Patricia Ferranti and National Australia Bank Limited
[2014] AATA 40
•30 January 2014
[2014] AATA 40
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2034
Re
Patricia Ferranti
APPLICANT
And
National Australia Bank Limited
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Dr Alexander, MemberDate 30 January 2014 Place Sydney The decision under review is affirmed.
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Senior Member J Toohey
CATCHWORDS – COMPENSATION – lumbar spine – whether applicant suffered an injury – whether respondent liable to compensate applicant – applicant’s evidence unreliable – decision under review affirmed
Legislation
Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 5B(1), s 5B(3), 14
REASONS FOR DECISION
Senior Member J Toohey
Dr Alexander Member
Background
Ms Patricia Ferranti was a part-time employee of the respondent from November 1999 until her resignation in May 2011. She claims compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for an injury to her lower back in falls at work on 18 September 2008 and 17 January 2011.
Ms Ferranti claims that, apart from briefly in 2001, she had never experienced lower back pain until the fall in September 2008. She claims she has suffered chronic lower back pain since shortly after the first fall and that her pain increased after the second fall to the point where she could no longer perform her duties and had to resign.
The respondent does not dispute that Ms Ferranti had falls at work on those dates but denies that she has sustained an injury as defined in the Act and denies liability to compensate her in relation to either incident.
Ms Ferranti originally claimed compensation for an injury to her knees as well as her lower back. She has withdrawn her claim in respect of her knees.
Relevant legislation
By s 14 of the Act, the respondent is liable to compensate an employee who suffers an injury that results in death, incapacity for work, or impairment.
By s 5A(1), injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.
By s 5B(1), 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.
Ailment means any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development: s 4(1). Significant degree means a degree that is substantially more than material: s 5B(3).
Summary of Tribunal’s decision
We accept Ms Ferranti had falls at work on 18 September 2008 and 17 January 2011. However, for the reasons set out below, we find much of her evidence unreliable. We find she has exaggerated the severity of the fall in September 2008 and the symptoms she suffered as a result of both incidents.
The overwhelming weight of the medical evidence is that Ms Ferranti has mild degenerative disease in her lumbar spine consistent with her age and unrelated to any trauma and, in particular, to her falls at work.
We do not accept Ms Ferranti’s claim that she has suffered chronic back pain since September 2008 that was aggravated in January 2011. We accept she suffers from intermittent lower back pain consistent with her mild degenerative back condition but do not accept that either fall at work caused her to suffer the chronic back pain she claims to suffer.
Ms Ferranti lodged her claim for compensation more than two and a half years after her first fall at a time when she was under threat of having her employment terminated for reasons to do with her performance. We are satisfied that she did not claim compensation before then because any symptoms resulting from the falls were insignificant. Even allowing that she suffered temporary symptoms after both falls, there is no evidence that she has suffered any incapacity as a result of either.
We find the respondent not liable to compensate Ms Ferranti for either injury. Our reasons follow.
Incident report form – 22 September 2008
On the 22 September 2008, Ms Ferranti completed an online incident report in relation to a fall on 18 September 2008. She provided the following information about her injury on the form:
What was the nature of the injury? Sprains and strains
What part of the body was injured? Left foot/ankle bruises to my legs, swellen (sic) foot/ankle plus pain
What was the cause of the injury? I tripped over while I was coming down the stairs and twisted my foot/ankle
Ms Ferranti completed another section on the form as follows:
Nature of injury: Sprains and strains
Mechanism of injury: Other and unspecified causes
Bodily location of injury: Left foot/ankleThe report was signed by Ms Ferranti’s supervisor who noted that Ms Ferranti did not go to see the doctor, and that the branch manager had “followed up with Patricia who advised no need to see [Doctor]”. Ms Ferranti denies making these statements.
In a written statement dated 16 August 2012 tendered in these proceedings, Ms Ferranti described this incident as follows:
… I was descending stairs when I twisted my ankle, lost balance and slipped on a flight of stairs, while I was falling, I felt a sharp pain in my back (as if my back was snapping in two - my spine was tilted back) when, with an awkward movement, I was trying to reach for the rail/hold on to the rail to stop the fall all the way down to the bottom of the staircase. My lower back, legs and feet were injured.
Ms Ferranti gave evidence before us that she completed the incident report herself. Asked why she did not include details of her back injury, she said her manager insisted she complete the form immediately, she would not allow her to do it later and stood over her while she did; if she had not completed the form then, she would have to start all over again at the end of the day and she did not have time for that.
Ms Ferranti also gave evidence she was not aware of “an injury” to her lower back at that time and she did not attribute her pain to a permanent injury; she was more concerned about her swollen ankle and foot. She was also not aware of the procedure for completing the incident form or of its purpose.
We do not accept Ms Ferranti’s explanations. It is implausible, if she felt the sharp pain she claims, and has suffered chronic pain since, that she would not mention her back on the form. We think it improbable that her manager pressured her to complete the form as she claims but, even if she did, there is no plausible reason Ms Ferranti could not have added the words “lower back”. Her explanation that she didn’t include the back “injury” on the form because she wasn’t sure whether it was permanent makes no sense. There was nothing to suggest that her ankle and foot injuries were “permanent” but she included them on the form.
It is difficult to credit, if the fall happened as she claims, that Ms Ferranti would tell her manager that she did not need to see her doctor. We think it more probable that the form reflects accurately what she said at the time.
As it was, Ms Ferranti did not see her doctor until nearly three weeks later, on 10 October 2008. As set out below, the clinical notes of her visits on that date and subsequently do not bear out the history of chronic pain that she now claims.
Incident report form – 17 January 2011
On 17 January 2011, Ms Ferranti completed an incident report form for an injury when she tripped on the leg of her chair and fell that day. She completed the form as follows:
What was the nature of the injury? Sprains and strains
What part of the body was injured? Left foot/ankle low back, knees and ancle (sic)
What was the cause of the injury? Fall
and
Nature of injury: Bruising/swelling
Mechanism of injury: Falls, trips and slips
Bodily location of injury: Left kneeMs Ferranti’s supervisor noted she was “not sure” if she would submit a claim for compensation and:
I have spoken with Patricia and she has noted that her back initial (sic) has been sore in the past and it comes/goes. she (sic) has no longer got any pains in ankles and back …”
Claim for compensation 9 May 2011
On 9 May 2011, Ms Ferranti lodged a claim for compensation for “Bulging discs, disc encroaching on neural structure, etc; knees deterioration” sustained on 18 September 2008. She described the part of her body most affected as “Back pain extending to the leg (mostly left); Knees were injured slightly in the car accident 06/05 on the way to work to NAB, but the 18/09/08 fall has made them worst.”
Ms Ferranti made no reference to the fall in January 2011, three months earlier. However, the respondent apparently dealt with her claim as if it included the second fall because the reviewable decision denied liability in respect of both. There is no argument as to jurisdiction in relation to the second fall.
Asked why it took her until May 2011 to lodge her claim Ms Ferranti said she was waiting to see if her back injury was permanent before doing so.
Asked why she did not include the January 2011 fall in her claim, Ms Ferranti said she was “concentrating on the main fall” in September 2008. She added that she thought her lawyer would have included the second fall. She said she “must have forgotten” to include it. Asked how she could forget pain which she described to Dr Max Ellis in February 2012 as having increased “to the point where she had to cease all work in 2011”, Ms Ferranti maintained that she was focussing on the earlier fall.
Taking into account all of the evidence, including evidence below about her resignation and the evidence of her clinical notes, we find Ms Ferranti’s explanations implausible and we do not accept them. There was no reason to delay making a claim to see if any injury was permanent. We are satisfied the delay reflects the very minor nature of her symptoms following the first incident, and her failure to include the second incident reflects that any symptoms she suffered on that occasion were so insignificant that she did not recall them four months later.
Ms Ferranti’s resignation
Ms Ferranti resigned on 19 May 2011. Documents in evidence show that her claim for compensation was lodged at a time when her work performance was under review. In October 2010 she was placed on a “Performance Improvement Plan” which led to her being referred to an internal Compliance Committee in about January 2011.
In February, April and May 2011, the respondent issued Ms Ferranti with three letters concerning her conduct and performance. The last letter invited her to reply to issues “of serious concern” and put her on notice that her reply would be used in determining any further action which could include disciplinary action including termination.
Giving oral evidence, Ms Ferranti agreed that, in May 2011, she knew there was “a fair chance” her employment was to be terminated. She agreed it was why she resigned but said her back pain was also the reason. She also agreed that resigning, rather than being terminated, would allow her to keep her NAB shares.
Since Ms Ferranti’s resignation
Following her resignation, Ms Ferranti undertook accounting studies after which she found employment. She started working two days a week which increased to three days a week within a short time of starting. She is still in that employment. She agreed in cross-examination that from the time of her resignation, she has been fully fit to work 20 hours per week over three days, which were the hours she worked for the respondent.
Clinical notes
Following the first fall, Ms Ferranti first saw her general practitioner, Dr Karthigesu, on 10 October 2008. When Dr Karthigesu, is not available, she sees another doctor at the same practice. Clinical notes for the relevant period are before the Tribunal.
On 10 October 2008, Dr Karthigesu noted:
Ms Ferranti has had back pain for years but in the last three weeks it has got worse. Pain radiating down the [left] leg. Fell at work 3 weeks ago and has made it worse.
The respondent contends that this note contradicts Ms Ferranti’s claim to have suffered no lumbar back pain prior to September 2008. Ms Ferranti claims she was thinking of her back “as a whole” and was referring to upper back pain only. She also claims she told Dr Karthigesu that she had lower back pain after the fall and she “probably assumed” the previous back pain was also lower.
Ms Ferranti’s explanation makes no sense and we do not accept it. In her written submissions and oral evidence, she demonstrated some understanding of medical terms and conditions and she stated at the hearing that she had a good understanding of traditional and natural medicine. We do not accept that communication between her and her doctor was so unclear.
Dr Karthigesu referred Ms Ferranti for a CT scan and issued a medical certificate for that day for “back strain”. Ms Ferranti did not have the scan done until February 2009. She told us she deferred having it done because she wanted to see if she got better and she wanted to avoid radiation. Ms Ferranti saw Dr Karthigesu again on 31 October 2010 about an unrelated medical matter. There is no mention of her back.
Ms Ferranti saw Dr Kanapathipillai on 22 February 2009, after the CT scan. The results of the scan and of an MRI and earlier x-rays are considered below.
Ms Ferranti saw Dr Karthigesu on 29 April 2009 about an unrelated matter, and on 6 May 2009 when the notes show “CT scan findings of the lumbar spine discussed”. She saw other doctors on 13 June 2009 and 14 July 2009 but did not mention her back. On 24 July 2009 she reported “moderate back pain again radiating to left leg”.
On 8 January 2010, Ms Ferranti saw Dr Sorani about back pain. He prescribed local non-steroid anti-inflammatory gel, analgesic if necessary and home exercise. He issued her with the medical certificate for that day. Ms Ferranti saw him again on 28 January 2010 complaining of back pain. He issued a medical certificate for that day for “back pain”.
On five further occasions in 2010, Ms Ferranti saw Dr Karthigesu but did not complain of back pain. She gave evidence there was no point because her pain was chronic by that time and there was nothing the doctors could do. In mid-2010, she saw a chiropractor six times of her own accord and did not see her doctors in that time.
Ms Ferranti next complained of back pain on 16 December 2010 when she complained of “pain in her back from yesterday”. Dr Karthigesu certified her unfit for work for two days for “back strain”.
On 19 January 2011, Dr Karthigesu noted “has chronic back pain since 2008 and she wants a referral to see Dr Habib… She says she fell off the stairs at work in 2008. However this was not recorded in the medical records here. She says that she had a fall at work… on the 17th January 2010 (sic) … she reported the incident … She doesn’t want to go on work cover now”.
On 20 January 2011, Dr Karthigesu noted that Ms Ferranti requested a “clearance certificate to go back to work because of the knee pain she reported at work following a fall at work on the 17th of this month. She saw me yesterday with knee pain”.
Ms Ferranti saw Dr Karthigesu again on 9 February 2011. The notes refer to “problems at work” which Ms Ferranti hoped would change with a change of managers but she was going to the union “to complain what has happened”. There was no reference to back pain.
On 27 April 2011, Dr Karthigesu noted the result of an MRI and Ms Ferranti’s request for a referral to a physiotherapist. On 6 May 2011 Dr Karthigesu noted that Ms Ferranti had not been to work “because of increased pain”; she had not started seeing a physiotherapist but was “waiting to apply for WC - through the lawyer”. She issued a Workcover certificate for two days for lower back pain and noted that Ms Ferranti was fit for suitable duties on both days. On 11 May 2011, Dr Karthigesu noted “now wants to put it under WC”.
Between May 2011 and June 2012, Ms Ferranti saw her doctor nine times. She complained of back pain once, in May 2012.
Consideration
It is notable that, of the four certificates issued by Ms Ferranti’s doctors, only one was a Workcover certificate. Ms Ferranti says she was waiting to see if her condition was permanent, and she did not want to claim compensation until May 2011. We do not accept her explanation. It is implausible in light of her claim to have suffered chronic pain for more than two and a half years.
Ms Ferranti’s medical records do not bear out a history of chronic pain. They suggest intermittent back pain only. She had four days off work in over two and a half years, only once on a Workcover certificate. We are not satisfied that any back pain that she experienced interfered in her ability to perform her duties. Although she told Dr Ellis in May 2013 that “the heavy lifting of 2 coin bags tied together and the pulling of drawers at work aggravated the pain and she was constantly in a sitting position without break periods”, and her back pain increased after the 2011 fall to the point where she had to give up work altogether, other evidence is at odds with that.
In June 2011, Ms Ferranti told Dr Sheikh Habib, whom she saw for assessment, that “she had continued to work as it did not involve heavy physical activities and she could change the posture when required to ease the low back discomfort”. In oral evidence, she agreed that she was able to continue her duties after both falls.
We are not satisfied that Ms Ferranti’s resignation had anything to do with any back pain as a result of her falls. We find it was because she believed her employment was about to be terminated. She maintains that the threatened disciplinary action was unfair but that is not a relevant consideration in these proceedings. Whether or not it was fair, we are satisfied it was the reason she resigned from work and not back pain.
Other medical evidence
We heard evidence from Dr Max Ellis and Dr Edward Schutz, general surgeons, and Dr David Maxwell, orthopaedic surgeon, all of whom assessed Ms Ferranti for the purposes of her claim. Each has provided written reports.
A number of other medical reports are also in evidence including reports of an x-ray of Ms Ferranti’s lumbar spine in July 2001, a CT scan on 18 February 2009 and an MRI on 22 February 2011.
The x-ray in 2001 showed alignment, disc spaces and sacro iliac joints were “normal” and there was “no evidence of injury or significant degenerative change”.
The report of the CT scan concluded:
Mild disc bulging is noted though the spinal canal is not significantly narrowed. Disc material extends to right neural foramen of L5/S1 contacting the L5 nerve root but nerve roots are otherwise clear, particularly on the left. Facet joint arthropathy is noted at L5/S1. No features of trauma are shown.
The MRI showed:
Left lateral bulging of the disc annulus at L5/S1 without neural compromise. Osteoarthritic changes are present in these apophyseal joints.
On 24 October 2012, Dr Raymond Schwartz performed an EMG and reported “Needle EMG examination revealed minor neurogenic changes in [anterior and posterior tibia] but was otherwise within normal limits”. He concluded “There is neurophysiological evidence of a mild right L4/5 radiculopathy”.
Ms Ferranti maintains that Dr Schwartz’s finding of mild radiculopathy is conclusive evidence of damage to her lumbar spine in the 2008 fall. As discussed below, while Dr Ellis agrees with her, Dr Maxwell and Dr Schutz disagree.
In November 2012, Dr Geoffrey Rosenberg, orthopaedic surgeon, assessed Ms Ferranti. He reported to her general practitioner that the CT and MRI scans showed degeneration and “there appeared to be a left sided protrusion at L3/4”. He noted that Dr Schwartz’s studies “suggest mild radiculopathy affecting lumbosacral and L4/5 levels” and he noted that she appeared to have “a small spondylolisthesis through facet joint disease at the lumbosacral level”. Dr Maxwell and Dr Schutz agree that Ms Ferranti does not have spondylolisthesis but, rather, some spondylosis in her lumbar spine. We accept their evidence.
Ms Ferranti contends that Dr Rosenberg supports Dr Schwartz’s finding of radiculopathy but, as we understand his report, he simply noted that finding. She also contends that Dr Rosenberg’s finding of spondylolisthesis is significant and requires clarification. Following the hearing, she asked that she be allowed to undergo further assessment by Dr Rosenberg in order to clarify the cause of her “spondylolisthesis”. She submitted she should be given additional time because she was given supplementary reports from Dr Maxwell and Dr Schutz shortly before the hearing and needed time to respond.
We do not agree to Ms Ferranti’s request. Dr Maxwell’s and Dr Schutz’s supplementary reports were essentially clarification and confirmation of their earlier opinions; nothing in either should have taken Ms Ferranti by surprise. She did not raise this matter at the hearing. Even if she had, we would not have granted her request. She gave evidence that she did not tell Dr Rosenberg about either fall. Further, it is agreed among the doctors, including Dr Ellis, that evidence of disease or injury is not evidence of cause.
Dr Maxwell and Dr Schutz
Dr Maxwell took a history that, in September 2008, Ms Ferranti was coming down the stairs when one of her feet slipped and she twisted her right ankle; she grabbed on to the railing which stopped her falling further down the stairs; she twisted her back as she grabbed onto the rail. As seen below, Ms Ferranti gave a different account to Dr Ellis.
Dr Schutz and Dr Maxwell agree that the findings of the scans are consistent with multilevel degeneration of Ms Ferranti’s lumbar spine consistent with her age and weight. Neither found anything remarkable in the pathology of her lumbar spine. They agree that she has spondylosis but no evidence of other pathology and no evidence of any traumatic injury. They agree that, had she suffered any significant trauma to her lumbar spine in the fall in 2008, she would have suffered severe pain immediately. Neither considered the appearance of a left sided protrusion at L3/4 level, as noted by Dr Rosenberg, significant.
Regarding the EMG, Dr Maxwell said scans are only part of the picture and the radiologist often has a short clinical history. He said he finds them too unreliable on their own because they tend to give false positive results. He and Dr Schutz agreed there was no evidence of nerve root encroachment or impingement in Ms Ferranti’s spine. Neither found any evidence to suggest any connection between the falls and the degeneration in Ms Ferranti’s lumbar spine between the x-ray in 2001 and the later scans.
Dr Ellis
Dr Ellis saw Ms Ferranti in February 2012 and May 2013. In February 2012, he reported that Ms Ferranti slipped and fell down a flight of stairs, falling on to the base of her spine, after which low back pain persisted and spread to the back of her left thigh.
In oral evidence, Dr Ellis said he understood Ms Ferranti fell from the top of the steps, hitting her back on each step as she fell. This is at odds with the history taken by other doctors and with Ms Ferranti’s own evidence. Nowhere else is it suggested that she hit her back on each step as she fell.
As already noted, Dr Ellis took a history that Ms Ferranti’s back pain increased after January 2011 to the point where she had to give up work. He referred also to the heavy lifting that aggravated her back pain and her inability to move around. Neither of those observations is supported by other evidence. The clinical notes do not support the former, and the second is contradicted by Ms Ferranti’s own evidence. Dr Ellis’s opinion is based on a history that is at odds with Ms Ferranti’s own evidence and he refused to consider alternative factual scenarios such as if Ms Ferranti had not fallen in the way he understood, if she was in fact able to work more than she had told him, or if her duties were not in fact heavy.
Dr Ellis disagreed with almost every aspect of Dr Maxwell’s and Dr Schutz’s evidence. In his view, the “multilevel degenerative changes” seen in the MRI in 2012 are explicable only by the “serious fall” in September 2008. He conceded that scans do not identify when an injury occurred but would not be swayed from his opinion that Ms Ferranti suffered significant trauma in the fall. The fact that X-rays in 2001 were normal, and scans in 2012 showed multilevel changes, was explicable only by reference to that fall and it was unreasonable to say otherwise. He disagreed with Dr Maxwell and Dr Schutz that there was no evidence of radiculopathy and preferred Dr Schwartz’s findings on the EMG. In his view, the fact that neither the CT scans nor the MRI showed evidence of radiculopathy could only mean it was not reported.
We did not find Dr Ellis’ evidence helpful. We prefer the evidence of Dr Maxwell and Dr Schutz who explained their conclusions clearly by reference to their clinical examination of Ms Ferranti, the various scans and their clinical experience. Even if we accepted that Ms Ferranti’s lumbar spine showed signs of radiculopathy in 2012 as she says, the evidence does not support the conclusion that it is related to either fall at work.
Following the hearing, Ms Ferranti made further written submissions which were essentially restatements of her oral submissions. She also asked for time to be assessed again by Dr Rosenberg and to seek his opinion about the cause of her spondylisthesis. We have discussed above our reasons for declining her request.
Conclusion
We are satisfied that Ms Ferranti has mild degenerative changes in her lumbar spine consistent with her age and unrelated in any way to either fall.
We are not satisfied that Ms Ferranti suffered any incapacity as a result of either fall. We are not satisfied that she suffered an injury within the meaning of the Act as a result of either fall. The respondent is not liable to compensate her in relation to either.
We affirm the decision under review.
72. I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr Alexander, Member.
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Associate
Dated 30 January 2014
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