Lynette Briggs and Comcare

Case [2012] AATA 514

[2012] AATA 514

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2123

Re

Lynette Briggs

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 6 August 2012
Place Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that the Respondent is liable under section 14 and section 16 of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation to Mrs Briggs in respect of the injury to her lumbar spine.

.............[sgd]……….........................

Miss E A Shanahan, Member

CATCHWORDS

Workers Compensation – employment related injury – aggravation of degenerative spondylosis and spondylolisthesis necessitating surgical intervention – contribution to a significant degree – delay in giving section 53 notice – prejudice to the Respondent – decision set aside.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, sections 5A, 5B, 7, 14, 16 and 19

CASES 

Banks v Comcare (1996) FCA 1490

Frosch v Comcare (2004) FCA 1642
Re Farnaby and Military, Rehabilitation and Compensation Commission [2008] AATA 603
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Re Holmes and Comcare [2001] AATA 290
Re McCarthy and Comcare [2002] AATA 5
Re Scutts and Department of Defence [1998] AATA 13085
Re Smith and Comcare [2011] AATA 662
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Tralongo and MRCC [2004] AATA 1242

Re Vo and Comcare [2005] AATA 773

REASONS FOR DECISION

Miss E A Shanahan, Member

6 August 2012

  1. On 23 December 2010 Mrs Briggs lodged a claim for compensation with her employer, Australian Aboriginal Hostels Limited (AAH Limited), for an injury to her back.  She sustained the injury while working at the William T Onus Hostel between 31 March 2008 and 2 April 2008.  Mrs Briggs underwent spinal surgery in the form of L4/5 posterior interbody fusion for L4/5 spondylolisthesis on 3 February 2010 at St Vincent’s Hospital in Melbourne.  On 8 April 2011 a delegate of Comcare, the Respondent, disallowed the claim for compensation.  On 25 May 2011 a review officer affirmed the delegate’s decision. Mrs Briggs lodged an application for review with this Tribunal on 31 May 2011. 

  2. Mrs Briggs was represented at the hearing by Mr Mark Carey of counsel, instructed by Hounslow and Associates solicitors. The Respondent was represented by Ms Cathy Dowsett of counsel, instructed by Thomsons Lawyers solicitors. The Tribunal had before it the documents filed by the Respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  The parties tendered further documents in the course of the hearing (Exhibits R2 to R14 for the Respondent and Exhibits A1 to A4 for the Applicant). Mrs Briggs, Dr Sybil Borthwick, Mr Gerald Moran, Dr Alethea Dwyer and Mr Clive Jones gave oral evidence. 

    BACKGROUND TO THE APPLICATION

  3. Mrs Briggs started work with AAH Limited on 25 October 2007 as a casual worker.  On 8 November 2007 AAH Limited employed Mrs Briggs on non‑ongoing, two-month contracts. Her duties included planning menus, food delivery, preparation of rooms and changing, washing and stock control of all…

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AGLC
Lynette Briggs and Comcare [2012] AATA 514
Case
[2012] AATA 514
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Lynette Briggs and Comcare, the respondent, regarding compensation for a work-related injury. Mrs Briggs, who was employed as a casual worker, experienced a significant aggravation of her pre-existing degenerative spondylosis and spondylolisthesis, leading to surgical intervention. The central legal issues were whether the contribution of her employment to the aggravation of her condition was significant, and if Comcare was liable for compensation under the relevant sections of the Act. Additionally, the court had to consider whether the delay in giving notice under section 53 of the Act prejudiced Comcare and if the delay resulted from ignorance, a mistake, or any other reasonable cause.

The court found that Mrs Briggs' employment had indeed contributed significantly to the aggravation of her pre-existing condition. However, the court also determined that the delay in giving notice prejudiced Comcare. The medical evidence presented was insufficient to establish a causal link between the workplace incident and Mrs Briggs' symptoms, as the medical records were poor and lacked continuity of care. The court held that the delay in giving notice was not due to ignorance, a mistake, or any other reasonable cause, and thus, Comcare was not liable for compensation.

The Tribunal set aside the decision that Comcare was liable to pay compensation. This outcome was based on the significant delay in giving notice, which prejudiced Comcare, and the lack of sufficient medical evidence to establish a causal link between the workplace incident and Mrs Briggs' symptoms. The Tribunal's decision underscores the importance of timely notice and the quality of medical records in establishing a compensable claim.

Orders

Orders of the court

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Background

Background to the litigation

Mrs Briggs was represented at the hearing by Mr Mark Carey of counsel, instructed by Hounslow and Associates solicitors. The Respondent was represented by Ms Cathy Dowsett of counsel, instructed by Thomsons Lawyers solicitors. The Tribunal had before it the documents filed by the Respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). The parties tendered further documents in the course of the hearing (Exhibits R2 to R14 for the Respondent and Exhibits A1 to A4 for the Applicant). Mrs Briggs, Dr Sybil Borthwick, Mr Gerald Moran, Dr Alethea Dwyer and Mr Clive Jones gave oral evidence. BACKGROUND TO THE APPLICATION Mrs Briggs started work with AAH Limited on 25 October 2007 as a casual worker. On 8 November 2007 AAH Limited employed Mrs Briggs on non‑ongoing, two-month contracts. Her duties included planning menus, food delivery, preparation of rooms and changing, washing and stock control of all linen. In addition, she was required to perform other tasks as directed. AAH Limited terminated Mrs Briggs’s employment on 3 April 2008. AAH Limited advised Mrs Briggs in late February 2008 that her contract would not be renewed. Prior to her employment by AAH Limited, Mrs Briggs had not been in paid employment since 2002. On 31 March 2008 Mrs Briggs was instructed to wash 48 drapes, each approximately one metre wide and two to three metres long. These drapes had been found in a garage during an inspection by Ms Rita Stewart, the Regional Manager of AAH Limited, who confirmed that each drape weighed between three and four kilograms. Mrs Briggs started washing the drapes (using a washing machine) on 31 March 2008. Due to her short stature and average build, Mrs Briggs had difficulty pegging the wet drapes onto the drying line and later removing them. On 1 April 2008 Mrs Briggs rode her bicycle to work. In addition to her normal duties, she washed, pegged out and removed drapes from the line during the day. By the end of her working day she felt tired and noted pain in the area of her sacroiliac joints, which resulted in her walking as if nine and a half months pregnant. On completion of her duties, she took a tram to her son Darren’s apartment and stayed there for the night. On 2 April 2008 Mrs Briggs completed the washing and drying of the drapes despite increasing pain. She then left work at 1.30 pm, had lunch with another son, who then drove her to Darren’s apartment, where she again stayed the night. By 3 April 2008 Mrs Briggs stated that the severity of the back pain was such that she spent the day in bed and took Panadeine Forte regularly. She did not contact her employer regarding her absence. She did not submit a pay claim for the week commencing 31 March 2008. Mrs Briggs, having experienced short-lived episodes of low back pain in the past, anticipated that this episode would resolve in one to two days. She described her symptoms as severe lower back pain with shooting pains in both legs associated with some numbness and tingling. She first sought medical attention on 10 April 2008 at the Victorian Aboriginal Health Service Co-Operative (VAHSC). A Dr Cook attended to Mrs Briggs and, according to Mrs Briggs, he prescribed Panadeine Forte, Ibuprofen and Deep Heat ointment. Dr Alethea Dwyer provided a summary of Mrs Briggs’s records with the VAHSC and stated that: On 10 April 2008, [Mrs Briggs] presented again with low back pain with no radiation exacerbated by sitting. At this stage mention was made only of cleaning tasks the previous Friday. She was treated with Panadeine Forte.

Evidence

Evidence Before The Court

Mrs Briggs did not lodge a claim for compensation until 23 December 2010; although she is recorded as considering such action in November 2008. In February 2009 Mrs Briggs obtained a Victorian WorkCover Authority Certificate of Capacity. Further certificates were provided by Doctors of Northcote throughout 2009 and 2010. According to Mrs Briggs, she tried unsuccessfully to contact Ms Faye Atkinson by telephone in 2008. In December 2009 Mrs Briggs attended the regional office of AAH Limited and lodged the certificate dated 7 February 2009 and completed by Dr Hammond. Mrs Briggs attributes the delay to her misunderstanding of where any resultant liability would fall. She thought that making a claim would be taking money away from my people, by which she meant those seeking refuge at William T Onus Hostel. ORAL EVIDENCE BEFORE THE TRIBUNAL Mrs Briggs’s evidence has been summarised under BACKGROUND TO THE APPLICATION above.DR SYBIL BORTHWICK Dr Borthwick of the Doctors of Northcote medical practice provided a report to Comcare on 25 February 2011 outlining Mrs Briggs’s medical records held by the clinic. The records noted Mrs Briggs’s first attendance for back pain as being on 18 April 2008 and that a CT lumbar spine had been requested on 16 May 2008. While Dr Borthwick’s letter stated that a copy of this was attached, Comcare has not provided this or any report to the Tribunal. Dr Borthwick has only been seeing Mrs Briggs as her primary general practitioner since April 2010. Based entirely on the medical records, Dr Borthwick considered Mrs Briggs’s back pain to be multifactorial. She explained the disc and facet joint changes were degenerative and related to age. However, the claimed work injury could cause or exacerbate the anterolisthesis and canal stenosis and result in the chronic disc pathology becoming symptomatic. Dr Borthwick was reluctant to comment on the anterolisthesis as she had little experience with this condition. In her oral evidence, Dr Borthwick confirmed the Doctors of Northcote records. Dr Borthwick considered the clinical notes of her clinic to be poor and that these could not be relied upon to exclude the fact that Mrs Briggs could have suffered radiation of lower back pain to her legs or feet before the first notation of such radiation on 20 February 2009. She explained that low back pain was such a common presenting symptom in general practice that most practitioners waited and observed patient’s progress before instituting any investigations. DR ALETHEA DWYER Dr Dwyer is one of several practitioners working at VAHSC, the clinic Mrs Briggs attended from 2 January 2003 until 2 September 2009. Dr Dwyer provided three reports – the first dated 28 March 2011 to Comcare, the second dated 4 April 2011 to Mrs Briggs’s solicitor, and the third dated 7 April 2009 was addressed to: To Whom it May Concern and given to Mrs Briggs for her compensation claim. Dr Dwyer’s reports were based on entries in Mrs Briggs’s clinical records. The letter of 7 April 2009 refers only to increasing back pain following the lifting of heavy curtains at her work on 31 March 2008 and then summarises Mrs Briggs’s progress until 7 April 2009. Dr Dwyer quoted the report of the CT scan of the lumbar spine performed on 21 November 2008. She stated that she examined Mrs Briggs on 24 November 2008 and upon finding Mrs Briggs’s ankle and knee jerks to be absent, referred her immediately to the neurosurgical clinic at St Vincent’s Hospital. The letter also says Mrs Briggs was first seen at the neurosurgical clinic on 21 March 2009.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Carey also pointed out that Mr Jones, in forming his opinion, had placed no reliance on the time of onset of the symptoms of sciatica. TRIBUNAL’S DELIBERATIONS AND DECISION There is no dispute as to Mrs Briggs’s diagnosis: degenerative anterolisthesis of L4 on L5 producing mild to moderate spinal canal stenosis, degenerative disc changes at L1-2, L3-4, L4-5 and L5/S1, facet joint degenerative changes and compression of the right L5 nerve root. The parties accept that the injury suffered by Mrs Briggs in the course of her employment at William T Onus Hostel between 31 March 2008 and 2 April 2008 rendered her pre-existing ailment symptomatic. The issues for determination by the Tribunal are:·was the contribution by Mrs Briggs’ employment to the aggravation of a pre-existing degenerative spinal disease of a significant degree and if so;·is the Respondent liable to pay compensation in accordance with s 14(1) of the Act and by extension s 16 and s 19; ·is any such liability negated by the requirements of s 53 to give notice as soon as practicable (s 53(1)(a));·was the delay in giving notice prejudicial to the Respondent (should this notice be considered sufficient); and ·did the delay result from ignorance, a mistake or any other reasonable cause and be thereby considered sufficient.A SIGNIFICANT CONTRIBUTION Mrs Briggs acknowledged her history of episodic back pain commencing in 1983. She acknowledged that she had not apprised the doctors she had seen of all of these episodes because they had only lasted for a few days and had been responsive to rest and simple analgesia. Mrs Briggs has given a clear history of the events of 31 March to 2 April 2008 and her resulting symptomatology, which shall not be repeated here. She admits that she did not notify her employer of these events or her symptoms. She did not seek medical attention until 10 April 2008, when her pain became more severe and unresponsive to rest and Panadeine Forte. It is unfortunate in terms of reaching a decision in this matter (and from the viewpoint of Mrs Briggs’s medical management) that throughout the relevant period Mrs Briggs has attended two medical clinics and has been seen by different doctors, with little continuity of care. The medical records of both clinics are poor and the notes are brief. These defects in the note-keeping have been acknowledged by the representatives of both clinics. Mrs Briggs was physically examined at Doctors of Northcote on 10 April 2008. The findings on examination are limited to the lumbar spine. The entry no sciatica could mean no symptoms of radiation or no signs of nerve compression. Her back was not examined again until 12 November 2008. In the interim, the only physical examination of Mrs Briggs was of her mouth. There are no entries in the VAHSC clinical record of Mrs Briggs undergoing physical examination of her back or a neurological examination of her lower limbs. In the letter of referral to the St Vincent’s Hospital neurosurgical clinic dated 24 November 2008, Dr Dwyer stated Absent reflexes on R. However, the clinical notes of that day merely say + ve neurology. Dr Dwyer’s letter of 7 April 2011 refers to Mrs Briggs attending the clinic and complaining of back pain on 10 April 2008 and on 31 August 2008. The letter states that on 31 August 2008 Mrs Briggs had positive SLR [straight leg raising] at 75-80 degrees [side not stated]. The letter of 4 April 2011 states that markedly reduced lower limb reflexes [side unstated] were demonstrated on physical examination on 3 November 2008. The three-word entry in the notes of that date does not record any examination findings other than bilateral sciatica found. [Tribunal note: sciatica is a symptom not a physical sign].