SYED AS-SAYEED and COMCARE

Case [2013] AATA 210

[2013] AATA 210 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/3042

Re

SYED AS-SAYEED

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER
DR P WILKINS, MEMBER
Date 10 April 2013
Place Canberra

The decision under review is set aside.

........................................................................

PROFESSOR RM CREYKE, SENIOR MEMBER

CATCHWORDS

COMPENSATION – Commonwealth employee – low back pain – lumbar spine – whether arising out of or in the course of employment – whether significantly contributed to by employment – whether a nature and conditions claim – whether liability excluded under section 7(7)

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 7(7), 14

CASES

Asioty v Canberra Abattoirs Pty Ltd (1989) 167 CLR 533

Casarotto v Australian Postal Commission [1989] FCA 116

Comcare v Porter (1996) 70 FCR 139

Commonwealth v Beattie (1981) 35 ALR 369

Health Insurance Commission v Van Reesch, Comcare (unreported, Northrop, Wilcox and RD Nicholson JJ, 20 December 1996)

Mellor v Australian Postal Corporation (2009) 108 ALD 159

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Szabo v Comcare [2012] FCAFC 129

Telstra Corporation Ltd v Bowden (2012) 292 ALR 61

Van Reesch v Health Insurance Commission & Comcare (unreported, Finn J, 1 March 1996)

SECONDARY MATERIALS

Battie M C and Videman T ‘Lumbar disc degeneration: Epidemiology and genetics’ (2006) 88-A- supplement 2 Journal of Bone and Joint Surgery, Inc 3

Kalichman, L and Hunter, D J ‘The genetics of intervertebral disc degeneration: Familial predisposition and heritability estimation’ (2008) 75 Joint Bone Spine 383-387

Kwon et al ‘Systematic review: Occupational physical activity and low back pain’ (2011) 61 Occupational Medicine 541.

PhysioAdvisor.com ‘Lumbar disc Bulge’ < accessed on 14 March 2013

Roffey D M et al ‘Casual assessment of occupational sitting and low back pain: results of a systemic review’ (2010) 10 The Spine Journal 252-261

A Zytkowski, S Sosnowski and B Wrodycks ‘Pol Merkur Lekarski’ (2006) 496 (published in Polish)

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

DR P WILKINS, MEMBER

10 April 2013

  1. Mr Syed As-Sayeed made a claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for a condition described as ‘displacement of intervertebral disc – lumbar’, sustained on 29 November 2010. The claim was rejected by Comcare on 1 March 2011, a decision upheld on internal review on 5 July 2011.

  2. Mr As-Sayeed sought further review by the Tribunal. The matter was heard in Canberra on 7-8 February 2013.

    Background

  3. Mr As-Sayeed is employed by ACT Health and Aged Care and Rehabilitation Services (agency). He came to Australia as a student in 2000, acquired permanent residence in 2003, and was employed by ACT Health on contract from 2004 and on a permanent basis from 2005.  In 2008 he was promoted to Information Manager.

  4. He claimed his work as Information Manager since 2008 involved ‘continuous desk-based work with prolonged IT based support services’, and responsibility. He said his workload doubled since, at the time, he said he was doing the…

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AGLC
SYED AS-SAYEED and COMCARE [2013] AATA 210
Case
[2013] AATA 210
Decision Date

CaseChat Overview and Summary

The parties to the appeal were Mr Syed As-Sayeed, the applicant, and Comcare, the respondent. The dispute involved a claim for compensation for a work-related injury or disease. The decision was made by the Administrative Appeals Tribunal in Canberra. The Tribunal was required to decide the appropriate diagnosis of Mr As-Sayeed’s condition, whether it was an injury or an aggravation of a disease, whether it arose out of or in the course of employment, whether his employment significantly contributed to the condition, and whether Comcare could exclude liability under section 7(7) of the Commonwealth Employees (Commonwealth Employees) Act 1997 (Cth) for a wilful and false representation by Mr As-Sayeed about his back condition.

The Tribunal found that Mr As-Sayeed suffered a disorder of his spine associated with lower spinal pain, which was precipitated by him coughing on 29 November 2010. However, the Tribunal found that his employment made a significant contribution to his chronic back pain. The Tribunal rejected the evidence of Dr Burke who argued that it was solely or principally the events of 29 November 2010 which caused Mr As-Sayeed’s impairment and that this was not work-related. The Tribunal accepted the evidence of Doctors Eaton and Watson who supported such a finding, while acknowledging that other factors such as Mr As-Sayeed’s anxiety may also have made a contribution. The Tribunal also rejected Comcare’s argument that it was a wilful and false representation by Mr As-Sayeed about his back condition, and that Comcare could exclude liability under section 7(7) of the Act.

The Tribunal found that Mr As-Sayeed’s employment made a significant contribution to his chronic back pain. The Tribunal accepted that Mr As-Sayeed’s degenerative spinal condition on its own would not explain his level of impairment following 29 November 2010. At the same time, the Tribunal found that the coughing incident on its own would also not have produced a condition the severity of which caused Mr As-Sayeed to take several months off work, followed by a graduated return program which did not return him to full-time employment until 10 months after the coughing incident. This history suggests the coughing incident did precipitate his constitutional spinal pain condition by aggravating his symptomatology, but that the symptoms had been becoming more prominent in at least the month prior to the end of November incident and that this was due principally to conditions at work.

The Tribunal ordered that Comcare pay Mr As-Sayeed compensation for the work-related injury or disease.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr As-Sayeed sought further review by the Tribunal. The matter was heard in Canberra on 7-8 February 2013.Background Mr As-Sayeed is employed by ACT Health and Aged Care and Rehabilitation Services (agency). He came to Australia as a student in 2000, acquired permanent residence in 2003, and was employed by ACT Health on contract from 2004 and on a permanent basis from 2005. In 2008 he was promoted to Information Manager. He claimed his work as Information Manager since 2008 involved ‘continuous desk-based work with prolonged IT based support services’, and responsibility. He said his workload doubled since, at the time, he said he was doing the work done by two people in other divisions, and responding to queries from 13 different managers. He said the intensity of the pressure meant he spent long periods at his workstation and this caused his lower back pain. Although he attempted to take regular breaks, he said this was not always possible. His employer disputes that his workload doubled. Mr As-Sayeed was involved in a motor vehicle accident in July 2004. He suffered a whiplash injury to his neck, but no injury to his middle or lower back. He returned to work after six to seven weeks. He underwent physiotherapy and acupuncture for several months and says he recovered and continued to play sport. The evidence from Rehab Co, the rehabilitation provider to whom he was referred following the motor vehicle accident, was that he sustained ’injuries to his neck, head, shoulders and knees and has also developed psychological injuries as well’. The report noted ‘Mr As-Sayeed was diagnosed with moderately severe cervical sprain, complicated by cervicogenic headaches. He was also diagnosed with an adjustment disorder with depressed mood’. Mr As-Sayeed said he first experienced back pain or muscle spasm in his spine in early 2005 which he reported to Dr Tim Watson, his general practitioner, his rehabilitation coordinator and his supervisor. A work station assessment was conducted by his employer in February 2005 and a special chair was prescribed. He again reported pain to Dr Watson in early 2006 who recommended exercises and an orthopaedic mattress which helped ease the discomfort. From March 2008, he was prescribed another special Calypso saddle chair following a rehabilitation assessment when he had an ankle injury which affected his gait and speed of walking. This followed Mr As-Sayeed’s complaint about pain in the arch of his right foot. Mr As-Sayeed said the chair did not have sufficient lumbar support for a tall person like himself. In late October, early November 2010, he again suffered back pain which he reported to his supervisor, the administration manager and he said to his GP. In the week prior to 29 November 2010, in view of the problems he was having with the Calypso chair, he resorted to using a different chair. Subsequently he trialled a number of different types of work station chairs which were in current use in the office and he said the change reduced his pain temporarily.

Evidence

Evidence Before The Court

Mr As-Sayeed’s evidence is that his back recovered slowly and that even after he had returned to full-time work his back was not the same as it had been prior to 29 November 2010. He said if he stands up or sits for more than an hour, then he feels some discomfort and he needs a break.Scientific evidence Evidence was provided in documents from medical journals. In the first, provided by Mr As-Sayeed, the abstract noted:…the dynamics of progress of the [low back pain] disease varies, and the progression of pathological disorders is connected with…first…the cumulation of effects of microtraumas, resulting from excessive sitting and bending, which may considerably accelerate the process, especially in patients genetically predisposed.[1][1] A Zytkowski, S Sosnowski and B Wrodycks ‘Pol Merkur Lekarski’ (2006) 496 (published in Polish). In the second article, the causes of a lumbar disc bulge were said typically to arise from three causes, ‘provided they are forceful, repetitive or prolonged enough. These include…sitting’. The article noted under ‘Signs and symptoms of a lumbar disc bulge’:the patient may experience pain radiating down the leg into buttocks, thigh, lower leg or foot (sciatica)…Symptoms are generally exacerbated with activities involving…prolonged sitting…Coughing, sneezing and twisting may also aggravate symptoms.[2][2] PhysioAdvisor.com ‘Lumbar disc Bulge’ < accessed on 14 March 2013. Comcare also provided four reports. The first, focusing on familial predisposition, concluded that the mode of inheritance is complex with multiple factors and multiple genes likely to be involved, and mentions previous research which found there is a high heritability for intervertebral disc degeneration ranging from 34% to 61% in different spine locations.[3][3] L Kalichman and D J Hunter ‘The genetics of intervertebral disc degeneration: Familial predisposition and heritability estimation’ (2008) 75 Joint Bone Spine 383-387. The second considered the causes of low back pain (LBP) and concluded:This review failed to uncover high-quality studies to support any of the Bradford-Hill criteria[4] to establish causality between occupational sitting and LBP [low back pain. Strong and consistent evidence did not support criteria for association, temporality, and dose response. Based on these results, it is unlikely that occupational sitting is independently causative of LBP in the populations of workers studied.[5][4] The Bradford-Hill criteria, known also as Hill’s theory of causality, are a group of nine minimal factors which if satisfied provide adequate evidence of a causal relationship between incidences and their consequences.[5] D M Roffey et al ‘Casual assessment of occupational sitting and low back pain: results of a systemic review’ (2010) 10 The Spine Journal 252-261. The third, a literature survey, concluded that few strong conclusions could be made regarding causation and that there was no strong evidence suggesting lower back pain was caused by sitting.[6][6] Kwon et al ‘Systematic review: Occupational physical activity and low back pain’ (2011) 61 Occupational Medicine 541, 545.

Decision

Reasons for decision

The Tribunal accepts that low back pain is multi-factorial and that prolonged sitting on its own is unlikely to be ‘independently causative’. The Tribunal also accepts that the genetic influence may be one of those factors and depending on the type of back pain, can be a predominant cause. These two articles were the more weighty of those cited to it, given their publication in reputable journals, rather than simply being information on the web. However, their findings do not rule out other factors also playing a significant role. The Tribunal is also aware that the level of proof to a scientific standard required for the findings in the studies provided is not replicated in the lower, balance of probabilities standard required in this proceeding.Conclusion The Tribunal accepts that Mr As-Sayeed suffered an ailment, being a disorder of his spine associated with lower spinal pain. The symptoms were precipitated by him coughing on 29 November 2010. However, they led to a temporary period off work, followed by a graduated return to work, that extended over a period of some 10 months. Mr As-Sayeed’s evidence also is that since his return to work his back is not the same as it was previously and he cannot sit or stand for more than an hour without some discomfort. In other words, there have been longer term effects. The principal issue is whether employment made a significant contribution to that outcome. The medical experts divided on this issue: Dr Burke denied the possibility; Doctors Eaton and Watson supported such a finding, while acknowledging that other factors such as Mr As-Sayeed’s anxiety may also have made a contribution. Dr Eaton said that a range of factors needed to be taken into account to explain the pain and these included posture, long sitting in unergonomic chairs, no regular breaks, lunch at his desk, high work demands, stress at work, and these factors, which were work-related, significantly contributed to his chronic back pain. Dr Watson concurred that whatever underlying degeneration Mr As-Sayeed had it was made symptomatic and accelerated or aggravated by the workplace factors. Comcare and Dr Burke argued that it was solely or principally the events of 29 November 2010 which caused Mr As-Sayeed’s impairment and that this was not work-related. The Tribunal accepts that Mr As-Sayeed’s degenerative spinal condition on its own would not explain his level of impairment following 29 November 2010. At the same time, the Tribunal finds that the coughing incident on its own would also not have produced a condition the severity of which caused Mr As-Sayeed to take several months off work, followed by a graduated return program which did not return him to full-time employment until 10 months after the coughing incident. This history suggests the coughing incident did precipitate his constitutional spinal pain condition by aggravating his symptomatology, but that the symptoms had been becoming more prominent in at least the month prior to the end of November incident and that this was due principally to conditions at work.

Ratio Decidendi

Legal Principle Established

The issues are:·What is the appropriate diagnosis of Mr As-Sayeed’s condition?·Is the condition an ‘injury simpliciter’ or an ‘aggravation’ of a ‘disease’?·If an injury, did the condition arise out of or in the course of his employment?·If a disease, was the condition significantly contributed to by his employment?·Is liability for the injury excluded because Mr As-Sayeed made a wilful and false representation about his back condition?ConsiderationExclusion of liability under section 7(7) Counsel for Comcare claimed that Mr As-Sayeed had made a ‘wilful and false representation’ in that he had circled ‘No’ to ‘Back pain/back injury/sciatica’ in the Medical History section of the ACTPS Assessment Form on 15 July 2005 when applying for a permanent position in the ACT public service. Mr As-Sayeed had circled the conditions in that section and signed the form, but had not added the comments which were on the form. That was done by the assessor. Counsel for Mr As-Sayeed characterised the response by Mr As-Sayeed as ‘carelessness at its highest. It could well have been misunderstanding…[but] [i]t doesn’t meet…the wilful and deliberate requirement of section 7(7)’. In response to questions about his failure to declare his low back pain in February 2005, Mr As-Sayeed’s response was that ‘Yes, I just thought this something not current. Somehow, I think interpreted it wrong’. Later he said ‘Well, to me, didn’t actually suffer any in a long time, that’s why I thought nothing that type of back pain that I need to, you know, put yes, something like that. It’s not like I - I tried to ignore any permanent injury’. As he also said that ‘I did exercises, did exercise, so it’s not a permanent type of thing that I had’. He agreed that he would now put ‘Yes’ if he filled in the form again. As he said ‘Probably after discussion – this session, yes. Because now I know what to write’. There were notations on the document about his motor vehicle accident in 2004, which were linked to his declaration that he had suffered ‘Head injury/concussion’, and ‘Other joint injuries/conditions’. He also ticked ‘Yes’ to ‘Stomach pain/ulcer’. The cases have established that a finding excluding liability under section 7(7) on the ground, in effect, of fraud, ‘is not one lightly to be made’.[8] The tribunal must be able to establish that the representation was objectively false, that the employee knew it to be false, and that it was made without any belief in its truth. The word ‘wilful’ has also been interpreted to introduce connotations of purpose,[9] that is, that ‘the mind intends by the act to achieve something’ by the misrepresentation.[10][8] Van Reesch v Health Insurance Commission & Comcare (unreported, Finn J, 1 March 1996) transcript at 13. The decision was upheld on appeal in Health Insurance Commission v Van Reesch, Comcare (unreported, Northrop, Wilcox and RD Nicholson JJ, 20 December 1996).[9] Comcare v Porter (1996) 70 FCR 139 at 149-150, per Jenkinson J.[10] Ibid at 149, per Jenkinson J.