Richard Coveney and Linfox Armaguard Pty Limited

[2014] AATA 882

[2014] AATA 882

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2821
Re	Richard Coveney
APPLICANT
And	Linfox Armaguard Pty Limited
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	27 November 2014
Place	Brisbane

The decision under review is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

COMPENSATION – whether injury arose out of, or in the course of, employment – medical evidence unreliable – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 108A

REASONS FOR DECISION

Deputy President P E Hack SC

27 November 2014

Introduction

1. Mr Richard Coveney was employed by Linfox Armaguard Pty Ltd (Armaguard) as an armed vehicle officer. His duties required him to transport and carry cash, both notes and coin, to various locations in and around Brisbane. Mr Coveney says that as a consequence of a particularly long and arduous work day in December 2012 he suffers from pain to his lumbar spine. His case is that on that day he either aggravated a pre-existing ailment earlier caused by his employment or sustained a separate injury.

2. Mr Coveney made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Armaguard, which is a licensee under the Act, refused his claim. That decision was affirmed on reconsideration.

3. Mr Coveney seeks a review of the decision.

   The legislation

4. No detailed analysis of the Act is required. By a combination of ss 14 and 108A of the Act, Armaguard is liable to pay compensation in accordance with the Act in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work or impairment. There is no doubt that Mr Coveney is an employee of Armaguard and that he has, at least, experienced incapacity for work. The issue in this case is whether he has suffered an injury. That term is defined in s 5A(1) of the Act to mean,

   (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;

   … [thereafter follows an irrelevant exception]

   The term "disease" is defined in s 5B(1) of the Act as follows:

   (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.

   A "significant degree" is defined by s 5B(3) of the Act to mean,

   a degree that is substantially more than material.

   In determining whether an ailment, or an aggravation, was contributed to, to a significant degree, by employment, s 5B(2) of the Act provides:

   (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.

   Factual background

5. Mr Coveney was born 1971. In 2008, when he was 37 years old, he commenced working at Armaguard as an armed vehicle officer. Prior to that employment he had occasional chiropractic treatment for a stiff back but had never sought specific treatment for any back condition. In February 2012 he experienced sudden back pain when he was moving a bag of coins inside the armoured vehicle. Despite the pain, he continued working in order to complete his shift. He attended a chiropractor the following day but obtained no relief. He then consulted his general practitioner on 7 March 2012, one week after the original incident. The doctor suggested over the counter pain medication and certified him as being incapacitated for work.

6. Mr Coveney made a claim for compensation for this incident. It was accepted.
   

   [1]Exhibit 11.

   He returned to work on 26 March 2012 after an absence of just over three weeks, his general practitioner having certified him as fit to return to full duties.[1] Mr Coveney continued working thereafter although there was a change in his pattern of work. He says that he continued to experience lower back pain on his return to work, particularly when he was required to perform heavier or longer lifting activities. When that happened the pain was not such as required him to seek medical attention.

7. On 10 December 2012 Mr Coveney worked a shift that lasted just over 12 hours, a much longer period that he had been used to, to replace another employee who was absent through illness. He says this required him to lift and move a much greater weight of coins than he would normally have done. By the end of the day his back was sore.
   He mentioned his back pain to his supervisor, Mr Stephen Cooper, at the end of the shift although Mr Cooper has no recollection or record of this and is confident he would have made a formal record of a complaint of back pain, had one been made. In any event
   Mr Coveney drove home that evening. His back was stiff and sore and more painful when he arrived home.

8. Mr Coveney was not rostered to work the following day, 11 December 2012. His back, he says, was extremely sore and sensitive when he woke up. Whilst in his kitchen, he bent over to pick up a box and felt a “pop” in his lower back on the left side and extreme pain. He took pain medication and applied heat to his back. He took the following day off work and returned to work on 13 December 2012 but was unable to continue after a few hours. He sought medical treatment and was eventually able to see his general practitioner on 18 December 2012. He lodged the present claim the following day.

9. Armaguard rejected the claim on 26 February 2013. That decision was affirmed on recommendation on 17 April 2013. That decision is the subject of these proceedings, which were commenced on 13 June 2013.

   The medical evidence

10. I had evidence from two specialist neurosurgeons – Dr Leigh Atkinson, called by Armaguard, and Dr Scott Campbell, called by Mr Coveney. I must say that I did not find the evidence of either of much assistance. In his first report[2] Dr Atkinson noted that
    

    [2]Exhibit 4, pages 18-19.

    [3]Exhibit 2.

    Mr Coveney had “a longstanding degenerative condition of the lumbar spine”, and expressed the view that Mr Coveney’s duties in December 2012 aggravated the pre-existing condition. That report makes no reference to, and draws no conclusion from, the “pop” reported by Mr Coveney on 11 December 2012 although I note that Mr Coveney’s statement of 12 September 2013,[3] which makes explicit reference to Mr Coveney experiencing the “pop” in his lower back followed by extreme pain, was included in the material reviewed by Dr Atkinson.

11. In his evidence in the hearing Dr Atkinson expressed the view that the “pop” was a disc injury, an acute disc protrusion or an additional tear to the capsule. He considered that
    Mr Coveney had long-standing age related degeneration. He did not regard the nature of Mr Coveney’s work on 10 December 2012 as being relevant to the injury sustained the following day.

12. There is an evident tension between Dr Atkinson’s first report and his oral evidence (and his second report). I was left with the distinct impression that Dr Atkinson’s first report was written without him having understood, or fully understood, that the relevant history included the complaint of a “pop” in Mr Coveney’s back on 11 December 2012. There were other aspects of Dr Atkinson’s evidence where it appeared to me, with respect, that he was somewhat confused. In these circumstances I conclude that I am unable to rely on the evidence of Dr Atkinson. 

13. Dr Campbell had a different view of the cause of Mr Coveney’s back complaint. He considered that Mr Coveney had sustained an injury to his lower back in February 2012 and that the injury on 11 December 2012, when he experienced sudden and severe symptoms, was brought on by the events of the previous day. He provided a report dated 12 August 2013[4] which dealt with the events of 29 February 2012 and
    10 December 2012 in this way:

    Yes, the work accident on 29 February 2012 caused a lumbar spine injury which was significant. Regarding the injury on 11 December 2012, it is likely that this injury commenced as a result of work duties on 10 December 2012 as Mr Coveney was experiencing significant lower back pain after the busy shift on 10 December 2012. He experienced sudden and severe symptoms the next day on 11 December 2012 when he was bending over at home to retrieve a container. He felt a popping sensation as he bent forward. As this incident was minor it is likely that it was the ‘straw that broke the camel’s back’. In other words, bending to retrieve the item would not have caused a lumbar spine injury had injury not occurred the day before. In addition there was a pre-existing lumbar spine injury dating back to February 2012.

    [4]Exhibit 6.

14. The difficulty I have with Dr Campbell’s evidence (and his conclusions) is that it was informed by a history, and assumptions made by Dr Campbell, not borne out by the evidence. First, Dr Campbell understood that on 10 December 2012 Mr Coveney was required to undertake repetitive lifting of coin bags and emptying ATM machines.[5]

    
    

    He explained[6] that he had understood the lifting of coin bags to encompass both the handling of the bags at each end of the journey as well as carrying the bags from the vehicle to the customer’s premises or the reverse. He was not aware that Mr Coveney used a trolley to carry the coin bags between the vehicle and the customer’s premises and had assumed that the bags were required to be carried. So far as the element of “repetitive” lifting is concerned Dr Campbell had “a picture”[7] of 10 to 15 or more occasions when Mr Coveney was required to lift and carry coins bags. Additionally, he had a “perception” that the bags ranged in weight from 5 kilograms to 10 kilograms. The evidence was that the range was between 4.5 kilograms and 6.6 kilograms. Finally,

    
    

    Dr Campbell considered the February 2012 injury to have required Mr Coveney to take six weeks off work; in reality he was absent for a little over three weeks.

    [5]Exhibit 6, page 2.

    [6]Transcript page 27, line 47 – page 28, line 15.

    [7]Transcript page 29, line 6.

    Consideration

15. Mr Black, counsel for Mr Coveney, put his case on a number of different bases. First, that it was open to find that Mr Coveney suffered an injury simpliciter on
    10 December 2012 brought about by excessive lifting and carrying of coins that day. Next, it was contended that the events of 10 December 2012 aggravated the pre-existing, and accepted, injury of 29 February 2012. Then it was put on the basis that if there was no injury simpliciter on 10 December 2012 the injury brought about by Mr Coveney bending over on 11 December 2012 arose out of his employment as it was the final straw after the strain applied to his back by his duties the previous day. Finally, the case was put on the footing that the injury occasioned by bending over on 11 December 2012 was related to the earlier accepted injury.

16. The last proposition may be disposed of simply. The aggravation of an injury (other than a disease) comes within the definition of disease in paragraph (c) of s 5A(1) of the Act but only if the aggravation “arose out of or in the course of, … employment”.
    The incident on 11 December 2012 occurred in Mr Coveney’s home. He was not undertaking any function connected with his employment. The necessary relationship is entirely absent such that it cannot be said, assuming otherwise that the event of
    11 December 2012 was an aggravation of the earlier injury, that the aggravation arose out of, or in the course of, Mr Coveney’s employment.

17. The first difficulty that attends the other formulations of Mr Coveney’s case arise from the evidence surrounding the factual proposition that Mr Coveney engaged in excessive lifting and carrying of coins on 10 December 2012. Mr Cooper, who was employed by Armaguard as its Operations Logistics Supervisor at the time, has undertaken an analysis of the work undertaken by Mr Coveney on that day. It demonstrates that there were not many occasions during that day and that the weights carried were not excessive. Coins were moved in bags that weighed between 4.5 kilograms and 6.6 kilograms, depending on denomination. There were two crew members and the process required one of them to move the bags of coin once within the rear of the vehicle and thence onto a trolley which was then taken into the customer’s premises where it might again need to be moved.

18. The analysis undertaken by Mr Cooper shows that Mr Coveney and his fellow crew member had 27 stops for deliveries between 8.28am and 6.20pm. On only six of those stops were they required to move coin bags. At 9.19am five bags of coin were delivered. At 10.46am an identical delivery was made to one customer and a further 15 bags delivered to, and nine bags taken from, another customer. At 3.10pm four bags of coin were delivered and a further three at 3.25pm. Then, at 3.56pm, 12 bags were delivered and nine taken out. Finally, at 4.14pm, 12 bags were delivered.

19. Mr Coveney’s case depends upon an acceptance of the opinion of Dr Campbell however that opinion has been reached on the basis of a history unsupported by the evidence.
    In each aspect of the task of carrying coin bags – the number of lifts undertaken, the weight required to be carried and the nature of the task – Dr Campbell’s opinion was informed by a history at odds to that demonstrated by the evidence to be the case. For that reason I am unable to accept the opinions expressed by him. The result is that there is no medical evidence that I regard as being reliable that establishes the necessary connection between Mr Coveney’s employment and his back ailment.

20. It follows that I am not satisfied that Mr Coveney’s ailment satisfies the definition of injury. The decision under review will be affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated   27 November 2014

Date of hearing	12 September 2014
Counsel for the Applicant	Mr M Black
Solicitors for the Applicant	Maurice Blackburn
Counsel for the Respondent	Mr C J Clark
Solicitors for the Respondent	Moray & Agnew