Sandra Kelman and Prosegur Australia Pty Ltd
[2014] AATA 675
•16 September 2014
[2014] AATA 675
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1587
Re
Sandra Kelman
APPLICANT
And
Prosegur Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Professor P Reilly AO, MemberDate 21 August 2014 Date of written
reasons16 September 2014 Place Adelaide The decision under review is affirmed.
........... [Sgd] ....................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Whether applicant suffered an aggravation of her thumb osteoarthritis – Whether any aggravation resulted in incapacity or impairment – Short-term increase in symptoms when performing work duties – Applicant experienced pain with certain activities whether at work or at home – Pain experienced was the result of the underlying condition itself – No incapacity for work – No impairment – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5B, 14
CASES
Commonwealth v Beattie (1981) 53 FLR 191
Re Smith and Comcare (1995) 39 ALD 715
Tippett v Australian Postal Corporation [1998] FCA 335
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Re McKinnon and Australian Postal Corporation [2001] AATA 297
Australian Postal Corporation v Bessey [2001] FCA 266
Re Fyfe and Comcare [2000] AATA 769
Re Hopper and Comcare [2001] AATA 53Bowman v Comcare Australia [2000] FCA 88
REASONS FOR DECISION
Deputy President K Bean
Professor P Reilly AO, Member16 September 2014
The applicant, Mrs Kelman, is currently 51 years old. In approximately April 2008, she commenced employment with the respondent, then known as Chubb Security Services Limited (Chubb), working in the respondent’s cash handling room at Hindmarsh, in Adelaide. As a cash handler, Mrs Kelman was responsible for packing automated teller machine (ATM) money cassettes with monetary notes, among other duties. Mrs Kelman initially worked five days a week, but her hours progressively decreased to the point where during 2012 she was only working six hours, two days per week.
In about February 2012, Mrs Kelman began to experience pain in her thumbs. She did not immediately report this, as she expected it to settle. However, the pain persisted and Mrs Kelman sought medical advice and treatment. X-rays taken in September 2012 subsequently revealed that Mrs Kelman was suffering from osteoarthrosis of the joints at the base of both her thumbs “slightly more marked on the left side”.
On 25 September 2012, Mrs Kelman lodged a claim for workers’ compensation[1] for “bilateral thumb CMCJ osteoarthrosis”.
[1] Exhibit 1, T7/19.
Having considered that claim and sought medical opinion in relation to it, on 2 November 2012, the respondent determined that it was not liable to pay compensation in respect of Mrs Kelman’s “bilateral thumb base pain”.[2] Mrs Kelman subsequently sought reconsideration of that determination and on 22 February 2013,[3] the respondent issued a reconsideration decision affirming the determination that the respondent was not liable to pay compensation in respect of “bilateral thumb base pain”.
[2] Exhibit 1, T18/65.
[3] Exhibit 1, T22/84.
On 11 April 2013, Mrs Kelman applied to this Tribunal for review of the reconsideration decision, giving rise to these proceedings.
Before defining and addressing the issues which arise from the application more directly, we will first outline the relevant aspects of the applicable statutory framework.
We should also add that following the hearing on 13 August 2014, our Reasons were delivered orally on 21 August 2014. This written version of our Reasons has been prepared in response to the applicant’s request of 25 August 2014.
THE STATUTORY FRAMEWORK
The applicable Act, being the Safety, Rehabilitation and Compensation Act 1988 (the Act) relevantly provides that an employer is liable to pay compensation to an employee in respect of “an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.[4]
[4] Section 14(1).
The Act also relevantly defines an “injury” as including “a disease suffered by an employee”,[5] and s 5B of the Act defines “disease” as follows:
[5] Section 5A(1).
(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.[6]
[6] “Aggravation” is also defined in s 4 of the Act to include “acceleration or recurrence”.
For completeness, subs 7(6) of the Act provides as follows:
An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
Subsection 4(9) also provides:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
ISSUES
It follows that, in broad terms, the question before us is whether the respondent is liable to pay compensation to Mrs Kelman in respect of her bilateral thumb base pain. This in turn requires us to address the following questions:
(a)Whether Mrs Kelman suffers from a “disease” within the meaning of s 5B of the Act, and in particular:
(i)does Mrs Kelman suffer from an ailment which has been contributed to, to a significant degree, by her employment with Chubb; or
(ii)has she suffered an aggravation of such an ailment which was contributed to, to a significant degree, by her employment; and
(b)If Mrs Kelman has suffered a “disease” within the meaning of the Act, has that disease resulted in “incapacity” or “impairment” such that she is entitled to compensation pursuant to s 14 of the Act?
However, with respect to the first issue, in the event, all of the doctors who gave evidence in this matter agreed that Mrs Kelman’s employment did not actually make any contribution to her thumb arthritis. In light of that evidence, Mr Richter, who appeared as counsel for Mrs Kelman, conceded at the hearing that her thumb arthritis was not caused or contributed to by her employment, and we consider that concession to have been properly made. Accordingly, the only live issues before us are whether Mrs Kelman’s employment contributed to an aggravation of her condition and, if so, the duration of any aggravation and whether it gives rise to liability under s 14 of the Act.
For abundant clarity, there is no dispute that Mrs Kelman suffers from osteoarthritis of the joints at the base of her thumbs. However, what is in issue between the parties is the extent to which her cash handling duties interacted with her arthritis in such a way that it resulted in increased symptoms, and whether any such increase in symptoms can be characterised as an “aggravation” attracting compensation liability.
It is in that context that we will proceed to discuss the most relevant aspects of the evidence, before turning to our analysis of the legal issues, and outlining our conclusions.
THE EVIDENCE
Mrs Kelman’s evidence
Mrs Kelman’s evidence was that there were many aspects of her duties that required pinching or gripping type movements involving her thumbs. These included packing “cassettes” full of cash to be used in automated teller machines, which also involved removing “tamper evident” and relatively thick plastic as well as plastic bands from bundles of notes received from the Reserve Bank, opening and closing the metal cassettes, putting the loaded cassettes into bags which needed to be zipped and unzipped, carrying tubs loaded with notes, counting money and some writing.
Mrs Kelman also said that from the time her symptoms first became pronounced, in mid-2012, she was finding that within 5-10 minutes of starting her cash handling duties in the morning, the base of her thumbs would become quite sore, and they would remain that way throughout the day. However, she also said that her symptoms would abate significantly within 5-10 minutes of finishing work, and by the time she drove home, which took about 40 minutes, the increased symptoms she experienced while working would have settled. She also confirmed that by the time she went to work the next day, or on the next occasion, she would be essentially free of symptoms, until she again commenced her cash handling duties.
Mrs Kelman further confirmed during her evidence that she had not at any time required time off work due to her symptoms, and although she had requested alternative duties, in the event these were not provided. She said she had not worked for Chubb after November 2012 as she was a casual employee and had not been given any shifts after that.
The Medical Evidence
As to whether Mrs Kelman’s duties with Chubb had led to increased symptoms or contributed to any ongoing aggravation of her arthritis, in the event there was no real disagreement between the doctors.
We were fortunate to have the benefit of concurrent evidence from three of the rheumatologists who have provided reports in this matter: Doctors Hill, McGill and Potter. They had conferred immediately before giving their evidence and it quickly became apparent when they commenced giving evidence that they had reached consensus on the main issues. They all agreed that Mrs Kelman was suffering from osteoarthritis of the joints at the base of her thumbs. More significantly, as we have alluded to above, they also agreed that this condition was constitutional and that the condition itself had not been caused or contributed to by her employment with Chubb.
On the question of aggravation, the Tribunal outlined the relevant parts of the evidence given by Mrs Kelman to the doctors. On the basis of that history, all three doctors essentially agreed that they accepted that Mrs Kelman had increased pain in her thumbs whilst carrying out her work duties, due to the nature of those duties. However, they also considered that within a relatively short time of completing her duties on any given day, and certainly within the 40 minutes specified by Mrs Kelman as the time it took her increased symptoms to settle, Mrs Kelman’s condition would have returned to its “baseline” or underlying state. In other words, the pain Mrs Kelman experienced while working was not indicative of any change to the underlying pathology of her condition, or reflective of any worsening or acceleration, or any other change, to the condition. Once her pain had settled, Mrs Kelman’s condition had returned to its pre-existing or underlying state, which was driven and determined by constitutional factors.
The doctors all also agreed that Mrs Kelman’s condition now was the same as it would have been in the absence of her employment with Chubb, and indeed we inferred from their evidence that this had been the case since she last worked for Chubb. Further, the evidence of all three doctors was consistent with the proposition that whilst Mrs Kelman had experienced pain and discomfort when carrying out her duties, that increased pain and discomfort, which ceased when she stopped working, did not itself result in any incapacity for work.
As the concurrent oral evidence of the doctors effectively “superseded” their written reports, we see no need to canvass the contents of those reports, particularly given there is substantial agreement between the doctors on the main issues.
CONSIDERATION
The main issue for our determination therefore is whether the short-term increase in symptoms which the doctors accept Mrs Kelman experienced when performing her duties is sufficient to result in compensation liability pursuant to s 14 of the Act. To be more specific, the first issue is whether Mrs Kelman has suffered an “aggravation” or a “series of aggravations” of her osteoarthritis to which her employment significantly contributed. If so, the second issue is whether this has resulted in any incapacity or impairment so as to give rise to compensation liability pursuant to s 14 of the Act.
We will accordingly address the first of these issues before turning to the second.
Did Mrs Kelman suffer an “aggravation” of her osteoarthritis?
We have carefully considered the authorities to which we were directed by the parties. Having done so, we note that the relevant principles which emerge from them can be summarised as follows:
·Pain brought on by work activity may constitute an aggravation of a pre-existing non-compensable injury even though no pathological change takes place;
·Whether it does or does not is a question of fact;[7]
·An injury will potentially be aggravated if the experience of the injury is increased or intensified;[8]
·The symptoms of an injury, that is the experience of the injury, is part of the injury in respect of which compensation is payable;[9]
·If the pain from an underlying condition is aggravated, that is, increased or intensified, as a result of an employee’s employment, and this results in incapacity, then the employee will probably have suffered a compensable injury;[10]
·If an employee comes to work with a pre-existing condition which causes them to suffer a particular type of pain with certain activities whether they are at work or not, the pain suffered is not properly regarded as an aggravation, but as an effect of the underlying condition itself.[11]
[7] Commonwealth v Beattie (1981) 53 FLR 191.
[8] Tippett v Australian Postal Corporation [1998] FCA 335 at p. 5.
[9] Tippett at p. 5.
[10] Tippett at p. 6.
[11] Tippett at p. 6, and Beattie at p. 201.
We should acknowledge that we were initially disposed to accept on the evidence that Mrs Kelman’s experience of increased pain and discomfort while carrying out her work duties and for a short time thereafter should be regarded as an “aggravation”, or a “series of aggravations” of her underlying condition. However, having carefully analysed the applicable authorities and the principles which emerge from them, we have ultimately concluded that the pain Mrs Kelman experienced while undertaking her duties was not an “aggravation” of her underlying condition as that term is properly understood. Rather, the pain Mrs Kelman experienced was the result of the condition itself, and her experience of that condition was not in fact increased or intensified by her work activities.
We accept that Mrs Kelman experienced more pain at work than she did at other times, because of the nature of tasks she was required to perform at work and the duration for which she performed them. However, as she herself conceded, she experienced, and continues to experience, essentially the same symptoms if she undertakes similar activities at home. In that sense, her situation is analogous to the example given by the Full Federal Court in Beattie, of a worker “whose fractured leg is encased in plaster” and who is “unable to put it to the ground without suffering pain and other disability”. As the Full Court went on to observe, “that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury”.[12] We also note that both Dr McGill and Dr Potter considered that the worker with a leg encased in plaster was an appropriate analogy with Mrs Kelman’s situation, although Dr Hill had some reservation as to this.
[12] Beattie at p. 201.
We should add that we have considered the relevance of the fact that Mrs Kelman’s duties effectively required her to continuously perform duties which caused her discomfort, whereas outside the workplace she could vary her tasks and thus avoid prolonged discomfort. In particular, we have considered whether this fact is sufficient to render her increased symptoms at work an “aggravation” rather than a consequence of the condition itself. While we regard this question as finely balanced, we have ultimately concluded that the mere fact that Mrs Kelman experienced more prolonged discomfort at work than she did away from work is not sufficient to make her experience at work an “aggravation”. On our understanding of the evidence, the discomfort she experienced at work was qualitatively indistinguishable from the discomfort she experienced at other times, although when she was at work it was of longer duration. Noting that whether an aggravation has occurred in any particular instance is a question of fact, we are not satisfied that Mrs Kelman’s more prolonged discomfort at work is properly regarded as an aggravation, particularly in circumstances where the increased pain she experienced at no time required her to cease or modify her usual duties.
Accordingly, on balance, we are not satisfied on the evidence that Mrs Kelman’s work duties brought about an intensification of symptoms which can properly be regarded as an “aggravation” of her condition. Rather, we consider that she experienced the same symptoms at work as she did away from work, albeit she noticed these symptoms more at work because of the nature of her duties.
Did Mrs Kelman suffer incapacity or impairment as a result of any aggravation?
Even if we had accepted that Mrs Kelman had suffered a series of aggravations of her condition, as her counsel Mr Richter conceded, because of the terms of s 14 of the Act, she would not have suffered a compensable injury unless that aggravation had resulted in her suffering “incapacity” or “impairment”.
However, one of the difficulties for Mrs Kelman is that even if the temporary increase in pain she experienced when performing her duties is regarded as an “aggravation”, there is no evidence before us to suggest that that temporary increase in pain lasted longer than, at the most, 40 minutes after the end of the working day, or that it caused her to be incapacitated for work.
We accept that the outcome in this matter may have been different if performance of her duties had caused Mrs Kelman “incapacitating pain” such that she was unable to continue with those duties.[13] However, Mrs Kelman’s evidence was that she did not require any time off work, either because of the condition itself, or any aggravation of it.
[13] Beattie at p. 197.
Although Mr Richter referred us to some medical certificates in the T-documents, those certificates did not certify that Mrs Kelman was incapacitated for work. One of the certificates certified that she was fit for modified duties with the restrictions “avoid forceful pinch gripping, pushing / pulling bilaterally”,[14] and another that she “use braces”.[15] However, even if these certificates could be read as reflecting some relevant incapacity for work, we consider that incapacity to be attributable to Mrs Kelman’s underlying arthritic condition, not any aggravation of it by her work duties. For completeness, we note that some further medical certificates (from Dr Pek) were filed with the Tribunal, although they were not tendered or relied upon at the hearing. However, the content of these certificates is largely similar to those we have referred to and, even if these had been tendered into evidence, they would not have changed our conclusions on the incapacity question.
[14] Exhibit 1, T6/18.
[15] Exhibit 1, T4/16.
Consistently with our conclusions outlined above, we are also not satisfied that Mrs Kelman has suffered any “impairment” as a result of any work-related aggravation of her condition, as opposed to the underlying condition itself. Accordingly, even if she had suffered a work-related aggravation of her condition, in our opinion Mrs Kelman would not have suffered an “injury” resulting in incapacity or impairment, and therefore would not be entitled to compensation under the Act.
We also note that because at best Mrs Kelman’s claim only related to an aggravation, and there is no evidence of incapacity or impairment flowing from any aggravation, even if she had been successful in this matter, Mrs Kelman’s entitlements are likely to have been limited to coverage of any medical expenses attributable to an aggravation of the condition, rather than the condition itself. Therefore the most Mrs Kelman could have hoped to receive if she had been successful in this matter was payment of some medical expenses incurred between July and November 2012. We expect at least some of those expenses, or some proportion of them, would have been covered by Medicare in any event. Ultimately, therefore, there was very little at stake in this matter in financial terms.
CONCLUSION
For the reasons we have given, we have decided that Mrs Kelman has not suffered a work related “aggravation” of her arthritic condition, and even if she had, she would not be entitled to compensation for any aggravation, as it did not result in incapacity or impairment. We have therefore decided to affirm the decision under review.
We should add in case it is not clear from what we have already said that we accept Mrs Kelman's evidence, including with respect to the increased pain she experienced in her hands when performing her duties at Chubb. We also accept that she genuinely believed at the time she gave her evidence, and may still believe, that her condition was either contributed to or aggravated by her work at Chubb. However, for the reasons we have given, on the basis of the medical evidence before us and having regard to the terms of the legislation, we do not consider that she has established an entitlement to be paid compensation.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Professor P Reilly AO, Member ...... [Sgd] .........................................
Associate
Dated 16 September 2014
Dates of hearing 12, 13 and 21 August 2014 Counsel for the Applicant Mr S Richter
Solicitors for the Applicant T F Owen & Co Counsel for the Respondent Mr P Woulfe Solicitors for the Respondent Moray & Agnew
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