Shoesmith and Comcare
[2003] AATA 1136
•12 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1136
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/233
GENERAL ADMINISTRATIVE DIVISION ) Re LEE SHOESMITH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date12 November 2003
PlaceCanberra
Decision The decision under review is set aside. In it’s place the Tribunal decides that Comcare is liable to pay Ms Shoesmith compensation for reasonable medical treatment costs and partial incapacity during the period from 27 August 2001 to 13 November 2001.
Comcare is to pay Ms Shoesmith’s reasonable costs as agreed or taxed................................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - liability – injury - incapacity - medical treatment costs - lumbar and cervical intervertebral disc conditions - whether injury - whether aggravation of pre-existing condition - whether injury or aggravation have ceased - whether suitable duties – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 16, 19
CASELAW
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Commonwealth v Beattie (1981) 35 ALR 369
REASONS FOR DECISION
12 November 2003 Mr S. Webb, Member 1. Ms Lee Shoesmith alleges that she injured her neck and back on 27 August 2001 in the course of her employment at the Calvary Hospital while performing the duties of an Enrolled Nurse. She lodged a compensation claim for “right sciatica” and “aggravation of cervical derangement” on 2 November 2001 (T5) and is seeking payment of compensation for medical treatment costs and incapacity arising from the alleged injury.
2. Comcare rejected her claim for compensation on 27 February 2002 (T16). Comcare determined that Ms Shoesmith’s claimed conditions were not caused or aggravated by her employment. The decision was reconsidered on Ms Shoesmith’s request (T18) and was affirmed on 24 May 2002 (T23).
3. Ms Shoesmith is not satisfied with the decision to reject her claim for compensation and applied for review by this Tribunal (T1).
legal principles
4. Ms Shoesmith’s claim is under the Safety, Rehabilitation and Compensation Act 1988 (the Act)[1]. For compensation to be payable under the Act the injury or disease in question must have arisen out of or in the course of employment. In the case of an employee with a pre-existing injury, it must be shown that an aggravation of that injury arose out of or in the course of the employment (s.4). If an injury or disease is work-related the Act creates a liability in Comcare to compensate the employee (s.14), inter alia, for periods of incapacity (s.19) and for reasonable medical treatment costs (s.16).
[1] Relevant statutory provisions are reproduced in Schedule 1 to these reasons.
evidence
5. Ms Shoesmith gave oral evidence and her representative, Mr Graeme Lunney of counsel, called Dr Robert Cox, Dr Leon Le Lou and Ms Petra Doerfling to provide written and oral testimony. Mr Charles Clark of counsel represented Comcare and called Ms Lynne Murray and Dr Joan Chen to give evidence. The following materials were taken into evidence and labelled.
exhibit description
T1 – T25Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Ex A1Report by Dr Leon Le Lou dated 13 March 2003.
Ex A2Report by Dr Robert Cox dated 9 September 2003.
Ex A3Statement by Ms Petra Doerfling dated 8 July 2002.
Ex A4Assessment sheet dated 4 August 1999.
Ex R1Report by Dr Joan Chen dated 22 January 2003.
Ex R2Clinical notes of Dr Robert Cox.
Ex R3Print Staff History List from 7 June 2001 to 20 November 2001.
Ex R4CHS Relief annual attendance records from 1 January 2001 to 19 December 2001.
Ex R5Accident report by Ms Shoesmith dated 12 October 2001.
Ex R6Calvary Health Care ACT Emergency Department referral to GP/specialist dated 4 June 2001.
Ex R7Calvary Hospital ACT Inc. Vertebral Assessment dated 1 February 2001.
Ex R8Statement by Ms Lynne Murray dated 19 December 2001.
Ex R9Statement by Ms Helen Jeffers dated 20 December.
Ex R10Statement by Ms Judith Ducker dated 3 December 2001.
Ex R11Calvary Health Care ACT Medical Imaging Assessment Examination report by Dr Brendan Cranney dated 4 June 2001.
Ex R12Calvary Hospital ACT Inc. Emergency Department episode cover sheet dated 23 December 1995.
background
6. The following factual findings are drawn from the documentary and oral evidence.
7. Ms Shoesmith was employed as a Nursing Assistant at the Mirrinjani Nursing Home on 7 January 1999. She was registered as an Enrolled Nurse by the ACT Nurses Board on 7 May 1999. In July and August 1999, Ms Shoesmith complained of right shoulder and right buttock symptoms that were consistent with the claimed conditions in this case (Ex A4 and Ex R2, f31). She commenced employment as an Enrolled Nurse at the Calvary Hospital on 11 October 1999.
8. Ms Shoesmith claimed she injured her neck and lower back at work at the Calvary Hospital on 27 August 2001 (T5) and 19 September 2001 (Ex R5). She was treated by Dr Robert Cox, general practitioner, and Mr Adrian Rumore, physiotherapist. On 11 October 2001 Dr Cox certified that she was fit for modified duties and should avoid heavy lifting and bending (T4).
9. On 2 November 2001 Ms Shoesmith lodged a claim for compensation (T5). Subsequently, she consulted Dr Cox on 13 November 2001 but Dr Cox did not extend his medical certificate (Ex R2, f38). Dr Cox made no further reference in his clinical notes to the claimed conditions or any related symptoms in subsequent consultations with Ms Shoesmith until 22 January 2002, when he noted “Still sciatica in R leg, buttock, down back of leg to ankle. Numbness of both feet.” (Ex R2, f39).
10. On 15 October 2001 Ms Shoesmith was advised of concerns about her performance at work. On 29 October 2001 Dr Cox informed her that she was pregnant. On 14 December 2001 Dr Cox certified that she was unfit for work because of her pregnancy and related complications (Ex R2, f57).
summary findings
11. Ms Shoesmith suffers from discogenic cervical and lumbar spine conditions. Both conditions were symptomatic prior to her employment at the Calvary Hospital on 11 October 1999.
12. Ms Shoesmith’s employment as an Enrolled Nurse at Calvary Hospital and the duties she performed on 27 August 2001 aggravated her pre-existing cervical and lumbar spine conditions. The effect of the aggravation was that Ms Shoesmith experienced increased pain and paraesthesia for a limited period and required medical treatment. This constitutes an injury under the Act that is compensable.
13. The injury resulted in a period of partial incapacity. Ms Shoesmith was able to perform her duties as an Enrolled Nurse after 27 August 2001 but took short periods of time off work because of her injury. Dr Cox certified that she was only fit to perform restricted duties from 11 October 2001. This constitutes an incapacity to engage in work at the same level Ms Shoesmith was otherwise engaged as an Enrolled Nurse.
14. The effects of the aggravation ceased by 13 November 2001. Ms Shoesmith consulted Dr Cox on that day but Dr Cox did not extend his previous medical certificate specifying restrictions on her fitness for work (T4).
15. It follows that Comcare is liable to pay Ms Shoesmith compensation for reasonable medical treatment costs and partial incapacity during the period from 27 August 2001 until 13 November 2001.
decision
16. The decision under review is set aside. Comcare is liable to pay Ms Shoesmith compensation for reasonable medical treatment costs and partial incapacity during the period from 27 August 2001 until 13 November 2001.
17. Comcare is to pay Ms Shoesmith’s reasonable costs as agreed or taxed.
reasons for decision
18. In making this decision I have carefully considered all the evidence placed before me as well as the submissions of the parties, the relevant caselaw and legislation.
19. I find Ms Shoesmith is a witness of truth. While there are material inconsistencies in her evidence and in the history she gave to medical practitioners when assessing her claimed conditions, I am satisfied that Ms Shoesmith is not a person of guile or deceit. Having the benefit of observing her during the hearing I accept that her mind and her memory may have been clouded by concerns about her family circumstances. Nonetheless, her uncorroborated evidence must be treated with caution.
20. The issues before the Tribunal concern the nature and onset of the claimed conditions, whether these conditions have arisen from or in the course of Ms Shoesmith’s employment at the Calvary Hospital and whether she suffers any incapacity as a result.
diagnosis and onset of the claimed conditions
21. Ms Shoesmith suffers from a discogenic neck with referred pain into her right shoulder and arm and from a lumbar disc protrusion causing referred pain into her right buttock and leg. Despite the paucity of neurological and radiological evidence, there is considerable consistency in the diagnoses proffered by Drs Cox, Le Lou and Chen in this matter, which I accept.
22. Ms Shoesmith has a history of problems with her neck and back predating her employment at the Calvary Hospital (see Ex R12 and A4) for which she received treatment (see Ex R2, f11 and f31). During her employment at the Mirrinjani Nursing Home in July 1999, for example, Ms Shoesmith experienced pain in her neck, for which she was treated by Dr Cox, on 28 July 1999 and 5 August 1999 (Ex R2, f31). On referral by Dr Cox, she was treated for neck, right shoulder and “cramping” right buttock pain by Ms Wendy Moss, physiotherapist, on 4 August 1999 and 2 September 1999 (Ex A4 and Ex R2, f61).
23. Dr Cox accepts that these symptoms “could have been caused by a mild case of the lumbar disc bulge at that time” (Ex A2, p1), but he is of the opinion that Ms Shoesmith’s “work as a nurse was the cause of her lumbar disorder” resulting in an “occupational lumbar disc bulge over the four months prior to 27.8.01” (T14, p1). Drs Le Lou and Chen arrive at a different conclusion. Dr Chen is of the opinion that Ms Shoesmith has a constitutional degenerative low back condition (Ex R1, p8), reporting “when she was working at Mirrinjani Nursing Home, from time to time she experienced right and left paralumbar back ache” (Ex R1, p2). Dr Le Lou is of the opinion that Ms Shoesmith’s lumbar spine disorder pre-dated her employment at the Calvary Hospital, noting that a horse-riding accident in 1990, in which Ms Shoesmith fractured her pelvis, would “very likely have resulted in a degree of damage to her lower back” (Ex A1, p11).
24. I prefer the evidence of Dr Le Lou and Dr Chen over that of Dr Cox on this point. Their conclusions are consistent with and are supported by the evidence of Ms Moss (Ex A4 and Ex R2, f61) and Ms McOab (Ex R7), physiotherapists, and the history of symptoms given by Ms Shoesmith in evidence. Furthermore, the similarity of symptoms reported by Ms Shoesmith in 1999 and 2001 suggests the existence of ongoing underlying cervical and lumbar spine conditions.
25. Whatever the original cause of the claimed conditions, the weight of the medical evidence compels me to conclude that the discogenic cervical and lumbar spine disorders were present prior to Ms Shoesmith’s employment at the Calvary Hospital on 11 October 1999. It is also clear that these conditions were exacerbated by certain activities and required treatment from time to time prior to the incidents that gave rise to her claim for compensation (see Ex R6, R7 and R11).
injury
26. The question before the Tribunal is whether Ms Shoesmith’s employment at the Calvary Hospital materially contributed to aggravate her cervical and lumbar spine conditions. An increase in the symptoms of an underlying condition or a pre-existing injury may constitute an aggravation, and therefore an injury, under the Act (see Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44; Commonwealth v Beattie (1981) 35 ALR 369 at 378). Ms Shoesmith claimed that her duties on or before 27 August 1999 caused her to experience “pulsing pain in right leg and hip, numbness and pins and needles and cramping in right buttock, pain in lower back constantly, aggravation of pre-existing neck pain extending to right arm” (T5, f7).
27. I am satisfied, on the balance of probabilities, that the work of manoeuvring and making hospital beds and assisting patients on 27 August 2001 materially contributed to aggravate Ms Shoesmith’s pre-existing discogenic cervical and lumbar spine disorders. I am also satisfied, on the evidence, that the increased pain and paraesthesia Ms Shoesmith experienced after 27 August 2001 constituted more than a temporary flare-up of a previous complaint and required medical treatment.
28. Dr Le Lou is of the opinion that both of Ms Shoesmith’s claimed conditions may have been temporarily exacerbated by her employment (Ex A1, p11). Dr Chen agrees to the extent that “the work demands at the Calvary Hospital may have caused temporary symptomatic exacerbation of the neck and low back condition” but notes, however, “[t]he pre-existing cervical and lumbar disc degenerative conditions could wholly account for [Ms Shoesmith’s] symptoms” (Ex R1, p8). Dr Cox and Mr Rumore are of the opinion that Ms Shoesmith’s duties at the Calvary Hospital caused her symptoms of increased pain and paraesthesia in the period following 27 August 2001, which they treated.
29. I accept this evidence and am satisfied that the intensification of Ms Shoesmith’s symptoms on and after 27 August 2001 was materially caused by her employment at the Calvary Hospital performing duties that required bending, twisting and lifting. I do not accept that Ms Shoesmith’s submission that her employment at the Calvary Hospital caused her underlying lumbar spine condition. There is a distinction to be drawn between the re-emergence or increase of certain symptoms as the result of an aggravation of a previous injury or disease and the previously existing symptoms of the injury or disease itself. In this case, the symptoms of Ms Shoesmith’s cervical and lumbar spine conditions were in evidence prior to her commencement of employment by the Calvary Hospital. Her documented medical history indicates that her cervical and lumbar spine conditions required treatment when they were rendered symptomatic from time to time by certain activities. On Ms Shoesmith’s own evidence those activities included domestic activities, activities involving horses and activities in her previous employment. Even though Ms Shoesmith claims the symptoms persisted and her previous treatment was “useless”, I am satisfied that her treatment ceased on each occasion because her symptoms diminished to a level she found she could cope with.
30. The facts are that Ms Shoesmith consulted Dr Cox on 27 August 2001 complaining her “neck, back, R arm and R leg v sore” with pain radiating into her right arm and right leg to the ankle (Ex R2, f36). Dr Cox referred her for treatment by Mr Rumore. She attended and was treated by Mr Rumore on 19 September 2001, having presented at work that morning complaining of headache and pain in her neck and back and later being sent home by her supervisor, Ms H Jeffers (Ex R9). Ms Shoesmith subsequently completed an accident report on 12 October 2001 concerning the events of 19 September 2001 (Ex R5). On 20 September 2001 Ms Shoesmith attended Dr Cox and complained of “sciatic pains” that were being treated by Mr Rumore, who subsequently reported on 2 October 2001 “Lee has indicated a 75 percent resolution of symptoms” (Ex R2, f47). Dr Cox reported on 3 October 2001 that her condition was improving with physiotherapy (Ex R2, f36) and on 11 October 2001 certified that Ms Shoesmith should avoid “heavy lifting, bending etc” but was otherwise fit for modified duties (T4). Dr Cox recorded in his clinical notes on 11 October 2001 that Ms Shoesmith was “very upset” and was consulting her union because she had been “put back on casual by nurse coordinator”, noting her claim that (Ex R2, f37):
“Had been pumping up beds and making beds at work on morning of 27/8/01. Still sore, pain down R leg past thigh to knee. Physio continues.”
31. It is possible that Ms Shoesmith experienced symptoms of her underlying cervical and lumbar spine conditions in the period prior to 27 August 2001 (Ex R5, p2) as she asserts. However, if she did experience such symptoms they were not sufficient to cause her to seek treatment from Dr Cox. There is nothing before me to indicate that Ms Shoesmith sought or received treatment for any aggravation of her claimed back conditions between 5 June 2001 and 26 August 2001. She did present to the Calvary Hospital Emergency Department with a variety of complaints including pains radiating from her neck down her right arm on 4 June 2001, citing a three-week history (Ex R12). However, Dr Cox’s clinical notes indicate that he consulted Ms Shoesmith on 6 June 2001, but in those notes he makes no reference to her complaining of pain in her neck, back, right arm or right leg (Ex R2, f50). Ms Shoesmith previously received physiotherapy treatment in the period January to April 2001 (Ex R2, f51) which was she attributed at the time to an incident at Mirrinjani Nursing Home that Ms McOab recorded in her notes (Ex R7, p2).
32. I am satisfied that on 27 August 2001 Ms Shoesmith suffered an injury at work. Her cervical and lumbar spine symptoms were aggravated by her work activities to the extent that she felt compelled to seek medical treatment on that day.
incapacity
33. Under the Act an incapacity includes an incapacity to undertake work at the same level the person was engaged in prior to the injury (see s.4 (9)). In this case that work is the work Ms Shoesmith was engaged in prior to her injury on 27 August 2001; that is performing unrestricted duties as an Enrolled Nurse on a full time basis.
34. Ms Shoesmith continued to work with only brief absences on sick leave following the incidents on 27 August 2001 and 19 September 2001 that precipitated her claim for compensation (Ex R3 and R4). During this period she complained about her back problems (see Ms Doerfling’s statement Ex A3) and was observed limping by other staff (see Ms Ducker’s statement Ex R10).
35. I accept Dr Cox’s assessment of Ms Shoesmith’s fitness for work on 11 October 2001, as certified by him on that day (T4).
36. I find that Ms Shoesmith worked evening and night shifts at the Calvary Hospital on 12, 15, 16, 17, 18, 24 and 27 October 2001 following her consultation with Dr Cox on 11 October 2001 (Ex R3). The evidence is that she did not work at the Calvary Hospital after 27 October 2001. Ms Shoesmith consulted Dr Cox on 12, 24 and 29 October 2001. It is noteworthy that the only reference to her claimed conditions is in Dr Cox’s clinical notes of the consultation on 29 October 2001, where Dr Cox recorded “seeing A Rumore re neck pain down R arm” (Ex R2, f37). On 9 November 2001 Mr Rumore reported “continual low back pain, primarily associated with sustained positioning” (Ex R2, f46).
37. Subsequently, Ms Shoesmith consulted Dr Cox on 13 November 2001 and, thereafter, on six other occasions in November and December 2001 (Ex R2, f38 and f39). It is noteworthy that Dr Cox made only one reference to the claimed conditions or related symptoms in his clinical notes of these consultations. That is, on 13 November 2001 Dr Cox reviewed the basis of his previous medical certificate but did not extend its currency and noted “lawyer thinks she will get compo” (Ex R2, f38).
38. I note Dr Cox’s opinion that Ms Shoesmith’s pregnancy was likely to aggravate her cervical and lumbar spine conditions (T14, p29) and that he certified her unfit for work for that reason alone on 14 December 2001. Dr Chen gave evidence, which I accept, that the symptomatic exacerbation of both conditions would have ceased within one month of Ms Shoesmith ceasing work at the Calvary Hospital in October 2001. I am satisfied, therefore, that the effects of the injury, and the incapacity thus caused, ceased on or before 13 November 2001 and any symptoms experienced by Ms Shoesmith thereafter were not attributable to her work-related injury on 27 August 2001.
39. In Comcare’s submission, the performance issues raised by Ms Murray and issues of personal gain were motivating factors in the bringing forward of Ms Shoesmith’s claim for compensation. That submission is not made out on the facts and is not accepted. In any event, even if Ms Shoesmith was motivated by the downgrading of her contractual arrangement with the Calvary Hospital it does not alter the fact that she was injured at work and is entitled to be compensated in accordance with the terms of the Act.
40. That Ms Shoesmith found her work at Calvary Hospital tiring is accepted. But many are those who find their daily work tiring and many are the reasons for such tiredness. It is clear that Ms Shoesmith experienced personal and familial difficulties during the period of her employment at the Calvary Hospital. It is not necessary to set out those difficulties in any detail in these reasons. That she suffered from stress and depression as a result is confirmed in the clinical notes of Dr Cox. It is accepted that there was a causal relationship between her stress and depression and the tiredness and headaches of which she complained at work. These matters, however, do not diminish the fact that Ms Shoesmith injured her back at work and was partially incapacitated as a result.
41. Performance issues and personal difficulties outside work do not change the fact that Ms Shoesmith suffered from back conditions that were susceptible to aggravation by lifting, twisting and bending. Her duties as an Enrolled Nurse at the Calvary Hospital, especially on the morning shifts, involved lifting, twisting and bending. I accept that household and farm chores, including working with horses, could exacerbate Ms Shoesmith’s claimed conditions. However, there is nothing to indicate that is what happened on or about 27 August 2001.
42. The matter is to be decided on the civil standard, on the balance of probabilities as distinct from mere possibility. The preponderance of the evidence before me points to the conclusion that Ms Shoesmith’s employment materially contributed to aggravate her pre-existing conditions. All that is required, for present purposes, is a material cause of injury and incapacity arising out of her employment for her claim to succeed. The cause does not have to be the most significant or only factor of causation, but it must be material. I am satisfied that it is more probable than not that Ms Shoesmith’s employment at the Calvary Hospital was material in causing an aggravation of her existing discogenic cervical and lumbar spine disorders, the symptoms of which caused her partial incapacity for work. It follows her claim must succeed.
conclusion
43. Ms Shoesmith is entitled to compensation for partial incapacity and reasonable medical treatment costs during the period 27 August 2001 to 13 November 2001.
44. This being the case, the decision under review must be set aside and the decision set out above is substituted in its place. As the decision is favourable to Ms Shoesmith, I order that Comcare is to pay Ms Shoesmith’s reasonable costs pursuant to s.67 (8) of the Act.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: ........…………
Sarah Rososinski
AssociateDate/s of Hearing 17 -18 September 2003
Date of Decision 12 November 2003Counsel for the Applicant Mr G. Lunney
Solicitor for the Applicant Ms T. Kyprianou
Counsel for the Respondent Mr C. ClarkSolicitor for the Respondent Ms J. Ferry
SCHEDULE 1
Relevant provisions from the Act are:
Section 4 - Interpretation
(1) In this Act, unless the contrary intention appears:
…
Injury means:
a disease suffered by an employee; or
an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
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), being an aggravation that arouse out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
(9) 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.…
Section 14 - 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 16 - 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 19 - Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
…
0
2
0