Obradovic and Comcare
[2005] AATA 703
•26 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/78
GENERAL ADMINISTRATIVE DIVISION ) Re SLAVISA OBRADOVIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date26 July 2005
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Dr J D Campbell
Member
CATCHWORDS
Workers Compensation - Claim for exacerbation of back injury, arthritis/arthralgia and secondary infection - claim denied
Safety, Rehabilitation and Compensation Act 1988, sections 4 and 14
REASONS FOR DECISION
26 July 2005 Dr J D Campbell, Member 1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Comcare Review Officer dated 10 November 2004 which affirmed an earlier decision of Comcare dated 23 August 2004 to deny Ms Slavisa Obradovic (“the Applicant”) a claim for compensation in relation to exacerbation of back injury, arthritis and arthralgia and a secondary infection.
BACKGROUND
2. Ms Obradovic was born in Macedonia in 1949 and is of Slavic origin. She completed a diploma from a business college in 1970, migrated to England and worked in the computer industry as an operations manager. During the period up to 1987 she suffered no major illnesses and enjoyed much travel in south East Asia, India and China from the late 1970’s. She contracted malaria in the 1980’s while in Thailand and has suffered what she believes to be recurrences some three or four times a year for which she takes aspirin.
3. Ms Obradovic migrated to Australia in 1987, and worked initially for duty free companies, and then as a buyer for opals. In 1996 she worked in the Bureau of Statistics and commenced in 1998 with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) as a compliance field officer.
4. Ms Obradovic lodged a claim for compensation on 28 July 2004 in which she sought compensation for the following conditions:
· exacerbation of lower back injury
· arthritis/arthralgia
· secondary infection.
5. Ms Obradovic noted in her claim that she noticed she was ill at 1:00 am on 25 June 2004, and that she first attended her general practitioner in relation to the injury on 29 June 2004. Ms Obradovic claimed that her illness arose as a consequence of being exposed to the cold for over five hours while working in cold, unheated and drafty barracks (T10/11).
6. Comcare rejected the claim on 23 August 2004, stating that on the balance of probabilities the evidence did not establish that the condition has been caused or aggravated within the scope of her employment (T11/26). This decision was reviewed by an Independent Review Officer and affirmed in a decision dated 11 November 2004 (T20/37).
ISSUE
7. The relevant issue in this matter is whether Ms Obradovic is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of the exacerbation of her back injury and for arthritis/arthralgia which is said to have been caused, or materially contributed to, by her employment.
DECISION
8. For the reasons detailed later in this decision I find that Ms Obradovic’s conditions of low back pain and arthritis/arthralgia were not caused, and/or materially contributed to, by her employment. As such, her claim for compensation does not succeed.
APPLICANT’S EVIDENCE
9. Ms Obradovic told the Tribunal the following relevant material:
· as a compliance field officer for three years her work activities involved visits to factories, houses and other premises seeking to identify illegal immigrants, and people not observing their visa conditions;
· that towards the end of June 2004 there had been an increase in the number of field operations. One such operation involved an activity which commenced at 9:00 am at Parramatta and, by evening, she was required to interview three of the five or six detainees at Villawood Detention Centre;
· that the Villawood Detention Centre was in the process of reconstruction of new admission barracks. She noted that the evening was cold and a strong wind was blowing; that the heaters and air conditioners were not working; that delays were experienced with the detainees being moved through a gate (20 minutes), with further delays while waiting for an interpreter and that each interview event lasted for longer than an hour;
· that she was dressed for the winter conditions; that the table between herself and the detainee was one meter in width and that some of the detainees were clearly unwell;
· that the interviews went until 1:00 am by which time she was stiff with cold. On the way home (15 minutes drive) and when she got into bed she noted her fingers were swollen, she felt heavy, had a restless sleep, noted a swollen neck and glands and swollen ankles and feet, with aching in her knees and back. She was also experiencing a sore throat and fever;
· that she was due to return to work at 9:00 am the following morning, but was unable to do so. She phoned her local doctor, but was unable to go and see him. At the time she was taking the following medications: valium (backache), panadeine forte and mersadyl (periods) and voltaren for hands for three weeks at a time;
· that the backache commenced in 1998 and arose after lifting at work. She was off work for three weeks and underwent physiotherapy treatment. Her main problems on that occasion were back pain, swelling of joints and swelling of glands with some right sided face spasms. The back pain was located in the lower back on the left side and she experienced pain down the left leg. Ms Obradovic stated that she had experienced no back pain prior to 1998; that she consulted Dr Chesworth and made a claim for compensation. She stated that cold causes the back to ache and seems to aggravate it, although she never has had a discrete injury to her back.
10. Ms Obradovic noted that she has an attack of fever and joint pain some three to four times a year following malarial attacks in the 1980’s, and for which she takes aspirin. Over the ensuing years attacks occurred about twice a year, and for up to a week she feels tired and listless, experiences fevers at night and swollen glands. She takes Panadol and is aware that such attacks are not menopausal in origin. She notices that the attacks come on when she is run down; that she is unable to tolerate hot weather or high temperature.
11. Ms Obradovic states that she has been investigated for a high platelet count and tuberculosis, that her father suffered malaria during the war and that attacks continued into the fifties, while one sister died with leukaemia.
12. Ms Obradovic stated that she was experiencing difficulties in the coccyx in 1991 when she had an x-ray of the lumbosacral spine and sacroiliac joints. No abnormalities were detected (clinical notes Dr Chesworth). It was also noted that Dr Chesworth’s clinical notes indicated that Ms Obradovic had complained of low back pain and depression in February 1991, and that in September 2001 she had been diagnosed with trigeminal neuralgia, having suffered many years earlier an attack of right-sided Bell’s palsy. Further, Dr Chesworth’s clinical notes confirmed that Ms Obradovic had sought treatment for fever, joint pains and tiredness and lassitude on a number of occasions prior to June 2004 (August/September 2003, May 2002, July/August 2001, January 2001, December 2000, October 2000).
MEDICAL REPORT DR COOK – MEDICAL ADVISER HEALTH SERVICES AUSTRALIA
13. In a report dated 15 April 2004, Dr Cook examined Ms Obradovic because of an excessive amount of sick leave she was taking. Dr Cook noted that Ms Obradovic suffers from trigeminal neuralgia, depression for which she is treated with Prozac, pre-menopausal symptomatology (intermittent) and recurrent intermittent fevers. Dr Cook recommended that Ms Obradovic was fit to continue with her current work activities, although limitation of prolonged hours of overtime may be appropriate.
DR CHESWORTH – TREATING GENERAL PRACTITIONER
14. Dr Chesworth provided medical certificates which indicated that Ms Obradovic was unfit for work from 29 June 2004 to 18 July 2004 for exacerbation of back injury, arthritis, arthralgia and infection secondary to being run down. On 19 July 2004, Dr Chesworth issued a certificate stating that Ms Obradovic was fit to return to work undertaking normal hours (no overtime) in reasonable environmental conditions especially temperature and with restrictions on lifting, standing and sitting.
DR YOUSSEF – CONSULTANT RHEUMATOLOGIST
15. Dr Youssef, in a report dated 1 April 2005, detailed Ms Obradovic’s clinical history, in which he described her as experiencing fevers and back pain over many years and which occurred two or three times a year. He also described Ms Obradovic’s experiences on the day and night of 24 June 2004: that while interviewing “she was getting rigid”; that her right eye started bleeding and that on arrival home she had difficulty sleeping; her face became swollen and she developed swelling of the eyelids and large glands, as well as swelling of fingers, knees, feet and lower legs and stiffness in her back. Ms Obradovic is reported as having similar but less severe episodes in the past. Dr Youssef also noted that Ms Obradovic’s father had also suffered with recurrent fevers.
16. Dr Youssef noted that an x-ray of the lumbosacral spine on 3 January 1991 was reported as normal, an x-ray of the sacroiliac joints dated 25 February 2003 was normal and an x-ray of the lumbosacral spine dated 12 May 1998 was noted as showing a mild scoliosis, slight disc space narrowing at L5/S1 and minor spondylitic change from L1 to L4.
17. Dr Youssef considered that Ms Obradovic’s clinical history of recurrent episodes of fevers associated with joint pain, sore throat and swelling of glands which tend to be self limited of greatest relevance. Dr Youssef considered the episode of 24/25 June 2004 to be very similar to previous episodes. He noted that investigations at the time did not show any significant abnormalities. Dr Youssef did not believe that the environmental circumstances (cold) played a part in this episode, nor did exposure to the detainees, who may have been unwell, play a part, as any viral illness resulting from either circumstance normally has an incubation period of at least 24 hours and more likely a few days before the onset of symptoms.
18. Dr Youssef stated that it was not possible to make a definitive diagnosis in this matter, but that the symptomatology raised strongly a possibility of familial Mediterranean fever. In oral evidence while acknowledging Ms Obradovic’s ethnicity, Dr Youssef stated that this did not necessarily rule out such a diagnosis, as the ancestral genetic pool may contain the particular gene, which has been inherited. Dr Youssef stated that there was a genetic test to determine whether such a disorder was present.
19. In summary opinion, expressed both in his written and oral evidence, Dr Youssef concluded that:
·a definitive diagnosis could not be made in this matter, with further testing necessary to exclude particular conditions (familial Mediterranean fever, low serum-immunoglobulins);
·that the episode of 24/25 June 2004 is a manifestation of a longstanding and constitutional disorder which may be familial and may have a genetic component. The constitutional disorder is not related to her work;
·that there is no causal connection between the alleged conditions and her employment; that she does not suffer from either an injury or the aggravation of an injury that arises out of or in the course of her employment; that she does not suffer from a disease or the aggravation of a condition that was contributed to in a material degree by her employment.
CONSIDERATION AND FINDINGS
20. There is no doubt in this matter that Ms Obradovic believes that the inclement weather and the environmental circumstances of her workplace made a material contribution, at a minimum, or were causative of the clinical symptomatology defined as exacerbation of back injury/arthritis/arthralgia and secondary infection that arose on 25 June 2004 and persisted until 18 July 2004. I note that Ms Obradovic draws support for her beliefs from the various medical certificates provided by her treating general practitioner, Dr Chesworth.
21. I have observed the clinical symptomatology described by Ms Obradovic which occurred during the evening of 24 June 2004 and, more importantly, that which occurred on her return home in the early hours of 25 June 2004. I also note the subsequent clinical history and clinical intervention by Dr Chesworth. I accept such descriptions by Ms Obradovic as a reliable history of the events of 24/25 June 2004 and thereafter.
22. I also acknowledge Ms Obradovic’s past clinical history, and in particular her history of recurrent fevers, sore throat, joint pains, tiredness and fatigue that has occurred two to three times a year for many years. I also note her past clinical history of high platelet counts, exposure to tuberculosis, some back difficulties, trigeminal neuralgia, a right-sided Bell’s palsy and some gynaecological symptoms, all of which have been subject to investigation. Ms Obradovic’s renditions of her clinical history are consistent with what is recorded in Dr Chesworth’s clinical notes, with the low back issue in 1991 as evidenced by x-rays taken at that time, being concerned more with the issue of a bruised coccyx.
23. In turning to the issues in question, namely the clinical symptomatology described as occurring on 24 and 25 June 2004 and thereafter, it is evident that Ms Obradovic was unwell, and I accept that the nature of Ms Obradovic’s symptomatology would have prevented her from travelling to Dr Chesworth’s rooms in the city on 25 June 2004. I also accept and conclude that the symptoms she was suffering from on 25 June 2004 included sore throat, fever, low back soreness, joint pain and swelling under her eyes, and swelling of joints of hands, feet and knees.
24. In addressing the issue of diagnosis in this matter, the only material before the Tribunal on this issue are opinions given by Dr Chesworth and Dr Youssef. Dr Chesworth’s medical certificates describe the diagnosis as exacerbation of back injury, arthritis, arthralgia and infection secondary to being run down, which are essentially descriptions of symptoms experienced. His clinical notes of 29 June 2004 (first visit after the onset) detail the joint aches, some residual swelling of various joints, with painful movement noted in wrists, shoulders, knees and stiffness in back movements. Mention is also made by Dr Chesworth of a rheumatic condition.
25. I note that Dr Youssef, in both his written and oral submissions, is particular in addressing the issue of diagnosis in so far as the clinical symptomatology of 24/25 June 2004 is concerned. I have already detailed his opinions and noted his reasoning for such opinions.
26. From this material I conclude that Ms Obradovic is suffering from a constitutional condition, identified as a condition involving recurrent episodes of fever, sore throat, joint pain (arthralgia), joint swelling (arthritis), swollen glands, lassitude and low back soreness. I further conclude that the symptoms described by Ms Obradovic on the 24/25 June 2004 were the symptoms of a further episode of this underlying constitutional condition. In so concluding I place weight on the opinion of Dr Youssef, while noting that Dr Chesworth has not necessarily detailed an opinion that is inconsistent with Dr Youssef’s opinion.
27. A further diagnostic issue to be considered is whether Ms Obradovic suffered a viral illness on this occasion. Again, I note Dr Youssef’s evidence that such an illness requires a minimum incubation period of 24 hours and more likely a few days. This is clearly inconsistent with Ms Obradovic’s description of the clinical onset of symptoms (symptoms apparent early hours of 25 June 2004). As such, I am satisfied that on the balance of probabilities Ms Obradovic’s clinical symptomatology as described by her did not arise from a viral illness contracted during the evening at the detention centre on 24 June 2004,
28. In addressing the legislation I am satisfied that Ms Obradovic’s condition of recurrent fevers with nominated symptomatology is an ailment in that it falls within the definition of ailment as contained within section 4 of the Act. In addressing the issue of whether it is a disease within the definition of disease contained within section 4 of the Act, I note that the ailment or the aggravation of that ailment must have been contributed to in a material degree by Ms Obradovic’s employment.
29. I again note Dr Chesworth’s medical certificates which detail the circumstances of employment experienced by Ms Obradovic prior to the onset of symptoms. Unfortunately, the material does not provide an opinion as to what contributions such employment made to either causation and/or aggravation of Ms Obradovic’s ailment. All the material does is support a temporal connection between employment and onset of symptoms.
30. In furthering the issue I again note the opinion of Dr Youssef in which he concludes that there is no causal connection between Ms Obradovic’s condition and her employment; that she does not suffer from an injury or the aggravation of an injury that arose out of or in the cause of her employment and that she does not suffer from ailment and/or the aggravation of an ailment which was contributed to in a material degree by her employment. I accept Dr Youssef’s opinion. I note that Dr Youssef has distinguished between the concept of an injury and that of a disease. I further note that Dr Youssef’s clinical analysis concluded that the low back pain/stiffness was not a separate injury, but a symptom of the underlying constitutional condition. I also accept the analysis, particularly in the circumstances where there is no probative material suggestive of an alternative scenario. I also note that Dr Youssef considered that the environmental circumstances played no part in either bringing on the episode of recurrent fever or making the course of that attack any worse. I accept this analysis.
31. In summary, I conclude that Ms Obradovic suffers from a constitutional condition and that her condition is an ailment. I conclude that the clinical events on 24/25 June 2004 and thereafter to a return to work on 19 July 2004 constituted a further recurrent episode of the underlaying constitutional condition. Further, I am satisfied that neither the ailment (constitutional condition) or an aggravation of the ailment were contributed to in a material degree by the circumstance of Ms Obradovic’s employment on 24/25 June 2004.
DETERMINATION
32. The decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: L Feely
AssociateDate/s of Hearing 8 June 2005
Date of Decision 26 July 2005
Applicant self-represented
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Mr T Ainsworth
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