SYED AS-SAYEED and COMCARE
[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, MEMBERDate 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
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.
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.
His supervisor made an appointment at this time for a workstation assessment but the date was after 29 November 2010. He was referred at this time by the finance manager at his workplace to a Dr Lee, a good ‘backs doctor’, at the Erindale Medical Centre, and made the appointment to see him on 13 December 2010. Mr As-Sayeed also said he made an appointment for 6 December 2010 with a physiotherapist with the Injury Prevention Management Unit of ACT Health.
On 15 November 2010, Mr As-Sayeed complained to his supervisor, the Acting Director Operations, Mr Peter Lisacek, about ‘some back discomfort at his workstation’ which he is recorded as saying was due to ‘his chair which was prescribed about three years ago following a workstation assessment in his previous workplace’. The ‘observations’ by the supervisor were: ‘Syed’s back discomfort appeared to be exacerbated in the sitting position’. Also in November 2010, prior to the date of his injury, computer based software was ordered which is designed to encourage regular breaks from computer work. Mr As-Sayeed said he did not experience pain in his lower back at home, for example, while watching television.
Evidence was provided by colleagues with whom he worked that Mr As-Sayeed was hunched over at his desk and appeared to be in considerable discomfort. One colleague reported this to Mr As-Sayeed’s supervisor, Mr Peter Lisacek. Another colleague who shared an office with Mr As-Sayeed at this time, said he was aware that he was in considerable discomfort at work which related, according to Mr As-Sayeed, to his chair.
On Monday, 29 November 2010 as he was getting ready for work, Mr As-Sayeed was washing his face, and had coughed. He said he immediately felt a dramatic pain in his lumbar region. He was in such discomfort that he lay on the ground and could not get up. He was taken by ambulance to Calvary hospital but was discharged that day after he received strong pain killers. The discharge diagnosis was ‘simple mechanical low back pain after cough’ and ‘?cause’. However, the next day he said he was again in considerable pain and did not go to work. Instead he was taken by a friend to the Ginninderra Medical & Dental Centre for an X-ray and CT scan. Thereafter he did not attend work for some months, returning in February 2011 on a graduated return program ending in September 2011.
As his back was still painful he attended Dr Watson whom he goes to for what he said are ‘critical issues’ for advice and when his less serious conditions are not improving. Dr Watson referred him to Dr Justin Pik, a neurosurgeon. Dr Pik’s clinical notes indicated Mr As-Sayeed had improved in the week following the coughing incident, that he undertook physiotherapy for a fortnight and was off all pain killing medication within three weeks. However, in late December 2010, Mr As-yeed experienced another ‘sudden worsening R gluteal pain again associated with numbness, also central midline…pain and again needing painkillers’. He recorded that Mr As-Sayeed ‘started physio again. Also numbness 2nd and 3rd toes on R’.
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.
The final article related principally to heavy physical loading and disc degeneration and resulted in inconclusive interpretations. This review of disc degeneration did not extend to back pain and other symptoms.[7]
[7] M C Battie and T Videman ‘Lumbar disc degeneration: Epidemiology and genetics’ (2006) 88-A- supplement 2 Journal of Bone and Joint Surgery, Inc 3, 7 and 8.
Medical evidence
Dr Watson
Dr Tim Watson had been Mr As-Sayeed’s general practitioner since 2000. However, to explain the absence of clinical notes in the period preceding 29 November 2010, Dr Watson acknowledged that Mr As-Sayeed did not always seek appointments with him unless the matter was ‘critical’ as he charged for visits. Otherwise he went to a bulk billing clinic. Dr Watson gave evidence that he had been in practice for over 15 years and that his practice had a high number of workers’ compensation and motor vehicle accident patients.
In a letter dated 10 December 2010 to Dr Justin Pik, neurosurgeon, Dr Watson requested an MRI, because his patient had ‘ongoing pain to the lumbar spine and neurological symptoms in the right leg’. Dr Watson’s letter said ‘A CT scan 2/11/10 revealed large disc bulge with potential nerve root compression at right L3 and right L4’.
CTs and MRIs
A CT scan of Mr As-Sayeed’s lumbar spine by the Gininderra Medical & Dental Centre, on 2 December 2010 concluded ‘signs of focal disc bulge of L3/4 on the right side and diffuse disc bulge on L4/5. No other significant disc lesion seen’. The report also noted that the disc bulge was ‘impressing on the right L3 nerve root…and the right L4 nerve root’. Another CT scan on 8 December 2010 revealed no abnormality in his lower lumbar spine. An MRI on 13 December 2010 showed ‘desiccation of the L4/5 intervertebral disc. There is a minor posterior bulge of the disc annulus together with bilateral facet joint degeneration. No canal stenosis or nerve root compromise is resulting’. The remainder of his lumbar spine appeared normal.
Dr Pik
Dr Justin Pik, in a report dated 19 January 2011, said in his opinion, Mr As-Sayeed ‘has had acute low back pain from discogenic origin’. The report said ‘The patient also has referred right leg symptoms from the degenerative disc disease’. He did not recommend an operation and said he considered the condition should not persist beyond six to eight weeks.
Dr Eaton
Dr Garth Eaton, consultant occupational physician, said in a report of 19 April 2011 ‘The radiological changes are in keeping with multilevel degenerative disc disease and possible nerve root irritation’. His report noted:
Multiple factors can contribute to the development of low back pain and degenerative disc disease including genetic and constitutional factors, ergonomic and postural factors, stress, prolonged sitting, particularly in chairs of poor ergonomic design. Mr As–Sayeed is tall and thin and particular attention was required to ensure the chair was the right height etc.
In a supplementary report of 31 October 2011 Dr Eaton said these conditions ‘could have materially contributed to the development of low back pain of indeterminate origin and associated muscle stiffness’. In response to a question about the percentage he intended by ‘likely’ Dr Eaton said ‘about 75 per cent’, and that it was ‘substantially more than material’. As he said the aggravation was of symptoms, and did not lead to ‘worsening structurally of degenerative disc disease’. He repeated these views in a report of 26 March 2012.
Dr Burke
Dr Nicholas Burke, consultant occupational physician, in his report of 23 November 2011, diagnosed mechanical back pain, cause unknown, and ‘unrelated to any significant underlying biomedical pathology’. He said the symptoms possibly related to discogenic disease identified in the MRI in 2010. As he said:
it is quite probable that the incident which occurred in November 2010…was an aggravation of pre-existing degenerative change in the lumbosacral spine…It is possible that there may have been short-term temporary exacerbation of symptoms associated with certain postures he may adopt.
In his view ‘he would have developed his current condition irrespective of employment’. In his supplementary report of 8 June 2012 Dr Burke did not change his earlier opinion concerning diagnosis and causation of his lower back problem.
Concurrent evidence
The parties agreed specific questions to be asked of the medical experts for the purposes of concurrent evidence. Answers at the hearing were provided by the experts, Dr Eaton, Dr Burke and Dr Watson, as follows.
Question 1: ‘What is the specific diagnosis of the Applicant’s claimed lower back condition?’
·Dr Eaton: ‘Chronic lumbar spinal pain of undetermined origin. Possibly discogenic pain, facet joint pain’. He also noted ‘No definite clinical radiological evidence of neural compromise’ and ‘definite diagnosis of the cause of the spinal pain is not possible’.
·Dr Burke: ‘Low back pain associated with degenerative disease of the lumbar spine’.
·Dr Watson: ‘Underlying lumbar spine spondylosis, aggravation of [which] with acute flare-up’.
The three doctors said they agreed on diagnosis.
Question 2: ‘Out of the following options, which best describes the Applicant’s claimed lower back condition:
(a) a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state; or
(b) the aggravation or acceleration of an ailment, disorder, defect or morbid condition?
All the medical experts chose (b).
·Dr Eaton: Mr As-Sayeed reports low back pain with increasing severity with prolonged sitting in non-ergonomic chairs at work, muscle stiffness associated with pain and with further prolonged sitting with inadequate breaks due to workload, etc, and the symptoms became worse. Aggravation of back pain of indeterminate origin occurred.
·Dr Burke: ‘I accept that he’s had an aggravation of his underlying degenerative condition…but…I don’t think he suffered an internal disc disruption at that particular time, but certainly there was a significant increase in impairment with that particular event on 29 November’.
·Dr Watson: [T]his man has got an underlying degenerative spondylosis, which has occurred over a long period of time. During the month before the coughing episode he developed a bit of increased symptomatology to that degenerative spine, and the event of the cough [on] the 29th was just another small flare up of the situation. It’s only a minor aspect of the condition in its entirety’.
The responses to question 2 made answers to question 3 unnecessary.
Question 4: ‘If you selected question 2(b) above, did the Applicant’s ACT Health employment contribute to his claimed lower back condition to a significant degree?’
·Dr Eaton: ‘If all factors are taken into account, including posture, long sitting, unergonomic chairs, no regular breaks, lunch at desk, high work demands, highly stressful job, extra work hours…Mr As-Sayeed’s employment with ACT Health would have substantially contributed to chronic back pain’.
·Dr Burke: ‘I don’t believe his employment with ACT Health…made a significant contribution to his underlying condition…His underlying condition is a degenerative disease of the lumbar spine. There’s no evidence as yet that sitting for longer periods of time, whether it be in an ergonomic or an unergonomic chair, is going to affect that underlying condition in any significant manner…[T]here’s…no scientific evidence to suggest that not having regular breaks will impact on any impairment of those with a lumbar spine…degeneration’.
Later in his evidence, Dr Burke confirmed that if he was applying the balance of probabilities standard he would maintain his view. He conceded, however, ‘the probability would be that that event [29 November] was associated with some pain emerging from the disc’.
·Dr Watson: ‘I believe ACT Health was significantly to blame for his back pain. So he developed lumbar spine back pain as a consequence of poor ergonomics and inadequate work chair. He persisted … with his workload despite the poor ergonomics, consequently developing a lumbar spine back injury over a long period of time. I consider that whatever underlying degeneration he had it was made symptomatic and accelerated – aggravated by the workplace factors…
[J]ust to blame it on 29 November and not take in the fact that he had pain for four weeks before is a bit unreasonable. I think…there was a further flare-up on the 29th but…there is history there’.
Question 5: ‘Did the Applicant’s claimed lower back condition result in an incapacity for work (being either an incapacity to engage in any work or an incapacity to engage in work at the same level as immediately before the onset of the claimed lower back condition)?
All the experts answered ‘Yes’ to this question.
Question 6: ‘Did the Applicant’s claimed lower back condition result in an impairment [as defined in section 4(1) of the Act]’.
All the experts answered ‘Yes’ to this question.
In supplementary questions, Dr Eaton and Dr Watson agreed that prolonged sitting was a risk factor for spinal pain. At the same time, Dr Burke’s view was that sitting might produce a ‘temporary increase’ in an ailment but not ongoing change. Dr Eaton said that there were ‘three major causes [of chronic back pain]…discogenic pain, sacroiliac joint pain and facet joint pain’. He also said that psychosocial issues may be of more significance than had hitherto been accepted. All three doctors agreed that psychosocial factors are very important in the ‘genesis, maintenance and prognosis of low back pain’. Doctors Eaton and Watson agreed that prolonged sitting is a risk factor for spinal pain (Dr Watson) or for degenerative spinal disease (Dr Eaton). Dr Burke agreed that it would ‘cause a temporary increase in [an] “ailment”’.
Dr Eaton and Dr Watson also agreed that prolonged postural malformation on a regular basis, but no major structural damage, could lead to pain which became chronic, particularly if accompanied by other stressors.
Legislation
The claim is for Comcare to accept liability for compensation for Mr As-Sayeed’s back condition in accordance with section 14 of the Act. Other relevant provisions are the definition of ‘injury’ in sections 4(1) and 5A of the Act, and of ‘aggravation’ in section 4(1) of the Act. Section 7(7) of the Act excludes liability for a ‘disease’ when the employee has ‘made a wilful and false representation that he…did not suffer, or had not previously suffered from that disease’.
Issues
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?
Consideration
Exclusion 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.
Mr As-Sayeed arrived from Bangladesh as a student in 2000. After his arrival he obtained further qualifications: a Master of Management (2001) and a Master of Business Administration from ANU (2006). Subsequently he obtained a Certificate III in Government and a Project Management Certificate IV. It was contended at the hearing that these qualifications indicated his English must be competent. However, the Tribunal notes that his marks for those courses are not in evidence. What is apparent from the hearing is that Mr As-Sayeed’s level of English and understanding of English was at times deficient. As he said, in relation to the questions from counsel concerning this matter, he now understood what he should have circled, but he did not at the time.
The Tribunal does not consider he has, on any objective basis, engaged in fraud. Nor has he done so with a purpose, that purpose being to gain permanent employment in the ACT Public Service. If he had misrepresented his answers for that purpose it could have been expected, on an objective basis, that he would have circled ‘No’ to all the medical history questions. He did not do so. He circled ‘Yes’ to some questions and he apparently gave to the person conducting the interview information expanding on some of his ‘Yes’ answers.
Mr As-Sayeed’s language difficulties and these responses, coupled with his statement that he thought that as his back condition had recovered he had not needed to circle that condition, contradict the assumption that he was intending to mislead the assessor. The Tribunal has accepted that Mr As-Sayeed’s misunderstanding, as his evidence indicates, is the more likely explanation for his wrong answer. The Tribunal also found him to be an honest witness. For these reasons the Tribunal is not satisfied that Mr As-Sayeed wilfully and falsely misrepresented the position in relation to his back condition from which he had recovered in order that he would become a permanent member of the ACT Public Service.
Jurisdictional issue – was the claim a ‘nature and conditions’ claim?
Counsel for Comcare also raised what he described as a ‘scope of viewpoint and a procedural’ issue. Counsel for Mr As-Sayeed was arguing that the claim was a ‘nature and conditions’ claim. Counsel for Comcare, in response, indicated that in the claim form Mr As-Sayeed mentioned ‘a specific date, a specific time, a specific series of events’ but did not mention ‘the nature and conditions of employment’. His claim, therefore, should be confined to the matters he specified. In that regard, he said the case was comparable to a decision of the Full Court of the Federal Court in Szabo v Comcare.[11] The Court in that decision had decided that Mr Szabo was confined in his application to the specific claims referred to and could not expand the claim into a ‘nature and conditions’ of employment claim.
[11] Szabo v Comcare [2012] FCAFC 129.
The Tribunal rejects the applicability of that finding in Mr As-Sayeed’s case. In Szabo, the applicant had the benefit of legal advice prior to completion of his workers’ compensation claim. There is no indication and no evidence was led to the effect that Mr As-Sayeed had such advice. The form appears to have been completed in his handwriting. In addition, the form lends itself to specific replies of the kind referred to. So an applicant, particularly one with the kinds of language difficulties of Mr As-Sayeed, should not be disadvantaged by his understanding of the requirements of the form, particularly in circumstances when he did not appear to have legal advice prior to its completion. The Tribunal so finds.
Diagnosis
There is no dispute that on 29 November 2010 Mr As-Sayeed experienced a sudden incident of severe pain which required him to be transported by ambulance and hospitalised for that day. There is also CT and MRI evidence that Mr As-Sayeed had a degenerative lower back condition which showed disc bulging at the L3/4 and L4/5 levels and some impingement on the right L3 and L4 nerve roots which accounted for the numbness, and pins and needles he experienced in his right buttock, thigh and foot.
The medical experts said they agreed on the diagnosis of Mr As-Sayeed’s condition. Their descriptions varied. Dr Eaton referred to chronic lumbar spinal pain of undetermined origin. Dr Bourke diagnosed back pain associated with degenerative disease of the lumbar spine. Dr Watson’s view was he had an aggravation of his underlying lumbar spine spondylosis. The Tribunal is satisfied, based on their medical evidence, and other medical evidence including the radiographic imaging, clinical notes, and medical reports, that Mr As-Sayeed had a lumbar spinal pain condition associated with degenerative disease of the lumbar spine the cause of which was not clinically diagnosable.
Is the condition a frank ‘injury’ or an aggravation of a ‘disease’?
The Act defines an ‘injury’ as a ‘disease’, an ‘injury (other than a disease)’ or ‘an aggravation of a physical or mental injury (other than a disease)’.[12] In other words, for this purpose it can be a physical (or frank) injury, or a disease. It can also be ‘an aggravation of a physical or mental injury’. A ‘disease’ for the purposes of establishing liability for an ‘injury’ is ‘(a) an ailment suffered by an employee; or (b) an aggravation of such an ailment’.[13] An ‘ailment’ is defined as ‘any physical or mental ailment, disorder, defect or morbid condition’.[14] The contention was that Mr As-Sayeed’s lumbar condition was an ‘ailment’, being a ‘physical disorder, defect or morbid condition’ which was, accordingly, a ‘disease’.
[12] Act s 5A(1) – definition of ‘injury’.
[13] Act s 5B(1) – definition of ‘disease’.
[14] Act s 4(1) – definition of ‘ailment’.
The diagnosis of Mr As-Sayeed’s low back condition was that it was ‘associated with’ a degeneration of his spine. The medical evidence, including the MRI and the CTs indicate that his degenerative spinal condition was constitutional. In other words, the claim is not that employment caused Mr As-Sayeed’s back condition, but that the degeneration of his constitutional back condition was aggravated or accelerated, that is, made worse, and it did not simply become worse, due to his employment.[15] An increase in pain caused by employment-related activities arising from a constitutional condition may be aggravation even if there is no permanent effect on the underlying condition.[16]
[15] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; Casarotto v Australian Postal Commission [1989] FCA 116.
[16] Asioty v Canberra Abattoirs Pty Ltd (1989) 167 CLR 533; Commonwealth v Beattie (1981) 35 ALR 369; Mellor v Australian Postal Corporation (2009) 108 ALD 159.
The three medical experts who gave concurrent evidence agreed that the condition resulted from an aggravation or acceleration of an ‘ailment, disorder, defect or morbid condition’. There being no contrary medical opinions, and given the evidence from radiological studies, the Tribunal is satisfied that Mr As-Sayeed’s claimed condition can be categorised under the Act as an aggravation of a ‘disease’ since it was an ailment, being a physical disorder, of his lower spine.
Was the aggravation of his condition significantly contributed to by his employment?
The Act requires that for liability to arise in the case of a ‘disease’, the employee’s employment must have contributed to the aggravation of the condition ‘to a significant degree’.[17] The provision also states that in reaching a decision on whether employment so contributed, certain matters can be taken into account including:
(a)The duration of the employment;
(b)The nature of, and particular tasks involve in, the employment;
(c)Any predisposition of the employee to the ailment or aggravation;
(d)Any activities of the employee not related to the employment; and
(e)Any other matters affecting the employee’s health.[18]
Duration of employment
[17] Act s 5B(1).
[18] Act s 5B(2).
Mr As-Sayeed had been employed by ACT Health since 2004, initially as a data analyst. He applied for and became a permanent employee in 2005. In 2008 he was promoted to an information manager position. So he had been undertaking computer based work for ACT Health for 6 years at the date of injury. His claim is that despite the assistance he received in terms of workplace assessments and ergonomic chairs, the nature of his employment over that period and the pressures he was under in his data management role, particularly since he was made information manager in 2008, were the principal cause of the deterioration of his low back condition.
Mr As-Sayeed first complained of problems associated with his lower back in early 2005, in early 2006, and again, in late 2010. He has had several work station assessments as a consequence. Colleagues in Mr As-Sayeed’s workplace corroborated his concerns about his back in 2010 and his attribution of the problems to his chair. In other words, there has been consistent concern by Mr As-Sayeed about his back condition from ergonomic issues at work for over five years.
The nature of, and particular tasks involved in, the employment
Mr As-Sayeed’s work throughout his time with the agency has been as a data analyst or information manager. His duties required him to undertake data collection, collation and manipulation of the production of monthly management reports, quality checking of data, the upkeep and management of the systems involved in data collection and reporting, and process and output improvements to data, reports and data systems. The duties entailed intensive computer-based interface.
Following his promotion in 2008 Mr As-Sayeed said his computer-based work intensified and led to the recurrence of back pain. He claimed that the work entailed more responsibility since he had to respond to manager queries, and ensure quality and that this was more demanding. He said until 2009 he was doing the work for his division performed in other divisions by two people. Mr As-Syeed generally had his lunch at his desk, and the workload meant he often did not manage to take a break every 40 minutes. Although his employer denied that his workload was excessive, the Tribunal notes that a second officer was appointed in 2009 to do the work also being performed by Mr As-Syeed, and that a computer-based program to remind officers to take a break was not introduced until late in 2010.
The Tribunal notes that the nature of prolonged computer-based work does require special attention to posture and the taking of breaks. Mr As-Sayeed’s workplace did support his being provided with an ergonomic chair in 2005, following a workstation assessment by Rehab Co. The report of 14 December 2004 noted that Mr As-Sayeed’s ‘position as a Report Analyst…required him to carry out a large component of computer based work. This meant he was often sitting for prolonged periods. It was suspected that this could be leading to some of the pain and discomfort he was experiencing’. The workstation assessment report in 2005 did refer to computer based work as possibly contributing to his headaches and lower back pain and he was advised to take breaks and pay more attention to his posture when working. So the employer was alerted to the problem in late 2004 and responded with the ordering of an ergonomic chair in 2005. Again following the complaint in 2010, his employer assisted him to trial several chairs designed for his back.
A fellow worker also reported his poor posture to Mr Lisacek in 2010. Following Mr As-Sayeed’s complaint to Mr Lisacek, the supervisor noted in his report that the chair, provided in 2008 for an ankle problem, appeared to be the cause of Mr As-Syeed’s back problems. Mr Lisacek also organised for him to have another workstation assessment but this did not occur until after his return to work following his absence due to the 29 November 2010 incident. His workplace also introduced a computer program to remind officers to take breaks but again not till after November 2010. Since September 2011, when Mr As-Sayeed recommenced full-time work, he has been given a new chair with good lumbar support and Mr As-Sayeed said this has helped reduce the incidence and severity of back pain.
The agency had been alerted in 2004 by the Rehab Co report that Mr As-Sayeed’s prolonged sessions at his computer could be leading to some of the pain and discomfort of which he complained. However, in the five years between the complaints in 2005 and 2010, Mr As-Sayeed had not informed his employer about any back problems. The workstation assessment in 2008 was undertaken in relation to problems with the arch of Mr As-Sayeed’s foot, not his back, and the Calypso saddle chair purchased for his use at that time was also designed for his foot, not his back problems. So it was understandable that the agency took no action in relation to his back in the interim period. In 2005 and 2010, the employer did take appropriate action to assist Mr As-Sayeed following his complaints, and reminded him that he should also take responsibility for his posture and to take sufficient breaks during the day. These actions, and the evidence that the workplace introduced a computer-based program to remind employees to take breaks when working at the computer, indicate an acceptance by management that postural and other problems can arise from prolonged computer-based work.
Any predisposition of the employee to the ailment or aggravation
Mr As-Sayeed did suffer a whiplash injury to his neck in July 2004. However, the evidence was that he suffered no injury to his middle or lower back but did experience some upper back pain. Following that injury he undertook acupuncture and physiotherapy and appeared to have recovered. There is no medical evidence to indicate that his whiplash injury was related to his condition in 2010.
The CT and MRI reports, however, undertaken in late 2010 identified that Mr As-Sayeed had a degenerative spinal condition, which was responsible for the numbness and pins and needles in his right buttock, thigh and foot. The medical experts all accepted that he had a discogenic disease which was associated with his lower back problems.
Any activities of the employee not related to the employment
Despite his complaints of back problems in early 2005 and 2006, Mr As-Sayeed continued to play sport with his Bangladeshi community. In 2004 he was playing table tennis and badminton. Later he was also playing cricket on Sunday but not every week. This continued until the end of 2006 when his wife had a baby. He resumed sport, switching to soccer in 2008, again on Sundays a couple of times a month, and sometimes Wednesdays, but ceased playing in April 2010 due to his ankle injury.
These activities were engaged in, according to the Rehab Co, initially to assist with his rehabilitation after the 2004 car accident, but also according to Mr As-Sayeed, for social reasons. There is no evidence that these activities have contributed to his low back pain. The history also suggests that any back condition was of minimal concern during the intervening period. That is consistent with the evidence of Mr As-Sayeed which was that he experienced some discomfort at work between 2008 and 2010, but it was not of such significance as to cause him to take action until the month prior to 20 November 2010.
The evidence was that Mr As-Sayeed’s wife mostly does the gardening and cooking and when Mr As-Sayeed comes home he generally only watches television. On the weekend immediately preceding the events of Monday, 29 November 2010, Mr As-Sayeed had a social gathering with friends at his home on the Sunday. He said he had not done anything strenuous that day, and that he was mostly standing at the function. So there does not appear, on the evidence, to have been any other activity in the immediately preceding period to account for the pain following his cough on the morning of 29 November 2010.
Any other matters affecting the employee’s health
There was evidence at the hearing from Mr As-Sayeed and from other experts that Mr As-Sayeed had a significant level of fear about the nature and long-term effects of his back condition. As Dr Burke noted in his report Mr As-Sayeed had ‘quite marked and fear avoidant attitudes and beliefs’. Mr As-Sayeed said at the hearing that his principal concern when he visited Dr Pik was that he would be required to have surgery on his back. He also said of the incident on 29 November 2010:
I think I was so scared when that did happen and then I couldn’t stand up. I thought something really happen. And – which is – I don’t know what kind of – but I – I get really frightened about something’. [Then when I had the CT scan next day, and] Dr Watson said ‘“this is some kind of disc bulging”. And I thought, ‘What is that means?’ and they say it is something not good. Then I start talking other, you know, my friends who has got this kind of issue. And – and try – I try to find out…I ask my sister that – Can you just find out in the internet what is that all about…And some of them says that you need probably have a surgery. Then I thought ‘Really?’ like, I get scared…then when I went to Dr Pik, the person I asked that: ‘Do I need to have a surgery?’ Because that is the most important question that I thought I should ensure that I ask that.
There is also a note in the Ginninderra Medical & Dental Centre clinical notes for 30 November 2010 following discussion of his referral for a CT scan on 30 November, to Mr As-Sayeed being ‘worried’ and that ‘patient advised to come back/return to obtain pathology/investigation result/for follow up. Result will not be given over the phone’ and to ‘long explanation’.
Dr Eaton noted that ‘pain events…can be very anxiety-provoking, and it’s quite possible that his pain was made much worse by his worry about what was going on in his back, and he would be very fearful and scared, and that’s why he went to the hospital’.
In summary, some of these psychosocial factors, such as Mr As-Sayeed’s anxiety concerning his condition, may have contributed to the experiencing and to prolongation of his ailment. Dr Eaton supported that view. At the same time, concern about possible back surgery, given the possible harmful effects of back surgery, is understandable. In any event, Mr As-Sayeed’s fearful response does not matter, if the course of employment has made a significant contribution. As Dr Eaton said in his report of 19 April 2011:
Multiple factors can contribute to the development of low back pain and generative disc disease including genetic and constitutional factors, ergonomic and postural factors, stress, prolonged sitting particularly in chairs of poor ergonomic design.
Against this are the studies from the articles provided by Comcare that at present there is no definitive study which establishes that prolonged sitting is ‘independently causative’ of low back pain, but that there is a significant causative link between familial predisposition and low back pain.
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.
There has not been any other explanation for the cause of that spinal pain condition. Mr As-Sayeed had ceased playing sport in 2010 when he had his ankle injury. There was no evidence that his activities on the weekend prior to 29 November 2010 might have triggered the severe pain in his spine. There was also a history of back problems due to the conditions in the workplace beginning in 2004; the build up of more severe pain which he attributed to the Calypso chair he was given in 2008 designed to alleviate his ankle problems and not for his back; and his complaints of back pain to his supervisor and his making an appointment with Dr Lee and with a physiotherapist in the month preceding the events of November 2010. There had also been indicators from 2004, 2006 and again in 2010 that his computer-based work, height and poor posture could be affecting his back condition. On balance the Tribunal finds, accordingly that Mr As-Sayeed’s low back pain was significantly contributed to by his employment and was accordingly a ‘disease’.
Finally, the Tribunal is satisfied that Mr As-Syeed’s ‘disease’ arose out of his employment,[19] since there was a causal connection to the nature, conditions and incidents of his employment and the evidence, particularly the predominant medical evidence, satisfies the Tribunal that the connection was not fanciful or tenuous.[20]
[19] Act s 5A(1)(c).
[20] Telstra Corporation Ltd v Bowden (2012) 292 ALR 61 at [50].
The parties have 28 days in which to file submissions in respect to orders for costs. If no submissions are filed, Comcare will be ordered to pay Mr As-Sayeed’s reasonable costs in these proceedings as agreed or taxed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member, Dr P Wilkins, Member ........................................................................
Associate
Dated 10 April 2013
Dates of hearing 7 and 8 February 2013 Counsel for the Applicant David Lander Advocate for the Applicant Imogen Martin Solicitors for the Applicant Lander and Co Counsel for the Respondent Peter Woulfe Advocate for the Respondent Susan Dalliston Solicitors for the Respondent Sparke Helmore
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