Lolic and Comcare (Compensation)
[2019] AATA 3944
•26 September 2019
Lolic and Comcare (Compensation) [2019] AATA 3944 (26 September 2019)
Division:GENERAL DIVISION
File Number: 2016/0989
Re:Ms Indira Lolic
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms Anna Burke, AO Member
Date:26 September 2019
Place:Melbourne
The Tribunal sets aside the decision under review and decides that Comcare is liable to pay compensation for Ms Lolic’s injuries, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal remits the matter to Comcare for reconsideration in accordance with this decision.
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Ms Anna Burke AO, Member
Catchwords
WORKER’S COMPENSATION – public servant – denial of liability – whether injury is work related – conflicting medical evidence – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Australian Postal Corporation v Burch [1998] FCA 944
Canute v Comcare (2006) 226 CLR 535
Commonwealth of Australia v Kathleen Beattie, Re (1981) 53 FLR 191
Cross and Comcare (Compensation) [2018] AATA 52
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
Gait and Comcare (Compensation) [2018] AATA 4282
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2011] AATA 886
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2016] AATA 459
Reardon and Comcare [2015] AATA 360
Schodde and Comcare (Compensation) [2015] AATA 598
Su v Comcare [2011] AATA 934
REASONS FOR DECISION
Ms Anna Burke, AO Member
The application by Ms Indira Lolic is for review of a decision made by a Review Officer of the Respondent, Comcare, on 14 January 2016. That decision affirmed a Determination dated 28 October 2015, which found that the Respondent had no liability to pay compensation to the Applicant in respect of a soft tissue injury: right wrist, tenosynovitis shoulder and neck affecting the arms/hand (wrists), neck and both shoulders pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”).
Ms Lolic commenced work with the Department of Human Services (DHS) on 4 June 2007 as a full time Customer Services Officer and continues in that role on reduced hours. Ms Lolic works in the Participation Support Team where she takes, on average, 30 inbound calls per day from Centrelink clients in respect of their participation mutual obligations. Centrelink clients call to advise about their non-attendance at a required appointment with Centrelink, a prospective employer, a training course or the like. The calls involve Ms Lolic interviewing the client to ascertain the facts about their non-attendance, to establish if they have a valid reason and then to determine the consequences of their non-compliance. The role involves receiving the call through a head set and typing throughout the interview to complete the required application. Post interview there may be additional data entry and, occasionally, emails to send.
On 9 October 2013, Ms Lolic submitted an incident report noting that whilst undertaking her normal duties “using the mouse with her hand” she sustained sore wrists affecting her arms/hand. On 18 November 2013, she attended Dr Ortega, her regular general practitioner located near her residential address, complaining of a sore wrist. He provided a referral for an X-ray and ultrasound of her right wrist. On 28 November 2013, Ms Lolic attended Dr Navani, a general practitioner located near her place of employment, complaining of a sore wrist. He provided a referral for an X-ray and ultrasound of her right wrist. Dr Navani also provided Ms Lolic with a Certificate of Capacity which described her “injury/disease as sore right hand/shoulder/neck diagnosed as “?Soft tissue Injury, Right Wrist (Tenosynovitis) Shoulder/Neck with work restrictions to [a]void small repetitive activities with Right Hand/restrict Typing and data entry – self pace other office duties okay.”
On 8 September 2015, Ms Lolic submitted a claim for workers compensation indicating that her hands, arms, wrists and shoulders were impacted by an injury that she first noted on 9 October 2013 and had first sought medical treatment for on 28 November 2013.
On 28 October 2015, a Comcare delegate determined that Ms Lolic did not suffer from an ailment as defined in the SRC Act and as such her claim had been disallowed under section 14 of the SRC Act. The delegate determined that there was insufficient proof that Ms Lolic suffered from an ailment and it could not be ascertained if her employment caused her condition. Additionally, that for the last two years Ms Lolic had received multiple workplace interventions and treatments which did not appear to have improved her condition.
On 14 January 2016, the Comcare Review Officer affirmed the determination of 28 October 2015. The Review Officer stated:
Although I am satisfied that you suffer ‘an ailment’, clinical justification from a treating doctor has not been provided to substantiate that your condition has been contributed to, to a significant degree, by your employment with the Department of Human Services.
I am satisfied that you experience pain when you perform your duties. However, the mere existence of pain in the workplace does not represent significant contribution.
Although Dr Navin and Dr Sharma attributed your condition to a repetitive strain injury caused by the duties you perform, this conclusion was made prior to the MRI and ultrasound being performed.
A clinical explanation has not been provided to confirm that their opinion remains unchanged now that investigation results have found that you suffer from C/5/6 disc protrusion and mild thickened subacromial bursa causing mild bunching and impingement of the bursa.
Without supporting medical evidence, I cannot be satisfied that the experience of pain whilst in your place of work provide substantial evidence that your work duties have actually caused the identified conditions or a clinical aggravation of the conditions.
On 16 February 2016, Ms Lolic applied to the Administrative Appeals Tribunal (AAT) for review of the determination. She said:
The decision is wrong and it should be noted all medical cert/reports taken into consideration.
…
I saw my doctor on 28.11.13, who advised I need avoid repetitive activities with right hand and his diagnosis is ?Soft Tissue Injury right wrist (Tenosynovitis), neck and right shoulder pain. I was referred to an Occupational Therapist (OT) and started treatment and pain management straight away. I also had an x-ray and ultrasound in December 2013 I reported this to my seniors/supervisors and had a workstation assessment done I gave them my medical certificates also.
I started a compensation claim in November 2013, however was advised by HR I need to cancel that claim due to Early intervention authorisation – I was advised it can’t be a claim if I am on ‘Early intervention’. I proceeded to work same hours and same duties – however was granted ‘Early intervention’ and was advised by my Human Resource Representative I have 6XOT sessions which they will reimburse me, through pay, so I pay for my medical visits with the OT and that I complete reimbursement form – I get this back with my pay… I continued on saw my doctor on regular basis and the OT for 6 sessions. In April 2014, due to my continuing pain, the OT requested I keep seeing him for another 5 sessions at least
I had provided all medicinal certificates to this point. In July, I took 12 weeks off, to have a break and recover – however this did not help and I continued to have OT sessions on a regular basis, until the HR department advise they will not cover any more. I continued exercises on OT advice and the doctors. In early 2015, wrist pain, shoulder and neck pain was so severe that I insisted I have a HR representative – as there was no one assigned to me at this point. After that I had an initial needs assessment by Accelerait.
I saw the doctor on regular basis, as the pain got more severe. On 25.9.15, my doctor went from writing medical certificates for 14 days and changed to continuing certificates of capacity as he suggested I needed an Ultrasound and an MRI on my spine.
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The medical evidence on file, was sufficient as it included all medical certificates from the doctor and findings. On the 14.10.2016, medical certificate states the definite diagnosis – MRI showed C5/6 Disc protrusion and Impingement of C6 nerve root – ultrasound showed right shoulder subacromial bursitis and impingement under comments in certificate of capacity, where the 2013 results showed no relevant abnormality. The delegate couldn’t make a finding as to the contribution employment had made – however clearly is outlined in the doctor’s report that my condition has arisen directly due to repetitive use of my upper limb and administration and typing work. The type of injury C5 /6 disc producing impingement of C6 nerve root – ultrasound showed right shoulder subacromial bursitis and impingement is a repetitive strain injury.
My treating doctor has provided clinical justification re: my condition to substantiate that my condition has been contributed to, to a significant degree, by my employer DHS. The conclusion re: my condition was NOT made prior to the MRI as the MRI took place on the 7.10.2015 and medical certificate with the exact diagnosis (MRI showed C5/6 disc protrusion and impingement of C6 nerve root – ultrasound showed right shoulder subacromial bursitis and impingement) or conclusion was made on the 14.10.15.
The Tribunal was provided with documentation pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents and Supplementary T-documents), additional medical reports and summons material. The Applicant tendered several medical reports and statements. The following persons gave oral evidence at the hearing: Ms Lolic, Doctor Vijay Navani, general practitioner, Doctor Debo Goria, Consultant Neurologist, and Mr Ronald Haig, Consultant Orthopaedic Surgeon.
ISSUES
The Tribunal needs to consider the following relevant issues:
· Has Ms Lolic suffered an injury (disease) and if so has her employment at Department of Human Services (DHS) contributed to that condition or the aggravation of that condition to a significant degree?
· Has Ms Lolic suffered an injury (other than a disease) and if so did it arise out of, or in the course of, her employment with the DHS?
· If the answer is yes to either of the above, is Comcare liable to pay compensation?
LEGISLATION
Relevantly, section 14(1) of the SRC Act provides that, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the SRC Act defines an ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the SRC Act, as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or;
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
...
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
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THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the tribunal
Ms Lolic
Ms Lolic’s statement of 20 January 2017, lodged with the Tribunal in respect of these proceedings, sets out at length the events leading to her claim:
In 2013 I developed pain in the right wrist which, over a period of time, extended to the right shoulder and neck.
Later on, when I tried to use the mouse in the left hand because of the pain, over a period I started getting symptoms in the left side as well.
I reported the pain at work and my employer arranged for an economic assessment of the workstation to be performed. The assessment was done on 9 December 2013.
I went to see Dr Vijay Navani at the Sunshine City Medical Centre for treatment. I explained to Dr Navani that I did computer based work at a call centre type job and that I had pain in the right wrist as well is the left when I moved the mouse to the left hand side because the pain was present in the right. He checked my right hand, shoulder and neck and advised me to take some pain medication and suggested I see Mr Arun Sharma for hand therapy.
Dr Navani gave me a medical certificate dated 28 of November 2013 concerning the sore right hand, shoulder and neck advising me to avoid small repetitive activities of the right hand and restrict typing and data entry. He felt that I should self-paced my duties.
I started seeing Mr Sharma in about December 2013 and I had dry needling therapy as well as physical therapy. I continued to do so over the next two years. The treatments were in batches - the first treatment was for 6 sessions, then the next ones were either 5 or 8 attendances. My employer paid for the treatments under an early intervention program.
In addition, I used heat packs at work on most days. I found that the warmth of the packs make me comfortable and better able to continue working. At some stage, I was prescribed Celebrex tablets.
I did not get any full relief of my symptoms which occurred with my work which is essentially performed at a keyboard and computer screen and mouse. I developed neck stiffness from time to time which stops me from safely driving my car.
In July 2015 my employer arranged for a further assessment of my workplace by an organisation called Accelerait. They suggested that I return to see Dr Navani for review of my treatment and rehabilitation. They recommended regular postural breaks in vary my position from sitting to standing every so often.
I returned to see Dr Navani on 7 September 2015 because I was still having the symptoms of pain in the neck, right shoulder and right hand in spite of seeing a therapist on a regular basis. I explained that my workstation had been adjusted but that I still had pain in the neck, right shoulder and wrist.
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My symptoms in the wrist are at the base of the palm to the outer side of the wrist. I believe that the way I hold the mouse or use the keyboard for repetitive movements throughout my working day over the years has caused the injury as well as the right shoulder and neck pain. My pain is constant though can fluctuate from time to time. When I am not working the pain improves
Ms Lolic described her numerous duties to the Tribunal and advised that when she was working in the Age Pension section she had not experienced neck, right shoulder or wrist pain and was not constantly using her mouse or typing. She advised the hearing when she moved to the Participations team, she began using the mouse and keyboard a lot more and that she felt more pressure to meet KPIs as all the activities had percentages that she had to meet.
Ms Lolic advised the Tribunal that she continues to have pain in her neck, shoulders and wrists every day. The pain starts at the beginning of the day and progressively gets worse throughout the day. She said that when she is away from work over the weekend the pain is slightly better in her shoulders, but the pain in her wrist is hardly any different as she still suffers from a burning sensation. She was certain that she first noted the pain in her neck, shoulder and wrist at work.
Ms Lolic asserted that she is really limited in what she can do, advising the Tribunal: “I don’t do anything besides really go to work anymore”.
Under cross-examination from Ms Blok, counsel for Comcare, Ms Lolic, described to the Tribunal her pain experience in the workplace.
You say that it was a gradual onset of pain, don’t you? – Yes
And there was no specific incident that triggered the pain and symptom in your wrists, was there? – Repetitive work, yes
But there was no specific incident that triggered it? – No
And there was no specific incident that triggered the pain symptoms in your neck either, was there? – No
And there was no specific incident that triggered the pain symptoms in your shoulder either, was there? – No
In response to questions from the Tribunal, Ms Lolic explained why she had submitted the incident report in September 2013:
Why originally did you put in the incident reports? If it’s not a – it hasn’t been an injury, per se, like, there hasn’t been a traumatic event, something hasn’t happened. Why did you originally put in those incidents reports? What prompted you do that? – I think because the pain was ongoing and it was constant while I was at work, and I believe so that my team leader at the time saw it, and we’ve changed the mice, so he got me another – I believe it was the team leader, he got me another mice, or I had two mice, so got me another mouse and the pain kept on going and going, and that’s when I believe so, he prompted me along to it, because I didn’t, I’d never filled out one before.
So you’re saying something triggered it? – Yeah
They have reconfigured and a manager has said to you, do you think, “Put in the incident report”, or is it something you thought to do? – No, I – I didn’t even know that they existed. I didn’t even know there was such a thing.… I don’t – I – I believe that he would have told me to actually fill it in. I can’t remember, I’m sorry
Ms Lolic advised the Tribunal that she continues to work in the Participation team at Centrelink, but on reduced hours to manage her pain. She said that she takes anti-inflammatory medication and pain killers to relieve the pain so she can attend work, but that she has taken significant amounts of time off work over the years to deal with the effects of the pain in her neck shoulder and wrist. Ms Lolic stated that her family have sold their home and moved in with her parents as she could no longer manage caring for the children and household chores because of her debilitating pain. She said that she had explored moving to alternative teams within the DHS but no position had been found.
Diagnostic Studies
The following diagnostic studies were referred to by the parties during the course of the tribunal hearing:
·On 3 December 2013, Dr Tony French reported findings of a right wrist X-ray as “[n]o bone, joint or soft tissue abnormality was seen. There was no indication of osteoarthritis or ununited past injury.”
·On 7 October 2015, Dr Rick Fleming, radiologist, reported on an MRI of the cervical spine concluding that there was a “broad-based left paracentral C5/6 disc protrusion impinging on the left side of the cervical cord and possible left C6 nerve root at the foraminal appearance.”
·On 25 November 2015, Dr Kevin Shaw, radiologist, reported on a CT Scan of the cervical spine noting his impressions that there was no CT evidence of acute traumatic cervical injury, loss of normal cervical lordosis with a kyphotic curvature is likely chronic in nature, degenerative changes at C5/6 with mild degree of spinal can on narrowing and mild left neural exit foraminal narrowing.
·14 September 2017, Dr Sarah Nguyen, radiologist, reported on an MRI of the cervical spine concluding that no significant abnormality was identified or evidence of demyelination. She also noted that there was a”[p]osterior left paracentral/foraminal disc bulge at C5/6 contacts but does not compress the left C6 nerve. No right-sided nerve root, compression is identified.”
Doctor Vijay Navani, General Practitioner
Dr Navani gave evidence at the hearing that Ms Lolic first consulted him on 28 November 2013 after suffering an injury at work and since that time he would have seen her on at least 33 occasions. He stated that whilst he has an interest in the treatment of work injuries it is not an exclusive part of his practice but unlike other general practitioners he was happy to deal with the paperwork involved in what is a very bureaucratic process. He understood that Ms Lolic also consulted another general practitioner closer to her home.
Dr Navani provided a medical certificate on 28 November 2013 which describes Ms Lolic’s injuries as sore right hand/shoulder/neck diagnosed as “?Soft tissue Injury Right Wrists (Tenosynovitis) Shoulder/Neck). The certificate indicated that Ms Lolic had a capacity for work, with restrictions to avoid small repetitive activities with her right hand, and restricted typing and data entry but that other self-paced office duties were okay. Medical notes of the day indicate the reason for contact as “Customer service in Centrelink since 2006 Typing data entry Computer based/call centre Sore right wrist - Right Dominant also left hand on moving the Mouse spoken to HR.”
Dr Navani advised the hearing that on Ms Lolic’s first presentation he clinically diagnosed a soft tissue injury resulting from repetitive strain but was guarded as he was awaiting diagnostic tests to verify his clinical diagnosis. He asserted that he was clinically certain that she had a soft tissue injury which had been aggravated by her work. He did not agree that subsequent radiological reports finding no abnormalities made this diagnosis incorrect. Dr Navani said that at this time Ms Lolic was experiencing severe pain but despite her symptoms she was keen to continue working and was not amenable to receiving medical certificates to allow her time off work. He said that he had not seen her following the original diagnosis for a period of two years as she was managing the condition best by herself by seeing an occupational therapist. But that she had returned to him after this period when the pain did not resolve. He observed that Ms Lolic did not embellish the pain or her desire to continue working.
Dr Navani provided a medical report of 24 September 2015 to Comcare which states:
Over a period of time, Indira developed pain, stiffness, soreness around the Right Wrist/hand which gradually spread to involve the Right Shoulder Girdle and Neck.
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There was diffuse tenderness across the Right Wrist in particularly across the dorsum of the Hand, Shoulder and Neck were painful with some generalised tenderness across the Shoulder Girdle and Trapezius Muscle.
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Xray and Ultrasound of Right Wrist was requested and Indira was referred to Hand Therapist Mr. Arun Sharma and treated with Anti-Inflammatory Medication
Her work duties were modified to avoid small repetitive activities of Right Hand with restricted typing and data entry. To perform self paced office duties.
The xray and ultrasound of Wrist was reported as normal.
Unfortunately Indira decided to only follow-up with the Hand Therapist for the past 2 years and has only just returned back to me after failing to settle and with persistent Right Wrist, Right Shoulder and Neck Pain.
In the interim Indira has tried to adjust her work station and had ongoing Hand/Upper limb physiotherapy.
Examination on 07/09/15 showed a distressed lady with persistent symptoms related to a neck, right shoulder and wrist. There was significant tenderness across her Wrist, Shoulder and Neck.
I have requested an MRI of her Cervical Spine and Ultrasound of the Right Shoulder and Wrist. These investigations are currently awaited
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Her condition has arisen directly due to her repetitive use of Upper Limb and Administrative and Typing working. It is a Repetitive Strain Injury.
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There is no pre-existing or underlying condition relevant to this condition.
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The Condition is a new injury not an aggravation, acceleration or recurrence.
Dr Navani gave evidence that subsequent to the MRI findings of degeneration at C5/6, Ms Lolic’s neck condition had become the overwhelming cause of her pain, and that her wrist and shoulder conditions had resolved. He emphasised that her work had not caused her neck condition but that work had triggered her symptoms. Dr Navani said that once she became symptomatic, her work had exacerbated the condition; causing her significant debilitating pain, and that on occasion he had been required to prescribe steroids to Ms Lolic for excessive pain.
On re-examination he again emphasised that the pain in the wrist and the right shoulder had ebbed away and currently her neck problem overwhelms everything. The reduction in work activities combined with postural breaks over time had eased the wrist and shoulder conditions but the neck problem has been exacerbated. He also stated that many good changes had been implemented in her work station which had reduced the impact upon her wrist condition but continual neck flexion (moving up and down) meant that he continued to see her suffering significant pain in her neck. He advised that there had been no traumatic event which had caused Ms Lolic’s neck condition but once it had become symptomatic at work; her work had exacerbated her condition. Dr Navani stated that his consultations with Ms Lolic had not focused on her wrist conditions since the MRI showing degeneration in her neck.
Doctor Debo Gorai, Consultant Neurologist
The Tribunal was provided with Dr Gorai’s medical report of 16 August 2016 in which he opines:
Clinically at this point in time, the symptoms do not to be fit in with the syndrome of cervical radiculopathy or carpal tunnel syndrome phenomenon. This could be a repetitive straining injury but I could not be entirely sure.
The Tribunal was also provided with his medico-legal report of 9 May 2018 in which he opines:
Predominant symptoms are neck pain and it appears that her problem started back in 2013 and it all started with a right wrist first, and the pain gradually progressed in the right upper limb and thereafter she started experiencing right neck pain and has difficulty in turning neck, and of late the symptoms are on the left side of the neck too. The neck pain over the years has been radiating into the shoulders, she mentions she has problems of bursitis too and the radiation comes into the arm bilaterally over the deltoids and on the right arm at least it extends into the forearm, both the dorsal and the ventral aspect. This is a constant ache and pain that she experiences and the arm and forearm pain is mainly at work time. The severity that she mentions of the neck pain is about 9/10 and shoulder pain is 10/10, it disturbs her sleep and forearm pain at work is also 9/10.
Her treatment comprises of Celebrex 200 mg, twice daily, Anaprox 550, one tablet twice daily, Endep 10 mg nocte, Prednisolone tablets, intermittently as decided by the General Practitioner, all these medications are analgesics, non-steroidal analgesics and antidepressants trying to manage her pain. She reports there has been no fall or accident at workplace. She is not diabetic, not hypertensive, there is no other medical problem, she says. Her daily activities are affected by this painful situation. Cooking, cleaning, washing is very difficult. Her grip is poor on the right hand, she cannot peel potatoes as the peeler keeps slipping out of her hand, her sleep is disturbed at night. She used to play volleyball and she used to do folk dancing and she had to give them up because of the difficulty of neck movements. At the workplace she has been working but she has been struggling at workplace with the pain.
She reports that she had a motor vehicle accident in November 2015, it could have been 2016, but she is unsure, she was hit by a truck, she was rear-ended by a truck and this caused her car to spin around, she had a whiplash injury. But her symptoms in the neck started prior to 2015, they started in 2013 and all of these neck pain symptoms go worse after the motor vehicle accident. She mentioned that in 2006 she had a motor vehicle accident when they were travelling at 30 kms per hour, the car in front suddenly braked and she rear-ended that car and at that time there was some neck discomfort but X-rays had shown to be normal and the neck discomfort disappeared within a few days, and she was fine thereafter.
Her neurological examinations revealed normal cranial nerve examination, normal motor strength in upper and lower limbs. The left deltoid appeared mildly wasted and deep tendon reflexes in the upper limbs show bilateral absent biceps reflex. Lower limb examination was normal, with normal power, normal reflexes, plantar’s are bilaterally down-going.
Clinically she has cervical radiculopathy. We had done nerve conduction studies on her in December 2017 which showed bilateral degenerative changes in C6 myotomal distribution suggested of cervical radiculopathy. The latest MRI scan was done on the 14 September 2017, the MRI scan showed a disc bulge at C5/6, contacts with the nerve roots but does not compress and no left or right sided nerve root compression was mentioned on the MRI scan.
All in all, the clinical picture though appears to be that of cervical radiculopathy with electrophysiological evidence of the same. Usually cervical radiculopathy related to disc issues is a degenerative process but my suspicion is that her nature of work has accelerated the process of the degenerative condition of the neck together with the whiplash injury may also have had some contribution towards the progressive worsening of the degenerative changes and the neck pain too.
All in all, I think this is multifactorial and work does have a role in the entire process of cervical radiculopathy via the degenerative process of the cervical disc.
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There is a direct relationship between the employment and the diagnosis. The constant nature of the repetitive nature of the work at her workplace with typing, posture, neck movements etc are all responsible for the acceleration of the degenerative process of the cervical spine and the neck that has caused her to have the cervical radiculopathy.
Dr Gorai advised the Tribunal that he had not noted that Ms Lolic had embellished her pain; he was indeed surprised that she continued to work given the severity of her symptoms; and that she seemed to be very motivated to work. He clarified that when his report stated that her examination appeared to be unremarkable he meant that the nerves supplying those muscles were working well and on examination he could elicit proper reflexes. Fundamentally, it means that everything was normal and that he could find nothing untoward. His clinical examination and reference to the scans drew him to the conclusion that Ms Lolic’s condition had been accelerated by work activities, as the pain started in 2013 and worsened over time. He also advised, that her work, which involved sitting at a desk leaning forward, picking up the telephone, holding the telephone on her shoulder and typing while on the telephone, all placed repetitive strain upon her and caused exacerbation of an underlying condition which has resulted in pain. Dr Gorai stated that his report had mentioned functional overlay as he was always thorough; and that that at the end of the day the mind can behave in a different way to that which is reported in radiological examination but it is hard to quantify.
Associate Professor Anthony Buzzard, general surgeon
Associate Professor Buzzard, was not called to give evidence but his medical report of the 12 July 2016 was referred to during the course of the hearing. In which he opines:
She has symptoms in relation to the shoulder girdles and wrists. The symptoms appear to relate to the use of her ‘mouse’ at work.
She has had extensive radiological investigations. I was impressed by the MRI scan of the cervical spine dated 07/10/2015. Whilst I appreciate that the ComCare doctor - Dr Haig has suggested this is within normal limits, I don’t agree with that on the grounds that she is aged 35 and there appears to be quite marked spinal theca indentation at C5/6. For that reason, I suggest that she be referred to a consultant neurosurgeon. The situation is not, however, straightforward on the grounds that she has a variety of other symptoms, which may have some functional element to them.
So far as her further treatment concerned, I think that this will depend upon the consultant Neurosurgeon’s opinion.
So far as her employment capacity is concerned, I agree with the restrictions that you have applied.
Mr Ronald Haig, Consultant Orthopaedic Surgeon
Mr Haig provided medico-legal reports dated 1 June 2016, 29 September 2017 and 1 November 2018. In his report of 1 November 2018 he opined:
It seems the neck pain is now her dominant complaint and that would be consistent with the nerve conduction studies evidence of radiculopathy bilateral in a C6 myotomal distribution.
…
I do believe the changes in Ms Lolic’s spine at the C5/6 level are age-related and there is nothing in the nature of her employment that would cause such changes. Her job is purely sedentary. There have been no incidents of trauma relating to her work.
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I do agree with Dr Gorai’s diagnosis of cervical radiculopathy. There is a prolapsed disk at the C5/6 level and, though the MRI report refers to left-sided pathology, the nerve conduction studies suggest bilateral radiculopathy.
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I disagree with Dr Gorai’s comment that “all in all, I think this is multifactorial and work does have a role in the entire process of cervical radiculopathy via the degenerative process of the cervical discs”. I do not believe there is any evidence that such work in the absence of an acute traumatic episode at all likely to cause survival disc degeneration.
…
It may be that her work increases her symptoms but I do not believe in any way it has increased the degenerative change at C5/6.
Mr Haig advised the Tribunal he did not believe that Ms Lolic’s work was causative of her pain. Additionally, he did not accept that operating a keyboard or a mouse would have any effect on the pathology of her cervical spine or on the symptoms in her neck. He opined that it would be unusual to have three independent locations of pain. By that he meant it would be unusual to have concurrent tenderness in the neck, shoulder and wrist, as this would be postulating three separate pathologies. He was emphatic that Ms Lolic’s workplace activities had not accelerated or exacerbated the degenerative condition of her spine. He stated that he based this first on common sense, and secondly on the activities of her work. Mr Haig argued that there was nothing in the activity of sitting in front of a computer screen and operating a keyboard that could cause degeneration of any part of the body, be it the cervical spine or any other part, in the absence of trauma. Fundamentally, he argued that degenerative change in the cervical spine is essentially constitutional in origin and, in the absence of acute trauma, is genetically determined. In other words he stated that it is written in our genes.
Mr Haig advised the Tribunal that people start to degenerate physically from about the age of 18, whether it be the spine or other part of the body, so that it would not be uncommon to find the degeneration observed in Ms Lolic even though she was only 34 years old at the time of the MRI scan.
Mr Haig advised the Tribunal that a person keying and looking between two screens flexing or remaining in a fixed position for a long prolonged period of time could cause some strain and that this would be symptomatic but it would not have a lasting impact, it would be of a temporary nature and could not explain Ms Lolic’s neck pain.
, Mr Haig advised the Tribunal that he disagreed with Dr Navarni who gave evidence that neck flexions (moving your neck side to side and particularly going up and back) and sitting for long periods of time with your neck bent down would aggravate the actual cervical spine condition and cause some inflammation by the movement or that positioning for long periods of time. Mr Haig stated that he did not believe there was any evidence that such a gentle movement of the neck causes pathology or an increase in symptoms and that part of the treatment of osteoarthritis wear and tear is to maintain movement. On questioning he stated:
The neck pain is consistent with the pathology I believe the shoulder pain could well be referred pain. I cannot explain her right upper extremity symptoms of wrist pain in terms of the neck pathology.
…
The pathology itself is not contributed to by her work. Any symptomatic increase I believe would be negligible. Sitting at a desk in front of computer screen, operating keyboard, I think is most unlikely to cause any significant and certainly lasting increases in symptoms.
THE CONTENTIONS OF THE APPLICANT
Mr Ferwerda, counsel for Ms Lolic, contended that credibility was basic to this case and the Tribunal could comfortably rely upon the truth and accuracy of the evidence given. Particularly that of Ms Lolic, who he said had given an honest account of herself throughout the whole process; and her credibility upon stringent examination remained intact.
Counsel contended that Ms Lolic was entitled to compensation pursuant to section 14 of the SRC Act for all of the claimed injuries or at least one of them, as she had lost the use of or sustained damage or malfunction to one or more of the body parts subject of this claim for compensation and one of the more injuries had led to incapacity for work partial or total.
Counsel submitted that it was noteworthy that none of the medical practitioners, including Mr Haig, raised any real concern about the reliability of Ms Lolic’s clinical presentation; and no one had alleged or suggested that there was any abnormal illness, behaviour, embellishment or exaggeration of her injuries.
Counsel further submitted that it was clear from Ms Lolic’s evidence that from about 2011 there was a significant escalation of typing and computer mouse work; and that prior to September 2013 Ms Lolic had not experienced any symptoms in any of the body parts being subject to this claim. He submitted that accepting this evidence demonstrates that the onset of symptoms, of initially the wrist and later the right shoulder and neck, all occurred at work.
Counsel submitted that Ms Lolic’s evidence clearly indicated that she had ongoing symptoms in her neck, right shoulder and wrists and was requiring ongoing treatment. He also submitted that she continued to perform essentially her normal duties, albeit on reduced working hours, that she struggles with her normal duties, as evidenced by her failure to meet some KPIs, and that this is all related to one or more of the claimed injuries.
Counsel contended that the symptoms attributable to the cervical spine pathology have, in recent times, overwhelmed the right shoulder and right wrist problems. He also contended that Dr Navani’s testimony should be preferred to the other medical witnesses as he has more than 30 years’ experience as a medical practitioner and had been treating Ms Lolic from the initial onset of the symptoms in 2013 until today. As such, he was in the best place to judge the applicant’s clinical presentation, any impairment from the injury and any incapacity flowing from the injuries. He contended that Dr Navani initially diagnosed a soft tissue injury to the right wrist shoulder and neck. He said that Dr Navani had proffered a diagnosis of repetitive strain injury and directly linked his diagnosis and the injury to Ms Lolic’s work at Centrelink.
Counsel explored with the Tribunal whether there was an injury under sections 5A(1)(a) and/or 5(1)(b) of the SRC Act.
In respect of section 5A(1)(b), counsel contended that Ms Lolic’s right wrist pain, right shoulder pain and initial neck pain qualify as injury simpliciter, because there is a physiological change happening even though it was not sudden and it was of a gradual onset. Counsel took the Tribunal to what he described as two very important cases Military Rehabilitation and Compensation Commission v May[1] and Kennedy Cleaning Services Pty Ltd v Petkoska,[2] which he said demonstrated that suddenness was not necessary for an injury to occur in the primary sense. In Kennedy, Gleeson CJ and Kirby J said:
If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker's employment. If the propounded "injury" is distinct from the underlying pathology that constitutes a "disease" that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.[3]
[1] [2016] HCA 19.
[2] (2000) CLR 286.
[3] Ibid at [39].
Counsel further contended that, in respect of 5A(1)(b), the evidence was overwhelming that there was a causal connection between Ms Lolic’s claimed condition and her employment, since it happened at work, it got worse towards the end of the working day, it was worse at the end of the working week, and that her symptoms reduced when she was away from work. He maintained that there was simply no other explanation but that work was the primary cause of her pain.
Counsel then addressed whether Ms Lolic satisfies section 5A(1)(a) (through section 5B). He argued that looking at all the factors listed under section 5B(2) (duration of employment, nature of and particular tasks involved in the employment, any predisposition of the employee to the ailment or aggravation on activities not related to employment) there was only one explanation in respect of Ms Lolic’s condition which was that her work had aggravated her underlying condition present in her cervical spine. He also argued that her underlying condition had become symptomatic as a result of work and that she remains symptomatic, that is, that work had aggravated and exacerbated her underlying condition.
Counsel concluded that in light of the authorities, particularly Commonwealth of Australia v Kathleen Beattie,[4] aggravation occurs when something associated with the work or workplace causes an existing condition to become worse and more painful. He argued that activities arising from a congenital condition suffered by an employee may constitute an aggravation of the congenital condition, even if there is no progression caused to the underlying condition and no permanent effect of the underlying condition.
[4] (1981) 53 FLR 191.
Counsel for Ms Lolic refuted Mr Haig’s opinions, viewing them as extreme and at odds with the opinions of Ms Lolic’s long-standing treaters Drs Navani and Gorai. Counsel contended that the underlying pathology evident in the cervical spine didn’t necessarily have to be symptomatic, but it had become symptomatic at work and that, on the evidence before the Tribunal, the only explanation for the condition being symptomatic is her work. Counsel contended the evidence clearly shows that the symptoms are not a mere manifestation of the underlying condition, the underlying condition was asymptomatic until Ms Lolic was at work in the participation team for some time. But the condition became symptomatic at work because of work and this is borne out by the medical evidence.
THE CONTENTIONS OF THE RESPONDENT
Ms Blok, counsel for Comcare, contended that the application should be affirmed for two main reasons firstly Ms Lolic is suffering from a classic ailment and not a frank injury and secondly the ailment or aggravation of the ailment was not contributed to, to a significant degree, by Ms Lolic’s employment.
Counsel took the Tribunal to a recent Tribunal decision of Gait and Comcare[5] where the Senior Member Kirk and Member Alexander grappled with the perennial question of the distinction between an injury and disease. Drawing upon the relevant authorities often cited in this jurisdiction, the Members noted that:
[5] [2018] AATA 4282.
Distinction between an ‘injury simpliciter’ and a ‘disease’
100.The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an “injury simpliciter” – see Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, the injury must arise out of, or in the course of, the employment: s 5A(1)(b) of the SRC Act. That is, “... the physical or mental injury has to have a causal or temporal connection with the employee’s employment.”
101.An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment. The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch [1998] FCA 944; (1998) 156 ALR 483 at [486] and Prain v Comcare [2016] AATA 459 at [7]- [8].
102.Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 25; (2000) 174 ALR 626 at [632]: “Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case”. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to “... precise evidence ... concerning the nature and incidents of the physiological change...”
What is an injury simplicter?
103.In Australian Postal Corporation v Burch [1998] FCA 944; (1998) 156 ALR 483 at [488], the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was “...a disturbance of the normal physiological state ... or an ascertainable lesion or dramatic physiological change”. Similarly, in Kennedy Cleaning Gleeson CJ and Kirby J stated that “... a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state ... may qualify for characterisation as an ‘injury’...” at [637].
104.An injury does not have to be something that is external to the body, or “... produced by external causes”: Kennedy Cleaning per Gleeson CJ and Kirby J at [635]. For example, a disc prolapse could be an injury, depending on the medical evidence.
105.In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369, French CJ, Kiefel, Nettle and Gordon JJ, in a joint judgment, at [34] cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 at [444] – [445] with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind”.
106.Their Honours went on to state that, “subjectively experienced symptoms, without an accompanying physiological or psychiatric change” are not sufficient to be a disease or an injury at [381]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is “physiological evidence, pathology or a known diagnosis to explain the symptoms”: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369 per Gaegler J at [385].
Counsel for Comcare argued that Ms Lolic is suffering from a prolapsed disk which is a result of a natural progression of an underlying disease and therefore cannot be classified as a frank injury; drawing a distinction with an individual who experiences an accident in the workplace which results in a prolapsed disk, which could be classified as frank injury. Counsel drew the Tribunal’s attention to Schodde and Comcare[6] where the Deputy President Kean stated:
Is the claimed condition an “injury” or a “disease”?
14. As Mr Schodde himself acknowledged in his evidence, although he has had sudden and significant flare-ups in his symptoms, his back condition was of insidious onset and was not associated with a discrete event on a particular day. The two doctors who gave evidence in this matter, Mr Schodde’s General Practitioner, Dr Wenceslaus, and an Orthopaedic Surgeon, Mr Robin Jackson, both also agreed that the condition was one of gradual onset and development of symptomatology.
15. On the basis of the evidence before me, I therefore consider that the condition is more correctly characterised as a “disease” for the purposes of the SRC Act than an “injury” simpliciter.
…
21. The first and most fundamental difficulty is that even accepting that he had an acute onset of symptoms, including sciatica, on 28 May 2013, there is no medical evidence to support the proposition that this was due to some disturbance of his lumbar discs which occurred at or arose out of his work.
26….. Rather, on the evidence before me, it was simply an episode of symptomatology secondary to his underlying degenerative back condition.
[6] [2015] AATA 598.
Counsel for Comcare, in her closing remarks, asserted:
The symptoms that have emerged for the applicant have emerged – they have emerged at work, that she happens to be at work, but they are a manifestation of underlying condition as opposed to any distinct physiological change.
All the evidence before the Tribunal is to the effect that the applicant’s symptoms changed slowly, over a period of time from about September 2013. The applicant herself told Ms Lalor in July 2015 that she experienced pain in her wrist in approximately 2013 in September, where there was no specific incident that occurred; rather, a gradual onset of pain symptoms…. In her statement on 30 January 2017, she said I developed pain in my right wrist which over a period of time extended to my right shoulder and neck. In cross-examination she said there was no particular event which lead to the onset of pain and her symptoms emerged slowly. Her injury reports did not involve any particular events either, or incidents. It was, rather, a case of her noticing the pain symptoms at that particular time, and she considered that in cross-examination. She was not doing anything other than her usual tasks. Dr Navani says the same. He says the symptoms emerged over period of time…
And in the evidence before the Tribunal both Dr Navani and Dr Gorai accepted that the underlining degenerative condition was not the result of an acute event, including by way of motor vehicle accident, the applicant was likely to have been asymptomatic for a time before and after, – before the symptoms emerged, and became asymptomatic after they first emerged. And Mr Haig this morning, he said that was very common, that you can have – he also said it was most likely that the condition would have existed for some time prior to the symptoms emerging, and it was very common that they would come and go.
The way to the medical evidence is that the applicant did not and does not suffer a repetitive strain injury, the soft tissue injury or tenosynovitis, but that she suffers from a progressive degenerative condition. As such the injury is in the nature and ailment, but a frank injury.
The symptoms that we see here are nothing more than the natural consequence of a underlying progressive degenerative condition.
Counsel for Comcare argued that the Tribunal could not be satisfied on the balance of probabilities that the applicant suffered a frank injury. It was argued that the medical evidence indicated that Ms Lolic was suffering from cervical radiculopathy caused by progressive degenerative condition.
Counsel for Comcare contended that the injury did not arise out of or in the course of employment and the only connection between Ms Lolic’s employment and her injury is that the symptoms emerged in the workplace. It was further argued that it is not enough to contend a causal connection has been established because they occurred at the workplace.
Counsel for Comcare did not dispute that Ms Lolic is suffering from pain symptoms in her wrists, shoulders and neck. There was no dispute that she suffered from a degenerative condition in her cervical spine. Ms Blok contended that this is an ailment and that her underlying condition was causing pain but that was not caused by or contributed to, to a significant degree, by her work. In this regard, Counsel took the Tribunal to the matter of Cross and Comcare,[7] where Deputy President S Boyle found:
88. In the Tribunal’s view it would make little sense to treat the symptoms as being the ailment for the purposes of s 5B(1) of the Act which must be “contributed to, to a significant degree, by the employee’s employment”. The symptoms come and go depending on the activity being undertaken by the employee. The more logical issue to consider in this regard is whether an underlying pathology which causes or predisposes the employee to the onset or triggering of symptoms was contributed to by the required degree by the employee’s employment.
[7] [2018] AATA 52.
Counsel for Comcare contended that the Tribunal should treat Ms Lolic’s underlying cervical spine condition as an ailment, as the “weight of the medical evidence is that the [Ms Lolic] did not and does not suffer from a repetitive strain injury, a soft tissue injury or tenosynovitis, but that she suffers from a progressive degenerative condition.” .
Counsel contended that the Tribunal should accept and prefer the evidence of Mr Haig. Specifically, his evidence that the condition was age-related, and in the absence of any trauma this condition was written in our genes and the condition was unrelated to work activities. It was contended that the Tribunal should accept Mr Haig’s evidence that even if the Tribunal accepted that Ms Lolic experiences and continues to experience symptoms of pain at work it is not an aggravation of her symptoms but simply a consequence of her underlying condition.
Counsel for Comcare went on to argue that the Tribunal could not be satisfied on the balance of probabilities that Ms Lolic’s employment was causing her to suffer an aggravation in the underlying pathology of her degenerative cervical spine condition. She argued that Ms Lolic’s symptoms are a manifestation of her underlying condition; and that they had not been made worse by her work, but have simply become worse over time. Counsel took the Tribunal to the decision in Comcare and Reardon[8] where Mortimer J stated:
In other words, Comcare submits that an underlying disease running its course will not be an “aggravation” within the meaning of s 5B of the SRC Act.
The respondent’s submissions did not cavil with the proposition as put by Comcare and as enunciated in the authorities. The respondent was correct to accept the distinction between a condition “becoming” worse and being “made” worse by employment as critical for the purposes of s 5B.
[8] [2015] FCA 1166, [34] – [35].
Counsel for Comcare contended that all that the evidence before the Tribunal showed was that Ms Lolic is suffering a degenerative condition which has simply become worse. It has not been made worse by her employment.
CONSIDERATION AND FINDINGS
There is no dispute that Ms Lolic suffers from a degenerative cervical spine condition, as evidenced by the MRI scans, which show a disc bulge at C5/6, and which contacts with the nerve roots but does not compress. There was no evidence led to the effect that Ms Lolic’s work had caused the underlying condition. All the medical experts opined that it was a degenerative condition. The Tribunal, having considered the considerable medical evidence in this matter, accepts that the evidence indicates that the clinical picture appears to be that of cervical radiculopathy.
On the basis of the evidence before it, the Tribunal finds that at the date of claim, Ms Lolic was suffering from a pre-existing spinal degenerative disease that satisfies the definition of an ailment in section 4(1) of the SRC Act, in that it is a morbid condition.
The Tribunal notes that there are inconsistencies in the presentation of Ms Lolic’s overall medical condition. However, the Tribunal concurs with Associate Professor Buzzard’s opinion that “[t]he situation is not, however, straightforward on the grounds that she has a variety of other symptoms, which may have some functional element to them”.
The Tribunal finds Ms Lolic to be a credible and reliable witness, who did not appear to be embellishing or exaggerating her pain or situation.
The dispute between the parties is whether Comcare is liable to pay Ms Lolic compensation in accordance with section 14 of the SRC Act. Comcare originally denied her claim on the basis that the claimed conditions were not contributed to, to a significant degree, by Ms Lolic’s employment with DHS. Whilst Ms Lolic’s original claim stated that the chain of events that led to her illness was “queue line getting longer, usual data entry”, in her statement to the Tribunal Ms Lolic identifies her injury as being a result of the way she was holding her mouse and using her keyboard for repetitive movements throughout the workday over the years.
The evidence before the Tribunal was that Ms Lolic originally sought treatment in 2013 for a sore right hand, shoulder and neck. This was originally diagnosed by Dr Navani as a soft tissue injury, subject to further examination. Ms Lolic undertook extensive hand therapy treatment for this condition for two years, with no resolution. It was not until 2015 that an MRI scan was finally performed, which demonstrated that Ms Lolic had a degenerative cervical spinal condition associated with a disc bulge at C5/6.
The Tribunal next considered the fundamental argument put forward by the parties that Ms Lolic’s had or had not suffered “injury simpliciter” or a disease in accordance with the SRC Act.
Mr Ferwerda contended that Ms Lolic had, over a period of time, sustained an injury (for the purposes of section 5A(1)(b) of the SRC Act) to her wrist, shoulder and neck arising out of the course of employment with DHS by virtue of her increased repetitive mouse and keyboard work. Additionally, he argued Ms Lolic’s underlying degenerative condition was an ailment (for the purpose of section 5A(1)(a) and 5B of the SRC Act and as defined in section 4) and had been aggravated by her work. Therefore, her ailment had been contributed to a significant degree by her employment with DHS.
Ms Blok contended that Ms Lolic’s underlying cervical condition should be treated as an ailment as she suffers from a progressive degenerative condition; and that there was no evidence that this ailment was related to her work activities and any symptoms of pain were not aggravated by her work.
The Tribunal, having considered all the evidence before it, was left with three divergent arguments in respect of Ms Lolic’s condition:
·she had sustained an injury over time as a result of repetitive strain; or
·was suffering an aggravation of an underlying degenerative condition which has been made symptomatic and aggravated by her employment; or
·was suffering an underlying degenerative condition which was not significantly impacted by her employment.
The evidence before the Tribunal from Ms Lolic was that her wrist pain was the genesis of her pain. That is how she first experienced it, and continues to experience it. Ms Lolic appeared at the Tribunal wearing a wrist support and advised the Tribunal that her wrist pain continues to be debilitating, with a constant burning sensation.
The MRI scan indicated that Ms Lolic’s underlying condition was radiating from the neck and therefore any work impact would come from this condition being symptomatic and therefore aggravated. This view was echoed in Dr Gorai’s report of 9 May 2018 where he stated:
Usually cervical radiculopathy related to disc issue is a degenerative process but my suspicion is that her nature of work has accelerated the process of her degenerative condition of the neck together with the whiplash injury may also have had some contribution towards the progressive worsening of the degenerative changes and the neck pain too.
…
There is a direct relationship between employment and the diagnosis. The constant nature of the repetitive nature of the work at her workplace with typing, posture, neck movements etc are all responsible for the acceleration of the degenerative process of the cervical spine and the neck that has caused her to have the cervical radiculopathy.
Additionally, the evidence from Dr Navani at the Tribunal was that Ms Lolic’s wrist conditions had resolved and that her greatest problem now is the pain in her neck; and that after the MRI scan they had been concentrating on her neck condition. He opined that her constant neck flexion at work was exacerbating her underlying condition.
The respondent asked the Tribunal to rely upon the evidence of Mr Haig and to refute Dr Navani and Dr Gorai’s opinions but the Tribunal was not persuaded by Mr Haig’s evidence that Ms Lolic’s condition was age-related, of an organic basis, and in no way associated with her employment. The Tribunal prefers Associate Professor Buzzard’s view that he did not agree with Mr Haig view that this was in the normal limits “on the grounds she is 35 and there appears to be quite marked spinal theca indentation at C5/6.”
The evidence indicates that Ms Lolic can be said to have sustained an injury, as defined under section 5A(1)(b) of the SRC Act, as the evidence points to a finding (as required in the words of the High Court in May) that there was “some definite or distinct ‘physiological change’ or ‘psychological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’.” At the time she reported the injury and sought medical treatment, Ms Lolic was experiencing a gradual onset of an identifiable physiological change in her wrist, shoulder and neck.
Additionally, the Tribunal finds that Ms Lolic is suffering a disease in accordance with section 5B(1)(b) of the SRC Act as her condition is an aggravation of an ailment. Consequentially, the determining question is whether her employment has contributed, to a significant degree, the aggravation of this ailment.
The Tribunal then has to consider whether her disease was contributed to a significant degree by her employment and does so with reference to Su and Comcare [2011] AATA 934, where the Member held:
The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury
The Tribunal, considering the factors as outlined in section 5B(2) of the SRC Act, finds that Ms Lolic:
(a)had a significant duration of employment with DHS reporting her injury some 6 years after she commenced employment;
(b)employment was of a constant repetitive nature with significant computer work, static posture and continual neck movements;
(c)had an underlying ailment which was aggravated by her employment;
(d)did not participate in activities outside her work which could have contributed to her injury; and
(e)had sustained injuries from vehicle accidents which may have exacerbated her injury.
In summary, the Tribunal, taking all the evidence before it, finds that Ms Lolic suffered an aggravation of an ailment, being her underlying cervical spine condition, which was contributed to, to a significant degree, by her employment with DHS. The Tribunal prefers and relies upon the evidence of Dr Gorai, (which was informed by the MRI scan, neurological examination and a full history of Ms Lolic’s motor vehicle accidents) where he diagnosed a “cervical radiculopathy following a degenerative process of cervical disc, accelerated by her work and possibly exhilarated by the neck injury in the past also.”
The Tribunal finds that Comcare, in accordance with section 14 of the SRC Act, is liable to pay Ms Lolic compensation in respect of the injuries suffered by her in the course of her duties.
The Tribunal remits the matter to Comcare to assess Ms Lolic’s compensation in accordance with sections 16 and 19 of the SRC Act, in respect of reasonable medical expenses and incapacity for work.
CONCLUSION
The Tribunal sets aside the decision under review and decides that Comcare, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988, is liable to pay compensation for Ms Lolic’s injuries. The Tribunal remits the matters to Comcare for reconsideration in accordance with this decision.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, AO Member:
....[sgd]................................................................
Associate
Dated: 26 September 2019
Dates of hearing: 11,12 and 13 June 2019 Counsel for the Applicant: Mr Joe Ferwerda Solicitors for the Applicant: Arnold Thomas & Becker Counsel for the Respondent: Ms Natalie Blok Solicitors for the Respondent: HWL EBSWORTH LAWYERS
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