Power-James and Comcare (Compensation)
[2016] AATA 25
•22 January 2016
Power-James and Comcare (Compensation) [2016] AATA 25 (22 January 2016)
Division
GENERAL DIVISION
File Number(s)
2014/4855
Re
Raylene Power-James
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 22 January 2016 Place Canberra The decision under review is affirmed.
.....................[sgd]...................................................
Mr S. Webb, Member
COMPENSATION – injury claim – lower back and hip ailments – difference between ‘injury’ and ‘disease’ - ailments existing prior to claimed injury – movement likely to produce increase in symptoms without physiological change – symptoms arising from already symptomatic ailment – no frank injury - ailments not significantly contributed to by employment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14
Hume Steel Ltd v Peart (1947) 75 CLR 242
May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286Tippett v Australian Postal Corporation (1998) 27 AAR 40
Commonwealth v Beattie (1981) 35 ALR 369
Mellor v Australian Postal Corporation [2009] FCA 504
Comcare v Power [2015] FCA 1502
REASONS FOR DECISION
Mr S. Webb, Member
22 January 2016
Raylene Power-James claimed compensation for an injury to her lower back in the course of her employment as a teacher by the ACT Department of Education. Comcare decided to reject her claim. This decision was affirmed on reconsideration. Ms Power-James has applied for review.
Issues
The issue for determination is whether Ms Power-James sustained an ‘injury’ for which Comcare is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Specifically, it is necessary to determine whether Ms Power-James sustained –
(a)an injury, or the aggravation of such an injury arising out of, or in the course of, her employment for the purposes of s 5A(1)(b) or (c); or
(b)a disease, or the aggravation of a disease, that was contributed to, to a significant degree, by her employment for the purposes of s 5A(1)(a).
I should say here that Ms Power-James represented herself. She, like any lay person with no special knowledge of the law, cannot be expected to have a detailed knowledge or a refined understanding of the legal principles that are applicable when differentiating between an ‘injury’ and a ‘disease’ for the purposes of the SRC Act, or the consequences in law that may flow when determining a claim for compensation under that Act. But her lack of knowledge should not, and does not, detract from her case, just its presentation.
In a case such as this, it is important to comprehend the significance of the distinction between getting hurt and becoming sick, as discussed by Latham CJ in Hume Steel Ltd v Peart.[1] The former may arise if the normal physiological state of the person is changed or disturbed, whereas the latter may result from the normal progress of an autogenous disease or pre-existing morbid condition. The degree to which the change in a person’s normal physiological state is sudden or identifiable may be a useful discrimen to assist demarcation of an injury from the normal progression of a disease.[2] Determining such matters requires a factual assessment in which –
“Medical evidence or opinion will, of course be relevant; but it may not be determinative. The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such a change, and such considerations will be made against a background of distinction in the common use of language between getting hurt and becoming sick. The circumstances and the facts will influence what weight such considerations are given in the drawing of a factual conclusion in any particular case.”[3]
[1] (1947) 75 CLR 242 at 252-253.
[2] May v Military Rehabilitation and Compensation Commission 322 ALR 330 at [110]-[112].
[3] Ibid, at [118].
Injury
Ms Power-James says that she injured her lower back and sustained low back pain radiating into her right leg in the course of her employment as a teacher. This, in her submission, resulted from an incident involving a student and a chair in which she intervened.
Ms Power-James stoutly maintains that the pain symptoms in her lower back that commenced with this incident are to be distinguished from pain symptoms over a preceding period in her right hip. She argues that she suffered from two separate conditions – one commencing in early October 2013 affecting her right hip, with localised pain and radiation of symptoms into her right thigh and lower back, and the other commencing on 28 October 2013 affecting her lower back, with pain and radiation of symptoms into parts of her right lower limb.
In her submission, her right hip symptoms of pain were in a specific location and they radiated down into her lower back and into the outside of her right thigh, whereas her low back symptoms of pain were in a different location and had a different character. She says that her right hip symptoms were subsequently diagnosed as trochanteric bursitis and abductor tendinitis, whereas her low back symptoms from 28 October 2013 were diagnosed as right paracentral L4/5 disc herniation with right L5 nerve root radiculopathy.
Even though her treating doctors and physiotherapists discussed the possibility that her symptoms prior to 28 October 2013 may have related to a “pinched nerve”, Ms Power-James rejects this notion as simply incorrect. Ms Power-James believes that an ultrasound the following year demonstrated the presence of trochanteric bursitis and proved the ‘pinched nerve’ assessment to be wrong.
Ms Power-James strongly believes that the pathology in her lumbar spine is an injury that was caused by her employment on 28 October 2013.
For a physical injury that is not a disease, or an ‘aggravation’ of such an injury, to exist for the purposes of s 5A of the SRC Act, it must be established by evidence that a physiological change occurred,[4] disturbing the previously existing state of Ms Power-James lumbar spine and arising out of or in the course of the particular employment. In order to determine if there was a change of this kind on 28 October 2013, it is necessary to analyse the evidence concerning symptoms and physiological changes in Ms Power-James’ lower back and hip on a fact by fact basis.[5]
[4] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 , per Gleeson CJ and Kirby J at [35], per McHugh, Gummow and Hayne JJ at [68].
[5] Ibid, at [35]-[40].
Ms Power-James gave evidence that she experienced the onset of right hip pain in early October 2013. This became worse during a holiday in Tasmania, causing her to ring Dr Jove, her treating general practitioner, to arrange an appointment upon her return to Canberra. She told me that her symptoms became worse when travelling from Melbourne to Canberra on 20 October 2013 – the symptoms were centred on her right hip but, at worst, pain radiated into her lower back, at the level of her buttocks, and she felt a burning sensation with some numbness on the outside of her right thigh. In a statement dated 8 April 2015, Ms Power-James confirms the existence of pain that was “definitely still centred in my right hip”, “radiating down my leg and into my lower back” on 18 October 2013.[6]
[6] Exhibit 4, page 1.
On 21 October 2013, Ms Power-James consulted Dr Jove. The doctor noted “Right Pain – hip” and a history including “2/52 ago aware of right hip twinging – deep ache and unable to sit comfortably… now constant discomfort in right hip… also lateral right calf – painful numb spot. no history of injury. pain in lateral hip – sharp constant pain with ache component… pain is quite localised to lateral hip”.[7] The doctor recorded a number of symptoms on examination, including “lower spine – tender on lateral flexion to left, good ext/flex/lat flex to right (but hip felt unstable)” and recommended physiotherapy.
[7] T20 folios 54-55.
On this material, it is quite clear that Ms Power-James was experiencing right hip and right lower limb symptoms from on or about 7 October 2013.[8]
[8] T20 folios 54-55.
On 22 and 26 October 2013, Ms Power-James obtained physiotherapy treatment from Ella Cameron and Uta Mitchell, physiotherapists. The clinical notes of Ms Cameron and Ms Mitchell are in evidence. Ms Cameron’s notes clearly refer to the worsening of symptoms in early October 2013 –
“developed right hip twinges a few months ago with intermittent sharp pain, stretching helped. 3 weeks ago woke one am couldn’t weight bear, sit, stand properly 7-8/10 pain. Went on holidays and managed pain with analgesia, stretches but still aware of pain particularly in evenings. Unable to lie on side, disturbed sleep. Aggravated by sit or stand too long. Numb spot around peroneal head.”[9]
[9] Exhibit 6, page 1.
Ms Cameron reported to Ms Power-James “I determined the most likely cause of your pain to be originating from the lumbar spine”.[10] Ms Cameron was not called to give evidence.
[10] Ibid.
Ms Power-James gave evidence that she sustained an injury to her lower back on 28 October 2013 – the symptoms and causes were quite different than the previous right hip pain and symptoms. This injury is said to have occurred during an incident involving a year one student with behavioural difficulties. She told me that the student was chasing another student in the class. The student had a plastic chair raised above his head. Ms Power-James estimated that the chair weighed approximately two kilograms. She intervened and attempted to take the chair from the moving student, twisting to the right and almost over-balancing as the chair fell to the floor. She told me that, initially, there was no sharp pain, but she felt a “twinge” in her lower back, which she likened to the sensation of rolling an ankle. She explained “I had done something, but don’t know what”. She put the chair back and sat down at her desk until recess, a short while later. She told me that the sensation in her lower back was “like a pulled muscle”, but it was “not immediately painful”. Ms Power-James said that she used an ice pack when performing playground duties later that day, and that she experienced some aching in the right side of her body a little later. She took Panadol and used a heat pack after work. Her sleep that night was “OK”.
She did not lodge an Incident Report on 28 October 2013. And there is no other contemporaneous evidence corroborating the occurrence of the injury Ms Power-James alleges she sustained on that day.
Ms Power-James explained that she “felt out of sorts” the next day, 29 October 2013, but she continued with her usual duties at work. She experienced some twinging in her lower back which became worse over the course of the day – she was unable to sit without moving during a staff meeting on that day.
On 30 October 2013, she again consulted Dr Jove, who issued a medical certificate stating that Ms Power-James was unfit for work on 30 and 31 October 2013. But Dr Jove’s clinical notes do not contain any reference to an injury affecting Ms Power-James’ back on 28 October 2013. Dr Jove told me that her clinical notes of this consultation do not conform to her usual standard – there is no ‘history’ section and there is no ‘examination’ section. Apparently, the consultation had run over time and she simply omitted to record these details. She explained that she would have taken a detailed history from Ms Power-James about the onset of symptoms, as this is important to understand the nature of the symptoms and possible causes, and to ensure that physical tests on examination do not risk exacerbating any nerve issues or spinal pathology that may be present. In the circumstances, she thought that she would have recorded a complaint of injury causing the sudden onset of symptoms on 28 October 2013 if that is what had occurred, but in this instance she did not. And now, after the passage of more than two years, she cannot recall the details of the history given by Ms Power-James or of the examination she conducted on 30 October 2013.
Dr Jove did note that Ms Power-James “has seen Ella physio twice now – Tuesday then Saturday. Ella’s assessment is a pinched nerve rather than hip problems”.[11] The doctor accepted that if Ms Cameron’s assessment is correct, it is likely that Ms Power-James’ lumbar spine pathology may have preceded the alleged incident on 28 October 2013.
[11] T20 folio 55.
On 31 October 2013, Ms Power-James obtained physiotherapy treatment from Ms Cameron. Ms Cameron’s notes from that consultation do not refer to an injury to Ms Power-James’ lower back while she was at work on 28 October 2013, but her notes refer to “↑[increasing] pain after some gardening on weekend. Now pain is constant”.[12] I note that the ‘weekend’ of 26 and 27 October 2013 preceded the alleged incident on 28 October 2013.
[12] Exhibit 6, page 2.
On 1 November 2013, Ms Power-James experienced intense low back and hip symptoms during the course of her employment at school that day. She was conveyed by ambulance to the Calvary Hospital Emergency Department. The ambulance officers noted complaints of right hip pain on a background of “lower back/hip pain for several weeks”.[13] The Calvary Hospital Emergency Department notes reveal that Ms Power-James was “Admitted with severe lower back pain and right leg pain/paraesthesia. 3 week duration.”[14] The clinical notes of ambulance officers and the Calvary Hospital do not reveal any reference to an injury occurring on 28 October 2013. A CT scan taken on 1 November 2013 revealed “a moderate to large right paracentral disc protrusion or extrusion at the L4/5 level with L5 root compression”.[15]
[13] Exhibit 6, page 4.
[14] T6 folio 11.
[15] T5 folio 10.
On 4 and 11 November 2013, Ms Power-James consulted Dr Goh, a treating general practitioner. Dr Goh did not record any complaint of an injury to Ms Power-James’ lower back at work on 28 October 2013. She referred to “recent events”, which she explained was a reference to Ms Power-James experiencing an increase in symptoms on 1 November 2013 that caused her to be taken by ambulance to the Calvary Hospital. Dr Goh provided a referral to Dr Pik, an orthopaedic surgeon, in which she said –
“[Ms Power-James] has been having bad back pain for about 4 weeks now. It is getting worse despite analgesia and physio. She is starting to get pins and needles constantly and her legs feel weak and seems to give way…”[16]
[16] Exhibit 6, page 8.
On 10 December 2013, Dr Pik reported that Ms Power-James “developed significant low back pain and right leg pain in early to mid October 2013. The patient’s symptoms worsened in late October and on 1 November” and diagnosed “right L5 radicular pain from the right L4/5 disc herniation”.[17]
[17] T21.
In a report dated 8 January 2014, Dr Goh said “Ms Power-James initially presented with back/leg pain on 21/10/13. She stated then she had pain for 2 weeks”.[18] Under cross-examination, Dr Goh conceded that she only became aware of the alleged incident on 28 October 2013 in a consultation with Ms Power-James on 3 March 2014 and, if this had been raised earlier with her, she would have recorded it in her clinical notes.
[18] T20 folio 53.
On 9 January 2015, Ms Power-James was examined by Dr Cairns, a consultant orthopaedic surgeon. The doctor diagnosed “Age-related, constitutional multi-segmental lumbar intervertebral disc protrusion, specifically right paracentral L4/5 disc herniation with right L5 nerve root radiculopathy” and said –
“It would seem quite clear therefore, that despite alleged advice and Ms Power-James’ protestations to the contrary, her lumbar intervertebral disc protrusion developed spontaneously early in October 2013, and that is the underlying cause of the history which evolved thereafter, despite the fact that she also presents with symptoms and physical findings consistent with trochanteric bursitis/abductor tendinitis involving her right hip, both conditions undoubtedly adversely impacted by her morbid obesity.”[19]
[19] Exhibit 5.1, page 6.
Dr Cairns considers it possible that the incident on 28 October 2013 may have caused “transient symptomatic aggravation of the underlying pathology”,[20] about which he subsequently said, “the emphasis being on “possibly”, and “transient symptomatic”, and do not believe that Ms Power-James suffered an aggravation of a physical injury, that is to say, to the underlying long-established pathology.”[21]
[20] Exhibit 5.1, page 7.
[21] Exhibit 5.2, page 3.
On 12 May 2015, Dr Goh reported –
“Ms Power-James presented to this surgery complaining of right sided hip pain on 21 October 2013. The pain was distinctly felt in the hip particularly over the lateral aspect. I believe that Ms Power-James has two separate conditions – specifically the hip condition which has been diagnosed as trochanteric bursitis and confirmed with a scan last year and the back condition which is the L4/5 disc herniation. I believe the injury sustained on 28 October 2013 quite likely caused the back condition.”[22]
[22] Exhibit 2, page 3.
I note that Dr Goh did not examine Ms Power-James on 21 or 30 October 2013, examinations on those days were undertaken by Dr Jove.
On 18 August 2015, in “a letter of support of Ms Power-James”, Dr Jove reported –
“I believe that on 28th October 2013 Ms Power-James intervened as a student threw a chair at another student. It is my medical opinion that during this action she suffered from a L4/5 disc herniation leading to her right sided back pain. It is my medical opinion that her right sided back pain is a work related injury.”[23]
[23] Exhibit 1.
Dr Jove’s description of the incident on 28 October 2013 does not accord with the detailed account Ms Power-James has given – no chair was thrown: a year one student was holding a plastic chair above his head and Ms Power-James took it from him, twisting as she did so. The only reference I can find to a student throwing a chair appears is in reference to an incident in June 2013 that Dr Jove recorded.
Despite her strong denials, it is quite clear to me that Ms Power-James attempted to explain away the absence of any contemporaneous reference to an injury on 28 October 2013 by challenging the clinical note taking of Ms Cameron, Dr Jove, Dr Goh, Dr Pik and the ambulance officers who assisted her on 1 November 2013. For one practitioner to overlook or to omit an alleged injury in contemporaneous clinical notes is one thing; but for all of the practitioners who were consulted to make no reference to the alleged injury in their contemporaneous clinical notes is another. The absence of any contemporaneous record of the incident on 28 October 2013 suggests that this incident was not reported by Ms Power-James to her treating doctors and others as significant at the time.
Considering all this, I think that the evidence of Dr Cairns and Dr Pik carries greater weight than that of Dr Jove and Dr Goh. Dr Pik and Dr Cairns are suitably qualified specialists. Dr Jove and Dr Goh each explained that they do not have specialist knowledge and that they would defer to a specialist. It was for this reason that Dr Goh referred Ms Power-James to Dr Pik. The evidence given by Dr Pik (who was not called to give oral evidence) and Dr Cairns is quite consistent.
Ms Power-James is critical of Dr Pik’s consultation, asserting that he did not take a detailed history and his clinical examination was cursory, lasting only five minutes. She is also critical of the conclusions reached by Dr Cairns, asserting that he relied upon the faulty notes of Dr Jove and Dr Goh, and he examined her more than 15 months after the events in October 2013, by which time she was better – treatment had been completed and she was symptom-free. Even if Ms Power-James criticisms are well-founded, and I make no such finding, it would not change the result.
I accept Dr Cairns’ evidence that the symptoms Ms Power-James described to Dr Jove on 21 October 2013 are consistent with L4/5 disc herniation and L5 nerve root radiculopathy. I also accept his evidence that some of these symptoms may be consistent with trochanteric bursitis and abductor tendinitis.
But, on Dr Cairns’ evidence, the sensory symptoms of burning, tingling and numbness she experienced in the outer aspect of her right thigh when driving to Canberra from Melbourne on 20 October 2013, and the numb spot recorded by Dr Jove in clinical notes on 21 October 2013, are not consistent with a diagnosis of bursitis or tendonitis – sensory symptoms of that kind are indicative of the L4/5 pathology and L5 radiculopathy. That being so, it is probable that Ms Power-James had symptomatic L4/5 disc herniation and L5 nerve root radiculopathy at that time, prior to the incident she claims caused those conditions.
It is also probable that Ms Power-James was experiencing symptoms of trochanteric bursitis and abductor tendinitis at that time. But I am not persuaded that trochanteric bursitis was the sole cause of the symptoms described, including pins and needles or a burning sensation with numbness radiating into lateral aspect of Ms Power-James’ right thigh. These symptoms were probably attributable to the L4/5 disc pathology and L5 nerve root radiculopathy. It is more probable than not that pathology in her lumbar spine was a contributing operative cause of the symptoms Ms Power-James reported experiencing from early in October 2013 and of which she complained to Dr Jove on 21 October 2013. It is not established that the L4/5 disc herniation and L5 nerve root radiculopathy arose out of or in the course of events on 28 October 2013, as they were already present and symptomatic at the time. On the present materials, I am not able to determine when or in what circumstances these changes to the normal physiological condition of Ms Power-James’ lumbar spine occurred, although on Dr Cairns’ evidence this probably happened spontaneously in early October 2013. Ms Power-James has not claimed that the onset of symptoms in early October 2013 was work-related.
For this reason I am satisfied that Ms Power-James’ L4/5 disc herniation and L5 nerve root radiculopathy is not an injury for the purposes of s 5A(1)(b) that occurred on 28 October 2013 in the circumstances she has described.
The question of whether an ‘aggravation’ injury occurred on that day remains to be dealt with.
The present evidence does not establish that the 28 October 2013 incident caused a physiological change in Ms Power-James’ lumbar spine of any kind. The disc herniation at L4/5 and the L5 nerve root radiculopathy was already present. The contemporaneous and expert medical evidence does not suggest that any sudden or identifiable or distinct change occurred in the physiology of her lumbar spine and associated physiological parts or structures. The subsequent evidence of Dr Jove and Dr Goh tend to support Ms Power-James’ case, but their evidence carries less weight than the expert evidence of Dr Pik and Dr Cairns. Even though it may be a matter of common sense that a sudden twisting movement may cause twinges or symptoms of pain, much as Ms Power-James has described, it does not follow, and it is not presently established by evidence, that a physiological change in the pre-existing morbid condition of her lumbar spine occurred on that day. I am satisfied that it did not.
It follows that the physical injury ‘aggravation’ test under s 5A(1)(c) is not satisfied.
Disease
I have found that Ms Power-James suffered from symptomatic lumbar spine pathology that arose early in October 2013. This is not a physical injury for the purposes of the SRC Act. Even with a generous interpretation, Ms Power-James’ compensation claim is specifically tied to events that occurred on 28 October 2013, and it does not cover, generally, pathological or physiological changes to the condition of her lower back or right hip in preceding weeks or months.
That said, in order to address her claim under the disease provisions of the SRC Act, it is necessary to determine whether the previously existing morbid condition of her lumbar spine, or the inflammatory bursitis and tendinitis conditions affecting her right hip, being ‘ailments’ under s 4(1), were contributed to, to a significant degree, by her employment and thereby satisfying the requirements of s 5A(1)(a).
Ms Power-James asserts that the symptoms she experienced prior to 28 October 2013 were located in her right hip and they are attributable to bursitis in that hip, and that the symptoms she experienced on and after 28 October 2013 were new and different symptoms of an injury to her lower back.
There are two things to say about this. Firstly, for the symptoms Ms Power-James experienced on 28 October 2013 to be treated as a ‘disease’, either in the form of a new ‘ailment’ or an ‘aggravation’ of an existing ailment, for the purposes of s 5A(1)(a) of the SRC Act, the matters set out in s 5B must be applied. And secondly, having regard to the matters set out in s 5B(2), on evaluation of all of the materials, it must be established that her employment contributed to the ailments affecting her lumbar spine or hip, or to the symptoms she experienced on that day, to a ‘significant degree’, that is, to a degree that is substantially more than material.[24]
[24] Comcare v Power [2015] FCA 1502 at [93]-[94].
In the context of workers compensation law, it is now well settled that an injury includes the symptoms or experience of the injury and that an ‘injury’ in the form of a ‘disease’ may arise under the SRC Act if an already existing ailment or morbid condition is aggravated, or if the experience of it is increased or intensified, by the circumstances of the particular employment, such that the employment is found to have contributed to the aggravation or intensification or worsening to a significant degree.[25] It is not enough for a condition to simply become worse in the course of employment; it must be made worse by the employment.
[25] Commonwealth v Beattie (1981) 35 ALR 369 at 378.
In Tippett v Australian Postal Corporation,[26] Finklestein J observed that a distinction is to be drawn “between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely.”[27]
[26] (1998) 27 AAR 40.
[27] Ibid.
In other words, the employment must be found to cause the increase in symptoms or the aggravation, or to significantly contribute to the onset or progress of the ailment causing the symptoms, for an injury to arise for the purposes of the SRC Act – temporal considerations about the effect or lasting nature of the aggravation are not determinative of this question.[28]
[28] Mellor v Australian Postal Corporation [2009] FCA 504 at [36].
Ms Power-James was employed as a release teacher. She had experience in this role over an extended period. In the course of her duties she encountered students with behavioural difficulties. She found this stressful and discussed her concerns with Dr Jove. Examination of the medical records reveals that Ms Power-James has a history of occasional lower back symptoms. She is overweight – at the border of morbid obesity, and has been so for some time. On Dr Cairns’ evidence, this predisposes her to lower back and hip problems of the kind she experienced in October 2013. In all likelihood, this was a factor in the onset of symptoms and development of L4/5 pathology in her lumbar spine in early October 2013.
There is no controversy that Ms Power-James experienced symptoms on 28 October 2013 in the manner and to the extent she has described in her evidence.
On Dr Cairns’ evidence, which I accept, Ms Power-James’ lumbar spine condition was symptomatic prior to the incident on 28 October 2013 and once symptomatic, it was susceptible to transient symptomatic aggravation or exacerbation with movement. As I understand Dr Cairns’ explanation, even though the precise mechanism for symptomatic aggravation is not entirely clear, it may be accepted that symptoms arise from the interaction of already damaged or affected body parts, such as the L4/5 disc and the L5 nerve root, or the inflamed trochanteric bursa or the abductor tendon, with other tissues - movement may lead to greater interaction of affected parts and this may lead to an increase in symptoms. That, I think, is the inference to be drawn from Dr Cairns’ explanation and, on his evidence, it occurs without any change to the existing pathology.
That being so, any movement of the affected parts of Ms Power-James’ body, such as when rising from sitting or getting out of bed, or movement when bathing or when interacting with students in a class, may have caused a temporary increase in her symptoms of pain or other sensory phenomena at the time. One only has to consider the clinical notes of those treating her from 21 October 2013 to find evidence of this before and after the day on which Ms Power-James says she injured her back. By her own account, Ms Power-James experienced an increase in symptoms while holidaying with her family in Tasmania in early October 2013 which caused her to ring Dr Jove, and she experienced increased symptoms on 20 November 2013 when driving to Canberra. On 26 or 27 October 2013 she experienced increased symptoms after some gardening. I accept that she experienced symptoms on 28 October 2013, as she asserts. On 1 November 2013, she experienced increased symptoms that caused her to be conveyed by ambulance to the Calvary Hospital.
It does not follow, however, and it is not presently established, that each of these occurrences represents a fresh injury of some kind, or a worsening or aggravation of the lower back or hip ailments that were already present. To my mind, these are manifestations of the mechanism Dr Cairns described in his evidence – symptomatic lumbar spine pathology that is susceptible to transient symptomatic aggravation with movement.
Considering these matters, I think that the symptoms Ms Power-James says she experienced on 28 October 2013 (a twinge that was not initially painful followed by an ache in her right side and twinges the following day) were manifestations of her already existing symptomatic lumber spine or right hip ailments for which she was obtaining treatment at the time. The events in the classroom on that day were incidental to the symptoms she experienced. When she moved to take the chair away from the child on that day, she experienced symptoms in her lower back, just as she had experienced symptoms on previous occasions. I do not think that the location or nature of the symptoms she described compel any different conclusion. To my mind, these are symptoms of an ailment experienced at work rather than symptoms of an ailment that has been made worse, or that has been significantly contributed to, by work.
As Evatt and Sheppard JJ pointed out in Commonwealth v Beattie -
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury."[29]
[29] Commonwealth v Beattie (1981) 35 ALR 369 at 378.
Those words are apposite here.
It is not presently established that the symptoms Ms Power-James experienced on 28 October 2013 resulted in any incapacity for work. By her own account, she continued to work on 28 and 29 October 2013 with low level symptoms consistent with her already existing symptomatic lumbar spine and right hip ailments. She obtained a medical certificate from Dr Jove on 30 October 2013, but the doctor has not recorded what it was that rendered Ms Power-James unfit for work. Ms Cameron’s clinical notes on 31 October 2013, suggest that Ms Power-James experienced an increase in pain symptoms that became constant after gardening the previous weekend. These records do not establish that Ms Power-James experienced symptoms on 28 October 2013 that resulted in impairment or incapacity for work.
To the extent that Ms Power-James strenuously asserts that she told all of her treating medical practitioners about the incident on 28 October 2013, and the profound effect of this incident on her symptoms, it is to my mind highly improbable, even inconceivable, that each of these professional people would erroneously omit to record the content of her account. I do not accept that this is what occurred. I think it is more probable that Ms Power-James did not relate the incident as a significant factor in the onset or progress of her lower back, pelvic girdle and lower limb symptoms at the time, and she did not do so until many months later when it became clear that her compensation claim might fail for lack of probative evidence on this point.
Considering all of the materials and the evidence that has been given, I am satisfied, on the balance of probabilities, that the circumstances of Ms Power-James’ employment on 28 October 2013, and the incident involving a student and a chair in particular, did not significantly contribute to her previously existing lumbar spine ailment or to her previously existing right hip ailment. It is not presently established that Ms Power-James’ employment significantly contributed to any worsening, acceleration or ‘aggravation’ of the ailments that already afflicted her before 28 October 2013.
It follows that her compensation claim does not meet the requirements of s 5A(1)(a).
Conclusion
I am reasonably satisfied that L4/5 pathology in Ms Power-James’ lumbar spine became symptomatic early in October 2013. This may have been contiguous with trochanteric bursitis and abductor tendinitis in her right hip. It is not presently established that any change to the previously existing physiological condition of her lumbar spine arose out of, or during the course of her employment on 28 October 2013. The symptoms she experienced on that day, as well as the symptoms she experienced in her right hip, lower back and right lower limb before and after that day, were the result of her already existing and symptomatic ailments. It is not established that her employment contributed, to a significant degree, to these ailments, or to any aggravation of them.
That being so, I am satisfied that Ms Power-James did not sustain an injury for the purposes of s 5A for which Comcare is liable to pay her compensation under s 14 of the SRC Act.
Her compensation claim is not made out.
Decision
The decision under review is affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ................[sgd]........................................................
Associate
Dated 22 January 2016
Date(s) of hearing 18-19 January 2016 Applicant In person Counsel for the Respondent Kristy Catavic Advocate for the Respondent Eleanor Cannon Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Statutory Construction
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Appeal
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