Peta Northcote and Telstra Corporation Limited
[2013] AATA 756
[2013] AATA 756
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3655
Re
Peta Northcote
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 23 October 2013 Place Sydney The decision under review is set aside and a decision substituted that the Respondent is liable to pay compensation to Ms Northcote pursuant to s 14(1) of the Safety, Rehabilitation and Compensation Act 1988.
Pursuant to s 67(8) of the Act, the Tribunal orders that the Respondent pay the Applicant’s costs as agreed or assessed.
........................[SGD]......................................
Deputy President RP Handley
CATCHWORDS
COMPENSATION - applicant had pre-existing back injury from previous employment - current employer provided applicant with ergonomically unsuitable chairs over an 18 month period - whether frank injury or aggravation of disease - whether aggravation of condition is compensable under the Safety, Rehabilitation and Compensation Act 1988 - whether aggravation of ailment was significantly contributed to by applicant's employment - decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 67
CASES
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
REASONS FOR DECISION
Deputy President RP Handley
Date: 23 October 2013
Ms Northcote (the Applicant) has applied for the review of a decision by Telstra Corporation Limited (Telstra, the Respondent) to refuse her claim for workers compensation in respect of a back injury.
BACKGROUND
Ms Northcote was born in 1983 and is aged 30. In December 2002, Ms Northcote suffered a back injury while working as a checkout operator at a Coles supermarket. A report on a CT scan of her lumbosacral spine by Dr Lynn Smith dated 30 January 2003 identifies “Mild bulging of the L4/5 and L5/S1 discs”. She continued working for Coles until October 2004, and received workers compensation in respect of the injury.
In November 2007, Ms Northcote commenced working as a Customer Service Consultant at a Telstra Call Centre in Newcastle. Initially, she worked on level 4 of the Call Centre building before being transferred to level 2 and then, in about mid-2010, to level 3. Ms Northcote claims that on level 3 she suffered back pain as a result of using unsuitable chairs and made the first of a number of complaints about this to her managers in late 2010. On 8 June 2011, she consulted her General Practitioner (GP), Dr Z Arain about this. Despite complaining to her managers about her back problems, she was not provided with a suitable chair until about mid-2012.
Dr Arain referred Ms Northcote to see an Orthopaedic Surgeon, Dr YAE Ghabrial. In a report dated 21 March 2012, he diagnosed her with classic left L5 radiculopathy and L4/5 disc protrusion. Dr Ghabrial recommended Ms Northcote have an epidural injection as she was complaining of worsening symptoms, but this resulted in a spinal puncture and she was subsequently off work for three weeks from 9 to 27 April 2012. On 23 April 2012, a Workplace Assessment was conducted by ‘Konekt’, which found Ms Northcote was capable of undertaking a rehabilitation program with a view to returning to her pre-injury role but on reduced hours. Ms Northcote returned to work on 30 April 2012, initially for 20 hours per week, and increasing to 25 hours per week from August 2012.
On 24 April 2012, Ms Northcote lodged a claim for workers compensation for a condition described as ‘Annular disc bulge L4/L5 disc’ and ‘Disc disease L-Sacral Spine L4/L5’, sustained on 17 March 2011, and caused by sitting on a series of unsuitable chairs at work.
On 14 June 2012, a delegate of Telstra denied liability to pay compensation to Ms Northcote in respect of the claimed injury, finding the claim was for aggravation of a pre-existing ailment rather than a workplace injury and that sitting on a less than optimal ergonomic chair did not contribute to a significant degree to aggravation of her ailment. The delegate deemed the date of injury to be 9 April 2012, which was said to be the date Ms Northcote first sought medical treatment for her condition.
Ms Northcote requested a reconsideration of this decision and, on 23 July 2012, a Telstra ‘litigation officer’ affirmed the original decision, finding that Ms Northcote was suffering from a ‘left L4/5 disc protrusion with compression on the nerve root’ rather than disc disease and that her employment had not significantly contributed to her ailment. The delegate relied on the fact that Dr Arain, Dr Ghabrial and Occupational Physician, Dr John Parkes, had not explained how an unsuitable chair could have contributed to Ms Northcote’s condition. In a report dated 6 June 2012, Dr Parkes said the claimed condition was “most likely” related to Ms Northcote’s original injury while working at Coles.
On 24 August 2012, the Applicant applied to the Tribunal for a review of the reconsideration decision dated 23 July 2012.
THE RELEVANT LEGISLATION
The relevant legislation in respect of claims for workers compensations by employees of designated corporations is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an injury suffered by an employee which results in incapacity for work. ‘Injury’ is defined in by s 5A to mean:
(1)(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is further defined in s 5B(1) to include an ‘ailment’ or ‘aggravation of such an ailment’ that has been “contributed to, to a significant degree, by the employee’s employment”. In s 4(1), ‘ailment’ is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”; and the word ‘aggravation’ is defined as including “acceleration or recurrence”. Section 5B(2) permits “any predisposition of the employee to the ailment” and “any other matters affecting the employee’s health” to be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. Section 5B(3) states that “‘significant degree’ means a degree that is substantially more than material”.
THE ISSUES
The principal issue for the Tribunal to determine is whether Telstra is liable for an injury sustained by Ms Northcote pursuant to s 14 of the SRC Act. In particular, did she sustain an injury, a disease or the aggravation of a disease that was contributed to, to a significant degree, by her employment with Telstra?
The Applicant contends that she suffered a ‘frank injury’ to her lower back in the course of her employment with Telstra between 2010 and 2012 by reason of her using various chairs that were ergonomically unsuitable for her, resulting in an incapacity for work and a need for medical treatment. Alternatively, that she suffered a disease or the aggravation of a disease that was contributed to, in a significant degree, by the nature and conditions of her employment between 2010 and 2012 as a result of using various chairs that were ergonomically unsuitable for her.
THE EVIDENCE
The Chairs
Since being transferred to level 3 of the Call Centre building in Newcastle in mid-2010, Ms Northcote has used a number of different office chairs. Ms Archbold-Barnes, Ms Northcote’s Team Manager in 2010/2011, gave evidence that there were between 120 and 150 call centre operators on level 3 working in teams of 20 to 25 at the time of the move. She said there were a considerable number of unallocated chairs available but approximately 90% of these were the same. On moving to this level, a person could choose a chair and work station from what was available.
The following history of the chairs used is based on Ms Northcote’s evidence and the evidence of her Team Managers over the period 2010 to 2013:
(i)The first chair, which was green, had a short back and standard seat which tilted forward. Ms Northcote said both the seat and the back of the chair were too short for her height and the sloping seat caused her to slip forward. After a few months using this chair, Ms Northcote began to experience pain in her lower back, which gradually became worse. She states that in late 2010, she asked Ms Archbold-Barnes for another chair but, despite several requests, nothing came of this. Ms Archbold-Barnes gave evidence that she has no recollection of such requests. However, Ms Archbold-Barnes said she noticed Ms Northcote sitting on a pillow on a chair in early 2011(which was the second chair – see below) and when Ms Northcote said she was uncomfortable on the chair, Ms Archbold-Barnes said she should choose another chair from the spare chairs on the floor. Ms Northcote said that in early 2011, she asked Reginald Beetson about the possibility of getting her a better chair.
(ii)The second chair, which had blue and purple check cloth, provided by Mr Beetson, had a higher back but inadequate padding on the seat – so Ms Northcote obtained a brown cushion from the lunch room to sit on. Although the back of this chair was more supportive, sitting on a cushion made her back worse. After four or five months, in about August 2011, Ms Northcote asked her then acting Team Manager, Aidan Walsh for another chair.
(iii)The third chair, which was blue, provided by Mr Walsh, was his chair, and had a higher back and a wider seat but faulty hydraulics that caused the seat to drop suddenly jolting her back and making it sore. Ms Northcote said this happened daily. In about October 2011, Ms Northcote told her then acting Team Manager, Julie-Ann Gallucci, she was suffering pain from use of the chair. Ms Galucci gave evidence (by conference telephone from a call centre in Mumbai) that before taking over as Ms Northcote’s Team Manager, she was not aware of the back problems experienced by Ms Northcote. When Ms Galucci became aware of these problems, she contacted the Health and Safety representative, Donna White, who advised Ms Gallucci to give Ms Northcote a form for her doctor to complete (including details of her previous injury) prior to an ergonomic assessment being undertaken and, if required, a new chair provided. Ms Gallucci gave Ms Northcote the form and a copy of a catalogue of chairs available for Telstra employees. Ms Northcote did not immediately ask her doctor to complete this form – she states she could not afford to get him to do this – and so nothing resulted. Telstra did not offer to pay for the form to be completed. Ms Gallucci arranged for Ms Northcote to try a stand up desk, but Ms Northcote said that after about an hour she experienced pain in her neck, shoulders and arms and decided to return to her chair.
In March 2012, Phillip Brown became her Team Manager. Ms Northcote sent him an email on 22 March 2012 complaining about her chair and telling him about her back condition. Mr Brown gave evidence that he was not previously aware of Ms Northcote’s problem, as it had not been mentioned in the ‘handover discussion’ when he took over from Ms Galucci. He gave Ms Northcote another copy of the form for her doctor to complete, gave her a copy of the catalogue of available Telstra chairs, arranged for her chair to be sent for assessment and repair, and provided her with another chair in the interim.
(iv)Ms Northcote said this fourth chair, which was blue with a mesh back, had a very hard seat which aggravated her back problem. She experienced pain in her lower back and a burning and numbness going down her leg to her ankle. Sometimes she felt as if her pelvis had dropped forward. She used this chair for only about two weeks as a result of the third chair being returned after repairs (the Respondent provided a copy of the invoice for the repairs undertaken by Strut Regas (Hunter) undated), but Ms Northcote was also the subject of a workplace assessment by ‘Konekt’, arranged by Mr Brown. Konekt identified another more suitable chair for her condition and this was ordered for her by Telstra. However, in the meanwhile, Mr Brown found the same chair had been ordered for another member of staff and had not subsequently been required, and obtained this for Ms Northcote.
(v)This fifth chair is black and has a broad seat, a high back and no arms. Ms Northcote said “this chair works OK” although she would prefer if it had arms to assist her in getting up from a seated position. However, the chair provides better support and she feels her back pain has stabilised. She continues to use this chair.
The Medical Evidence
A report by Dr Lynn Smith dated 30 January 2003 of a CT scan of Ms Northcote’s lumbosacral spine states relevantly:
Mild bulging of the L4/5 and L5/S1 discs. No focal protrusion.
A report by Dr Phillip Janke dated 9 July 2003 of a MRI of the lumbar spine states relevantly:
The discs display normal morphology and signal. No focal disc lesion seen. … There is no evidence of neural compromise.
Ms Northcote first complained to her GP, Dr Arain about back pain arising from her work for Telstra on 8 June 2011. In a clinical note on that day, Dr Arain recorded:
lower back [pain] radiating to both lower limbs to back of knees
At about this time, Ms Northcote was seeing another doctor in the same practice about other female problems. This doctor, Dr Monika Mehta, made the following clinical record of a consultation on 12 January 2012:
low back pain worsening now radiating L leg
Tender L4 L5 movements painful now affecting her mobility
Dr Mehta referred Ms Northcote for a CT scan of her lumbosacral spine. The report of this scan dated 22 January 2012 by Dr Lynn Smith concludes:
Left paracentral disc protrusion at L4-5 compressing the theca and effacing the left L5 nerve root.
Dr Arain saw Ms Northcote on 30 January 2012 and recorded:
DISC diusease [sic] L-sac spine Ref to specialist done.
Dr Arain referred Ms Northcote to Professor Ghabrial, whom she appears to have seen on 21 March 2012, the date of Professor Ghabrial’s report. Professor Ghabrial had seen Ms Northcote previously, on 16 June 2004, following her injury while working for Coles on 21 December 2002. In his report dated 21 March 2012, Professor Ghabrial stated:
Clinically she has classic left L5 radiculopathy with sensory and motor changes. The CT scan suggested left L4/5 disc protrusion.
I referred her for MRI scanning to confirm the diagnosis and at the same time I organised a CT guided left L4/5 epidural injection of local anaesthetic and steroids.
A report from Dr Lynn Smith dated 30 March 2012 of a MRI of Ms Northcote’s lumbar spine states relevantly:
There is a left paracentral/lateral disc at L4/5. It mildly impinges on the theca and is effacing the left L5 nerve root. …
Conclusion
1. Annular disc bulge at L4/5 on the left compressing the theca and effacing the left L5 nerve root. …
In a clinical record on 4 April 2012, Dr Arain noted:
Seen DR GHAB HAD MRI HAD EPIDURAL yesterday
Following the epidural injection, Ms Northcote was diagnosed by Dr Arain (certificate dated 9 April 2012) as having a “post dural puncture” and was certified unfit for work. Ultimately, she returned to work on suitable duties (four hours a day, five days a week) on 12 May 2012. However, in the meanwhile, an initial workplace assessment was carried out with her on 23 April 2012 by Konekt.
In a report dated 2 May 2012, Professor Ghabrial, having reviewed Ms Northcote on 1 May 2012, stated:
Unfortunately the left CT guided L4/5 epidural injection made no difference to her symptoms. She still has classic left L5 radiculopathy and her MRI scan confirmed left L4/5 disc protrusion with compression on the nerve root.
Ms Northcote continued to see Dr Arain regularly through this period. In a report for Telstra dated 14 June 2012, he diagnosed:
Severe disc disease L4-L5 with classic left L5 radiculopathy and disc disease L5-S1 and severe soft tissue lower lumbar sacral spine.
Dr Arain said these injuries were “caused by improper and unsuitable chair”. He said Ms Northcote:
… is still complaining of backache radiating to both lower limbs. It is worse on the left side radiating all the way to the left ankle and on the right side it is radiating to the lower right buttock.
Professor Ghabrial provided a report dated 3 September 2012 at the request of the Applicant’s solicitors. Professor Ghabrial assessed the whole person impairment of Ms Northcote’s lumbar spine at 12% with half of that attributable to her injury on 21 December 2002.
The Tribunal was provided with expert reports from two orthopaedic surgeons: Dr Raymond Wallace for the Applicant and Dr David Maxwell for the Respondent. At the hearing, Dr Wallace gave evidence in person and Dr Maxwell by conference telephone. Dr Wallace provided a report dated 10 October 2012 and two reports dated 6 May 2013 (one substantive and one dealing with impairment assessment). He examined Ms Northcote on 10 October 2012 and 18 April 2013. In his report dated 10 October 2012, Dr Wallace stated:
DIAGNOSIS
21 December 2002 – Work injury at Coles Supermarket
1. Musculoligamentous strain lumbar spine – now resolved.
2. Temporary aggravation of pre-existing degenerative disc disease of the lumbar spine – now resolved.
March 2011 – Nature and conditions of employment at Telstra Corporation
1. Musculoligamentous strain lumbar spine.
2. Aggravation to pre-existing degenerative disc disease lumbar spine.
…
CAUSATION
Ms Northcote’s current lumbar spinal disability is due to a work injury in March 2011 with a proportion being due to pre-existing degenerative disc disease at the lumbar spine. Her employment with Telstra remains a substantial contributing factor to her spinal condition.
Her previous work-related injury in December 2002 whilst working at Coles Supermarket was and has resolved.
In his substantive report dated 6 May 2013, Dr Wallace confirmed his earlier diagnosis and opinion. He stated:
Ms Northcote’s lumbar spinal condition in relation to her work injury of March 2011 has now stabilised. She has reached maximal medical improvement.
In oral evidence, Dr Wallace was given a history and description of the chairs used by Ms Northcote which, he said, was more detailed than that with which he had previously been provided. He said an ideal chair would enable Ms Northcote to keep her back straight and her pelvis stable with her legs out in front of her. Employers should ensure that a chair is suited to the particular person, is properly adjusted and that the person is instructed in its use. With the first chair, which had a seat tilting forward, Ms Northcote would be compensating for the tilting by leaning backwards. The second chair was worse because the cushion on the seat would not allow her to keep her pelvis stable. He described the mechanism of injury as sitting for long periods of time in poor ergonomically designed chairs resulting in stress on Ms Northcote’s lumbar spine and causing injury.
Dr Wallace said Ms Northcote’s left leg symptoms suggest nerve root irritation at L5. Long periods of sitting on unsuitable chairs has probably aggravated pre-existing degenerative changes in her discs with the result that these discs are not functioning normally to support her lumbar spine. Contrary to the opinion expressed by Dr Maxwell, referred to below, he said the history of her condition and the symptoms described indicate that her condition is related to the nature and conditions of her work. Dr Wallace said he took into account that Ms Northcote had done this job since 2007, and that it was sedentary and involving the use of a computer.
In cross-examination, Dr Wallace said when he examined Ms Northcote on 18 April 2013, she was experiencing pain below the left knee. He said this suggested nerve root irritation, but he acknowledged that neurological examination did not indicate a loss of function as a result of nerve root compression. Dr Wallace dismissed the suggestion that the pain was somatic – he said her account was consistent with the pain being real. However, he said the absence of a loss of function indicates an improvement in her condition. He said on the first occasion he examined Ms Northcote, he found evidence of radiculopathy: it is possible she has good days and bad days – bad days when she has loss of function and good days when she just has nerve root irritation.
Dr Wallace said, referring to the report of a CT scan by Dr Smith dated 30 January 2003, that the degenerative changes affecting Ms Northcote prior to the 2011 injury were relatively minor. Moreover, the report by Dr Smith of a MRI of the lumbar spine dated 9 July 2003, which states “Normal study”, suggests no pathology: an MRI scan provides better evidence than a CT scan. By contrast, Dr Smith’s report of a CT scan dated 22 January 2012 refers to nerve root compression. Dr Wallace said the pathology in January 2012 was much more significant.
Dr Wallace said a GP’s opinion of a person’s chair requirements is irrelevant. What is suitable for a person should be worked out in the workplace with someone who is ergonomically trained looking at the person’s needs, such as an Occupational Therapist or an Occupational Physician.
Dr Maxwell provided a report dated 24 January 2013. He commented on Dr Smith’s report of a CT scan dated 21 January 2012:
I looked closely at this CT scan and although there was some asymmetry of the L4/5 disc this was associated with asymmetry of the vertebral body which made the disc appear more prominent on the left. There was no evidence of nerve root impingement. This was a normal variant.
With regard to Dr Smith’s report of a MRI scan dated 21 March 2012, Dr Maxwell commented:
I looked closely at this scan and again felt the apparent disc bulge was due to asymmetry and did not consider there was any evidence of L5 nerve root impingement.
Dr Maxwell answered questions posed by the Respondent as follows:
1. Diagnosis – I do not consider that she has any specific pathological condition affecting her lumbar spine. Her history does not suggest that she has radiculopathy. I note that she was complaining of depression and bullying at work prior to the onset of back pain. Psychosocial factors have been shown to be far more important than any specific pathology found on investigations in the presence of back pain without true radiculopathy. Peta Northcote in my opinion does not describe true radiculopathy. The pain she experiences in the left leg is vague and the numbness is due to meralgia paraesthetica due to weight gain. I consider the investigations have been over-interpreted.
2. Do you consider that the applicant has suffered from any, of [sic] so what, condition which has been caused and/or contributed to by her employment – I do not consider she has suffered from any pathological condition which has been caused or contributed to a significant degree by her employment. There is no evidence that she has had a specific work related injury. There is no evidence that the type of chair one sits on can cause any specific injury. I consider that she tends to somatise and experiences back pain as a manifestation of her psychological stress. In the presence of significant depression her symptoms are an unreliable indicator of the presence of a pathological process.
In oral evidence, Dr Maxwell said that Ms Northcote had not told him that the first chair had a sloping seat, but it makes no difference to his opinion: she has mobile hips and the sloping seat would make no difference to her back. He said there is no evidence that this would cause an extension of her lumbar spine; he knows of no objective evidence that the type of chair you sit on can cause any injury. He said that in 30 years of orthopaedics he has never had a patient who has suffered an injury as a result of sitting in any kind of chair.
Dr Maxwell said the use of a cushion by Ms Northcote would not affect her back. He dismissed Dr Wallace’s opinion about this as “completely illogical”. He said the use of a cushion “has nothing to do with her back in any way, shape or form”: the way you move does not cause injury – the spine is flexible. “The pain people experience is completely subjective. It is nothing to do with injury.”
Dr Maxwell said the numbness experienced by Ms Northcote in her thigh is more common in obese people, is a constitutional condition (meralgia paraesthetica), and not related to posture or back pain. Generally, the condition improves when the person loses weight.
In cross-examination, Dr Maxwell said he is not sure whether Ms Northcote’s 2002 injury has played a part in her condition. He commented that radiological assessment is very subjective. He said he ‘completely disagreed’ with the report of the MRI scan dated 21 March 2012. He said he is unable to find any pathological cause for Ms Northcote’s symptoms – her symptoms are vague and do not make any sense. When challenged about whether he is qualified to give a psychological opinion, Dr Maxwell said he is qualified to give opinions on psychologically generated pain: it is part of the job of orthopaedic surgeons, who are not just mechanics but also have to be psychologists in order to analyse the source of a person’s pain. He said 50% of people who go to consult their GPs about pain have absolutely nothing wrong with them.
Other Evidence
Ms Archbold-Barnes, Ms Galucci and Mr Brown all provided written statements. Their evidence is referred to where relevant in relation to the various chairs used by Ms Northcote. Ms Northcote also provided a statement and her evidence about the chairs is referred to above.
Ms Northcote told the Tribunal how from 2009 onwards she was bullied and harassed by a fellow employee, an acting Senior Consultant, who made comments about Ms Northcote’s weight and breast size, made adverse comments about her work which were not true, and gave her dirty looks which made Ms Northcote feel very uncomfortable. Ms Northcote complained about this person to Telstra’s Equal Opportunity unit, the person “was spoken to”, and Ms Northcote was moved to another ‘pod’ of six people further way from the person who had bullied her. Ms Northcote said she suffered depression as a result of the bullying and felt suicidal at times. (This is reflected in Dr Arain’s clinical notes which include psychological reports from GP Access Psychology Service about Ms Northcote’s condition and treatment.) Ms Northcote acknowledged that she had had a performance review and that there were areas of her work that needed improvement; she said after seeing a psychologist and the “suicide prevention people”, her work showed improvement.
Ms Northcote said when she began experiencing back problems, she took a 12 month gym membership because she thought exercise would help by strengthening her back muscles. She did light treadmill work and joined aerobic classes. However, there came a point when she was no longer able to continue with this because of pain and she then started to put on weight due to lack of exercise, overeating and depression caused by the bullying at work.
Ms Northcote said she is not currently having any treatment for her back. She still experiences burning pain, a pulling sensation in her left leg from her ankle up, and numbness and pins and needles around the top of her thigh.
SUBMISSIONS
Applicant
Mr Grey, for the Applicant, contended that Ms Northcote suffered a frank injury to her lower back in the course of her employment with Telstra between 2010 and 2012 as a result of the use of various ergonomically unsuitable chairs. He submitted that to be a frank injury, the change in a person’s physiological state does not have to be sudden. In Ms Northcote’s case, she suffered a disturbance of her normal physiological state as a result of musculoligamentous strain to the lower back and the aggravation of pre-existing degenerative changes in the spine (including any lasting effects of the 2002 injury). Mr Grey contended that it is clear from the evidence that Ms Northcote experienced the principal symptom, severe low back pain, while working for the Respondent at Telstra’s Call Centre in Newcastle. Ms Northcote had been free of any symptoms for about five years prior to suffering severe low back pain; this was consistent with the 2012 radiological evidence suggesting L4/5 disc bulging with L5 nerve impingement resulting in leg pain and intermittent radiculopathy. Earlier radiological evidence from 2003 did not show any similar pathology of the lower back.
Mr Grey contended, in the alternative, that if the Tribunal concluded that Ms Northcote suffered from a ‘disease’ or the aggravation of a disease, this was contributed to in a significant degree by the nature and conditions of her employment as a result of using various ergonomically unsuitable chairs between 2010 and 2012. The requirement for a significant contribution is to the cause of the aggravation not to the pathological condition. Thus, if an underlying condition is asymptomatic and the nature and conditions of employment render the condition symptomatic, causing pain, that will be sufficient to constitute an aggravation injury even if no specific pathology can be identified. In this case, however, there is additional pathology.
Mr Grey referred to the evidence of Dr Wallace and Professor Ghabrial in support of his contentions. He said the Applicant’s evidence is consistent with and not contradicted by the Respondent’s lay witnesses. He said that Telstra failed to recognise its obligations as an employer to provide its employee with an ergonomically suitable chair so that she could perform her duties without risk of injury. It took from late 2010 until 22 March 2012, when Mr Brown became Ms Northcote’s Team Manager and became aware of her problem, for Telstra to put the selection of a suitable chair for Ms Northcote into the hands of a person with expertise in ergonomics. Ms Northcote’s earlier unsuccessful attempts to get a suitable replacement are clear from the evidence.
Mr Grey noted that Dr Maxwell was unable to explain why Ms Northcote began to experience pain in her lower back after five years of having no symptoms. There is no evidence that she had a psychological problem and this has not been asserted. The only rational explanation is a link to Ms Northcote’s use of the chairs.
Respondent
Mr Snell, for the Respondent, said the facts of this case – that there is no evidence of a sudden change in Ms Northcote’s condition, or of a particular event or series of events at work – indicates that this is essentially a claim under the disease provisions of the SRC Act. The level of particularity is critical and subjective unsuitability in terms of the chairs is no guide to there being the required nexus. Mere experience of pain in the workplace is not sufficient. Mr Snell noted that Dr Maxwell found no evidence of radiculopathy and neither did Dr Wallace on his second examination of Ms Northcote.
Mr Snell stated Telstra has a reasonable process for dealing with chairs causing employees physical problems, and that where a person has a pre-existing injury medical input is required. He noted that Ms Northcote did not complain of back pain to her GP, Dr Arain until 8 June 2011, approximately a year after Ms Northcote moved to level three of the Call Centre building. Mr Snell said there is a lack of contemporaneous evidence going to contribution and suggested that the Applicant is attributing significance to events that were not significant. Mr Snell noted that the Respondent’s three lay witnesses, Ms Northcote’s Team Managers, were well-meaning people who were trying to do their best.
DISCUSSION
A comparison of the CT scan and MRI scan from 2003, following Ms Northcote’s injury when working for Coles in December 2002, and the CT scan and MRI scan in 2012 following her claimed injury when working for Telstra indicate that while in 2003 she may have had a mild bulging of the L4/5 disc (CT scan), there was no nerve root impingement, whereas in 2012 the disc bulge at L4/5 was compressing the theca and effacing (touching or in contact with) the left L5 nerve root. I am satisfied from this evidence and the weight of other evidence – that of Dr Wallace, Professor Ghabrial and Dr Arain - that in 2012 Ms Northcote’s condition had deteriorated when compared with her condition prior to her employment with Telstra. I note that between 2005 and 2010 she does not appear to have experienced symptoms associated with her lower back. I prefer the above evidence to that of Dr Maxwell who said that Ms Northcote has no pathology affecting her lumbar spine, who said that in his opinion the radiological investigations were “over-interpreted”, and who suggested that Ms Northcote’s back pain is purely somatic and a manifestation of psychological stress.
However, I am not satisfied that the evidence establishes that the deterioration of Ms Northcote’s was caused by “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at [39] (per Gleeson CJ and Kirby J)) which would lead me to conclude that there was a frank injury.
Ms Northcote’s problems with the chairs arose over the course of over 18 months. Given Dr Wallace’s evidence that Ms Northcote had pre-existing degenerative changes in her lumbar spine, albeit that the December 2002 injury may have contributed to this, it seems likely that what occurred as a result of her use of the ergonomically unsuitable chairs was the aggravation of a disease. Thus, while Ms Northcote may have suffered a musculoligamentous strain over the period mid-2011 to about March 2012, as diagnosed by Dr Wallace, I note he also diagnoses an aggravation of the degenerative condition of her lumbar spine. He said the history of Ms Northcote’s condition and the symptoms she described indicate that her condition is related to the nature and conditions of her work. Professor Ghabrial’s reports dated 2 May 2012 and 3 September 2012 appear to be in accord with this. In his reports dated 6 May 2013, Dr Wallace also states that Ms Northcote’s lumbar spinal condition has now stabilised.
The relevant question for the Tribunal is whether the aggravation of the condition of Ms Northcote’s spine is compensable under the SRC Act. Section 5B(1) requires that to satisfy the definition of ‘disease’, an aggravation of, relevantly, an ‘ailment’ must have been contributed to, to a significant degree by the employee’s employment. Section 5B(3) provides that “significant degree means a degree that is substantially more than material” and s 5B(2) sets out a number of matters that may be taken into account in making such a determination. These include (a) the duration of the employment, (b) the nature of, and particular task involved in, the employment, and (c) any predisposition of the employee to the ailment or aggravation.
Ms Northcote’s evidence is that she suffered back pain in late 2010 as a result of the use of ergonomically unsuitable chairs, having been asymptomatic since 2005. The evidence of Telstra’s three lay witnesses - Ms Northcote’s Team Managers – supports the fact that she complained about suffering back pain as a result of uncomfortable chairs and, while she did not consult Dr Arain about this until 8 June 2011, I am not satisfied that this undermines her evidence. It is well-known that individuals do not always seek medical advice about particular symptoms and the evidence concerning her complaints to her Team Managers indicates a series of complaints to different individuals over a significant period. I also note Ms Northcote’s evidence that she tried to address her back problem by attending a gym to strengthen her back muscles.
In terms of the matters that may be taken into account under s 5B(2), I note that Ms Northcote had been employed in the Telstra Call Centre since 2007 undertaking sedentary Call Centre work using a telephone and a computer, and the evidence indicating that she has a degenerative condition of the lumbar spine. In my view, it is broadly accepted that where employees undertake work that is principally sedentary in nature, employers have a responsibility to ensure that an employee’s work station and chair are suited to the employee’s needs. I accept that Ms Northcote’s Team Managers were, in Mr Snell’s words, well-meaning people who were trying to do their best. In this particular instance, their best did not, however, lead to a resolution of Ms Northcote’s problem within a reasonable time frame: it took approximately 18 months for an ergonomical assessment of Ms Northcote to be undertaken and for her to be provided with a suitable chair. I am satisfied that the lay evidence and the weight of the medical evidence supports a finding that her employment made a significant contribution to the aggravation of her condition within the meaning of s 5B(3) of the SRC Act.
In conclusion, I am satisfied that Ms Northcote’s suffered an aggravation of an ailment that was contributed to, to a significant degree, by her employment by Telstra. Thus, she suffered an ‘injury’ within the meaning of s 5A of the SRC Act, which, the evidence indicates, resulted in her being incapacitated for work. Telstra is therefore liable to pay compensation to Ms Northcote pursuant to s 14(1) of the Act.
DECISION
The decision under review is set aside and a decision substituted that Telstra is liable to pay compensation to Ms Northcote pursuant to s 14(1) of the SRC Act. Pursuant to s 67(8) of the Act, the Tribunal orders that the Respondent pay the Applicant’s costs as agreed or assessed.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. ............................[SGD].....................................
Associate
Dated 23 October 2013
Date(s) of hearing 2- 4 October 2013 Date final submissions received 4 October 2014 Counsel for the Applicant L Grey Solicitors for the Applicant Carroll & O'Dea Counsel for the Respondent M Snell Solicitors for the Respondent Curwoods Lawyers
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