Ofori and Comcare (Compensation)
[2018] AATA 2113
•5 July 2018
Ofori and Comcare (Compensation) [2018] AATA 2113 (5 July 2018)
Division:GENERAL DIVISION
File Number(s): 2016/6855
Re:Carol Ofori
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:5 July 2018
Place:Canberra
The decision under review is affirmed.
........................................................................
Mark Hyman, Member
Catchwords
WORKERS’ COMPENSATION – pain in the left foot – diagnosis of the foot condition uncertain – whether an injury (other than a disease) or an ailment – whether liability excluded because of a wilfully false representation – whether contributed to by employment to a significant degree – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 38AA
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14, 16, 19, 71
Cases
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Bailey v Broadsword Marine Contractors [2017] FCAFC 219
Comcare v Porter (1996) 70 FCR 139
Comcare v Power [2015] FCA 1502
Georgoulas and National Australia Bank and Comcare [2012] AATA 512
Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Musumeci and Department of Health (NT) (1990) 19 ALD 797
National Bank Ltd v Georgoulas (2013) 217 FCR 382
Prain v Comcare [2017] FCAFC 143
Zickar v MGH Plastic Industries (1996) 187 CLR 310
Secondary Materials
Butterworth et al, “Fat mass is a predictor of incident foot pain”, Obesity 2013 vol 21, No 9, E495-499
Walsh et al, “Association of fat mass and adipokines with foot pain in a community cohort”, Arthritis Care and Research 2016 vol 68 No 4 526-533
Walsh et al “Foot pain severity is associated with the ratio of visceral to subcutaneous fat mass, fat mass index and depression in women”, Rheumatology International 2017 vol 37 1175-1182
REASONS FOR DECISION
Mark Hyman, Member
5 July 2018
The applicant, Ms Carol Ofori, works as a nurse on a part-time basis in a dialysis unit of the Canberra Hospital. In May 2016 she experienced pain in her feet, especially the left foot. Ms Ofori sought medical attention from various practitioners, including allied health practitioners and general medical practitioners. Her condition improved but she was left with persistent pain in the left foot. Ms Ofori submitted a claim for workers compensation to Comcare. She was away from work for a period of about 5 weeks in July to September 2016 and then made a graduated return to work. She returned to her normal work hours in February 2017.
Comcare denied Ms Ofori’s claim on 14 October 2016, and affirmed that decision in a reconsideration determination on 24 November 2016. On 15 December 2016 Ms Ofori applied to this tribunal for review of Comcare’s reconsideration determination. This decision is about whether Comcare is liable to pay compensation to Ms Ofori.
The tribunal held a hearing on 14-15 May 2018. Ms Ofori attended, represented by Mr Mark Seymour of Counsel, briefed by Maurice Blackburn Lawyers. Comcare was represented by Ms Sarah Wright of Counsel.
The evidence before the tribunal comprised the documents submitted under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act) – the “T-documents” and supplementary T-documents – as well as the documents submitted under section 71 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) – the “section 71 documents” - and a number of documents tendered before or at the hearing by the parties:
(a)for the applicant:
(i)a witness statement by Ms Ofori, neither signed nor dated, provided to the tribunal on 24 March 2017 (Exhibit A1);
(ii)a report by Dr Leon Le Leu, an occupational physician, dated 26 November 2017 (Exhibit A2);
(iii)clinical notes by Ms Cecilia Brennan, a podiatrist, with various dates, the earliest record being from 27 July 2016 (Exhibit A3); and
(iv)a risk management report submitted to the Canberra Hospital in respect of an incident on 2 June 2016 (Exhibit A4);
(v)a report by Ms Brennan, dated 10 May 2016 (Exhibit A5); and
(vi)a letter from Mr Noel Priest, a physiotherapist, dated 8 May 2018 (Exhibit A6); and
(b)for the respondent,
(vii)a report by Professor Peter Youssef, a consultant rheumatologist, dated 15 June 2017, together with attached academic papers (Exhibit R1);
(viii)a statement by Ms Marina Buchanan-Grey, Director of Nursing at Canberra Hospital in May 2016, dated 5 August 2016 (Exhibit R2); and
(ix)a risk management report submitted to the Canberra Hospital in respect of an incident on 2 June 2016, identical in most respects to ex A4, but with additional data fields included and some additional information (Exhibit R3).
Ms Ofori gave evidence before the tribunal. Other witnesses to appear were Dr Leon Le Leu, an occupational physician; Professor Peter Youssef, a rheumatologist; Ms Cecilia Brennan, a podiatrist; and Ms Marina Buchanan-Grey, formerly Director of Nursing at Canberra Hospital. Dr Le Leu, Professor Youssef and Ms Brennan gave evidence by telephone.
Evidently Ms Ofori has not always gone by that surname. Some of the papers refer to her with the surname Hanley, and others with the surname Ofori. In this decision she is referred to by the name Ofori throughout.
ISSUES
The issues before the tribunal in this matter are:
·the diagnosis of Ms Ofori’s foot condition sustained in May 2016;
·whether Ms Ofori’s foot condition was an injury or a disease;
·whether Ms Ofori made a wilful and false representation in connection with her employment that she had not previously suffered from the foot condition;
·whether Ms Ofori’s foot condition was contributed to by her employment to a significant degree; and
·whether Comcare is liable to pay compensation to Ms Ofori.
LEGISLATION
The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. Section 5A of the Act defines an injury for the purposes of the Act. An injury is either a disease (diseases are covered by section 5B – see below) or an injury other than a disease, or an aggravation of such an injury, arising out of or in the course of employment. Section 5B then reads as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 7 contains a number of provisions dealing with diseases. For present purposes the relevant provisions are subsection 7(4), which states that a disease is taken to have been sustained on the day on which the employee first sought medical attention for it; and subsection 7(7), which reads as follows:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 14 of the SRC Act is the gateway provision for compensation. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.
THE FACTS
Ms Ofori is seeking compensation for a condition of the left foot, which she said she sustained over the period 11-14 May 2016.
The following details are taken from Ms Ofori’s witness statement (Ex A1) and from her oral evidence, except where otherwise indicated. Ms Ofori is a registered nurse, employed part-time at Canberra Hospital, where she has worked since 2009. She works with renal patients as a dialysis nurse, and has worked both in the unit for inpatients (Ward 8A) and in the outpatient facility, Canberra Community Dialysis Centre (CCDC). Ms Ofori is obese (150-155 kg) and has been so for many years (T13); her body mass index is variously given as 48 (T16) and 49.5 (Ex R1)). She is a single mother, and during the time in which she suffered from the foot condition the subject of her compensation claim, she was responsible for her son’s care. In September 2017 her son moved to live with his father.
In 2013 Ms Ofori moved from CCDC to Ward 8A. In March 2016 arrangements for work in the two dialysis wards were changed, with a combined roster introduced and hours, shift arrangements and staff/patient ratios adjusted. Ward 8A, which previously took a mix of inpatients and outpatients, was now to take inpatients only. Before March 2016 Ms Ofori worked on a shift that ran either from 7 am to 3.30 pm or from 1 pm to 9.30 pm. Her roster required her to do one evening and three day shifts in one week and one evening and two day shifts the following week. Following the changes in 2016 there was a single shift at Ward 8A from 8 am to 4.30 pm. Nurses were allowed two 10 minute paid breaks and one 30 minute unpaid break per shift. If a nurse was required to put in additional time, it could be recorded as time in lieu (and the same amount of time would be taken on another occasion, e.g. the nurse might leave early) or it would be paid as overtime.
Ms Ofori’s foot condition appeared about two months after the changes made in March 2016.
Ms Ofori suffered from a condition of the left foot on two recent occasions before the events on which her current claim is based. On 28 November 2013 she attended the Walk-in Centre at Canberra Hospital with pain in the left foot and an antalgic gait (ST1). The record notes that the treating nurse formed an impression that Ms Ofori had plantar fasciitis. It also includes a note from which it might be inferred that Ms Ofori herself identified her condition as plantar fasciitis, and that she had already seen a physiotherapist at the hospital and had been given an exercise program.
There is a record at ST2 of a medical certificate issued on 12 March 2014 by Mr Lachlan Chisolm, a physiotherapist, with two days off work for “PFJ”; and a record (ST3) dated 12 March 2014 from Flex Out Physiotherapy, recording Ms Ofori as having visited because of a pain in the left knee and leg, the condition having been with her for “3 months pain has changed” (the final word being somewhat unclear). A further record notes that Mr Chisolm saw Ms Ofori on 21 March 2014; his notes include phrases such as “medial mobs still stiff and not sore but now able to push through full ROM”; “ITB TFL Gluts and quads” with a reference to the calf.
Ms Ofori was referred for imaging of her left foot on 28 July 2014 (T3, ST6), with clinical notes that she had pain in her left foot (“constant dull ache to stabbing pain”), tenderness in the left heel, and what appears to be a tentative diagnosis of plantar fasciitis or a calcaneal spur. A report on an x-ray of the left foot, dated 28 July 2014 noted a large calcaneal spur and enthesophyte formation at the Achilles tendon insertion. A report of an ultrasound of the left foot dated 1 August 2014 noted that the left plantar fascia was mildly heterogeneous and that “There might be a low grade left plantar fasciitis present”.
In oral evidence, Ms Ofori outlined the nature of her work as a haemodialysis nurse. She is responsible for putting a patient on haemodialysis, supervising while the dialysis proceeds and removing the patient from dialysis at the end of the process. The process of putting a patient on or taking a patient off dialysis takes about 45 minutes (Ex R2). Patients might need varying degrees of attention during dialysis. Patients in Ward 8A are all inpatients since March 2016, which means they are in hospital for reasons of illness or injury and they may require more acute care. Sometimes dialysis nurses are called on to attend to patients in the intensive care unit and they may have to transport the equipment to that unit (or arrange for it to be moved by a wardsman).
When a patient is medically unstable a Medical Emergency Team (MET) call is made. Ms Ofori asserts that normally there would be perhaps 1-2 MET calls in a month at Ward 8A, but in the four day period 11-14 May 2016 there were three such calls. Although it is the MET team that takes responsibility for dealing directly with the patient, a MET call also doubles the workload for the duty nurse, who is responsible for the ongoing care of the patient. Ms Ofori said that she was on her feet the entire time while each MET call proceeded, and that the longest of the calls involved her being in attendance with the patient for perhaps 90 minutes. This made for a longer day, with a later finish and with missed breaks.
Ms Ofori said that after 14 May 2016 she was aware of having painful and swollen feet from which she did not recover overnight. She had had painful feet before, but the pain was less and in a different part of the foot. This pain was quite intense, noticeably on top of the arch of the foot, with swelling of the feet, especially on the left, radiating into the calf. She had informed the Assistant Director of Nursing (Ms Ann McGuire) and sought medical treatment. She took anti-inflammatories. Ms Ofori said she continued to work, doing her full shift, but over time the pain in her left foot was not resolving, and was getting worse through the day each day she was working. Eventually, after about six weeks, she made an incident report, apparently on 25 June 2016 (T4 – this incident report includes five dates – an incident date of 14 May; a notification date of 25 June; an “action taken” response date of 27 June; a review date of 29 June; and a journal follow up date of 4 July)).
The first documented report of a left foot condition in the context of the present claim was on 19 May 2016, when Ms Ofori attended Ginninderra Medical and Dental Centre (ST7). The report of that visit is very brief. It records that Ms Ofori “hasflare up of platar fascitis as is taking nsaids pm” [sic] with a note that the nsaids (which I understand to be a reference to non-steroidal anti-inflammatory drugs) caused reflux, and that she was therefore seeking “losec and time off work”. The record notes that a certificate was given for time off work. It is not clear whether Ms Ofori was examined, and Ms Ofori herself could not recall. There is a further record for a week later, on 26 May 2016, granting another certificate and reporting as follows:
she has more feet pain than usual due to longer shifts at work, her varicosity is worsening as well
painful PT tendon, plantar tendon
calluse medial plantar heel [sic]
tender medial perforators
discussed multiple areas damage management
A final record from Ginninderra Medical and Dental Centre dated 22 June 2016 (ST7) reports that Ms Ofori “has tibialis posterior tendinitis issue” [sic] and records that a further medical certificate for time off work was given.
Ms Ofori saw a physiotherapist, Mr Noel Priest, at about this time, and it is reported that he strapped her foot (T5), although no report by him is available. The only documentary evidence from Mr Priest is what seems to be a referral or report to any general practitioner to whom Ms Ofori might turn (ST12), dated 21 June 2016, noting that Ms Ofori reported having sore feet for the past five weeks, with a pain rating of 8/10 by the end of each shift, presenting with an antalgic gait, tenderness along “tib post” [sic: tibialis posterior], with possible swelling, treated with taping and advice on use of an ice pack, and a request to the treating doctor to consider fitness for work “given tib post tendinitis/tendinopathy”. In other documentation there is a reference by Ms Ofori to an ultrasound by the physiotherapist, with a report to the general practitioner (folio 6 of the section 71 documents), and Ms Ofori also referred to an ultrasound by Mr Priest in her oral evidence. No report of an ultrasound is in evidence.
The Canberra Hospital form headed “Staff Incident Review” referred to above (T4) reports that Ms Ofori had suffered a work-related injury. The incident report has several contributing authors, as it engendered various responses from management, but it plainly originated with Ms Ofori on 25 June 2016. The report records an incident occurring on 14 May 2016 at 14.00, summarised as “Painful feet since May. Right foot has improved left foot pain in arch and upper calf”. A field allowing further detail to be provided states “Painful feet for nearly 6 weeks”, and the affected body parts are back left lower leg, front left foot and left back foot. Ms Ofori is reported as having had treatment by a doctor (presumably her general practitioner), the hospital’s employee assistance program, early intervention physiotherapy and massage. Ms Ofori’s task being performed at the time of onset was recorded as “4 days on 8A all busy. 3 MET calls in 4 days. May 11-14”.
Ms Ofori obtained a medical certificate from her doctor, Dr Andrew Morris, on an unspecified date (presumably 14 July 2016, the date of examination), stating she was unfit to work for the period 14-31 July 2016 (T5). Her symptoms were identified as “painful feet – tendonitis”, the cause as “excessive working on feet” and a pre-existing or contributing factor was given as “overweight”. Treatment was identified as physiotherapy (weekly strapping) and podiatrist (weekly orthotics).
Ms Ofori also saw a podiatrist, Ms Cecilia Brennan, with the first consultation on 27 July 2016 (Ex A3), a follow up telephone call on 28 July and further consultations on 1 August, 8 August, 17 August, 29 August, 12 September, 5 October, 7 November 2016 and 28 March 2017. The first consultation includes a diagrammatic record of where Ms Ofori was suffering pain at the time, with an indication showing the rear of both ankles (around the Achilles tendon area) and the soles of both feet, with considerably more marking for the left foot. The diagnosis that Ms Brennan appears to have arrived at (and persisted with) is given as “AbH halluces tendonitis. Flexor muscles. Plantar fasciosis. LEFT”. At later consultations other comments appear, such as “pain on palpation of navicular tuberosity” (8 and 17 August 2016); “arch tenderness from neural hypersensitivities and orthotic height” (12 September 2016); and “decreased plantarflexion both ankles L worse > right” (7 November 2016). The record notes Ms Ofori’s complete recovery at 28 March 2017. The treatment Ms Brennan provided included exercises and mobilisations; orthotics; massage; and taping. The notes also record Ms Ofori’s significant pronation (greater on the right) and genu valgum (knock knees).
Ms Brennan wrote a short letter to Dr Morris on 27 July 2016 (ST13) providing a report on Ms Ofori. It includes her diagnostic conclusions as follows:
Carol has clinically diagnosed abductor halluces tendonitis, flexor digitorum longus tendonitis and plantar fasciosis left side.
Carol has excessive pronation bilaterally, reduced rearfoot joint mobility, reduced length flexor digitorum/hallucis longus left and a functional hallux limitus.
Dr Morris provided a further report dated 9 September 2016 at the request of Comcare (T13), responding to specific questions. Dr Morris said that Ms Ofori had been his patient since 4 November 1997; that she first presented with painful feet on 14 July 2016, reporting that her feet had been painful for the previous eight weeks; that Ms Ofori reported the pain as having arisen from an exceptionally busy period in her ward; that she had treated the pain with physiotherapy (taping and icepacks) and podiatry (orthotics). Dr Morris reported the diagnosis by Ms Brennan’s practice as follows:
… abductor hallucis tendonitis, flexor digitorum longus tendonitis and plantar fasciosis on her left side… excessive pronation bilaterally, reduced rearfoot joint mobility, reduced length flexor digitorum/hallucis longis left and a functional hallux limitus [sic].
Dr Morris noted that Ms Ofori’s underlying morbid obesity was a contributing factor. He nevertheless identified the foot condition not as a pre-existing or underlying condition but as a condition contributed to by excessive standing during the days of high workload in May 2016, made more severe by obesity. Dr Morris stated that Ms Ofori’s weight had been of the order of 150 kg during the 20 years she had been his patient; and that he was unaware of any non-employment factors contributing to the tendonitis. Dr Morris believed that Ms Ofori could make a graduated return to work.
A document headed “Comprehensive Incident Report” (Ex A4, Ex A3) dated 2 June 2016 is a report about Ward 8A and the CCDC described as a “risk man” (which I take to be a risk management report) and given the number 585840, made by Ms Chari Mercado, a clinical nurse consultant (CNC). It reports an issue with staff fatigue resulting from increased workload in wards 8A and CCDC (the versions at Ex A4 and R3 differ in that additional fields from the electronic form are present in R3; these fields are either blank or irrelevant to the present matter). The report records that overwork problems had arisen because of changed hours and staff/patient ratios in ward 8A, with staff normally in a supervisory role now having to help out with workload issues, and staff from the outpatient service deploying to relieve staff in 8A. The report, which records the outcome as “minor”, includes the following:
Staff have expressed (written and verbal) on several occasions feeling tired, over worked, c/o sore feet and having concerns about the safety of patients and themselves, especially on Saturdays when the CNC and CDN are not working.
The report includes a response by the Director of Nursing (Medicine), noting that with restructuring of operations it was always envisaged that supervisory staff might have to provide clinical support and that although “there has been an unpredicted surge of activity for the acute unit” the “satellite unit” (i.e. CCDC) had a lower workload and it was reasonable for CCDC staff to be redeployed.
Comcare referred Ms Ofori to a medico-legal occupational physician, Dr Farhan Shahzad, who saw her on 22 September 2016 and submitted a report dated 6 October 2016 (T16). Dr Shahzad reported that Ms Ofori told him of a period of high workload in the acute dialysis ward stretching from late March 2016 to late May 2016; that there were changes in management arrangements that led to additional workload for staff; that the workload pressures on 11-14 May 2016 were especially severe, causing her to miss breaks and finish late; that additional stress was occasioned by the need to walk 1 km to and from the Canberra Institute of Technology (CIT) car park each day; that in the week of 14 May there were three MET calls in four days, which required her involvement; and that these pressures had led to her feet becoming painful. Treatment was through physiotherapy and podiatry.
Dr Shahzad examined Ms Ofori and found her feet to be normal apart from “mild generalised tendinitis of the left foot”. He noted minimal tenderness over the left medial arch, as the only remaining clinical symptom. He noted Ms Ofori’s report was that the condition started from 14 May 2016. He concluded that this was a new rather than pre-existing or underlying condition, and that the stresses of the workplace, apart from those associated with workload, were a contributing factor. In a supplementary report dated 12 October 2016 (T18) Dr Shahzad stated that in his opinion, employment factors contributed 50% to Ms Ofori’s condition and other factors (obesity, lack of fitness) the other 50%.
In the course of preparing for her matter to be heard by this tribunal, Ms Ofori attended two medico-legal experts for expert opinions. Ms Ofori saw Professor Peter Youssef, a consultant rheumatologist, on 15 June 2017 and he produced a report of the same date (Ex R1). Professor Youssef recorded Ms Ofori’s account of a period of high workload from March 2016 (the report quotes the date as 2006 but it is plain that this is an error for 2016), leading to pain in both feet, especially over the arches, more marked on the left than the right. The pain radiated into the calf on the left. Treatment was strapping, orthotics and occasional use of anti-inflammatories. The pain in the right foot resolved, but that in the left was more persistent. Ms Ofori undertook a graduated return to work and was able to work her normal hours by March 2017. At the time of the consultation, Ms Ofori’s symptoms had completely resolved.
Professor Youssef noted that there was a mix of diagnoses: abductor hallucis tendonitis, flexor digitorum longus tendonitis, plantar fasciosis, tibialis posterior tendonitis and a functional halluces limitus. He deduced that Ms Ofori had reported medial foot pain but that it was likely to have been vague and diffuse. He could identify no abnormalities in Ms Ofori’s lower limbs at the time of the consultation. He concluded that Ms Ofori’s foot pain was caused by her fat mass, and provided three papers in support of the connection between foot pain and obesity: Butterworth et al, “Fat mass is a predictor of incident foot pain”, Obesity 2013 vol 21, No 9, E495-499; Walsh et al, “Association of fat mass and adipokines with foot pain in a community cohort”, Arthritis Care and Research 2016 vol 68 No 4 526-533; and Walsh et al “Foot pain severity is associated with the ratio of visceral to subcutaneous fat mass, fat mass index and depression in women”, Rheumatology International 2017 vol 37 1175-1182.
Professor Youssef’s overall conclusion was that Ms Ofori most probably suffered from plantar fasciitis in 2014; that her foot condition in 2016 was different from plantar fasciitis; that her weight was the dominant factor in her foot pain in 2016, contributing 90% or more to the condition; and that her employment was not a significant causative factor.
Ms Ofori saw Dr Leon Le Leu, an occupational physician, on 14 November 2017 and he provided a report dated 26 November 2017 (Ex A2). Dr Le Leu noted that Ms Ofori had suffered from plantar fasciitis as a young woman, perhaps in her 20s, probably on the left, and that she made a full recovery with conservative therapy. She had had a recurrence in 2014 and again made a full recovery with conservative therapy. He reported Ms Ofori’s account of the high workload period in May 2016, with the appearance of pain in the feet at that time, especially on the left, with pain on that side radiating into the calf. By the time of the examination, Ms Ofori had completely recovered. Dr Le Leu accepted the diagnosis made by Ms Brennan, of left abductor hallucis tendonitis, flexor digitorum longus tendonitis and plantar fasciosis, but was unable to confirm it, as the symptoms were no longer present. He noted that Ms Ofori insisted that the pain she had suffered from was different from that caused by plantar fasciitis. Dr Le Leu concluded that, based on the timing of the onset of symptoms, it was “far more probable than not” that Ms Ofori’s condition was work related.
THE ARGUMENTS OF THE PARTIES
Ms Ofori’s essential argument is that she sustained tendonitis of her left foot in the period from March to May 2016. The cause of this tendonitis was a period of very high workload culminating in a four day period on 11-14 May when there were additional pressures from three medical emergency team MET calls over four days. This high workload contributed significantly to the tendonitis, which is consequently compensable under the SRC Act.
Comcare’s argument follows two alternative lines. First, Comcare argues that the claim is excluded by subsection 7(7) of the Act, in that Ms Ofori made a wilful and false representation that she had not previously suffered from the same condition, when in fact her foot condition in 2016 was indistinguishable from that she had suffered from in 2013 and 2014. In the alternative, Comcare argued that Ms Ofori’s foot condition was a generalised inflammation of the foot caused by her morbid obesity, and that her employment did not make a significant contribution to its arising.
CONSIDERATION
What is the diagnosis of Ms Ofori’s 2016 foot condition?
It is clear that Ms Ofori suffered from a foot condition in late 2013 and mid-2014 (and from Dr Le Leu’s report it appears that this may have been a return of a condition that she suffered from in her 20s). The 2014 condition was accepted by Dr Le Leu as plantar fasciitis, but there is no unambiguous diagnosis included in the evidence: there is an impression from the attendant nurse at the Walk-in Centre in 2013, and probable diagnoses in June 2014, in association with a definite identification of a calcaneal spur (such spurs are, I understand, associated with plantar fasciitis but one does not necessarily imply the other).
As for the 2016 condition, its first appearance was apparently first regarded as a flare up of the earlier condition, in the very brief record of 19 May from Ginninderra Medical and Dental Centre, and plantar references continue in the record of 26 May, which also refers to “painful PT tendon” which I take to be a reference to the posterior tibialis tendon. The record of 22 June 2016 at the same Centre notes “tibialis posterior tendinitis”, possibly taken from the report by Mr Priest, which made that diagnosis and was written on the previous day. Ms Brennan included a reference to “plantar fasciosis” in her notes (in oral evidence Ms Brennan explained that the difference between fasciosis and fasciitis is a matter of dispute among podiatrists and that the distinction depends on whether it is the fascia itself that is inflamed or the surrounding structure; that distinction is unlikely to be critical to this decision and I use “fasciitis” in this decision except where quoting verbatim). The other elements of Ms Brennan’s diagnosis, however, are focused on forms of tendonitis. In her later report (Ex A5) Ms Brennan referred to a “distance history” of plantar fasciitis, but noted that “this new pain felt different” and had a different location “medial to the plantar fascia with associated tenderness deep to the plantar fascia and slightly within the plantar fascia itself”. She repeated the diagnosis of “abductor hallucis tendonitis, flexor digitorum longus tendonitis and plantar fasciosis left side”. In his report of 9 September 2016 Dr Morris quoted Ms Brennan’s diagnosis; in his earlier certificate he gave Ms Ofori’s condition as “painful feet – tendonitis”.
Neither Dr Shahzad nor Dr Le Leu came to a clear diagnosis: Dr Shahzad referred to “mild generalised tendinitis of the left foot”; Dr Le Leu accepted Ms Brennan’s diagnosis but noted he was unable to confirm it because he had not been able to examine Ms Ofori while her symptoms persisted. Professor Youssef, who also examined Ms Ofori after her symptoms had completely settled, diagnosed a general inflammation of the foot, and distinguished that from plantar fasciitis.
The episode from March 2014 appears to be unrelated. Although Ms Wright, for Comcare, attempted to suggest that the injury reported in the records from that time is a further example of a foot condition, it is clear that it was rather a separate and distinct knee condition. The reference to an injury, identified in a medical certificate (ST2) as relating to “PFJ” was convincingly explained by Dr Le Leu as a reference to the patello-femoral joint.
The above information, taken together, suggests several possibilities for the foot condition that Ms Ofori was suffering from in 2016 and the evidence does not compellingly allow one of those to be preferred over the others. The competing diagnoses comprise a generalised inflammation of the foot; plantar fasciitis; and tendonitis of one or more tendons in the foot or lower leg. The evidence is sufficiently diffuse that Ms Wright adopted one possible diagnosis for her argument that the exclusion in subsection 7(7) applied; and a competing diagnosis for her alternative argument that no case had been made out that Ms Ofori’s injury was significantly contributed to by her employment.
On the available evidence, it appears that the only person who made a close examination and wrote a detailed report about Ms Ofori’s foot at the time when her injury was at its most acute and causing the most pain was Ms Brennan; Dr Morris subsequently simply quoted her diagnosis, which was also accepted by a number of others. Professor Youssef suggested in oral evidence that her diagnosis suggested inflammation of too many tendons at once; if so many were inflamed Ms Ofori would have been completely unable to walk. Ms Wright suggested that Ms Brennan was young and inexperienced, that she displayed an unwarranted light-heartedness in her appearance before the tribunal and that her evidence should not be given undue weight. Nevertheless, hers is the only detailed first-hand evidence available, and she did bring professional training to the task. No imaging appears to have been obtained at the time of the injury, or at least none is available: Ms Ofori suggested that her physiotherapist completed a diagnostic ultrasound, but if so a report has not made its way into evidence. Mr Priest’s report is very brief and does not refer to an ultrasound, and although physiotherapists frequently use ultrasound therapeutically, it would perhaps be unusual for a physiotherapist to have or be expert in the use of a diagnostic ultrasound.
Comcare has made no suggestion that there is no underlying inflammatory condition and every doctor and allied health professional has accepted that Ms Ofori has a genuine condition of the left foot. But the medical profession does not appear to have been able to arrive at a single clear diagnosis. It may be that Ms Ofori had a combination of conditions, with contributions from an acute tendonitis (of one or more tendons in the foot and/or lower calf); a generalised inflammation of the left foot; and possibly a plantar element (and presumably the calcaneal spur identified on x-ray in 2014 had not disappeared). Proper imaging of the left foot during the middle of 2016 might have allowed those treating Ms Ofori to have been more definite, and it is odd that no imaging was obtained (or is to hand). But as things stand I am unable to determine a preferred diagnosis of Ms Ofori’s foot condition as at June or July 2016. The medical evidence, and the available expert opinion, do not in my view reach the level of reliability and certainty that would allow me to find that one of the possibilities is more probable than not.
It is not fatal to Ms Ofori’s compensation claim that no certain diagnosis has been made, although causation will be simpler to determine where a diagnosis is available: Musumeci and Department of Health (NT) (1990) 19 ALD 797; Australian Postal Corporation v Lucas (1991) 33 FCR 101.
Was Ms Ofori’s 2016 foot condition (if compensable) a disease or an injury (other than a disease)?
Both Ms Ofori and Comcare put forward their case on the basis that the foot condition was an ailment, i.e. that it was covered by section 5B of the SRC Act. The distinction between an injury (other than a disease) and an ailment is important because of the different tests for the connection with employment set out in sections 5A and 5B, and also because of the potential application of subsection 7(7) of the SRC Act (which only applies to diseases). This would be an easier distinction to make if the diagnosis were unambiguous.
There is extensive case law dealing with the sometimes difficult distinction between a disease and an injury (other than a disease). Relevant cases include Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning); Bailey v Broadsword Marine Contractors [2017] FCAFC 219; and Prain v Comcare [2017] FCAFC 143. Generally, and with some possible exceptions, a condition that is an injury (other than a disease) will involve “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning, at 300 (Gleeson CJ and Kirby J)).
It is common ground that Ms Ofori’s foot condition was an ailment. The evidence relating to the onset of the condition is sketchy but does not support a conclusion that this was a new and sudden development of the kind that is usually associated with an injury (other than a disease); the condition developed over a period measured in weeks, with its appearance brought to the point of action by a period of four days in which Ms Ofori says she sustained a much higher workload than usual. This is a pattern that goes with an ailment. I find that Ms Ofori’s foot condition was an ailment under section 5B of the SRC Act.
Did Ms Ofori make a representation that attracted the exclusion in subsection 7(7)?
If Ms Ofori’s ailment was contributed to to a significant degree by her employment, it is a compensable disease under section 5B of the SRC Act. That would make the exclusion under subsection 7(7) potentially applicable to it. If I were to find that employment did not contribute significantly to the foot condition, it might be argued that the subsection 7(7) exclusion does not need to be examined; but in practice an examination of the latter issue throws up issues going to Ms Ofori’s credit that are important to both subsection 7(7) and the causation issue under section 5B.
Comcare’s case that subsection 7(7) of the SRC Act operates to exclude Comcare’s liability rests on a long list of occasions where Ms Ofori, in Comcare’s contention, provided information, especially but not only in her claim form, that was false or misleading or omitted information that was relevant:
·Identifying her injury as tendonitis when she knew it was the same as or closely similar to the plantar fasciitis she had suffered from previously;
·giving the site of the injury as “left foot” without further detail, thus providing misleading information about the condition when as a nurse she was well qualified to provide more precise information
·stating that she had not suffered previously from the condition when she knew that it was the same as or very closely similar to plantar fasciitis, from which she had previously suffered;
·stating that she had not been treated for a similar condition when she had received treatment for plantar fasciitis on previous occasions;
·giving a date of 26 May 2016 for first treatment of the injury, a date that was a week later than the documentary evidence discloses; 26 May was in actuality the date of the second treatment, received a week after the first treatment on 19 May 2016 (Ms Ofori explained this as an error arising from her misreading of information on her mobile phone);
·subsequently moving her medical records from Ginninderra Medical and Dental Centre (ST7), in order to conceal these records from any inquiry by Comcare, and disguising this by claiming to have revisited the Ginninderra Medical and Dental Practice, when in actuality she had not returned to it after 22 June 2016;
·in her letter of 26 October 2016 to Comcare (T20.1), omitting any reference to the requirement each work day to walk a significant distance (estimated at 1 km) to and from the CIT car park, when that walk was a known and significant contributor to her foot pain to which she had referred in other documentation; and
·claiming to have obtained a diagnostic ultrasound from her physiotherapist, in support of her tendonitis claim; this was inherently unlikely, the report of that purported ultrasound was not in evidence and the physiotherapist was not an sonographer.
Ms Wright, for Comcare, argued that:
·there was ample evidence that Ms Ofori ‘s foot pain in May 2016 was either plantar fasciitis or very similar to plantar fasciitis; this is shown in the reference to plantar fasciitis in the medical record of the consultation at Ginninderra Medical and Dental centre on 19 May 2016 and in the consultation the following week; it also appears or is mentioned or referred to in other medical records about and after that time;
·to the extent that there was any inflammation of tendons in Ms Ofori’s 2016 condition, that was also apparent in 2014, as the x-ray taken at that time identified an enthesophyte at the attachment of the Achilles tendon;
·It is possible that Ms Ofori misreported her pain when subsequently describing her foot condition, leading to diagnoses that shifted away from or de-emphasised plantar fasciitis;
·if Ms Ofori had plantar fasciitis on 19 May 2016 it is implausible that she was truthful in completing the Comcare claim form on 17 August 2016;
·that perception is strengthened by the general conclusions that can be drawn about Ms Ofori’s credit;
·she had made several entries on her claim form that were clearly misleading or incorrect or omitted information that she was obliged to include, in such entries as the answers to questions 10, 11, 16, and 17
·the answer to question 13 was deliberately false, stating that she first obtained medical treatment on 26 May 2016 when she had in fact sought and obtained it a week earlier; it is unrealistic that she did not recall the earlier appointment or that she obtained incorrect information from her mobile phone; there is a strong argument that this was a deliberate oversight.
·Records from after June 2016 should be viewed with caution, as Ms Ofori’s accuracy as a historian changed about that time; there is a strong basis to find that from the time she lodged her Comcare form her statements became deliberately misleading in support of her compensation claim;
·Ms Ofori’s credibility is poor; her evidence was self-serving to a great degree, she refused to make concessions even where the documentation and her own earlier statements contradicted her oral evidence and her recollection was very partial, extending only to that which was helpful to her case; and
·she had conceded under cross-examination that she had omitted information about the walk to and from the car park in her letter of 26 October 2016 to Comcare seeking review of the determination of her claim, despite its relevance.
Mr Seymour for Ms Ofori argued that:
·Dr Morris, Ms Ofori’s general practitioner, had diagnosed her with “painful feet – tendinitis” shortly before the lodgement of the claim form, so it was reasonable of her to give that as the condition from which she was suffering when she lodged the form;
·previous foot pain was distinguishable from the tendonitis Ms Ofori suffered in 2016;
·Dr Morris noted (T13) that Ms Ofori had been his patient since 1997, and that the first time he had seen her for foot pain was on 14 July 2016;
·a finding of wilful false representation is the equivalent of fraud; but Ms Ofori was a witness of truth, despite the attack by the respondent on her credit; the mistake regarding the first medical treatment, and that it took place on 19 rather than 26 May 2016, was nothing more than a mistake, and had no impact on her credit more generally;
·there was a good deal of divergence among the doctors about Ms Ofori’s exact diagnosis, but all except Professor Youssef diagnosed or included in the diagnosis an inflammation of the tendons, i.e. tendonitis;
·apart from question 13 (relating to the date of first seeking medical treatment), Ms Ofori answered all the questions on the Comcare claim form in accordance with the directions given and the examples offered; and even Dr Le Leu had failed to note that the date of 26 May 2016 (given as the answer to question 13) was a week after the first treatment, suggesting that the error was easily made.
If Ms Ofori has made the wilful false representation that triggers the subsection 7(7) exclusion, it is most probably on the Comcare claim form that she has done so. Comcare asserts that her answers to several questions are false or misleading, namely questions 10, 11, 13, 16 and 17; an exclusion under subsection 7(7) would rest in particular on the answer to question 16.
·Question 10 asks “For what injury or illness are you claiming workers’ compensation?” and instructs the claimant to quote the precise diagnosis stated on a medical certificate. The following additional guidance is offered: “For example: diagnosed conditions are: disc prolapse, strained cruciate ligament and anxiety disorder, and they are not: back pain, sore knees and stress” (original emphasis). The question also asks for medical certificates to be attached.
oMs Ofori has inserted “TENDONOTISIS” which I take to be a simple spelling error for “tendonitis” (the spelling “tendinitis” is also used elsewhere in the documentation; in this decision I use “tendonitis” except where quoting verbatim).
·Question 11 asks “What part(s) of your body has been most affected by your injury or illness?” and offers the additional guidance “For example: right knee, upper left arm, lower back, neck, respiratory system, mental state.”
oMs Ofori wrote “Left foot (mainly) same pain on right”
·Question 13 asks “when and where did you first seek medical treatment for your injury or illness?”
oMs Ofori responded “26/05/2016 Ginninderra Medical Centre”
·Question 16 asks whether the person completing the form has ever had “a similar symptom, injury or illness, work-related or otherwise”; if the answer is yes, further information about the earlier condition is sought
oMs Ofori ticked the box marked “no”.
·Question 17 asks whether the person had ever “received medical treatment for a similar injury or illness”
oMs Ofori ticked the box marked “no”.
For the exclusion in subsection 7(7) to operate, several criteria must be met: the representation must be that the person does not suffer from or has not previously suffered from a disease (not a symptom) the same or substantially the same as that for which compensation is sought (National Bank Ltd v Georgoulas (2013) 217 FCR 382, at 399 (Perry J)); the representation must be made “in connection with employment”; it must be objectively false; and for it to be wilfully false, “the employee should have no belief that the representation is true” (Comcare v Porter (1996) 70 FCR 139 at 150 (Jenkinson J)).
Much of Comcare’s argument does not withstand examination. In the first place, there was no clear and unambiguous diagnosis of plantar fasciitis in 2013 and 2014; the two episodes of foot pain at that time both involved tentative or probable identification of plantar fasciitis, positive identification of a calcaneal spur and of an enthesophyte, but nothing further. The 2016 foot condition for which Ms Ofori now seeks compensation has been diagnosed with considerable variation within the medical and allied health professions, sufficiently so that, as explored above, at least three competing diagnoses appear possible. In those circumstances it becomes more difficult to argue that what Ms Ofori said about her condition in 2016 could have been wilfully false.
The condition that Ms Ofori identified on her claim form, namely tendonitis, was one that she could legitimately put forward, in accordance with the medical certificate from Dr Morris, guided by the instructions on the claim form itself. Similarly, the information advanced by Ms Ofori in response to question 11 on the claim form was in accordance with the instructions on the form; there can be no realistic expectation that a more qualified person, such as a nurse, could be expected to be more specific, given the phrasing of the instructions.
It is common ground that Ms Ofori gave an incorrect response to question 13 on the claim form; the evidence is inconclusive whether or not that was intentional or an innocent mistake, but even if it was intentional it does not of itself constitute a wilfully false representation of the kind required to satisfy subsection 7(7), in that it is not about “that disease” (being the same kind of disease for which compensation is being sought). The incorrect response may go to Ms Ofori’s credit, in a general sense, but it does not meet the requirements for the exclusion under subsection 7(7).
It was arguable that Ms Ofori was, at the very least, economical with the truth in denying any previous “similar symptom, injury or illness” in answer to question 16, and possibly in answer to question 17 in denying treatment for “a similar injury or illness”. But as pointed out in Georgoulas and National Australia Bank and Comcare [2012] AATA 512, question 16 opens three possibilities (symptom, injury and illness) but provides for only a single response, and the question is also poorly drafted in other respects (at [57-60]). Although, again, the responses may have implications for Ms Ofori’s credit more generally, I do not accept the answers represent a wilfully false representation.
The normal understanding of question 16 is that if a person has previously had a similar symptom OR illness OR injury, that person would be expected to tick the “yes” box and then provide details. But it is plain that a person may make a false representation, in ticking the “no” box, but not trigger the subsection 7(7) exclusion if, for example, the person had had a similar symptom, but not the same or substantially the same illness. It is arguable here that Ms Ofori had a similar symptom (a sore left foot) but not the same or substantially the same condition; in any case the word “similar” is sufficiently general that arguments could be made in both directions. I note too that Comcare’s expert, Professor Youssef, found Ms Ofori’s account of her symptoms to be vague, but was at least certain that she had not suffered from plantar fasciitis in 2016.
Taking all the available evidence into account, I cannot reach a conclusion that the subsection 7(7) exclusion applies. Although I am satisfied that the representations in the claim form were made in respect of Ms Ofori’s employment, the other criteria ae not met:
a)I cannot be satisfied that the representation related to a condition substantially the same as that for which compensation is now claimed, in that no clear and unambiguous diagnosis was ever made either for the previous foot condition or for that suffered in 2016;
b)for the same reason I am not satisfied that the representation was objectively false; and
c)I am not satisfied that Ms Ofori’s representation, even if false, was wilfully so, in that, with a doctor’s certificate diagnosing tendonitis – a condition different from any diagnosis for the earlier period – and with other diagnostic material supporting various forms of tendonitis, it is reasonable to conclude that she had some belief in the accuracy and validity of those diagnoses.
Ms Ofori’s claim is therefore not excluded under subsection 7(7). That does not mean, however, that I accept Ms Ofori’s evidence in its entirety or regard her as a witness of truth, as Mr Seymour urged. There is enough in Ms Wright’s attack on her credit, especially the mistake at question 13 of the claim form and in the deliberate omission of the walk to the car park, to suggest that Ms Ofori has done her utmost to present her account of things in the most favourable light, to the point of slanting her evidence. Ms Ofori’s letter to Comcare of 26 October 2016 – well after she had lodged her claim – made no mention of the walk to and from the car park at CIT, on the basis of advice from Mr Jonathon Pynsent, an Industrial Advisor at the Australian Nursing And Midwifery Federation, that the impact of walking to and from the car park was outside the compensation scheme, and that acknowledging its impact might be used against her claim for compensation. It does seem likely that Ms Ofori then omitted any mention in the interest of advancing her claim. In oral evidence, Ms Ofori referred to her 2014 condition as “heel spurs”, suggesting it did not go beyond that diagnosis and it is clear that she does have a calcaneal spur on her left foot; but her discussion of her 2014 foot condition with Dr Le Leu, and his report, were in terms of plantar fasciitis. Ms Brennan’s later report (Ex A5) also refers to an earlier issue with plantar fasciitis, and that could only have been based on Ms Ofori’s report. Ms Ofori seems to use the language that is best calculated to advance her case.
Once she had embarked on the course of seeking compensation. I have the sense that Ms Ofori looked to highlight the positives and obscure the negatives in her story, and in doing so went beyond a plain account of the events from the middle of 2016. Her reluctance to make concessions and acknowledge the force of the evidence under cross-examination was especially telling. Ms Ofori’s evidence therefore needs to be relied on cautiously and with due regard to its propensity to be self-serving.
Did Ms Ofori’s employment make a significant contribution to her foot condition?
The uncertainty surrounding the diagnosis of Ms Ofori’s foot condition makes determining its causation a more difficult task. In her claim form (T8) Ms Ofori identified the source of the problem in the workload at the hospital, apparently referring especially to the four-day period on 11-14 May 2016, in the following way:
·to the question “What were you doing at the time you were injured or contracted the illness?” Ms Ofori responded “Worked 4 days on 8A 3 MET calls in those 4 days”;
·in response to the question “What action, exposure or event happened to cause your injury or illness?” Ms Ofori responded “Excessive walking and standing without rest”; and
·to the question “What actually injured you or made you ill?” Ms Ofori responded “As above” (referring to the response quoted immediately above).
Ms Brennan, Dr Morris, Mr Priest, Dr Shahzad and Dr Le Leu all report Ms Ofori’s account of having worked longer hours at a more intense pace than usual and with more standing and walking during 11-14 May 2016. That is also mentioned briefly in at least one of the sets of notes accompanying Ms Ofori’s visits to Ginninderra Medical and Dental Practice (that of 22 June 2016). There is also mention of work pressures as the cause of the foot condition in other papers e.g. a triage contact – file note dated 25 August 2016 recording progress at that time in Ms Ofori’s compensation claim (folios 2-10 of the section 71 documents) and documents relating to Ms Ofori’s rehabilitation program (folios11-37 of the section 71 documents). I regard all of these reports as reflections of Ms Ofori’s self-report, and discount them accordingly.
Mr Priest and Ms Brennan both stated explicitly that Ms Ofori’s foot condition resulted from her employment (Ex A5, A6). Neither, however, appears to have based that conclusion on direct knowledge, but rather on Ms Ofori’s self-report.
Supporting evidence, apart from that of Ms Ofori herself, comprises the incident report of 25 June 2016 (T4) and the “Risk Man” 585840 of 2 June 2016 (Ex A4). In the former document the information supplied by someone other than Ms Ofori is limited to a few comments made by Ms Chari Mercado, Ms Ofori’s supervisor at the time. These comments neither confirm nor deny the increase in workload that is purported to have led to the foot condition. The latter document is a risk management report by Ms Mercado, reporting staff fatigue, changed hours of operation for Ward 8A, a shift to all inpatients as opposed to a mix of inpatients and outpatients, workload pressures requiring the clinical nurse consultant and clinical director of nursing to help staff and provide relief at meal breaks, and pressure for staff to do overtime. Staff are reported to have expressed concern over fatigue, sore feet, general overwork and the safety of patients and staff. A response by the Director of Nursing (who I understand to be Ms Buchanan-Grey) states that the organisation of the unit does contemplate that supervisory staff would sometimes contribute to meeting the workload; and that there had been “an unpredicted surge of activity” for Ward 8A, but that this was offset by a reduced demand at the “satellite unit” (which I take to be CCDC), allowing redeployment of staff.
In her letter of 26 October 2016 to Comcare (T20.1) and attachments, Ms Ofori advanced further argument and provided additional material that she said documented the workload pressures. An email dated 26 March 2016 to Ms Bonny Chan (T20.1.1) documents mainly Ms Ofori’s dissatisfaction with a work colleague, but notes also that the ward that day was very busy, that she had sore legs by the end of the day and that no staff member had been able to take the second break. On 9 June 2016 Ms Ofori sent a “critical incident notice” to the Australian Nursing and Midwifery Federation (T20.1.2). This complaint asserted that there were too many unstable and full care patients; that conditions were dangerous to both staff and patients; that the CNC and CDN had left to perform dialysis on a patient in the Intensive Care Unit; that staff were unable to give safe care to patients, resulting in tired and stressed staff and an increase in errors. A form headed Clinical Incident Review (T20.1.3) is a risk management report about Ward 8A relating to 25 June 2016 and apparently reported on 30 June 2016. The report is a printout of an electronic report, and the text in some fields is incomplete in the printed version. The report notes that with three staff for eight patients, the workload became very hard to manage if any one of the staff was absent, for example on a lunch break. The report related in particular to a Saturday, as on such days there is no CNC or CDN available in support of regular nursing staff. These reports do suggest pressures on staff, but they appear to reflect more an ongoing tension between management and staff over workloads, and, in particular, they do not explain why Ms Ofori would have a foot condition at the time she did without any recurrence.
Information that might have supported Ms Ofori’s account but does not appear to do so includes the “time in lieu” register for Ward 8A (T20.1.4) in which missed breaks and requirements to stay later are noted, so that staff can at some other time take time in lieu of their additional work. Ms Ofori has some time in lieu marked for March 2016, but none for April and in May-June 2016 an unspecified period for a “late patient” on 20 May, a 15 minute period for a late patient on 27 May and a 25 minute period for missed second break on 3 June. That is not an extreme pattern of overwork, and there is no burden beyond normal hours recorded for the problem days of 11-14 May.
Similarly, if Ms Ofori had a large amount of overtime in May 2016 or the period leading up to it, that might support a conclusion that she was sustaining a higher than normal workload. Ms Ofori said in evidence that she worked overtime, and her pay records are in evidence (folios 45-48 of the section 71 documents). They record significant overtime payments during the period when Ms Ofori says the workload was at its highest; but they also report overtime payments when Ms Ofori was away from work. Thus in the fortnight ending 18 May 2016 Ms Ofori was paid $644.28 in overtime; but she was on leave for the entire fortnight of 14-27 July 2016 but was paid $415.65 (folios 42 and 48 of the section 71 documents). Ms Wright argued that the disparity between Ms Ofori’s known patterns of work and the overtime records make the pay information of little value in establishing the hours she was working; I am forced to agree.
Evidence to the contrary - that the workload was not higher than usual at the relevant time - is limited. Two statements by Ms Buchanan-Grey, at that time Director of Nursing at Canberra Hospital, are in evidence, and she also appeared as a witness in the proceedings. In a note dated 5 August 2016 (T6) Ms Buchanan-Grey states that she does not agree that the condition occasioning Ms Ofori’s claim for worker’s compensation is work-related; that the amount of walking and standing required of her was normal and not excessive; that the change to Ward 8A should have reduced the amount of walking as the physical space was smaller; that a chair had been provided for Ms Ofori’s use, and she had been observed to use that chair for moving about rather than walking. Further, Ms Ofori was observed not to take her breaks as they fell due.
Ms Buchanan-Grey also made a witness statement (Ex R2), noting that Ms Ofori’s standard shift was of eight hours; that the normal pattern of work would be of perhaps 45-50 minutes standing while putting patients on dialysis or taking them off treatment, and that such a period would be followed by a break of 15 minutes. The chair that had been provided for Ms Ofori was to enable her to sit outside the nurses’ station during her 15 minute breaks; it was larger than a normal chair.
What section 5B of the SRC Act requires for liability to arise is that a person’s employment contribute significantly to their injury. A higher workload is not essential to that outcome but in this case there has to be something about the workplace in the period when Ms Ofori’s foot condition arose that distinguishes it from other periods, explains the injury, and provides context for the non-recurrence of the condition. Clear evidence of a markedly higher workload or more demanding work environment might explain why Ms Ofori’s foot condition developed at that time rather than at other times.
Activities that Ms Ofori undertook outside her working environment are also potentially relevant, in that they may have contributed to her foot condition or have influenced the timing of its appearance or its failure to recur. Ms Ofori said in evidence and in her witness statement (Ex A1) that she goes to the gym to exercise for about 40 minutes four times a week; that she walks her dog; that she went to yoga once a week before the injury but no longer does so; that she dances socially; and that she does some gardening, including mowing her lawn and weeding.
Ms Ofori’s contention is that she injured her foot because of the increased workload in Ward 8A during the period from March 2016, and particularly because of the demands placed on her over the four days from 11-14 May 2016. The injury took some time to manifest as of continuing concern, in that the pain in the right foot settled but that in the left foot, which was always more severe, persisted. The evidence that the workload was high is extremely limited, if Ms Ofori’s own evidence is put to one side. The Risk Man 585840 at Ex A4 is the only objective indication that there was an elevated workload at the time in question. Ms Ofori referred to the number of MET calls during the four days in May; Ms Buchanan-Grey did not deny that four MET calls occurred at that time but did not see that as unusual. It might be thought that if this was a departure from the normal pattern of the ward it would be easy to find statistical information from the hospital that documents the pattern of MET calls at different wards over a sufficient period to establish whether there were additional pressures on the ward or not. No such evidence was forthcoming. What might be expected of a ward nurse when MET call occurs was not corroborated; I only have Ms Ofori’s account. Statistical information on the number of patients being treated in the ward at that time in comparison with other times is also absent.
The change in arrangements for Ward 8A presumably continued after being introduced in March 2016, yet there has been no recurrence of Ms Ofori’s foot injury. That suggests that there was something significantly different about the period that purportedly gave rise to her injury; but that difference has not been substantiated.
For the reasons explained earlier, I am loth to place undue weight on Ms Ofori’s evidence where it is uncorroborated. I suspect her evidence may be self-serving and her memory unduly selective. I regard her reliability as a historian as patchy. If the workload was plainly and objectively higher during the period in question, surely corroborating evidence could have been readily brought before me to that effect. It was not. On the other hand, I do not find some of the evidence against Ms Ofori’s case persuasive. Mr Seymour dismissed Ms Buchanan-Grey as given to bureaucratic jargon, and it is true that her answers to questions put to her were sometimes obscure. The sense I had was that Ms Buchanan-Grey’s reluctance to recognise workload issues was motivated by a concern to defend the way in which the hospital resources were allocated and managed. Indeed I have the impression that there is an ongoing tension between staff and the hospital over staff/patient ratios and the like, and in part the reports made about workload appear to me to be a reflection of that tension, as noted above.
Ms Wright’s contention, in the alternative, relied on the evidence of Professor Youssef. He noted that blood test results from 19 November 2015 record Ms Ofori’s C-reactive protein (CRP) levels as 16.9 mg/l when the normal level is less than 6 mg/l (ST7 – the record notes that “C-reactive protein is an acute phase reactant which rapidly increases in response to tissue injury, such as inflammation or infection, and may remain elevated if tissue damage persists”). Professor Youssef said that 4 or 5 mg/l was usual for CRP and that 16 mg/l suggested that Ms Ofori had had inflammation in her feet over a sustained period before the supposed injury. Ms Wright for Comcare postulated that Ms Ofori had general inflammation of her feet, caused by fat mass; that as Ms Ofori maintained her full work pattern after the supposed high workload period in May 11-14 2016 there is not the close association between workload and timing of injury that would be expected if the workload caused the injury; and that the pain has not recurred because Ms Ofori is now less active than she was - she no longer has a child at home, has stopped her yoga and is using the orthotics provided by Ms Brennan.
I am not persuaded by Ms Wright’s argument. Professor Youssef examined Ms Ofori after her condition had resolved, and his diagnosis was therefore based on what she reported to have been the case about a year previously. He said her account of her pain was “vague” but that is not unexpected when she was asked to describe symptoms that had disappeared. The scholarly papers provided by Professor Youssef are not especially helpful in present circumstances. In their 2016 paper Walsh et al find an association between foot pain and fat mass index, but not with body mass index, and I have no data on Ms Ofori’s fat mass index. The paper by Butterworth et al comes to similar conclusions. The 2017 paper by Walsh et al is a study of chronic (rather than acute) foot pain with a particular association with depression, not a factor in Ms Ofori’s case.
Further, the CRP levels identified in November 2015 might have been caused by inflammation of Ms Ofori’s feet, but they might equally have been caused by something else – Ms Ofori had a knee condition in March 2015 and tissue damage may have persisted; the evidence records Ms Ofori as presenting at Canberra Hospital on 22 November 2015 (three days after the blood test results) with lumbar back pain (ST9); she was given a urogram, which revealed no significant findings (ST11), but it may be that the pain she was reporting had its origin in some form of inflammation that was not identified at the time. There is not a sufficient connection between the CRP levels and the unclear diagnosis of Ms Ofori’s foot condition to draw a conclusion with the necessary certainty. Nor do I find the change in Ms Ofori’s physical activity a compelling explanation for the non-recurrence of the foot condition. Ms Wright’s alternative explanation is little more than a speculative invention.
To find that Ms Ofori’s foot condition was a compensable injury under section 5B of the SRC Act requires me to be persuaded that it was more likely than not that her employment made a significant contribution to the condition arising – “significant” meaning substantially more than material. The burden of this test, including its legislative history, is explored by Katzmann J in Comcare v Power [2015] FCA 1502 at [73-95]. Her Honour notes that the test requires a close causal connection between employment and the potentially compensable condition, and suggests too (at [94]) that the evaluative test requires specific consideration of the matters enumerated in subsection 5B(2) (despite the permissive language of that subsection).
I turn then to the matters listed in subsection 5B(2):
a)Ms Ofori had spent an extended period in the nursing profession, having worked for ACT Health since 2007. This length of time would have allowed her to accustom herself to the workload demands, but there had been recent changes that may have, indeed probably did, increase the workload.
b)In Ward 8A she undertook work that was physically demanding, requiring extended periods on her feet attending to patients and putting them on and taking them off haemodialysis; at times that work was made more intense by particular requirements, such as when there was a MET call. Ms Ofori asserts that the changes in Ward 8A and the particular demands on 11-14 May 2016 combined to bring about her foot condition. There is evidence that there was a higher workload at the time, but the evidence is at best patchy and much of it has the appearance of a disagreement between management and staff over resourcing. The reports made about staffing pressures during the period March-June 2016 do not mention Ms Ofori’s foot condition except for a single general mention of “sore legs” on 26 March (T20.1.1) Ms Ofori maintained her full workload for the period after the purported crisis of 11-14 May, taking only 19 May, 26 May and 22-23 June 2016 as leave through the relevant period up to the end of June (folio 42 of the section 71 documents). That does not impress as the pattern of a person struggling with a disabling condition. Taken as a whole the evidence is unconvincing that there was an increase in work pressures sufficiently great and sustained to be a trigger for Ms Ofori’s foot condition.
c)The medical evidence is clear that Ms Ofori had a predisposition to problems of this kind because of her fat mass. It is highly likely, from the expert opinion of virtually all the health professionals who have examined Ms Ofori, that her fat mass made a contribution to the foot condition.
d)Although arguments have been advanced that her outside activities made a contribution, I am not persuaded that anything in Ms Ofori’s exercise or outside activity regimen, or any change to her activity, made a contribution to either the condition’s appearance or to its failure to recur at any subsequent time.
e)Ms Ofori suffered an earlier foot problem, which seems to have been accepted as plantar fasciitis but may equally have been the effect of calcaneal spurs, and there may have been an element of that earlier condition apparent in her 2016 foot condition. Otherwise, Ms Ofori’s medical records shed no useful light on the causation question, other than as discussed earlier in this decision.
The explanation that Ms Ofori’s foot condition arose from an increase in workload in the period leading up to 14 May 2016 may be the most likely of those on offer, but it is nevertheless unpersuasive. There are more than two possibilities here – as well as Ms Wright’s suggestion that some generalised inflammation arose from Ms Ofori’s fat mass, there is also a possibility, for example, that some event intervened between 14 May and lodgement of the claim on 17 August. Taken as a whole, I do not find that the evidence allows me to reach the point where I can be satisfied that, on the balance of probabilities, Ms Ofori’s employment at Canberra Hospital made a substantially more than material contribution to her foot condition arising.
Comcare is not liable to pay compensation to Ms Ofori. The decision under review is affirmed.
87. I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member.
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Associate
Dated: 5 July 2018
Date(s) of hearing: 14 May 2018; and 15 May 2018 Date final submissions received: 15 May 2018 Solicitors for the Applicant: Mr W Hawkins, Maurice Blackburn Lawyers Counsel for the Applicant: Mr Mark Seymour
Solicitors for the Respondent:
Counsel for the Respondent:
Mr R Moss, Comcare
Ms Sarah Wright
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