Ofori and Comcare (Compensation)

Case [2018] AATA 2113

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

  1. 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.

  2. 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.

  3. 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.

  4. The evidence before the…

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AGLC
Ofori and Comcare (Compensation) [2018] AATA 2113
Case
[2018] AATA 2113
Decision Date

CaseChat Overview and Summary

Ms Ofori sought compensation from Comcare for a condition affecting her left foot, which she claimed arose between 11 and 14 May 2016. The matter came before Member Mark Hyman of the Administrative Appeals Tribunal. Comcare contended that Ms Ofori's claim was excluded under section 7(7) of the relevant Act, arguing she had wilfully and falsely represented that she had not previously suffered from the same condition. Alternatively, Comcare argued that Ms Ofori's foot condition was a generalised inflammation caused by her obesity, and that her employment had not significantly contributed to its onset.

The Tribunal was required to determine the diagnosis of Ms Ofori's 2016 foot condition and whether it was indistinguishable from a previous foot condition she had experienced in 2013 and 2014. It also needed to consider whether Ms Ofori's employment had made a significant contribution to the arising of her condition, particularly in light of her pre-existing obesity.

Member Hyman noted that while Ms Ofori had suffered from foot pain in 2013 and 2014, with diagnoses including plantar fasciitis, the evidence did not provide an unambiguous diagnosis for either the earlier or the 2016 condition. The 2016 condition was described by medical professionals with various terms, including plantar fasciosis and different forms of tendonitis, such as tibialis posterior tendinitis and abductor hallucis tendonitis. Ms Ofori herself reported that the new pain felt different and was located differently from her previous condition. The Tribunal found that the diagnosis of the 2016 condition was not the same as the earlier condition, and therefore the exclusion under section 7(7) did not apply. Furthermore, the Tribunal considered the significant contribution test, but the decision focused on the exclusion under section 7(7).

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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”.