performing work duties without those actions, I consider that on probability those described work activities have been a significant contributing factor to the demonstrated cervical intervertebral disc derangement (perhaps based on some pre-existing asymptomatic cervical spine degenerative change).
Suzanne Driscoll
Ms Driscoll was the applicant's manager at the Medicare office at Southland between 2007 and 2010. She currently works with the applicant at the Centrelink office at Oakleigh.
In a statement signed on 30 May 2013 (Exhibit R2), Ms Driscoll recorded her recollections of the applicant's complaints of pain and her absence from time-to-time from the workplace. She also referred to the restrictions placed upon the applicant, the rotation between counter and telephony work, the involvement of an external consultant occupational therapist (Kevin Walsh) and her claim for compensation.
In paragraph 6 of her statement, Ms Driscoll referred to a complaint of back pain being responsible for incapacity between 23 and 24 October 2008. She supported that belief by a Managing Attendance Action Plan (action plan) dated 12 May 2009. That document was appended to a statement of Ms Kuperman, who later gave evidence and who succeeded Ms Driscoll as the manager at Southland. Ms Driscoll said the entry in the action plan was based on a diary note she made when the applicant provided the reasons for incapacity on those days.
On 23 October 2008 the applicant consulted Dr Mezhov who had a clinic in the Southland shopping centre. She attended him because of pain in her shoulders, neck and upper back (Exhibit A1). His certificate of incapacity for those days does not record the reasons for the applicant’s attendance (ST77, p. 331). In the action plans, under the sub‑heading of Known factors impacting on attendance is the entry saw back against the dates 23-24 October 2008. (Neither party called Dr Mezhof and the T-documents do not contain a report from him or his clinical records).
Ms Driscoll recorded at paragraph 17 of the statement that there was an occasion in 2009 where the applicant was observed lying on the floor, apparently because she was attempting to relieve her pain. She recorded that she regarded the applicant as exposing other staff to the risk of tripping over her and she asked her not to lie on the floor. In cross-examination, Ms Driscoll agreed that the applicant had been lying in the corner of a back office away from foot traffic. She also agreed that no other staff member had complained about the applicant occupying that position or the risk of tripping. The applicant had said earlier, when giving her evidence, that there were occasions when she did lie on the floor during a lunch break, in the corner of the lunch room, which was out of the way of foot traffic.
Ms Driscoll also recorded in her statement (at paragraph 18) that there were occasions where she observed the applicant lying across two office chairs when completing telephone work in the back office. She approached the applicant about that posture because she regarded it as dangerous. She said she thought that the applicant was at risk of falling from the chairs. The applicant had said earlier that she used two office chairs when undertaking telephone work, by sitting on one and resting her legs on another. She said this posture did relieve her of back and neck pain. She ceased that practice after she was approached by Ms Driscoll.
Ms Driscoll also recorded in her statement that the applicant did not indicate the site of the pain, each time I asked the pain was in a different area. Despite that recording, she said she accepted that the applicant did have pain and discomfort in her neck, shoulders and back, which had also been the subject of discussion between her, the applicant and Kevin Walsh (who had also provided her with reports).
Margarita Kuperman
Ms Kuperman was the manager of the Medicare office at Southland from 16 November 2010. She continues to occupy that position. She completed a statement which was received into evidence as Exhibit R3 to which a number of documents were also appended.
Ms Kuperman said the Southland office of Medicare was the busiest office in Australia and at 6 June 2011 it had 22 employees. She said that she relieved other staff members on the front counter during lunch time or if an employee was absent.
Ms Kuperman received a telephone call from the applicant on Monday, 6 June 2011. This was the subject of intense examination.
She said she made notes of the discussion and recorded it in her diary, either during the discussion or later. In her statement (paragraph 12), she recorded that it was her usual practice to record the discussion whilst it was taking place. In cross-examination, she said that if an employee calls her during the morning and if the office is busy, she would make a quick note. She said she did not recall when she made the diary entry of 6 June 2011. She said she had no memory of making the entry but usually it was done straight away.
Appended to Ms Kuperman’s statement was a photocopy of the page of her diary of 6 June 2011. The handwritten entry appearing on that copy is in the following terms:
Erin called in sick – she was doing yoga after Saturday trading and pulled her muscles on her back/neck.
On 12 July 2011, Ms Kuperman completed a statement as the applicant's manager in response to the claim for compensation which had been made a few weeks earlier. Relevantly, at T12, page 33, Ms Kuperman made the following entry:
Erin called in sick on Monday 6 June 2011 and said that on Saturday she went to the gym and while doing Yoga, she pulled her back muscle and had difficulties sleeping, so will not be able to come to work as she did not sleep well.
In her statement at paragraph 12, Ms Kuperman recited the entry made in her diary on 6 June 2011 and also recorded:
I remember she said that after working on Saturday she went to yoga and pulled her muscle on her back/neck and she said that she is lying flat.
Ms Kuperman said that she would have referred to her diary, and relied on her memory, when completing the statement on 12 July 2011. She said she would have been busy on 6 June and on 12 July she had the chance to write what did happen. In response to the reasons for her recording at paragraph 12 of her statement that the applicant was lying flat, Ms Kuperman said that the applicant had told her, during the telephone discussion on 6 June, that she was lying on the floor and she had imagined that she was then lying on the floor at her home. She said she did not think that it was necessary to record in her diary on 6 June that she was lying down. Ms Kuperman said that she had no recollection of the applicant telling her during the discussion on 6 June that she was then on her way to consult with her chiropractor.
At paragraph 15 of her statement, Ms Kuperman recorded that she had observed the applicant stretching by lying on the floor during a return to work programme in September 2011. She recorded that she discouraged the applicant from doing that because of Occupational Health and Safety risks, including that there might be staples or insects on the floor or someone may trip over her. Later in the same paragraph she recorded, I did not like her being on the floor, because of OH&S reason (sic).
Ms Kuperman was notified that the applicant had not said in evidence that she was lying down when she rang the office on 6 June 2011 nor had she told Ms Kuperman during that discussion that she was then lying down. Ms Kuperman rejected the suggestion put to her that her memory of the telephone discussion of that date was clouded by her resentment of the applicant lying down, at work, as she recorded in her statement.
When it was put to her that the applicant had never said in evidence or elsewhere that she pulled a muscle after yoga and had not said that to Ms Kuperman during the telephone discussion on 6 June 2011, she said that she had a full recollection of speaking with the applicant on that date and that she had then told her that she pulled a muscle in her neck after Saturday trading.
Appended to the statement of Ms Kuperman were a number of work rosters. She was asked to explain why those documents were appended to her statement. She said the documents were intended to demonstrate when persons had taken flex leave, holidays and other leave. When she was asked whether she thought those documents were important, she said she had been asked, by a solicitor with Comcare, to append the documents to her statement. She said that it was her belief that the documents were relevant but she did not know why.
Ronald Haig
Mr Haig is a consultant orthopaedic surgeon who examined the applicant at the request of the respondent on 17 August 2011 and prepared a report dated 18 August 2011 (T21, p. 71-77). He also provided a supplementary report on 21 December 2012 (Exhibit R7). Mr Haig was called as a witness by counsel for the respondent. He was not asked any questions in examination-in-chief.
In cross-examination, Mr Haig said that he had read the expert witness code of conduct and agreed that he was bound by it. In reaching the opinions expressed in his reports, he said that he had made all necessary enquiries and considered issues which were relevant to forming the opinions that he expressed.
Mr Haig reported that he did not have a diagnosis nor did he recognise any causative factors (T21, p. 74). He reported that the applicant's symptom complex was bizarre and that there was embellishment of her symptoms (T21, p. 74). Later he reported that he did not consider there is any causative relationship between her current complaint and her employment with Medicare Australia (T21, p. 76).
He said he did not believe that sitting at a desk can cause any symptoms, in short (Transcript of 5 June 2013, p. 36). He agreed that he did not make any enquiry into the applicant's day-to-day activities when working at Medicare nor did he enquire into her physical actions when working. He made no enquiry into the type or layout of her workstation, her postures or the hours that she worked. He denied a suggestion put to him that the history he had taken was deficient. He said it was adequate in the sense that she worked in a Medicare office and office work is office work and I have a fair understanding of what that is, what it involves (Transcript, p. 36-37).When he was pressed on the validity of the opinions that he expressed concerning the association between the applicant’s symptoms and her employment, Mr Haig agreed that he did not take any history of her employment activities, other than beyond the fact that she had a desk job… (Transcript, p. 39).
Mr Haig prepared his supplementary report (Exhibit R7) after he was supplied with a number of documents by the respondent's solicitors under a covering letter dated 28 November 2012. Specifically, he was advised of the finding by MRI in November 2011 of the presence of a C6-C7 disc extrusion. He was asked to provide a specific diagnosis, the causation factors for this diagnosis and whether the CT finding of a C5-C6 prolapse and the C6-C7 extrusion should be considered as separate injuries (Letter of 28 November 2012 – Schedule of Questions 1 and 2). Mr Haig reported that he had read and considered the documents attached to the letter to him 28 November. He reported I see no reason to change my opinion as expressed in my report to you dated 18 August 2011.
Mr Haig said that he did not see the MRI films. However it was his opinion that the C6‑C7 pathology, not having been reported by the CT scan, was something new arising between the time the CT scan had been performed and the time the MRI scan was performed in November 2011. Without acknowledging that the C6-C7 protrusion may have been present at the time of his examination, Mr Haig conceded that the applicant may have had symptoms from that pathology at that consultation. He regarded the C5‑C6 bulge to be minor but the C6-C7 pathology to be significant (Transcript, p. 42).
He said the symptoms from which the applicant complained being pain, restriction of movement, stiffness and muscle spasm would be consistent with C6-C7 pathology. He agreed that a person who suffers disc pathology might endure a fluctuating course of symptoms and the history given by the applicant of attending a number of doctors, including treatment by neurosurgeons at the Alfred Hospital, was typical of fluctuating pathology (Transcript, p. 44-45).
Whilst acknowledging that the applicant had complained of cervical symptoms for many years for which she had been treated and observed by medical practitioners, including specialist neurosurgeons, and had been assessed on a medico-legal basis by Mr Brownbill, (who had access to the CT and MRI films), Mr Haig did not regard himself as being in a poor position to formulate an opinion of contribution to the applicant’s injury by her employment. He said even with the benefit of hindsight and learning the opinions expressed by Mr Brownbill and the doctors at the Alfred Hospital, he did not believe that the applicant’s employment was responsible for her cervical pathology (Transcript, p. 46‑47).
Mr Haig accepted that her employment may have exacerbated her symptoms but it was not causative. He said that physical activity of a more violent type, which he described as prolonged bicycle riding, working out at the gymnasium, was more likely to cause her cervical pathology (Transcript, p. 47).
He disputed the evidence of the applicant that she was able to ride in the Great Victorian Bike Ride without rotating her neck. He said that cyclists are constantly looking round to see who’s behind them or next to them (Transcript, p. 48). Although he had not observed the applicant riding or made enquiries about her technique, he said he was familiar with bike riders by him having observed riders in the Tour de France (Transcript, p. 47-48).
Conclusion and Reasons for Decision
Compensation is payable to a person under the s 14 of the Act if injury is suffered and results in incapacity for work. The enabling connection between employment and injury is found at s 5A of the Act, which provides that injury means a disease or a physical or mental injury (or the aggravation) arising out of, or in the course of the employment.
Section 5B of the Act defines disease as either an ailment or the aggravation of an ailment to which there was a contribution to a significant degree by the employment. Sub-section (2) sets out a number of matters that may be taken into account in deciding whether the significant degree threshold is satisfied, being the duration, nature and particular tasks involved in the employment, whether there was any predisposition, activities unrelated to employment and any other matter affecting the applicant's health. The expression significant degree is defined at s 5B(3) as a degree that is substantially more than material. I will return to this issue later in these reasons.
Both the delegate at first instance and the review officer found that there had been no significant contribution to any ailment by the employment. Accordingly, the applicant's claim for compensation was refused pursuant to s 14 of the Act.
The reviewable decision attracted criticism from Mr Carey. It was submitted that the applicant had made a claim for compensation. That application clearly sought a payment for incapacity and a payment or refund of the cost of medical or like treatment. Those two entitlements are found in s 16 and s 19 of the Act, respectively. To do no more, in this application, than to set aside the decision under review, would not remedy the deficiency in that decision. Accordingly, there should be a specific finding of entitlement to weekly payments and a refund or payment of the cost of medical or like treatment.
That submission has merit. On the material before me, if a determination of the respondent’s liability is made in favour of the applicant, I should also determine and define her entitlement to compensation. That would be the correct or preferable decision, because it responds to the applicant’s claim (which was for compensation). It would also avoid the risk of future litigation if liability, only, is found.
The applicant claimed neck pain with associated C5-C6 disc protrusion in her compensation claim form completed on 9 July 2011 (T11). At that date, she had only undertaken a CT scan. It was not until 4 November 2011, when the applicant had an MRI, that the presence of a C6-C7 left sided disc extrusion was found. The radiologist, Dr O’Donnell, was also of the opinion that the pathology at C6-C7 was causing a significant compression of spinal cord (ST31, p. 83).
Mr Brownbill described the pathology at C6-C7 as intervertebral disc derangement and prolapse. Both he and Dr O’Donnell were satisfied that the injury at C6-C7 was responsible for the applicant's symptoms.
There is no real or practical distinction to be drawn between the descriptions of the applicant’s cervical injury as advanced by the radiologist and Mr Brownbill. The distinction is in the nomenclature only. Additionally, there is no dispute amongst the doctors that the applicant has a lesion at C6-C7.
The evidence of Mr Haig was disappointing. I have found it impossible to give any weight to his opinion that there is no relationship between the applicant’s work and her symptoms when he admitted, save that he understood the applicant worked at a desk, that he made no enquiry into the type of work she performed, the composition and construction of her workstation, the posture that she adopted when working, the hours that she worked nor the average number of customers that she attended each day. Despite that absence of history or indeed any intent on his part to enquire or be informed of the applicant’s work, he initially concluded that the injury believed to be a C5-C6 disc protrusion had no relationship to her employment. Later he learnt that a finding was made on MRI of C6-C7 pathology. Although then satisfied that the applicant’s symptoms could be explained by the presence of that injury, which would also be likely to fluctuate, he remained satisfied that the applicant’s work would not be causative of her pathology. He reached that opinion because he was satisfied that the prolapse at C6-C7 was a new phenomenon occurring after the CT scan had been performed.
The opinions expressed by Mr Brownbill and Dr Marinucci are sound and to be preferred.
Dr Marinucci has been treating the applicant since March 2011. He has consulted with her on many occasions. He referred her for CT scan and MRI and later to the neurosurgeons at the Alfred Hospital. He also referred her for pain management at the Caulfield Pain Management Clinic. Dr Marinucci has had the opportunity to assess and observe the applicant over two years. He made an enquiry into the nature of her employment and reported that a relationship existed between the posture she adopted whilst working and the exacerbation of her neck symptoms. He was satisfied that she could undertake modified work without heavy lifting (Exhibit A2, p. 4 – 5).
Mr Brownbill is a neurosurgeon with sound practising credentials. He was impressive in his analysis of the clinical pathology evident from the CT scan and the MRI. He said that only an MRI can portray an injury with such precision to prompt a surgeon to operate. That is to say, no surgeon would operate on the results of a CT scan only. He explained how symptoms could be interpreted as emanating from adjacent levels. He, together with Dr Marinucci, also explained that a supine posture during a CT scan would produce a different result to an erect posture during an MRI scan because the weight of the person’s head was likely to demonstrate nerve impingement and accuracy of identifying the site of a prolapse.
Whilst the three doctors who gave evidence differed as to the aetiology of the applicant’s injury, there was consistency amongst them that the C6-C7 prolapse was likely to cause symptoms which would fluctuate.
The applicant was questioned about her capacity to undertake a backpacking holiday over three months in Central America (where she also learnt to scuba dive and surf) and her ability to participate in the Great Victorian Bike Ride on a number of occasions when she had also been complaining of cervical symptoms which interfered with her capacity to work and on occasions, totally incapacitated her.
An examination of her posture, whilst carrying a backpack and riding a bicycle, when explained by Mr Brownbill, satisfies me that there is no inconsistency between her symptoms at work and the absence, or very much reduced symptoms, when away from the workplace.
Mr Brownbill explained that a backpack has straps which secure the pack to the person's body across their shoulders. In his opinion, that would not cause any cervical symptoms. He was also satisfied, having received an explanation that the applicant rode a cross‑trainer bike with horizontal handles and adopted a posture of looking forward only (because roads were often closed and there was no vehicular traffic) that there would not be any exacerbation of symptoms.
Mr Haig made an assumption that when riding her bike, the applicant would be looking around based on his experience of observing bike riders during the Tour de France. He did not make any enquiry of the applicant about any modified posture or protocols adopted by cyclists when riding, often on closed roads during the Great Victorian Bike Ride.
On the basis of an average of 100 customers per day and having regard also to the particular cervical movements undertaken by the applicant in processing each customer's application, it is not difficult to comprehend the symptoms suffered by the applicant and the injury apparent on radiology, was connected with her work. That she was mainly relieved of symptoms when away from work adds weight to this conclusion.
A feature of this review was the absence of the applicant’s symptoms between September 2009 and June 2011. An examination of the medical and like records indicates that the applicant consulted with Dr Schindler, the chiropractor, on 24 September 2009. She next saw Dr Schindler on 6 June 2011. Within that time there are no records of the applicant attending any medical or like practitioner for complaints of upper back, neck or shoulder pain. Within that period of time the applicant travelled overseas for 3 months. She otherwise worked on the front counter at the Southland branch of Medicare.
On Saturday 4 June 2011, the applicant worked the entire shift of about 4 hours. In the preceding week the previous symptoms of neck and upper back tightness re-emerged. At the end of each work day the applicant rested and was able to return to work the next morning. The return of those symptoms is consistent with the fluctuating nature of her degenerative cervical disease. I make that finding, as a fact, and do so, especially upon the weight of the experience and evidence of Mr Brownbill.
The applicant attended a yoga class after work on 4 June 2011. When she left work she had symptoms of tightness and discomfort in her neck and upper back. The applicant participated in the yoga class intending to become free of those symptoms. She completed the class but her symptoms persisted. She had arranged to return to yoga the following day with a friend but on that day her symptoms persisted and she elected to rest at home. Little is known about the 26 postures undertaken in a Bikram yoga class, save that one involves standing unsupported on one leg for up to 1 ½ minutes. There is no evidence that any other manoeuvre was responsible for the cervical and upper back tightness persisting after the class concluded. There is no evidence that the applicant pulled muscles in her back and neck during that class as was later alleged and reported by Ms Kuperman.
On Monday 6 June 2011, the applicant awoke with continuing symptoms and intended to make an appointment to see Dr Schindler after work that day. She thought a hot shower would relieve some of the symptoms but when that relief was not achieved, she was able to secure an appointment with Dr Schindler that morning at about 7:30am. Whilst driving to her clinic in South Melbourne, the applicant suffered what appears to be a severe muscle spasm and was unable to continue the journey alone. She contacted her father who eventually was able to take her for treatment.
The events on and after 4 June 2011 were of considerable focus in this review. At this stage, I will indicate that I am satisfied and find as a fact that the applicant was an honest witness who, contrary to the opinion expressed by Mr Haig but consistent with the opinion expressed by Mr Brownbill, was a person who did not embellish her symptoms.
I am satisfied that on the morning of 6 June 2011, the applicant did ring Ms Kuperman and advise that she would not be attending work that day. I am satisfied that that telephone call was made by her from her motor car after she had pulled over and was unable to continue driving because of the muscle spasm. I thought the evidence of Ms Kuperman recorded earlier was wholly unsatisfactory. Three different versions of the telephone call were given by her in evidence. One version was said to be recorded at or following the telephone discussion with the applicant on the morning of 6 June. Another was recorded in a manager’s statement for compensation purposes on 12 July 2011 (5 weeks later). The third version was recorded at paragraph 12 in Ms Kuperman’s statement prepared in May 2013 (Exhibit R3).
Being satisfied as I am that the applicant is a witness of truth, I am satisfied and find as a fact that she did not pull muscles in her back and neck at yoga on 4 June nor did she give that information to Ms Kuperman. I am satisfied that the applicant commenced the yoga class and completed it with symptoms of neck and back tightness. I am also satisfied that those symptoms endured for the remainder of 4 June and the following day, sufficient to cause the applicant to rest and not participate in another yoga class which had been planned.
The applicant consulted with Dr Schindler on 6 June. She also consulted with 2 doctors during that week and attended the emergency department of the Alfred Hospital. On each occasion she presented with symptoms of severe pain. On each occasion she was also prescribed painkilling medication. The frequency of her attendance on medical practitioners suggests that she was then in pain and distressed. The extent and severity of her discomfort was no less evident on Thursday, 9 June when she was sent home from work with a taxi voucher. On the way home she asked the taxi to stop at the hospital where she sought and received treatment.
One of the doctors consulted during that week was a locum in a South Melbourne clinic which the applicant cannot now identify. Another practitioner was Dr Chen. The history recorded by her is riddled with error and is inconsistent with the evidence given by the applicant in this review. The recording of the applicant attending a yoga class on Saturday (4 June) is correct. However, she did not develop pain over the left shoulder girdle that night; consulting with a chiropractor did not help and she did not see her GP on the day prior to consultation.
The applicant came under the care of Dr Marinucci on 14 June 2011. He continues to treat her. Her treatment subsequently including referral for CT and MRI scans, referral also to the Alfred Hospital and ongoing treatment at the Caulfield Rehabilitation Hospital have all been at his initiation.
Initially, a C5-C6 prolapse was reported in the CT scan but a more precise finding was made at MRI, 5 months later, of a C6-C7 extrusion and nerve root impingement. I am satisfied that the evidence of Mr Brownbill on this issue especially, was sound and is to be preferred. As a fact, I am satisfied that the C6-C7 extrusion was responsible for the applicant’s symptoms before it was identified radiologically and subsequently. I dismiss, in the absence of any evidence, that that lesion occurred as a new event between the date of the CT scan and the date of the MRI. I am satisfied and find as a fact that the C6-C7 pathology did exist in June 2011 at the time of the CT scan but was not then depicted. I am also satisfied that it has been responsible for the incapacity and medical treatment subsequent to June 2011.
The respondent submitted that the applicant had suffered 3 distinct injuries occurring:
(a)in November 2008 which resolved and permitted the applicant to participate in the Great Victorian Bike Ride;
(b)in August 2009 when she was incapacitated between 31 August and 2 September 2009; and
(c)on 4 June 2011, during the yoga class which was responsible for incapacity subsequent to 6 June 2011.
The submission with respect to the three injuries as recorded above was made on the basis that the applicant suffered an aggravation or an exacerbation of an underlying cervical disease. On the basis that Mr Haig was of the opinion that the C6-C7 finding on MRI might amount to the employment having made a minor contribution to the applicant’s symptoms, it was submitted on behalf of the respondent that the decision under review should be affirmed because nothing points to the employment having made any significant contribution.
It was also submitted that the yoga class in which the applicant was a participant on 4 June 2011 made a significant contribution to the cervical injury and/or the aggravation of disease and that event was therefore responsible for the subsequent incapacity. Accordingly, the respondent was not liable to pay compensation.
With respect, I dismiss the respondent’s contentions. There is no evidence in support of them.
At the risk of being repetitious, the applicant did suffer from degenerative cervical disease. From time-to-time she suffered discomfort, tightness and pain which were manifestations of that underlying disease and was consistent with the opinions expressed by Mr Brownbill and Dr Marinucci of the applicant experiencing fluctuations, of varying intensity.
The manifestation of symptoms in November 2008 did not resolve in order to permit the applicant to participate in the Great Victorian Bike Ride. She had been certified as incapacitated for work at about that time but following a consultation with Mr Telermanis, her physiotherapist, it was decided that she could participate in the ride. She did participate without discomfort except for the first day.
In August 2009 the applicant did suffer the manifestation of the underlying disease, by the emergence of symptoms which caused her to consult Dr Schindler and be certified as incapacitated for three days. That is consistent with the fluctuating characteristic of the degenerative disease. The applicant had not attended a doctor for treatment in the preceding eight months (Dr Nguyen on 19 December 2008).
On 4 June 2011 the applicant worked a Saturday shift and had experienced symptoms of the underlying disease in the previous week. She left work with those symptoms and participated in the yoga class. The symptoms persisted after the class. They continued on the following day and on 6 June, the applicant suffered the muscle spasms while on her way to consult Dr Schindler, before commencing work that morning.
There is no evidence that the applicant suffered an injury as a consequence of the yoga class nor is there any evidence that the applicant suffered any exacerbation or aggravation of the underlying disease, as a consequence of the yoga class. It follows that the incapacitating effects of the cervical disease can be properly found as another episode of fluctuation of the disease process, although obviously the consequences have been serious and far worse than previously experienced.
I suspect that had Ms Kuperman accurately recorded the applicant's conversation with her on 6 June 2011 and had Mr Haig been more diligent in making proper enquiries into the nature of the applicant’s work, the decision that was under review in this application may not have been made.
Prior to the Act’s amendments in 2007, the contribution to injury by employment was by a material degree. Subsequently, the contribution, as a consequence of the amendments is by a significant degree. That expression is defined as meaning a degree that is substantially more than material (s 5B(3)). Additionally, the word degree meaning a step or stage of ascending or descending scale (Macquarie Dictionary 5th edition) points to a level of contribution only. The relevance of s 5B(2) therefore becomes apparent by permitting consideration of matters that may be taken into account when deciding whether employment contributed by a degree of significance.
The employment does not need to be the sole or the most important factor. An evaluative threshold remains, albeit of contribution more proximate to the employment than existing before 2007.
In the Full Federal Court decision of Comcare v Canute (2005) 148 FCR 232 French J (as he then was) and Stone J, concluded at [67] that an employee need not demonstrate that the employment caused the disease or that it was the most important factor. The word material ... imposes an evaluative threshold below which a causal connection may be disregarded.
On the basis that the word significant means something substantially more than material, the connection with employment must therefore, be greater than the threshold discussed in Canute. But it does not mean a causal connection. The word cause is not within definition at s 5B(3). The presence of the word contributed in s 5B(2) supports the conclusion that a causal connection is not required.
The matters recorded in s 5B(2) of the Act may be considered in deciding whether the contribution to disease has reached the requisite level of significant degree. Those matters are not exclusive and other matters may be taken into account.
With respect to the matters specifically recorded at s 5B(2) of the Act, I am satisfied that at June 2011, the applicant had been engaged by Medicare for about 4 ½ years. Throughout most of that time she had worked as a customer service employee, at a desk. The nature of that employment exposed her to repetitive cervical movements on each work day whilst serving an average of 100 customers. The description of her work and the frequency of those cervical movements when attending to each customer points to the aggravation, or exacerbation of pre-existing cervical disease. I am satisfied that the employment contributed to a significant degree to the disease process and the eventual finding of disc extrusion and nerve root impingement at C6-C7. The applicant was engaged in leisure and recreational activities outside work. However, there is no evidence pointing to those or any other activities aggravating the disease process or being responsible for any fluctuation in the symptoms. There is no evidence of any predisposition or other matter affecting the applicant's health that would be responsible for, or contribute to the manifestation or aggravation of the disease process.
For all the foregoing reasons, I am satisfied that the employment significantly contributed to previously asymptomatic degenerative changes in the applicant’s cervical spine precipitating C6-C7 disc extrusion and nerve root impingement.
I am also satisfied that the contribution to the applicant's disease by the employment was substantially more than material. An intimate evaluation of the work undertaken by the applicant, by regard to the number of customers that she attended each day and the frequency and repetition of cervical movements when attending each customer, satisfies me that the employment did contribute to a significant degree to her cervical disease and the presence of the C6-C7 lesion.
In conclusion I am satisfied that as a result of the injury the applicant received treatment and was incapacitated. The respondent is therefore liable for the reasonable costs of medical and like treatment pursuant to s 16 and compensation when incapacitated pursuant to s 19.
DECISION
Accordingly, the decision under review denying liability pursuant to s 14 of the Act is set aside and in substitution it is decided:
(a)the respondent is liable to pay compensation to the applicant for reasonable medical and like expenses and payments for incapacity pursuant to s 16 and s 19; and
(b)the respondent is liable for the applicant’s legal costs and disbursements pursuant to paragraph 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
.........................[sgd]............................
Associate
Dated 9 July 2013
Date(s) of hearing 3-5 June 2013 Counsel for the Applicant Mr M. Carey Solicitors for the Applicant Nowicki Carbone Counsel for the Respondent Ms C. Dowsett Solicitors for the Respondent Comcare, SRC Legal Team
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