WAFE IVANCIC and COMCARE
[2009] AATA 672
•7 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 672
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/185
GENERAL ADMINISTRATIVE DIVISION ) Re WAFE IVANCIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D. Miller AO, MemberDate7 September 2009
PlaceCanberra
Decision The decision under review, being the decision of Comcare made 30 June 2006, is affirmed.
.................[sgd]........................
J.W. Constance, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – injury – neck strain – possible facet joint dysfunction – applicant did not suffer an injury as defined by the Act – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) – Sections 4, 6, 14
REASONS FOR DECISION
7 September 2009 J.W. Constance, Senior Member
Dr M.D. Miller AO, MemberINTRODUCTION
1. Ms Ivancic is seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of a strain of the left side of her neck which she says she suffered at work on 21 December 2005. Comcare has rejected this claim on the basis that it was not satisfied that she suffered the injury claimed.
2. For the reasons which follow the decision under review will be affirmed.
EVIDENCE AND FINDINGS OF FACT
3. Unless otherwise stated the following findings of fact are based on the evidence of Ms Ivancic. We are satisfied of the facts found on the balance of probabilities.
4. Ms Ivancic has been employed by the Care and Protection Section of the ACT Department of Housing and Community Services since 2001. Her duties have included answering the telephone and re-directing calls, making file notes, keyboard work, manual filing (including carrying large files) and assisting case workers and other staff. She undertook the whole range of these duties on a daily basis, although Ms Ivancic was uncertain as to the time she devoted to particular duties. Ms Thompson, Ms Ivancic’s supervisor at the time, gave evidence that on average Ms Ivancic would have taken between 20 and 30 calls per day on a normal day.[1] We accept this evidence.
[1] Transcript 26.6.09 p. 58.
5. In October 2005 the Care and Protection Section moved to a new office. Ms Ivancic continued with the same duties. However, the workstation at which Ms Ivancic sat in the new office was positioned such that she sat with her back to a whiteboard on which case workers recorded their whereabouts. From time to time Ms Ivancic would turn around to read the whiteboard. She did this by turning to look over her left shoulder. She had a swivel chair which reduced, but did not eliminate, her twisting her body (including her neck) in this process. At times she needed to stand up to view the lower part of the whiteboard which was partly obscured by an office partition.
6. There was considerable evidence given as to the position of the whiteboard and that its positioning had been discussed at a number of staff meetings. We have taken into account the evidence of Ms Ivancic and Ms Peel and the statements of Ms Hewlett[2]and Ms Clarke[3] in determining the facts we have found.
[2] Ex. A24.
[3] Ex. A25.
7. On 20 December 2005, whilst at work, Ms Ivancic experienced numbness and tingling in the back of her neck, mainly on the left side and in her left shoulder. She had not experienced these symptoms previously. Ms Ivancic completed her normal working hours that day. The numbness and tingling continued after she finished work and returned home.
8. On 21 December 2005 Ms Ivancic was still experiencing the numbness and tingling. In an effort to relieve her symptoms she took some pain relief medication which she had been prescribed for a back injury she had suffered several years earlier. Ms Ivancic attended work that day. She continued to experience the symptoms in her neck and shoulder.
9. When she awoke on the morning of 22 December 2005 Ms Ivancic’s neck was very painful and the movement of her neck and shoulder was restricted. She described the pain as “excruciating”.[4] She did not attend work that day.
[4] Transcript 26.6.09 p. 11.
10. On 22 December 2005 Ms Ivancic consulted her general practitioner, Dr Lo. Dr Lo gave evidence that he recorded Ms Ivancic as suffering neck pain on that occasion and that he administered a pethidine injection. We accept this evidence.
11. On the same day Dr Lo certified that Ms Ivancic was unfit for work until 30 December 2005.[5] He described her as suffering “L NECK STRAIN ??FACET JT DYSFUNCTION”. Subsequently he issued further certificates and Ms Ivancic did not return to work until February 2006.
[5] Ex. A9.
12. Prior to 20 December 2005 Ms Ivancic suffered migraine headaches. These headaches have become more frequent and lasted longer than before December 2005. They now occur approximately three times per week. She suffers intermittent pain in the left side of her neck and over the top and outside of her left shoulder; she takes medication to relieve this pain.
13. On 20 January 2006 Ms Ivancic lodged a Claim for Workers’ Compensation.[6] In that claim she described her injury as it was described by Dr Lo. She gave the date and time of her injury or her first becoming aware of the injury as 21 December 2005 at 3pm.
[6] Ex. A11.
14. There is a discrepancy between the evidence given by Ms Ivancic and the information she provided in the claim form, as to when she first became aware of the claimed injury. However, taking into account the evidence of Ms Ivancic that she felt the numbness and tingling, attended work the next day and then consulted Dr Lo the day after that, we are satisfied that Ms Ivancic first experienced the symptoms on 20 December 2005. There is evidence that Ms Ivancic sent an email to her supervisor on 20 December 2005 in which she requested permission to leave work as she was unwell.[7] In the email she reported back pain and dizziness but did not mention any difficulty with her neck. Ms Ivancic said that she did not wish to raise this issue with her supervisor. It is difficult to understand why Ms Ivancic would not have raised this issue in view of the other matters she reported. It may be that Ms Ivancic began to experience the symptoms in her neck after she sent the email. Nevertheless, we are satisfied of the facts found on the basis of the other evidence to which we have referred.
[7] Ex. A20.
LEGISLATION
15. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
16. The definition of “injury” applicable in this case was set out in subsection 4(1) of the Act prior to its amendment by Act No. 54 of 2007. The relevant part of the definition reads:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; …
The definition of “disease” in subsection 4(1) is as follows:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
17. Subsection 6(1) of the Act relevantly provides:
Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; …
ISSUE FOR DETERMINATION
18. The issue for determination is whether Ms Ivancic suffered an injury, within the meaning of the Act, on or about 21 December 2005.
MEDICAL OPINION
Dr Lo, General Practitioner
19. When Dr Lo examined Ms Ivancic on 22 December 2005 he made a diagnosis of left neck strain with the possibility of facet joint dysfunction. In his report of 16 June 2007 he confirmed this diagnosis and reported that it was made against a background of chronic headache/back pain and anxiety and depression.[8]
[8] Ex. A2.
20. Dr Lo gave evidence. His clinical notes made after he examined Ms Ivancic on 22 December 2005 record that
On examination very tender left posterior neck. Range of movement decreased all directions, especially left lateral flexion and rotation… Sore neck at work, has kept looking at noticeboard.[9]
[9] Transcript 29.6.09 p. 73.
21. In the medical certificate issued on 22 December 2005 Dr Lo answered “yes” to the question “do you consider the workers [sic] injury is consistent with their [sic] employment being or having been a substantial contributing factor to the injury?”[10]
[10] Ex. A9.
Dr McGill, Consultant Rheumatologist
22. On 3 August 2007 Dr McGill examined Ms Ivancic at the request of Comcare’s solicitors. In his report of the same date Dr McGill expressed the opinion that at that time Ms Ivancic had a “chronic pain disorder not related to physical disease… The action of rotating her body and neck to examine a whiteboard could have caused discomfort at the time of doing so and possibly for a few days thereafter. I do not think that activity nor any of her other work activities have had any material effect on her symptoms, treatment seeking and treatment requirements nor her function.”[11]
[11] Ex. R2.
23. When he gave evidence Dr McGill said that he did not consider that Ms Ivancic was likely to have suffered an injury from the turning movement whilst seated on a swivel chair because the strain of turning would be reduced by the action of the chair. He said also that the action of standing up and turning would not be likely to cause symptoms lasting a number of days in the absence of an acute event.[12] In his opinion, if tingling was experienced as a result of cervical nerve root irritation it would be experienced in the hands as the dermatome relevant to the mid or low cervical spine, rather than in the neck.[13]
[12] Transcript 29.6.09 p. 85.
[13] Transcript 29.6.09 p. 86.
24. Dr McGill said that when he reported that rotating her body “could have” caused discomfort he was referring to something that would be uncommon, but could have happened.[14]
[14] Transcript 29.6.09 p. 89.
Dr Andrews, Consultant Neurologist
25. Ms Ivancic was examined by Dr Andrews in June 2007. On 25 June 2007 he reported that:
It would appear to me that her work is not the cause of the problems but is an aggravator of it when she is doing it.[15]
[15] Ex. A3.
In giving evidence Dr Andrews said that in his report he was referring to potential aggravation of a facet joint condition. He agreed that further investigation was required before a firm diagnosis of a facet joint condition could be made.
Dr Macauley, Consultant Rheumatologist
26. Dr Macauley assessed Ms Ivancic in March 2009 and provided a report dated 16 March 2009.[16] He also gave evidence.
[16] Ex. R3.
27. In his report Dr Macauley expressed the opinion that Ms Ivancic suffers from a chronic pain syndrome which is not work related. In his view it “would have had to have been a significant injury to the neck to have caused pain that would not be suppressed by the high dose analgesia that she was taking prior to the alleged date of injury.”[17]
[17] Ex. R3.
28. Dr Macauley confirmed the views expressed in his report when he gave evidence. He said that the normal rotation of the neck before the body rotates is usually about 45 degrees and this movement should not cause injury.[18] Ms Ivancic did not inform him that she used a telephone by holding it between her left shoulder and her head.
[18] Transcript 29.6.09 p. 117.
Dr Skeels, Medical Director Palliative Care
29. Ms Ivancic was referred to Dr Skeels by Dr Lo in 2006 for management of the prescription drugs she was taking at the time. His report of 6 April 2006[19] refers to Ms Ivancic's suffering pain in her neck but does he did not give a diagnosis of her condition.
[19] Ex. A6.
Dr Le Leu, Occupational Physician
30. Dr Le Leu examined Ms Ivancic in June 2009 at the request of her solicitors. On 15 June 2009 he reported:
… in view of the complex nature of her history, her vagueness in relation to the very important period of genesis of her pain and the length of time she had been on such potent analgesics, and the uncertainty about the precise nature of the work she was doing at the time of onset of the pain, I do not think I can form an opinion on the relationship between the onset of her neck pain and her employment with ACT Department of Housing and Community Services.[20]
[20] Ex. A7 p. 14.
31. Dr Le Leu reported further:
… on the basis of conflicting information in the records and vague information from Ms Ivancic, the possibility of a pre-existing condition affecting the cervical spine cannot be excluded. Therefore the aggravation of such pre-existing condition can also not be excluded but the cause of such aggravation, if it occurred, is also problematic.[21]
[21] Ex. A7 p. 16.
REASONING
Did Ms Ivancic suffer an injury within the meaning of the Act on or about 21 December 2005?
32. The definition of “injury” in the Act includes both an injury simpliciter and a disease. The definition of a disease includes an aggravation of a pre-existing disease, subject to other requirements of the Act being met. As a result of the definition of injury and the provisions of s 6(1)(b) of the Act, an injury simpliciter is compensable if it occurred whilst the employee was at his or her place of work for the purposes of that employment.
33. Counsel for Ms Ivancic argued that she sustained a neck strain on or about 21 December 2005 as a result of the various work duties she described. These duties included turning to look at the whiteboard, telephone answering, typing and filing.
34. We have accepted the evidence of Ms Ivancic that over the period 20-22 December 2005 she suffered numbness and tingling in her neck extending into her left shoulder followed by pain and stiffness in her neck. Her evidence that she suffered these symptoms at some time during this period was not challenged.
35. Dr Lo diagnosed the injury which gave rise to these symptoms as being left neck strain with possible facet joint dysfunction. In his view Ms Ivancic’s employment contributed to this condition. However, when Dr Lo was cross-examined it became apparent that he based his opinion on the understanding that Ms Ivancic needed “to look at the noticeboard behind her continuously”, but that he did not know the extent to which she had to turn her neck or other part of her body to undertake this movement.[22] On the basis of the facts found we are satisfied that Dr Lo had only a limited understanding of Ms Ivancic’s working conditions at the time of the onset of her condition. We cannot be satisfied on the basis of his evidence that on the balance of probabilities Ms Ivancic suffered a neck strain (with or without facet joint dysfunction) on or about 21 December 2005.
[22] Transcript 29.6.09 p. 73.
36. In reaching this conclusion we have taken into account the evidence of Dr Le Leu, which was relied upon also by Ms Ivancic. Dr Le Leu diagnosed Ms Ivancic as suffering a chronic pain syndrome which may be an extension of a pain syndrome which existed prior to the claimed injury. He was unable to give an opinion as to the relationship, if any, between the onset of the neck pain and Ms Ivancic’s employment.
37. We have considered also the opinion of Dr Andrews that Ms Ivancic may have suffered an aggravation of a facet joint condition. However, in his view further investigation was required before such a diagnosis could be made. On this evidence we are not satisfied of a diagnosis of facet joint dysfunction or of an aggravation of such a condition.
38. Both Dr McGill and Dr Macauley expressed the opinion that at the time of the claimed injury Ms Ivancic suffered a chronic pain disorder which was not work related. They were of the view also that the activities undertaken by Ms Ivancic were unlikely to have caused her to suffer an injury to her neck. On the basis of the opinions of Dr McGill and Dr Macauley we are satisfied on the balance of probabilities that the numbness, tingling and pain suffered by Ms Ivancic were caused by a pre-existing chronic pain condition. We prefer their opinions to that of Dr Lo by reason of their specialist qualifications and their explanations as to why they consider that the activities described by Ms Ivancic were unlikely to have caused neck strain.
39. Although it was not argued on her behalf, we have given consideration as to whether Ms Ivancic suffered an aggravation of a pre-existing condition of a chronic pain syndrome i.e. an aggravation of a disease. An aggravation of an ailment is included in the definition of disease. Dr Le Leu raised the possibility of an aggravation of this condition, but in his view “the cause of such aggravation, if it occurred, is also problematic.”[23] We are not satisfied on the balance of probabilities that Ms Ivancic suffered an aggravation of any pre-existing condition at or about the time claimed.
[23] Ex. A7 p. 16.
40. We considered also whether the onset of the numbness and tingling was an injury simpliciter which occurred whilst Ms Ivancic was at her place of work. However, this is not a situation in which the diagnosis of the condition giving rise to these symptoms cannot be determined. As already stated, we are satisfied that the cause of the symptoms Ms Ivancic suffered whilst she was at work was her pre-existing chronic pain condition.
41. For the reasons set out we are not satisfied on the balance of probabilities that Ms Ivancic suffered an injury within the meaning of the Act on or about 21 December 2005.
DECISION
42. The decision under review, being the decision of Comcare made 30 June 2006, is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: ..................[sgd]..............................................................
T. Aviram, AssociateDates of Hearing 26, 29 & 30 June 2009
Date of Decision 7 September 2009
Counsel for the Applicant Mr D. Shillington
Solicitor for the Applicant Pamela Coward Higgins Solicitors
Counsel for the Respondent Mr P. Walker
Solicitor for the Respondent Australian Government Solicitor
0
0
0