State of Queensland (Department of Transport and Main Roads) v Simon Blackwood (Workers' Compensation Regulator)
[2016] QIRC 21
•19 February 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of Transport and Main Roads) v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 021 |
PARTIES: | State of Queensland (Department of Transport and Main Roads) v Simon Blackwood (Workers' Compensation Regulator |
CASE NO: | WC/2015/219 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 19 February 2016 |
HEARING DATES: | 26 October 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDERS: | 1. Appeal allowed 2. The decision of the regulator dated 8 July 2015 is set aside and substituted with a decision that the claim is not one for acceptance 3. The matter of costs is reserved |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - aggravation or exacerbation of degenerative back condition - short term and temporary increases in symptoms - whether employment a significant contributing factor. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 Fielder v WorkCover Queensland (2004) 175 QGIG 871 JBS Australia Pty Ltd v Q-COMP (C/2015/35) Myer Holdings Ltd v Q-COMP (WC/2013/118) Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 |
| APPEARANCES: | Mr M. Spry, Counsel instructed by the Crown Law for the Appellant. |
Decision
Introduction
The Department of Transport and Main Roads ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") dated 8 July 2015 to confirm the decision of WorkCover Queensland to accept an application for compensation lodged by Ms Melissa Buchanan.
Ms Buchanan lodged her application for compensation with WorkCover for a lower back injury on 15 January 2015. Ms Buchanan said that she sustained the injury on 9 September 2014 as a result of prolonged, stressful periods of working in a sitting position. Ms Buchanan was at the relevant time employed by the appellant as a senior program adviser. Her work involved typing, making and receiving phone calls, monitoring emails, and providing temporary relief for other staff members. Most of her work duties were performed while she was sitting at her work station.
The appellant conceded that Ms Buchanan was a "worker" for the purposes of the Worker's Compensation and Rehabilitation Act 2003 ("the Act") and accepted that Ms Buchanan suffered from lower back pain. The appellant however did not accept that Ms Buchanan's injury arose out of or in the course of her employment nor that her employment was a significant contributing factor to the injury.
Whether the employment significantly contributed to the back condition or significantly contributed to an aggravation of a pre-existing degenerative back condition were the ultimate matters for determination. The appellant relied on the evidence of Dr Burke in contending that the employment had not caused or significantly contributed to the injury.
Legislation
The appellant appeals the regulator's decision pursuant to s 550 of the Act.
The appeal to the Commission is by way of a hearing de novo. To succeed with its appeal, the appellant must establish on the balance of probabilities that the claimant did not sustain an injury within the meaning of s 32(1) or s 32(3) of the Act.
Section 32(1) of the Act relevantly provides that an "injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
Section 32(3)(b) of the Act provides that an injury includes an aggravation of a personal injury "if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation". Section 32(4) of the Act provides that the "aggravation" is an injury only to the extent of the effects of the aggravation. The term "aggravation" is defined in Schedule 6 but only to the extent of mandating that the term includes the word "acceleration".
Evidence
During the course of the proceedings, evidence was provided by three witnesses. The witness for the appellant was Doctor Nicholas Burke while the witnesses for the regulator were Melissa Buchanan and Doctor Eileen Heyne.
Ms Buchanan's Evidence
The effect of Ms Buchanan's evidence was that the onset of back pain was associated with busy and stressful periods of work, that there was limited opportunity for breaks of any kind, and that the resultant prolonged sitting caused the back injury.
The demands of the work environment were emphasised. The workers' compensation medical certificate referred to "prolonged stressful periods of work", Ms Buchanan said that she had a "really, really busy workload" and that her work was often subject to deadlines. She described her circumstances in the following terms (T1-7):
" … I suppose stress is a main factor of my – my job, just due to like the deadlines that I have to meet. A lot of pressure is put on me. I’m – I’m one deep in my job. I don’t actually have any – anyone to help me do my job.
Right?‑‑‑So it’s – like if I don’t get it done, you know, we’ll miss a deadline. So I put a lot of pressure on myself to actually, you know, get the work done on time."
Ms Buchanan commenced work at the Department of Transport and Main Roads in Spring Hill in December 2011. She was not experiencing any back pain at this time, however in early 2012 she said that back pain just came on. There was no precipitating event. At some point Ms Buchanan informed her manager of her symptoms following which her manager arranged a workstation assessment. As a result of the assessment some changes were made to the configuration of the work station and she changed chairs. In this respect she said that she tried many different chairs but eventually found one on the same floor which adjusted to support her back properly. Ms Buchanan said however that the pain did not stop.
While she worked longer hours from time to time, Ms Buchanan said that when she was employed at the Spring Hill office she typically worked from 9.00am to 6.30pm. She said that it was usual for her to work through the day with minimal breaks and to eat her lunch at her desk.
Ms Buchanan said that it was difficult to recall how she was feeling in 2012 when she first experienced back pain but that her episodes of pain involved back spasms in which her back would seize up. She suggested that it was more likely that the pain would manifest itself if she was sitting for long periods. She said that it was common for her to apply a heat pack to her back. She appeared to say that she only experienced the pain during the day but that it was not unusual for her to apply a heat pack when she got home from work at night.
Ms Buchanan said that her back pain caused her to take some time off work in July 2012. Ms Buchanan said that her back pain had worsened during a busy work period associated with the parliamentary estimates process. Her evidence on the subject is set out below (T1-10):
"Right?‑‑‑So that’s a very stressful period of time. So again, sitting for long hours, lots of like tensing, trying to get deadlines done. So the back pain never actually went, as such. I actually had some time off in, I think it was July, for back pain, and I had a graduated return to work as well."
In 2013 Ms Buchanan relocated from Spring Hill to Carseldine where she said that her typical hours of work were from 9.00am to 6.00pm. She said that she was unable to take her chair with her to Carseldine and that sometime after she arrived at Carseldine a further workstation assessment was arranged. It was Dr Heyne's evidence that Ms Buchanan complained in June 2013 that her chair was not comfortable and as a consequence an ergonomic assessment was completed in August 2013. While a new chair was ordered, it did not arrive until February 2014.
Ms Buchanan said that during 2013 she continued to experience intense pain and continued to use a heat pack. She said that during busy periods at work she would apply the heat pack two or three times a day (T1-13).
Ms Buchanan said at T1-14 that she would have experienced pain across 2014 but she could not recall the specific details. Again, she appeared to say that pain was limited to working periods. She said that at the start of the working day she would sit down and start work and then the pain would come on and she would treat it with heat packs. Her evidence about her condition outside work was limited but she said (T1-17) that she had trouble sleeping at night but that by May of 2014 she had medication on hand to treat the pain.
Ms Buchanan’s shoulder problems arose from a fall on a stairway in early 2014. The fall occurred on a weekend away from work. As Ms Buchanan fell she grabbed hold of a railing and wrenched her shoulder before landing on her backside. Ms Buchanan said at T1-23 that she first commenced physiotherapy because of the right shoulder injury sustained in the fall. She said that she did not experience any back pain as a result of the fall. She continued to receive physiotherapy for her shoulder condition between May 2014 and September 2014.
Ms Buchanan said that she had been reporting neck pain since 2007. She said that she had several scans in respect to the neck pain. She had eight weeks off work in in early 2011 because of the neck pain. It was Ms Buchanan's evidence that her neck, shoulder and back conditions were variously treated over time by physiotherapists, chiropractors and medical practitioners. In terms of medical practitioners her predominant relevant attendances were on Dr Heaney prior to her hospitalisation in September 2014 and on Dr Heyne after her hospitalisation.
The evidence about attendances on a general practitioner during 2014 disclosed that prior to her hospitalisation in September 2014 Ms Buchanan visited a general practitioner on 12 January 2014, 21 March 2014, 24 March 2014, 25 March 2014, 28 March 2014, 24 April 2014, 1 May 2014, and 8 August 2014. A reading of the medical records suggest that, other than on 28 March 2014, back pain was not discussed in any of the consultations. In the consultation with Dr Heaney on 28 March 2014 the medical records indicate that Dr Heaney recommended a referral to Banyo Physio for "chronic cervicogenic headaches and chronic neck and back pain". However the records also suggest that Ms Buchanan preferred to stick with chiropractic treatment and massage.
The proposition put during cross examination was that despite these attendances, back pain was not reported. In her evidence at T1-31 Ms Buchanan accepted at least in respect to her attendance on a general practitioner on 1 May 2014, that she would have had the opportunity to raise back pain, but did not.
Ms Buchanan said that her hours increased in the May 2014 to September 2014 period because of work associated with the formation of a transport renewal taskforce, the parliamentary estimates process, and preparations for the G-20 meetings. She said that across this period she was typically working between eight and ten hours a day. Ms Buchanan said that she was treating her back pain with medications from May 2014 onwards. As I followed her evidence (T1-29), the medication referred to was medication that had been prescribed for neck or shoulder pain. It appeared that during this period matters came to a head with Ms Buchanan saying (T1-17):
"And so when was that time that you had medication as an aid?‑‑‑It would have been any time between that May to September period. I mean, I was coming to work in – in tears. So I – I raised my workload issue with my manager, and I – I recall saying to her, you know, I just – I can’t do it all. I just can’t do it."
Notwithstanding this evidence, Ms Buchanan said that her shoulder was the largest problem in 2014 and her condition deteriorated to the extent that by September 2014 she was unable to raise her right arm (T1-35):
"Sure. What was the largest issue on the picture in 2014 and, indeed, 2013? Was it your neck pain and upper shoulder or what was ‑ ‑ ‑?‑‑‑Well ‑ ‑ ‑
‑ ‑ ‑ in terms of pecking order?‑‑‑ ‑ ‑ ‑ 2014 it was my shoulder with unable to raise my arm, but it was also my back pain."
Ms Buchanan commenced two weeks annual leave on 11 September 2014. Ms Buchanan said that she was generally tired during her annual leave. Leisure activities included spending four days at the Sunshine Coast and going shopping. She said that she could have experienced back pain while at the coast, but that she did not recall.
Prior to going on leave Ms Buchanan had attended on her physiotherapist on 9 September 2014 for treatment of her shoulder condition. She also visited her physiotherapist on 23 September 2014 during her annual leave. Dr Burke's report alluded to the physiotherapist's records of these two consultations. The record of the 9 September 2014 consultation referred to the "recurrence of back pain, primarily left-sided L4/5 – reports previous history on and off". While the report of the consultation on 23 September 2014 noted "ongoing low back pain and now bilateral neck/arm pain – currently on two weeks of leave".
Ms Buchanan said that she had to attend on her physiotherapist on 23 September 2014 "just to try and ease my back pain". She said however that the pain got gradually worse. Notwithstanding this, on 25 September 2015, she shopped with a friend at Ikea, and subsequently had lunch her. Ms Buchanan said that she experienced pain while at Ikea. When she returned home she watched television during the afternoon. She experience an intensification of pain later in the day and called her parents about 7.00pm. Later in the evening her parents took her to hospital. On arrival she was admitted to hospital as an in-patient and remained in hospital until 7 October 2014.
After discharge from hospital, Ms Buchanan took about four months sick leave. During this period she lived with her parents and rested most of the time. She did not drive her motor vehicle.
She returned to work in the first week of January 2015. Her return to work was subject to a graduated return to work program which extended through until May 2015. During this period she was taking strong medications and was only able to work a few hours each day.
Dr Heyne's Evidence
Ms Buchanan had been a patient of Dr Heyne between 28 November 2007 and 24 August 2010 and also from October 2014 onwards. Dr Heyne took the view that Ms Buchanan's injury was caused by sitting at work for prolonged periods.
Ms Buchanan first attended on Dr Heyne in respect to her back condition on 20 October 2014. Dr Heyne subsequently issued a workers' compensation medical certificate on 29 December of 2014 in which she entered a diagnosis of "lumbar strain with disc damage and left-sided sciatica in L4/L5 and L5/S1 distribution". The workers stated cause of injury was expressed to be "prolonged, stressful periods of working in sitting position without breaks". Dr Heyne said that she was given the following history by Ms Buchanan (T1-39):
" … she came here about the problem. She told me that it had occurred after many months of working certain extended long hours, some days of 12 – 12 hours length without any breaks of significance. There was nobody else to do the work. She just had to do the hours and, certainly, sitting for those lengths of time at a sub-optimal ergonomics is a significant factor with this problem."
Dr Heyne said that it was her understanding that Ms Buchanan consistently worked 12 hour days and 80 hour weeks (T1-45):
"So up to 80 hours on occasion?‑‑‑Yes, that’s right. And so if any – any mention of 12 hour days for me is based on the – well, just a – extrapolation that she must have been working 12 hour days.
And that takes us to 60 hours, with my poor mathematics?‑‑‑Well, that’s – yeah. She may have been working weekends. I don’t know. Eighty hours a week is what she was saying for quite a number of weeks, yeah, through June, August – June 2014, August 2014."
Dr Heyne said that Ms Buchanan got her ergonomically designed work chair in February 2014 and therefore had access to ergonomically designed chair at work throughout 2014. Dr Heyne also said that it was her understanding that Ms Buchanan commenced working longer hours around February 2014. Dr Heyne said that the injury was sustained in the absence of any precipitating event (T1-39):
"Now, Doctor, in terms of the injury, in terms of what you observed, was this an injury that was a result of a precipitating event, or was it over a different timeframe?‑‑‑I – I – there was no specific event – there was no specific injury at work. It was a chronic – it’s a chronic accrual of stresses on the lumbar spine, the protracted sitting. And looking at her working history, much of that year she’d been working up to 80 hours a week. She had discussed with the officer – with the manager ergonomic issues over that period of time. So there was no – there was no specific injury, per se, at work, you know, one incident, but accumulative strain which led to this problem occurring.
Doctor, is it the case – or can I ask, then, is this an injury that could be characterised as one that aggregates over time or builds up over time?‑‑‑Yes. That’s correct. And it can be – it can spirally aggregate and for that year, you know, to the – to the point where your – when the final – well, when the final event comes, it may not be at a working moment or a working day. You might just reach to turn a kettle on and, bang, it will go, but it’s not because you reached to turn the kettle on that day. It’s been the silent and not so silent accrual of strain over months and years prior that leads up to it."
The effect of Dr Heyne's evidence was that Ms Buchanan's attendance at work for up to 80 hours a week and 12 hours per day, in conjunction with a sub-optimal ergonomic environment, caused her back injury. There was no particular physical activity at work that caused or contributed to the injury. Rather it was the sedentary nature of the occupation and long working hours that caused the problem. In this regard Dr Heyne opined (T1-42) that it was well-known that prolonged sitting with poor ergonomics is one of the contributing factors that will strain backs. Whether Dr Heyne was entitled to draw a conclusion of "poor ergonomics" is unclear on the evidence, but in the end result not much turned on it because it was accepted that throughout her time at work in 2014, Ms Buchannan enjoyed the use of an ergonomically designed chair.
Additionally during cross-examination Dr Heyne recanted on her initial evidence that ergonomic conditions were a contributing factor to the back condition. In this regard it was her evidence that it did not really matter if the seating was optimal or sub-optimal for a person who was sitting and working for 80 hours a week. Her evidence (T1-47) was that in these circumstances there is a "strain on the back, whether it's good or bad ergonomics".
Dr Heyne said that Ms Buchanan had a bulging disc and that meant degeneration of her spine. It was her evidence (T1-43) that it was a "well-known medical fact that prolonged sitting with sub-optimal ergonomics does place incorrect strain through discs and exacerbate degenerative changes." However Dr Heyne denied that Ms Buchanan's symptoms should be considered a natural progression of her degenerative condition (T1-44) opining that "sitting 80 hours a week" is not natural. She acknowledged however (T1-45) that in particular circumstances such as prolonged sitting, the underlying degenerative disc pathology could be aggravated.
Dr Heyne was not aware of any non-work related circumstances which may have contributed to Ms Buchanan's back condition. It was her evidence that she did not seek, nor was she given, any significant history of Ms Buchanan's non-work related circumstances (T1-43).
Dr Burke's Evidence
WorkCover had referred Ms Buchanan to Dr Burke for an independent medical assessment. Ms Buchanan completed the assessment on 27 April 2015 and Dr Burke's report was provided to WorkCover on 7 May 2015. Dr Burke subsequently modified or clarified the opinions expressed in this report in supplementary reports written on 8 September 2015 and 2 October 2015. The supplementary reports were prepared at the request of the appellant.
In the history provided to Dr Burke on 27 April 2015, Ms Buchanan said that her back symptoms developed around February 2012 when she felt low back pain which she "associated with stressful working conditions". Ms Buchanan then had a workplace assessment and took some time off work. She subsequently attended on a chiropractor and gradually the symptoms settled. She did not experience any major issues for the next two years except for one instance in June 2013 when she experienced some low back pain which Ms Buchanan again associated with prolonged and stressful working conditions. At this stage she had a further workstation assessment.
The history also stated that Ms Buchanan developed symptoms of neck and shoulder pain in 2014. The neck pain was left-sided but the shoulder symptoms were right-sided. Ms Buchanan was referred to a physiotherapist and received treatment on a weekly basis from May 2014 through to August 2014. An MRI revealed some minor bulging in relation to the cervical spine.
In his 7 May 2015 report Dr Burke noted that after Ms Buchanan returned to work in 2015 she was referred to Dr Yang and completed an MRI scan on 12 March 2015. Dr Burke's report states that Ms Buchanan attended on Dr Yang on 19 March 2015 and quotes Dr Yang as expressing the view that "the MRI of the lumbar spine showed no disc or nerve lesion that is pathological. I think her problems are probably not coming from the spine. The differential diagnosis would be SI joint pain on the left side or a piriformis syndrome. As first port of call I am sending her to see Dr Frank Thomas, a pain specialist, for SI joint injection and possible radiofrequency neurotomy". Any association between the differential diagnosis and Ms Buchanan's employment was not however explored during the appeal.
In his investigations Dr Burke reviewed MRI's taken of Ms Buchanan's lumbar spine on 26 September 2014 and 12 March 2015. In respect to the March 2015 MRI, Dr Burke noted that it disclosed "mild disc desiccation at L4/5 and L5/S1"; "degenerative change at right L5/S1"; "small annular tear at L4/5 and at L5/S1"; "mild effacement of the perineural fat around the existing left L5 nerve root"; and "paraspinal muscle atrophy". Dr Burke concluded that "overall appearances" were unchanged since the previous MRI in September 2014. He said this conclusion reinforced his opinion that there had been no underlying or structural change to Ms Buchanan's back condition.
Dr Burke concluded that it was "highly unlikely that any work-related injury has occurred". He opined that Ms Buchanan had a non-work related back condition that had been "exacerbated in the course of her employment" and that any "exacerbation would have been short term, temporary and would not have resulted in any long-term impairment". He accepted that sitting for extended periods of time had contributed to the exacerbation.
In a supplementary report dated 8 September 2015 Dr Burke stated that he did not agree that Ms Buchanan's condition constituted an "aggravation". He said that the word "aggravation" implies that there has been "an underlying change in the biomedical condition and a consequent increase in impairment". It was his opinion that while Ms Buchanan would have experienced increasing symptoms as a result of sitting for longer periods of time, "the increase in symptoms would have been short term and temporary" and would not have resulted in any change in the "underlying biomedical condition or impairment". Dr Burke did not accept that Ms Buchanan's duties would have been a significant contributing factor to an aggravation.
In a third report prepared on 2 October 2015, Dr Burke stated that his use of the word "exacerbation" in his earlier reports was incorrect and that the word should be replaced with the phrase "short term temporary increase in symptoms". In his evidence in the proceedings Dr Burke explained that the term "exacerbated" was used to describe a "short term increase in symptoms". It was his evidence that an "exacerbation" is to be distinguished from an "aggravation" on the basis that a condition described as an exacerbation will feature a short term increase in symptoms while an aggravation involves a change in the underlying condition. He added at (T1-51):
"So, you know, you have a much more significant event occurring with an aggravation. This is not an aggravation. It’s just a short-term increase in symptoms which occurs, as – as I’ve said, with everybody with that condition. So everybody with a back condition, whether they sit at home, sit at the theatre, sit at a restaurant will get, you know, usually get a short-term increase in symptoms, then it goes away. So, similarly, this is what I described this event as."
In his 2 October 2015 report Dr Burke also answered a number of questions put to him by the appellant. Dr Burke's responses are paraphrased in the following terms:
(i)Dr Burke opined that had Ms Buchanan not been undertaking her workplace duties, is it likely that she would have experienced a temporary increase in symptoms in a non-work setting.
Dr Burke stated that "the issue in this particular case is sitting. Many people who sit for a period of time, especially if they suffer from back problems (or something similar), will develop an increase in symptoms. This is called 'tolerance' and it relates to a period of time a person can sit before developing symptoms in their back, which would require them to stand up, move around or do something else. This is universal and would relate to any sitting posture, whether at work or home".
(ii)Dr Burke opined that it is "likely that the employment was the setting or the background of Ms Buchanan’s temporary increase in symptoms".
He said that "had Ms Buchanan been sitting at home, cinema, restaurant she would have also experienced a temporary increase in symptoms. For example, many people with back problems avoid going to the cinema given that sitting for an hour and a half would increase their symptoms and they would be required to get up and move around".
(iii)In respect to the relevance of the fact that Ms Buchanan's symptoms worsened to the extent of requiring hospital admission during a period of annual leave, Dr Burke opined that there appeared "to have been a deterioration in Ms Buchanan’s condition during the two week period that she was on annual leave in September 2014". He said that this outcome raised "a question as to whether there was an event during the two week period that caused Ms Buchanan’s deterioration in her lower back. However, given the nature of Ms Buchanan’s pre-existing back condition, namely disc degeneration of the lumbar spine, the worsening of the symptoms during this time was most likely caused by the natural progression of this condition, which is non-work related".
Dr Burke said that as "Ms Buchanan suffers from a disc degeneration of the lumbar spine, a wide range of activities (even trivial and normal day-to-day activities) could cause temporary increase in symptoms".
(iv)Dr Burke concluded that it was "reasonably likely" that Ms Buchanan's symptoms were caused or contributed to by the natural history and/or natural progression of her pre-existing condition, namely, disc degeneration of the lumbar spine.
In considering whether prolonged, stressful periods of working in sitting position over a period of time up to 9 September 2014 would have caused or contributed to Ms Buchanan's symptoms, Dr Burke stated that there was "no evidence to suggest that sitting for prolonged periods of time is likely to cause an injury to an individual as such that they develop long term back pain (i.e sitting would not have resulted in any change in the pathology in the disc or deterioration of Ms Buchanan’s underlying degenerative condition)".
The history provided by Ms Buchanan to Dr Burke did not include any reference to her fall on a staircase in the first half of 2014. Ms Buchanan said that she did not associate her fall with back pain and that she did not consider it relevant to the examination. She said that the fall happened on a weekend, that she did not recall any pain, and that it did not cause her to have any time off work. Nor did the history disclose that Ms Buchanan had suffered neck pain since 2007.
Findings
Ms Buchanan said that medications affected her powers of recall. It was not surprising therefore that Ms Buchanan’s evidence generally lacked specificity both in terms of a failure to provide a clear chronological labelling of events, but also in describing the facts and circumstances associated with particular events, such as the onset of pain or symptoms, the intensification of pain, attendance on medical practitioners, and workload fluctuations. In order to make findings, in some cases it has been necessary to reconcile Ms Buchanan's evidence with the history provided to Dr Burke, available medical records (Exhibit 2), and the history given to Dr Heyne.
Ms Buchanan experienced symptoms of pain when a back condition became symptomatic in February 2012. There is no evidence about whether Ms Buchanan attended on a general practitioner at this time or took time off work. However she did attend on a medical practitioner and take time off from work on account of back pain in July 2012. Ms Buchanan subsequently resumed work on a graduated return to work plan. It is likely that an ergonomic assessment of her Spring Hill workstation was conducted around this time. Ms Buchanan did not consult a doctor for back pain on any other occasion in 2012.
On the history given to Dr Burke which I accept, Ms Buchanan attended on a chiropractor some time in 2012 and her symptoms gradually settled. Dr Burke records that, except for one instance, there were no major issues over the next two years, meaning that in approximate terms, Ms Buchanan got on with her life without major problems between July 2012 and the middle of 2014. The one exception involved an event in June 2013 when Ms Buchanan experienced low back pain and a further ergonomic assessment was completed. However Ms Buchanan did not take time off work for back pain in 2013, nor did she attend on a medical practitioner.
This second ergonomic assessment was conducted at the Carseldine office following Ms Buchanan's relocation from Spring Hill. Ms Buchanan had been unable to take the chair that she was using at Spring Hill to Carseldine and she told her supervisor in June 2013 that her chair was not comfortable. While an ergonomic assessment of her workstation in August 2013 resulted in a new chair being ordered, it did not arrive until February 2014.
Ms Buchanan's health deteriorated in 2014 although not necessarily as a result of a worsening of her back pain. She had been suffering chronic neck pain since 2007 and this had become problematic in 2014. She reported concerns about neck pain in her attendances on Dr Heaney on 25 March and 28 March 2014. The medical record indicates that on 28 March 2014 Dr Heaney suggested a referral to a physiotherapist for chronic cervicogenic headaches and chronic neck and back pain, however, Ms Buchanan preferred treatment by a chiropractor and massage.
A non-work related fall in 2014 also contributed to a deterioration in Ms Buchanan's health. While she did not attend on a medical practitioner, Ms Buchanan sought treatment from a physiotherapist for a right shoulder injury around May 2014. On the history given to Dr Burke, I accept that Ms Buchanan was treated on a weekly basis by her physiotherapist from May 2014 through to September 2014. Ms Buchanan's health was also impacted in or about September 2014 when she said that she experienced pain in her arm and could not lift her right arm up. Ms Buchanan reported the problem to her physiotherapist in a consultation on 23 September 2014. Apart from the mention of back pain in the record of consultation on 28 March 2014, and the reporting of back pain to the physiotherapist in September 2014, treatment for back pain was not sought in 2014 prior to Ms Buchanan's hospitalisation on 25 September 2014.
The impression drawn from Ms Buchanan's evidence was that she suffered back pain continually from the onset of symptoms in early 2012 to her hospitalisation on 25 September 2014. In more particular terms it was Ms Buchanan's evidence that her back pain worsened significantly in the period from May 2014 to the end of September 2014.
This evidence however did not appear to be consistent with the history she gave to Dr Burke and which indicated that after the onset of pain in 2012, pain settled and she did not experience any significant difficulty for two years except for one episode in 2013. Apart from a period of time off work in July 2012, neither did the pain preclude her from attending work. Further, despite that, in particular, Ms Buchanan testified to significantly increased pain between May and September 2014, she did not attend on a general practitioner for back pain during this period. While Ms Buchanan said that she had taken medication between May and September 2014, it appeared that she was claiming a beneficial effect from medications that she was taking for either neck or shoulder pain or both. In circumstances where Dr Heaney was not called to give evidence, the medical records in the evidence as Exhibit 2 do not support a finding that Ms Buchanan was receiving medical treatment for back pain nor that she had been prescribed medications for her back pain. In reporting back pain to her physiotherapist on 9 September 2014, the history described the pain as "on and off", suggesting the pain was intermittent.
Ms Buchanan tried to explain any apparent inconsistencies by saying that her neck, shoulder and back symptoms were all treated by her physiotherapist and/or her chiropractor. Her position in this regard received some support from the history recorded by Dr Burke which stated that a chiropractor treated the back pain when the condition first became symptomatic in 2012, and an entry in the medical records of Dr Heaney which suggested that Ms Buchanan may have been receiving treatment from a chiropractor around March 2014. However no evidence was adduced from the chiropractor who treated Ms Buchanan and I am unable to make findings about the timing, extent, nature and frequency of any attendances on chiropractors for back pain.
Neither was evidence adduced from Ms Buchanan's treating physiotherapist and consultation records were not tendered other than in respect to extracts which were included in Dr Burke's report of 7 May 2015. These extracts establish that Ms Buchanan reported back pain to her physiotherapist on 9 September 2014 and 23 September 2014. Given that Ms Buchanan had been treated on a weekly basis by the physiotherapist since May 2014, it can be inferred that Dr Burke drew attention to the 9 September 2014 consultation because this was the first occasion that Ms Buchanan had reported pain to her physiotherapist. The inference is supported by Ms Buchanan's evidence when she stated that she nominated 9 September 2014 on her WorkCover claim form because this was the first occasion that treatment for back pain by her physiotherapist had been documented (T1-19).
The presence of multiple sources of pain are not relevant to the determination of the appeal except to the extent that it was possible, given the vagueness in some of the evidence, that some of the episodes of pain described by Ms Buchanan were related to neck and shoulder conditions and were not associated with employment related sitting. Ms Buchanan had suffered from neck pain since 2007 and on one past occasion the pain caused her to take eight weeks off work, while she rated shoulder pain as her major concern during 2014. Her shoulder condition had deteriorated to the extent that by September 2014 she could not lift her right arm. Notwithstanding this no evidence was adduced about how neck and shoulder pain impeded the performance of work nor about whether there was any association between these sources of pain and back pain.
While Ms Buchanan emphasised a connection between an intensification of pain with busy periods at work, I am uncertain about the frequency of the busy periods and on which days, months and years they occurred. In her evidence she specified parliamentary estimates, the lead up to the G-20 conferences, the restructuring of the public sector workforce, the closure of a Deputy Director-Generals office, and a transport renewal taskforce. While her work for the G-20 conferences would have been undertaken prior to her annual leave in September 2014, and the estimates process would have taken place sometime in 2014, I am not aware when she was preoccupied with the other events.
If symptoms of back pain or the onset of back pain was to be associated with busy periods of work, no evidence was adduced to contrast these busy periods with normal periods of work in terms of the onset of pain. Nor did the evidence adequately explain how pain might be experienced at work but not experienced away from work while sitting at home watching TV, sitting in a car for one to two hours while driving to the coast, or sitting in a restaurant having a meal. In the end result Ms Buchanan's evidence was predominantly directed to providing a factual basis for Dr Heyne's opinion which relied on a history of excessive hours of work and pain caused by prolonged sitting.
The difficulty for the respondent's case arose from the definition of "prolonged sitting" that was implicit in Dr Heyne's evidence but which was not compatible with the facts. Additionally, the proposition that sitting might cause back pain was developed on a narrow base. The facts as adduced only allowed one "prolonged sitting" scenario to be considered. The evidence did not embark on any assessment of probability in the event that lesser hours were worked. In a context where Dr Heyne defined the concept of "prolonged sitting" as meaning work in a sedentary occupation for 12 hours a day and 80 hours a week, there is no evidence upon which a finding could be made about the probability of injury or aggravation in the event of sitting for lesser periods of time.
Dr Heyne's evidence was unambiguous in asserting that prolonged sitting for 80 hours of week could cause a back injury. Her evidence was that Ms Buchanan's back problem had "occurred after many months of working extended hours" including some days of 12 hours duration (T1-39); that Ms Buchanan's work history disclosed that for much of 2014 she had "been working up to 80 hours a week" (T1-39); that "prolonged sitting with poor ergonomics is one of the contributing factors that will strain backs" (T1-42); that "the situation of sitting 80 hours a week" is not natural (T1-44), and that "seating and being seated and working for 80 hours a week is a strain on the back" (T1-47). In acting on a history that involved Ms Buchanan working 12 hour days, and 80 hour weeks including some incidence of work over all seven days, Dr Heyne has provided a diagnosis or an opinion which is not consistent with the facts.
Ms Buchanan said that following her relocation to Carseldine in 2013, she typically worked from 9.00am to 6.00pm. If a half hour break were allowed for lunch, the result was that Ms Buchanan typically worked an 8.5 hour day and a 42.5 hour week. If a full lunch break were not taken, then she would have worked between 42.5 and 45 hours per week. In busy periods, Ms Buchanan said that she worked between 8 hours and 10 hours a day resulting in a working week of between 40 hours and 50 hours duration. Beyond this it is accepted that in response to particular events of importance, and on an occasional basis, Ms Buchanan may have worked more than 10 hours a day. There was no evidence to the effect that Ms Buchanan worked on weekends. A consideration of the weight to be attached to Dr Heyne's evidence is undertaken within this factual context.
Dr Heyne's evidence provides support for a proposition that prolonged sitting over a period of some months involving sitting for in the order of 80 hours a week can cause or aggravate back injuries. Dr Heyne's opinion does not however provide support for the proposition that all clerical or administrative workers engaged in a sedentary occupation are susceptible to back injuries or in more particular terms that a clerical or administrative employee working for between 40 and 50 hours a week would be more likely than not to suffer or aggravate a back injury.
In circumstances where the history relied on was wrong, and where Dr Heyne advanced no alternative diagnosis relevant to the actual duration of Ms Buchanan's working hours, I prefer Dr Burke's evidence in arriving at a determination about causation. Dr Burke's opinion was that prolonged sitting would not have caused the development of a long term back condition. He said that "sitting would not have resulted in any change in the pathology in the disc or deterioration of Ms Buchanan's underlying degenerative condition".
I also conclude, having regard to Dr Burke's evidence that, taking the term "aggravation" as used in medical parlance, Ms Buchanan's underlying degenerative condition would not have been aggravated by sitting at work. I accept his conclusion that any increase in symptoms "would have been short term and temporary, and would not have resulted in any change in the underlying biomedical condition or impairment".
Notwithstanding this, it is not in dispute that Ms Buchanan did suffer symptoms of back pain as a result of sitting for periods of time. Dr Burke conceded that "many people who sit for a period of time, especially if they suffer from back problems" will develop an increase in symptoms. He had also, in his initial report, opined that Ms Buchanan's "duties would have been a significant contributing factor to an exacerbation of her underlying degenerative condition". However, he subsequently clarified in his 2 October 2015 report that in lieu of the word "exacerbation", it would be preferable to say that Ms Buchanan's duties would have been a significant contributing factor to a "short term temporary increase in symptoms".
Whether short term temporary episodes of back pain amount to an aggravation of an underlying degenerative condition and, if so, whether the employment significantly contributed to the aggravation, are the determinations required to be made.
Aggravation
Whether an exacerbation of an injury equates to an aggravation of injury and therefore constitutes a compensable injury pursuant to s 32(3) of the Act is a matter which has attracted significant attention in the courts over time. In Pleming v Workers' Compensation Board of Queensland[1] de Jersey P concluded that the decision in Federal BroomCo Pty Ltd v Semlitch[2] was strong binding authority for the view that "one should in a case like this regard the 'disease' as encompassing the symptoms, that is, the pain". De Jersey P also endorsed the judgment in Commonwealth v Beattie[3] where it was concluded that "pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place".
[1] (1996) 152 QGIG 1181.
[2] (1964) 110 CLR 626.
[3] (1981) 53 FLR 191.
Federal Broom[4] was a case concerning the definition of "injury" in the Workers' Compensation Act 1926 (NSW). By definition "injury" was defined to include aggravation, acceleration, exacerbation or deterioration of any disease. In the course of its decision the High Court considered the meaning of the words "aggravation" and "exacerbation". In his judgment Kitto J, in referring to the definition of "injury", took the view that "the four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse." Windeyer J concluded that the words have "somewhat different meanings" and that "one may be more apt than another to describe the circumstances of a particular case". He went on to say however that the several meanings of the words are not exclusive of one another and that each of them poses the same question viz "whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient".
[4] (1964) 110 CLR 626.
In Karipa v Q-COMP[5], O'Connor DP relied on Commonwealth v Beattie and the decision of Hall P in Omanski v Q-COMP[6] in declining to distinguish between the words "exacerbation" and "aggravation". In Omanski[7], Hall P made clear that he accepted the appellant's submission that "the definition of 'aggravation' at Schedule 6 to the Act is inclusive and that 'aggravate' can carry the meaning 'exacerbate'".
[5] (WC/2011/453).
[6] (C/2012/34).
[7] (C/2012/34).
In Commonwealth v Beattie[8] the Federal Court considered the definition of "injury" in the Compensation (Commonwealth Government Employees) Act 1971. The word "injury" was relevantly defined in that act to mean "any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury … ". In their joint judgment Evatt and Sheppard JJ turned their mind to the meaning of the word "aggravation" as it is used in the definition of injury. In so doing they were asked to distinguish the matter before them from the decision in Federal Broom[9] on the basis that the word "exacerbation" was not included in the definition of injury under the Commonwealth Act. In this regard it was concluded that the absence of the word "exacerbation" from the Commonwealth legislation was not significant and that the words "exacerbation" and "aggravation" were synonymous.
[8] (1981) 53 FLR 191.
[9] (1964) 110 CLR 626.
In a separate judgment in Commonwealth v Beattie[10], Kelly J agreed that "in the context being considered one may use the word 'aggravate' as a synonym for "exacerbate". But his Honour added that:
" … due consideration has to be given, I think, to the fact that the word 'aggravate' is more comprehensive in its meanings than is the word 'exacerbate'. Reference to their basic Latin roots, 'gravis' and 'acer' and their primary meanings of 'heavy or weighty' and 'sharp', helps to point up accurately the difference between the two words."
[10] (1981) 53 FLR 191.
In Darling Island Stevedoring and Lighterage Co Ltd v Hankinson[11] Barwick CJ noted that the words in the New South Wales Act "may overlap in their denotation but none the less they connote different consequences of work in the employment upon pre-existing non-employment disease".
[11] (1967) 117 CLR 19.
In Commonwealth Banking Co v Percival[12] the Federal Court noted that differences might validly emerge between the medical and legal considerations relevant to whether a distinction should be drawn between the symptoms of a disease and the underlying pathology of a disease. While it may be necessary to make the distinction for medical purposes, it was said that it was "fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted".
[12] (1988) 20 FCR 176.
While on the evidence of Dr Burke clear medical grounds exist to distinguish between an exacerbation of an injury and an aggravation of an injury, a determination to be made under workers' compensation law is to be made consistent with the authorities and on the facts and circumstances of each particular case. This was the effect of the conclusion ultimately reached in Commonwealth v Beattie[13] where it was stated that:
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place."
[13] (1981) 53 FLR 191.
In the analysis of the facts and circumstances of this case, a relevant consideration is that the exacerbation involved only short term, temporary, episodes of pain. A doubt about whether an exacerbation of this nature might constitute an aggravation was acknowledged by Hall P in JBS Australia Pty Ltd v Q-COMP[14] where after confirming that a temporary increase of symptoms associated with a degenerative condition which returned to its pre-aggravation state after the cessation of symptoms could amount to an aggravation, he nevertheless accepted "that in 'short lived' exacerbation cases, there is ample room for differences of opinion".
[14] (C/2015/35).
Although there are questions of degree, the facts and circumstances of this case may also give rise to additional points of distinction including that the episodes of pain at work did not require treatment or time off, the incapacitating event did not occur while Ms Buchanan was at work, and neither therefore was Ms Buchanan performing normal work functions when incapacitation occurred.
In my view there is a basis upon which I could conclude, consistent with the authorities, that the short term temporary episodes of pain experienced by Ms Buchanan do not equate with an aggravation pursuant to s 32(3) of the Act. However given the conclusion that I have reached in regard to whether the employment was a significant contributing factor, it is not necessary to make a final determination on this issue.
Significant Contributing Factor
There is on the evidence at least two contributing factors to any aggravation of the degenerative lower back condition. On the evidence of Dr Burke, the natural progression of Ms Buchanan's degenerative condition, and on the evidence of Dr Heyne, the adverse impact of prolonged sitting. A difficulty in evaluating and weighing the contributing factors arises in part from the fact that Ms Buchanan's evidence did not allow findings to be made about how long she would sit before the onset of pain, nor findings to be made about the duration of each episode of pain, nor the intensity of each episode of pain.
The respondent relied on apparent inconsistencies in Dr Burke's reports associated with the use of the terms "aggravation" and "exacerbation" and also on his acceptance that Ms Buchanan's duties would have significantly contributed to a short term temporary increase in symptoms. However, notwithstanding the variations in expression, his diagnosis has been consistently stated in all three reports to mean that there was an underlying back condition which was not work related, that the underlying condition had been exacerbated by extended sitting at work, that any exacerbation did not result in any change to the underlying condition, and that the exacerbation was to be described as short term and temporary increases in symptoms. It was these opinions that led Dr Burke to conclude that it was "likely that the employment was the setting or the background of Ms Buchanan’s temporary increase in symptoms".
It was the effect of Dr Burke's evidence that, whether it be at work or away from work, Ms Buchanan was always susceptible to episodes of pain arising from sitting for a specified period of time. There was no significant differentiating activity. It was his opinion that "had Ms Buchanan been sitting at home, cinema, restaurant she would have also experienced a temporary increase in symptoms".
The medical evidence does not support a finding that the employment contributed significantly to any aggravation. In the first instance there was no contemporaneous evidence to the effect that Ms Buchanan had reported to a medical practitioner or a health professional that her back pain was associated with prolonged sitting at work, or that she discussed with them any adverse impact that work may be having upon her back condition. Dr Heyne did not treat Ms Buchanan between early 2012 and the end of September 2014, and the medical practitioners who did treat Ms Buchanan across this period were not called to give evidence. During the relevant period of 2014, Ms Buchanan's pain did not require the intervention of medical practitioners, did not appear to impede the performance of work, and did not require any reduction in working hours. These factors support a conclusion that back pain experienced at work over the relevant period was intermittent in nature and was appropriately described by Dr Burke as short term temporary increases in symptoms.
The incapacitating event occurred at the end of a two week period of annual leave. While there was some speculation about an intervening non-work related event which triggered the hospitalisation, it did not extend beyond speculation. In the circumstances the incapacitation may have more likely than not have been brought about in circumstances described by Dr Heyne when she gave the following evidence (T1-39):
"Doctor, is it the case – or can I ask, then, is this an injury that could be characterised as one that aggregates over time or builds up over time?‑‑‑Yes. That’s correct. And it can be – it can spirally aggregate and for that year, you know, to the – to the point where your – when the final – well, when the final event comes, it may not be at a working moment or a working day. You might just reach to turn a kettle on and, bang, it will go, but it’s not because you reached to turn the kettle on that day. It’s been the silent and not so silent accrual of strain over months and years prior that leads up to it."
Fielder v WorkCover[15] was a case comprising a similar factual framework. In his decision in that matter Hall P concluded:
"The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoe laces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of the pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence any other conclusion would be speculation."
[15] Fielder v WorkCover Queensland (2004) 175 QGIG 871, 872.
Fielder[16] is authority for a conclusion that if a degenerative condition becomes symptomatic in circumstances where the onset of significant pain or incapacitating pain occurs while the worker is performing his usual work, then the worker's employment is to be held to be a significant contributing factor to the aggravation. It follows in my view that Fielder[17] should also be authority for the converse position, although with some qualification. That is, for the purposes of this matter, if a degenerative condition becomes symptomatic during a period of annual leave, and while no work related duty is being performed, then the employment should not be regarded as a significant contributing factor to the aggravation. The qualification in this instance is that Ms Buchanan's degenerative condition had been intermittently symptomatic since February 2012 and had Dr Heyne's evidence been accepted, the qualification may have acted to sustain the respondent's case.
[16] (2004) 175 QGIG 871.
[17] (2004) 175 QGIG 871.
In Federal Broom[18] Kitto J concluded:
"Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition. (at p633)."
[18] (1964) 110 CLR 626.
In deciding Pleming[19], de Jersey P applied the definition provided by Windeyer J in Federal Broom[20] and concluded that "the disease in those cases is aggravated because the 'effects upon the patient' are made 'more serious' through the occurrence of symptoms which would not occur but for the employment activity". De Jersey P then concluded that the worker's degenerative back condition was aggravated "in that bending at work likely produced related pain which would otherwise not have been experienced".
[19] (1996) 152 QGIG 1181.
[20] (1964) 110 CLR 626.
These decisions are authorities for the proposition that in determining whether the aggravation is causally connected with the employment, a relevant consideration is whether the aggravation occurred while something was being done in the course of employment which is peculiar to the employment. Acceptance of Dr Heyne's evidence about "prolonged sitting" would have satisfied this threshold. Absent Dr Heyne's evidence, there was no other evidence upon which I could conclude that "sitting" at work was a significant factor contributing to any aggravation.
Both Carmen v Q-COMP[21] and Pleming[22] are cases in which while the claimants were successful in establishing that an underlying or pre-existing condition had been aggravated, they failed to establish that the employment was a significant contributing factor to the aggravation. In Carmen[23], Hall P concluded that:
"Here a temporal connection between the pain and the work can only be found on the evidence of Ms Carman. There is a competing explanation/cause; viz. the natural progression of the degenerative back condition. If Ms Carman's evidence of heavy work be rejected, even if it be assumed that her back became painful at or after work, there is no basis for a finding that the work was a "significant contributing factor" to the pain rather than an occasion for its expression."
[21] (C/2007/29).
[22] (1996) 152 QGIG 1181.
[23] (C/2007/29).
In Pleming[24], de Jersey P concluded that the workers degenerative back condition was aggravated, in that "bending at work likely produced related pain which would otherwise not have been experienced". De Jersey P said that while a conclusion could be made that the employment contributed to the aggravation, there was at least one other contributing factor viz the degenerative condition itself. De Jersey P then declined to disturb the magistrates finding that the employment was no more than an "irritant" and should not be raised to the level of a contributing factor.
[24] (1996) 152 QGIG 1181.
Myer Holdings Ltd v Q-COMP[25] on the other hand was a case in which the employment was held to be a significant contributing factor. In this matter the finding of fact was to the effect that something happened at work that caused an acute muscle and ligamentous strain and that it was most likely that the worker, a shop assistant, had aggravated his pre-existing injury in bending to get a plastic bag. In deciding the matter Fisher C concluded that she was satisfied that "employment was a significant contributing factor to the aggravation because the exigencies of his employment, that is, what he did in the course of his duties contributed in some significant way to the occurrence of the aggravation".
[25] (WC/2013/118).
In this matter the exigencies of employment did not contribute in a significant way to any aggravation of Ms Buchanan's back condition. The employment was the setting or the occasion for the expression of pain in circumstances wherein pain might arise at work, at home or in any other occasion or setting. The degenerative condition contributed to a reduction in normal tolerance limits for sitting and caused, from time to time, the onset of pain. Ms Buchanan was, except for a period of time in July 2012, able to function at work within her tolerance limits between February 2012 and September 2014. When her degenerative condition worsened considerably requiring hospitalisation, Ms Buchanan was on a period of annual leave. The major contributing factor to episodes of pain and hospitalisation was the natural progression of the degenerative condition.
The appeal is allowed and the decision of the regulator dated 8 July 2015 is set aside and substituted with a decision that the claim is not one for acceptance.
I order accordingly.
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