Lagerewskij and Comcare Australia

[2007] AATA 1603

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1603

ADMINISTRATIVE APPEALS TRIBUNAL                No.   2007/0448

GENERAL  ADMINISTRATIVE   DIVISION
Re		LARISSA FRANCES LAGEREWSKIJ

Applicant

And COMCARE AUSTRALIA

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member

Date:30 July 2007

Place:Melbourne

Decision:

The Tribunal sets aside the reviewable decision of 17 January 2005 and substitutes a decision that:

·     Ms Lagerewskij sustained injury arising out of or in the course of her employment being aggravation of sacroiliac joint dysfunction to which employment made a material contribution and which resulted in incapacity for employment and is therefore entitled to compensation under s 14 of the Safety, Compensation and Rehabilitation Act 1988;

· Ms Lagerewskij is entitled to weekly payments of compensation in respect of incapacity for work resulting from the injury under s 19 of the Act for periods of both total and partial incapacity from 2 April 2004 onwards to the present day and to continue in accordance with the Act;

·     The Tribunal remits the matter to the respondent to calculate incapacity benefits and, in particular, to assess Ms Lagerewskij’s ability to earn in suitable employment from 25 January 2005 onwards;

· Ms Lagerewskij is entitled to compensation in respect of her reasonable medical and related expenses, including hospital stays, diagnostic scans, physical therapy, psychological counselling and medication under s 16 of the Act; and

· The respondent shall pay Ms Lagerewskij’s reasonable legal costs and disbursements of the review proceedings under s 67 of the Act.

(sgd) G. D. Friedman

Senior Member

COMPENSATION - remittal from Federal Court - pain to right buttock and lower back - sedentary occupation - whether work-related

Administrative Appeals Tribunal Act 1975 s 44

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 16, 19, 67

Comcare v Canute [2005] FCAFC 262

Comcare v Sahu-Khan [2007] FCA 15

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Re Lagerewskij and Comcare Australia [2006] AATA 307

Tippett v Australian Postal Corporation [1998] 335 FCA

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

30 July 2007  G.D. Friedman, Senior Member

1. This matter has been remitted to the Tribunal by the Federal Court of Australia for re-consideration according to law following an appeal under s 44 of the Administrative Appeals Tribunal Act 1975, against a decision of the Tribunal made on 4 April 2006 (Re Lagerewskij and Comcare Australia [2006] AATA 307), which affirmed the respondent’s decision to refuse to grant compensation to Ms Larissa Lagerewskij.

2.      Ms Lagerewskij was born in 1969.  She joined the Commonwealth Rehabilitation Service (CRS) in October 2003 as a rehabilitation consultant.  On 17 May 2004 she lodged a claim for compensation arising from lower back pain and pain to her right buttock, which she claimed was caused by her duties with CRS that involved prolonged periods of sitting.  The respondent disagreed, and stated that her symptoms were caused by her participation in activities that were unrelated to her employment.

3.      The issues before the Tribunal are whether Ms Lagerewskij suffered a work-related injury and, if so, whether the injury is compensable.

DID MS LAGEREWSKIJ SUFFER A WORK-RELATED INJURY?

4. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that:

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

Injury is defined in s 4(1) of the Act as including a disease, which in turn is defined as:

(a)       any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

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

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

5.        Ms Lagerewskij told the Tribunal that she obtained tertiary qualifications in arts and educational psychology at the University of Tasmania.  Her employment with CRS involved carrying out assessments for capacity to work, and case managing clients.  She said that her duties were primarily sedentary, and involved seeing two clients per day.  The remaining time was spent on administrative matters such as liaising with medical practitioners, talking to employers, research and marketing.  She said that she had a heavy workload and remained seated for most of each day; although she conceded that she was able to set her own priorities and manage her own duties.

6.        After Ms Lagerewskij commenced employment with CRS she undertook a Certificate III course in fitness (gym instructor stream) at Victoria University, which she completed over a number of weekends.  She said that the course involved observing instructors at a gymnasium and providing oral advice to clients, but did not require her to use the various types of apparatus or to engage in exercise.  She said that on 20 March 2004 during a practical placement at the gymnasium she felt pain in her right gluteal muscle (buttock).  Ms Lagerewskij stated that on 23 March 2004 at CRS, she experienced discomfort while participating in an all-day team meeting (9am to 5pm) at which she was seated for most of the day.  On 26 March 2004 she left work in pain after about 15 to 20 minutes.  She said her impairment or incapacity for work commenced on 29 March 2004 when she realised that she was unable to carry out her duties.

7.        Ms Lagerewskij said that from April 2004 she was unable to work full-time, and attempted a graduated return to work program on two occasions in conjunction with her physiotherapy and other treatment, including cortisone injections.  She said that she was unable to sit for short periods because of the pain, and by October 2004 she was totally incapacitated.  She said that the chair supplied by CRS was too big and exacerbated her pain, and that attempts to use a range of chairs, including a kneeling chair, did not lead to significant improvement.  She said that by January 2005 she was seeking alternative employment options that involved less sitting, and she resigned on 24 January 2005 after her request for leave without pay was refused.

8.        After her resignation Ms Lagerewskij commenced part-time employment as a fitness instructor, and has also worked as an emergency teacher, consultant psychologist and disability counsellor.  She stated that she has been able to manage her pain with appropriate exercises and physiotherapy, and since June 2005 has been relatively pain-free.  She denied that activities such as group weight and exercise classes at the gymnasium (pump classes), or lifting children when childminding, as mentioned in the physiotherapy assessment sheet (Exhibit R3) had led to her symptoms.  She also denied she had told Dr B. Lovell (musculo-skeletal physician) or anyone else, that such activities had done so.

9.        Dr P. Verrills, pain medicine specialist, told the Tribunal that the history he took from Ms Lagerewskij was that she experienced no pain until 20 March 2004, which was about six months after she had commenced working with CRS.  He said that there was a significant chance that her pain arose predominantly from the sacroiliac joint.  Dr Verrills said that sacroiliac pain is exacerbated by maintaining a prolonged position (such as sitting, squatting or lying in a prone position), and that prolonged sitting in a non-ergonomic chair would be consistent with pain in the sacroiliac joint.  He said that her attendance at a gymnasium or engaging in other physical activities would not add or subtract from the story.  Dr Verrills stated that he administered two cortisone injections into Ms Lagerewskij’s sacroiliac joint, and the second provided some pain relief for her.  In his written report (Exhibit A2) he concluded that Ms Lagerewskij presented as a sensible and reasonable person without any evidence of exaggeration or inappropriate illness behaviour.

10.      In a written report (Exhibit A3) Dr M. Hislop, sports physician, stated that Ms Lagerewskij presented to him on 15 April 2004 with right-sided buttock pain for one month.  He referred to the medical investigations and interventions and said that she has an underlying predisposition to sacroiliac joint dysfunction, which has been exaggerated and exacerbated as a direct consequence of her work duties at the time.  He referred specifically to prolonged periods of sitting and working in a non-ergonomic environment.  In oral evidence Dr Hislop said that an inappropriate chair, or prolonged periods of sitting, may have aggravated her symptoms, and that this was one of the main factors, based on the history given to him by her.  Under cross-examination he agreed that Ms Lagerewskij had been an extremely active person, and that activities such as pump classes, or non-sporting activities such as driving a motor vehicle for long periods or lifting young children, could aggravate a sacroiliac condition.

11.      Mr C. Jones, orthopaedic surgeon, gave evidence that sacroiliac dysfunction was a description and not a diagnosis.  He said that there was no inflammatory problem around the spine and sacroiliac joint area, or any degenerative change, and he was unable to explain her symptoms in physical terms.  Mr Jones told the Tribunal that there was no nexus between her symptoms and her employment with CRS, and that sitting at a workstation for five months did not lead to the development of back pain.  He noted that Ms Lagerewskij claimed that the employer’s failure to modify her work duties aggravated her back condition, but he said that he did not believe that this was the case.

12. Although Mr Jones was unable to make a diagnosis, the Tribunal prefers the medical evidence from Dr Hislop and Dr Verrills that the history given by Ms Lagerewskij and the medical investigations are consistent with a diagnosis of sacroiliac joint dysfunction, and finds that Ms Lagerewskij suffers from an injury as defined in s 4(1) of the Act being aggravation of sacroiliac joint dysfunction.

IS THE INJURY COMPENSABLE?

13.      In Tippett v Australian Postal Corporation [1998] 335 FCA Finkelstein J stated that if pain arising from an underlying condition is worsened or increased by reason of matters involving employment, then the person will have suffered a compensable injury.

14.      In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Full Federal Court applied Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and held at 328:

…once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.

15.      In Comcare v Sahu-Khan [2007] FCA 15 Finn J adopted the conclusions of the majority in Comcare v Canute [2005] FCAFC 262 on the question of material contribution required for liability in respect of an ailment, and referred to an evaluative threshold below which a causal connection with an ailment may be disregarded.  He held that this requires an evaluation of all relevant contributing factors in deciding whether the employment contributed to the necessary threshold level in relation to the ailment and stated at [16]:

Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:

(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;

(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");

(iii) whether this will be so in a given case will be a matter of fact and degree.

16.      The Tribunal accepts that Ms Lagerewskij’s interviews with clients and her administrative tasks such as report writing, telephone calls and data entry were normally carried out in a typical office environment, and were performed in a seated position.  The Tribunal takes into account Ms Lagerewskij’s evidence that the chairs used by her while employed by CRS were not the most appropriate from an ergonomic point of view. 

17.      The Tribunal accepts that prior to 20 March 2004 Ms Lagerewskij was an extremely active person who attended gymnasium several times per week (including pump classes) in addition to her Certificate III commitments, and she enjoyed a range of physical activities.  Ms Lagerewskij maintained that her practical placement tasks on 20 March 2004 involved only verbal advice to clients.  Although in a gymnasium setting with clients engaged in potentially injury-causing activities such verbal advice might sometimes be accompanied by some form of practical demonstration, the Tribunal accepts her evidence that on this day she was observing qualified instructors and there was no practical demonstration by her.  There is no persuasive evidence that she was involved in a pump class on that day.

18.      On balance the Tribunal finds that Ms Lagerewskij’s evidence was credible and was largely consistent with the medical evidence and the history given to various medical practitioners and other health professionals.  The Tribunal accepts that the onset of her pain became apparent on 20 March 2004 and worsened on 23, 26 and 29 March 2004 in the circumstances she described.  Although other factors may have made some contribution, the Tribunal is reasonably satisfied that her employment activities with CRS before 20 March 2004 that involved prolonged sitting played a material part.  For these reasons the Tribunal finds that Ms Lagerewskij sustained an injury that was contributed to materially by her employment by 29 March 2004 and resulted in incapacity for employment.  In these circumstances she is entitled to compensation under s 14 of the Act.  As a consequence she has an entitlement to payments as set out in the decision.

DECISION

19.The Tribunal sets aside the reviewable decision of 17 January 2005 and substitutes a decision that:

·Ms Lagerewskij sustained injury arising out of or in the course of her employment being aggravation of sacroiliac joint dysfunction to which employment made a material contribution and which resulted in incapacity for employment and is therefore entitled to compensation under s 14 of the Safety, Compensation and Rehabilitation Act 1988;

·Ms Lagerewskij is entitled to weekly payments of compensation in respect of incapacity for work resulting from the injury under s 19 of the Act for periods of both total and partial incapacity from 2 April 2004 onwards to the present day and to continue in accordance with the Act;

·The Tribunal remits the matter to the respondent to calculate incapacity benefits and, in particular, to assess Ms Lagerewskij’s ability to earn in suitable employment from 25 January 2005 onwards;

·Ms Lagerewskij is entitled to compensation in respect of her reasonable medical and related expenses, including hospital stays, diagnostic scans, physical therapy, psychological counselling and medication under s 16 of the Act; and

·The respondent shall pay Ms Lagerewskij’s reasonable legal costs and disbursements of the review proceedings under s 67 of the Act.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  13 July 2007

Date of decision:  30 July 2007

Counsel for applicant:                  Mr M. Carey
Solicitor for applicant:                  Opie & Co.
Counsel for respondent:              Mr J. Ferwerda
Solicitor for respondent:              Sparke Helmore