Lagerewskij and Comcare Australia

[2006] AATA 307

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2006] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/183

GENERAL ADMINISTRATIVE DIVISION

Re:         LARISSA FRANCES LAGEREWSKIJ

Applicant

And:COMCARE AUSTRALIA

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:4 April 2006

Place:Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

COMPENSATION - pain to right buttock and lower back - sedentary occupation -       whether work-related

Safety, Rehabilitation and Compensation Act 1988 ss 6, 14

REASONS FOR DECISION

4 April 2006  G.D. Friedman, Senior Member

1.      Larissa Lagerewskij was born on 20 June 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 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.

2.      The issue before the Tribunal is whether Ms Lagerewskij’s pain was related to her employment with CRS.

WHAT IS THE NATURE OF THE INJURY?

3.        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 in 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.

4.        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.

5.        From April 2004 Ms Lagerewskij 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.             

6.        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.

7.        Dr P. Verrills, pain medicine specialist, told the Tribunal that he administered two cortisone injections into Ms Lagerewskij’s sacroiliac joint, and the second provided some pain relief for her.  He 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.

8.        Dr M. Hislop, sports physician, told the Tribunal that Ms Lagerewskij’s symptoms were consistent with a pre-disposition to sacroiliac joint dysfunction.  He 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.  He agreed that Ms Lagerewskij had been an extremely active person, and that activities such as pump classes, or non-sporting activities such as lifting young children, were also possible aggravating factors.

9.        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.

10.      Although Mr Jones was unable to make a diagnosis, the Tribunal prefers the medical evidence from Dr Hislop and Dr Verrills that Ms Lagerewskij suffers from a pre-disposition to sacroiliac dysfunction and that the pain may be exacerbated by a range of physical activities including sitting, squatting, lifting or lying down. 

DID MS LAGEREWSKIJ’S EMPLOYMENT CONTRIBUTE TO HER INCAPACITY FOR WORK?

11.      Section 6 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) refers to an injury arising out of, or in the course of employment.  Section 14 of the Act provides that compensation is payable if the injury results in incapacity for work.

12.      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 performed in a seated position.  The Tribunal takes into account Ms Lagerewskij’s evidence that the chairs used by her while employed by CRS may not have been the most appropriate from an ergonomic point of view.  However, it notes that she had the freedom to manage her working day and was able to stand, stretch, walk around the office and take breaks whenever she wished.  This was subject to the demands of the particular task she was undertaking.  As a practising rehabilitation consultant she was aware of the need for regular breaks.

13.      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.  There is no material before the Tribunal to suggest that Ms Lagerewskij experienced symptoms of right buttock or lower back pain before 20 March 2004, when the first symptoms occurred at a gymnasium when she was engaged in activities unrelated to her employment.

14.      Although Ms Lagerewskij maintained that her practical placement tasks on that day involved only verbal advice to clients, the likelihood is that in a gymnasium setting with clients engaged in potentially injury-causing activities, such verbal advice may have been accompanied by some form of practical demonstration.  The Tribunal takes into account that the Certificate III course included criteria such as Correctly demonstrated the exercise and Demonstrated appropriate stretches and she successfully completed these in respect of squats, lunges and barbell presses, although not necessarily on that day.

15.      Ms Lagerewskij ceased attending pump classes and gymnasium after experiencing buttock and lower back pain, although she did not accept that this was the cause of the pain.

16.      The medical evidence in this matter is speculative, and the reports from Dr Hislop (Exhibit A3) and Dr Verrills (Exhibit A2) seem to be based primarily on the history of sedentary employment at CRS given by Ms Lagerewskij.  Neither report mentions her non-employment activities in the relevant period.  For these reasons the Tribunal concludes that the condition may have resulted from a number of activities in which she had been engaged.  It is not satisfied, on all the available material, that Ms Lagerewskij’s condition was an injury arising out of, or in the course of her employment.

DECISION

17.The Tribunal affirms the decision under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Dates of hearing:  29 and 30 March 2006

Date of decision:  4 April 2006

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