Sollazzo and Comcare - [2000] AATA 65

DECISION AND REASONS FOR DECISION [2000] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1997/189

GENERAL ADMINISTRATIVE DIVISION )

Re ANTOINETTA SOLLAZZO
Applicant

And COMCARE
Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member

Date4 February 2000
PlaceCanberra

Decision      The tribunal affirms the reviewable decision of 12 May 1997.   The tribunal varies the reviewable decision of 25 August 1998, and decides that the applicant has an ability to earn at a rate of 12 hours per week in relation to "aggravation of cervical spondylosis" on and from 27 March 1996, but that from 1 September 1998 to date it was reasonable for her to fail to engage in or to continue to engage in suitable work.   The respondent is to pay the applicant's reasonable costs to be agreed or taxed.
  ....................(Sgd.).....................
  Pamela Burton  Senior Member
CATCHWORDS
COMPENSATION – aggravation injury at work – pre-existing cervical spondylosis – whether neck pain contributed to hypertension – capacity to work – whether reasonable to fail to return to work when acting on doctor's advice.
Legislation
Safety Rehabilitation and Compensation Act 1988 s19

REASONS FOR DECISION

4 February 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member

This is an application for review of the decisions of the respondent dated 12 May 1997 and 25 August 1998. The first decision affirmed the determination made on 11 October 1996 that the respondent was not liable to pay the applicant incapacity payments for the periods 16 June 1996 to 31 August 1996 and 1 September 1996 to 31 October 1996 when she was off work suffering from arterial hypertension. The second decision accepted continuing liability in respect of the applicant's neck injury, which arose in the course of her employment on 16 September 1988, (incorrectly stated in the decision as 19 September). It decided that the nature of that injury was an "aggravation of cervical spondylosis" and that the ongoing effects of that injury incapacitate the applicant for all but 20 hours of work a week on and from 27 March 1996. It also affirmed the determination of 13 May 1997 ceasing liability to pay compensation in respect of a further "aggravation of cervical spondylosis" deemed to have occurred on 3 April 1994.
The decision of 25 August 1998 is not the subject of a formal request for review. However, it is agreed that a review of that decision is properly before the tribunal, as the applicant's request for review of the earlier decision and later determination assert that she is totally unfit for work because of neck pain, and/or hypertension arising from neck pain, since 27 March 1996. Thus, the tribunal is to consider whether the applicant's elevated blood pressure is compensable and the extent of her incapacity since 27 March 1996 caused by her neck and/or hypertension conditions.
Mr G. Lunney appeared on behalf of the applicant, and Mr M. Rhodda appeared on behalf…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 65
Decision Date: 4 February 2000

CaseChat Overview and Summary

The tribunal was tasked with resolving a dispute between the applicant, Ms. Sollazzo, and Comcare, concerning a claim for compensation related to a workplace injury. Ms. Sollazzo, who had been employed at the Royal Canberra Hospital since 1973, sustained injuries in several incidents over the years, culminating in a significant fall in September 1988. This incident aggravated a pre-existing cervical spondylosis, leading to persistent neck pain. The central issues before the tribunal involved whether the applicant's hypertension was exacerbated by her work or the pain she experienced, and whether it was reasonable for her to decline returning to work following medical advice.

The tribunal found that there was insufficient evidence to support the claim that Ms. Sollazzo's hypertension was influenced by her work environment or the pain from her neck injury. The tribunal accepted the evidence of Professor O'Rourke, who opined that it was not medically necessary for the applicant to cease work due to her elevated blood pressure readings. The tribunal also examined the medical evidence regarding the neck injury and concluded that while the fall had aggravated her pre-existing condition, it was not beyond recovery. Dr. Champion's views on pain management and the psychological factors affecting Ms. Sollazzo's condition were noted, with an emphasis on the benefits of suitable work in managing her pain.

In determining the reasonableness of Ms. Sollazzo's decision to not return to work, the tribunal found that although her treating practitioner's advice was not entirely persuasive, it was reasonable for her to follow this advice given the circumstances. The tribunal decided that from 1 September 1998, it was reasonable for Ms. Sollazzo to refrain from work based on her doctor's advice. Consequently, Comcare was held liable to pay incapacity payments from that date until suitable employment was found for her. The tribunal affirmed and varied previous decisions, setting out the terms for ongoing compensation payments and costs.

Orders

Orders of the court

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Background

Background to the litigation

Mr G. Lunney appeared on behalf of the applicant, and Mr M. Rhodda appeared on behalf of the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various documents including many medical reports tendered by the parties. The tribunal heard evidence over a period of 4 days. Written submissions were then later filed and lodged with the tribunal.The Factual Background The applicant was born on 9 July 1944. She commenced work as a diet maid with the Royal Canberra Hospital in 1973. In 1974, she received an electric shock from a refrigerator. The shock jolted her backward and she fell, injuring her neck, shoulders, arms and back. She suffered pain for a while, but her injuries appeared to have resolved. She was promoted to dietary aide Level 5 in 1980. She was made permanent and worked on higher duties until 1988. During 1985 the applicant suffered a work-related injury when a door swung into her left arm as she was passing by a cooler room. She suffered pain and bruising but did not require any time off. In 1987, the applicant was first diagnosed with hypertension. At this time the applicant was concerned about staff members smoking cigarettes in the work place. She felt she was unsupported in her request to work in a smoke free environment. On 16 September 1988 the applicant sustained a fall at work in which she injured her neck, left shoulder and right leg (T4 and see also T99 and T104). Her evidence is that when she was walking through the kitchen she slipped on a greasy floor. Her neck went backwards then forwards as she lost her balance and she landed on her left shoulder and right leg. In giving her evidence she said that as she was falling the back of her neck struck the stainless steel kitchen bench. She experienced severe pain immediately. Her evidence is that prior to September 1988 she had no pain in her neck. In the course of being cross-examined the applicant revealed that she didn't mention that she had hit her head on the bench to some of the examining doctors. We don't think anything turns on this omission. As it has transpired, the fall or the hit on the head caused an aggravation of an asymptomatic cervical spondylosis. Both parties now accept that that is the case. The fall precipitated pain symptoms. The applicant was off work as a result of the injuries she received from the fall until February 1989. At the time liability was accepted in respect of "neck muscle strain, bruised right leg, pain in shoulders" (T113) for the period 16 September 1988 to 31 January 1989. The applicant had periods of time off work during 1989 due to her neck pain. On her return to work the applicant was promoted to the level 6 position of food supervisor and given supervisory administration duties. She was not required to do any manual work and experienced no significant problems. The Canberra and Woden Hospitals were amalgamated in 1990. During the restructure process, the applicant continued in the position as food supervisor but was given more responsibility. In October 1991 her duties involved both manual and administrative work. She was required, for example, to prepare approximately 30 food trolleys, to load and unload the dishwasher, and to push trolleys that weighed over 70 kgs. Her neck gave her trouble. When she was transferred to the hospital at Woden, she was given an acting level 7 position which involved administrative duties only. She was able to perform the duties of that position.

Evidence

Evidence Before The Court

On an analysis of the blood pressure readings available and the evidence as a whole, we are not satisfied that the applicant's blood pressure was elevated by her work, or by the pain she experienced at work. To the extent that her blood pressure might have peaks at work, we are not satisfied that those peaks were attributable to increased pain levels. Professor O'Rourke's evidence is persuasive. Dr Rosendahl's assumptions about the readings taken are flawed, and his conclusions are not justified. We accept Professor O'Rouke's and Dr McGill's opinion that it was not medically necessary for the applicant to go off work by reason of her elevated blood pressure readings taken at work. Professor O'Rourke is the specialist who can speak most authoritatively on hypertension and its causes. We prefer his evidence to that of Dr Rosendahl. Professor O'Rourke has superior qualifications, experience and expertise in this area of medicine. We accept his evidence in preference to the evidence of the other specialists where they conflict. It seems that there is medical consensus that a person with hypertension is advised to avoid a sedentary life style and that, in the applicant's case, attending to suitable duties at work would be good for her condition. Medical evidence in relation to the neck injury According to Dr Rosendahl, in his report of 29 November 1996 (T142, p165), the mechanism of the significant injury he believes she suffered in the fall at work in 1988:would impose on an already weakened neck a further major degree of instant disruption – and that it is not reasonable to suppose that such a major additional injury could ever be recovered from. Dr Champion, specialist in pain management, saw the applicant at the request of her solicitors on 1 October 1997 and 17 May 1999. The tribunal had the benefit of his reports dated 9 January 1998 and 17 May 1999 (Exhibit C). It is his view that an injury of the type suffered by the applicant at work in 1988 was frequently followed by a pain disorder without radiological changes. He accepts that the reason for the production of pain is not sufficiently understood. He theorises that the injury induces a change in the sensory function in the region of the spine that is mechanically stressed. The pain nerve endings undergo a change in function such that they no longer require stimuli to provoke a response. In that way a minor mechanical stimulus can provoke a pain response and pain can occur without a stimulus. The altered pain phenomena can be widespread, being the accumulated effect of multiple minor injuries. Movements can lead to pain greater than would otherwise be expected, which is described by Dr Champion as the "wind-up" effect. Changes in sensory function produce tenderness in soft tissue remote from the spine and this response is called secondary allodynia. Dr Champion explained that psycho-social factors are of fundamental importance in pain behaviour. These factors can be present in the cultural and medico-legal context. He indicated that the applicant had a low pain threshold leading to a fear of pain and avoidance of pain. This caused her to be guarded in her movements in anticipation of pain, leading in itself to other pain and stiffness. In the course of giving telephone evidence he conceded that the applicant working in a hostile environment, or working in circumstances where she felt aggrieved about her level of work and lack of opportunity to obtain promotion, might be a factor in her pain syndrome. He also agreed that the more guarded the applicant is about her neck, the more stiffness she is likely to suffer. Exercise and appropriate movements would assist her. Going to work, and avoiding lifting and other activities which cause her pain, would be good for her neck problem.

Decision

Reasons for decision

From 1 September 1998 we find that the applicant's employer was willing to provide suitable duties, and that the applicant was fit to work 12 hours a week at the modified duties that were previously planned for her, or at some other suitable duties. However, we find that it was reasonable for the applicant to decline to return to work or to engage in suitable employment, on the medical advice of her treating practitioner; though, in our opinion his advice was wanting. The respondent is therefore liable to pay incapacity payments to the applicant in respect of her compensable neck condition on the basis of her NWE without regard to her ability to earn, from 1 September 1998 until suitable work is again found for her. Decision The tribunal affirms the reviewable decision of 12 May 1997. The tribunal varies the reviewable decision of 25 August 1998, and decides that the applicant has an ability to earn at a rate of 12 hours per week in relation to "aggravation of cervical spondylosis" on and from 27 March 1996, but that from 1 September 1998 to date it was reasonable for her to fail to engage in or to continue to engage in suitable work. The respondent is to pay the applicant's reasonable costs to be agreed or taxed.

Ratio Decidendi

Legal Principle Established

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