Fabriziani and Comcare
[2002] AATA 419
•31 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 419
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos S2000/111, S2001/69
GENERAL ADMINISTRATIVE DIVISION ) & S2001/294
Re SIBINKA FABRIZIANI
Applicant
And COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell Dr JTB Linn (Member)
Date31 May 2002
PlaceAdelaide
Decision THE TRIBUNAL sets aside the first decision under review and substitutes a decision that the applicant has continued to be partially incapacitated for work and is entitled to ongoing payments of compensation in respect of her condition of "temporary aggravation of underlying lower lumbar stability" from 30 March 1998 onwards; and remits the matter to the respondent for assessment of the appropriate level of compensation payable to the applicant. THE TRIBUNAL sets aside the second decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant and medical expenses in relation to her accepted condition of "lower left back strain" as a result of a work related injury on 14 March 1995; and that the applicant continues to be partially incapacitated for work. THE TRIBUNAL sets aside the third decision under review and substitutes a decision that compensation is payable to the applicant for the condition of "lower left back strain", pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, for permanent impairment assessed at 15%. THE TRIBUNAL orders that the respondent pay the applicant's costs of these proceedings, as agreed between the parties, or in default of agreement, as taxed by a Registrar of the Tribunal.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – liability – incapacity for work – whether employment aggravated underlying condition – whether applicant is entitled to compensation for permanent impairment and non-economic loss – whether applicant is entitled to ongoing payment for medical treatment and other expenses
Safety Rehabilitation and Compensation Act 1988 sections 4, 19, 24, 27
REASONS FOR DECISION
31 May 2002 Senior Member WJF Purcell Dr JTB Linn (Member)
This is an application for review of three decisions made by delegates of the respondent (Comcare). The first, dated 8 February 2000, affirmed a determination of 29 November 1999, that the applicant was entitled to compensation for her condition of "temporary aggravation of underlying lower lumbar stability" in the period 30 March 1998 to 16 June 1998, but not beyond that date, on the basis that all other claims beyond this period are unrelated to the broken chair incident, as the condition had resolved by 16 June 1998. The second, dated 14 November 2000, affirmed a determination of 15 April 1998 that on and from that date there was no liability to pay compensation for incapacity or medical expenses, pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act), in relation to the applicant's accepted condition of "lower left back strain" as a result of a work related injury on 14 March 1995. The third, dated 25 July 2001, affirmed a determination of 4 May 2001 that the applicant was not entitled to payment for permanent impairment in respect of her lower back condition.
The evidence before the Tribunal comprised the documents lodged, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant, who was represented by Mr Amey of Counsel, gave oral evidence and called Mr C Cain, Orthopaedic Spinal Surgeon, Dr J Meegan, Occupational Physician, Dr S Georgiou, her treating General Practitioner, Ms M Bertram, formerly Occupational Health and Safety Officer at Centrelink, and Mr J Cook, formerly Branch Manager of Centrelink's Torrensville office. Mr Milazzo was Counsel for Comcare, which called Mr P Fry, Orthopaedic Surgeon, and Mr P Byrne, General Surgeon, as witnesses.
The issues before the Tribunal are whether the applicant is entitled to ongoing weekly payments of compensation as a result of injuries occurring on 14 March 1995 and 30 March 1998, pursuant to the Act; whether the applicant is entitled to ongoing payment of medical treatment and other expenses as a result of the injuries occurring on 14 March 1995 and 30 March 1998 pursuant to the Act; whether the applicant has a permanent impairment as defined in section 4 of the Act; and whether the applicant has an entitlement to compensation for permanent impairment and non-economic loss as outlined in sections 24 and 27 of the Act, and, in particular, whether the applicant's permanent impairment is at least 10% using the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Guide) for Commonwealth claims.
The applicant, who is 36 years of age, completed a commercial course at High School, and did some casual waitressing after school hours. She worked then from March 1983 until March 1984 for Sky Road Express, a freight service courier company, performing clerical duties. She travelled overseas for some months and returned in November 1984 and moved with her parents to Perth. She returned to Adelaide soon after, and worked as a waitress at the Adelaide Hilton Hotel and the Adelaide Casino. In January 1987, she returned to Perth and worked at the Burswood Casino and the Hyatt, Sheraton and Ansett Hotels. In 1988 she joined Westpac as a teller until October 1989 when she moved to Port Hedland and obtained temporary part-time employment duties with the Department of Social Security (the Department) and was a part-time waitress at the Port Hedland Hotel. She became a permanent full-time officer on 15 July 1991. She continued to work as a waitress part-time on some weeknights and weekends until about December 1992.
On 15 August 1991 the applicant was working in the Port Hedland office of Centrelink as a customer service operator ASO3, when she felt a sharp snap or crack in her lower left back, when she reached down between two desks to retrieve some papers or files. She described it in evidence as being like a rubber band "twanging". She completed an Accident Report, but did not seek medical attention, nor did she take time off work. She said that as she was still on probation, she was frightened of losing her job.
The applicant said in evidence that in March 1991 she was leaving the Port Hedland Hotel with a group of people when she lost her footing and fell back onto a step, falling on her bottom. She had continuing pain in the bottom area, and consulted her General Practitioner, who arranged for an x-ray, which was undertaken on 28 March 1991 and confirmed that there was no fracture. She said in evidence also that when the bending incident on 15 August 1991 caused the "twang" in her lower back, it was nowhere near the area she had experienced pain in March 1991.
In mid to late 1992 the applicant developed repetitive strain injury in her arms and back pain. She said that an assessment conducted by the work environment officer identified that her workstation was too low for her height. She is a tall lady of lean build. There is a longer than usual distance between the hip and the knee, and she found herself "perching" rather than sitting on the chair. She was transferred to a permanent back office position and desk raisers were placed under her desk so that she was sitting in the correct position in accordance with Occupational Health and Safety Guidelines. Her claim for compensation was accepted by Comcare, but she did not take time off work, nor did she seek medical attention.
In May 1993 the applicant moved to South Australia to work at Centrelink's Pirie Street office as an ASO3 officer. Her work on the front counter involved a great deal of twisting and moving about. She developed lower back pain in the course of her duties with the Department. She was allocated a back office position, and the "stand up" front counter was remodelled to accommodate her height so she could work without having to frequently stoop, bend and twist her back.
In August 1993 the applicant moved to Centrelink's Torrensville office which had the same "stand up" counters; and again she experienced pain in her arms and then her neck and she says that because of the stooping, her lower back flared up again. She filled in Accident Reports on 15 and 30 September 1993, upon which the Branch Manager, Mr Cook, commented "Redesign of counter bay" [Exhibit A4].
The applicant gave evidence that she described to the management team at Torrensville the alterations carried out in the Port Hedland office to accommodate her height and build. The Office Manager, Mr Harrison, took the applicant on a visit to the Edwardstown Regional Office, to view their sit down counters and examine the ergonomics. When they returned to Torrensville it was agreed that Mr Cook would organise the Department's property unit to modify the workstation. In October 1993 the applicant's boyfriend returned to Port Hedland to work, and Mr Cook did not pursue the alterations as the applicant was actively pursuing a transfer back to the Port Hedland office. The transfer was effected in December 1993, and in the intervening period the applicant was given back office duties so that she did not have to go back to the front counter.
The applicant gave evidence that when she returned to the Port Hedland office on 20 December 1993, she was not required to work at the reception desk or the sit down counters because of the necessity to use "desk raisers", and because these other duties involved twisting at the waist and bending down to get forms out of drawers and cabinets. Her ergonomic workstation was set up next to the Determining Officer in the front office.
Ms V Kinsella, Manager, Hedland Business Information Centre, provided a statement of 17 April 2000, which reads, in part, as follows:
"I was in the Families section when Sibinka joined Social Security in 1991, joining the Employment section.
I remember the incident where Sibinka hurt her back (on the left side) when bending down between desk[s] to retrieve some corro and was aware that due to personal conflict with the Manager at that time, Ken Rogers, Sibinka did not mention this to him as she did not want to jeopardise her probation period.
I recall a worksite assessment being conducted but cannot recall by whom. In fact I have a feeling that the Commonwealth Rehabilitation Services had a role to play in this.
The layout of the office was of stand up reception and sitdown counters with other desks not being ergonomically designed.
Sibinka was seated near the counters at a desk next to the counter supervisor and she had to have desk raisers (the desks then were not adjustable) and because of this she could not work at the sitdown counter bays or at the stand up reception. This was because of the strain it would have put on her back.
The stand up reception desk was modified so that the computer could be raised to accommodate Sibinkas height so that this would prevent her from stooping and bending.
A lot of the duties at sitdown counters and reception at that time involved twisting at the waist and bending down to get forms out of drawers, cabinets etc.
Sibinka then moved to South Australia then came back to the Hedland office in 1993, again she could not work at the sitdown counterbays as she still had to use desk raisers and also by then a keyboard cover for her paperwork. Her workstation was set up next to the Determining Officer in the front office.
This is all that I can recollect at this time.
…" [Exhibit A5]By 2 March 1994, the applicant had become engaged to her fiancé (also a public servant) and wanted to be married in Adelaide. They both returned to South Australia, at their own expense, and the applicant returned to duty at the Torrensville office, manning a stand-up counter position, and her back problems recurred. She says that Mr Cook organised carpenters to attend and to remodel the workstation in accord with the applicant's request, and the modifications were completed by late May/early June 1994, with a stand-up counter, upon which the computer could be raised to accommodate her height, but she was still required to reach to the left, to ground level, to pick up files.
As the applicant lived at Lockleys, a 5-10 minute drive from the Torrensville office, her husband drove her to work each morning. On 8 August 1994, she suffered a recurrence of back pain. In the course of her evidence she described the incident in the following terms:
"… every morning my husband dropped me off at work and this particular morning I was following him out the front door, we were both walking out and I was mid stride, I had one foot in my house and I had one foot just about reaching the – my porch and I sneezed. It was such a sneeze that I felt this huge crack rip in my back and I went "oh", you know, like it was just like a "oh", you know after a sneeze and Nick just sort of went "hurry up we'll be late" and I was sort of: yeah, yeah, I'm coming, I'm coming. And proceeded, sat in the car, drove me to work. By the time I got to work which again we're talking about a 5 minute drive from Lockleys to Torrensville, by back felt stiff and tight. I got out the car, I proceeded to work. I think I got there at quarter to 9, we started work at 9. I got, you know, you always picked up, every morning you picked up the work that was determined the night before from your supervisor so you like you did your follow-ups. So I picked up my follow-ups, went to my workstation that had been remodelled so I had my new workstation and proceeded to work. The morning was busy. Monday mornings are always busy, especially at 9 o'clock because everyone's coming in to lodge forms or people are coming in for payments or inquiries, whatever, and during the course of my duties that morning I would have to bend for the files in back office or reach for files or whatever I was doing and as the morning progressed I went from standing straight to keeling over to one side and I kept getting like a, like a muscle spasm which I developed later but I was being pulled in like there was an area in my back, that same left-hand corner that was pulling me down and I waited until all my co-officers had finished their tea, morning tea because they knew I was sick and I said: I won't go until you've all done your tea, so I waited till everyone on counter had finished their morning tea and at 10.45 I was bent over like an 80-year-old. I couldn't move and the management got a Centrelink officer to drive me home because I could barely walk. I went home. I had to wait till my husband came home that night to take me to the doctor's because I couldn't walk and therefore I couldn't drive. We had a car at home but I could do nothing. He took me to Dr Georgio and Dr Georgio gave me the rest of the week off and prescribed Valium for muscle relaxant and I can't remember. I think she must have prescribed Voltarin, Valium and I think some like a digesic of sorts, I don't recall, and I had the week off. I was in a lot of pain that week. I couldn't sit, I could barely stand, I had no physio treatment and we lived with my parents in Lockleys so I had no duties at home. My mum and dad were more than happy to look after me and I had a week of bed rest.
Can I just stop you there and ask you whereabouts on your back in relation to the original injury that you suffered when you were bending over the desk to pick up a piece of paper did this latest episode occur?---Exactly the same spot. It was precisely the same spot, the spot that popped in '91 was the same spot that I felt pop in '94. There was – that's why I immediately remembered the '91 episode because of the acuteness, the location and the subsequent throbbing and pulsating but anyway I had the week off." [Transcript p36-37]The applicant did not lodge a claim for compensation for this injury, which did not occur in the workplace, and returned to work the following Monday. She said in evidence that although she suffered pain and discomfort in her back, it was not sufficient for her to want to go home or to take time off. In addition, management was very accommodating and the applicant's workmates were supportive; and if she had problems with her back, her arms or her neck she was given permission to take a break at any time, and she would sometimes go for a walk around the building to have "a stretch".
The applicant took 5 weeks recreation leave from 14 November 1994 to 16 December 1994 for her wedding and honeymoon. She returned to her modified stand-up counter on 17 December 1994. She worked over the busy Christmas/New Year period, and says that she was experiencing an increase in back discomfort. As she and her husband were still living at her parents' house, she had no household duties and could rest at the end of each working day.
On the applicant's evidence, on the afternoon of 17 January 1995, she stooped to pick up files from the floor alongside her workstation and "had that twang, snap in my left-hand side of my lower back yet again and this time it was quite more pronounced and I ended up developing like a pulsation feeling in my back" [transcript p42]. The applicant completed an Accident Report, and her immediate supervisor, Mr Hughes, organised for her co-workers to do her filing for the rest of that month; and she was given permission to go into the back office for her "follow-up" work. Subsequently, she was rotated off the front counter and given a cell review position, which necessitated the pulling out of the clients' files, which needed to be reviewed. She says that on 14 March 1995 she had completed most of the filing and bent to ground level where files W-Z are located, and developed a very intense "twang, snap in my back, same spot, exactly the same location, same feeling and the throbbing was immediate, which radiated like a circle just below the waist to the left and right, and up and down". She consulted her treating General Practitioner, Dr Georgiou, who certified her unfit for work for 2 days. When she returned to work on 17 March 1995, she was placed on modified duties, not requiring filing and, with the support of management, able to take regular breaks. She lodged her first claim for compensation, for "pulled muscles in lower back left hand side". In answer to the question as to whether she had ever had a similar injury affecting any part of her body she stated:
"1st time: Late 1991 – pulled lower back - LHS
2nd time: Late 1993 – same condition
3rd time: August 1994 – pulled lower back – LHS
4th time: January 1995 – pulled lower back, left hand side"
[T4/6]
Comcare accepted liability, and the applicant continued to receive regular physiotherapy treatment.
On 19 April 1995, the applicant was walking upstairs at work when she sneezed, and she says she again felt a sharp "twang" in her back. She completed an Accident Report, and attended her regular physiotherapy appointment in the afternoon. She returned to work next day, but because of the pain in her lower back, attended Dr Georgiou, who certified her unfit for work until 22 April 1995. She continued to work on modified duties, and suffered two exacerbations of back pain in August 1995 and again in September 1995, and Dr Georgiou referred her to Mr Cain, Orthopaedic Spinal Surgeon, for his opinion.
In late 1995 the applicant's husband received a promotion, and transferred back to Port Hedland. The applicant returned with him, and recommenced work at the Centrelink office on 8 January 1996, on restricted duties with limited client contact, and no reception duties. She says that she had ongoing discomfort in her back, but overall was feeling quite good. During the applicant's time in Adelaide, the Port Hedland office had been refitted with ergonomic workstations that could be wound up to an officer's height.
In February 1996, the applicant experienced a muscle spasm in her lower back and had 5 days off work. Her then treating General Practitioner in Port Hedland, Dr Evans, was not able to prescribe anti-inflammatories as the applicant was pregnant. She suffered a similar spasm in March 1996, and had 3 days off work; and again in May 1996, when she took 5 days off. In June 1996, Dr Evans recommended that the applicant reduce her working hours to 4 hours per day; and on 1 July 1996 she commenced recreation and maternity leave. The applicant was anxious to return to Adelaide for the birth of her child. She says that she was not informed by her case manager that as she had an accepted claim for compensation, she would have an ongoing entitlement to compensation payments. She took recreation leave, and then 6 months maternity leave. Her husband accepted a redundancy package, and they returned, at their own expense, to Adelaide. They moved back with the applicant's parents.
The applicant's son was born in August 1996 by caesarean section. She says that by January 1997, when she and her husband had moved to separate accommodation, she felt that her back would not resolve itself by her planned return to work in July 1997, and she applied for a further 6 months maternity leave and leave without pay, which would mean that her return to duty would take place in January 1998.
The applicant gave evidence that her back condition continued to be the same as before she had the child. Her back pain was more consistent, but alternative duties were not available at home. She had problems in cooking, washing, cleaning, vacuuming and pushing trolleys. She says that every part of her everyday living became an issue for her, and she required a lot of home help care from her mother, father, sister and husband, who at that time worked only afternoon and evening shifts at the Adelaide Airport car park. She said in evidence that by April 1997 she could no longer tolerate the pain, and she sought advice from Comcare in Western Australia. The Comcare officer, Mrs Roberts, informed her that she would have been entitled to compensation payments and home help; and that she would seek a report from Dr Georgiou as to what had occurred between July 1996 and April 1997.
The applicant said in evidence that she was referred again for physiotherapy treatment, and was provided with a total incapacity certificate from April 1997 through to 31 January 1998. On 12 November 1997, Comcare commenced a review of the applicant's claim, and on 17 December 1997 she was examined by Mr Fry, Orthopaedic Surgeon, who reported, in part, as follows:
"…
Ms Agale has clinical instability of a lower lumbar spine which is related to local discogenic degeneration, the xrays suggesting the L4/5 level, the affected region. The disc is abnormal, there is degenerate change, and with it there is some secondary mechanical instability of that motion segment, for the disc is the main joint. Every so often the abnormal level is strained by some provocation, and acute pain can result. Fundamentally a local strain results. This settles down, and the back returns to apparently normal.
The origins of all this are fundamentally natural. The disc degeneration certainly is, and started originally due to innate causes. This has nothing to do with outside events. Over the years however there have also been a variety of local provocations to the affected and degenerating disc. The degree of provocation is obviously very variable, some can be quite minor, as a consideration of the history demonstrates.
…
… The back is and remains mechanically abnormal, and will cause symptoms from time to time of exactly the same sort. They cannot be prevented, to some degree they can be avoided by care in what she does, and with a certain degree of fitness some minimisation may result as well, but the discogenic problem will persist and the problems with it.
Fundamentally she has an abnormal back, mechanically vulnerable to minor strains, and as a perusal of the history makes obvious, this can occur in quite a variety of ways. The effects therefore of work upon this process and the compensation process also, are therefore of interest, and, on perusal, appear fairly marginal. As can be seen, the first episode in 1991 was no more than a minor pain for a very short space of time, a matter of minutes. After that she had no troubles with the back for the next two to three years. In short, that work episode was minor, temporary, and can be ignored for present purposes.
… What is related to her employment of course is a later episode when she was going up some stairs at work and sneezed. Obviously, sneezing is not exactly a work risk, or some abnormal part of her employment, but it did occur at work, and did have an effect upon her back, and very likely left some permanent local after effects. …
In answer therefore to the various questions that you raise:1.The condition that she suffers from is a mechanically unstable back due to discogenic degeneration.
2.Her condition I think has only really been affected by one episode at work, when she sneezed going up some stairs. I think some permanent effects from that probably lasted.
3.It would seem likely that some effects were permanent. All others appear to have been simply temporary.
…
7.She will not recover completely. She has an ongoing mechanical problem with the back which will from time to time declare itself. The effects of work in the incident described are lasting I suspect.
8.She is not fit for work requiring repetitive bending or a lot of heavy lifting.
9.In general Ms Agale has a manageable condition which with care should cause no major problems to her employment." [T23/47-50]
In late 1997, at the suggestion of a former workmate, the applicant applied for some short-term project work in an ergonomically appropriate workstation at the Pirie Street office. She was a successful applicant, and commenced work for a 4-week period in February 1998, with the approval of Dr Georgiou. There were about 10 officers in the project team. It was self-paced work, and the manager and supervisor were very supportive. The applicant was newly pregnant again and informed her superiors immediately. She says that work environment staff assessed her workstation and found it satisfactory ergonomically. Her assignment was extended another week, and the manager was pleased with her work and recommended her for a project with another section of the Department. As this was in fact, to be a longer term project, and in the light of the applicant's pregnancy, she was referred on to another short-term project with Austudy, similar to a call centre, which work she performed from 11 March 1998 until 30 June 1998. She says that she experienced problems after the initial 2 day training course. These problems related to the office chair which had been provided. The chair, it was discovered later (on 15 April 1998), had a broken back support, and was too shallow, thus causing back, hip and thigh pain with pains and needles. On 30 March 1998 the applicant suffered acute back pain, and consulted Dr Georgiou on 1 April 1998, and she took 2 weeks sick leave. In the interim, on 25 March 1998, Dr Georgiou had reported to Comcare, in part, as follows:
"…
In reply to specific questions:-
Mrs Agale stated that she did have problems with her back in 1991 and subsequently ongoing with a further exacerbation of March '95 which was more significant requiring medical and physical treatments.
In view of the fact that there was significant time off work the disability of March '95 was the more significant injury.
Her condition is Mechanical Back Pain with possible underlying Disc Degeneration at L4-5 to L5-S1.
I am of the opinion that given restricted duties at Port Hedland and given that there was limited demands at home her condition stabilised but did not recover. Her current condition and treatment is still attributable to the injury of 1995 and the preexisting lumbar spinal sprain of '94 and '91 were contributing factors to the current situation. But perhaps not ongoing.
Mrs Agale requires further treatment namely physiotherapy and medical treatment.
She has had significant aggrevation [sic] of mechanical nature subsequent to July '96 as stated in body of report.
The expected time frame in which to expect a reduction of the contribution of the 1995 injury is ongoing.
I have organised for a review by the spinal specialist Dr Chris Cain in respect to her current condition; whom she saw on 23/2/98, he is of the opinion that Mrs Agale has degenerative discogenic back pain and work activities aggrevate [sic] the condition and [the] her ongoing condition is compensable.
…" [T26/55-56]The history of the administration of the applicant's compensation claims has been complicated by what appears to be conflicting advice provided to the applicant by various Comcare officers as to the necessity for the lodgement of fresh claims, which were perhaps unnecessary; combined with work related injuries occurring in different States. Although quite some evidence in the course of the Hearing related to these misunderstandings which "muddied the waters", we do not intend to outline these matters in the Reasons for Decision. Suffice it to say that Comcare on 15 April 1998 noted that no report had been received from Mr Cain, the Orthopaedic Specialist, and taking into account Mr Fry's report, determined that liability ceased for all medical treatment on and from 15 April 1998.
Ms Bertram, the Department's Occupational Health and Safety Officer, reported in late April/May 1998 that a worksite assessment had taken place on 15 April 1998. The chair the applicant was using had a broken back support. Her note reads, in part, as follows:
… chair changed and new chair adjusted to provide increased support for her low back. Work station re-arranged to reduce reach and forward flexion of neck and upper back." [T8/29]
Comcare reconsidered its decision in the light of this report, and on 6 July 1998 accepted liability for temporary aggravation of underlying lower lumbar instability, for the period 1 April 1998 to 13 April 1998.
The applicant said in evidence that she did not take any further sick leave, and on 1 July 1998 took recreation leave until 31 July 1998 and proceeded then on maternity leave. Dr Georgiou reported on 7 October 1999 [T29/56] that she reviewed the applicant on 30 July 1998 when she had an aggravation of her back pain. She was 7 months pregnant. She was reviewed again on 28 October 1998; when her daughter, who had been a natural birth, was one month old. She had developed acute back pain, and had very restricted movements with scoliosis and lateral flexion very restricted. There was spasm of the lumbar spine. Dr Georgiou was of the opinion that this was an exacerbation of her underlying problem, and advised rest and physiotherapy on a regular basis. Dr Georgiou subsequently certified the applicant as unfit for work over the period 25 July 1998 to 30 May 1999, for work related aggravation of her back condition.
On her evidence, the applicant has continued to suffer exacerbations of back and leg pain which she outlined in her evidence, together with the limitations the pain places on her lifestyle and her ability to perform household tasks. We do not intend to outline in these Reasons the details of her problems. Suffice it to say we accept her evidence as to these limitations.
On 1 June 1999 the applicant was reviewed by Mr Cain. A MRI Scan confirmed the presence of degeneration at L3/4 and L4-5. At L4-5 there was "a central posterior annular tear and a disc protrusion resulting in some central canal compromise. There was no significant neural compression evident." [T31/66].
In August/September 1999 the applicant's husband obtained a promotion and the family moved to Rockhampton. On 29 November 1999 Comcare determined that further claims for incapacity entitlements since 16 June 1998 were disallowed, as there was no material contribution from the applicant's employment to the condition that resulted in her incapacity. In January 2000 the applicant attended a neurosurgeon, Dr Baker, at the Rockhampton Hospital. A CT scan revealed a prolapsed disc at L4-5, and the applicant says that Dr Baker recommended surgery within the next 2 weeks. The applicant and her family returned immediately to Adelaide. The determination of 29 November 1999 was affirmed on 8 February 2000.
The determination of 15 April 1998, was affirmed subsequently, by a circuitous administrative route, on 14 November 2000. On 13 July 2000 the applicant lodged a claim for permanent impairment, and on 4 May 2001 the claim was refused, and that decision was affirmed on 25 July 2001.
The applicant has not returned to work at Centrelink. In February 2001, Centrelink, Port Hedland, wrote to the applicant requesting that she report for duty for 9 hours per week, or in effect, face dismissal. Both Mr Cain and Dr Georgiou wrote reports outlining that this arrangement was simply not feasible, that it was impossible for her to return to Port Hedland on this basis. The applicant has not been dismissed. She remains on miscellaneous leave. As we understand it, her position remains in limbo.
The applicant submits that the injury at work in August 1991 was the triggering factor, which gave her a work related degenerative injury, which from time to time was exacerbated and aggravated by work related and non-work related events. The injuries at work on 14 March 1995, when she bent to retrieve a file, and 30 March 1998 when she suffered pain because the backrest of her chair was broken, have aggravated her back condition, and the effects of those aggravations are continuing. She has only a partial capacity for work, and is entitled therefore to ongoing payments of compensation.
In relation to the question of permanent impairment, the applicant maintains that on the evidence, she suffers a permanent impairment of 15% which is related to her work, and she is entitled to payment therefore of compensation for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Act.
Comcare argues that the applicant has a predisposition to accelerated spinal degeneration. She has a disease, and has suffered a number of incidents of pain, at and away from work, which have been triggered by normal types of movement not specific to her employment. Her present condition arises from the natural progression of the disease, which has not been contributed to in a material degree by employment. The incident in August 1991 is irrelevant. The only injury it could be said that she suffered was in 1994 when she sneezed at home, which is not compensable. There is no evidence that she suffered an injury on 14 March 1995 nor on 30 March 1998. If she suffered back spasms, they did not cause any spinal injury, and she has recovered. The applicant is not incapacitated for the restricted duties she was performing at Centrelink in 1998. She is able to work. The first two decisions should be affirmed therefore. As to the matter of permanent impairment, arguably on a couple of scenarios it arises from the 1991 incident which is not before the Tribunal. She is not entitled to compensation for permanent impairment.
The applicant was an impressive witness. We consider that she did her best to outline the long and tortuous history of the progress of her back condition from 1991 to the present. Her evidence was lengthy and her cross-examination probing but fair. We consider that she did not exaggerate or embellish the history of her injuries nor the pain and limitations she has experienced and continues to experience. We accept Mr Cook and Ms Bertram as witnesses of truth. The remaining witnesses were medical practitioners, all of whom were suitably qualified and objective witnesses. We prefer however, the opinions and evidence of Messrs Cain and Byrne and Drs Meegan and Georgiou in any area of dispute in the evidence.
Mr Cook, the Branch Manager of Centrelink's Torrensville office from 1992 to 1997, gave evidence that the applicant came to the Torrensville office in 1993, with prior experience in the unemployment area, processing claims and interviewing people. He considered her to be in the top 3 or 4 operators/processors in the Branch – a reliable competent officer. He recalled an occasion when the applicant had returned to the Branch from Port Hedland in 1994; staff resources were limited, and officers were required to work on the front counter without rotation, for lengthy periods. The applicant suffered an injury to her back and the Occupational Health and Safety Section became involved in various site visits looking at the question of remodelling ergonomically, the furniture that was in the Torrensville office. Some other officers had similar problems to the applicant's, but he said that despite the appropriate refurbishment being a standing agenda item for the Department's Property Section for 4 of the 5 years Mr Cook was Manager, the major refit did not occur until immediately prior to his transfer, in 1997, to another Branch. In the interim, only ad-hoc-type changes were possible. We accept Mr Cook's evidence.
Ms Bertram, formerly the Department's Occupational Health and Safety Officer, gave evidence, which we accept, of her contact with the applicant from about July 1994 onwards, at the Torrensville office. She said that at that time, there were a number of officers with lower back, neck, wrist, arm, shoulder and neck problems. She said that ergonomically, the high chairs at the front counter were problems. The backrests were not well shaped or padded and did not provide adequate back support; but more of an issue was the fact that they were so high that the officers feet were not supported, thus tipping the pelvis forwards, and negating the benefit of the backrest. It was not until 1996 that the Torrensville office was refitted with all fully height adjustable workstations, and all the desks at both front and rear counters being able to be raised and lowered. Ms Bertram gave evidence that she recalled that eventually the applicant would stand beside the chair, because it was not possible to adjust the chair comfortably for her.
Ms Bertram gave evidence also, that she met the applicant again when the applicant was working at Austudy from March 1998. She was having problems with her back, and trouble sitting, as her chair had a broken back rest which did not give her the support she required. Ms Bertram recalls the work site assessment which took place in April 1998 when the workstation was raised and the chair replaced. Ms Bertram said that she discussed with the applicant's supervisor also, the necessity for the applicant to have regular breaks, of say 5 minutes per hour, to get up and stretch her back and move around. "It was always difficult to convince her to leave her work to do that and so she was someone that was always very diligent with her work and trying to get it through, like get through the work." [Transcript p112]. Ms Bertram said in evidence also that taking regular breaks at the front counter at Torrensville would have been difficult for the applicant because of the manner in which the counter was set up. She would have a queue of people waiting, so that she could not walk away when there was a queue in front of her. We accept Ms Bertram's evidence.
The applicant called Mr Cain, Orthopaedic Spinal Surgeon, as a witness. He said that he first examined the applicant on 17 October 1995, and has seen her subsequently on some 20 occasions. He said that in his opinion, the applicant had features of a "mechanical" or discogenic back pain; back pain related to degeneration of L3-4 and L4-5, with L4-5 being the principal contributing level. He said that it was certainly possible that she suffered an annular tear as a result of the August 1991 incident, which would not become evident on a MRI scan for at least 18 months or 2 years after the event. The applicant told him that she had no significant disturbance in her back between 1991 and August 1994; she had no time off work or avoidance of normal activities, but she had ongoing symptoms. The plain x-rays in 1995 revealed decreased disc height, degeneration which happened over a period of time. 1991, being 4 years earlier, is a consistent period of time for that to have been an initiating factor.
Mr Cain said in the course of his evidence:
"… A MRI, like a CT scan or a plan x-ray displays the anatomy, it doesn't show where pain comes from. If there was loss of discite on the films in 1995, a similar amount of loss of discite on the MRI scan in 1999 then you would assume there's a similar degree of degeneration in the spine. She had an anula tear, or a disc rupture which caused sciatica which resulted in a change. She's had further treatment of her disc since then, and a recent MRI scan has shown she's got further loss of height in that disc at L4-5. So the process has continued. What I'm saying is, I don't know when the process started so unless you can show me an investigation done before 1991 or soon after 1991 I can't recall elaborate more on the significance of the incident, but the incident described and the history provided is consistent with that being an initiating or contributing factor. … [Transcript p28]
… As I said before, every incident that occurs throughout your life, whether it is social, working, whatever, lifting, straining, coughing, sneezing, contribute to the normal wear and tear that we all have in our backs as we get older. It is sometimes impossible to allocate blame to a specific incident or event, but there also has to be one – there's one point in time when symptoms commence and it's usually followed by, or it's usually caused or initiated by a particular incident, there's somewhere a cause: I fell, I tripped, I lifted something, I had an onset of pain that starts the process. I'm always asked, when I'm doing reports, how much impairment do they have and how much do I attribute to this event compared to that event, compared to this event. As I've said it's impossible to assess, but given the history provided, given the nature of her complaint I believe the history is consistent with the incident of 1991 being consistent as an initiating factor that perhaps was on top of some pre-existing degeneration which has certainly been compounded by subsequent degeneration and wear and tear changes, but I believe she has an impairment of function of 30 per cent and that half of that is due to work aggravation of her complaint. These incidents combined, the initial incident, the other half is due to those other factors, the genetic make-up of her back, the care and wear and tear on her family and vacuuming and problems with intercourse, all those sorts of things. It is my opinion that there is a contributing factor from work and a contributing factor outside work, which is the basis of my report. …" [Transcript p29-30]Mr Cain had in his report of 13 October 1999 [T31/62] assessed the applicant's permanent impairment of function of the lumbar spine of 20% and attributed 50% of this impairment to the work incident which resulted in the onset of symptoms. In his later report of 19 November 1999 [T34/71] he reported that he had made an error in his assessment. The impairment was in fact 30% loss of function of the lumbar spine, but the percentage of this impairment which he attributed to the work incident remained unchanged – that is 50%.
Mr Cain did not consider the injury to the applicant's coccyx in March 1991 was relevant to her back condition; and he said in evidence that coccygeal pain is a very different symptom complex from that which the applicant has. It is easy to differentiate pain coming from the coccyx from that coming from the lumbar spine. Mr Cain reported on 13 October 1999 [T31/62] that he was hopeful of the applicant returning to the workforce. She should however maintain fitness of the muscles around the lumbar spine and would need to take care with the way she performed bending, lifting, twisting tasks, and she should also avoid work that required prolonged periods in a seated position. In his report of 20 October 2000 [Exhibit A1] Mr Cain stated that he believed that the applicant could perform at best, part-time duties of a sedentary nature, but he expected her to suffer from episodes of pain in the future that might limit her involvement in even sedentary duties, for short periods of time.
The applicant called Dr Meegan, Occupational Physician, who examined her on 9 May 2001, and reported that the 1995 injury, when she lent over to pick up a file, is the main contributing cause of her partial incapacity and the March 1998 injury represented an aggravation of this. He had noted that she had some earlier episodes of back pain at work. He considered that her need for medical treatment and incapacity for work related to the 1995 and 1998 incidents and other aggravations she has suffered since then, and in fact, relates to degenerative change in the low back. He concluded that, but for the injuries, the degenerative change may not have become symptomatic. In accordance with the Guide she has suffered a 20% whole person impairment under Table 9.6 and no assessable loss under Table 9.5.
Dr Meegan said in evidence that he agreed with Mr Cain's view expressed in his report of 20 October 2000 [Exhibit A1] that the most important factor in relation to the development of degenerative disease in the lumbar spine is in fact the genetic make-up of the individual. He said in relation to the aggravation of her condition by her work environment, as opposed to her general life situation, that he would make a distinction between the symptomatic back pain and the radiological findings. One might argue that symptomatically there is not much difference. In fact, the manual handling exposures at home might be somewhat worse, with childcare, and childbirth and the activities compared with light sedentary work; but in terms of symptoms one must return to the patient's history. In the course of his evidence, he said:
"… Some people can experience episodes of increased pain and injury through quite trivial mechanisms and yet not be – not suffer too much when they have apparently more severe episodes of trauma. So in terms of the symptomatic low back pain it really depends on her history as to where and when she experienced the aggravations. In terms of the radiological progress of the back pain, it's probably more the heavier manual handling exposures, say, with child care and child birth, rather than the light sedentary occupational activities that would contribute to much progress. And as I – and as – as Dr Cain's emphasised, by far and away the primary influence on the progress of degenerative change are genetic factors." [Transcript p11]
Dr Meegan gave evidence that trivial activities can give rise to complaints of back pain. These complaints might not necessarily represent changes in any pathological process. It really depends upon the applicant's report about how she has progressed in terms of her symptoms and functional restriction following those incidents, and as to what was documented. When he saw the applicant he relied on her history that in fact, they led to an ongoing deterioration.
Dr Georgiou, who has been the applicant's treating General Practitioner since 1993, gave lengthy evidence of her opinion that the applicant suffers from mechanical back pain with underlying early disc degeneration, and that the effect of the work related injuries contributed materially to the applicant's pre-existing condition and that these effects are permanent. She is partially incapacitated for work, with her current condition due to the further aggravation of 30 March 1998 on top of previous work injuries.
Comcare called Mr Fry, Orthopaedic Surgeon, who had provided a report of his first examination of the applicant on 17 December 1997, which is referred to earlier in these Reasons for Decision. Mr Fry said in evidence that on the history he obtained from the applicant, he considered the 1991 incident a manifestation of instability of the spine, and the sneezing incident in 1994, an acute injury, the far more likely cause of the annular tear. By the time Mr Fry examined the applicant on the second occasion on 13 March 2001, there had been quite marked disc bulging seen at L4/5 level, and this appeared to have increased with time. It would certainly explain the changing pattern and extent of her symptoms. He reported on 27 March 2001 [Exhibit R1] that with a very confusing, complex and intertwined history of pains, work related incidents, and undoubtedly non-work related episodes too, the applicant has quite clearly had an extension of degenerative change and disc bulging associated with it. He said in evidence that he tended to agree with Mr Cain's assessment of the total impairment figure of 30% with, what he understood Mr Cain to be stating was an attribution of 10% impairment as a direct result of work activities. When it was put to him in cross-examination that Mr Cain continued to attribute 50%, not 331/3%, to the work related component, which resulted in a 15% work component, Mr Fry agreed that it was a pretty fluid area, and that 15% would be acceptable at the most. He did not consider that the March 1991 coccyx injury was relevant to the applicant's back condition.
Comcare called Mr Byrne, General Surgeon, who reported on 27 July 2001 [Exhibit R3] that the applicant injured her back originally in August 1991 in Port Hedland when she incurred acute pain. He considered it possible that she tore the annulus to a mild degree originally in 1991, and the problems have been exacerbated by the two subsequent incidents in August 1994 and March 1995 in Adelaide. He concluded that the applicant was partially incapacitated for work; that the work events in March 1995 and March 1998 continue to make a material contribution to her incapacity, but are not solely responsible for it; that he believed her complaints were genuine. He assessed the level of permanent impairment at 10% attributable to work events.
Mr Byrne gave evidence that on the basis of the applicant's history and subsequent x-rays in detail, which did not begin until mid 1999, the likelihood is that the applicant tore the annulus, the fibrous outer coating of her L4-5 lumbar disc in August 1991, and that things have become progressive since then involving several incidents in which she had had pain.
We have examined the whole of the evidence carefully and in detail, and we have taken into account the parties' submissions. Mr Milazzo maintained that there was no evidence that the applicant suffered back pain between August 1991 and the sneezing incident in 1994; that in December 1997 she told Mr Fry that she had no problems at all with her back for the next 2 to 3 years; and although she outlined a history to Mr Byrne on 6 July 2001 that she continued to complain of low back pain, this was subsequent to her reading Mr Fry's report, and she has in effect, reinvented history. We reject this assertion. We note that the report of Ms Kinsella, the Manager of Centrelink's Port Hedland Branch, quoted earlier in these Reasons for Decision, refers to the applicant injuring her back in 1991, and the modifications undertaken to furniture and layout to minimise the applicant's problems. We consider that these were not mere routine refurbishments as asserted by Mr Milazzo. We note also that when the applicant lodged her first claim for compensation in March 1995, she referred to the August 1991 injury and 3 subsequent injuries of a similar nature prior to March 1995. We accept the applicant's history of those events.
Mr Milazzo maintained also, that the applicant's claim for an alleged injury on 30 March 1998, was in effect, not valid, that it is a fabrication; that her symptoms did not arise in the work context; that on the evidence, the chair back was not broken at any time prior to 15 April 1998; that there is no Accident Report on 30 March 1998, and the applicant's claim is dated 14 April 1998, 2 weeks after the supposed event. He mentioned also, that Dr Georgiou's evidence was biased, and in relation to this incident her case notes did not, in fact, support her assertion that this was a work related injury. We consider that Dr Geogiou's evidence in relation to her notes of the consultation more than 3 years before she gave evidence was contradictory, and not satisfactory. But we consider that the balance of her evidence of her treatment of the applicant over the period of many years was not tainted by bias, and was entirely satisfactory. In any event, we accept the applicant's evidence as to the circumstances surrounding the injury which occurred on the afternoon of Monday 30 March 1998.
The applicant was absent on sick leave until 14 April 1998, when she completed the Accident Report and the claim for compensation. It was not until the following day that Ms Bertram attended the workplace, and we accept her evidence that it was discovered then, that the back of the chair was broken, and by a process of deduction, this contributed to the applicant's back problem. The chair was replaced, and the new chair proved to be satisfactory. We reject Mr Milazzo's submissions on this topic. His client, Comcare, accepted the applicant's claim for compensation, and that decision is not under review. The decision under review (being the first decision) is that which ceased liability with effect from 16 June 1998 and we are satisfied on the evidence, as find as a fact, that the effects of that injury have not ceased, and that Comcare is liable to continue to pay compensation to the applicant in relation to this injury.
In relation to the second reviewable decision, we are satisfied on the whole of the evidence, and find as a fact, that the applicant continues to be partially incapacitated for work as a result of the March 1995 injury. In the course of the Hearing we were informed by the parties that the applicant's capacity for work had been assessed by Dr Lewis of Health Services Australia, but that report was not before us.
In relation to the third reviewable decision, as to permanent impairment, Mr Cain is of the view that her whole of body impairment is 30%, and Mr Fry was in agreement. Mr Cain considered that 50% of this impairment was attributed to work, namely 15%, and in the course of his evidence Mr Fry said that he considered 10% the appropriate figure, but that 15% was the maximum. We consider, on the whole of the evidence, that 15% would be the appropriate level, and we so find.
For these reasons the Tribunal sets aside the first decision under review and substitutes a decision that the applicant has continued to be partially incapacitated for work and is entitled to ongoing payments of compensation in respect of her condition of "temporary aggravation of underlying lower lumbar stability" from 30 March 1998 onwards, and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant.
The Tribunal sets aside the second decision under review and substitutes a decision that Comcare is liable to pay compensation to the applicant and medical expenses in relation to her accepted condition of "lower left back strain" as a result of a work related injury on 14 March 1995; and that the applicant continues to be partially incapacitated for work.
The Tribunal sets aside the third decision under review and substitutes a decision that compensation is payable to the applicant for the condition of "lower left back strain", pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment assessed at 15%. Comcare will pay the applicant's costs of these proceedings, as agreed between the parties, or in default of agreement, as taxed by a Registrar of the Tribunal.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr JTB Linn (Member)
Signed: .....................................................................................
AssociateDates of Hearing 4-5 October 2001, 27 November 2001,
30 November 2001
Date of Decision 31 May 2002
Counsel for the Applicant Mr Amey
Solicitor for the Applicant Duncan Basheer Hannon
Counsel for the Respondent Mr Milazzo
Solicitor for the Respondent AGS
0
0
0