Peter Miller and Comcare
[2012] AATA 715
•16 October 2012
[2012] AATA 715
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2010/3923 |
| Re | Peter Miller |
| APPLICANT | |
| And | Comcare |
| RESPONDENT |
DECISION
| Tribunal | The Hon R J Groom AO (Deputy President) |
| Date | 16 October 2012 |
| Place | Hobart |
The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) The respondent is liable to pay compensation to the applicant on and from 20 November 2009 in accordance with the provisions of the Act in respect of an injury, namely an aggravation of cervical spondylosis, suffered by the applicant on that date.
(b) The amount of compensation is to be assessed.
[Sgd Hon R J Groom]
Deputy President
COMPENSATION – call centre operator – pre-existing degenerative cervical spondylosis – episode of severe pain – whether work contributed to aggravation of cervical spondylosis to a significant degree – meaning of “aggravation” – meaning of “significant degree” – decision set aside
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 5B(1),(2),(3), 7(4), 14(1), 67
Re Smith and Comcare (1995) 39 ALD 715
Tippett and Australian Postal Corporation (1998) 27 AAR 40
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 624
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Wiegand v Comcare (2002) 72 ALD 795
Comcare v Sahu Khan [2007] FCA 15
Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
INTRODUCTION
This is a review of the applicant’s workers’ compensation claim arising from an alleged work caused aggravation of his pre-existing cervical spondylosis. That aggravation is said to have occurred on 20 November 2009.
The applicant’s relevant workers’ compensation claim made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) was dated 18 December 2009 and was received by his employer, Centrelink, on 22 December 2009.
The claim was rejected by a Delegate of Comcare on 6 May 2010. Mr Miller then sought a reconsideration of the original determination. On 28 July 2010 another Delegate of Comcare affirmed that determination.
On 12 September 2010 the applicant applied to this Tribunal under section 64 of the Act for a review of that reconsideration decision.
The hearing of this review application was held in Launceston on 21, 22, 23, 24 and 25 May 2012 and in Hobart on 20 June 2012. Written submissions were made on behalf of the applicant on 28 June and 18 July 2012 and on the respondent’s behalf on 11 July 2012. Further oral submissions were heard by telephone on 17 August 2012.
Six witnesses gave oral evidence at the hearing. They included the applicant and two employees of Centrelink Mr Michael Hair and Ms Jennifer Bailey. Also three medical practitioners gave oral evidence. They were Dr Peter Davies, Dr Andreas Ernst and Dr Douglas Haynes.
A large number of documentary exhibits were tendered by the parties including the “T Documents” lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
THE LEGISLATION
It is not in dispute in these proceedings that at all relevant times the applicant was an “employee” within the meaning of the Act.
Under the Act the employer is liable to pay compensation in respect of an “injury” suffered by an employee if the injury results in “… death, incapacity for work or impairment …” (See section 14(1)).
In section 5A of the Act “injury” is relevantly defined as follows:
“Injury” means:
(a) a disease suffered by an employee; …”
In section 5B “disease” is given the following meaning:
(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”.
It is agreed by the parties that the applicant’s claim is for an aggravation of a pre-existing ailment namely cervical spondylosis.
In section 4(1) of the Act “aggravation” and “ailment” are defined as follows:
“Aggravation includes acceleration or recurrence”.
“Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 7(4) of the Act states:
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first”.
THE ISSUES
The principal issues to be determined by this Tribunal are:
(a) Whether on 20 November 2009 the applicant suffered an aggravation of his pre-existing ailment namely cervical spondylosis.
(b) Whether any such aggravation was “contributed to a significant degree …” by Mr Miller’s employment by Centrelink.
BACKGROUND
The applicant was born in 1952 and is now aged 59 years. He grew up in Launceston and left school after completing Year 12. He is married with two adult children.
For a period of some 21 years he worked with the ANZ Bank and later in various businesses including a period of some two years working at a Westpac Call Centre.
The applicant has been employed as a call centre operator at the Centrelink Call Centre in Launceston since 19 March 2001. Mr Miller specialises in retirement and disability services. Initially he was a Customer Service Advisor (CSA) but since some time prior to October 2007 he had also undertaken Technical Support Officer (TSO) and Quality Checker (QOL) roles at the call centre. Mr Miller continued to undertake those additional roles until the alleged aggravation in November 2009. In January 2010 it was decided that he should not continue in the CSO and QOL roles.
The Tribunal accepts as accurate the following explanation of Mr Miller’s various roles as provided by Ms Jennifer Bailey in her witness statement of 4 May 2012:
“2. Mr Miller is employed as a customer service advisor (CSA). This involves taking calls from customers and if necessary, accessing the customer file and making amendments or updating the file on the computer. To do this involves the use of a keyboard and a mouse. Mr Miller also has access to the dragon voice activated software which means that his use of the keyboard is minimal depending on how often he chooses to use the voice activated software. With this software the person speaks the command for the work to be carried out and does not need to type in the comments they wish to make on the customer record.
3. There are certain programs on the computer which help to minimise keying required to complete work in updating customer files. One of those programs is called single user work space (SUW). SUW is designed to automatically assist the operator by collecting required data from the relevant customer file screens by itself upon the customer service advisor launching a work flow or macro rather than the CSA having to manually navigate numerous screens to collect the information. SUW can automatically put the required information into a document on the customer file rather than the CSA manually typing a document on the file. Dragon voice activated software is compatible with SUW which means that typing any additional information into a document on the customer file can be done by using the voice activated software rather than manually typing in the information.
4. Work flows and macros are similar programs to each other and allow the user to select from a menu the type of update they are needing to make on a customer file. The work flows and macros include the most common updates staff may need to make on a customer file. On each work flow or macro the CSA is able to pick from several choices the closest fit to the customer circumstances by selecting from a drop down box menu or clicking a radio button next to the appropriate choice they wish to make. Once the CSA has selected the appropriate choices relevant to the update they click continue and the work flow or macro then navigates to all the required relevant screens in the customer file, inputs the information the CSA has selected to have updated and continues to the end of the update. The CSA then has an option to type extra details into the document the work flow or macro has created on the computer file or to click on complete which instructs the work flow or macro to finish the activity. If further information is required to be added following this Mr Miller can use dragon to add extra details into the document and at the end of that he clicks 'complete' which instructs the work flow or macro to finish the activity. Prior to work flows or macros being available updates required a greater amount of keying and typing, manually typing the name or acronym of each customer screen you wished to go to, navigating manually on that screen to the field to be updated, typing the updated information in the field and manually progressing in this way until all required customer file screens had the necessary updates made on them. SUW reduces the need for manually navigating to several screens to gather information as several SUW screens gather and present the CSA the information from several relevant screens in the one view meaning much more relevant information is available on one screen. This reduces the need to navigate to many screens to gather the information required. Every employee has the ability to access screens manually if they choose to but this is discouraged as SUW was introduced as a technically superior user interface with our database. Dragon can also be trained by the CSA to navigate through screens by voice command, thereby minimising further keystrokes.
5. As well as being as CSA, Mr Miller undertook the role of a Technical Support Officer and a Quality Checker until 2009. Any work carried out as a Technical Support Officer (TSO) or a Quality Checker (QOL) was in place of and not in addition to the CSA work. The TSO and QOL work would have been interspersed throughout the days work for the CSA's. As a TSO you have gained more knowledge of the programs and the benefits and pensions being paid to customers and are in a position to help CSAs that are less experienced. As a TSO you would take a call not from a customer but from a CSA who had a query and did not know how to find the information required to answer the customer query. In most instances you are not completing the work for the CSA, merely guiding them through the process. As a QOL checker, you do not take calls from the customer or other CSA's but go to the system and check the records which have been updated by other CSA's. If no error has been made the QOL checker does not have to do anything further. It is a short series of mouse clicks only. In the event that an error has been made the QOL checker would return the activity/record to the CSA who completed it, with a note outlining the error made and how it should be fixed. Dragon can be used for this note function”.
Mr Miller is not a touch typist. He had been using the Dragon software for a number of years. However as he explained in some detail in his oral evidence (Transcript pages 26 to 31) he found this software very difficult to train and use effectively, particularly in association with SUW. He said he “mostly” typed rather than give voice commands to Dragon (Page 31).
The evidence is that the applicant first experienced serious neck pain as long ago as 1998. He acknowledged in his oral evidence that at that time he consulted his medical practitioner about “… a neck pain”. (Transcript page 133)
Dr Haynes examined prior x-rays and MRI and CT scans and at page 4 of his medical report of 21 September 2011 stated as follows:
“The following films were viewed:
X-ray Cervical Spine (12 May 2003): The films showed evidence of degenerative change with narrowing particularly at the C5/6 level.
MRI Scan Cervical Spine (16 November 2004): Degenerative change at various levels noted.
CT Scan Cervical Spine (8 December 2009): The report indicates diffuse cervical spondylosis with marked foraminal stenosis at C3/4, C5/6 and C6/7.
MRI Scan Cervical Spine (11 November 2010): The report indicates moderately severe multilevel cervical spondylosis with mild to moderate foraminal stenosis at multiple levels. There had been deterioration since the examination of 2004”.
It is not disputed that Mr Miller has been suffering from cervical spondylosis for many years. It is likely that this condition has been present since at least the beginning of 2002. In February 2002 he complained of neck and right shoulder pain which became worse at the end of the day.
On two previous occasions Comcare has accepted liability for an aggravation of Mr Miller’s cervical spondylosis.
The first of those aggravations occurred in 2002. It was believed to have been caused by new glasses purchased by Mr Miller. The graduated lenses of the glasses required a change in posture to enable him to view the screen. Working in this changed position caused the aggravation.
On 28 April 2006 Mr Miller was involved in a serious motor vehicle accident in Victoria. He was a passenger seated in the back seat of the vehicle. Mr Miller was taken to hospital by ambulance. He injured his ribs and sternum. The doctors treating him said that he may also have suffered a whip lash injury. (Transcript page 138)
A further aggravation occurred in December 2007. The cause of this was considered to be a change in his work station which had occurred whilst he was away. Appropriate adjustments were made in 2008 to the work station after professional ergonomic advice had been obtained. The symptoms of pain ceased after the necessary adjustments were carried out.
Following his 2007/2008 workers’ compensation claim and the adjustments made to his work station as well as a period of rehabilitation Mr Miller’s symptoms appear to have reduced in their severity.
It is noted however that in a report dated 15 June 2009 (T19) Dr Tim Hwang, Consultant Occupational Physician, when advising on Mr Miller’s capacity to cope with an increase in his hours by nine minutes daily said:
“He describes that he continues to have a degree of persisting pain in the right cervical region which is present most of the time. Sometimes there will be a hot sensation in this area. At times there is pain in the right shoulder, elbow and forearm area. The pain in this area is variable however, it is present at some stage every day. It is worse during the week in association with work. It gradually increases through the week and he finds that it is much more significant towards the end of the week”. (Page 3)
The evidence indicates however that Mr Miller had no further periods of work incapacity directly caused by his cervical spine problems until the critical episode of serious pain in November 2009.
Mr Miller’s official leave records (R8) confirm that he did not take leave during 2009 and prior to November 20 that year, for any problems involving his cervical spine. He did however take brief periods of leave in that year for various other medical conditions including “headaches and sight problems”, “to see doctor about sleep deprivation”, “pulled something in chest”, “sore throat”, “80% chance of flu” and “gastro”.
Centrelink had, as a responsible employer, taken a number of steps to reduce the risk of further aggravation of Mr Miller’s cervical spondylosis. There was expert monitoring of the ergonomic suitability of his work station. He was also permitted 10 minute breaks four times a day instead of a five minute break normally allowed for other employees. Because of his vulnerability to further aggravation Mr Miller was especially trained to use Dragon software in order to reduce the number of key strokes he had to make to complete his allotted tasks. As mentioned above he had great difficulty using this software. The steps taken by Centrelink indicate that it was aware of the risk that Mr Miller might suffer further neck problems unless preventative action was implemented.
THE EPISODE OF PAIN SUFFERED ON 20 NOVEMBER 2009
On 20 November 2009 Mr Miller commenced duties a short time prior to 8.00 am and ceased work at approximately 8.30 am. He stopped work because of the pain he was then suffering.
Mr Miller’s “daily summary” for 20 November 2009 was tendered in evidence (R7). It confirms that “start time” was 7.50 am and that “open time” was “8.00 am”. He ceased taking calls because of an “authorised medical” at “8.28.20 am”. “End time” was “8.59.22 am”.
The “daily summary” confirms that Mr Miller took three “CSA” calls on the morning of 20 November 2009. Two calls were for “disability sickness and carers” and one call was a “seniors” enquiry. No TSO or QOL calls were taken by Mr Miller on that day.
Mr Miller went to see his general practitioner Dr Davies at about 12.30 pm on 20 November. Dr Davies notes of that consultation are as follows:
“Friday November 20 2009 12:34:16
Dr Peter Davies
Pain in left arm and left side of neck. Can’t sleep at the moment.
Using left hand for mouse.
Reason for contact:
Left Neck pain with Radiculopathy
Actions:
Prescription: Lyrica capsule 75mg 1 b.d.
Prescriptions printed:
Lyrica Capsule 75 mg 1. B.d.
Has features of RSD with altered skin colour and sensation and sweating today. Letter created – re Work Certificate. (T23 page 77)
Mr Miller said in his evidence in chief:
“I came to work on the 20th … I had a couple of sleepless nights prior to that … and, probably an hour after being at work, I just had a lot of pain in my neck … and on the shoulder and arm …” (Transcript page 9)
Earlier Mr Miller explained:
“… the left hand side is where 2009 happened. It was on the right hand side prior to that”. (Transcript page 9)
During cross examination Mr Miller was asked:
“You’ve given evidence … that you had been sore for a few days prior to this 20 November date?
Mr Miller:
“Yes”.
“I thought I had slept on – my arm”
Ms Taglieri:
And you’re pointing to your left arm?”
Mr Miller:
“Correct”
Mr Miller was asked:
“And when you started work you already had pain, didn’t you?”
Mr Miller:
“No I didn’t, that came on very sudden …” (Transcript page 149)
He later said:
“I wouldn’t have gone to work if I had had pain”. (Transcript page 215)
Mr Miller said it was when he was taking the third call of the morning that the pain suddenly commenced. (Transcript page 217)
When asked why he believed the problem was caused by his work he said:
“Because I don’t know of any other reason …” (Transcript page 217)
When asked by Ms Taglieri:
“When you saw Dr Davies on 30 November 2009 you did not tell him that there was something at work that brought your pain on, did you?”
Mr Miller:
“I didn’t tell him that I had a definite idea of what bought the pain on, no, I didn’t”. (Transcript page 147)
Mr Hair recorded the events of 20 November in a document titled “Manager’s Statement for Mr Peter Miller” (T25). The statement was compiled from contemporaneous notes. It states as follows:
“20/11/09 Mr Miller asked me (Mr Hair) if he would be able to access some alternative duties as he was experiencing severe pain. I asked where this pain was and what had caused it. Mr Miller explained that the pain was from his shoulder down to his hand and he showed me his hands, I was unable to see any difference between one or the other. I asked Mr Miller if he may have slept on it awkwardly or pinched a nerve somehow (given that it’s the opposite side to which he normally experiences pain) and he said that it wasn’t from that as he has been unable to sleep for the last few nights due to the pain. Mr Miller had not complained about this new pain before today. I asked Mr Miller to see Ms Dakin for some alternative duties. Approx 10 minutes later, Ms Dakin advised me that Mr Miller had discussed alternative duties with her and also showed her his hands. Ms Dakin stated that she too could not see anything different with his hands. She said that Mr Miller would need to go home if he was not well enough to perform his normal duties as there were no alternative duties available. Ms Dakin suggested that Mr Miller attend his GP”.
In the same document Mr Hair provided the following account for 11 December 2009:
“11/12/09 Mr Miller came in today to advise that his doctor has provided medical certificates stating that Mr Miller is unfit for work until 24/12/09. I (Mr Hair) discussed other alternative duties that may be available as Mr Miller said his GP advised him not to be stationary for any length of time and Mr Miller explained that he isn’t able to do any work duties due to the medication he is taking for the pain. Mr Miller explained that he will need to re-open the compensation claim that he had in the past. Mr Miller provided me with two medical certificates that were standard (non-comp). Personal leave with evidence was coded for Mr Miller until 24/12/09”.
Mr Miller said that on 7 December 2009 he had been thinking about what had caused the pain and he said he asked Mr Hair whether he should be taken off TSO and QOL duties. Mr Miller said Mr Hair responded:
“We’ve already considered that Peter and you haven’t got the tags to do that” (Transcript page 154).
Mr Hair denies that Mr Miller’s account of that discussion is accurate. He said in evidence that Mr Miller had indicated that “he felt the TSO and QOL work may be exacerbating his injury”. Mr Hair said he later spoke with Mr Oliver the manager of the Call Centre and “we decided to remove the TSO and QOL skill tags”. (Transcript page 314)
The Tribunal finds Mr Hair’s account to be the more plausible. In the circumstances it is unlikely that the skill tags would have been removed without any prior discussion with Mr Miller.
Mr Miller completed and signed a workers’ compensation claim form on 18 December 2009.
WAS THERE ANY INCREASE IN THE AMOUNT OR INTENSITY OF MR MILLER’S WORK IN THE PERIOD PRIOR TO 20 NOVEMBER 2009?
In answer to question 26 in the Workers’ Compensation Claim Form (T24 page 82) which asked “What actually injured you …?” Mr Miller stated:
“The level of keyboarding currently required by types of work being undertaken recently. Work requirements have intensified significantly over last year due to changes implemented”.
At page 8 of Mr Grey’s written submission of 28 June 2012 he explained the applicant’s case in the following terms:
“The applicant’s case is not dependent upon being able to establish that he has done any more hours than he did in the past. It is accepted that he has not. The claim is that the intensity of his work increased:
A. Because of a greater need for that work during that period.
B. His willingness/enthusiasm to do the work.
C. Coupled with a subtle pressure placed upon him to perform at the top of the standard set by Centrelink”.
The respondent submits that there was no increase in TSO or QOL work in the period leading up to 20 November 2009 nor any increase in the intensity of Mr Miller’s duties at the Centrelink Call Centre. The respondent contends that there is therefore no evidence establishing a sufficient link between Mr Miller’s employment by Centrelink and the relevant episode of pain.
In 2011 Dr Ernst asked Mr Miller to calculate any increase in the number of keystrokes he did prior to the episode of pain “… because … there is a correlation between the number of keystrokes and the amount of neck flexion” (Transcript page 277). Mr Miller produced a substantial quantity of computer records and tables and graphs. (Exhibits A2 to A15)
The sole objective in obtaining all of these computer records and in preparing the tables and graphs was obviously to seek to find evidence to support Mr Miller’s claim that the episode of pain on 20 November 2009 and the health problems that followed were caused or contributed to by an increase in keystrokes and mouse clicks (Mr Miller refers to both actions simply as “keystrokes”. The Tribunal will also use the word “keystrokes” to include both) in the period leading up to that time.
It is interesting to note that Table L (Exhibit A13 page 99) indicates a remarkably steady increase in keystrokes on both a daily and monthly basis leading up to the 9 November 2009. This was the last date recorded in that table.
The graph at page 100 of Exhibit A13 again highlights a dramatic increase in keystrokes from March 2009 with a continuing steady increase to 1 November 2009.
After examining the table at page 99 and the graphs at pages 100 and 101 (Exhibit A13) and after considering the oral and other evidence before the Tribunal it finds that the information in the Table and Graphs is unreliable. It cannot be accepted as accurately reflecting the true workload experienced by Mr Miller in the period leading up to the episode of pain on 20 November 2009 including the number of keystrokes he made in that period. In particular the Tribunal finds as follows:
· The keystroke figures in the table at page 99 (Exhibit A13) cannot be accepted as accurate as they are based upon exaggerated average keystone figures per TSO and QOL activity.
· The use of the example at page 38 (Exhibit A13) as the basis for calculating TSO activity keystrokes is misleading. This is evidence of the work of another TSO, not Mr Miller. It is reasonable to conclude on the evidence that this is a more detailed response to a TSO request than the average. The actual calculation of the number of keystrokes in the sample is also almost certainly wrong. Mr Miller conceded that there was a 10% error in his calculation (see page 165 of the Transcript). There was no evidence before the Tribunal of samples of Mr Miller’s own TSO responses.
· The Tribunal accepts that the number of keystrokes involved in TSO work will vary according to the particular request and the individual approach adopted by the relevant TSO operator. However it concludes that the average TSO keystrokes (the applicant gave various estimates from 100 to 700) stated by Mr Miller in his evidence is an exaggerated figure. Mr Miller estimated the average number of keystrokes for ordinary CSA work as 75. The Tribunal finds that the average number of keystrokes made by Mr Miller in each TSO activity is closer to 75 than his higher estimates. Similarly the estimates for QOL activities are also overstated. (Again, Mr Miller’s estimates vary from 100 to 500) A high percentage of QOL work requires few keystrokes, if any, as they are deemed correct and “released”. It accepts as accurate Ms Bailey’s statement in her witness statement of 4 May 2012 (paragraph 6) when she said:
“TSO and QOL work in my experience are not more heavily key strokes/mouse work intensive than CSA work. There are slightly different ratios of mousing and typing required from one customer call to the next in the same way as there is a slightly different ratio of mousing and keying in one TSO call and the next and one QOL checking of an activity and the next. The ratios change slightly with every piece of work regardless of whether it is a piece of work associated with a customer call, TSO or QOL checking an activity”.
The evidence establishes to the Tribunal’s satisfaction that the applicant has also overstated the number of QOL and TSO activities he was engaged in between April and December 2009. The Tribunal accepts as accurate Annexure A to the respondent’s written submission of 11 July 2012. That table shows that there were a total of 639 QOL and TSO activities performed by Mr Miller in that period and not the 972 activities he had claimed.
The respondent submits that there are arithmetical errors in the table on page 99 (Exhibit A13) (See Annexure ‘C’ to the respondent’s written submission of 11 July 2012). However based on a 20 day month rather than the days actually worked the totals calculated by Mr Miller in his table appear reasonably accurate. Nevertheless the totals are misleading as he did not work the full 20 days in many of the months in the relevant period. The figures therefore portray an exaggerated outcome.
Taking all of the evidence into account including Mr Miller’s explanations and concessions the Tribunal finds that the table at page 99 is unreliable and overstates the number of keystrokes made by Mr Miller in the period leading up to 20 November 2009.
Indeed it is not possible to accurately calculate the precise number of keystrokes made by Mr Miller in the relevant period. As Mr Hair said at paragraph 10 of his witness statement:
“There are no reports available on the number of keystrokes that Mr Miller does in his job. The reports titled Settlement Periods Summary Individual Reports show the time an employee chooses to log-in to a software product called Soft Phone. It is a staff member choosing to log-in to be ready for a customer call while undertaking customer call or associated work after finishing a call. This means that the employee has indicated to the software that he is ready to take a customer call. From this time, during the customers call and after the call this shows how long the employee is logged in. The data can be broken down on a daily report to show total time in customer talking mode or in wrap (first 10 minutes after the end of a call) mode or customer after call working (ACW) mode. However, during this time the staff member is not even necessarily at their desk. They may stay in one of the Softphone modes described and actually move away from their desk. Equally the reports do not indicate that the staff member is involved in a task, or is typing or even if they are talking to a customer just that the phone line is either open or closed and that they should be at their desk, they may not be. The Settlement Period Summary Individual reports show the average time over a four week period that the staff member spent with their phone line open, they are usually speaking with a customer, providing advice, making some update etc and the average time spent over the four week period with the phone line closed and possibly researching information, making customer updates, sending customer faxes, asking for assistance from a senior staff member. This does not record the actual length of each call individualised nor the tasks or typing or mousing involved nor whether the staff member is even at their desk”.
The Tribunal finds both Ms Bailey and Mr Hair to be persuasive witnesses. They are both in responsible positions with Centrelink. Ms Bailey has been a Team Leader at the Launceston Call Centre and is presently Mr Miller’s Team Leader and has been in that position since January 2011. Mr Hair was the Team Leader for Mr Miller at the Launceston Call Centre for some 18 months. He is currently Business Analyst and Assistant Director based in Canberra. Both Ms Bailey and Mr Hair have a direct personal knowledge of CSO, TSO and QOL work of the type undertaken by Mr Miller. They gave their evidence to the Tribunal in a very frank and honest manner.
Both Ms Bailey and Mr Hair agreed that the work involved in individual tasks will naturally vary depending upon the circumstances. They expressed the view, in effect, that on average the number of keystrokes required in CSA work was much the same as for TSO and QOL activities.
During oral evidence Ms Bailey was asked:
Ms Taglieri:
“Now, evidence has been given at the hearing that the keying and mousing involved in quality checking work is more intensive and there are more keystrokes and mouse strokes in QOL work that ordinary CSA work; do you agree or disagree?”
Ms Bailey:
“I disagree”. (Transcript page 371)
And later:
Ms Taglieri:
“In your experience, do you consider the TSO activity as being or more or less key intensive than CSO work: -- As an average”
Ms Bailey:
“I would see no difference”. (Transcript page 375)
Mr Hair was asked by Ms Taglieri for the respondent:
“Now, Mr Hare, at paragraph 6 of your statement you say:
Task analysis indicates the increase in TSO and quality checking work did not require Mr Miller to use the computer to a greater extent that he would have had he continued to carry out his previous duties”.
Mr Hair:
“Yes, that’s correct”. (Transcript page 308)
WAS THE APPLICANT’S WORKSTATION INCORRECTLY SET UP?
As mentioned above by letter dated 17 May 2012 the applicant’s solicitor raised a new allegation that the applicant’s workstation had been changed since that date. In his written submission of 28 June 2012 the applicant’s solicitors suggested that the setup of the screen is 10cm too high and this may be a “contributing factor to the applicant’s symptoms”. (Page 15)
Mr Grey for the applicant relied on the information in two exhibits namely A1 and A24. A1 is the “Centrelink Call Workstation Assessment Check List” which is the actual assessment of Mr Miller’s work station undertaken in September 2008. The other document is general advice provided by some unknown author to advise “Centrelink stakeholders” on ways in which various stress injuries might be avoided.
The material before the Tribunal establishes that Mr Miller’s workstation was regularly checked. Mr Miller said in his oral evidence:
“This document (A1) was provided when I had reviews of my workstation”. (Transcript page 25)
He added:
“My workstation was checked on a regular basis and has been since against this document here”. (Transcript page 25)
Onb 17 May 2012, just prior to the hearing on 21 May 2012, Mr Miller on his own initiative downloaded the document A24.
There is no cogent evidence formally before the Tribunal explaining exactly how the 10cm measurement was arrived at. It would obviously have been of more value if a recognised independent expert had undertaken a proper assessment at the relevant time of Mr Miller’s workstation in order to determine if the setup was correct or otherwise. If there has been a recent change it is not clear when such a change occurred. No satisfactory explanations were provided in oral evidence by Mr Miller or by Dr Davies sufficient to satisfy the Tribunal of the veracity of this relatively recent claim.
The Tribunal is satisfied on the evidence that Mr Miller’s workstation was professionally assessed and adjusted to the correct position in 2008 and has been regularly checked since then. It finds that there is insufficient persuasive evidence before the Tribunal to satisfy it that the setup of the screen was “10 cm too high” as the relevant time in 2009.
ARE THERE OTHER POSSIBLE NON-WORK RELATED CAUSES OF THE EPISODE OF PAIN ON 20 NOVEMBER 2009?
A number of activities and events have been raised by the respondent as factors which may have caused or contributed to the episode of pain on and from 20 November 2009 or may be otherwise relevant.
Mr Miller renovated a car, assisted in the construction of a house and shed, did regular gardening, played 8 ball and snooker and, of course, was involved in a motor vehicle accident in 2006.
There is no evidence of any relevant symptoms arising from these activities and events and any clear link between them and the episode of pain in November 2009. They are not proximate in time to the pain episode except, perhaps, the gardening and Mr Miller playing 8 ball and snooker. Mr Miller’s evidence is that he took great care when gardening and did not do work above shoulder height. There is no cogent evidence that his limited sporting pursuits may have aggravated his spinal condition or had any link to the particular aggravation in late 2009 which is the basis for Mr Miller’s current claim.
THE MEDICAL EVIDENCE
DR ERNST
Dr Ernst has had considerable experience in occupational medicine. Over the years he has been engaged by a number of major Tasmanian employers. He has assessed the medical conditions suffered by employees and also “exposures ranging from respiratory irritants to mechanical forces”. More specifically Dr Ernst has specialised in musculoskeletal injuries.
He first saw Mr Miller in 2005. Mr Miller told him then that in about 2002 he developed headaches and pain in the back of his head. There had been no specific trauma. The symptoms disappeared after he took three weeks annual leave.
Dr Ernst said in his medical report of 12 August 2011 when speaking about the 2002 aggravation that:
“Mr Miller attributes his symptoms to work in the call centre, more specifically repetitive movements. He also felt that his age may be a contributing factor”. (Page 2)
After that initial assessment Dr Ernst confirmed the existence of cervical spondylosis. However he was not satisfied that Mr Miller’s symptoms were caused by that particular condition. Dr Ernst concluded that the pain was caused by “referred sensation probably from soft tissue structures”. (Page 4)
Dr Ernst recommended injection treatment and a program of rehabilitation. He also recommended that Mr Miller be allowed to use Dragon Voice Recognition technology “… which would significantly reduce the amount of neck flexion at work”. (Page 4)
In subsequent reviews later in 2005 Dr Ernst recognised that there were not only physical issues in the workplace but also factors causing mental stress. Dr Ernst said “… he could see the point that people can carry stress literally on their shoulders”.
Dr Ernst saw Mr Miller on 28 July 2011. He said Mr Miller told him that he had been “… stable without symptoms until 2008”. (Page 6) His work station had been rearranged after he had been working for five weeks in Adelaide. This was after a total office refurbishment at his workplace in Launceston. He then suffered a relapse of symptoms. It took him six months to fully recover.
At page 7 of his medical report Dr Ernst reported as follows:
“As far as work is concerned, Mr Miller advised that the percentage of typing time increased substantially during 2009. Since December and his sudden deterioration, changes were undertaken reducing the need for typing substantially, allowing him to perform tasks which require primarily talking to customers, and which provide him with improved pace control. Since then, symptom levels improved to 6/10. Mr Miller described a positive temporal relationship between work and symptom severity. Symptoms improve when he is not at work. At best, his symptoms improved to 3/10 after 1 to 2 weeks away from work e.g. annual leave. When he returns, symptoms return to an average of 6/10 within one week”.
Dr Ernst placed some reliance in his report on Mr Miller’s claim of an increase in keystrokes during 2009 and actually included a copy of Mr Miller’s graph (Exhibit A13 page 100) showing a dramatic increase in keystrokes particularly in the period March to October 2009.
Dr Ernst advanced the following hypothesis to explain the link between Mr Miller’s condition and his work (Page 11):
“1. There was a gradual, subtle increase of typing starting around April 2009. The gradual nature of load increased led to the sudden deterioration in December 2009, at least being a major contributor of it.
2. Factors for the increased amount of typing ie loadings to the musculoskeletal system included more work with respect to QOL, TSO and decommissioning.
3. Improvement of symptoms from 10/10 to 6/10 were associated with a reduction of typing suggesting a positive temporal relationship.
4. Improvement of symptoms from 6/10 to 3/10 were associated with cessation of work supporting a positive temporal relationship”.
He then added:
“The above is in my opinion enough evidence to not only suggest a contribution by work to Mr Miller’s predicament, but also enough evidence to conclude that the contribution was significant. Whilst it is likely that there are underlying conditions, possibly cervical spondylosis, possibly thoracic outlet syndrome or otherwise, work has been a significant aggravator. In this context, I hypothesise that Mr Miller’s symptom status without work aggravation would be 3/10 or less. This raises serious questions with regards to future employability, unless work arrangement can be optimised or a condition can be diagnosed which is treatable”.
Dr Ernst was asked by Mr Grey:
“Now, if you become satisfied that there was no discernable increase in the keystrokes over those periods of time, would that debunk your hypothesis that his work station – his work – the type of work that he does is the cause of his neck pain?
Dr Ernst:
“… Whether I would call it debunk, but it would substantially weaken it”. (Transcript page 278)
Dr Ernst expressed the opinion that symptoms can increase “… as the work goes on”. He said it was common with musculoskeletal complaints that a person can be alright at the beginning of a week but can be much worse at the end of the working week. (Transcript page 283) He further said:
“… people say, “look I’m alright on my first day but, at the end of the week, I’m just buggered”. It’s common – common with musculoskeletal complaints”. (Transcript page 283)
Dr Ernst stressed the temporal relationship between work and Mr Miller’s symptoms. He said:
“There’s been a consistent, what’s called temporal relationship between symptoms and – and exposure. And so on a number of occasions for – or annual leave, on annual leave there has been improvement of symptoms. The introduction of the Dragon system led to an improvement of symptoms in 2005. And then we’ve had, you know, the decrease – a decrease of exposure improves and an increase of exposure deteriorates. I mean, that kind of temporal relationship has been throughout the case. And that’s why it’s not just a single number which – which is important to me. Must have a look at the bigger picture” (Transcript page 302).
He said:
“At the end of the day it’s neck flexion, that’s the bottom line. And so if – if, in fact, there was no change, as one extreme, if there was no change to neck flexion and repetition with or without Dragon or whatever then that would change. I mean, I would have to then revisit my opinion, yes”. (Transcript page 303)
And later:
Ms Taglieri:
“ … if there’s no change in the amount and frequency of neck flexion and looking up and down to the keyboard …. That would significantly erode the value of your opinion?
Dr Ernst:
“It would. If there’s no change whatsoever then it would significantly weaken that, yes. In other words, everything the same at work in terms of posture and neck movements and so forth”. (Transcript page 304)
Dr Ernst said it was significant that Mr Miller was not a touch typist. He agreed that he looked down to type which was “a flexion of his neck”. (Transcript page 274).
He also expressed the view that mentally challenging work is more likely to aggravate symptoms than simple work. Dr Ernst said that concentration, mental effort, “or let’s say stress even” can cause a person to lose control over good posture: you start slumping, your body goes into a position that is not favourable anymore”. (Transcript page 282).
Dr Ernst said that continuous exposure has “cumulative effects”. “When the body system is already sort of irritated … then your tolerance level decreases”. (Transcript page 283).
When asked about the use of Dragon between June and November 2009 Dr Ernst said:
“My understanding is that … the amount of keyboarding work increased and that a major factor for that was the – the decreased usage of the Dragon system”. (Transcript page 291)
Dr Ernst said constantly looking up and down “… can also lead to an aggravation of symptoms”. He said:
“So you’re going up and down and up and down and I would say that would happen more than a dozen times a minute. And so when you actually add that up, a minute, there are 60 minutes in the hour so, let’s say 10 times a minute, I mean, it doesn’t – you know, that’s quite a significant number of ups and downs. … it adds up over eight hours to quite – quite a large number of repetitions”. (Transcript page 293)
DR DAVIES
Dr Davies is a general practitioner practising at the Park View Medical Practice in Launceston. He has been Mr Miller’s general practitioner since 2007.
He agreed that Mr Miller was suffering from “long standing cervical spondylosis”. (Transcript page 232)
Dr Davies was asked whether a person whose work had gradually increased in intensity and they concentrated harder and harder and were holding themselves rigidly was more likely to suffer an exacerbation of symptoms. He answered “… highly likely to exacerbate symptoms”. (Transcript page 237)
In a letter to Comcare dated 16 February 2010 (T34) Dr Davies stated:
“At Peter’s request and in discussion with him the other day I am just confirming that his claim is for a recurrence of his approved Workers Compensation injury. He has been running down the path of trying to prove that he has aggravated his condition at work by the change in his job description. This is not the way this should be happening. This is a recurrence under the Workers Compensation Act which implies there is no new event, but rather this is an expected recurrence of symptoms based on the original claim. I trust this helps clarify”.
When giving evidence Dr Davies explained his opinion as follows:
“Recurrence means that there’s no known or – event that has increased the severity of the symptoms, but that the symptoms have arisen by themselves because of the underlying nature of the condition”. (Transcript page 243)
He later added:
“Clear cut aggravation is a new event; recurrence is no new event documented”. (Transcript page 243)
Dr Davies was asked:
“So is it fair to say that Mr Miller said to you – and this is the case from Day 1 – that this is what I do in the Call Centre and this is when I experience my pain so you accepted that that was a causal relationship?”
Dr Davies:
“Absolutely”. (Transcript page 248)
He was later asked:
“And you say there that work at the workstation has contributed somewhat?”
Dr Davies:
“Yes”. (Transcript page 249)
Dr Davies added:
“… As I’ve said, this seems to be a continuum of a story, in my opinion. And my letter to Comcare in January 2010 when this was fairly fresh in my mind would indicate that it is a continuum through that whole timeframe”. (Transcript page 250)
DR HAYNES
Dr Haynes is a Consultant Occupational Physician. He has been a Fellow of the Australian Faculty of Occupational and Environmental medicine since 1993.
Dr Haynes said that 90% of his practice is involved in providing opinions as a consultant and the remaining 10% of his time is spent as a treating physician.
The assessment of Mr Miller by Dr Haynes occurred on 16 September 2011 and he completed a detailed written report on 16 September 2011.
Dr Haynes said in his written report that an MRI scan carried out on Mr Miller on 11 November 2010 indicates “moderately severe multilevel cervical spondylosis …”.
He expressed the view that the cause of the cervical spondylosis is “… multifactorial and relates to genetic factors, ageing and whole of life activities”. (Page 5)
Dr Haynes reports (at page 2) that Mr Miller stated in November 2010 that the pain “became much worse on a particular day”. Reference to the year “2010” is obviously wrong. Regardless of how that error came about the mistake is of no significance as far as the Tribunal is concerned.
Dr Haynes said that in his opinion the pain episode in November 2009 was:
“… a symptomatic exacerbation of the underlying progressive cervical spondylosis”.
When asked whether his employment with Centrelink caused or contributed to the aggravation Dr Haynes stated:
“In my opinion there was no actual structural aggravation. I would take the view that his work duties may well have caused transient symptomatic exacerbation. I do not believe that his office based work duties would have caused structural aggravation of the spondylosis condition. I do not consider that his work duties with Centrelink caused or substantially aggravated the cervical spondylosis condition”. (Page 6)
Dr Haynes later advised that Mr Miller should “… avoid prolonged neck flexion and repeated neck movements”. (Page 7)
At page 8 of his report Dr Haynes expressed the following opinion:
“In my opinion Mr Miller’s work duties are likely to have caused transient symptomatic exacerbation of cervical spondylosis on a number of occasions. Such a symptomatic exacerbation should have resolved over a matter of days on each occasion. At this stage I do not believe that cervical spondylosis condition has been physically aggravated as a result of office based work duties with Centrelink. I believe that his current symptoms are entirely due to the natural progression of the degenerative condition”.
He also stated at page 8:
“I do not believe that current symptoms can be related in any way to any work incident occurring in 2008. As noted above, I believe that any symptomatic exacerbation which occurred on that occasion would have resolved over a number of days after ergonomic adjustment of his workstation”.
In his oral evidence Dr Haynes said he believed repeatedly looking down to the keyboard and then up to the screen would normally involve eye movements up and down rather than flexion of the neck. He emphasised that increased symptoms were caused by “prolonged neck flexion”.
Dr Haynes agreed in cross-examination that sitting at a desk flexing your neck “may cause transiently increased symptoms” but the “… aches and pains were resolved very rapidly”. (Transcript 20/6/12 page 16)
Mr Grey asked the following questions in cross-examination:
So, albeit the underlying condition of cervical spondylosis is not in any way related to his workplace activities, the pain that he complains of may very well be as a consequence of flexion in the workplace, particularly because he’s more vulnerable than another person with a pristine neck?”
Dr Haynes:
“Yes. I agree with that”.
Mr Grey:
Now, accept for the moment that Mr Miller has a history of having relief over the weekends, when on holidays, and then upon return to work the symptoms gradually increase, would that be an indication to you that it could be his posture is a factor which is causing those symptoms?”
Dr Haynes:
“Yes. I believe I’ve indicated that in my report”.
Mr Grey:
“And if he is not – if he doesn’t have a history of significant pain when he is at home, or when he is on holiday, that would also indicate that it is not activities outside the workplace that are exacerbating his cervical spondylosis and causing symptoms. Would you agree with that?”
Dr Haynes:
“Yes. That sounds reasonable”. (Transcript page 20)
Mr Miller’s duties were described to Dr Haynes including sitting at his desk, making customer’s calls and typing and also taking regular breaks. Dr Haynes agreed that those duties could cause “transient exacerbation”. (Transcript page 29)
He later said the “… work related component may – would last for a number of days”. (Transcript page 30)
Dr Haynes also stated that “all persons with severe cervical spondylosis may well experience increased symptoms without any identifiable precipitating event”. (Transcript page 31)
He added that work duties may have caused transient “pain” but not a structural aggravation of the spondylosis. (Transcript page 32)
OTHER MEDICAL REPORTS
There are several other medical reports in the T Documents, the earliest being a report by Dr Ian Payne of Health Services Australia dated 27 March 2003. All of those reports have been considered by the Tribunal. It considers that most critical to this case are the more recent opinions provided by Dr Ernst, Dr Haynes and Dr Davies.
THE LAW
Dr Haynes expressed the opinion that the increased symptoms experienced at the time resulted from an “… exacerbation of the underlying progressive cervical spondylosis”. (Page 6 of his written report of 21 September 2011)
In giving his oral evidence Dr Haynes said the episode of pain was an “exacerbation” rather than an “aggravation” because it “… does not meet my definition of aggravation which means a structural worsening”. (Transcript 20 June 2012 page 23)
But an episode of pain may, at law, constitute an aggravation of a pre-existing injury even though no structural or pathological change takes place. (See Re Smith and Comcare (1995) 39 ALD 715, Tippett and Australian Postal Corporation (1998) 27 AAR 40 and Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 624)
Finklestein J said in Tippett (Page 5):
“Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of … employment then the employee will have suffered a compensable injury … The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of … employment”.
The critical question is whether that aggravation “… was contributed to to a significant degree …” by Mr Miller’s work at Centrelink.
In the Federal Broom case (cited above) Wiendeyer J expressed the following helpful view (at pages 641):
“I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment ? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed”.
It is necessary for the Tribunal to comment on the meaning of the term “… to a significant degree” in section 5B of the Act.
Prior to the amendment to the Act which took effect on 13 April 2007 (well before the episode of pain in November 2009) the “evaluative threshold” in assessing work contribution was “material degree”. This was replaced by the higher threshold of “significant degree”. The legislature clearly expressed this contention by stating in the Act that “significant degree means a degree that is substantially more than material”.
This necessary degree of causal contribution must be established by evidence “on the balance of probabilities”. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court in discussing the 1971 Act said (at page 323):
“… the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal condition must be established on the probabilities and not left in the area of possibility or conjecture”.
The Tribunal must therefore be satisfied on the balance of probabilities that Mr Miller's employment did contribute to the aggravation "… to a significant degree".
Whether the contribution is sufficient to satisfy the test is a matter of fact and degree (See Comcare v Sahu Khan [2007] FCA 15 at paragraph 16 per Finn J):
The characteristics or conditions of Mr Miller's employment at Centrelink do not have to be the sole cause of the major cause of the aggravation. There can be a number of contributing factors. It is sufficient if the employment characteristics or conditions contributed "to a significant degree". (See Wiegand v Comcare (2002) 72 ALD 795).
It is clear on the evidence that the episode of pain occurred at work. However something more than a simple temporal connection between symptoms and work duties is necessary in order to establish the causal connection. (See Australian Postal Corporation v Bessey [2001] FCA 266).
WAS THE EPISODE OF PAIN ON 20 NOVEMBER 2009 AN “AGGRAVATION” OF AN “AILMENT” THAT WAS CONTRIBUTED TO “TO A SIGNIFICANT DEGREE” BY MR MILLER’S EMPLOYMENT?
Dr Ernst, Dr Haynes and Dr Davies all agreed that Mr Miller has been suffering from cervical spondylosis for many years. The Tribunal finds that he has been suffering from that degenerative disease of his cervical spine since at least 2002. That disease was not caused by his employment. It is an “ailment” within the meaning of that term in the Act.
As indicated above the Tribunal is not satisfied that there was a marked increase in the number of keystrokes made by Mr Miller in the period prior to 20 November 2009. Nor is it satisfied that Mr Miller’s workstation was incorrectly set up at that time.
Although those two contentions were advanced as important components of the applicant’s case the evidence raises a number of other potential work-related causes.
They include the intensity of the work, problems associated with the use of the Dragon software, particularly in association with SUW, concentrating on complex tasks in particular the applicant’s TSO and QOL roles and pressure placed on him to perform at the standards set by Centrelink.
The respondent denies the additional keystrokes were made by the applicant and even if there were they did not involve prolonged neck flexion. It submits that the evidence of both Mr Hair and Ms Bailey that there was no pressure placed on Mr Miller to meet Centrelink’s standards should be accepted. It contends that those standards were modified and lowered because of Mr Miller’s physical condition. The respondent further submits that there was no identifiable factor which brought on the increased pain. The applicant failed to identify any work-related cause, it argues, in his early consultations with Dr Davies on and after 20 November 2009. It submits that the episode of pain on 20November was entirely due to the natural progression of the cervical spondylosis. In the alternative the respondent contends that if Mr Miller’s employment did contribute to the aggravation, taking into account all other contributing factors, the work-related contribution cannot be regarded as significant.
It is therefore necessary for the Tribunal to consider the totality of the evidence presented in the case in order to determine whether Mr Miller’s work at Centrelink contributed to the severe pain experienced on 20 November 2009 and in the period thereafter. If there was some contribution it must then decide whether the degree of that contribution was significant.
In considering whether Mr Miller’s employment did contribute to any aggravation to the degree necessary the Tribunal has taken into account all of the matters set out in section 5B(2) of the Act. It finds all of those matters have some relevance but considers (a) and (b) and (c) in the sub-section to have particular importance in this case. The matters in section 5B(2) will be canvassed in these reasons but without reference to relevant parts of the sub-sections.
It is appropriate at this point to make reference to the applicant’s credibility.
The Tribunal has already decided that Mr Miller produced tables and graphs which overstate the number of keystrokes he made. However it does not follow that he is therefore wholly unworthy of belief. The Tribunal finds that Mr Miller was basically an honest witness who on several occasions had his facts wrong or changed his opinion. However when he was wrong he was willing to readily admit his mistake. It is satisfied that Mr Miller is generally worthy of belief.
The Tribunal accepts as truthful Mr Miller’s claim that he suffered an episode of severe pain whilst at work on the morning of Friday 20 November 2009. The contemporaneous written material and other information before the Tribunal are consistent with that claim.
There is evidence that Mr Miller suffered pain in his left arm some days prior to 20 November 2009. This pain caused him difficulty sleeping but he was still able to attend work and carry out his duties without loss of time. The Tribunal accepts Mr Miller’s statement that when he went to work on 20 November he was not then suffering pain. The Tribunal finds that the sudden and acute episode of pain on 20 November was far more severe than the pain suffered earlier in November 2009. This pain resulted in Mr Miller becoming incapacitated for work.
There is no doubt that in continuing to perform his duties at the Centrelink Call Centre Mr Miller was vulnerable and at some degree of risk of further injury. He had been suffering severe cervical spondylosis for many years. In November 2009 he was 57 years of age. At that point in time Mr Miller had been working fulltime at call centres for more than 10 years.
Certainly Centrelink had made considerable efforts to reduce the risk. But despite those steps the Tribunal is satisfied on all of the evidence before it that there remained a degree of risk that a further injury might be sustained.
Dr Haynes suggested in his oral evidence that most of Mr Miller’s work could be performed by simply moving his eyes up and down rather than flexing the neck. However the Tribunal finds that as a non-touch typist his work did involve frequent flexion of the neck throughout his working day as he looked down to the keyboard to type and then up again to view the screen.
The Tribunal is satisfied that Mr Miller found TSO and QOL work demanding. The evidence shows that the TSO work was particularly demanding and complex for him especially when endeavouring to use Dragon in association with SUW.
Exhibit A21 is a “CSA Self Assessment and Coaching” report. The Tribunal finds it to be a revealing document. It is dated 3 July 2009, a little over four months prior to the November pain episode. It states in part:
“Discussed in detail the TSO role and what training is required to complete the role effectively and how there appears to be more and more calls coming through requiring re-work etc. Peter has been finding the number of calls has made him feel quite drained due to the technical and complex nature of the calls”
That exhibit, on the second page notes as follows:
“We acknowledge that using Dragon does require a slightly different approach and sequencing to complete activities and, as such, we do not intend to change our adjusted performance expectations for you. What we do ask is that you continue to maintain your current performance standards with particular reference to:
. Completing as much work as is practical (recognising that it is not always practical with Dragon) whilst the customer is on the phone
. Completing all possible required actions/activities in a call (business imperatives)
. Using an effective call sequencing approach
. Being responsible for your time between calls (avoiding excessive chatting, use of internet etc during wrap or ACW)
. Escalating calls appropriately and not over-servicing
. Adhering to your schedule
. Maintaining your technical skills and knowledge
. Treating all customers and staff with respect and courtesy (uphold APS Values and Code of Conduct)”
This internal report signed by Mr Miller and his then team leader was prepared well before this workers’ compensation claim was in contemplation. It confirms that he was experiencing difficulties carrying out his TSO duties.
The document also confirms the difficulties Mr Miller was experiencing in using the Dragon software which was provided to him for the purpose of reducing the number of keystrokes he was required to make.
It is clear from the evidence that Mr Miller had not completely overcome the neck problems he suffered in 2007 and 2008. This is evident from the report of Dr Whang (T19). In 2009 he continued to suffer some pain. The report indicates that the pain became worse because of his work. It was more painful towards the end of the working week.
The Tribunal is satisfied that Mr Miller felt under considerable pressure at work because of the need to comply with the standards set by Centrelink. This may be to some extent a subjective belief. He impresses as a very conscientious employee who would want to meet all of the targets that were set for him. The Tribunal makes this finding despite the explanation provided by Ms Bailey that the work environment at Centrelink was “very supportive”. She said “we need to achieve targets” but there is “never any malice or threat or anything like that”. (Transcript page 377)
The respondent has made a point of the fact that Mr Miller did not immediately identify his work as the cause of the episode of pain. It is true that the records of the consultations with Dr Davies on 20 and 27 November did not clearly identify a work-related cause. It is noted however that “using left hand for mouse” was included in the note of 20 November. In the Incident Report of the injury which has a reported date of 26 November 2009 but may have been prepared later (T21) the “mechanism of injury” is stated as “repetitive movement”. By 10 December Dr Davies had mentioned a “recurrence of a previously existing condition”. He explained in his oral evidence that he meant the previous condition which was accepted as work-related (Transcript page 254)
On 7 December 2009 Mr Hair told Mr Miller he has must use Dragon “all the time (when possible) as it has been noted that he hasn’t been using it as frequently as he should be”. (T25)
By 11 December Mr Miller had told Mr Hair that he will need to “reopen the compensation claim he had in the past”. (T25)
It is not uncommon for there to be some delay between an injury and then a full and proper diagnosis and a workers’ compensation claim being made. In this case the workers’ compensation claim form was signed on 18 December 2009.
All three medical practitioners who gave oral evidence recognised that Mr Miller’s severe pain on 20 November may be associated with his work at Centrelink.
Although the value of parts of Dr Ernst’s assessment was obviously reduced by the unreliability of the data provided by Mr Miller, his view that there was a strong temporal correlation between Mr Miller’s work and the pain is persuasive. Dr Ernst had found that when the amount of typing was reduced the pain level would decline. When Mr Miller was not working Dr Ernst said that the pain level declined markedly.
Dr Davies said that the pain episode in November 2009 was a recurrence of Mr Miller’s old neck injury for which he had previously received workers’ compensation. He said:
“Presumably the constant work at a work station has contributed somewhat to a recurrence of his symptoms, despite our best efforts to set him up ergonomically as well as possible, and to alter his software as much as possible”. (T30 page 104)
In a note dated 3 September 2009, a little over two months before the acute episode of pain, Dr Davies reported seeing Mr Miller for “working condition problems”. He reported “SUW work will involve more activity at each client contact in discussion with things that will appear on the screen”. (T23)
Dr Haynes emphasised that “flexion is looking down for a prolonged period” (Transcript 20 June 2012 page 9). He said looking up and down regularly was not prolonged flexion. He went on to say that prolonged flexion was being in one position with the head flexed “for several hours”. The Tribunal is not persuaded by that portion of Dr Haynes’ evidence. It is noted that Dr Haynes did say in his report of 21 September 2011 that Mr Miller should avoid “… prolonged neck flexion and repeated neck movements” (Tribunal’s emphasis)
Dr Ernst on the other hand clearly recognised the risk of aggravation from frequent up and down head movements. (Transcript page 293) This is why he originally advised the use of Dragon in 2005. The Tribunal prefers the opinion of Dr Ernst on that particular issue.
Whilst emphasising the need for “prolonged flexion”, Dr Haynes nevertheless said Mr Miller’s work duties were “likely to have caused transient symptomatic exacerbation”. He did not resile from that view in his oral evidence, indeed he repeated it several times. After Mr Miller’s work duties were explained to him by Mr Grey Dr Haynes agreed that such work could cause transient symptoms. He answered “yes, transient exacerbation”. (Transcript page 29)
Dr Haynes stressed that whilst Mr Miller’s work could well have caused an exacerbation of the underlying condition it would be temporary and may only last a few days. He indicated that this could occur “on a number of occasions” but would resolve each time after a short period.
In his oral evidence Dr Haynes also said that if someone was suffering from this type of spinal condition an episode of pain can sometimes occur without any obvious cause.
CONCLUSION
After considering all of the material before it the Tribunal concludes, on the balance of probabilities, that Mr Miller’s employment by Centrelink did contribute on the 20 November 2009, to an aggravation of the pre-existing cervical spondylosis from which he suffers.
The following factors in particular influenced the Tribunal in reaching that conclusion:
Mr Miller was a particularly vulnerable person because of the severe cervical spondylosis from which he was suffering, the nature of his work and his history of work-related neck problems.
The pain episode occurred while Mr Miller was at work. He had no pain that morning before going into work. He was taking his third CSA call when he suddenly experienced pain. It was acute pain. It was in the neck, shoulder, back and in the chest area. He said it was “a pulling pain”. (Transcript page 218) It is reasonable to infer from the evidence that he would have been making keystrokes when responding to the calls that morning. This would obviously involve some neck flexion. Importantly Mr Miller asked if he could access some alternative duties. None were available. This indicates that the nature of his work was a problem for him at the time of the pain.
The pain episode happened on a Friday of a working week. Statements in Dr Hwang’s report and the evidence of Dr Ernst support the view that here can be a cumulative effect and that pain is more likely to be worse at the end of a working week.
The Tribunal is satisfied that Mr Miller felt under pressure at work. He had definite targets to meet. Clearly he had great difficulty in using the Dragon software. Although there was no marked increase in the overall keystrokes and mouse clicks there were certain periods when there was more TSO work to be done. He found this work to be most demanding. There is evidence that tension can affect posture and as a result someone can become more vulnerable to injury.
There is evidence of a definite association between episodes of pain and Mr Miller’s work. As Dr Ernst explained that when Mr Miller was not typing there was reduced pain. When he was on leave the pain abated. Dr Hwang’s report also supports such an association.
The Tribunal is also influenced by Dr Haynes’ opinion proffered after gaining an understanding of Mr Miller’s duties, that Mr Miller’s work duties “were likely to have caused a transient symptomatic exacerbation” of the underlying condition. He is obviously referring to the relevant episode of pain. The Tribunal believes that medical opinion to be correct. There is no indication that before expressing that view in 2011 Dr Haynes believed Mr Miller was flexing his neck for “prolonged” periods.
If an episode of pain is contributed to a significant degree by a person’s enmployment and is so severe that it causes a person to be incapacitated and unable to work then it is compensable. It satisfies the meaning of “aggravation” in the Act. (See Tippett above).
As mentioned in paragraph 69 above the Tribunal is satisfied that there are no other specific non-work-related causes of the relevant episode of pain. It is also satisfied that the pain was work-caused. It was not an occasion when pain suddenly occurred without an evident cause as mentioned by Dr Haynes.
The Tribunal is satisfied that Mr Miller’s work made the underlying condition worse. The effect of his work is cumulative. The cause of the aggravation and pain was not only the work on that day but the effects of frequently flexing the neck and the pressure of work in the course of that working week and probably in the days and weeks prior to that. There was an increase in the more complex TSO work in the “settlement period” 12 October 2009 to 8 November 2009 which the Tribunal considers probably also had a part to play in the ultimate episode of incapacitating pain on 20 November.
The Tribunal therefore concludes on the evidence that Mr Miller’s employment was the main cause of the aggravation of his underlying spinal condition on 20 November 2009. The evidence establishes to the Tribunal’s satisfaction that the pain was not caused by the cervical spondylosis alone. Other factors may have contributed to the development of the underlying condition but not to the immediate cause of the incapacitating pain. On the facts before the Tribunal it finds that the employment contribution was “to a significant degree”.
The tribunal finds that the applicant first sought medical treatment for the aggravation when he saw Dr Davies on 20 November 2009. (See in section 7(4) of the Act).
DECISION
The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a)The respondent is liable to pay compensation to the applicant on and from 20 November 2009 in accordance with the provisions of the Act in respect of an injury, namely an aggravation of cervical spondylosis, suffered by the applicant on that date.
(b)The amount of compensation is to be assessed.
COSTS
This decision is one to which section 67 of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time I will order that the respondent pays the applicant’s costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
| I certify that the preceding 169 (one hundred and sixty nine) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President) |
[Sgd]
Administrative Assistant
Dated 16 October 2012
| Date(s) of hearing | 21, 22, 23, 24, 25 May, 20 June and 17 August 2012 |
| Counsel for the Applicant | Mr D Grey |
| Solicitors for the Applicant | Darrell Grey LLB |
| Counsel for the Respondent | Ms S Taglieri |
| Solicitors for the Respondent | Ms N Richards, Australian Government Solicitor |
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