Flanagan and Comcare (Compensation)

[2019] AATA 5242

Flanagan and Comcare (Compensation) [2019] AATA 5242 (6 December 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)  No: 2016/0642

GENERAL DIVISION  )  2017/3759

Re: Leesa Flanagan

Applicant

And: Comcare Respondent

DIRECTION

TRIBUNAL:  Senior Member M J McGrowdie

DATE OF CORRIGENDUM:            13 March 2020

PLACE:  Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application such that:

1. On the first page of the Tribunal’s Decision, “As all matters were heard together, Comcare is to pay the Applicant’s costs of the proceedings” is changed to “Comcare is to pay the Applicant’s costs of the proceedings in application 2017/3759”; and

2. In paragraph [54] of the Decision, “As all matters were heard together, Comcare is to pay the Applicant’s costs of the proceedings” is changed to “Comcare is to pay the Applicant’s costs of the proceedings in application 2017/3759”.

Division:                  GENERAL DIVISION

File Number(s):      2016/0642

2017/3759

Re:  Leesa Flanagan

APPLICANT

And  Comcare

RESPONDENT

DECISION

Tribunal:                  M J McGrowdie, Senior Member

Date:  6 December 2019

Place:  Sydney

That the reviewable decision of Comcare dated 11 December 2015 in Matter No. 2016/0642 is affirmed.

That reviewable decision of Comcare dated 7 June 2017 is set aside and instead is substituted with a decision that Comcare in Matter No. 2017/3759 is liable pursuant to Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an aggravation of the lumbar spine condition within the meaning of Section 5A of the Act and taken to have occurred on 8 May 2007.

As all matters were heard together, Comcare is to pay the Applicant’s costs of the proceedings.

© Commonwealth of Australia 2019

CATCHWORDS

Workers Compensation – Determination by Comcare not to accept Applicant’s claim for injury to back as a result of a limp following a bone graft to left hip for a fusion to the cervical spine (the latter being an accepted condition as was the left hip) – Determination by Comcare not to accept Applicant’s claim for an injury to the back as a result of the nature and conditions of her employment – entitlement to compensation for the back

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7 AND 14

CASES

Comcare v Power [2015] FCA 1502

REASONS FOR DECISION

M J McGrowdie, Senior Member

6 December 2019

INTRODUCTION

1. The Applicant, Leesa Flanagan, born in 1970, brings a claim for compensation on two bases. Firstly, that a bone graft from the left hip for a cervical fusion (an accepted condition) lead to a limp which caused or aggravated a back condition. Second, separately or in the alternative, that the nature and conditions of the Applicant’s employment caused or aggravated a condition in the back.

2. Comcare (Respondent) disputes liability for the Applicant’s back condition and relies on the reviewable decision dated 11 December 2015 to the effect that there is no causal connection between the bone graft and the Applicant’s back condition. The Applicant seeks a review of that decision in Matter No. 2016/0642. Comcare also relies on a

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reviewable decision dated 7 June 2017 to the effect that Comcare did not accept any causal connection between the nature and conditions of the Applicant’s employment and her back condition. The Applicant seeks a review of that decision in Matter No. 2017/3759.

1. There is no dispute that the Applicant suffers a back condition and has had surgery to her back. By agreement, both matters were to be dealt with together.

   ISSUES

2. The issues are:-

   (i)Whether there is a causal link between the Applicant’s back condition and the left hip bone graft procedure on 24 January 2011 to facilitate a fusion of discs in the cervical spine. To a lesser extent, the Applicant suggests that the fusion of discs in the cervical spine led to instability in the lower back, and

   (ii)Whether the nature and conditions of the Applicant’s employment gave rise to, or aggravated, a back condition suffered by the Applicant.

   BACKGROUND

3. The Applicant commenced employment with Australian Hearing in November 2005. She became the manager of the Port Macquarie customer support call centre. Her work involved handling large folders, using the telephone and using a laptop computer. Her workspace was cramped and not well designed.

4. The Applicant developed severe symptoms in the neck and upper arms which led to surgery to the cervical spine. The condition and surgery were accepted by Comcare as work-related. There were also arthroscopic procedures to both shoulders.

5. Further surgery ensued to the cervical spine and on 24 January 2011 an added fusion was carried out. This time, a bone graft was harvested from the left hip. The Applicant experienced hip pain for some time following this surgery and says that the hip pain caused her to limp affecting an already symptomatic back. The Applicant’s submission is

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that the compensable left hip bone graft caused or aggravated her back condition and is therefore compensable.

1. The Applicant’s back had been troubling her for some time prior to the bone graft.

2. Problems with the Applicant’s back are first mentioned in an Ergonomic Assessment Report dated 8 May 2007 when the Applicant’s workstation at Port Macquarie was being assessed. It is stated in the report that the Applicant had reported that she had had lower back pain symptoms for the last 6 months.

3. In her statement dated 16 May 2014, the Applicant says that she initially started feeling lower back pain in 2007. The Applicant’s evidence was that the back symptoms never went away although for quite a time the focus was on her neck symptoms. The medications she took for her neck condition also managed the symptoms in her back. The Applicant initially had surgery to the cervical spine in June 2009. Also, right shoulder surgery was performed in November 2009 and left shoulder surgery in May 2010. The Applicant first had back surgery in May 2014.

4. It appears that the Applicant’s back problems became more severe sometime after the bone graft taken from the left hip. The Applicant’s case is that she was left with pain in the left hip for a considerable period and that pain caused her to limp by placing more weight on the right leg.

5. Whilst the Respondent suggested that the limp may have been caused by the back condition rather than the left hip pain, I note that a lumbar spine MRI dated 4 August 2015 showed disc herniation just contacting the descending right S1 nerve root. There has not however, been any complaint by the Applicant of a right sided limp which may have occurred due to nerve pressure in the back. There is no radiology which suggests that the left nerve root in the back was impacted.

6. The Applicant worked at various locations whilst with Australian Hearing and ergonomic assessments were carried out at various times until her employment came to an end in 2012.

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1. Following the initial assessment at Port Macquarie in May 2007 various recommendations and improvements were put in place after deficiencies were identified. A further ergonomic assessment was conducted at Port Macquarie in May 2008. Again, further improvements were recommended and implemented.

2. In February 2009, the Applicant’s work was re-located to Blacktown. Subsequently this location closed for refurbishment and the Applicant performed her duties at an alternative location at Blacktown.

3. Prior to the initial move to Blacktown, the Applicant lodged a Compensation Claim Form in which she indicated that she had been seeking treatment for her back over the last twelve months and that the discomfort was getting the better of her. She also commenced physiotherapy on the back in January 2009.

4. In February 2009, an ergonomic assessment was carried out at the Blacktown office by Balmain Rehabilitation Services. Again, difficulties were identified and modifications recommended and made. There is no doubt that the employer was conscious of the difficulties experienced by the Applicant and attempted to address those difficulties. Also, from February 2009, the Applicant was working on return to work hours and less than 5 days per week upon the basis of the Applicant’s accepted conditions of the neck and the shoulders.

5. In September 2010 the Applicant was moved to a second Blacktown office whilst the first was being refurbished.

6. Although ergonomic assessments took place the Applicant worked for a period in the kitchen/staff area. It was very difficult for the Applicant to work in the kitchen environment with staff coming to the kitchen and having to manoeuvre around her.

7. There was then a trial of short duration when the Applicant was provided with taxi services to work at the Chatswood office. After this, it was arranged for the Applicant to work from home firstly, at Beaumont Hills and then at Rouse Hill when the Applicant moved residence.

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1. A rehabilitation provider conducted a home office assessment. Again some problems were identified and recommendations made and addressed. While it is correct to say that the employer regularly addressed the Applicant’s difficulties with regard to her work stations, it is clear from the Applicant’s evidence that she continued to have difficulties despite changes and assistance provided by the ergonomic assessments.

2. It appears to me that there was not a great deal of constancy in terms of the locations where the Applicant worked and at a time when the Applicant was working “return to work hours” of less than 20 hours she was temporarily placed on duties from the “flying squad” at the Blacktown office. What appears from all of this was that there were relatively frequent changes in her work and where her duties were performed. Notwithstanding the efforts made by the employer to address ergonomic issues the Applicant continued to experience difficulties with carrying out her work in terms of her back, neck and shoulders. There is no real issue that the Applicant had an underlying degenerative condition in her back. It appears that her work duties led to that condition becoming symptomatic and those symptoms continued.

3. This seems to have been the position up to the time that the Applicant underwent the spinal fusion and bone graft surgery to the left hip on 24 January 2011.

4. The Applicant has said that she experienced pain in the left hip following the surgery with increasing pain in the back and down the left leg. In November 2011 she had an abdominal wall ultrasound which showed scarring at the site of the bone graft with adjacent thickening and hypervascularity. An MRI scan in December 2011 also showed some disruption. It was thought that the changes were responsible for the left hip pain. By way of treatment the Applicant was given an injection into the left hip with some benefit and her left hip problems started to settle.

5. The Applicant lodged a claim for compensation to Comcare in respect of the left hip in January 2012 and liability was accepted in February 2012.

   DISCUSSION

6. Dr Hyde Page, in a report dated 15 September 2017, reported to the Respondent that the pain in the left hip settled down after a cortisone injection. I accept the Applicant’s account

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that while the left hip problem only became acute for her quite sometime after the left hip surgery, it was a problem for her certainly up to the time of the cortisone injection which seems to have settled things down. I would also accept that, whilst not the expected course, the left hip surgery led to her placing more weight in the right leg and that this aggravated her back symptoms.

1. Concurrent evidence was given by Drs Pillemer, Stephenson and Rowe. Dr Rowe, whose evidence was sought by the Respondent, said that he would not expect there to be any ongoing problems from a hip graft, particularly from an anterior bone graft which the Applicant had rather than a posterior graft, which is performed closer to the spine.

2. Dr Stephenson said he considered that the Applicant fell into a category of 20% of patients who had prolonged problems. He did not regard the fact that the bone graft was an anterior graft even though the literature he referred to centred on posterior grafts. Both Drs Pillemer and Stephenson accepted that if the Applicant did develop a limp that would have disturbed her back. Dr Stephenson also expressed the opinion that the strong medications the Applicant was taking for her neck following the fusion may have delayed the hip pain from becoming acute and requiring immediate treatment. This does not mean, however, that if the Applicant developed a limp as a result of pain in the left hip for a prolonged period this would have aggravated her back.

3. Dr Rowe considered that if the Applicant did develop a limp that could have been a result of referred pain from a deteriorating back. Whilst this may be theoretically correct, it does not accord with the Applicant’s evidence that she limped because of pain in the hip.

4. Dr Pillemer said he would place more importance on the nature and conditions of employment than the limp as aggravating the underlying degenerative condition of the Applicant’s back and giving rise to a need for surgery.

5. Overall, the impression I got from the collective evidence of the three doctors who gave oral evidence was that a limp associated with hip pain would have been less significant in terms of the Applicant’s back than the aggravation of the underlying back condition by the nature of the Applicant’s work.

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1. Whilst the activities of daily living also place strains on the back it is, in my view, significant that the Applicant’s back was rendered symptomatic by the work she was performing in late 2006/early 2007.

2. I accept that the Applicant’s back remained symptomatic and continued to be aggravated by her work despite the efforts made for ergonomic improvements on a regular basis. Dr Pillemer described the nature and conditions of her work as “a significant aggravation factor” and further, “the main contributing factor”. He referred to activities such as using a wheelie bag for her laptop computer, carrying, stairs, travel, prolonged sitting and twisting to the side as relevant activities. In Dr Pillemer’s view continuing ergonomic assessment was required because of the problems the Applicant was experiencing.

   LEGISLATION

3. In accordance with Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) there is a liability for Comcare to pay compensation in respect of an injury.

4. Injury is defined in Section 5A and includes “a disease suffered by an employee”. “Disease” is defined in Section 5B to be an “ailment” or “an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment.....”

5. The notion of “to a significant degree” was examined in Comcare v Power [2015] FCA 1502 at [93] – [94] where the Court considered that an evaluative exercise was to be undertaken to determine that such an aggravation had to be substantially more than a contribution that was trivial.

6. “Significant degree” is defined in Subsection 5B(3) to be “a degree that is substantially more than material”. Non-exhaustive factors for consideration are set out in Subsection 5B(2) such as duration of employment, the nature of, and particular tasks involved in the employment, any predispositions or other matters affecting the employee’s health.

7. According to Subsection 7(4)(b), an injury in the case of a disease is to be taken to have happened when the aggravation first resulted in impairment. In the present case the evidence suggests that the Applicant’s back symptoms first appeared in late 2006 or at some time prior to May 2007 when the first ergonomic assessment took place.

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1. The test requiring the contribution be of a significant degree was introduced into the legislation in April 2007. Before that the test was less stringent. There was some argument at one point of the proceedings where it was suggested that “the injury” first occurred prior to the amendments. However, as the matter progressed, the Applicant accepted that the date when the injury can be said to have happened was 8 May 2007 being the date of the first ergonomic assessment when the back symptoms were first documented and steps taken to address the problem that the Applicant was having.

2. The work duties performed by the Applicant are referred to by the Applicant in her statements. She was cross-examined about her duties and described them further. Dr Pillemer was firm in his view that her work aggravated the underlying degenerative disease and that operative intervention became necessary. The need for operative treatment to her lumbar spine was not an issue.

3. The fact that the Applicant’s workplace changed so often would necessarily have led to the need for ongoing ergonomic assessment to be carried out but one might expect that each change provided its own challenges for the Applicant to manage her back condition. This does not in any way suggest that the employer had made genuine attempts for the Applicant’s problems. Simply put, the Applicant was vulnerable because of her underlying back condition which was aggravated by the nature of her work.

4. In evidence is a statement from Gina Mavrias. In that statement she states that she is the Chief Operating Officer of Australian Hearing and was, during the period of the Applicant’s employment, the Executive Manager. The Applicant reported to Ms Mavrias for some years prior to the Applicant’s cessation of employment. She speaks of the Applicant’s duties and the Applicant’s workstations. Clearly, Australian Hearing did make real attempts to assist the Applicant, however, it also illustrates the many changes which the Applicant had to contend with. It is also relevant that the Applicant was suffering from multiple medical conditions.

5. As stated by Dr Murray Hyde Page in his report dated 15 September 2017:-

   “The most difficult issue for Mrs Flanagan is the fact that she has multiple conditions that need to be taken into account affecting her cervical, thoracic and lumbar spine, shoulders and arms. She has been through a very difficult 9 years with all these conditions....”

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1. The fact that the Applicant’s back symptoms were not given prominence until the condition progressed is to be seen in the context of her having multiple conditions of significant severity.

2. I consider that the nature and conditions of the Applicant’s employment did contribute to a significant degree to the aggravation of an underlying degenerative disease in the lumbar spine. Further, the aggravation, with a “deemed date” of 8 May 2007 has continued to the present time.

   CONCLUSION REGARDING THE CLAIM IN RESPECT OF THE LEFT HIP GRAFT AS A CAUSE OF THE APPLICANT’S BACK CONDITION

3. I have previously discussed the joint evidence given concurrently of Drs Rowe, Stephenson and Pillemer.

4. I accept that the Applicant did develop a limp by placing additional weight on her right leg because of pain and changes in the left hip.

5. However, in my view the contribution of the limp to the Applicant’s back condition was not a contribution to a significant degree and therefore did not constitute an injury in accordance with the Act. The Applicant’s back condition was already aggravated by the nature and conditions of employment which came to the forefront once the surgery for the prominent neck condition had taken place.

6. The limp may have resulted as an aggravation to a small degree for a short period of time. It was the aggravation from the nature and conditions of her employment which was the significant factor for the Applicant to have gone on to undergo surgery to the lumbar spine.

7. Although the fusions to the neck would likely have placed strain on the entire spine and may have resulted in some additional strain on the Applicant’s lumbar spine, I do not consider that the evidence was such that it could be said that it contributed to a significant degree to the Applicant’s low back conditions which had been aggravated by the nature and conditions of her work.

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CONCLUSIONS IN RESPECT OF THE CLAIM FOR NATURE AND CONDITIONS

1. For the reasons already given, I conclude that the nature and conditions of employment contributed to the aggravation of the Applicant’s lumbar spine condition and is a compensable injury taken to have occurred on 8 May 2007.

   DECISION

2. That the reviewable decision of Comcare dated 11 December 2015 in Matter No. 2016/0642 is affirmed.

3. That reviewable decision of Comcare dated 7 June 2017 is set aside and instead is substituted with a decision that Comcare in Matter No. 2017/3759 is liable pursuant to Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an aggravation of the lumbar spine condition within the meaning of Section 5A of the Act and taken to have occurred on 8 May 2007.

4. As all matters were heard together, Comcare is to pay the Applicant’s costs of the proceedings.

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