Schodde and Comcare (Compensation)
[2015] AATA 598
•17 August 2015
Schodde and Comcare (Compensation) [2015] AATA 598 (17 August 2015)
Division GENERAL DIVISION File Number
2014/1313
Re
Stuart Schodde
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 17 August 2015 Place Adelaide The decision under review is affirmed.
.................. [Sgd] .................................
Deputy President K Bean
CATCHWORDS
COMPENSATION - Disc degenerative changes in lower lumbar spine - Applicant attributes to prolonged sitting at work - Employment did not make significant contribution to degenerative condition - No evidence of disc prolapse, protrusion or disturbance at work - Limited jurisdiction to consider aggravation of degenerative condition - Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
CASES
Abrahams v Comcare (2006) 93 ALD 147
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
REASONS FOR DECISION
Deputy President K Bean
17 August 2015
The applicant, Mr Schodde, is 34 years old and has worked for the Department of Human Services (Centrelink) since he was 19. Mr Schodde is currently employed as an APS 4 Customer Service Officer.[1]
[1] Exhibit 1, T6/40.
Unfortunately, in approximately 2010, Mr Schodde began to develop low back pain which worsened over the ensuing few years. In 2013, he also developed sciatica and a CT scan done of his lumbosacral spine in September 2013 revealed “intervertebral disc degeneration L3/4, L4/5 and L5/S1.”[2]
[2] Exhibit 1, T3/7.
On 10 September 2013, Mr Schodde completed a claim for workers’ compensation[3] in respect of the condition “prolapsed lumbar disc L4/L5, L2/3 and L5/S1”.[4] On his claim form he stated that the parts of his body injured were “lower back, right numb leg, severe right leg pain”. Mr Schodde nominated the time when he was injured as “1:00pm on 28 May 2013”.[5] As to the cause of his injury, he nominated “prolonged sitting (13 years of service)”.[6]
[3] Exhibit 1, T6/31.
[4] Exhibit 1, T6/32.
[5] Exhibit 1, T6/32.
[6] Exhibit 1, T6/34.
However, by a determination dated 28 November 2013, it was determined that the respondent was not liable to pay compensation to Mr Schodde for the injury and that decision was subsequently affirmed in a reviewable decision dated 14 January 2014.[7]
[7] Exhibit 1, T24/102.
On 17 March 2014, Mr Schodde lodged an application with this Tribunal seeking review of the reconsideration decision of the respondent, and giving rise to these proceedings.
LEGISLATION AND ISSUES
The statutory framework
The Act which is applicable to Mr Schodde’s claim is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and the most relevant provisions of that Act for present purposes are ss 14, 5A and 5B.
Section 14 relevantly provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.[8] Section 5A defines the terms “injury” for the purposes of the SRC Act as including a “disease”:
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
[8] Subsection 14(1).
Section 5B relevantly defines “disease” 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.
The issues
Given the nature of Mr Schodde’s claim therefore, in determining whether he is entitled to compensation in the context of that claim, it will be necessary for me to determine:
(a)What “injuries” or “diseases” are the subject of Mr Schodde’s claim?
(b)Did any claimed injury arise out of or in the course of his employment?
(c)Was any claimed “disease”, or any aggravation of a disease contributed to, to a significant degree, by his employment?
I propose to first identify the condition(s) the subject of Mr Schodde’s claim, and then address the other issues in the context of each particular condition in turn.
MR SCHODDE’S CLAIM
In determining the condition(s) the subject of Mr Schodde’s claim, I must be mindful that claims for compensation can evolve and an employee is not necessarily held in all cases to the terms in which their claim is initially articulated.[9] In Abrahams v Comcare, his Honour Justice Madgwick summarised the position as follows (at [18]):
1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.
2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.
[9] See Abrahams v Comcare (2006) 93 ALD 147.
In this matter, there has been no significant change in the description or understanding of the nature of Mr Schodde’s back condition. All of the medical evidence is essentially to the effect that the cause of Mr Schodde’s symptoms is “disc degenerative changes in the lower lumbar spine”.[10]
[10] Exhibit 8, p 7, [3.1].
Whilst Mr Schodde described his condition in the claim form as “prolapse lumbar disc L4/L5, L2/3 and L5/S1”, construed in light of the additional medical information which has since become available, I consider that the claim should be regarded as one for his degenerative spinal condition, with the asserted cause of or contributor to that condition being “prolonged sitting”.[11] In addition, I consider that Mr Schodde’s claim also incorporates a claim for any disc prolapse, or any other disturbance of one or more discs, which occurred at work on 28 May 2013. In my view, it can also properly be read as incorporating a claim for any aggravation of his degenerative back condition which occurred on 28 May 2013.
THE DEGENERATIVE BACK CONDITION
[11] Exhibit 1, T6/34.
Is the claimed condition an “injury” or a “disease”?
As Mr Schodde himself acknowledged in his evidence, although he has had sudden and significant flare-ups in his symptoms, his back condition was of insidious onset and was not associated with a discrete event on a particular day. The two doctors who gave evidence in this matter, Mr Schodde’s General Practitioner, Dr Wenceslaus, and an Orthopaedic Surgeon, Mr Robin Jackson, both also agreed that the condition was one of gradual onset and development of symptomatology.
On the basis of the evidence before me, I therefore consider that the condition is more correctly characterised as a “disease” for the purposes of the SRC Act than an “injury” simpliciter.
Has the condition been contributed to, to a significant degree, by Mr Schodde’s employment?
As I have already indicated, Mr Schodde attributes his degenerative spinal condition to prolonged sitting at work. However, the difficulty with his case in this regard is that it finds no support in the medical evidence.
The most relevant evidence before me directed to this issue is that of Mr Jackson. In his report dated 29 July 2014, he responded to the question of whether Mr Schodde’s back condition was contributed to, to a significant degree, by his employment as follows:
It is a condition, but this has not been contributed to, to a significant degree by his employment duties with Centrelink. Disc degeneration is to a very significant degree based on genetic factors. There are many other factors that can contribute to the condition, not the least of which is smoking which affects the intervertebral discs, which do not have a distinct blood supply as such and metabolism is therefore generally anaerobic. There is a build up of lactic acid and this is aggravated by smoking. Many other factors can play a part here to include previous trauma and various lifestyle factors.[12]
Mr Jackson confirmed this opinion in his oral evidence. Under questioning at the hearing, he confirmed that prolonged sitting could cause an increase in symptoms, but in his opinion, it would not and did not cause any change to Mr Schodde’s underlying pathology.
[12] Exhibit 8, p 7, [3.2].
As I have indicated above, Mr Schodde’s General Practitioner, Dr Wenceslaus, also gave oral evidence at the hearing in which he indicated his agreement with Mr Jackson that Mr Schodde’s employment had not contributed to his degenerative back condition.
As there is no medical evidence before me to the contrary, I am accordingly satisfied that Mr Schodde’s employment did not make a significant contribution to his degenerative back condition and accordingly the condition itself is not compensable.
DID MR SCHODDE SUFFER A COMPENSABLE DISC DISTURBANCE ON 28 MAY 2013?
As I have noted above, there is another possible interpretation of Mr Schodde’s compensation claim form. That interpretation is that it amounts to or includes a claim for a disc prolapse or some other disturbance of one or more discs, occurring on 28 May 2013. In this context, I note that in the decision of Health Insurance Commission v Van Reesch[13], the Full Court of the Federal Court held that a disc prolapse, which was not an inevitable consequence of a pre-existing back condition, could in some circumstances properly be identified as an “injury”. However, even if Mr Schodde’s claim is construed in that way, his case faces several difficulties.
[13] (1996) 45 ALD 302.
The first and most fundamental difficulty is that even accepting that he had an acute onset of symptoms, including sciatica, on 28 May 2013, there is no medical evidence to support the proposition that this was due to some disturbance of his lumbar discs which occurred at or arose out of his work.
There is ample documentation of the fact that Mr Schodde did experience an exacerbation of back pain, and sciatica on or about 28 May 2013.[14] On 12 June 2013, Mr Schodde apparently reported that this “had no apparent cause” although it resulted in him needing a week off work.[15] He is recorded as having advised his supervisor, Ms Maxwell, on 3 June 2013, that he “only noticed the pain in his lower back when he was walking to the bus stop” having left work at 1:00pm on 28 May 2013.[16] In his compensation claim form, Mr Schodde also reported the time when he first noticed symptoms as “13:00”.[17] He reported to his General Practitioner on 30 May 2013 that he had experienced “gradual onset of LBP with sciatica”.[18]
[14] See Exhibit 1, T6/24.
[15] Exhibit 1, T6/24.
[16] Exhibit 1, T8/52.
[17] Exhibit 1, T6/32.
[18] Exhibit 1, T17/80.
In his oral evidence at the hearing, Mr Schodde gave varying accounts of exactly what he experienced on 28 May 2013. He initially indicated that he noticed the acute back and leg pain when he “got up to go home” on 28 May 2013, or in other words at about 1:00pm on that day. Under cross-examination, he later agreed that he did not feel any pain until he was walking to the bus stop, consistently with the account of his supervisor of what he said on 3 June 2013.
Mr Schodde also indicated during his oral evidence that his account of what occurred on 28 May 2013 to Mr Jackson was correct. Mr Jackson recorded this as follows:
Mr Schodde did not describe any specific incident of trauma. He described to me that on a Friday, while at work and towards the end of his work day, he had noticed some low back pain. He said that he mentioned this to his supervisor at the time. He went home. He said he woke up on the Saturday morning with severe pain in his back, severe pain in his right leg and some severe numbness in the right leg, such that he was having difficulty getting out of bed. He again confirmed that there was no incident of trauma at work. He said that due to his severe pain, he was unable to seek medical attention over the weekend.[19]
Later in his report, Mr Jackson stated:
He did not sustain an aggravation of a pre-existing condition. All that has occurred here is that he has had a spontaneous onset of symptomatology from his degenerative spinal condition. This is, in fact, a common occurrence. Many people will attribute a specific incident of trauma as the cause of their low back pain but it is generally recognised in many cases and probably the majority occur in a spontaneous fashion and that, I believe, has been the situation with Mr Schodde.[20]
[19] Exhibit 8, p 3. 28 May 2013 was actually a Tuesday. However, it appears Mr Jackson may have incorrectly assumed the relevant day was a Friday.
[20] Exhibit 8, p 7, [3.2(b)].
However, even assuming that Mr Schodde had an acute episode of low back and/or leg pain whilst at work on 28 May 2013, there is no medical evidence to suggest that this was secondary to any prolapse, protrusion or other disturbance of his low back pathology. Mr Jackson gave evidence that disc protrusions often develop slowly over time and that he had no evidence that prolonged sitting contributed to disc protrusions.
Accordingly, even if I were to accept, notwithstanding his inconsistent accounts, that Mr Schodde did experience an acute exacerbation of symptoms before he left work on 28 May 2013, I have concluded that there would be no sufficient basis for a conclusion that this was secondary to a disc prolapse/protrusion or other disturbance of Mr Schodde’s lumbar discs, so as to potentially amount to a physiological change sufficient to constitute an “injury” within the meaning of the SRC Act.[21] Rather, on the evidence before me, it was simply an episode of symptomatology secondary to his underlying degenerative back condition.
[21] See also May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93.
THE AGGRAVATION ISSUE
Under questioning during the hearing, both Mr Jackson and Dr Wenceslaus acknowledged that prolonged sitting had the potential to render Mr Schodde’s back condition more symptomatic, and that it was quite possible that increased pain due to prolonged sitting may persist for 48 hours or longer. Dr Wenceslaus further indicated that, in respect of at least some of Mr Schodde’s absences from work due to increased back pain, the increased pain appeared to be related to his work. The dates nominated by him as being relevant in this regard included 4 August 2014 and 5 December 2014.
Given that the evidence before me suggests at least the possibility of Mr Schodde suffering compensable aggravations of his back condition resulting in incapacity for work, I have considered whether I have jurisdiction with respect to any claim for an aggravation. Having regard to the applicable authorities however, including Abrahams, I have concluded that it is not tenable to regard Mr Schodde as having claimed compensation for an aggravation of his back condition on any date other than the date referred to in his claim form, namely 28 May 2013. It follows from the absence of any claim for compensation in respect of an aggravation (other than on 28 May 2013), and any determination or reconsideration of such a claim, that the Tribunal has no jurisdiction to address the question of whether Mr Schodde has in fact suffered from any such aggravation(s) giving rise to an entitlement to compensation. Should Mr Schodde wish to pursue compensation for one or more aggravations of his condition (other than on 28 May 2013), he will need to lodge fresh claims for compensation accordingly.
As to any aggravation suffered on 28 May 2013, as I have indicated above, I consider that it is possible to construe Mr Schodde’s claim form as incorporating a claim for an aggravation of his condition occurring on that day. With respect to that claim however, there are two difficulties.
The first is the inconsistency between the accounts Mr Schodde has given of what occurred on that day. Doing the best I can to reconcile these accounts, I consider that the preponderance of the evidence points to Mr Schodde first experiencing extreme pain, and leg symptoms, on that day, at around the time he left work, at 1:00pm (being the time nominated on his claim form).
However, whilst that conclusion addresses the first problem, the second problem is more fundamental. That is that there is no medical evidence to link this particular episode of pain with any activity at work, including prolonged sitting. Nor is there evidence from Mr Schodde as to how much he sat on that day, noting that he left work at 1:00pm on that day, having arrived at 8:29am.[22]
[22] Exhibit 1, T11/60.
In his contemporaneous notes of 30 May 2013 Mr Schodde’s General Practitioner, Dr Watson, simply noted “gradual onset of LBP with sciatica”.[23] Dr Wenceslaus was not in a position to address the possibility of this having been a work-related aggravation, not having seen Mr Schodde for the first time until 13 September 2013.[24] Mr Jackson did not clearly address the possibility of this specific episode being a work-related aggravation in his report. However, he said in his oral evidence that he regarded Mr Schodde’s symptoms on the day in question as being of “spontaneous onset” and that they could “occur at work, at home, anywhere”. Therefore, insofar as he did address this issue, his opinion appears to have been that the flare-up of Mr Schodde’s symptoms which occurred on 28 May 2013 was spontaneous and not related to any activity at work.[25]
[23] Exhibit 1, T17/80.
[24] Exhibit 2, ST15/127.
[25] Exhibit 8, p 7, [3.2(b)].
Accordingly, although I accept that I have jurisdiction to consider whether Mr Schodde suffered a compensable aggravation of his back condition on 28 May 2013, I am not satisfied on the evidence that the flare-up of symptoms he experienced on 28 May 2013 did amount to a compensable aggravation of his condition. I have reached that conclusion because I am not satisfied that his employment made a significant contribution to any aggravation of his back condition which Mr Schodde suffered on that day, so as to satisfy s 5B of the SRC Act.
CONCLUSIONS
My conclusions can be summarised as follows:
(a)Mr Schodde’s claim for compensation is properly regarded as incorporating claims for compensation in respect of his degenerative back condition, any disc prolapse or disc disturbance on 28 May 2013, and any aggravation of his degenerative back condition which occurred on 28 May 2013;
(b)Mr Schodde’s degenerative back condition is properly regarded as a “disease” for the purposes of the SRC Act;
(c)Mr Schodde’s employment has not made a significant contribution to his degenerative back condition, or aggravated his condition in any ongoing way, and therefore the condition itself is not compensable;
(d)The evidence does not support a conclusion that Mr Schodde suffered a disc prolapse or any other disc disturbance capable of amounting to a compensable “injury” on 28 May 2013;
(e)The Tribunal does not have jurisdiction to consider whether Mr Schodde has suffered any compensable short-term aggravation(s) of his back condition, apart from any potential aggravation suffered on 28 May 2013; and
(f)The evidence does not support a conclusion that Mr Schodde suffered a compensable aggravation of his degenerative back condition on 28 May 2013.
Accordingly, in light of those conclusions, I am obliged to affirm the decision under review, which denied liability for Mr Schodde’s degenerative back condition.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ......... [Sgd].......................................
Associate
Dated 17 August 2015
Dates of hearing 23 and 24 April 2015 Applicant In person Counsel for the Respondent Ms R Gray Solicitors for the Respondent Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Judicial Review
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Jurisdiction
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