Raman and Comcare (Compensation)
[2016] AATA 122
•2 March 2016
Raman and Comcare (Compensation) [2016] AATA 122 (2 March 2016)
Division
GENERAL DIVISION
File Number
2014/5480
Re
Zarif Raman
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 2 March 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
WORKERS’ COMPENSATION – whether shoulder condition arose out of or in the course of employment – whether condition aggravated by employment – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 53
REASONS FOR DECISION
Regina Perton, Member
2 March 2016
Zarif Raman has worked for the CSIRO in personal assistant, receptionist and administrative roles, commencing in 1996. Mrs Raman has worked at different work sites for the CSIRO and had some breaks from doing so because particular programs ended. Mrs Raman was made redundant at the end of 1999 due to a restructure at the CSIRO and she then worked for other companies. The CSIRO rehired Mrs Raman in March 2006 as a personal assistant. About a year and a half later, due to another restructure, her position came to an end. Mrs Raman successfully applied for another position at the CSIRO as a part-time receptionist working five half days. Later she was given the opportunity to work for a further 14 hours per week for another program as an administrative assistant.
In October 1998 Mrs Raman was injured in a motor vehicle accident on her way home from the CSIRO. She suffered from whiplash when her car was hit from behind. At that time, accidents on a worker’s regular journey to or from work were covered by workers compensation insurance rather than transport accident provisions. That is no longer the case. Comcare reimbursed Mrs Raman’s medical expenses until November 1998.
On 1 April 2014 Mrs Raman lodged a claim for compensation for a left shoulder condition which she stated also affected her neck and left arm. Mrs Raman stated that her injury was caused by lifting hundreds of 10 kilogram boxes containing printed reports between November 2011 and late 2013.
Comcare’s delegate rejected Mrs Raman’s claim on 17 May 2014 on the basis that the claimed condition was not contributed to, to a significant degree, by her employment. Mrs Raman applied for review of that decision. The review delegate was also not satisfied that there was a significant contribution from employment to the left shoulder condition, finding that it was attributable to degeneration.
On 22 October 2014 Mrs Raman made an application for review to this Tribunal.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), as it was at the relevant date, provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
...
Section 5A of the Act states:
Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
Section 5B of the Act states:
Definition of disease
(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
Section 16 of the Act provides:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
Section 53 of the Act states:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(2) ….
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
DID MRS RAMAN’S LEFT SHOULDER CONDITION ARISE OUT OF, OR IN THE COURSE OF, HER EMPLOYMENT WITH CSIRO?
Mrs Raman worked for the CSIRO as an administrative officer from May 1996 until December 1999, when she was made redundant. As indicated earlier, she was the victim of a motor vehicle accident on the way home from work on 15 October 1998 and lodged a claim for compensation four days later. Comcare accepted the claim to pay compensation for injuries described as neck strain and sprain of shoulder and upper arm (left) under s 14 of the Act. Payments ceased on 12 November 1998.
Mrs Raman did not work for the CSIRO for almost six and a half years from the end of 1999 until she was re-employed in mid-2006.
In her claim for compensation filled out on 1 April 2014, Mrs Raman stated that the injury for which she was claiming compensation was:
Left shoulder – supraspinatus tendinopathy – subscapularis tendinopathy.
Mrs Raman stated that the part of her body that was most affected by the injury was:
Left shoulder, neck & whole left arm.
In response to the prompt question asking when she was injured, Mrs Raman stated it was on 8 November 2011. Mrs Raman stated that she first sought treatment from her then general practitioner, Dr Heenetigala, on 8 November 2011. She stated that she had been referred to Mr Ton Tran, an orthopaedic surgeon, had an MRI and undertaken physiotherapy, chiropractic treatment, remedial massage and taken pharmaceuticals. Mrs Raman stated that she had experienced shoulder pain since around 23 December 2008.
Mrs Raman stated that at the time she was injured, she was distributing printed reports that came in 10 kg boxes.
The CSIRO had an early intervention program if a worker suffered from a medical condition that impacted on their work. Up to $1,500 was allocated for a particular person. Mrs Raman was assessed for that program on 28 February 2013. Her expenses for remedial therapy, physiotherapy, a visit to an orthopaedic surgeon and an MRI of her shoulder were covered from that time until around the end of 2013.
In completing her portion of the compensation form on 11 April 2014, Toni Moore, Deputy Chief, stated that Mrs Raman had first reported her injury to the employer on 28 February 2013. Ms Moore mistakenly stated that Mrs Raman had worked for the CSIRO for over 15 years since 1996, not realising that there had been a break of over six years from 2000 to mid-2006.
Sharyn Cummins, Mrs Raman’s supervisor, provided a statement dated 25 March 2014:
In 2010 Zarif Raman (receptionist) was appointed to extra duties as a PA to the PACCSAP group. This was a PA role of 4:30 hours per day, five days a week. Zarif worked independently and alone.
During 2011 and as part of this PA role Zarif was designated with the duty of receiving and despatching Reports to all parts of the world. These reports…arrived in boxes which weighed approx. 10kg. Zarif would transport these boxes from receiving to the reception desk. She would load 3 boxes per trolley. This meant that she loaded the trolleys from the ground and then wheeled these to reception where, she would again unload them onto the reception desk. She alone, packed these trolleys and then at reception would unpack them to open them up and then envelope these reports for posting.
These boxes would arrive in huge numbers and she was required to work quickly to ensure these reports were distributed as soon as possible.
This work began late 2011 and continued through to 2013. Zarif is no longer working in this role.
…
I am providing this statement as Zarif’s Supervisor but wish to advise that this particular work was managed by another workgroup.
On 17 April 2014 Russell Diggins, the Health Safety and Environment (HSE) officer provided a copy of an incident report containing his and Ms Cummins’s comments. Mr Diggins’s comments were:
Scans showed that the staff member had suffered a tear to the tendon in her shoulder and that there was wear and tear to the AC joint. In conjunction with the Business Unit HSE Leader it was determined that Early Intervention would apply in this case, to allow some physio treatment for the injury. Early intervention would also cover the cost of a MRI. The staff member has two roles – one as an Administration Assistant and the other as a Receptionist. The injury was most likely incurred during the manual handling activities (PACSAP mail out) and this type of work will be handled externally, in future. In regards to the reception work, an assessment was made of the workstation and some slight changes made to the setup…
On 16 April 2014 Comcare wrote to Dr Heenetigala seeking a medical report answering certain specified questions. Dr Heenetigala provided a hand-written response dated 22 April 2014. The doctor also provided relevant clinical notes as requested.
Mrs Raman had been a patient of Dr Heenetigala since 2003. In response to a prompt question from Comcare asking whether there were specific incidents, both employment and non-employment related that had caused or aggravated Mrs Raman’s condition, Dr Heenetigala stated:
…
I have no record of any work related involvement of Mrs. Raman’s shoulder and I am unable to assess the contribution of work to her condition.
Mr Tran had provided a report to Dr Heenetigala on 14 November 2013 after seeing Mrs Raman the previous day:
Thank you for asking me to review Zarif, who presented on the 13th November. She is 49 years of age and is right-hand dominant. She works as a receptionist, with her duties said to involve repetitive lifting.
She has had discomfort in her left shoulder for over two years. She described the left upper limb feeling tired and tingling, with a sense of heaviness after work.
Overall, her movement remains satisfactory, with most of her household chores being able to be carried out.
A clinical examination showed that she has a fairly good range of movement, with minimal impingement. She complained of clicking and tenderness around the AC joint with certainly clinically a reasonably prominent lateral clavicle end on the left.
Her x-rays showed a well-preserved glenohumeral joint, with mild degenerative changes on the acromial end of the left AC joint.
Her MRI confirmed that she does not have a rotator cuff tear, with only mild degenerative changes in the AC joint.
I have reassured her that the problem is mainly to do with her muscle strength rather than anything more structural. I have encouraged her to follow a strengthening exercise program, especially with swimming, if possible.
As far as her work goes, appropriate precautions and activity management would be the best approach to manage her shoulder at this point in time.
She was happy with our recommendation and I have not made a follow-up appointment for her.
In refusing Mrs Raman’s claim on 17 May 2014, the delegate stated:
I have considered the evidence before me and I’m not satisfied your condition was contributed to, to a significant degree, by your employment. Dr Heenetigala states that he has no record of any work related incident and further based on the opinion of the orthopaedic surgeon you consulted he considered your condition was due to degenerative changes rather than any work related incident.
On 13 June 2014 Comcare forwarded a copy of the questions asked of Dr Heenetigala to Mrs Raman at her request. Mrs Raman obtained another medical opinion from Dr Stuart Turnbull, a general practitioner at a different practice. He provided a report dated 14 June 2014 stating, amongst other things:
Ms. Zarife Raman attended … on 10th of June 2014. She attended the clinic of her own volition requesting that I assess her with regard to a right [sic] shoulder injury, which stated she had sustained some years previously. She stated there had been a claim against her employer CSIRO, which had been rejected by Comcare following a report submitted by her treating General Practitioner. I had not seen the patient previously and her past history was unknown to me. She provided several documents including x-Ray, Ultrasound and MRI scans of her right [sic] shoulder to substantiate her claim.
MEDICAL HISTORY
MS. Zarife Raman is a 50-year-old lady who stated that she is employed by CSIRO as a part-time Receptionist and Administration Assistant at the Aspendale Campus. She stated that she had experienced problems with her left shoulder for a number of years possibly as far back as 2008 or even earlier. She described a constant dull pain. In particular there were several occasions when she was required to shift 10kg boxes of reports as her role was the administrator of the distribution of these reports. The reports came in boxes weighing 10 kg and she was required to pick the boxes and distribute them. This was an intermittent activity which went on for several months during the period late 2011/early 2012. During this activity the worker stated that the shoulder pain started to get worse. She stated that the pain, particularly since 2012 has been an ache particularly in the shoulder and lower neck and there was a dull feeling throughout the left shoulder down to the arm. There has also been more recently pains in the wrist.
Ms. Raman stated that she visited her treating General Practitioner Dr Heenetigala and she states that she had been seeing him with respect to the shoulder pain probably since 2008. As the pain got worse she was investigated in 2013, initially with an x-Ray and Ultrasound which was done on 14th March 2013. The results of these imaging tests were submitted as part of this examination. The x-Ray was essentially normal, the Ultrasound showed a small partial tear 3x4x2mm of the insertional fibres of the supraspinatus tendon. The subscapularis and infraspinatus tendons were intact and there was a significant amount of fluid in the sub deltoid bursa and on impingement of the coraco-acromio ligament and this fluid is described as being bursitis. The pain continued and an MRI was performed on 14th May 2013. The MRI confirmed mild supraspinatus tendinopathy and it is possible that the small tears seen on Ultrasound had repaired by this time. Mild subscapularis tendinopathy was also present with a split of the superior fibres and a low-grade AC joint arthropathy.
Ms. Raman states that the pain is continued and she was given a steroid injection which gave no relief. She has seen a masseur and gets some relief from massage. A claim was placed against her employer however it has been recently rejected.
Ms. Raman states that she is doing normal work duties and has not missed any time due to the condition. She is right-hand dominant. The worker stated she is seeking compensation for the treatment costs, which at this stage include remedial massage and some physiotherapy. She describes no right shoulder pain. Ms. Raman states she is otherwise fit and well.
With respect to activities of daily living the worker states that the pain causes some disruption to her daily activities particularly in the overhead work as she has a reduced range of movement of the left shoulder. She does normal duties at work and she is not required to do any heavy lifting in the workplace. She now uses a hands-free headset to avoid holding the phone in the left hand. This has been arranged by the employer for some years.
No past history of shoulder injury whilst playing sports or other activity was given.
…
Dr Turnbull stated that he had only seen Mrs Raman on one occasion for the consultation that resulted in his report. He stated that he had not treated Mrs Raman. In response to the question as to what specific incidents both employment and non-employment related that have caused or aggravated Mrs Raman’s condition, Dr Turnbull stated:
No non-employment related conditions have been identified. Specifically employment related lifting of 10kg boxes has been identified in 2011 and 2012 as being probably cause of her current condition. I would describe 100% as being the level of contribution. There is no specific incident other than she was required to lift 10kg boxes over a period of months. There is no past history given of shoulder injury.
On 22 October 2014 Mrs Raman lodged her application for review with the Tribunal.
Mr Ronald Haig, orthopaedic surgeon, prepared a report dated 2 March 2015 addressed to Comcare’s solicitors. He examined Mrs Raman on 9 February 2015. Extracts from his report follow:
…
Mechanism of Alleged Injury /Sequence of Events:
Ms Raman provided me with a history that in 1998 she was involved in a motor vehicle accident when going home from work. The nature of this was that she was rear-ended. She stated she suffered “whiplash”. She attended her GP and was referred for physiotherapy and also had chiropractic and remedial massage. She stated that she was later investigated with x-rays and scans of the shoulder and neck.
She stated she has had her current complaints over the years describing “flares and then dies down”.
She stated that in 2011 there was an aggravation of her symptoms when she started work as an administrative assistance distributing reports. This involved repetitive lifting of 10 kg boxes of material and this work continued over some months.
She again consulted her doctor. She was sent for acupuncture.
She advised me that during early 2014 she submitted a claim.
Current status:
Ms Raman complained of “aches, pains, tension” where she indicated the left side of her neck and the back of the left shoulder and the upper arm and “recently a lot of pain in the middle of the elbow”. She also mentioned pain in the left wrist.
She stated it is “always there” having stated that she later stated that she is some days all price and some days not.
…
Present Treatment:
Ms Raman has been seeing a new GP in 2014 on an as-required basis. By way of medication she takes Vistaril and magnesium supplements. She discontinued the Voltaren she was earlier on.
She has discontinued the physiotherapy she was having. She attends the chiropractor about once a week and when questioned about the type of treatment, she referred to him using two types of machine and the application of patches, and “adjustments”. She also attends a remedial naturopath who apparently massages her arms and shoulders.
…
PHYSICAL EXAMINATION:
…
Head/Neck:
Examination of the cervical spine showed her posture to be normal. There was claimed tenderness in the left paraspinal musculature. Left rotation was apparently reduced but other movements were normal.
Upper Limbs/Shoulder Girdles:
The upper extremities were neurologically normal.
Examination of the left shoulder showed her to have normal contour. There was claimed tenderness all about the shoulder. Flexion was normal while extension was a little reduced, abduction and adduction were normal. External rotation was equal to the right side and internal rotation was a little reduced. I did question her compliance.
…
SUMMARY AND ASSESSMENT:
To address your schedule of questions:
3.1 The claimed injury
(a) Please provide your diagnosis of the condition(s) suffered by Ms Raman affecting her neck, left shoulder and left arm, if any (the diagnosed conditions).
Regarding the cervical spine the most recent investigation was a CT scan (12 October 2009). There was reported “some narrowing of the intervertebral disc spaces at C4/% and C5/6 and, on the left side there was marked alteration in appearance of the pedicle and obliteration of the facet joint at that side. No significant encroachment on the thecal canal and there was no evidence of any significant bony canal stenosis … to the facet joint where there is marked degenerative change”.
Such changes would not be unexpected in a patient who was then aged 45. I suspect it is likely that her pain is emanating from the cervical spondylosis (posterior facet joint osteoarthritis).
In terms of her shoulder the most recent investigation (MRI) performed on 14 May 2013 … There were mild tendinopathy changes in the supraspinatus and subscapularis with a minor intrasubstance delamination split of the subscapularis. Again, these are mild and not unexpected in a patient who was then aged 49. These are degenerative changes and I believe are age-related.
(b) Please differentiate between the diagnosed conditions you have identified that are:
(i) Frank injuries, that is, conditions that were sustained by sudden trauma or involved a sudden pathological change:
…
While she provided me with a history of a motor vehicle accident in 1998 I believe the effects of that would long since have settled and that her current conditions in terms of the cervical spine and shoulder are degenerative in origin. In short, I have not identified any frank injury.
(ii) A disease, including a condition of gradual onset, or the result of a disease process:
…
I believe the essential contributing factor to the pathology in both areas (neck and shoulder) is age-related degenerative change.
(c) Do you consider, on the balance of probabilities, that the applicant’s duties from November 2011 to late 2013…significantly contributed to the onset or aggravation of her claimed left shoulder condition or the diagnosed conditions?
I do not consider that her duties from November 2011 to late 2013 have significantly contributed significantly contributed to the aggravation of her claimed left shoulder/neck condition.
3.2 Relevant medical history
(a) Is there any pre-existing or non-work related medical history or condition relevant to the diagnosed conditions?
She did provide me with a history of a motor vehicle accident from 1998 when she was rear-ended. Apparently this matter was not mentioned in Dr Turnbull’s report and I believe it is unlikely that she would be continuing with symptoms 16 years after such an accident.
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3.3 Current condition
(a) have the effects of “neck sprain” and “sprain of shoulder and upper arm (left)” sustained on 15 October 1998 (previously accepted by Comcare) ceased to result in the need for medical treatment?
She stated her symptoms continue and she continues with “medical” treatment
(b) …
I believe her age related degenerative change has long since overtaken the effects of any injury sustained in October 1998 if by that date you refer to the motor vehicle accident.
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I believe it is worth repeating the point that I have no reason to believe that her symptoms arising from her neck and/or shoulder are anything other than age-related degenerative in origin. There were no hard findings on examination. Perhaps the most significant radiological finding is of left-sided posterior facet joint change of an extensive nature in the cervical spine and I believe her symptoms could be accounted for by that single pathology. That pathology itself I believe is age-related degenerative change.
On 15 June 2015 Mrs Raman prepared a statement addressed to the Tribunal. Extracts from that submission follow:
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At present I am employed by CSIRO as a part-time Receptionist, working 22.5 hours per week, based at Aspendale site. I have been employed at this site for the last 9 years.
My shoulder/neck injury has been with me since a motor vehicle accident which took place on the way to work at CSIRO Highett on 15 October 1998. As a result of this accident I suffered neck/shoulder and upper arm’s brain.
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After my injury, I put in a claim which was accepted by Comcare for medical expenses and this acceptance cover treatment from my injury from the time of injury until 31 December 1999. Sadly my employment with CSIRO came to an end at the end of December 1999 as I was made redundant due to a merger and relocation to Werribee.
Upon ceasing employment with CSIRO, I stopped claiming for expenses and I did not pursue a worker’s compensation claim with CSIRO. Unfortunately over the years my condition has not improved and I have received regular treatment at my own expense and continued to manage my pain as best as I could.
After working with a couple of different companies, I was once again successful to be re-employed as a personal assistant at CSIRO Aspendale site in March 2006…
Around this time there was a position advertised at this site for a part time Receptionist, working five half days (22.5 hours) per week. My application for this position was successful...
Some time later I was offered the opportunity to work an extra 14 hours per week as an Admin Assistant for a separate program.
Whilst performing my additional duties as Admin Assistant I was responsible for a variety of tasks and one of them was the distribution of reports. These reports were the final research results of the program and proxies 10,000 copies were printed. I was put in charge of distributing the reports to local, national and international companies/groups. I was confident that I was able to perform this major task with some help from my colleagues.
From approx. November 2011 and throughout 2012, on a regular basis I would manually load these boxes on a trolley from the store room to my reception area to prepare for distribution. I was spending up to 4 hours each day lifting, bending, packing, addressing and organising daily pickups with our courier contractors.
During this period I organised distribution and physically handled in excess of 1000 boxes. It wasn’t until most of the distribution was completed that I started to really feel the effects of my shoulder pain. During this process I experienced more pain than normal on my left neck/shoulder but I didn’t complain, I just persevered with the pain in order to complete my task. Sometimes the pain would travel down my arm all the way to my wrist and I would experience pins and needles down my arm and I would have a constant ache and heavy feeling on my left shoulder.
I did see my GP and received various treatments for this on my own expense. These treatments temporarily assisted with managing my pain that the pain was always present.
As the health and safety of staff at CSIRO is paramount, I decided to approach our on site HSE Officer with my concerns, who then assisted me and organised approval from our HSE Manager to start an “intervention program” which is available to all staff. I received this assistance from March 2013 to November 2013 whereby they covered my cost that took to the total of $1500.00.
Once the funds ended and I was still experiencing ongoing pain, I was advised to put in a workers compensation claim from my expenses, which I did on 1 April 2014.
Sadly my claim was rejected by Comcare in a letter dated 16/4/14 which stated, care was not satisfied that I suffered from “an ailment” as defined in the SRC act which has been significantly contributed to by my employment. I submitted a second reconsideration and this was also rejected on 17/5/14 on the basis that it was a degenerative change. I was very disappointed by this outcome.
There may be some generative [sic] changes but why would I suffer from this ongoing constant pain, especially more so during this period than any other time? My injury was aggravated as result of my existing injury.
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Over the years I have taken minimal time off work to treat my injury as this was done in my own time and at present I have approx. three months worth of sick leave available to me so this only confirms my commitment to my employment. I could easily have abused my privileges and exaggerated my injury and taken long periods of time off but I chose not to. I am not claiming for any lost time, only my expenses towards treatment costs in the future.
I try to manage my pain by trying to keep fit i.e walking and going to the gym regularly to strengthen my arm and shoulder. I take painkillers when I absolutely have to but otherwise I suffer in silence. I get frustrated and upset about my condition as it does affect me mentally and physically especially when I struggle with my chores. Luckily my current work situation does not involve lifting and it is not sedentary – I move around all the time and do not sit behind a desk for hours on end. I also don’t make an issue of my injury at my workplace other than discussing it with my HSE Officer.
Mrs Raman provided details of her payments to health professionals. She also provided copies of invoices for freight using various carriers. These included freight to several overseas countries with a number of shipments being six boxes.
Comcare arranged for summonses to be served on various health professionals from whom Mrs Raman had sought assistance. These included Ms Hayley Binding who provided massages to Mrs Raman. Ms Binding’s records show that she had first assisted Mrs Raman in February 2010. Her notes include:
19/02/10; Left shoulder.neck, U/B and arm pain. Muscular tightness in Shoulder and neck resulting in Pins and needles down the left arm. X-ray indicated C4 and C5 degeneration. Pain getting increasingly worse over the past 12 months, especially at work and at the end of the working week. Headaches constant, not sleeping well. Tinnitus lately. Chiropractic treatment and remedial massage 6-7 visits. Occasional numb tongue. Deep tissue massage and light manipulation/stretching . Suggested magnesium for muscle tightness.
Mrs Raman saw Ms Binding five times between February and September 2010. The notes of a visit on 18 May 2010 state:
Left side Neck, into shoulder, feels restricted, arm numb. Feels as though neck needs to crack.
Mrs Raman did not see Ms Binding between September 2010 and October 2011 when the notes indicate that she was still experiencing neck and shoulder problems. After a visit in December 2011, the next one was ten months later:
12/10/12 Left shoulder pain, pins and needles, arm feel dead weight. Some pain lower down, possibly posture.
Mrs Raman saw Ms Binding several times during 2013 reporting shoulder, arm and neck problems. In September 2013 Ms Binding reported that Mrs Raman had stated that she was very busy, had not seen the physiotherapist and that the shoulder has been manageable. However, on most other visits she reported ongoing neck, shoulder and arm problems.
The evidence indicates that Mrs Raman has problems with her neck, left shoulder and arm. The issue for the Tribunal is whether her condition has been caused or aggravated by her work and, if so, whether it meets the legislative requirements under the Act to be compensable.
One of Mrs Raman’s general practitioners, Dr Heenetigala, who had seen her since 2003, had no record of Mrs Raman complaining of a work-related injury. Mr Tran diagnosed Mrs Raman’s problem as being due to a degenerative condition and advised her to build up her muscle strength. Mr Haig denied that there was any work relationship to her shoulder condition and believes that Mrs Raman’s problems arise from a degenerative neck condition.
The Tribunal notes that Ms Binding’s records indicate neck, shoulder and arm problems in February 2010, well before Mrs Raman commenced the distribution of the CSIRO reports.
In her oral evidence, Mrs Raman described the accident in 1998 and the impact on her. She suffered stiffness on her left side and found it difficult to turn her head to the left for a while. She could not recall whether she took time off from work. If she did, it was only for a few days. Mrs Raman said she saw her then doctor, Dr Lee, who suggested massage and Voltaren for a soft tissue strain.
In a certificate of capacity dated 19 February 1999, some five months after the accident, , Dr Lee recommended ongoing massage and possibly chiropractic treatment for a further six months. In June 1999 Dr Lee stated that his patient was benefiting from the massages and recommended a further three months of massage therapy. He noted that Mrs Raman was performing normal duties. After an examination on 27 January 2000, Dr Lee noted that Mrs Raman had received intermittent Physiotherapy/massage therapy since the last certificate.
Medical records showed that Mrs Raman had last seen Dr Lee about her left shoulder in October 2002. There is no record of another consultation with a general practitioner about the shoulder until 2008. Asked whether she had any treatment between 2002 and 2008, Mrs Raman said that she could recall seeing osteopaths, chiropractors and having massages. She could not remember who she saw.
Mrs Raman described what sending out the reports from around November 2011 entailed. She said she used a trolley to move boxes from the storage area to reception, where she attached labels to the boxes. She went through two doors which had to be pulled to get through. She conceded that a storeperson would help her when she had large orders. However, she said that at its peak, in November 2011 when the report was launched, she was dealing with the reports for two to four hours per day. Mrs Raman said that there were 10,000 reports printed. She provided copies of invoices showing destinations around the world to which they were sent.
Mrs Raman said that she was still experiencing daily pain in her shoulder and arm. Her current treatment consists of massage, Voltaren tables, heat pads and other related products. She had an injection in her shoulder in April 2013 at the suggestion of colleagues but it did not help.
Mrs Raman said that she did not make a fuss about her condition when distributing the reports. She had a task to do and she did it.
Asked why she had not mentioned the 1998 car accident to Dr Turnbull, she could not recall whether she spoke of it. If she had not, Mrs Raman said that she had been emphasizing her current situation to Dr Turnbull. Mrs Raman stressed her belief that processing the reports had aggravated her shoulder condition. Mrs Raman refuted the suggestion that she had not mentioned the motor vehicle accident to Dr Turnbull because she had forgotten about it as it was not an ongoing issue. Mrs Raman also denied that the condition flares up and then recedes stating that the pain is consistently present. Sometimes she could cope with it and other times it was harder to do so.
Mr Haig’s oral evidence mirrored the findings of his report. Asked if stress and other emotional issues could exacerbate pain, he said it was generally recognised that factors such as stress can magnify symptoms. He also indicated that not everyone who has a structural problem will necessarily have symptoms. Mr Haig confirmed his opinion that he believed Mrs Raman’s major problem is her neck. He said that we start to degenerate from around the age of twenty. Mr Haig commented that Mrs Raman had said to him that her pain flares up and then dies down. He was adamant that Mrs Raman’s condition was not due to her employment or the accident in 1998.
Questioned as to whether continual lifting could aggravate Mrs Raman’s condition, Mr Haig conceded that it could temporarily aggravate an existing condition but it would settle once the activity stopped. He stated that the pain in the arm and shoulder would be more likely to be referral pain from the degenerative neck condition.
Ms Cummins, Mrs Raman’s previous supervisor from 2008 to 2013, was unable to provide much detail on Mrs Raman’s activities as she was located upstairs, away from the reception area which she managed. Ms Cummins went down to the reception area and could recall seeing three boxes on the trolley at once but she was not in charge of the despatch of the reports. Ms Cummins said that Mrs Raman was a committed employee who, in retrospect, should have advised of her difficulties at an earlier stage.
Dr Turnbull, in his oral evidence, stated that it was his belief that lifting of boxes of up to 10 kilograms for six months could have significantly contributed to an aggravation of an existing condition. Asked about his qualifications, Dr Turnbull said that he practised as a general practitioner but had also undertaken a Graduate Diploma of Occupational Health. Dr Turnbull confirmed that he had only examined Mrs Raman once, in June 2014, for the report and that he had not treated her. He said that he had only examined Mrs Raman’s shoulder and not her neck. He said that if he had been provided with the radiology of her neck, he would have examined the neck.
Asked if Mrs Raman had mentioned the use of a trolley to move the boxes, he said that he could not recall if she had. He confirmed that he had not been told of a motor vehicle accident in 1998. However, he stated that work activities such as Mrs Raman described could aggravate an existing condition.
Comcare submitted that Mrs Raman’s condition and symptoms could not be attributed to the 1998 car accident. Based on the medical evidence, including the diagnoses following the car accident and the many years that have passed, the Tribunal is not satisfied on the balance of probabilities that Mrs Raman’s condition from 2011 until now could be considered an aggravation of the soft tissue injury suffered in 1998.
Comcare initially suggested that Mrs Raman was tardy in lodging her claim. However, the Tribunal notes state that she advised the CSIRO of her shoulder problems in February 2013. She did not lodge her claim under the Act until after she had exhausted the amount that her employer determined she should be entitled to, namely $1,500 in medical costs. There was ample evidence about her medical history and the general nature of her employment. The Tribunal does not accept that s 53 of the Act should apply in this case.
In relation to the nature of Mrs Raman’s condition, it can be difficult to categorise injuries or ailments as either coming under section 5A or 5B of the Act. Comcare submits that Mrs Raman is suffering from an ailment. The Tribunal concurs. If Mrs Raman’s condition arises out of an aggravation of a pre-existing ailment, the Tribunal would have to be satisfied, on the balance of probabilities, that the aggravation was contributed to, to a significant degree, by her employment.
Two orthopaedic surgeons, Mr Tran and Mr Haig, are of the view that Mrs Raman’s pain and symptoms are due to a degenerative condition. Her treating general practitioner of many years standing, Dr Heenetigala, indicated that Mrs Raman had not mentioned a work place incident or suggested her condition was exacerbated by work during consultations. Ms Binding treated Mrs Raman from 2010. The first mention of a possible work relationship with Mrs Raman’s condition written in her notes is after the report distribution had taken place. Dr Turnbull, who put forward a strong relationship between Mrs Raman’s work and her painful shoulder condition, was not fully informed about her history or been made aware of her neck condition when he prepared his report.
The Tribunal prefers the evidence of Mr Tran and Mr Haig to that of Dr Turnbull. They are specialist orthopaedic surgeons who have both stated that Mrs Raman’s symptoms arise out of a degenerative condition rather than being related to her work to a significant degree. That does not mean that handling the reports did not contribute to exacerbating Mrs Raman’s symptoms from time to time. However, the Tribunal needs to be satisfied that the employment was a significant factor rather than just a factor.
Based on the available evidence, the Tribunal is unable to find that Mrs Raman’s shoulder condition was significantly contributed to by her employment. That condition is therefore not compensable under the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Administrative Assistant
Dated 2 March 2016
Dates of hearing 10 & 11 August 2015 Applicant In person with her husband Counsel for the Respondent Mr Ray Ternes Advocate for the Respondent Mr Nam Nguyen - Sparke Helmore
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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Remedies
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