Kirby v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 184
•30 October 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Kirby v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 184 |
PARTIES: | Kirby, Kaye v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2015/34 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 30 October 2015 |
HEARING DATES: | 18 and 21 May 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the costs of and incidental to the appeal. Failing agreement, the Regulator is given liberty to apply. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where aggravation of lower back injury - where the worker had undergone a spinal fusion - whether the aggravation of appellant's injury arose out of or in the course of her employment - whether employment was a significant contributing factor to that aggravation - whether general duties contributed to her injuries - whether the work of a funeral arranger meets the criteria of manual handling - where the worker experienced an insidious onset of symptoms - onus rests with appellant to establish on the balance of probabilities that the aggravation of her injury satisfies the elements of s. 32 of the Act - not satisfied appellant discharged this onus - determined employment not a significant contributing factor - appeal dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Ms J.N. Sorbello, Counsel instructed by Shine Lawyers. Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
In 1991, Kaye Kirby underwent a spinal fusion involving the L3 to S1 discs. Approximately 10 years later, she commenced employment with InvoCare Australia Pty Ltd, working initially for the White Lady Funerals brand as a Funeral Arranger[1]. In order to secure employment with InvoCare, Ms Kirby successfully completed a Health Status Assessment. Ms Kirby disclosed her back operation and the health status assessment records that, "[a]lthough has had back surgery - now 10 yrs post-op with no problems surfaced."
After working between 18 months and two years for White Lady Funerals, Ms Kirby moved to another brand of InvoCare, Somerville Funerals. She then moved to another brand, Simplicity Funerals, for about one year before returning to Somerville Funerals. In or about 2010, Ms Kirby began to experience back pain. She practised yoga and pilates to relieve the symptoms of sciatica. The following year, her back pain intensified and she again experienced sciatica. Ms Kirby has not worked for InvoCare since February 2012.
Ms Kirby contends that as a result of her work as a Funeral Arranger she suffered a back injury over a period of time between June 2001 and February 2012 during the course of her employment with InvoCare. She relies on the opinion of Dr Greg Gillett, Orthopaedic Surgeon, for this view.
Although the Regulator accepts that Ms Kirby is a worker and has sustained a back condition, it disputes the injury is compensable. The Regulator relies on the opinion of Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon, to submit that Ms Kirby is suffering from Adjacent Segment Disease (ASD) which is an almost inevitable consequence of the earlier spinal fusion.
The injuries claimed to have been sustained by Ms Kirby are an aggravation of a prior lower back injury and a secondary psychiatric injury. The only injury required to be considered by the Commission is the claimed aggravation of the lower back. The issues arising for determination in this appeal are whether the aggravation of Ms Kirby's injury arose out of or in the course of her employment with InvoCare and whether her employment was a significant contributing factor to that aggravation.
Counsel for the Appellant submits:
"The determination of the appeal by the Commission is disposed of simply by determining which of the orthopaedic opinions it prefers - simply whether it prefers the evidence of Dr Gillett over that of Dr Steadman."
While the Commission may have to ultimately decide whether to prefer one specialist medical opinion over another, an assessment of the medical evidence can only be done once the facts have been established. As Lawton LJ said in R v Turner:
"Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless."[2]
[2] R v Turner [1975] QB 834, 840.
Evidence and Findings about Ms Kirby's work
The initiating document for her claim was a Notice of Claim (NOC) for Damages filed by Ms Kirby's Solicitors. Paragraph 38 of the NOC details four "duties/incidents" that are said to have contributed to Ms Kirby's injuries. The four "duties/incidents" are:
"(i) Regular heavy lifting, pushing and pulling of significant weights without adequate human and/or mechanical assistance.
(ii) On one of my first jobs with White Lady Funerals, I was asked to carry an oversized coffin from a hearse through to the graveside and put the coffin on top of the device used for lowering the coffins. I carried the coffin to the graveside with five other females. I went to walk across the side of the grave and the ground gave way causing my foot to slide down the side of the grave. I reported this incident to my manager at the time.
(iii) In the first eighteen months of my employment, I was asked to carry a coffin to be buried. The access to the graveside was like a goat track and it was raining at the time. There were approximately six persons carrying the coffin and one of the female staff members, Tammy Lescarik had to stop because she was sick. I had to take her share of the weight of the coffin and held both handles. I was standing on an angle on the hill and felt pain in my back, shoulders, legs and arms.
(iv) I was also involved in another incident where I was lowering a coffin into a grave at the Old Nerang Cemetery with five other persons. The strap that I was using to lower the coffin snapped. My first instinct was to grab the coffin and I took some of the weight. I immediately felt pain in my lower back."[3]
[3] For ease of reference paragraph numbers have been inserted.
During the cross-examination of Ms Kirby, it emerged that she could not recall seeing the NOC before it was lodged. Counsel for the Appellant objected to the tender of the NOC on the grounds that it is signed by her legal representative, was factually incorrect, had not been seen by Ms Kirby and did not reflect her instructions. It was admitted by the Commission on the basis that it was filed on behalf of Ms Kirby and was the document setting out her claim for damages. It was provided by Ms Kirby's Solicitors to Dr Gillett as information to take into account as part of his examination and report.
Although acknowledging in evidence that she had provided some of the information contained in the NOC to her Solicitors, Ms Kirby said the content of paragraph 38(iv) above was incorrect. In relation to this incident, Ms Kirby said she had not been holding a strap that had snapped. She had not been involved with lifting and did not take any of the weight while the coffin fell.
The NOC also lists the general duties performed by Ms Kirby. Tendered as part of Ms Kirby's evidence was a "Funeral Duties Statement" which lists "normal duties requiring physical effort for Funeral Assistants". The duties from this Statement and the general duties list in the NOC that Ms Kirby claims have contributed to her back injury are:
· moving chairs;
· carrying large Neverfail water bottles;
· vehicle maintenance;
· coffin deliveries;
· transfer of deceased persons;
· transfer of coffins/caskets and pallbearing at funerals; and
· burials.
In her evidence, Ms Kirby added to these matters the task of viewings.
The following witnesses gave evidence about the nature of the work of Funeral Arrangers:
For the Appellant
· Ms Kirby.
·John Haggett, Funeral Director/Conductor, Somerville Funerals, 2001‑2006.
·Karl Ansell, Funeral Director and Arranger, InvoCare, 2000 to present.
For the Regulator
·Jenny Crewes, Location Manager, InvoCare Nerang 2006-2008 and Manager, Somerville Funerals, 2008 to present.
·Jacqueline Matthews, Shared Services Manager, InvoCare, Nerang, 2009-2011 and Operations Manager, Mt Thompson Crematorium, InvoCare, 2011 to present.
I do not intend to set out the evidence from each of these witnesses seriatim. Rather, reference is made to pertinent evidence about each task given by relevant witnesses.
In general: Ms Kirby's normal working hours were 8.00 a.m. to 4.00 p.m. Monday to Friday. She was on call for arrangements about one weekend a month. Arranging a funeral involved office based duties. Ms Kirby was also required to attend funerals and perform certain tasks in connection with the funeral.
InvoCare has a Shared Services area which is responsible for functions that are shared between the brands. These include the mortuary (until 2007); transfers of deceased persons; storage of coffins and garaging and maintenance of vehicles. Between 2003 and 2012 the Shared Services staff, of whom there were five or six employees, were predominantly male. Ms Kirby said that when she worked for White Lady Funerals she was based at Tanah Merah and had little recourse to Shared Services.
Somerville Funerals arranged approximately 500-600 funerals per year when Ms Kirby was employed. The funerals would be divided amongst the Funeral Arrangers. Approximately 75 per cent of funerals involved cremations. Using those figures, it follows that about 12-15 burials per month occurred. Again, these would be spread amongst the Funeral Arrangers.
Moving chairs: Ms Kirby said that in the Somerville Chapel located at the Allambe Gardens Cemetery she had to move the heavy, wooden framed dining-type chairs that weighed about seven kilograms about three to four times a week depending on how the manager wanted the Chapel to be set up. The manager concerned was not Ms Crewes and did not give evidence. Ms Kirby acknowledged she received assistance with this task from Shared Services.
Where more than 80 people were expected at a funeral, she was required to set up metal framed collapsible chairs weighing about three kilograms and take them away at the end of the service.
Both Mr Haggett and Mr Ansell agreed that the chairs are usually set up in a standard layout in the Somerville Chapel. It was only on rare or unusual occasions that required them to be moved. Ms Crewes said the chairs are in a pre-arranged format and they may be required to be moved at most once per month.
Finding: I am prepared to accept that a previous manager may have had different requirements in setting up the Somerville Chapel than Ms Crewes. However, bearing in mind that Ms Kirby worked initially for White Lady Funerals and had one year's service with Simplicity Funerals, the amount of time for which she may have been required to perform this task under the previous manager is limited. Both Mr Haggett and Mr Ansell said that it was unusual to have chairs arranged outside of the standard layout. Further, Ms Kirby acknowledged receiving assistance from Shared Services in moving the chairs. After Ms Crewes' appointment in 2006 the need for Ms Kirby to move chairs was negligible.
Carrying large Neverfail water bottles: Ms Kirby said it was primarily her responsibility to change the water bottles in the Somerville Chapel. The water bottles weighed 15 kilograms each. She would collect a water bottle from the kitchen, put it on a trolley and wheel about 30 feet to the Chapel where she would lift it off and invert it onto the dispenser. On rare occasions she received assistance with this task.
Both Mr Ansell and Ms Crewes said this was a duty shared amongst all staff. Ms Crewes acknowledged undertaking the job herself.
Finding: There is conflicting evidence about whether this was Ms Kirby's responsibility alone or whether it was a task performed by all staff. While I am prepared to accept that Ms Kirby carried out this task from time to time the weight of evidence is that it was shared.
Vehicle maintenance: Ms Kirby's evidence in summary is that while working for White Lady Funerals she was required to wash the vehicle she used after each funeral as well as hearses and staff cars. Although at that time Ms Kirby appears to have been a casual employee she was called in five days a week. She washed vehicles every day but on most occasions received assistance.
When working for Somerville Funerals, the frequency with which Ms Kirby washed a hearse was limited because an employee from Shared Services was responsible for washing vehicles. Ms Kirby was responsible for cleaning the staff vehicle if she had worked on a weekend. This was about once a month. The frequency of washing staff cars was confirmed by Mr Ansell and Ms Crewes.
Ms Matthews said Shared Services were responsible for cleaning hearses and transport vehicles.
Finding: Ms Kirby undertook vehicle maintenance in her employment with White Lady Funerals. Although she was required to clean vehicles during her employment with Somerville Funerals, this seems to be limited to the staff car after she had been rostered on call one weekend in four. When Ms Kirby worked for Somerville Funerals, vehicle maintenance was primarily a Shared Service responsibility.
Coffin deliveries: Ms Kirby said the work involved in coffin deliveries required two people to carry a coffin, put it on a trolley and then two more coffins would be stacked on top. The trolley was then moved to shelving units where the coffins were unloaded. This task involved lifting the coffin above head height and pushing it onto the shelving. Ms Kirby could not lift a coffin by herself. She did not give evidence about the frequency of her involvement with this task although Mr Ansell recalls her assisting about five to 10 times.
The evidence from Mr Haggett, Mr Ansell and Ms Crewes was that Shared Services had primary responsibility for unloading coffins that had been delivered. Mr Haggett and Mr Ansell both said that on occasion, staff who happened to be present when the delivery arrived may assist in the unloading. Mr Haggett also said that Shared Services may occasionally request assistance.
That Shared Services required assistance with coffin deliveries was denied by Ms Crewes and Ms Matthews.
Finding: The Commission is prepared to accept that on occasion Ms Kirby assisted with unloading coffins. However, this was infrequent as it was primarily a responsibility of Shared Services.
Transfer of deceased persons: Ms Kirby explained the procedures in transferring a deceased person. These included wrapping the body in a plastic sheet - a job that involved bending, leaning, rolling the body and pulling the sheet. Further lifting was required to place the body on the trolley. The trolley was then pushed to the awaiting transfer vehicle. On occasion, a body may need to be manoeuvred in a small space or carried down stairs. Usually two staff are involved in a transfer. Where Ms Kirby was smaller than the other staff member involved in a transfer, she would take the feet when a body needed to be lifted.
Although Ms Kirby said in examination in chief she carried out about two transfers a week, she agreed under cross-examination that during her employment with Somerville Funerals that she was only called out to pick up a body a limited number of times. Further, the mortuary staff had the primary responsibility for the transfer and she assisted them.
During the period of her casual employment with White Lady Funerals, transfers were rotated amongst the approximately 10 Funeral Arrangers. However, Ms Kirby claims that about 50 per cent of her work then was transferring deceased persons.
Ms Kirby agreed that where a heavy body was to be collected assistance may on occasion be provided by nursing home or hospital staff or family members as the case may be.
Evidence from Ms Crewes and Mr Ansell was that Shared Services were responsible for transfers. When Shared Services were busy, assistance may be required from Somerville staff in the transfer of bodies but this was not a regular occurrence.
Finding: It appears that Ms Kirby was involved with more transfers while working for White Lady Funerals. During her employment with Somerville Funerals, this work was a Shared Services responsibility. Where Ms Kirby was called out on her rostered weekend or as needed, the work was infrequent and the (male) Shared Services staff usually took the heavier loads.
Transfers of coffins and pallbearing: Ms Kirby estimated that she was involved in about six funerals a week and at each funeral she would be required to lift. This included lifting bodies into a coffin or casket; lifting and carrying the coffin or casket to the hearse and then from the hearse to the grave site. Of the 70 percent of funeral services that were held at the Somerville Chapel, Ms Kirby said that the vast majority of them would require the coffin to be removed from the hearse and placed on a trolley where it would be wheeled to the catafalque (which can best be described as a scissor lift). The coffin would then be pushed onto the catafalque. At the conclusion of the service, the procedure would be reversed except that the coffin would be pulled from the catafalque onto the trolley.
On the limited occasions where a coffin was carried out of the Chapel, this could be done by family members.
There has been an increase in the number of oversized coffins used. Ms Kirby estimated that approximately 50 per cent of funerals in the later years of her employment involved oversized coffins. Mr Ansell said that although Shared Services might use an oversized coffin three to five times a week, this did not necessarily mean this number was used by Somerville Funerals. Ms Kirby said that she would know ahead of the funeral the weight that would be involved and would try to ensure that assistance was available to pallbear.
Mr Haggett said that the process for transporting a coffin to a funeral service involved loading a coffin from a trolley into the hearse which involved lifting the coffin at one end and placing it on a roller in the hearse. One person would take the weight of the coffin while the other pushed the trolley away. The process was reversed once the site of the funeral was reached. Generally only two staff were involved in loading and unloading of the coffin.
Mr Ansell explained the process of loading the coffin into the hearse as follows. The trolley holding the coffin would be wheeled to the hearse where it would be lifted onto the rollers. This was usually done by one person on each side. Once the foot of the coffin was on the roller the trolley would be pushed forward to get it as close to the vehicle as possible to minimise the amount of weight to be lifted. Either one person would lift the other end or both would take the handles to walk the coffin in either side of the trolley. In most cases where the Funeral Arranger was female, a male member of Shared Services would provide assistance in loading a coffin into a hearse.
The evidence of Ms Matthews is that Shared Services operate off a running sheet for a funeral. By the time the Funeral Arranger arrives, the coffin would be loaded into the hearse and the flowers in place.
Ms Matthews also explained the procedure where the body was to be cremated at Allambe Gardens and the service was held in the Somerville Chapel. In these cases, Shared Services would load the coffin into the hearse, drive it underneath the Chapel where it would be unloaded and placed on a catafalque which is then raised to the Chapel. On conclusion of the service, the procedure would be reversed.
It was generally agreed amongst the witnesses that family members would be encouraged to undertake pallbearing duties. This could occur in about 50 to 60 per cent of funerals involving burials. Where this was not done it was usual for four pallbearers to be required for a standard sized coffin and six for an oversized coffin. However, such staff numbers may not have been available on all occasions.
Ms Crewes said that Shared Services attend all funerals. In almost all cases the male member of Shared Services would take the heavier head end while the trolley is removed. For funeral services involving cremation, the Funeral Arranger would participate in three transfers of the coffin: once into the hearse, the second, from the hearse into the chapel and the third, loading the coffin from the chapel into the hearse.
In relation to funerals held in a church, Ms Crewes explained that the coffin is unloaded onto a trolley, the "church truck", and wheeled into the church. Ms Kirby said that the church truck is located underneath the hearse and the Funeral Arranger has to crouch to remove it. She estimated a church truck weighed between 25 and 30 kilograms. Ms Crewes said not much effort was required to remove the church truck. Further, the standard number of staff involved in a church funeral service was three.
Finding: Given that Mr Haggett, Mr Ansell and Ms Kirby each said they lifted the coffin from the hearse onto a trolley and then the catafalque and that this procedure was reversed at the conclusion of a service, the Commission accepts these lifts formed part of Ms Kirby's duties. However, this duty was shared with other staff, with a male member of Shared Services in most cases taking the heavier aspects of the lift. The manner of the transfer was also designed to minimise the weight borne by the female Funeral Arranger. I also accept the evidence of Ms Matthews that Shared Services also had a responsibility to load the coffin into the hearse, obviating the involvement of the Funeral Arranger.
The Commission is also prepared to accept that Ms Kirby was involved in the transfer of oversized coffins with assistance.
Further, it is accepted that Ms Kirby participated in pallbearing.
Burials: Ms Kirby explained that on arrival at a cemetery, the coffin is pulled from the hearse. Usually somewhere between four and six people are involved in the removal of the coffin and carrying it to the grave site. Usually, women take the lighter, foot end but on occasion, she had been required to take the heavier, head end. Ms Kirby said the foot end was still heavy.
Once the coffin is removed from the hearse it is carried to the grave site. Cemeteries tend to be undulating and stones are placed in each burial site. The ground sinks where large stones have been placed. The coffins are carried over such uneven ground to the grave site. The coffin is then placed on a lowering device which is commonly comprised of small posts, rods and straps. The coffin is manually lowered onto the straps. This may require the Funeral Arranger to straddle the grave site. A Funeral Arranger holds each end of a strap and the coffin is lowered into the grave. There are other means of lowering the coffin depending on the type of site.
When burials occurred at Allambe Gardens, assistance was available from grounds staff who were InvoCare employees. Ms Kirby said that for about half of the burials performed she would not be involved in lifting.
Funeral Arrangers are also responsible for removing the flowers from the hearse, placing them onto a rack which is then carried by two people and placed over the grave site. The flower racks weight upwards of 30 kilograms. Carrying the flower rack is similar to carrying the coffin, i.e., over undulating ground and straddling the grave site.
Ms Kirby was involved with two burials that occurred in a crypt when working for White Lady Funerals. One of those burials involved lifting a coffin. On that occasion the family assisted with the lifting of the casket but Ms Kirby and the other Funeral Arranger had to place the casket in the crypt.
Finding: The Commission accepts that Ms Kirby assisted in the carrying and lowering of coffins at grave sites. Assistance from other staff was provided in carrying the coffin and flower frame but such work could be heavy, particularly if an oversized coffin was in use. I consider the work involved in above ground burials to be so rare as to be not relevant to the claimed aggravation.
Viewings: Ms Kirby said that over the time of her employment with InvoCare, she had been involved in about 10 viewings. This involved going to the mortuary, placing the lid on the coffin, taking the coffin to the hearse then driving the hearse to the viewing area. This task was usually carried out in pairs.
Finding: There is limited evidence about this task. This task was infrequent - about once per year. Further, it was not one that was included in the NOC or the Funeral Duties Statement. I do not consider it to be relevant to this determination.
Medical Evidence
Dr Gillett
Ms Kirby was referred to Dr Gillett by her Solicitors. Dr Gillett examined her on 20 February 2014. At that time he had available various medical records as well as X‑rays and CT scans. In addition, he had the NOC and the Statutory Declaration Ms Kirby made in support of the NOC dated 4 February 2012. Dr Gillett prepared a report dated 20 February 2014 which included the following opinion:
"In relation to her condition it would be my view it is reasonable to support that work practices over time in relation to manual handling of coffins (in particular) would produce stress and strains on the lower back and more likely than not the level above the previous fusion. The natural history of her spine above the previous fusion is one of degeneration of those discs. This degeneration would be accelerated by any manual handling activities over a period of time. More likely than not there has been an acceleration of that degenerative process causing her back to be symptomatic at an earlier time than might have occurred had she not been involved in a manual handling occupation. My assumption is that at times she was undertaking manual handling outside the so called safe limits.
I would have thought inevitably without the work as a funeral director, even in a sedentary lifestyle, she would have had some increasing degeneration above this fusion mass as there is extra forces applied to the spine above this long fusion mass. I would estimate the acceleration period in the order of some 5 years or so over what was going to occur. That is in my view more likely than not she would have reached a similar situation that she is in at present had she not been doing this work (assumption that the practices at times are outside so called safe manual handling limits). That is I would have thought within 5 years of the onset of the symptoms which caused her to cease employment she would have reached a similar situation in a so called safe manual handling environment."
Dr Gillett provided further a report on 26 June 2014 after having been provided with the report of Associate Professor Steadman dated 27 May 2014. After noting Associate Professor Steadman's opinion, Dr Gillett advised his opinion remained unchanged.
For his last report dated 27 October 2014, Dr Gillett was provided with additional information including the "Funeral Duties Statement". He confirmed his opinion that the system of work would be consistent with the aggravation of a degenerative process. In respect of the "system of work", Dr Gillett was referring to the manual handling of coffins in particular, as well as walking on uneven ground and general heavy tasks. He made an assumption based on the Funeral Duties Statement and what Ms Kirby had implied that the position of a Funeral Director would meet the criteria of manual handling.
In addition to the documents identified above, Dr Gillett informed the Commission that Ms Kirby had told him that she had taken the weight of a coffin that had been let go on one side. This appears to be the incident listed in paragraph 38(iii) of the NOC. Further, she had spoken about lifting, walking on uneven ground, lifting heavy water bottles and "carrying coffin and body heavy". Dr Gillett conceded that he had not asked about the frequency with which Ms Kirby was required to lift heavier weights such as coffins holding deceased persons. He went on to say that the relevance of frequency of lifting depended on the weight of the object being lifted. If a lighter object was being manually handled frequently, then frequency would be a major issue. However, if the object was very heavy, then the frequency of its being manually handled was less of an issue because of the strain on the body.
After being taken through the evidence of Ms Kirby about her duties from the Regulator's perspective, Dr Gillett said:
"… the natural history of what happens above the fusion mass, that disc degenerates and wears out and becomes symptomatic or doesn't become symptomatic, but its - the fusion is the major risk factor in relation to why this lady's spine above the fusion has become degenerate. Now, all it means is if she - that's inevitable and if she's going to - if she's exposed it extra stress and strain either in work, day life or whatever, then the estimated time of when that's going to occur gets shortened. So if she's doing a lot of manual handling, which is my assumption, then my opinion would stand. If she's not doing a lot of manual handling, well, then Professor Steadman's opinion is on the money."
In re-examination, Dr Gillett said that even if the history was incorrect about the incident set out in paragraph 38(iii), it would not affect his opinion. In his view, the injury occurred over a period of time due to multiple manual handling.
Associate Professor Steadman
For his examination and report, Associate Professor Steadman was provided with a letter of instruction from Mullins Lawyers; treating records and Dr Gillett's medico legal report. It seems that the letter of instruction from Mullins Lawyers set out the four "duties/incidents" from the NOC. Associate Professor Steadman said Ms Kirby told him her back pain commenced in 2011 and, although she identified a number of work events, he was unable to ascertain any back discomfort that had arisen from them. She also said her back started getting sore and she developed some sciatica. In the absence of any specific incident of back pain, he went through the four "duties/incidents". Ms Kirby reported that she did not experience any symptoms in relation to the incidents listed in paragraph 38(ii), (iii) and (iv) of the NOC.
In his report dated 27 May 2014, Associate Professor Steadman says that he:
"was unable to ascertain any specific work related event or contribution over a period of time that would indicate employment was the cause of her complaint in terms of the deterioration … her case is one of the natural history of a spinal fusion and its subsequent evolution."
In giving his oral evidence Associate Professor Steadman explained that ASD is the degeneration of the disc that is next to the fusion. He said the aetiology of the condition was not completely understood. One theory is that it is mechanical so when a segment is fused a bigger lever arm is created that puts more pressure on the mobile segment next to the fusion. The alternative theory is that a degenerative disease has led to a person having a fusion and because it is largely a genetic disorder, a progressive degenerative disease process is occurring over time. He said there is a gradual decay in success of the original spinal fusion over time. The longer the period of time since the spinal fusion, the greater the risk became for the patient to develop ASD and back pain in that area.
Associate Professor Steadman was cross-examined about the types of practices that might be significant in assessing the risk of back injury. In response to one specific question, he said that he did not consider performing the task of carrying a coffin or casket with a deceased person in a team of two for a short distance once or twice a week would accelerate the degenerative process because he would have anticipated an event leading to the alteration of the well-known disease. However, many of the propositions that were put to Associate Professor Steadman were broad and general, for example, whether "sustained postures", "repetitive movements" or "loads" would involve risk of back injury. When a particular task was identified, such as whether pushing or pulling a coffin or casket on a trolley into the back of a hearse would involve risk of back injury, and even when weights were nominated, details of the role played by Ms Kirby were not explained. In answer to these types of questions, Associate Professor Steadman highlighted that to increase the risk of back injury, "really repetitive" movements would be required.
He accepted that were it to be established that Ms Kirby was undertaking lifting and sometimes heavy lifting, then employment may have accelerated the onset of the degenerative changes in the adjacent disc as Dr Gillett opined. However, after being taken through the nature and the frequency of the tasks as the Regulator claimed was the evidence of Ms Kirby, Associate Professor Steadman did not consider these would have altered the disease course in any substantial way. The absence of her reporting any symptoms associated with those tasks strengthened his opinion that the ASD was not related to her work practice.
Associate Professor Steadman referred in his evidence to an article, "Adjacent Segment Disease after Lumbar Spinal Fusion: A Systematic review of the Current Literature". The authors of this article undertook a literature review for the purpose to "define the problem of ASD, discuss the risk factors for developing ASD, and summarize the current recommendation for management of ASD." He quoted the following passage:
"The factors responsible for increased risk of ASD appear to be another area of some conflicting results. Kim et al tested several potential risk factors including age at operation, sex, surgical method (ALIF or posterior lumbar interbody fusion [PLIF]), follow-up period, preoperative/postoperative smoking, occupational lifting, frequency of squatting, habitually sitting on hard floors, sport activities, and high body mass index. None of these variables demonstrated any significant influence on the development of ASD." (references omitted)
In his evidence in chief, Associate Professor Steadman was asked whether particular tasks would have contributed to her back condition. Invariably he answered that those duties would not necessarily alter the course of the disease in any substantial way. In particular, he rejected that washing of vehicles, changing the water dispenser and moving chairs would significantly contribute to ASD. In cross-examination, Associate Professor Steadman did not consider that the combined effect of all of the tasks undertaken over a period of approximately 10 years would have accelerated the degenerative process in Ms Kirby's back. When asked further about this by the Commission, Associate Professor Steadman said that it was improbable that the combined effect of the work events may have contributed to the back condition but "there are no absolutes in medicine."
Conclusion
The onus rests with the Appellant to establish on the balance of probabilities that the aggravation of her injury satisfies the elements of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
The Commission accepts the submissions of the Regulator that the Health Status Assessment does no more than establish that Ms Kirby was fit for work when she commenced employment with InvoCare. It does not establish or assist in establishing that the nature of the work contributed to an aggravation of her back injury. This is because both Orthopaedic Surgeons agree that ASD can be a consequence of a spinal fusion.
The Appellant submits that I should accept Dr Gillett's opinion. For a medical opinion to be of any value, it must have been based on facts which are proved by admissible evidence.[4] Dr Gillett's opinion, formed from the information provided to him, is that Ms Kirby's employment met the criteria of manual handling and accelerated the onset of her condition.
[4] Pollock v Wellington (1996) 15 WAR 1, 3.
The Orthopaedic Surgeons agree that if the work involved "a lot" of manual handling then employment would be a significant contributing factor to the injury. This view was qualified by Dr Gillett who considered the frequency of manual handling was not so much of an issue where objects were very heavy. The issue is complicated by neither specialist defining what constitutes a lot of manual handling. To shed some light on the matter both the evidence about the weights involved and the frequency of handling those weights will be examined.
I have found that the chairs Ms Kirby moved were not heavy and the amount of time involved in this task was limited. While she may have had some greater involvement in washing cars while employed with White Lady Funerals, her involvement was limited after this period. Ms Kirby's involvement in carrying the water bottles was found to be not as great as she had claimed and her participation in coffin deliveries was infrequent. Associate Professor Steadman did not consider these tasks contributed to her back injury. I consider these tasks had little if any impact on the development of her condition as they cannot be described as repetitive manual handling and the weights involved were not significant.
The tasks which may have contributed to the aggravation of her back injury are the transfer of deceased persons, the transfer of coffins, pall bearing and inground burials. Dr Gillett was unaware that from 2003, a Shared Services team comprised of mainly men, was primarily responsible for performing transfers of deceased persons. He acknowledged in cross‑examination that acceptance by the Commission of the evidence about the work performed by the predominantly male Shared Services Team would impact on his conclusion that work was a causal factor of the injury. I have accepted that evidence and also found that Ms Kirby's involvement in this task was infrequent for the majority of her employment.
The remaining tasks are those she performed while working directly on funerals. It is accepted that each of these tasks involved some lifting. Various witnesses made assumptions about the average weight of coffins and deceased persons. The amount of the load borne by Ms Kirby in the transfer of coffins is unclear given that the transfer of the coffin in and out of the hearse and on and off the catafalque was carried out in company with another staff member, predominantly male, who would take the heavier load. Similarly, pallbearing and carrying coffins to grave sites also involved shared lifting. In my view, there is an absence of reliable information about the weight of the load borne by Ms Kirby, especially when the evidence establishes she usually took the lighter load.
The Commission accepts that on occasion Ms Kirby was involved in carrying oversized coffins and at times six people may not have participated in carrying them. It is possible that the weight taken by Ms Kirby on occasion was outside safe manual handling limits. Again however, the weight of loads borne by her in the performance of this task has not been satisfactorily established.
I have considered the evidence about the frequency of transferring coffins, pallbearing and inground burials. Again, estimates were made by various witnesses about the frequency with which these tasks were performed. On the evidence available it appears the maximum number of funerals conducted by Somerville Funerals was 600 per year. Approximately ten percent of funerals do not require a service and these types of funerals did not require the attendance of the Funeral Arranger. About 75 per cent of funerals involved cremation leaving 150 burials to be performed. The funerals involving services and cremations were spread amongst a maximum of eight Funeral Arrangers.[5]
[5] This was the number nominated by Ms Kirby.
I have tried to make calculations on the best case available to Ms Kirby. These calculations assume 540 funerals requiring services per annum were shared across six Funeral Arrangers each of whom took one month for annual leave. The results are that a Funeral Arranger would be involved in about eight funerals and about two inground burials per month. Ms Kirby's evidence is that she was involved in about six funerals a week, however, the figures I have arrived at accord with the evidence of Ms Crewes.
I accept that when Ms Kirby was involved in a service in the Somerville Chapel, she would be required to undertake multiple lifts. However, as mentioned earlier the weight she lifted is unclear. Further, the lifts only involved short distances and were for a short duration. The calculations above show that the frequency of lifting over a month was much less than Ms Kirby claimed.
The frequency with which Ms Kirby was involved in lifting oversized coffins has been unable to be established with any precision given the disparity of the evidence between Ms Kirby and Mr Ansell. However, Ms Kirby's evidence was that she knew in advance when a funeral required an oversized coffin and she usually was able to arrange assistance.
After being taken through the frequency of the tasks which might be considered to be heavy, Associate Professor Steadman did not consider they would alter the course of the disease. He was also of the view that it was improbable that the combined effects of the work tasks had contributed to her back condition. His opinion also receives some support from the article to which he referred, in particular, that occupational lifting was one of the variables that did not demonstrate any significant influence on the development of ASD.
After analysing the evidence and given the unreliability of some of it, I have been unable to be satisfied about the weight of the loads borne by Ms Kirby. I cannot conclude that the weights were consistently heavy or very heavy, although I do accept that on occasion the weight borne in carrying oversized coffins may have exceeded safe manual handling limits. The frequency of the lifting is also much less than contended by Ms Kirby. It cannot be described as repetitive manual handling or even "a lot".
The evidence also establishes that when Ms Kirby was not working directly on funerals, her work was office based. In light of the number of funerals that Ms Kirby worked on per month, a reasonable proportion of her work was performed in the office.
Dr Gillett believed the four duties/incidents occurred as described in the NOC. The evidence from Ms Kirby is that she was not affected in the incident where a strap lowering a coffin broke.
A number of assumptions made by Dr Gillett about the nature of the work performed by Ms Kirby have not been established on the evidence. The value of Dr Gillett's opinion is therefore diminished with the result that I cannot safely arrive at the conclusion that Ms Kirby's work hastened the onset of ASD.
Ms Kirby was symptom free until about 2010 when she commenced yoga and pilates. The development of those symptoms was not associated with any particular incident or work task. The insidious onset of symptoms as described by Ms Kirby is more consistent with the evidence of Associate Professor Steadman as to the cause of the aggravation of her back condition.
In the circumstances the Commission is unable to accept on the balance of probabilities that the aggravation to Ms Kirby's back condition arose out of her employment or that employment was a significant contributing factor to it.
Orders
1. The appeal is dismissed.
2. The decision of the Regulator is confirmed.
3. The Appellant is to pay the costs of and incidental to the appeal. Failing agreement, the Regulator is given liberty to apply.
Funeral Assistant etc. For the purposes of this Decision it will be referred to as Funeral Arranger.
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