Sonia Lorraine Kennedy and Comcare - [2013] AATA 77

[2013] AATA 77

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/1886, 2011/4806
Re	Sonia Lorraine Kennedy
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	15 February 2013
Place	Melbourne

The Tribunal affirms the decisions under review.

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

G. D. Friedman, Senior Member

COMPENSATION – employment as domestic cleaner – back pain – aggravation of compensable condition – whether effect of injury has ceased

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 5A(1), 14(1), 16(1), 19(2)

Casarotto v Australian Postal Commission [1989] FCA 116

REASONS FOR DECISION

G. D. Friedman, Senior Member

15 February 2013

Sonia Kennedy commenced employment as a cleaner for the Department of Defence in Melbourne in 2002. On 30 April 2004 the respondent accepted liability for compensation for lumbar sprain suffered by Ms Kennedy on 9 March 2004 (the 2004 injury). On 10 October 2007 the respondent accepted liability for compensation for synovitis and tenosynovitis (left) (shoulder tenosynovitis) and aggravation of lumbar sprain suffered by Ms Kennedy on 23 April 2007 (the 2007 injury). She resigned in November 2007. On 26 October 2011 the respondent made a reviewable determination that Ms Kennedy does not presently suffer from the effects of the 2004 injury and that compensation was no longer payable (application 2011/4806). On 22 March 2011 the respondent made a reviewable determination that Ms Kennedy does not presently suffer from the effects of the 2007 injury (application 2011/1886).

LEGISLATIVE BACKGROUND

Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
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.

…

In s 4(1) of the SRC Act injury is defined as:

injury has the meaning given by section 5A.
In s 5A(1) of the SRC Act injury is defined as:
…
(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;

Incapacity for work is defined in s 4(9) of the SRC Act as an incapacity suffered as a result of an injury, either an incapacity to engage in any work or an incapacity to engage in work at the same level as immediately before the injury happened.
Section 16(1) of the SRC Act provides for an entitlement to compensation for medical treatment:

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(2) of the SRC Act provides for an entitlement to compensation for loss of earnings:

19 Compensation for injuries resulting in incapacity
…
(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
ISSUES

There was no dispute that Ms Kennedy’s shoulder condition has largely resolved. The issues before the Tribunal are:

Does Ms Kennedy presently suffer from the effects of the 2004 injury? If so, is she entitled to medical expenses and incapacity benefits?
Does Ms Kennedy presently suffer from the effects of the 2007 injury in respect of aggravation of lumbar sprain? If so, is she entitled to medical expenses and incapacity benefits?

DOES MS KENNEDY PRESENTLY SUFFER FROM THE EFFECTS OF THE 2004 INJURY?

Ms Kennedy told the Tribunal that after leaving school she worked in a variety of jobs in shops and factories in Australia and New Zealand. In 2002 she commenced employment with the Department of Defence as a domestic cleaner at the Royal Australian Air Force Base at Laverton, Victoria. She said that her duties included cleaning accommodation blocks for international students and involved general cleaning duties, changing linen, vacuuming, mopping and cleaning bedrooms and bathrooms. She said that the 2004 injury occurred when she dropped her keys and bent down to pick them up. She felt a sudden pain in her lower back and attended her local doctor and a chiropractor. She said that she was given one month off work and a gradual return to work program was implemented until she resumed full-time work in September 2004.
Ms Kennedy stated that although she worked full-time after the 2004 injury, she found difficulty in completing her duties because of persistent pain in her lower back on the right side. She said she used a heat pack at night and received chiropractic and physiotherapy treatment which gave temporary relief. She said that in the period 2004 to 2006 her duties did not change and the pain continued.
By November 2007 Ms Kennedy was finding that the cleaning duties were beyond her as a result of her continuing lower back pain. She said she requested alternative employment at the Base after explaining to her case manager that her back pain was preventing her from completing her duties satisfactorily. She said that her request was not successful and in October 2007 she concluded that she could no longer continue so she provided notice of her intention to resign. She said that since then she has not worked and for a short period was receiving a disability support pension from Centrelink until her husband returned to work.
Ms Kennedy explained that her back pain prevents her from doing household tasks for more than a few minutes at a time. She still uses a heat pack but does not take medication and has no ongoing treatment. She said that a stroke suffered in October 2012 has made her tire easily and she would be unable to return to a cleaning job, mainly because of her lower back pain. Under cross-examination Ms Kennedy stated that she had no recollection of symptoms of back pain prior to 2004, and she agreed that after 24 August 2004 she did not seek medical treatment for her back condition until 2007. She also agreed that during this period she did not take time off work or seek medical treatment for her ongoing back pain.
Clinical notes from Ms Kennedy’s general practitioner dated 21 March 2000 refer to tender lumbar spine R>L and that an X-ray of the lumbar spine was planned. An entry dated 4 April 2000 states: Muscular-Skeletal pain: Low Back, hips and feet. The notes also state: X-rays: mild changes of OA [osteoarthritis] in Lumbar spine. The clinical notes of 23 June 2000 refer to ongoing pain in her left hip, the possibility of losing weight, the desirability of a bone scan, and the suggestion that the result of a bone scan indicated osteoarthritis.
An X-ray report dated 27 March 2000 noted a slight lumbar scoliosis convex to the left, and minor changes of spondylosis were noted throughout the lumbar spine. In a report dated 5 March 2003 Dr F Laska, consultant physician and rheumatologist, took a history of pain associated with stiffness in her joints, particularly the shoulders, right elbow, both knees and the right side of the lower back as well as the feet. Dr Laska concluded that clinical features were consistent with soft tissue rheumatism in the setting of minor degenerative pattern anthropathy, notably the feet, and also relative hypermobility of the spine. He diagnosed a degree of muscular-ligamentous strain, and suggested resistance exercises to strengthen the supports to the muscular-skeletal system, together with appropriate footwear or possibly orthotic correction.
An X-ray report dated 15 March 2004 noted rotation of the lower lumbar vertebrae towards the left, and the facet joints in the lower lumbar spine showed moderate arthritis. Clinical notes from Ms Kennedy’s attendance on 15 March 2004 state: Back much improved. On 29 April 2004 the clinical notes state: Return to work has gone well. Few twinges but back okay… Notes from a visit to a physiotherapist dated 18 June 2004 refer to Ms Kennedy going well and working full hours with restrictions that included no vacuuming, the avoidance of lifting more than 5kg, and avoidance of any twisting movements.
In a letter to her case manager in September 2004 Ms Kennedy stated: Everything is going well for me, but I am still very careful in how I do things and have changed the way I do a lot of things, so this appears to be beneficial so far. She enclosed a Certificate of Capacity from her general practitioner which stated that she was fit for normal duties. Clinical notes from the general practitioner dated 28 July 2005 state: Back OK. Stiff if sits too long.
Dr C Sharwood told the Tribunal that she has been treating Ms Kennedy since 2001. In a report dated 17 June 2010 Dr Sharwood stated that Ms Kennedy first presented to her with low back pain on 18 March 2004, one week after the 2004 injury. Dr Sharwood said that the symptoms were consistent with chronic low back pain from a clinically diagnosed disc prolapse. She said that by the end of May 2004 Ms Kennedy had resumed normal hours but with some restricted duties. By the end of August 2004 Ms Kennedy had resumed normal duties but had mild persisting backache and stiffness. Dr Sharwood stated that she saw Ms Kennedy a number of times after this but not concerning her back, until Ms Kennedy consulted other doctors at the practice in 2007 in relation to a number of matters including an aggravation of her back pain following the 2007 injury. She stated that Ms Kennedy’s ongoing pack problems are likely to continue. Under cross-examination Dr Sharwood agreed that Ms Kennedy had not mentioned that she had suffered back pain prior to 2001. She also agreed that the X-ray of Ms Kennedy's lumbar spine dated 27 March 2000 is consistent with an underlying degenerative back condition.
In a report dated 22 November 2010 Mr V Pai, consultant orthopaedic surgeon, took a history of the 2004 injury and an aggravation of her back injury in 2007. Mr Pai said that in his opinion Ms Kennedy's back became symptomatic in the 2004 injury, which he described as a trivial episode, and appeared to have settled after four weeks of treatment and physiotherapy but resurfaced in 2007. He considered the back pain to be an aggravation of the pre-existing discogenic pain in the back and said that it is more than likely that her symptoms are due to aggravation of pre-existing extensive lumbar spondylosis. He diagnosed mechanical back pain and degenerative changes of the lumbar spine without any nerve root irritation. He said that the back pain will progress as arthritis over time and that future aggravation cannot be predicted.
In a supplementary report dated 6 July 2012 Mr Pai said Ms Kennedy reported pain in the lower lumbar region and that the pain has not changed much in the previous four years. He said that she denied any back pain before 2004 which is contradictory to the documents provided to him showing episodes of back pain prior to 2004. He reiterated his opinion that the back symptoms are due to Ms Kennedy's degenerative lumbar spine condition, and that the aggravation of degenerative change in the spine sustained in the 2004 injury was temporary, as she returned to work one month later. He said that she suffered an aggravation of lumbar pain in 2007 but she delayed presentation to her general practitioner for about three months.
In a report dated 4 March 2010 Mr C Flanc, vascular and general surgeon, stated that he took a history of lower back pain suffered in 2004 and that in 2007 the pain in Ms Kennedy's lower back had become more severe, to the extent that she resigned in November 2007 because she was unable to cope with her lower back pain and the pain over the upper part of her right buttock. Mr Flanc said that on the history provided, it is likely that the 2004 injury aggravated a pre-existing degenerative condition of the lumbar spine which did not subside completely but was further aggravated by the continuation of her work as a cleaner. He stated that she indicated to him that she could have continued to work on a full-time basis if her duties had been modified to allow her to avoid activities such as bed-making and vacuuming.
In further reports Mr Flanc stated that there was still a constant ache across Ms Kennedy's lower back which became more serious after sitting or walking for longer than 20 minutes. He said that her lumbar or sacral spine condition is related to an aggravation of pre-existing disc degeneration of the lumbar spine which became symptomatic.
Under cross-examination Mr Flanc agreed that at the time he examined Ms Kennedy he was unaware that she had presented to her general practitioner prior to 2004 with lower back pain. He also agreed that he was unaware that Ms Kennedy had not worked her full-time hours from 15 October 2007 (when she gave notice of her intention to resign), to 5 November 2007. She recommenced full-time hours on 5 November 2007 until her resignation took effect on 28 November 2007. Mr Flanc said that in broad terms he agreed with Mr Pai, but disagreed that the 2004 injury was a trivial matter because her pain persisted until at least 2007 when she resigned.
A radiology report dated 11 November 2010 showed moderate to advanced facet joint degeneration of the lower lumbar spine, particularly at the L-4 and L4-5 level. An MRI report of 11 November 2010 showed degenerative changes of the lumbar spine.
In Casarotto v Australian Postal Commission [1989] FCA 116 Hill J stated at [38] and [39]:
[38]…As I have already indicated one can imagine cases of acceleration of a pre-existing progressive disease where the course of the disease itself is such that the consequences of the acceleration cease to matter after a time and contribute not at all to a greater incapacity than would have arisen as a result of the normal progression of the disease. In other circumstances the acceleration results immediately in total incapacity and the mere fact that at some stage total incapacity would have arisen is not a reason for discontinuing compensation.
[39] It would be necessary in each case, be it one of aggravation or acceleration to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.

The Tribunal takes into account Ms Kennedy’s evidence that she had no recollection of back pain prior to 2004 but remembered back pain suffered after this date. The Tribunal also takes into account other relevant material including evidence given by medical practitioners and the clinical notes of the medical practice attended by Ms Kennedy. Clinical notes show that she presented in 2000 for tenderness and pain in her lower back. X-rays showed mild changes in the lumbar spine, narrowing of lumbar discs and minor changes of spondylosis. In March 2003 Dr Laska found soft tissue rheumatism and a degenerative pattern with relative hypermobility of the spine, which he said was a degree of muscular-ligamentous strain that might be assisted by analgesics and resistance exercise to strengthen her muscular-skeletal system. Mr Flanc and Mr Pai concluded that Ms Kennedy had a pre-existing degenerative condition of the lumbar spine. An X-ray taken shortly after the 2004 injury found a rotation of the lower lumbar vertebrae towards the left and the facet joints in the lower lumbar spine indicated moderate arthritis. On all the material the Tribunal finds that Ms Kennedy had a pre-existing degenerative condition of the lumbar spine at the time of the 2004 injury.
Clinical notes show that Ms Kennedy’s back condition improved in the weeks after the 2004 injury. She returned to work after one month off duty. No specific treatment was prescribed by her general practitioner, and she used a heat pack at night, and attended a chiropractor and a physiotherapist. Clinical notes for the months after the 2004 injury suggest a significant improvement in her back condition. She did not report any back pain to her general practitioner until 2007 while working full-time duties.
Consequently the Tribunal finds, on the balance of probabilities, that Ms Kennedy suffered a temporary aggravation of her lumbar spine condition in the course of her employment in March 2004, and the 2004 injury had a finite duration and no longer contributes to her ongoing back pain, which is degenerative and constitutional in nature. Therefore she is not entitled to compensation for medical expenses under s 16 of the SRC Act or for incapacity under s 19 of the SRC Act.

DOES MS KENNEDY PRESENTLY SUFFER FROM THE EFFECTS OF THE 2007 INJURY IN RESPECT OF AGGRAVATION OF LUMBAR SPRAIN?

Ms Kennedy told the Tribunal that heavy doors had been installed in the accommodation block that she was cleaning. On 23 April 2007 she pushed the doors to gain access, but one of the doors sprang back and struck her on her left shoulder, causing bruising and pain to her right hip and the right side of her lower back. She later sought medical treatment and found difficulty in continuing her duties because of the pain in her shoulder and restricted movement. She used a heat pack and undertook some physiotherapy which provided some relief. She said she took five weeks off work and on 24 September 2007 she commenced a return to work program over a period of six weeks. Ms Kennedy said that by October 2007 she was working five hours per day and returned to normal duties in November 2007.
In respect of her notice of resignation, Ms Kennedy agreed that on 15 October 2007 in her e-mail to Ms A Russell, the occupational rehabilitation provider, she stated: I have thought about my decision long and hard. There are also family issues to attend to interstate in December and I do not know how long all that will take to resolve, so it is a combination of everything at present. She agreed that at the date of the notice of resignation the return to work plan provided for a working day of five hours, although her recollection was that she was working a normal full-time week at that time. Ms Kennedy acknowledged that on 31 October 2007 her general practitioner had recommended that she resume work on a full-time basis from 5 November 2007, and on 2 November 2007 she sent an e-mail to Ms Russell informing her of this. She agreed that her e-mail contained no mention of not being able to cope with a full-time workload. Ms Kennedy agreed further that her attendance diary showed that she maintained the equivalent of full-time hours from the date of her return to work on 5 November 2007 until she ceased work on 28 November 2007.
Clinical notes from Ms Kennedy's general practitioner following her resignation show at least seven attendances in 2008 without mention of back pain, until a consultation on 10 October 2008 where there is a brief reference to back pain in the context of weight gain since ceasing work nearly 12 months earlier. Similarly there is no mention of back pain in consultations that occurred in 2009 other than in relation to matters referred to by her legal representatives.
In an Initial interview and work site visit report dated 17 September 2007 Ms C A’Vard of The Rehab Factor said that Ms Kennedy was referred for the purpose of assisting in establishing a return to work program. She took a history of a dull ache in the left shoulder, right hip and lower back. A return to work plan was completed and involved a number of work restrictions. A Progress report dated 24 September 2007 reviewed the initial return to work plan and emphasised the changes to Ms Kennedy's work techniques.

In his report dated 22 November 2010 Mr Pai stated that it appears that there was no mention of back ache at the time of the 2007 injury or in the report from the general practitioner in July 2007. He said that as a consequence he could not relate Ms Kennedy’s back pain to the 2007 injury, and that she had a soft tissue injury following the 2007 injury but that the acute phase had resolved.
In his report dated 4 March 2010 Mr Flanc stated that the 2007 injury was probably a soft-tissue injury with bruising. He noted that Ms Kennedy returned to work on the day after the 2007 injury and continued working. She attended her general practitioner in July 2007 because the pain in her shoulder persisted, and took several weeks off work. He said that by August or September 2007 Ms Kennedy’s back pain was becoming more severe while the left shoulder pain was improving.
In his report dated 27 April 2011 Mr Flanc stated he re-examined Ms Kennedy on 20 April 2011 and she described a constant ache across the lower back which became more severe after sitting or walking for longer than 20 minutes. He found tenderness over the upper and outer quadrant of the right buttock and stated that her condition was related to an aggravation of pre-existing disc degeneration of the lumbar spine which became symptomatic. He stated that it is quite possible that the gradual increase of low back pain following the 2007 injury may have been related to a further aggravation caused by the jarring of the lower back in the setting of an asymptomatic spine being made more vulnerable by her work as a cleaner and a specific lower back injury of 2004. He said that she would not be able to return to her full pre-injury duties as a cleaner, but could possibly cope with part-time light cleaning duties.
In a second report dated 17 June 2010 Dr Sharwood stated that, based on the history given by Ms Kennedy and the clinical notes of the practice, the 2007 injury was a significant contributing factor to the aggravation of Ms Kennedy's back injury. She said that in her opinion Ms Kennedy probably already had some underlying degenerative disease in her back which is common to most people of her age, and the 2007 injury aggravated her disc prolapse suffered in the 2004 injury rather than being a new injury. Dr Sharwood noted that in 2008 Ms Kennedy had attended for a certificate about her back pain in relation to an application for a disability support pension. In November 2009 Ms Kennedy was found to be very tender over her entire lower back, which Dr Sharwood stated was chronic low back pain from a clinically diagnosed disc prolapse suffered in the 2004 injury. Dr Sharwood agreed that the clinical notes confirm that, other than the attendance in relation to the application for a disability support pension, Ms Kennedy did not present with specific back problems between 2007 and 2009.
The Tribunal takes into account that after the 2007 injury Ms Kennedy resumed normal full-time duties in November 2007. In her Notice of resignation dated 15 October 2007 she referred to family issues and a combination of everything as reasons for the resignation. Her general practitioner certified that she was fit for normal duties from 5 November 2007, and there is no evidence that she sought or was given treatment or support from the general practitioner. Her attendance records show that from that date until she ceased work on 28 November 2007 she worked full-time hours. The clinical notes from the medical practice show that in 2008 there is no reference to presentation for back pain, and the only mention of this pain in October 2008 is in the context of weight loss. The only apparent reference to back pain in the clinical notes for 2009 concerns an appointment recommended by her legal representative in relation to her claim for compensation.
Consequently the Tribunal finds, on the balance of probabilities, that Ms Kennedy suffered a temporary aggravation of her back condition in the course of her employment in April 2007, and the 2007 injury had a finite duration and no longer contributes to her ongoing back pain, which is degenerative and constitutional in nature. Therefore she is not entitled to compensation for medical expenses under s 16 of the SRC Act or for incapacity under s 19 of the SRC Act.

DECISION

The Tribunal affirms the decisions under review.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

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

Associate

Dated 15 February 2013

Dates of hearing	4 and 6 February 2013
Counsel for the Applicant	Mr M Carey
Solicitors for the Applicant	Zaparas Lawyers
Counsel for the Respondent	Ms C Dowsett
Solicitors for the Respondent	Australian Government Solicitor