Sagigi and Comcare

[2008] AATA 826

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2980

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALOMA SAGIGI

Applicant

And COMCARE

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of oral decision        11 August 2008

Date of written reasons   16 September 2008

Place  Sydney

Decision The reviewable decision is affirmed.

....................[sgd].........................

Senior Member
  Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1. After the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

COMPENSATION – Customs employee – Injury – “Torn erector spinae muscle” – Medical expenses accepted - Cease liability – Permanent impairment – Claim for - Range of movement - Whether injury - Whether caused by employment – Medical evidence considered – Held no injury – Reviewable decision affirmed

Administrative Appeals Tribunal Act 1975, s 37

Safety, Rehabiliation and Compensation Act 1988, ss 4, 24, 27

Guide to the Assessment of the Degree of Permanent Impairment (2^nd edition), Tables 9.5, 9.6, 9.7

WRITTEN REASONS FOR ORAL DECISION

16 September 2008 Senior Member, Mrs Josephine Kelly     

1. This is my decision in the matter of Aloma Sagigi and Comcare. Ms Sagigi suffered an injury to her lower back on 5 November 1996 when she was working as a customs officer at Sydney International Airport. Liability was accepted by Comcare’s predecessor at that time. She is claiming permanent impairment of 10 per cent pursuant to section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). 

2.      For the reasons that follow, I affirm the reviewable decision.  Ms Sagigi has been unsuccessful.

THE CASE FOR MS SAGIGI 

3. The case for Ms Sagigi was that she suffered an injury to a disk in her lumbar spine on 5 November 1996 and has suffered symptoms ever since. Ms Sagigi gave evidence. Dr Berry, a specialist general surgeon and medico-legal consultant, and Dr Bodel, orthopaedic surgeon, also gave evidence supporting Ms Sagigi’s case. In addition to the material in documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, evidence of a radiological investigation and records from Ms Sagigi’s general practitioner from 2003 were tendered by Mr Stockley who appeared for her.  The material from Ms Sagigi’s general practitioner included two short reports from Dr Rosenberg, orthopaedic surgeon, in 2003 and 2005.  In the 2003 report, Dr Rosenberg took a history of back pain since 1996 resulting from lifting heaving baggage whilst working as a customs officer and also of back and leg pain. The 2005 report was essentially a notification to Ms Sagigi’s general practitioner that Dr Rosenberg had been asked to provide some letters for Ms Sagigi to allow her to access certain services.

4.      Both Dr Berry, who saw Ms Sagigi in 1999, and Dr Bodel, who saw her in 2007, assessed her as having a 10 per cent permanent impairment according to table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment (2^nd edition) (the Guide).  Under the Guide, the relevant criterion is:

Loss of less than half normal range of movement of the thoracolumbar spine.

Both those doctors saw her for medico-legal reasons.

CONSIDERATION

5.      The incident report form relevantly described the incident, or factors leading to injury or illness, as: “After completion of baggage examination.”

6.      The description of the injury or illness included what parts were affected:   “back pain, left hand side following baggage”.  It was also indicated that this was not a recurrence or aggravation of a previous injury. 

7.      The various medical certificates issued after the date of the injury by two doctors, on 5 November 1996, and then in May 1997, indicate that Ms Sagigi saw Dr Kirsh, who referred to her injury to her back after lifting a heavy suitcase.  A CT scan was  normal.  There was tenderness of the left paravertebral region and Ms Sagigi had described having twitches in her back since the injury.  At that time, she was working part time as, she explained during the hearing, she was undertaking a university degree. 

8.      Dr Kirsh treated Ms Sagigi for bilateral heel pain at that time, which, on the evidence, I find was of much greater concern to her than was her back. In fact, Dr Kirsh commented in the second report that “her back was coming along well".

9.        Compensation ceased in August 1997.   Ms Sagigi saw a physiotherapist in October 1997 for her back and feet, and orthotics were recommended.  Ms Sagigi resigned from the customs service on 8 December 1997.  Her evidence was, as I understand it, that she resigned because of financial pressures and stress.  There was a claim for permanent impairment made in 1999 at which time she apparently saw Dr Neil Berry.  For various reasons, that matter was not finalised.  When she saw Dr Berry, he took a history that she had bent over searching a person’s luggage, she straightened and twisted to walk to the next assignment, and as she did, she felt something go in her back.  His diagnosis was discogenic injury.

10.     He speculated that it may be that there had been an annular rupture or internal derangement of the disc rather than frank protrusion.  As I have said earlier, he found a 10 per cent whole person impairment under Table 9.6 of the Guide. 

11.     Dr Bodel ascribed no rating under Table 9.5 of the Guide but did assess Ms Sagigi’s impairment as 10 per cent under Table 9.6 of the Guide.  I note that there were, throughout the evidence of Ms Sagigi and the histories given to the various doctors, some inconsistencies in the evidence.  For example, she told Dr Bodel that she had resigned her employment because she could not cope with the level of back pain. That is not what the evidence was before me, as I have already described.

12.     The critical evidence in this case is essentially that of Dr McGill, and his findings on three occasions in 2001, 2003 and 2006, that  Ms Sagigi had a full ability to bend, a full range of movement in her back.  Mr Stockley sought to deal with that finding on those three different occasions by relying on evidence Dr Bodel gave orally.  That is that there is a variability of symptomatology or level of ability to move and hence Dr McGill’s findings were within that normal range of variability.  The difficulty I have with this is that what I am seeking to deal with in this case or to find, is an allegation or assertion for permanent impairment.

13.     Under section 4 of the Act, “permanent” is defined to mean, “likely to continue indefinitely.”  And “impairment” means “the loss of the use or the damage or malfunctioning of any part of the body or any bodily system function or such a system or function.”  In my view, especially given that the findings and observations of Dr McGill were not challenged but rather accepted as having been observed by that doctor, I simply cannot make a finding that there was any relevant impairment or permanent impairment on the evidence before me.  And that would be even assuming that Doctors Bodel and Berry were correct in their diagnoses that the current condition suffered by Ms Sagigi was a result of her employment, which I do not accept as I prefer Dr McGill’s explanation.

14.     I am not criticising Ms Sagigi when I make that finding.  I think it is somewhat difficult to remember how long one has had back injuries, the extent to which they may have improved and then returned..   

15.     I find Dr McGill’s evidence that the back condition may be related to other factors or an underlying degenerative condition, more plausible, given that he has seen this patient on three occasions, whereas Dr Berry and Dr Bodel have only seen her on two occasions.  Dr Rosenberg has not given a detailed opinion and diagnosis in the short report to the treating GP.  I quote from Dr Rosenberg’s report of 15 December 2003. In summary, he had seen Ms Sagigi for a review and had taken the back history as I have previously described.  He found that Ms Sagigi was tender at the lumbrosacral level:

She forward flexes to her shins but has to climb up slowly in the way of extension.  Straight leg raising is unimpeded and neurological examination is normal.

16.     He sent her for X-rays which revealed “some slight loss lumbrosacral disc height but no evidence of significant instability.”  And his conclusion was:

Her story is strongly suggestive of a chronic disc problem.  Nevertheless, I have recommended a back strengthening regime aimed at strengthening her spinal and abdominal muscles.  She needs to exercise regularly, particularly walking, swimming and a bike [sic].  Should her symptoms become unmanageable, I would investigate her further with an MRI scan. 

17.     I note that Dr Rosenberg saw her again in 2005, but that was not for the purpose of reviewing her in terms of providing treatment recommendations, but rather to provide letters.

18.     So overall, my conclusion is that the injury that Ms Sagigi suffered in November 1996 is not the cause of her current symptoms but further, and more importantly on the evidence, particularly of Dr McGill, I cannot find that she has any permanent impairment relevantly under Table 9.6 and I do note also that Dr Bodel found that she did not have a permanent impairment under Table 9.5.  So as previously stated, for those reasons, the decision under review is affirmed. 

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: ……[sgd]..………..

Steven Mulipola, Associate

Date of hearing:  7 & 8 August 2008

Date of oral decision:  11 August 2008

Date of written reasons:                 16 September 2008

Counsel for the Applicant:             Mr P Stockley

Solicitors for the Applicant:           Capital Lawyers

Counsel for the Respondent:        Miss R Henderson

Solicitor for the Respondent:        Australian Government Solicitor