Magher and Comcare
[2008] AATA 970
•31 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 970
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0254
GENERAL ADMINISTRATIVE DIVISION
) Re TERI-ANN MAGHER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date31 October 2008
PlaceMelbourne
Decision The decision under review is set aside and a decision substituted that the applicant’s prolapse of the disc at the L5/S1 level is an injury as defined in (c) of the definition of ‘injury’ contained in s 4 of the Safety Rehabilitation and Compensation Act 1988 and she therefore qualifies to receive compensation under s 14(1). ..............................................
Deputy President
CATCHWORDS – COMPENSATION – disc prolapse – disc degeneration – whether injury occurred in the course of employment – whether injury was aggravated by employment – competing expert medical opinions – decision under review set aside
Administrative Appeals Tribunal Act 1975 s 37
Safety Rehabilitation and Compensation Act 1988 ss 4, 14
Briginshaw v Briginshaw (1938) 60 CLR 336
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626
Rodgers and Australian Postal Commission [2005] AAT 1007
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
31 October 2008 Mr G L McDonald, Deputy President 1. The applicant is applying for the review of a decision of a delegate of the respondent dated 14 December 2006 which affirmed, after internal review, a decision refusing to accept her injury of sciatic nerve and rotated disc displacement thoracic/lumbar intervetebral disc as being work related. The applicant is seeking a determination that she qualifies to receive compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) on the basis that her work activities materially contributed to and/or aggravated her back condition.
2. The Tribunal had before it the documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the exhibits. The applicant and Associate Professor O’Brien, a rheumatologist, gave oral evidence on behalf of the applicant. Two additional reports to one contained in the T documents from Dr Fox, the applicant’s treating general medical practitioner, were admitted by consent[1]. A report from the applicant’s treating orthopaedic surgeon, Mr Hunt, was also admitted by consent[2].
[1] Exhibits A5 and A6.
[2] Exhibit A7.
3. The respondent called Mr Shannon, an orthopaedic surgeon, Dr Karna, a rheumatologist, and Ms Johnstone, a manager of the agency (Centrelink) where the applicant worked and continues to work. The respondent admits, and the material before the Tribunal confirms, that the applicant has suffered from a constitutionally based degenerative spine condition, that in May 2006 she suffered a disc prolapse at the L5/S1 level, but the respondent denies that there is any relationship between the condition and the applicant’s work.
The Issues
4. The applicant’s case is:
(a)that the prolapse of her spinal vertebrae at the L5/S1 level occurring in May 2006 is an injury which was suffered by the applicant in the course of her employment (definition (b) of ‘injury’ in s 4 of the Act), or alternatively
(b)the applicant’s injury (the prolapse) or ailment (being the degeneration of the spinal vertebrae) was aggravated (to a material degree) by work activities, including bending, lifting and twisting, carried out in the course of her employment (definition (c) of ‘injury’ and definition (b) of ‘disease’ in s 4 of the Act).
5. The respondent submits:
(a)In respect of paragraph 4(a) above, that the evidence does not meet the standard of probability necessary for the applicant to succeed in that the weight of the medical evidence does not support the timing of the injury as occurring during the course of the applicant’s employment.
(b)In respect of paragraph 4(b) above, the weight of the medical evidence does not support the applicant’s work as making any or any material contribution to her injury and it cannot be categorised as constituting a disease for the purpose of it being an injury.
The Facts
6. The applicant was born on 8 August 1962 and has worked for Centrelink (howsoever named) since 1981. The relevant period of the applicant’s employment to this appeal is that between 1985-2006 (‘the relevant time’). The applicant gave a detailed description of the work she undertook at the relevant time. It is unnecessary to recite that evidence in chronological order as the elements relevant to this application are largely not in issue. They can be summarised as follows:
(a)The applicant was a clerical officer. The main thrust of her work, throughout the relevant time, involved the assessment and recording of circumstances for people being paid or seeking to be paid benefits. In undertaking this work she was required to carry out computer input from forms completed by applicants for, and update information received from recipients of, social security payments. The paper files she was required to access varied in weight, some constituted by several volumes taped together which could weigh upwards of five kilograms. The majority were, however, lighter in weight.
(b)Initially the applicant was required to access files from the main storage racks which were then located on a different floor from where her desk was situated. Files in the main storage racks were positioned in racks which the applicant described as approximately six foot tall commencing at ground level, where files would be retrieved by bending to pick up those located at floor level, to higher racks where retrieval was undertaken by stretching. Several files were collected at any one time. Files were then carried up stairs to be worked on at her desk. After completion she would sort out the files on her desk, or picked up from the floor near her desk, and return them to the storage racks.
(c)As well as retrieving files from the storage racks some files, presumably those requiring ongoing attention, were located on half racks situated behind her desk. As the name suggests half racks were about three foot high. Retrieval was often carried out by the applicant remaining at her desk and swivelling in her chair then bending to locate the file, lifting it and returning to her original position facing her desk. The applicant was unable to recall whether the chair was on castors or not. Again at the conclusion of her work on them the files were sorted, including being picked up from the floor surrounding her desk, and returned to the half racks.
(d)Additionally, her responsibilities throughout the relevant time involved her in undertaking mail duties. Her involvement with the mail was not carried out in any uniform way but was undertaken irregularly on an ‘as needed’ basis. Sometimes the need was greater, and hence her involvement was more constant (up to four out of every five days) than at other times (where she may been involved only once a week). Incoming mail was left in bags, some weighing in excess of 20 kilograms. The bag was lifted or dragged from the point where it was delivered to a bench and placed on the bench and the mail tipped out and sorted for distribution. The applicant does not claim to be involved in mail distribution. Outgoing mail was generally lighter, with bags weighing up to 10 kilograms, but the bags were still required to be lifted or dragged to the point of dispatch.
(e)For six to nine months the applicant worked in a supervisory role at the Sunshine office of Centrelink where, as well as continuing with her input work, she undertook financial administration. The files at the Sunshine office were stored in suspension draws in cabinets and in the case of those files requiring ongoing attention on a storage shelf in front of her desk. The applicant described the Sunshine office as a mail hub for 13 surrounding Centrelink offices but said while there was more mail it was of much the same weight as the mail she had previously handled. Mail bags were lifted onto pegs so that outgoing mail could be more easily placed in them. The applicant would assist in the lifting of mail bags from the pegs and dragging or lifting them to the area from which they were dispatched.
(f)For the six to nine months commencing in approximately 2001 the applicant worked at the Geelong office where she was part of ‘the retirement team’. That team was involved in processing applications associated with aged pensions. This was a desk based function. Forms and files were stored in a cupboard beside the applicant’s desk[3]. Retrieval from the cupboard involved a twisting and bending movement.
(g)In late 2001 the applicant was transferred to the office support unit which was also located at Geelong. The Geelong office was a large one with up to 130 staff. The work involved her checking on public moneys and assets. Additionally the unit was the first port of call for Centrelink employees experiencing difficulties with the operation of computers, photocopiers and other equipment. Initially there were three people working in the unit but the number soon reduced to two. It was the applicant’s evidence that, while not a technician, she had a sufficient working knowledge to undertake preliminary checking of malfunctioning computers. This sometimes involved ensuring connections to power sources had been maintained which, in turn, involved her bending and twisting to get into position, sometimes underneath desks, to enable the work to be undertaken. She was also involved in bending across desks and moving computers to check that their connections were in place. The applicant was also required to move a heavy photocopier which, while on wheels, she maintained required considerable effort to move.
(h)As an additional part of her duties in the support unit the applicant was required on a once a month basis to unpack office supplies. The supplies were delivered in 40-50 boxes at a time. The boxes were unpacked and their contents consisting of pamphlets, packs of documents, and paper, were put on shelves approximately six feet tall. The work required lifting the boxes from where they had been left, unpacking their contents on the floor and placing the contents on shelves. In carrying out the latter function the applicant lifted half the contents of a box at a time onto storage shelves. This required lifting, bending and stretching motions.
(i)Thereafter the applicant was engaged as part of the consolidating processing team, initially at Geelong, and from about 2003 at Corio. This aspect of her work was totally desk based and involved answering telephones and completing various forms. The work is much as described in (a). During this period the applicant was also required to undertake reception work for one and a half hours per day during the lunch period. The work was busy in this time as those recipients who worked would come into the office during their lunch break at which time the office only had half the usual number of staff on duty. This work was undertaken at the front counter of the office with the applicant sitting on what she described as a ‘high stool’ or ‘step stool’. She interviewed users of the Centrelink’s services and provided them with the appropriate form to complete. The forms were located on shelves behind her and to gain access to them she swivelled on the chair and bent or stretched in order to locate the required form.
(j)Ms Johnstone, a manager at the Corio office in the period early 2005 to October 2006 stated that she could recall there being occupational and safety issues associated with the weight of the mail bags. Ms Johnstone, however, could not recall what was done about resolving the issues. Ms Johnstone, while confirming that the applicant would have assisted with the mail, was unable to recall the extent of the applicant’s participation. Ms Johnstone described the applicant as “a very self reliant person” [4].
[3] Transcript, page 16.
[4] Exhibit R5, paragraph 6.
7. In her statement the applicant said she first occasionally suffered small amounts of discomfort to her back in the period pre 2001[5]. In 2001 the applicant went on holiday to Bali. A few days after her return to Australia she experienced pain to her lower back. While the applicant could not be certain as to the cause, she attributed the pain to twisting and lifting her luggage from the airport carousel[6]. The applicant received treatment from her then general medical practitioner Dr Peter Smith at the Belmont clinic. Dr Smith has since died and the clinic could not locate her medical record. A CT scan, undertaken in February 2002, confirmed “…a small right posterior and lateral prolapse at the L4/5 disc”[7].
[5] Exhibit A1, paragraph 7.
[6] Exhibit A1, paragraph 8.
[7] T documents, T4, page 26 and Exhibit A1, paragraph 9.
8. The applicant stated that in the period 2001-2006 she would suffer flare-ups of back pain on three or four occasions a year. The applicant maintained her work activities including sitting and twisting aggravated the pain[8], as did undertaking some non work related activities, for example vacuuming. If the pain was bad she would take sick leave from work, self administer anti-inflammatories and/or analgesics and rest at home. From 2002 the applicant’s general medical practitioner has been Dr Fox. He noted prescribing her Fenac (an anti-inflammatory drug) on 8 January 2004 which was to be taken twice a day until the course of 50 tablets had been taken. While the prescription was repeated on 10 January 2006 additional medication was not prescribed in the intervening time. The applicant said that in the two year period following January 2004 she purchased non prescription pain and anti-infammatory drugs, rested when the pain arose, and did not often visit Dr Fox when she was experiencing pain because the lengthy waiting periods involved before seeing him only served to worsen the pain. Reports from Dr Fox dated, 28 August 2006[9], 8 June 2007[10] and 20 February 2008[11] are before the Tribunal, along with his clinical notes[12].
[8] Exhibit A1, paragraph 10.
[9] T documents, T19.
[10] Exhibit A6.
[11] Exhibit A5.
[12] Exhibit R4.
9. In the period post April 2002 adjustments were made to the applicant’s desk and seating arrangements. Reports of the therapists who made the adjustments commented on what the applicant identified as being the need for the adjustment. The first such report dated 30 April 2002 stated the applicant as having suffered a lumbar disc prolapse in October 2001 which resulted in her suffering “…localised lower back pain along with sciatic pain referring down her right leg”[13]. The second report dated 13 January 2004[14] makes no mention of the applicant suffering back pain. The third report dated 6 July 2006, follows her experiencing a slow increase in pain to her back during the earlier part of 2006[15].
[13] T documents, T6, page 28.
[14] T documents, T8.
[15] T documents, T13.
10. The first mention of any work related activity being connected with the applicant’s back pain, other than prolonged sitting, occurs in Professor O’Brien’s report dated 26 September 2007[16]. Despite its inclusion in Professor O’Brien’s report, curiously, no mention is made of this aspect in the statement of facts, issues and contentions dated 2 November 2007 filed by the applicant’s solicitors with the Tribunal, even though the latter post dates the applicant’s statement. The first mention of other work activities, other than prolonged sitting, from the applicant appears in her statement of 6 March 2008[17]. There is an issue of what significance this may have to the determination of this case.
[16] Exhibit A2 where “twisting and standing” difficulties are noted in paragraph 4 of page 1 and “bending and twisting” are mentioned in the final paragraph of the same page.
[17] Exhibit A1, paragraph 10.
11. The applicant contends two things. First, that she is not a medical practitioner and could not be expected to make any connection between her work and her back pain and secondly, aside from knowing that she was suffering pain, there was no reason for her to make the connection between that pain and her work activities other than the conclusion she reached that prolonged sitting gave rise to back pain. A person may experience pain but that may be a different matter from associating the cause which gives rise to the pain occurring. Mr Shannon, however, maintained that patients were in the best position to identify the cause of their pain and that the applicant’s denial that her back pain was associated with her work (except in relation to prolonged sitting), given on two occasions, when he was taking a history from her left him satisfied that the other work activities were unassociated with her condition.
12. There is no reason for the Tribunal to question the credit of the applicant. She is obviously a long term employee who held a trusted position (particularly associated with the accounting and asset management of Centrelink’s regional affairs). Ms Johnstone described the applicant as “a very self reliant person”[18]. The fact that the applicant made no early connection between the pain she suffered in the period post the identification of the L4/L5 prolapse in 2001 and May 2006 does not bring her credit into question. The Tribunal accepts the applicant as an honest witness doing her best to recall details, some of which occurred many years ago. While like everyone trying to remember events which occurred some years ago her recollection may not have always been 100% accurate but the Tribunal accepts it as being largely so. The Tribunal draws no adverse conclusion from the applicant not making any connection between her work activities and her back pain in the period post the prolapse she suffered in 2001.
[18] Exhibit R5, paragraph 6.
13. By May 2006 the applicant stated that the pain had become noticeable every time she sat down, and she said it had intensified and lasted over longer periods of time than had previously been her experience when flare-ups had occurred. The applicant stated that she first experienced severe pain in her right hip in early May 2006. This was the first occasion that the pain extended to her buttock and radiated down her right leg. Approximately three weeks after the onset of the pain the applicant saw Dr Fox. A CT scan report ordered by Dr Fox, dated 1 June 2006, revealed a prolapse at the L5/S1 level. The applicant underwent an operation carried out by Mr Hunt, an orthopaedic and spinal surgeon, to remove the prolapse on 1 September 2006. However the applicant continues to suffer pain to her back.
14. Since this case involves an analysis of the causes of prolapse, it is as well to commence by defining what constitutes a prolapse. The spine is constituted by invertebral discs. All of the medical witnesses who gave oral evidence agreed with Professor O’Brien’s definition that prolapse arises when the outer shell of the disc (the annulus fibrosis) fissures or cracks and the soft gelatinous material inside the disc (nucleus pulposus) exudes through the annulus. The prolapse places pressure on the spinal nerve which, in turn, results in shooting pain from the buttock down to the leg (described as ‘sciatic pain’). There is unanimity that the pain the applicant suffered in May 2006 was sciatic pain resulting from a disc prolapse.
15. Professor O’Brien opined, in his first report of 26 September 2007[19], that there was “no doubt” that the applicant suffered disc degeneration in the lumbosacral intervertebral disc[20]. Mr Shannon and Dr Karna agreed with this diagnosis. In the terms of the Act the Tribunal accepts the applicant’s degeneration of the spinal discs as being a ‘disease’ and/or ‘injury’.
[19] Exhibit A2.
[20] Exhibit A2, page 4.
16. The Professor also opined in that same report that there was “no doubt” that the 2000 L4/5 disc disease was not related to her employment, but he opined that the L5/S1 prolapse was related to her employment. The Professor concluded that in the absence of any other precipitating factor, the pain experienced by the applicant in her lower back was “precipitated and aggravated by her sitting and standing and twisting at work”[21]. In his second report dated 17 January 2008[22] the Professor stated that there was “no doubt” that the earlier prolapse at the L4/5 level would have increased the likelihood of her experiencing further disc degeneration, particularly to the L5/S1 disc, as greater stress was applied to the surrounding discs as the result of the weakness occurring at the L4/5 level. The resulting weakness combined with the twisting, bending and lifting at work were, in the Professor’s opinion, causative factors in the 2006 prolapse. In both his second and third reports (the latter dated 11 March 2008[23]) Professor O’Brien repeated his opinion that the applicant’s condition was materially contributed to by her work activities.
[21] Exhibit A2, page 4.
[22] Exhibit A3.
[23] Exhibit A4.
17. In his oral evidence Professor O’Brien said that not any one of the actions engaged in by the applicant in the relevant period in the course of her work was likely to be responsible for the prolapse of her L5/S1 disc. However, in combination, activities involving the applicant in twisting, bending and lifting over a lengthy period of time, he felt, more than likely contributed to the applicant’s L5/S1 disc prolapse. He held this opinion particularly in the absence of any other identifiable factor (that is, the applicant did not engage in vigorous contact sport and had incurred no apparent trauma to the spine). The Professor stated that of the work related activities, stretching was least likely to be a contributory cause, because it does not involve compression of the intervertebral discs[24]. The Professor was asked but could not point to any medical literature or research which supported his opinion.
[24] Transcript, page 135.
18. Mr Shannon examined the applicant and provided two reports dated 17 and 18 July 2007[25]. In his report of 17 July Mr Shannon reports the applicant as stating that she suffered pain to the (right) buttock which after three weeks started to radiate down her right leg. Mr Shannon reported that after three weeks of pain the applicant “felt that the symptoms were intolerable” and sought help[26]. He stated in his report that despite asking her twice during the course of the consultation she specifically denied any association between her back pain and her work, other than that prolonged sitting exacerbated her sciatic pain. This is a reference to pain after the 2006 disc prolapse. It is agreed by all the medical specialists that sitting, including prolonged sitting, while it may be productive of symptoms (back pain), is not a causative factor of disc prolapse. Mr Shannon opined that the disc prolapse “…was purely a spontaneous disc prolapse and not work related”[27]. The report makes no comment as to whether the applicant suffered, or claimed to suffer, an increase in pain, following the first manifestation in May 2006. A fair contextual reading of Mr Shannon’s report would leave the reader satisfied that the 2006 disc prolapse, while unrelated to the applicant’s work activities, occurred spontaneously and occurred or commenced at the time she first experienced pain while she was at work.
[25] Exhibits R6 and R7 respectively.
[26] Exhibit R6, page 2.
[27] Exhibit R6, page 4
19. Mr Shannon acknowledged that activities involving bending, twisting and lifting cause stress to spinal discs, particularly where there also may be constitutional degenerative change occurring. However, in his oral evidence Mr Shannon maintained that without any evidence of a work related incident occurring which led to an onset of back pain and without any evidence from CT scans to confirm the timing, it was impossible to say whether the 2006 prolapse was of sudden onset or had been developing over a period of years.
20. The opinion, expressed by Mr Shannon in his report was based, in large part, on what he was told by the applicant. He placed particular emphasis on two things. First, Mr Shannon concluded from what the applicant told him that she had, in the 2001-2006 period, avoided undertaking work activity which may give rise to back pain and secondly, that this was evidence of the applicant not engaging in work related activities which could be associated with her 2006 prolapse. This is not the evidence before the Tribunal. The evidence of the applicant, which the Tribunal accepts, is that when she was suffering pain she avoided undertaking activities which she concluded would exacerbate that pain. The flare-ups of pain occurred three or four times a year and lasted for a few days. On other occasions when she was pain free the applicant undertook her normal work activities. In any event, Mr Shannon maintained that even accepting the work related activities occurred, it made no difference to his opinion that there was no necessary connection between them and the applicant’s 2006 prolapse.
21. There is an inconsistency in Mr Shannon to agree that the lifting of the suitcase from the carousel in 2001 could be related to the onset of pain some days later but not accept that pain may occur hours or days later after the applicant undertook work activities which he agreed placed pressure on the spine. The applicant is a lay person. The fact that she made a connection between lifting the suitcase and subsequent onset of pain may have been arrived at by a process of elimination, that is, this was the only likely occurrence which could have given rise to the pain. On the other hand that she made no connection between work activities and pain, other than prolonged sitting, does not mean no connection exists. The lack of a lay person making any connection is at its highest equivocal and more likely than not is something, because the time over which she had engaged in such activities without any pain resulting, which simply did not cross her mind. The Tribunal is satisfied that the evidence, as accepted by it, does not support a conclusion, reached by Mr Shannon, that the applicant did not engage in any work activity which could have contributed to her 2006 prolapse.
22. There is a further aspect of Mr Shannon’s evidence, in which he said it was likely that the 2001 identified L4/L5 disc prolapse was unlikely to have been as recorded, and that what was more likely was that the CT scan reflected degeneration to the L5/S1 disc[28]. Since Mr Shannon did not see the 2001 CT scan (and relied on the report of the radiologist) and only raised this possibility at the hearing and neither Professor O’Brien or Dr Karna mentioned it as even being a possibility, the Tribunal is left satisfied that it would be unsafe to rely on what amounts to a hypothesis rather than an opinion. This is so particularly given the findings set out in the radiological report at T4 and which were otherwise unchallenged.
[28] Transcript, page 235.
23. Dr Karna reported that the onset of the pain the applicant experienced in May 2006 commenced insidiously when she was sitting at her workstation, when, over some days, she started to develop right hip pain and then groin and buttock discomfort. This worsened over the passage of some days such that she was getting quite obvious right sided sciatica[29]. Dr Karna related the 2001 prolapse as weakening the surrounding discs combined with the applicant’s weight as the causes of her 2006 disc prolapse and that her condition was unrelated to any work activities[30]. He stated:
“….at most her employment [and noting the physical requirements of her work] has represented nothing more than the venue for the onset of an underlying constitutional problem….”[31]
[29] Exhibit R8, page 2.
[30] Exhibit R8, page 3.
[31] Exhibit R8, page 4.
A fair reading of Dr Karna’s report would leave the reader satisfied that he dismissed any connection between the applicant’s work activities and her 2006 prolapse, other than that that prolapse occurred while she was at work.
24. However it was Dr Karna’s oral evidence that there was no way of ascertaining where the back pain experienced by the applicant emanated – it could be from soft tissue, ligaments, surrounding muscles or the facet joints. He also maintained that there was no way in which the time the prolapse occurred could be identified with certainty. All that could be said, absent any identifiable biomechanical stressor (being a symptomatic temporally related incident specific event) was that the pathological change may have occurred around the time the applicant suffered pain in May 2006[32]. It was Dr Karna’s evidence that the vast majority of his peers would require there to be evidence of such a biomechanical incident occurring before a link could be drawn between work activities and the prolapse. Like Mr Shannon, Dr Karna agreed that there could be a time lapse between hours or up to a week between a biomechanical incident occurring and the a person experiencing an onset of pain. The period of a week was more likely to be related to a low grade disc problem[33]. However Dr Karna associated a ‘massive’ disc prolapse with a more immediate pain onset. As with Mr Shannon’s evidence while it was accepted that the 2001 prolapse manifested pain some days after the applicant was involved with the incident (the lifting and twisting of the suitcase from the airport carousel) Dr Karna was unable to accept that lifting, for instance a heavy mail bag, could result in back pain occurring some days later.
[32] Transcript, page 251.
[33] Transcript, page 257.
25. An ‘injury’ in colloquial terms is something which occurs as the result of sudden onset. As Mr Leczner pointed out the classic injury arises from some form of accident, for example, a motor car accident. The Act defines ‘injury’ as including ‘disease’.
Section 4 defines ‘disease’ as:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
And ‘injury’ as:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Did the injury occur in the course of the applicant’s work?
26. A disease may give rise to an injury and will be compensable under the Act if the injury occurs in the course of a person’s work. Thus in Kennedy Cleaning Services Pty Ltd v Petkoska[34] an embolism arising as the result of stenosis of the mitral valve travelled to the brain where it occluded, resulting in the worker suffering a stroke while at work. The Court characterised the stenosis of the mitral valve as a ‘disease’ and the stroke as an ‘injury’. Gleeson CJ and Kirby J held that an injury is a sudden physiological change and if such an injury is incurred by a person at work, there was in the wording being considered no need for a causal connection to be made between the injury and the work for the worker to be entitled compensation. The decision turned on the interpretation to be given to the specific legislative provisions. Gaudron J pointed out that the words in the legislation ought be given their natural meaning and not be construed in such a way as to constrain the circumstances in which a worker may be compensated[35]. The legislation in Kennedy’s case was that applicable under the ACT Workers’ Compensation Act 1951 where ‘injury’ was defined to mean, among other things, “any physical injury…” and the Court held that the ordinary meaning extended to include any sudden physiological change occurring even if that change arose from a pre-existing disease[36]. An injury while it may, and probably will in most cases, involve an external cause it does not necessarily need an external cause. Thus, as the majority of the High Court found in Kennedy’s case any sudden internally occurring rupture or breaking involving physiological change is capable of constituting a physical injury. A similar result was arrived at by the majority of the High Court in Zickar’s case[37] which was an appeal arising under the NSW Workers’ Compensation Act 1987.
[34] (2000) 174 ALR 626.
[35] A similar comment was made by Toohey, McHugh and Gummow JJ in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 328.
[36] (2000) 174 ALR 626 at 640.
[37] Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
27. The Full Federal Court in Health Insurance Commission v Van Reesch[38] considered the case of a worker who while suffering from a painful back condition, also suffered a disc prolapse in the course of her employment. The Court applied the majority decision in Zickar and distinguished the underlying autogenous back condition suffered by the worker from the prolapse, categorising the former as a ‘disease’ and latter as an ‘injury’. In neither of Zickar or Van Reesch was it necessary that there be any connection between the work activity and the incurring of the injury. It was sufficient that the injury occurred while the worker was at work. The legislative provisions in Van Reesch and Zickar were similar to those in the present case. Having regard to those authorities the Tribunal first looked to see if the evidence supported the applicant as suffering an underlying disease (degeneration of the vertebrae of the back) followed by the 2006 disc prolapse, with the latter occurring whilst in the course of her employment.
[38] (1996) 45 ALD 302.
28. In an undated report marked as sent on “28/8” (in 2006) Dr Fox opined that while no commencement date could be determined the CT scan taken in May 2006 confirmed the existence of the disc protrusion and it had “…been there 3 weeks when seen in May so it had occurred some time in early May. There was no specific time when it occurred…”[39].
[39] T documents, T19, page 54.
29. There is no dispute that the applicant stated the onset of pain in early May 2006 occurred while she was carrying out her “ordinary duties”[40]. The applicant’s evidence on the commencement of pain is as follows:
[40] Exhibit A1, paragraph 13.
(a)in the lead up to May 2006 there had been more regularly present pain which instead of lasting for two or three days took up to a week to resolve[41];
(b)in her statement dated 6 March 2008:
“In early May 2006, whilst at work completing my ordinary duties, I developed pain in my right hip. The pain begun as an ache over my right hip and right buttock and over the period of a week it gradually increased until it became severe. The pain was much more pronounced whilst I was at work and I had difficulty sitting, bending and twisting. The pain was relentless and I was finding it difficult and painful to walk. I tried to put up with the pain for about three weeks in the hope it would settle, unfortunately the pain did not decrease.”[42]
(c)in her oral evidence she recalled that the pain “came on very suddenly. It came on within a matter of days”[43].
(d)the applicant could recall talking to Ms Johnstone about the pain she was experiencing
“… I recall – can clearly recall sitting there [at the applicant’s desk] telling her – holding my hip saying I’ve got a really nasty pain in my hip and I don’t know what it is and this was the first day that I had ever experienced anything like it…”[44]
(e)Ms Johnstone could recall the applicant talking to her about suffering hip pain but placed the timing in April 2006 being shortly after the applicant returned following a period of annual leave[45];
(f)an undated incident report, but presumably prepared at or about the time the onset of pain occurred, identified “back, leg, hip” as the part of the body most affected[46];
(g)in cross examination the applicant said that the pain commenced in her hip and persisted there for a few days before it moved “very quickly” to her right buttock and leg[47]. The applicant had earlier said the pain in her hip lasted for two or three days[48]; and
(h)the applicant stated that she may also have been experiencing back pain at the time the hip pain commenced but that since the hip pain was so severe it was this which had her attention[49].
[41] Transcript, page 23.
[42] Exhibit A1, paragraph 13.
[43] Transcript, page 23.
[44] Transcript, pages 36 and 37.
[45] Exhibit R5, paragraph 4.
[46] Exhibit R2.
[47] Transcript, pages 43.
[48] Transcript, page 39.
[49] Transcript, page 40.
30. The dilemma from this evidence is to identify whether there is a connection between the onset of pain, which the Tribunal accepts from the applicant’s evidence occurred while she was at work, and the 2006 prolapse. Dr Karna clearly stated that there may be no relationship between the onset of pain and the commencement of the prolapse. Both Mr Shannon and Dr Karna said that in the absence of CT scans there was no way of definitively establishing when the onset of the prolapse commenced. There was no necessary association between experiencing pain and onset absent a temporally related incident of trauma to the back. Professor O’Brien was not asked and did not comment on the likely time of onset of the condition. While neither of Dr Karna or Mr Shannon could discount the possibility of the onset of the condition and the onset of pain occurring simultaneously, even although the applicant had not suffered any temporally associated back trauma, they maintained such a conclusion is too uncertain to enable it to be safely reached. Despite the evidence quoted above from Dr Karna’s report[50], which seems to imply that onset was associated with the commencement of pain, the Tribunal is more convinced by the weight of the oral evidence given by both Mr Shannon and Dr Karna that it would be too uncertain to conclude, on the balance of probabilities, that such a connection existed.
[50] Paragraph 23 above.
Did the work activities aggravate the applicant’s ailment to a material degree?
31. The Tribunal accepts the applicant’s evidence, as did all of the medical practitioners, that she suffered flare-ups of pain in the post 2001 period. From all of the material before it the Tribunal is satisfied that these flare-ups occurred approximately three to five times a year. The applicant reacted by taking time off from work and resting, as well as self administering usually non prescription pain and anti‑inflammatory drugs. Mr Shannon and Dr Karna maintained that the flare-ups could have resulted from a number of factors. First, the pain may result from the underlying constitutional degeneration which was occurring. Second, and particularly emphasised by Dr Karna, is that the pain may have arisen from any soft tissue, ligament, muscle or facet joint injury and that, without some additional confirmation from CT scans or connection to an incident, there was no way of identifying the source of the pain.
32. Mr Hunt, an orthopaedic surgeon, carried out the operation to the applicant’s back on 1 September 2006[51]. Mr Hunt did not give oral evidence but in a report dated 22 August 2007 to the applicant’s solicitors he stated that while he had not been informed of “the exact mechanism of injury or activities” which aggravated the applicant’s back symptoms he opined “Miss Magher explained to me that in the past she had trouble with her back pain, so I suggest her symptoms have been aggravated by activities in her workplace”[52]. Dr Fox in his letter to the applicant’s solicitors dated 8 June 2007 stated that there was a connection between her employment and the condition[53]. Dr Fox does not elaborate as to what evidence satisfied him as to the connection and was not called to give evidence. The value of Dr Fox and Mr Hunt’s evidence is not that it leaves the Tribunal satisfied, on the balance of probabilities, that there is a connection between any work activity and the applicant’s back condition, but rather it leaves open that such a connection is at least possible. All of the medical specialists who gave oral evidence accepted this as being the case.
[51] T documents, T21, page 60.
[52] Exhibit A7, page 3.
[53] Exhibit A6, page 2.
33. Professor O’Brien opined that the prolapse condition was materially contributed to by her earlier described work activities, an opinion which he expressed in three reports (26 September 2007, 17 January 2008 and 11 March 2008[54]) as well as in his oral evidence. He maintained that opinion having read Dr Karna’s report of 13 December 2007[55]. Professor O’Brien stated he held this view on the balance of probabilities and when asked he was clearly able to distinguish between something which was a possibility and something which was a probability.
[54] Exhibits A2, A3 and A4 respectively.
[55] Exhibit R8.
34. Mr Leczner submitted that the Tribunal should approach Professor O’Brien’s opinion with caution. It was not based on any empirical research findings nor was there any literature which supported it. Mr Leczner referred to Rodgers and Australian Postal Commission[56] to draw the Tribunal’s attention to a passage in the judgement of Dixon J in Briginshaw v Briginshaw that “…reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references”[57].
[56] [2005] AAT 1007.
[57] (1938) 60 CLR 336 at 361-362.
35. In Rodger’s case Dr Christie, a Senior Member of the Tribunal, summarised the underlying principles to be applied when addressing the weight to be attached to competing expert opinions as follows:
(a)That for specialist scientific evidence to be admitted, it must have a basis in a body of recognised scientific theory. Its value and effect need not be subject to complete unanimity by all experts in the field: R v Lucas [1992] 2 VR 109 at 115;
(b)An essential pre-requisite to the admission of expert medical evidence is that it be accepted by experts competent in the appropriate field as a scientifically established facet of this area of medicine. This must be established by appropriate evidence: R v Runjanjic (1991) 56 SASR 45 at 47;
(c)An assumption that a topic is a fit subject of expert evidence if it is proved that there is a scientifically accepted body of knowledge concerning the subject area of the expert opinion: R v C (1993) 60 SASR 467 at 473; and
(d)In Casley-Smith and Ors v FS Evans & Sons Pty Ltd and Anor (No 1) (1988) 49 SASR 314, Olsson J stated that an analysis of authoritative texts and decided cases established a number of propositions, including whether the opinion evidence “forms part of a body of knowledge…which is …sufficiently organized or recognised to be accepted as a reliable body of knowledge” (at 320). Later, Olsson J made the following observation (at 323) in relation to evaluating scientific principles that could be extracted from the existing body of learning (“at least so far as any relevant published works or research publications were concerned”) :
“…it is useful to bear in mind not only the dictum of King CJ in R v Bonython (supra) but also those of the United States Court of Appeals in the leading case of Frye v United States 293 F 2d 1013 which made the point that:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”[58]
[58] [2005] AAT 1007 at paragraph 122.
Clearly there is no body of experts competent in the field being considered by the Tribunal that holds there is a relationship between the work and an aggravation of the applicant’s back condition to result in a disc prolapse. However, this Tribunal does not accept that it is an essential pre-requisite that a proposition “…be accepted by experts competent in the appropriate field…”[59]. If that was always a pre requisite then there would be little or no room for doubt. An expert can be used in two ways. The first is to give an explanation, often in layman’s terms, of known scientifically established theories. The second, based on the expert’s knowledge, experience and expertise is to express an opinion. An opinion by the nature of it being an opinion may ultimately transpire to be right or wrong. Until that is established it remains an opinion.
[59] [2005] AAT 1007 at paragraph 122(b).
36. It must be recognised that medical science is not always able to be precise. Hence the need for experts to give their opinions. An opinion where there is no body of scientific research to support it must be examined by reference to the facts which the expert relies to support his/her opinion. In this case Professor O’Brien relies on the following:
(a)The 2001 prolapse results in more pressure being placed on the immediately surrounding discs, rendering them more susceptible to damage from biomechanical factors. Both Mr Shannon and Dr Karna agreed with this as a fact, with Dr Karna opining a qualification that soft tissue and muscles surrounding the disc would be the first areas to absorb any pressure arising from a biomechanical event.
(b)There were no other reported factors occurring in the applicant’s life which could have made a material contribution to the condition. The applicant did not engage in sport which may explain or be consistent with added stress being applied to her spine, nor did she engage in household or other activities which could have been a factor. The Tribunal accepts that the applicant sometimes swam, but also accepts this as an activity which is well known not to place stress on the spine. Otherwise the Tribunal accepts the applicant’s evidence that there was no other activity which would cause biomechanical stress to be applied to her spine. This is an exclusionary point and does not provide positive support for Professor O’Brien’s opinion.
(c)The work activities, while it was impossible to accurately quantify them, were of such a nature that they could have provided a material contribution to the condition. This was a proposition with which Dr Karna agreed. Mr Shannon was not convinced on the basis that the applicant stated she avoided undertaking activities when she was experiencing pain and therefore work activities could not be associated with the deterioration of her condition. The Tribunal does not accept Mr Shannon on this point and prefers the evidence of the applicant. Mr Shannon’s evidence amounts to a conclusion of fact which is a matter for the Tribunal to make. In any event, it does not allow that the pain experienced by the applicant may have arisen sometime after the activity responsible for the pain manifesting occurred. Additionally the applicant had long periods where she experienced no pain and could therefore continue to carry out work activities without realising those activities may be contributing to a worsening of her condition. The Tribunal accepts that the applicant is, as stated by her one time supervisor, Ms Johnstone, a self reliant person. This is consistent with the applicant’s self assessment in her evidence to the Tribunal that if a job needs doing she would get on with doing it. The Tribunal accepts, as a fact, that the applicant engaged in work activities some aspects of which raised at least the possibility of there being a connection between that work and the deterioration of her spinal condition.
(d)A time lapse of hours or days could occur between the applicant engaging in a work related activity and the onset of resultant pain.
37. Both Mr Shannon and Dr Karna accepted that there could be a time lapse between an activity being carried out and the onset of pain. As the Tribunal has commented earlier in these reasons there is a curious inconsistency in the evidence of both Mr Shannon and Dr Karna that while both accept that days elapsed between the 2001 event and the onset of pain both deny this as a probability in respect of the 2006 prolapse (and for that matter as being associated with the flare-ups of back pain occurring between 2001 and 2006). From the evidence of Mr Shannon and Dr Karna the Tribunal accepts that work activity engaged in by the applicant may, but not necessarily does, manifest in pain occurring days after the activity which induced the pain ended.
38. Dr Karna stated that he found it difficult to accept Professor O’Brien’s opinion, that in the absence of symptoms or a specific incident temporally associated with the prolapse occurring, that the duties in which the applicant engaged at work caused or materially contributed to the applicant’s prolapse[60]. Dr Karna maintained that the “vast majority [of my peers] would require an incident” – temporal pain connection to exist before making any connection to discogenic pain arising from a prolapse[61]. However, Dr Karna agreed that any underlying constitutional degeneration would be accelerated by increased wear and tear[62]. A massive prolapse would result in immediate pain[63], lesser degrees of prolapse may result in pain manifesting sometime after the biomechanical event or stress occurred. What the evidence of both Dr Karna and Mr Shannon amounts to is that while they accept a possible connection between the work activities and the onset of pain they say, absent an immediately preceding ‘incident’ causing stress to the back, that other, equally compelling, possibilities for the manifestation of pain exist. In those circumstances there is sufficient evidence to leave the Tribunal satisfied that a connection between pain onset and the prolapse exists.
[60] Transcript, page 251.
[61] Transcript, page 261.
[62] Transcript, page 253.
[63] Transcript, page 264.
39. The concept of reasonable satisfaction in accepting the opinion from an expert does not require a Tribunal to exclude every other possibility which may exist, and which is not consistent with the expert’s opinion. There is no reasonable basis on which to reject Professor O’Brien’s opinion as there is no underlying factor cited in support of the opinion which is open to question. The fact that Dr Karna and Mr Shannon concede the logic of Professor O’Brien’s connection between work activities adding to the pressure on the L5/S1 disc arising from the pre-existing weakness in the previously prolapsed L4/5 disc and that the agreement between all the medical practitioners that there may be a time lapse of up to several days between an activity and the onset of pain combined with an acknowledgement in the case of Dr Karna that the activities themselves were capable of being the cause of the onset of the prolapse, leave it open for it to be reasonable that the Tribunal accepts Professor O’Brien’s opinion. The Tribunal accepts that left to occur in the natural course of events the condition may have remained pain free – at least for some time. Given that the Tribunal accepts any contribution which hastens the onset of the prolapse makes a ‘material’ contribution to the ailment.
40. For the above reasons the decision under review is set aside and a decision substituted that the applicant’s prolapse of the disc at the L5/S1 level is an injury as defined in (c) of the definition of ‘injury’ contained in s 4 of the Act and she therefore qualifies to receive compensation under s 14(1).
I certify that the forty preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: ...............................................................
Grace Horzitski Associate
Dates of Hearing 13 and 14 March 2008;
24 and 25 September 2008
Date of Decision 31 October 2008
Counsel for the Applicant Ms J Bornstein
Solicitor for the Applicant Ryan Carlise Thomas
Counsel for the Respondent Mr J Leczner
Solicitor for the Respondent Dibbs Abbott Stillman
0
10
0