Mortimer and Comcare (Compensation)

[2018] AATA 3783

Mortimer and Comcare (Compensation) [2018] AATA 3783 (10 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0850

Re:Mr Allan Mortimer

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Ian Hanger AM QC

Date:10 October 2018

Place:Canberra

The reviewable decision dated 23 December 2016 is affirmed.

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Deputy President Ian Hanger AM QC

Catchwords

COMPENSATION – whether Mr Mortimer continues to suffer the effects of an injury which arose out of, or in the course of, his employment – whether Mr Mortimer continues to suffer the effects of a disease which was contributed to, to a significant degree, by his employment with the Commonwealth – aggravation of lumbar sprain resolved as at the date of the reviewable decision – no further liability to pay compensation under section 16 or 19 of the Safety Rehabilitation and Compensation Act 1988 – reviewable decision affirmed.

Legislation

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

Cases

Prain v Comcare [2017] FCAFC 143

REASONS FOR DECISION

Deputy President Ian Hanger AM QC

10 October 2018

INTRODUCTION

1. Mr Allan Mortimer, the applicant, suffers from a degenerative condition of the L4/5 facet joint in his spine. His claim is in respect of an injury to his back while at work. The case for the respondent is that it was a musculo-ligamentous injury which had resolved by November 2015. The case for the applicant is that whatever name is given to the injury, it continues.

   BACKGROUND

2. The applicant claims to have suffered two back injuries while working for the respondent. The first occurred in 2011 when he was shifting office chairs and tables and relocating a partition at work. The second injury is the subject of the present hearing. His duties involved creating physical and electronic records, archiving records, responding to information and management inquiries, and relocating records. The physical aspects of the position mainly related to moving archive boxes and occasionally loading pallets of papers and records.

3. On 22 April 2015 he was asked by his supervisor to move a large quantity of boxes which had arrived on pallets to the basement. While moving the pallets and boxes, he experienced what he has described at various times as a “sharp pain” and a “jarring”. He continued working for about a week. He thought that the pain was temporary and that it would heal quickly, but that did not happen. On or about 30 April 2015 he advised his team leader of the injury.

4. His GP Dr Pitcher provided him with a medical certificate from 30 April 2015 to 15 May 2015, and then from 18 May 2015 to 25 May 2015. He returned to work on a return to work program of three hours per day, with a lifting limit of 5 kg, breaks every 30 minutes to walk and stretch, no pushing or pulling and standing most of the time. A stand-up desk trial was recommended and that was provided. Shortly thereafter his working hours were increased to 4 hours per day with the same work restrictions.

5. On 29 July 2015, the respondent accepted liability for his claimed condition which was “lumbar back pain-facet joint dysfunction mild degenerative disc disease”.

6. An initial rehabilitation assessment was performed on 18 June 2015 and a report completed on 2 July 2015. It stated he was fit to work reduced hours of five hours a day for five days a week with no lifting more than 5 kg, no pushing or pulling, limited sitting with breaks every 30 minutes to walk and to stretch.

7. He attended physiotherapy twice a week for a couple of months and performed exercises at home with gym equipment. On 12 October 2015 he was advised by his supervisor that she wanted him to move to the mailroom given his medical condition and he was not unhappy with that.

8. On 24 November 2015 his GP Dr Pitcher certified him as “fit for permanently modified duties as per the return to work plan”. That is the date at which the respondent asserts that the effect of his injury had ceased.

9. On 22 June 2016 the Department of Industry and Science (the Department) offered him a voluntary redundancy.

10. On 27 September 2016 A Suitable Duties Plan was drafted by rehabilitation specialists. This plan noted a restriction for the applicant to work four hours a day five days per week with no lifting above 5 kg.

11. On 14 October 2016 a further suitable duties plan was drafted restricting him to work four hours a day five days a week until 21 October 2016 and then progressing to 5 hours a day five days per week between 24 October 2016 and 4 November 2016.

12. On 1 November 2016 the respondent issued a determination stating it had no present liability for compensation pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The respondent asserted that “the medical evidence indicates the injury against which compensation is now claimed is not the accepted aggravation of lumbar spine or acute musculo-ligamentous lumbar sprain injury rather the current diagnosis back/injury is L4/5 facet joint arthropathy.”

    LEGISLATION

13. Section 14 of the Act provides that Comcare will pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

14. Section 16 of the Act provides that where an employee suffers an injury, Comcare is liable to pay for the cost of medical treatment.

15. Section 19 provides that Comcare will pay certain amounts to an employee who is incapacitated for work as a result of an injury.

16. Section 5A(1) provides so far as is relevant:

    “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…”

17. Section 5B(1)(a) provides

    “"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.”

    ISSUES

18. The respondent accepts that it is liable under s 14 in respect of “aggravation of lumbar sprain” (the injury) that occurred in April 2015 but it submits that the effects of that injury had ceased by the date of the determination on 1 November 2016.

19. The tribunal must determine whether the applicant continued, as at 1 November 2016, to suffer from the effects of an “injury” as defined in s 5A(1)(a) of the Act or a “disease” as defined in s 5B(1)(a) of the Act. If so, does the applicant reasonably require medical treatment for which compensation is payable and is the applicant incapacitated for work as a result of the compensable injury?

    CONTENTIONS

20. The respondent contends that the effects of the injury had ceased by 24 November 2015 and that after that date the workplace incident in which the applicant sprained his back moving boxes at work did not significantly contribute to the applicant’s symptoms and that the effect of the workplace incident was pushed further and further into the background by subsequent events: Prain v Comcare [2017] FCAFC 143 [87].

    CONSIDERATION

21. The applicant was born in 1968. On or about 16 November 2011 he suffered lumbar back strain while he was moving furniture and a wall divider at work. Dr Pitcher, his GP, provided certificates certifying him unfit to work until 9 January 2012. On 5 December 2011, he claimed compensation for a “back sprain” and on 11 January 2012 the respondent accepted liability for that condition.

22. In a report dated 2 February 2012 Dr Navin, occupational physician, reported that the applicant “has a suggestion of an underlying and long-standing spondylolisthesis as evidenced by established changes (lipping) on the lumbar vertebra at L4 and L5.”

23. He suffered from a further back injury on 22 April 2015 as described above which is the subject of this case.

24. A CT scan report dated 1 May 2015 concluded that the applicant had, “4/5, L5/S1 degenerative discs. No central canal stenosis, no foraminal stenosis”. He saw his GP Dr Pitcher on the same day and was given a certificate stating that he was suffering from lumbar back pain and recommending a trial of a stand-up work station. On 7 May 2015 Dr Pitcher noted that the back was still painful and diagnosed “lumbar back pain – facet joint dysfunction mild degenerative disease”. He continued consulting Dr Pitcher raising the issue of back pain continually up to 24 November 2015.

25. On 6 July 2015 a return to work suitable duties plan was drafted for him with a view to having him return to perform his preinjury duties and hours by October 2015.

26. On 28 July 2015 Dr Rohrsheim, orthopaedic surgeon, reported that the applicant had “no past history of back injury”. (That is in fact incorrect.) He opined that he would improve over time with some residual ongoing discomfort but would be able to lift more and sit longer over time. He said that the applicant was less than forthright with his answers to questions about the stresses of his current home situation and concluded that there was some psychological overlay contributing to his symptoms. He concluded:

    “In my opinion, Mr Mortimer is suffering from mild L4/5 facet joint arthritis leading to stiffness of the lumbar spine. I do not believe his intervertebral discs are symptomatic at this point. Mr Mortimer described to me that he had no back problems prior to April 2015. He also described today that he has spent many years lifting loads. In my opinion, his work duties in April 2015 with the Department contributed to his current situation. I also believe that his condition is mostly one of normal ageing……

    As stated above, the degenerative condition of the L4/5 facet joint is consistent with natural degeneration of the lumbar spine. I do not believe that the underlying condition was caused by Mr Mortimer’s work on 22^nd of April 2015, more so an aggravation.”

27. On 24 September 2015 Mr Andrews, a rehabilitation specialist who had been treating the applicant, noted that the applicant was still feeling some discomfort in his lower back. He explained that, given that he has a history of back-related issues, it was normal to have a reservation about long-term capabilities. He expressed the opinion that the applicant had made significant progress and concluded by saying that he could not see any reason why he would not be able to undertake any of the tasks/duties at his current workplace.

28. On 19 October 2015 a return to work suitable duties plan was drafted and it notes that the applicant can work 7.5 hours a day five days a week lifting no more than 5 kg.

29. On 19 November 2015 Dr Pitcher recorded: “Back improving with the present situation at work in mail room where no lifting is involved. Feels considerably better.” In a medical certificate dated 24 November 2015 the doctor certified the applicant fit for “permanently modified duties as per the return to work plan” and stated that this certificate was the “final certificate” and did not prescribe further treatment or set a date for review of the applicant’s condition.

30. He attended Dr Pitcher on 10 December 2015 and the doctor’s notes referred to various problems but there is no mention of the back. He saw the doctor again on 10 January 2016 complaining of depression, lack of motivation, various family problems, a sore arm and a complaint that his back occasionally hurts. He saw the doctor again on 25 February 2016 in relation to very serious issues at home, consultations with a lawyer and his union and complaining of his back cramping and sore. The doctor noted that he had a full range of movement in his back. He saw the doctor on 19 April 2016 and the doctor recorded that he needed a mental health plan. He saw the doctor on 3 May 2016 and complained of his back being aggravated at work and feeling undermined at work together with some other matters.

31. In a medical certificate dated 3 May 2016 Dr Pitcher diagnosed the applicant with chronic lower back pain aggravated by sitting and standing and said that his condition was caused by “initially lifting pallets at work”.

32. On 22 June 2016 he was told that his position was excess to the Department’s requirements and offered a choice between voluntary redundancy and redeployment to a different position. He continued to complain of back pain on 23 June 2016 and 28 June 2016 to Dr Pitcher.

33. On 2 July 2016 he presented at the hospital complaining at great length about his lower back pain and his complaints continued after that and up to the present time.

34. I had the benefit of seeing the applicant give evidence over a long period of time. While giving evidence he stood and sat repeatedly. He impressed me as a person who was making every effort to cope with his situation. He performs regularly all the exercises that have been recommended for him in an effort to stay as fit as possible. He has a home gym. He had a bicycle which he had to sell because he could not ride but he rides a scooter. That came as some surprise to the specialist doctors. I have no doubt that he suffers pain in his back. I have no doubt that he would like to work. No one has suggested to the contrary but I accept, as suggested by several doctors, that he exaggerates somewhat.

35. He has been examined by a number of experts who have provided reports and/or given evidence.

36. On 13 July 2016 Dr Ow Yang expressed the opinion that he suffers from chronic L4/5 discogenic low back pain. He wrote to the respondent requesting approval for the applicant to undergo bilateral 4/5 and L5/S1 facet denervation and steroid injections.

37. In a report dated 15 September 2016 Dr Thai, occupational physician, suggested an injection into the lumbar spine to see if that improved his symptoms. He said that he thought the applicant was fit to engage in suitable duties in the mailroom.

38. Dr Thai expressed the following opinion:

    “In my opinion Mr Mortimer is suffering from L4/5 facet joint arthropathy. This is a degenerative condition. Mr Mortimer probably suffered from an exacerbation of low back pain on 22^nd of April 2015. The symptoms described by Mr Mortimer are consistent with a musculoligamentous lumbar strain injury. The file records suggest that Mr Mortimer was very close to a full recovery around November 2015. A review of the GP file records will help determine whether this is a new injury.”

39. He went on to say:

    “in my opinion Mr Mortimer initially suffered from an acute musculoligamentous lumbar sprain injury. Mr Mortimer was a vague historian and it is unclear whether Mr Mortimer’s symptoms completely resolved around November 2015. If Mr Mortimer’s pain symptoms never completely resolved, then his condition has now been superseded by an aggravation of pre-existing right L4/5 facet joint arthropathy. If Mr Mortimer’s pain symptoms completely resolved around November 2015, then I consider the symptoms experienced by Mr Mortimer to be related to pre-existing L4/5 facet joint arthropathy.”

40. On 20 April 2017 he was seen by Dr Pillemer, orthopaedic surgeon who also gave evidence and provided a report. He expresses the opinion as follows:

    “Mr Mortimer developed discomfort in his low back region from the incident on 22^nd of April 2015. It has been an ongoing problem since then. It is quite possible that it is an aggravation of a previous injury in 2011. As far as diagnosis is concerned, it would seem that the symptoms are arising from the L4/5 level of his low back where he has internal disc disruption with an annular tear and possible slight retrolisthesis of L4 on L5. As mentioned there is no neurological involvement. In my opinion his ongoing symptoms are due to his injury on 22^nd of April 2015.”

41. He says that Mr Mortimer is fit for restricted duties that do not place stress on his low back and that he seemed to be coping with work at 4 ½ hours per day five days per week before being made redundant. He expects him to have ongoing problems with his back in the longer term.

42. On 9 June 2017 he was seen by Dr Khurana who provided an extremely detailed and helpful report dated 5 July 2017 and also gave evidence. He said that, based on his observations, physical examination and radiology the symptoms of which the applicant complained are in excess of the signs and are suggestive of pain behavioural overlay. He notes on a review of the file that there were complaints of low back pain in 2005 and 2011 and that the incident in question appears to be a temporary aggravation and ceased about the end of 2015. Re-emergence of symptoms during 2016 correlate with deterioration in the workplace and other psychosocial matters. He says that Mr Mortimer is physically fit and able to work full-time in a non-manual job with some assistance in relation to chairs and desks. He suggested he should see a pain behavioural psychologist because there is some functional overlay in the presentation.

43. He expresses the opinion that the 2011 injury appears to have been significantly contributed to by his employment given that he required some months off work; that the 2015 injury may have represented a temporary aggravation of any radiological pathology in the lumbar spine; but that that conclusion is speculative. He believes that his employment did not contribute to his condition beyond the end of 2015.

44. There is no doubt that the applicant suffers back pain, even if a certain amount of it is functional; that he suffers from an underlying degenerative disease in his lumbar spine; that he suffered an injury at work in 2011 resulting in some time off; that he suffered some kind of a sprain on or about 22 April 2015 while performing a physical task at work. The question is whether the injury that occurred in April 2015 continued beyond the end of that year or whether the symptoms after that date resulted from the underlying degenerative disease rather than from the event in April 2015.

45. The evidence of the physiotherapist Mr Andrews dated 24 September 2015 shows that despite considerable improvement with his assistance, the applicant continued to suffer some back pain on his discharge from his care at that time. The applicant also gave evidence that while the pain had been lessened it continued. Dr Pitcher also recorded in his notes that as at November 2015 the applicant reported that his back was improving. There is no evidence that as at that date he was completely free of pain. It had obviously improved with the physiotherapy but he says (and the physio says) that some pain continued. Indeed the applicant says the physio did not make much difference at all and that at times he minimised his symptoms to ensure that he would not lose his job.

46. Dr Ow Yang suggests that examination of his GP records would ascertain whether there was a new injury after November 2015. Those records indicate on 10 January 2016 he said that his back occasionally hurt and on 25 February 2016 he complained of his back  cramping and being sore. He appears to have had no hesitation in complaining to his doctor about a great variety of matters and on a regular basis but there is no suggestion of a further injury to his back. After that date the pain seems to have got substantially worse but at the same time there were other things happening in the applicant’s life which may have contributed to a functional aspect of the pain.

1. On 30 October 2016 Dr Pitcher refers to the applicant making several visits to his surgery complaining of low back pain in the previous nine months. Dr Pitcher says there has not been a specific triggering factor in the past few months to explain the recurrence of the back pain given that he was working full-time towards the end of 2015. He then says “the back pain however can resurface at any time and it can be triggered by an insignificant event such as picking up a sock”.

2. The applicant impressed as a very decent man who is very keen to work. He has made that clear by establishing a small hairdressing business in his own home and purchasing a hairdressing chair that accommodates his back pain.

3. Mr Mortimer suffers from L4/5 facet joint arthropathy which is a degenerative condition. He had it for years before April 2015. The incident on 22 April 2015 resulted in a musculo-ligamentous strain injury which had more or less resolved by November 2015. However he has not been completely free of pain since April 2015. I have already found that there is an element of exaggeration of his symptoms but I do accept he still suffers pain.

4. Dr Ow Yang suggested that the applicant’s GP records should be examined to ascertain whether he suffered any new trauma after November 2015.

5. There was no new trauma that appears on the records after November 2015 but the nature of the applicant’s back condition is such that even picking up a sock from the floor could be an aggravation. I am more inclined to accept the evidence of Dr Khurana which is to the effect that, after examining all the medical records, he was of the opinion that the applicant’s work-related condition ceased in late 2015. I note also that it was at that date that Dr Pillemer certified him as fit for full-time employment. Furthermore, as I interpret the evidence of Dr Ow Yang, he also is of the opinion that the initial injury has been superseded by a further aggravation. He suggested, for example, that the applicant’s “condition has now been superseded by an aggravation of pre-existing right L4/5 facet joint arthropathy.”

6. That would account for the fact that the complaints of pain in the few months after November 2015 seem to be minimal compared to the complaints of pain made since about May 2016.

7. I am satisfied on the evidence that the injury to his back that occurred in April 2015 had resolved as at the date of the decision under review.

8. There is one matter that I should address before concluding. The parties accept that an incident occurred at work in April 2015 which required some leave and some treatment.  For want of a better word, it has been described as an injury. Counsel for the applicant in her final address repeatedly used the word “injury”. Counsel for the respondent did not, preferring to refer to what occurred as being a temporary aggravation of a disease in the applicant’s spine. The fact that the applicant has a pre-existing degenerative condition of the spine is also common ground. Whether or not one classifies the incident in April as an “injury (other than a disease)” under s 5A, or an aggravation of a “disease” under s 5B makes no difference. The effect of any injury had ceased at the date of the determination; and the effect of any aggravation of the disease had ceased at the date of the determination.

9. The effect of such a conclusion facilitates a determination that the respondent has no further liability to pay compensation under ss 16 or 19 in respect of that injury.

10. The reviewable decision dated 23 December 2016 is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger AM QC

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Associate

Dated: 10 October 2018

Date(s) of hearing:	17-18 September 2018
Date final submissions received:	18 September 2018
Counsel for the Applicant:	Ms Beth Morrisroe
Solicitors for the Applicant:	Mr Joshua Carroll, Slater & Gordon Lawyers
Counsel for the Respondent:	Mr Matthew Gollan
Solicitors for the Respondent:	Ms Shery William, Comcare Legal