El-Terek and Comcare [2009] AATA 72 (6 February 2009)

Last Updated: 6 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 72

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/2625

GENERAL ADMINISTRATIVE DIVISION		)
	Re		FATIMA EL-TEREK

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 6 February 2009

Place Melbourne

Decision

The decision under review is affirmed.

(Sgd) John Handley
Senior Member

COMPENSATION – lumbar disc injuries alleged by prolonged periods of sitting and poor ergonomic furniture – complaints of back pain prior to commencing employment withheld from pre-employment medical – frequent absences from employment by reason of other illnesses – work duties allowed being seated and standing, some walking and routine breaks – finding of two level disc prolapse preceded commencing employment and degenerative in nature – not aggravated by the employment – Statement of Principles issued by the Repatriation Medical Authority irrelevant to finding of connection between employment and injury – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth) s 196A
Military Rehabilitation and Compensation Act 2004 (Cth)

Deledio v Repatriation Commission (1997) 47 ALD 261

REASONS FOR DECISION

6 February 2009

Mr John Handley, Senior Member

1. Mrs El-Terek is a 27 year old customer service operator employed by Centrelink who claimed compensation for back injury which she alleged arose out of her employment which commenced in 2004. A CT scan of 13 June 2006 demonstrated a moderate sized and significant posterior central focal disc protrusion at L4/5 and a partial transitional vertebrae and significant partly calcified posterior central focal disc protrusion at L5/S1 (the back injury).
2. Comcare denied the claim in a determination of 4 November 2006 which it affirmed by reviewable decision on 30 April 2007.
3. Mr Horner of counsel who appeared on behalf of the applicant submitted at the outset that the employment made a material contribution to the back injury by prolonged periods of sitting in the workplace and by prolonged sitting in an inappropriate ergonomic setting.
4. In evidence the applicant said that she did not have back problems prior to commencing employment with Centrelink but she did suffer from back pain which was associated with abdominal pain and it was a vague lower back pain. She said that she did not previously have any pain referred from her back to her legs. The applicant had been treated for gynaecological complications but the source of her back pain had not ever been investigated.
5. In February 2004 the applicant commenced employment at a call centre in Moreland Road. She was rostered to work 38.5 hours per week essentially in a seated position receiving incoming telephone calls. Back pain was first experienced in May 2004 which she then associated with her workplace. The applicant's team leader, Mr Barillaro, adjusted her chair and the height of her desk and provided a lumbar support for her back. This provided temporary improvement in the level of back pain for a few weeks but the pain returned, her work station was investigated and an occupational assessment was conducted in June or July 2004. The applicant was advised that she needed a new chair. Walking and physiotherapy was recommended. A trial of working in a standing position for a limited period daily was attempted and following provision of the new chair the applicant's back pain reduced but later returned and she attended a doctor at the Merlynston Medical Clinic.
6. In early 2005 the applicant described her back pain as quite significant and she consulted Dr Cheung at the Glenroy Road Medical Clinic. Panadeine Forte was prescribed together with analgesic creams. The applicant remained employed in a position mostly involving a seated position but later she undertook work of a manual nature for about two months which did relieve some of the pain.
7. In September 2005 the applicant successfully applied for a transfer to the Broadmeadows office of Centrelink where she was then engaged as a customer service officer where she interviewed clients at her desk which required her to work in a seated position. Despite her workstation not being assessed at the commencement of employment, she said that the level of back pain was less than previously because she was not, initially, having to work in a seated position for periods of time equivalent to her former job at Moreland. Later, she said that the Broadmeadows office became short staffed, rostered breaks were not being taken during the day and a greater number of interviews were conducted than would ordinarily be expected which resulted in severe back pain which also referred to her legs. Dr Cheung continued to treat the applicant by prescribing painkilling medication. Complaints of back pain were notified to the applicant's team leader Ms Heldt. An occupational health and safety officer and an occupational therapist were consulted who arranged for the applicant to be provided with a new chair and a footstool. The height of her desk and computer was adjusted. Despite these changes, the applicant said she continued to suffer back pain.
8. The applicant was absent from the workplace between 16 January and 14 April 2006 because of complications associated with a pregnancy. She said her back pain then was very very minimal and she did not take painkilling medication. Upon return to work the back pain re-emerged, painkilling medication was consumed and she was referred for a CT scan in June 2006 and eventually to Mr Han, a consultant neurosurgeon.
9. Despite the alterations to her workstation by the occupational therapist, the applicant said there was some improvement in her back pain but it remained quite significant. Presently she said that her back pain is very severe. She did undertake physiotherapy for approximately six months in 2006 but it was of little assistance. Panadeine Forte continues to be consumed at between two and eight tablets per day and upon the advice of Mr Han the applicant lost approximately 15kgs in weight. Presently the applicant has an appointment in February 2009 with a neurosurgeon at the Royal Melbourne Hospital because of advice given to her by Mr Han that she may benefit by surgery. The applicant presently consults with Dr Bahnasawi and Dr Cheung who each provide prescriptions for Panadeine Forte.
10. In cross-examination the applicant was taken to a pre-employment medical questionnaire completed by her on 28 January 2004. This document asked a number of questions with respect to any medical history prefaced by the question Do you, or have you ever had . . . . and thereafter 29 separately identified injuries, illnesses or medical conditions are described against which the applicant had answered No.
11. The focus of this part of the examination concerned the applicant's answer to the injuries, illnesses or conditions of back or neck or pain or injury, nervous or mental condition, anxiety or stress reaction or depression, migraine or frequent headaches, and abdominal pain or bowel disorder. The applicant said that she regarded her answers as being truthful because she did not regard the questions as referrable to medical conditions but rather they were simply occurrences. This was despite extensive medical documentation lodged by the respondent and made available to the applicant from her treating medical practitioners that prior to the completion of this form – that is prior to the commencement of employment – she had complained of back pain. The applicant later admitted that her answer to the questions concerning prior pain to be incorrect. She had also been treated for a nervous or mental condition or anxiety or stress reaction or depression as a result of being a victim of crime for which compensation was paid by way of the cost of counselling. Attendances on doctors had also been undertaken for prescription of medication for migraine headache and frequent attendances with respect to a complaint of abdominal pain or bowel disorder. Indeed, later in cross-examination, after there had been extensive references made in the medical histories to complaints to doctors of migraine headache – for which strong painkilling medication had been prescribed – the applicant also admitted that her answer with respect to the question concerning migraine headache was incorrect.
12. The applicant was also taken to a document at page 614, completed by her, as part of the pre-employment procedure. The applicant was asked to record the details of medical conditions – against which she had written N A and also asked to record the name, address and telephone number of her doctor. The applicant said that her answer with respect to details of any medical conditions was truthful because she wasn't classified ever as having a medical condition by a doctor. She also said that she understood that the address given for her doctor was correct (despite having attended on many occasions). The address was not correct. The telephone number recorded by the applicant – 83445777 – was suggested as being the telephone number for the Department of Anatomy at Melbourne University. The suggestion put to the applicant was that by indicating that she did not suffer from any medical conditions and recording an incorrect address and incorrect telephone number for her doctor that she was attempting to conceal or obstruct any enquiry with respect to her medical history. (In fairness to the applicant, the doctor recorded – Dr Bahnasawi – was then practising at the Dianella Community Medical Clinic and the telephone number recorded on its letterhead is 83455777).
13. The evidence at the hearing – both from the applicant and medical witnesses and evident from the clinical files indicate that the applicant has had persisting gynaecological abnormalities and discomfort since 2003. These matters are of course of an intensely personal nature and I do not intend to record in this decision the nature of that condition nor the symptoms or manifestations in the detail heard and read during the hearing. It was the applicant's case that her back pain prior to commencing employment was associated with the gynaecological abnormality. However, subsequent to February 2004, the back pain was asserted as attributable to the employment and management of the gynaecological conditions and pregnancies.
14. In August 2003 the applicant attended the Merlynston Medical Clinic on two occasions with a complaint of lower back and right sided back pain, but there is no reference to gynaecological complaint in the clinical notes. The first recorded attendance at the Dianella Clinic for a gynaecological complaint was in September 2003. The applicant attended the Glenroy Road Medical Clinic in December 2003 with a history of three day back pain but whilst the applicant said that it was gynaecological in origin there was however no reference in the medical history to the presentation then being gynaecological in nature.
15. It was learnt by the evidence and the extensive clinical data lodged pre hearing that the applicant had been consulting a number of doctors at different clinics. She attended the Merlyston Clinic, the Glenroy Clinic and three in Broadmeadows – Dianella, Hillcrest and Health Target.
16. The applicant commenced employment on 2 February 2004 with Centrelink. It was her evidence that lower back pain progressively worsened during each working week but was relieved by rest on weekends. However records produced by the respondent from the employer indicated that in the 48 weeks of 2004 (after 2 February 2004) the applicant worked a five day week for 17 weeks only. It was also noted that the applicant was frequently absent from work on a Monday. It was the applicant's case that she was absent from work throughout 2004 because of back pain, but the clinical notes record a complaint of back pain on three occasions only, despite many attendances for other complaints, mainly gynaecological. The clinical records indicate that there was one attendance only at the Dianella Clinic on 7 February 2004 where the entry recorded some back pain now settled where the majority of the clinical notes indicate attendance for gynaecological manifestations. There were two attendances at the Merlynston Clinic on 13 September 2004 and 5 November 2004. The first attendance was with respect to L sided back pain, radiating to both legs and LBP on the second occasion (the abbreviation is assumed to be lower back pain). Nurofen and Brufen were then prescribed although it is also noted that the applicant presented on the latter occasion with a complaint of a sore L shoulder.
17. It was put to the applicant (which she denied) that her absences from work – as she alleged – were not related to her back injury but rather were referrable to treatment for other – and most notably – her gynaecological condition. The applicant also denied employment elsewhere and denied activity on weekends being responsible for the frequency of absence from work on Mondays. The applicant remained adamant that she did continue to suffer from back pain throughout 2004 but was self medicating by taking painkillers over the counter. When it was specifically put to her that the clinical notes did not support her claim for ongoing back and left leg pain, the applicant said that she was unsure.
18. In 2005 the applicant said that she continued to suffer from back pain by reason of her employment. However, the pattern of absence from the workplace that existed in 2004 continued. In 2005 she attended the Merlynston Clinic on 19 January with a complaint of back pain and on 2 May 2005 (a Monday) a doctor from the Glenroy Clinic attended her home and obtained a history of back pain over the preceding two days. There were many other attendances at doctors throughout 2005 but none were recorded as the applicant presenting with back or leg pain. At May 2005, the applicant had worked a five day week on four occasions only. The applicant acknowledged that for three out of every four weeks until June of 2005 she had been haemorrhaging on three out of every four weeks. She also acknowledged that her absences from the workplace had mainly been because of the bleeding problem and the only absence from the workplace because of back pain was in September. There are no clinical records indicating the applicant attended any of her doctors in or about September 2005 with a complaint of back or leg pain nor anything which would indicate certification by doctors for incapacity associated with those conditions.
19. In June 2005 the applicant was referred by the employer to Dr Trifiletti. The applicant did not then make any complaint of back of leg pain and refused permission for Dr Trifiletti to obtain access to her clinical histories. The applicant said at the time of consultation she did not disclose the presence of back pain because it wasn't diagnosed, that's why I wasn't – I didn't make it aware. She said Dr Trifiletti was not examining in order to provide a report expressing an opinion concerning fitness for future employment, but rather she was reporting on the legitimacy of why I was taking leave off work and if they could help me in any way at work.
20. On 26 September 2005 the applicant commenced work at the Broadmeadows office of Centrelink. Previously she had worked at the Moreland Call Centre where, although having given evidence in chief that she was working in a seated position all day, she acknowledged that she had a one hour break at lunch time and two 15 minute tea breaks during the day. During each of those three breaks she would leave the workplace and walk along Sydney Road to obtain a meal or to attend the local café to obtain coffee. She agreed in those circumstances that she was not seated throughout the day and was given the opportunity at least on those three occasions to exercise.
21. The applicant acknowledged that she had read the statements from her team leaders from the Broadmeadows office where it was recorded that the applicant worked a variety of duties where she could sit or stand and would frequently have to walk. The applicant said that that's the theory but when we're short staffed which was almost every day that never used to occur. The applicant said that she was assessed by an occupational health and safety delegate in the workplace and in December 2005 her desk was modified and she was provided with a borrowed chair. At about that time the applicant said (refer also paragraph 27 of her statement) that her lower back and left leg pain had eased but then it came back. In December 2005 the applicant was four months pregnant.
22. In 2006 the applicant suffered a still birth and was away from work on leave until 14 April. On 1 May 2006 she consulted Dr Cheung at Glenroy Clinic who took a history of pain in her left shoulder over the previous month without having undertaken physical work. The applicant said that she had then complained to Dr Cheung of significant back pain and had also reported back pain to her supervisor, Daphne Heldt.
23. On 31 May 2006 the applicant attended Dr Hussein at the Dianella Clinic with a complaint of lower back pain with referred right leg pain. On 2 June there was no complaint to Dr Hussein of back pain but she was referred for x-ray. On 9 June, Dr Hussein conducted a neurological examination and discussed the results of the x-rays. There was no recorded complaint then of leg pain. Dr Hussein referred the applicant to Mr Han, a neurosurgeon who consulted with the applicant on 28 June. He took a history of low back pain increasing in April 2004 whilst working at Centrelink. He also reported a recent recurrence of low back pain referred to both legs. At a further review on 7 July he reported continuing back pain worse than her leg pain. (Refer T6 and T8). The applicant agreed that she gave a history to Dr McIntosh who examined at the request of Centrelink on 17 July that she had become crippled by the end of May 2006 because of leg and back pain.
24. The applicant was referred for physiotherapy in August 2006 to the Glenroy Physiotherapy Centre. The clinical notes record a history of lumbo-sacral pain from May 2004 with ongoing symptoms from September 2005. It would appear that the applicant had six consultations at the Glenroy Physiotherapy Centre in August 2006. Complaints of work related pain were not given and the physiotherapist recorded that the applicant was of the opinion that she probably had back pain because she had been menstruating. The applicant agreed with that history and agreed that at August 2006 it was her opinion that her back pain was attributable to menstrual issues.
25. The applicant consulted with Dr Hussein on a number of occasions in August and September where a history on 1 September was of the pain having settled and on 4 September the applicant was due to collect a certificate to return to work. In November the applicant agreed that Dr Hussein was concerned that she may have been depressed and referred her to a psychiatrist. The applicant agreed that she did not attend that consultation. The applicant decided at the end of 2006 to have all of her treatment conducted by Dr Bahnasawi and ceased attending the Dianella Clinic. She said in evidence that it was easier to obtain an appointment with Dr Bahnasawi than with Dr Hussein.
26. In fact Dr Bahnasawi first consulted the applicant at the Health Target Clinic in Broadmeadows on 13 September. The history then obtained was of back pain due to heavy lifting at work. He consulted with the applicant on 4, 10, 17, 25, 28 and 31 October. He prescribed Panadeine Forte and other painkilling medication. On 17 October he recorded that the applicant's back pain was getting worse. In November he consulted with the applicant on 1, 7, 12, 14, 16, 17, 21 and 28 with histories of continuing back pain getting worse on 14 November. Prescriptions were issued for Panadeine Forte, Ducene and Tramadol. Dr Bahnasawi or his partner Dr Hamdan consulted with the applicant on 1, 5, 7, 12, 18, 23 and 29 December where prescriptions were again issued for Panadeine Forte. Tramadol was ceased at 29 December 2006.
27. The applicant said that she had complained to Dr Bahnasawi of referred buttock or leg pain but could not explain why that history was not recorded in any of the consultations.
28. In April 2007 the applicant was found to be seven weeks pregnant and on 28 May Dr Bahnasawi diagnosed back pain due to the pregnancy. The applicant said that her pain was then vague and she was not taking painkilling medication. Between May and August there was no complaint of back pain in the clinical notes of the Royal Women's Hospital and for a considerable period between July and October 2007 the applicant was resting in bed.
29. The applicant was then taken to a questionnaire she completed at the Barbara Walker Centre in September 2006 where she recorded that she first suffered back pain in April 2004 but the present episode of pain started in September 2005. The applicant recorded the reason for the increased pain in September 2005 was because she was then pregnant. That history was confirmed in a report by Dr Muir to Dr Hussein on 23 April 2007 (p797). He examined the applicant on 23 April 2007 and recorded a history of the applicant's back pain having become worse over the preceding six months during which time she had attempted a graduated return to work (GRTW) at five hours per day over four days per week. The applicant denied that she was attributing back pain to her pregnancy in September 2005 but did agree that that history which was also recorded by Dr Muir in his report to Dr Hussein was consistent with the information that she had given him (at consultation) in April 2007.
30. The applicant said that she returned to work on a graduated basis in November 2006 but as her work hours increased she said she was struggling. She agreed that from 31 January 2007 Dr Bahnasawi had provided her with certificates for total incapacity. She also agreed that he had provided prescriptions for Panadeine Forte medication which she consumed at between two and eight tablets per day for pain relief.
31. In re-examination Mrs El-Terek agreed that her absences from the workplace before June 2005 were related to her gynaecological condition and denied that she had taken time off work because of back pain prior to June 2005 (trans. p85).
32. The applicant said that she did not ever experience or suffer an incident in the workplace that would be responsible for her back condition and denied that there was ever any incident away from the workplace that would be responsible for her back injury. She said that she had been asking her superiors for a replacement chair and had given that information to Dr Cheung in a consultation on 1 May 2006. She said at or about that time the employer had provided her with a chair usually used by another employee but after a period of absence from the workplace she was given a chair, on her return, which had a lower back and because of prolonged sitting in that chair, she suffered recurrences of back pain.

DR BAHNASAWI

33. Dr Bahnasawi has treated the applicant at the Health Target Clinic since September 2006 but had previously treated her at the Dianella Medical Clinic in 2004. He provided two reports dated 22 November 2006 (T19) and 1 April 2008.
34. At 13 September 2006 he said the applicant presented with lower back pain radiating to both legs, that she was then stressed with the pain, was limping and her left leg was weak. He observed an MRI or CT scan which confirmed the presence of disc bulging and in his opinion the clinical presentation was consistent with the radiology. Thereafter he prescribed Panadeine Forte, Tramadol and Valium (as a muscle relaxant).
35. Dr Bahnasawi was of the opinion that a relationship existed between the applicant's injury and her employment. It was his opinion that being seated in the workplace and sort of probably not getting enough break what she want, with the pressure of work and this and that, is a major factors in either causing disc or making things worse, if it were the pre-existing situations. Additionally, it was his opinion that if the applicant suffered a disc prolapse pre-existing the employment that the absence of rest and a proper supporting chair, especially in a person overweight, would be responsible for causing the prolapse to become worse.
36. In cross-examination Dr Bahnasawi acknowledged that his clinical records do not contain a history of complaint made by the applicant nor any advice given by him. He acknowledged that the notes contain the date and time of consultation, a record of medication prescribed, a very short description of the history (for example, back pain still going found in the notes on 23 December 2006 or back minimal improvement found in the notes on 30 January 2007). Dr Bahnasawi said that by reason of the frequency of his consultations with the applicant and the few numbers of patients at his clinic who have compensation claims, he was able to remember the applicant's symptoms and her complaints and the advice that he gave her. The contents therefore of a report that he wrote on 1 April 2008 were based largely on his recollections. He also acknowledged that any opinions expressed by him would be based on the accuracy of history given and his interpretation of radiology reports and other clinical data.
37. The witness was specifically taken to the frequency and quantity of medication prescribed by him as evident from his clinical records. Those records indicated prescriptions frequently being issued for Tramahexal – a slow release painkiller, Panadeine Forte, Tramal (same drug as Tramahexal), Ducene (which was described as being the same drug as Valium and also known as Diazepam) and Endone an opioid medication regarded as being stronger than Panadeine Forte and prescribed when Panadeine Forte is not offering adequate pain relief. He was unaware on 4 October 2006 when he prescribed Tamahexal that the same drug had also been prescribed by the Glenroy Clinic on 22 September 2006. Dr Bahnasawi said that he had not ever considered whether the applicant had a psychiatric impairment which might account for her frequent requests for medication nor had he ever considered that the applicant had become dependent upon Panadeine Forte which contained 30mg of codeine. The witness confirmed that after 13 April 2007 – when a positive pregnancy test was obtained – she did not seek any painkilling medication until 28 May 2007 despite six intervening consultations. Dr Bahnasawi said that the applicant was concerned to ensure a full term pregnancy having previously miscarried and was not prepared to accept the proposition put to him that between April and May 2007 she was not in pain and therefore did not seek painkilling medication. He noted on 23 May 2007 that Panadeine Forte was prescribed and on 28 May he recorded the applicant suffered back pain due to pregnancy.
38. Dr Bahnasawi acknowledged that his notes did not record any reference to referred leg pain but said that she had definitely given that history. He also said that observation by him of the films from radiology would confirm the presence of referred leg pain.
39. The witness said being seated would not of itself cause a disc prolapse but it may be aggravated by the duration of the periods being seated, the nature of the chair, whether a break was taken, and her posture. Additionally, matters such as being overweight or pregnant or having a family history of lumbar disc prolapse might increase the chances of aggravation of an existing prolapse.

DOCTORS CHEUNG AND HILL

40. Doctors Cheung and Hill both practice at the Glenroy Clinic. The applicant was a patient of that clinic between 17 December 2003 and 10 February 2007. They both gave evidence by telephone mainly to interpret their clinical notes. Neither had provided a medical report prior to the commencement of the hearing.
41. The evidence of both doctors revealed that the applicant had attended on a number of occasions with respect to gynaecological complications, complaints of migraine headache, stress, left shoulder and elbow pain and back pain. A left shoulder ultrasound undertaken on 5 May 2006 did not reveal abnormality. An arrangement was made for the applicant to be referred to the Northern Hospital for neurological assessment of her complaints of headaches and migraine but there was nothing from the clinical notes to indicate that the applicant ever attended. The applicant was also referred to the Northern Hospital because of a complaint of lower back pain extending to the left side of her left flank. Dr Hill noted that the report from the Northern Hospital of 27 February 2005 recorded the applicant's presenting complaint was of pain at or near the left iliac fossa with left flank pain. The report recorded that a cause for the pain was not found. Dr Hill thought that the applicant may have had a renal calculus or an ovarian problem.
42. The first presentation to the Glenroy Clinic by the applicant with a complaint of back pain was on 17 December 2003. The applicant then consulted with Dr Wilson (who was unable to give evidence by reason of being on leave) but his notes were interpreted by Dr Cheung. The applicant apparently attended because of a gynaecological matter but the notes also record lower back pain for 3/7. The notes also record denies stress. The medication Panadol was recorded as no benefit but it was noted that the applicant was on Panadeine. Dr Hill consulted on 19 December and he recorded pain still L lower back o/e L flank ? renal.
43. Dr Cheung visited the applicant at home on Monday 2 May 2005. His notes record a past history of low back pain of one year duration. The pain is recorded as having occurred two days previously but the cause is not recorded. He noted that the applicant had pain radiating to her knees, that Panadeine Forte was prescribed and he certified incapacity for three days. He also referred the applicant for lumbo-sacral x-ray. The notes record that the report of the x-ray of 3 May 2005 found sacralisation of the 5th lumbar vertebra and of the right side of the transverse process. Dr Cheung interpreted that report as an anatomical variation. He said that would cause the applicant to have vertebra not as strong as meant to be . . . to withstand her body weight at normal lumbar vertebra. He noted that the applicant then weighed 112kgs and he expected that the applicant would have back trouble sooner than anyone else. When asked to clarify, he said that he would expect the applicant to suffer from degeneration in her spine at an earlier age than other persons. When he learnt that the applicant's mother had had lumbar disc problems it was his opinion that a hereditary effect is quite possible and the applicant therefore was at risk of a higher chance to get abnormal back spine and to get some damage to the disc at an earlier stage. He recommended the applicant lose weight and exercise.
44. On 16 January 2006, Dr Cheung interpreted notes completed by Dr Wilson of the applicant then complaining of a tender right lower back with pain radiating into her right leg. The applicant was then found to weigh 116kgs and was taking Panadeine Forte.
45. On 8 August 2006 Dr Hill noted that the applicant had been referred by another doctor to a specialist. He recorded the words prolapsed disc and noted that the applicant was taking Tramal which he said was a drug similar to Panadeine Forte. On 9 November Dr Hill learnt that the applicant had been seen by Mr Han who had arranged for an MRI scan. Dr Hill had a copy of the report of the MRI and he interpreted it as indicating the applicant suffered from a lumbar disc prolapse.
46. Dr Hill said that he was not prepared to rule it out that the applicant could suffer a disc prolapse by her work requiring her to remain seated but in his experience, such an injury occurs by strenuous activity involving lifting or bending. He was aware of the applicant's weight from time to time and thought that obesity was a significant factor in musculo skeletal injury. He was also of the opinion that pregnancy can cause a softening of cartilage and it was well established that pregnancy can be responsible for back pain.
47. In re-examination by Mr Horner, Dr Hill thought that the applicant's weight would be of greater significance to the risk of developing a lumbar disc prolapse than the ergonomics of the office where the applicant worked but he did acknowledge that poor posture can certainly cause problems in . . . the lower back.

DAPHNE HELDT AND MAREE-FRANCE CAMILLE

48. Ms Heldt and Ms Camille previously worked as team leaders with Centrelink at the Broadmeadows Customer Service Centre. Ms Heldt moved to another Centrelink office in May 2006 and was replaced then by Ms Camille. Both gave similar evidence with respect to the office furniture and the work duties.
49. The witnesses said that the office furniture comprised chairs to which a number of levers were attached which permitted the raising or the lowering of the seat or the adjusting forward or backwards of the back of the seat and the adjustment of a lumbar support. The desks could be raised or lowered by a winding type mechanism. An occupational health and safety officer was located in the Broadmeadows office who would be available upon request for the purposes of assessment of a workstation or to adjust or replace furniture.
50. Each witness described the work practice as staff being rostered to perform a number of clerical type activities comprising work at a reception area, conducting walk in interviews or conducting interviews following a pre arranged appointment.
51. Reception duties were conducted either in a seated or standing position. The seat was of a stool type construction and could be raised or lowered depending on the receptionist's need. Reception duties could be for up to two hours per day.
52. Walk in interviews and interviews for persons who have pre arranged appointments are conducted at the officer's desk located behind the reception area. The officer is required to walk from the workstation to the reception area and escort the Centrelink customer to the desk. At the conclusion of the interview the customer is escorted from the workstation back to the reception area. Walk in interviews are anticipated to take between 15 and 20 minutes and are usually concerned with persons who attend to provide information such as change of address or bank account details. Pre arranged appointments are usually allocated one hour but after an officer becomes experienced the appointment might not extend beyond 45 minutes. Ms Heldt did agree the appointment might extend to 60 minutes in the event of a non-English speaking customer. During, or at the conclusion of the walk in interviews or pre arranged interviews, the officer may be required to undertake some photocopying or printing of documents. That would require the officer to walk away from the workstation to a printer or a photocopier located elsewhere in the workplace.
53. Ms Camille and Ms Heldt agreed that from time to time there would be staff absences where persons might work extended periods of time at the reception counter or conducting interviews but generally persons are rostered to perform reception duties and the two different types of interviews on a daily basis. The work day commences at 8.30 and the last interview is scheduled at 4.00pm. A lunch break of one hour is available together with two 15 minute tea breaks. Both witnesses disagreed with the evidence of the applicant that there were occasions where she would be required to conduct three interviews per hour throughout the day that is 21 interviews per day. Whilst Ms Heldt that she was responsible for 29 staff and Ms Camille said that she was responsible for between 22 and 24 staff, the latter said she had no knowledge or memory of any staff cuts.

DAVID MACINTOSH

54. Mr MacIntosh is a consulting orthopaedic surgeon who examined the applicant on three occasions at the request of the employer and provided four reports (three were forwarded to the employer and one was forwarded to the solicitors for the respondent).
55. Mr MacIntosh was of the opinion – having observed the CT scan of 13 June 2006 and an MRI of the same date – that the applicant suffered a significant calcified disc at L5 / S1 with left sided protrusion and nerve root compression at S1. It was his opinion that the applicant suffered degenerative disease of the lower lumbar spine with nerve root compression. He agreed with opinions expressed by Mr Michael Shannon in a report of 30 January 2008 who concluded that the disc protrusion was longstanding, that it may have preceded the employment and there was no evidence that the employment had any significant influence on the development of the prolapse. Mr Shannon was also of the opinion – and Mr MacIntosh agreed – that the protrusion was degenerative in nature and possibly affected by the applicant's weight, the stresses of her pregnancies and being unfit.
56. Mr MacIntosh was of the opinion – consistent with the opinions of Mr Shannon – that the employment did not aggravate the pre-existing degenerative disease but could have caused symptoms by prolonged sitting.
57. Mr MacIntosh was taken to the clinical notes of doctors treating the applicant in 2003 who variously obtained histories of lumbar pain, tenderness of the lower back, and lower back pain extending to the left flank. He said those symptoms were consistent with degenerative disease which must have then been existing. He thought that the symptoms would also be consistent with a disc prolapse at L5 / S1 but the complaint of leg pain would not necessarily have been caused by the prolapse.
58. When Mr MacIntosh examined the applicant he noted an inconsistency between straight leg raising when she was prone and when she was in a seated position. He was unable to explain the differences other than the applicant may have been resisting him during the examination.
59. Mr MacIntosh was reluctant to be drawn into associations, if any, between anxiety and depression and back pain. He said that anxiety and depression could affect a person's perception of pain because when depressed everything seems worse. Alternatively he said that back pain may cause depression. When he learnt that the applicant had rated her pain at 9 on a scale of 1 – 10 at a pain management clinic in September 2006, he said that he would have expected the level of pain to be lower but he conceded that the applicant may have experienced pain at that level on the day on that she attended the clinic.
60. Mr MacIntosh was then examined on the relationship between obesity and pregnancies and back pain. He said it might appear that a person being overweight could suffer from back pain but in his experience there was no evidence to support that proposition. He acknowledged that it was a commonly held view and it was a point of departure from his unanimous agreement with the contents of the report of Mr Shannon. He said it was common for persons who are pregnant to suffer back pain – including women without prior complaints of back pain – but said he was not aware of any correlation between pregnancies and disc protrusion.
61. When Mr MacIntosh saw the applicant in July 2006 it was his opinion that she was fit to return to work initially at three hours per day on three days per week with 10 minute breaks after being seated for 20 minutes. Gradually he said that the duration of the employment should increase with supervision by her treating general practitioner.
62. Mr MacIntosh had read the report of Mr Han and in broad terms he agreed with it except Mr Han was of the opinion that the employment did contribute to the degenerative disease. He said that both he, Mr Shannon and Mr Han were all of the opinion that the applicant should not have surgery.
63. In cross examination Mr MacIntosh said that there was no correlation between complaints of pain and the injury as observed upon radiology. It follows that a person with a disc lesion would not necessarily suffer pain whereas other persons might experience pain. He would prefer to conduct further examinations and observe clinically before he concluded that the radiology was consistent with a person's complaints. He confirmed the conclusions expressed in his report of July 2006 that the applicant had difficulty sitting for more than 20 minutes without having a break because sitting for any longer period of time would cause increased pain. He therefore agreed that being seated for up to one hour without a break, day in day out would increase the applicant's back pain, more so if the chair upon which she was seated was not suitable. He thought that a chair with good lumbar support would be acceptable and likely to reduce the extent of back pain.
64. In re-examination, Mr MacIntosh said that being seated at work for periods of less than one hour in a chair supplied by the employer that was ergonomically designed which was capable of adjustment as to height and lumbar support and being seated at a desk which was capable of being adjusted and being supervised by an occupational therapist would be unlikely to cause back pain at any greater level than being seated anywhere else.

MICHAEL SHANNON

65. Mr Shannon is an orthopaedic surgeon who examined the applicant on 29 January 2008 and provided a report of 30 January 2008. Having observed the reports of a CT and MRI scan of 2006 it was his opinion that the applicant suffered from degenerative changes and a disc protrusion in her lower lumbar spine. Unlike Mr MacIntosh and Mr Han he was not of the opinion that the applicant suffered compression at S1.
66. Mr Shannon was alert to the psychosocial factors reported by Mr Han and thought that conditions of anxiety, stress or depression could form a major role in assessing the subjective severity of the injury. The witness was then asked to consider a summary from the clinical notes of the treating doctors which indicated a diagnosis of PTSD in 2001, admission to hospital following an overdose of paracetamol in 2001, insomnia being diagnosed in 2003, hyperventilation being diagnosed in 2003 and 2005 and stress diagnosed in 2005. Mr Shannon thought that history was significant when evaluating the extent of the applicant's back pain. He was also of the opinion that surgery would not be warranted in the case of the applicant in the absence of appropriate pathology and psychology. He thought that the chances of success from surgery – which he thought would be a two level fusion – would be negligible.
67. When Mr Shannon also learnt of a summary completed by the applicant on admission to a pain management clinic of pain associated with sitting, standing, lifting, housework, bending, walking and climbing stairs, he said that he would expect that activity to cause a worsening in her symptoms (an opinion also held by Mr MacIntosh when the same question was put to him).
68. Mr Shannon thought that the applicant's clinical history before 2004 of presenting with complaints of lumbar pain, tenderness, referred left leg pain and tenderness over the lumbar muscles could point to the protrusion having preceded commencement of employment.
69. Mr Shannon was concerned when he leant of the applicant's history of obtaining prescriptions for and consumption of Panadeine Forte. Unlike Mr MacIntosh it was his opinion that Panadeine Forte is a narcotic and is addictive. He was concerned that the applicant was able to obtain prescriptions at the frequency suggested by counsel for the respondent who referred to the clinical notes of the applicant's treating general practitioners.
70. Mr Shannon thought that the restrictions imposed by Mr MacIntosh as contained in his report of 11 July 2007 were appropriate. He thought that a return to work by the applicant involving sitting, standing and walking for limited periods would be appropriate. He also thought that those type of activities were not different to ordinary daily activities by persons outside the workplace. He maintained his view that the work environment might cause an increase in symptoms, but there was nothing which pointed to the disease process suffering any permanent aggravation.

TIEW FONG HAN

71. Mr Han is a neurosurgeon who has been in practice for eight years. In addition to some reports he wrote to referring treating general practitioners (which were received into evidence), Mr Han provided a report to Comcare dated 14 March 2007. He attended the applicant on two occasions in June and July 2006 and obtained a history from the applicant of lower back pain from April 2004 after commencing employment with Centrelink. Pain was also experienced in the left leg and occasionally in the right leg. A CT scan had previously been undertaken and Mr Han arranged for an MRI. He said that the radiology as observed by him was consistent with the complaints made by the applicant on presentation.
72. In his report in answer to a question asked by the respondent, Mr Han was of the opinion that there was a direct relationship between Mrs El-Terek's condition and her employment. I believe the employment was a significant contributing factor to her injury. Mr Han said he formed that opinion because on the history given to him the applicant did not suffer back pain before she commenced work with Centrelink. He also understood her employment to be mainly standing serving customers at a counter with some rotation and turning. In that environment and working full time, he said back pain could result from pathological changes. When asked to consider that the applicant also worked in a seated position, he said that disc damage could be caused if the applicant was not sitting in an ideal ergonomic position.
73. Mr Han was then asked to comment on a conclusion expressed by Mr Shannon in his report that the applicant was not incapacitated, that her condition was not related to employment and resumption of employment should be on a gradual basis. He thought that was a generalised opinion and consideration would need to be given to the specific duties required of her in her work. He thought the opinion would be sound if the applicant worked in a comfortable environment but if she was busy or frequently had to sit and stand, walk and turn, he would maintain his opinion that the work contributed to the injury.
74. Mr Han recommended that the applicant lose some weight as part of her treatment but it was his opinion that her weight had not contributed to the presence of pain or the injury. He maintained that opinion because on the history he obtained - and being aware that she had been overweight prior to commencement of employment – back pain occurred only after employment with Centrelink had commenced.
75. In cross examination Mr Han was taken to his report where in answer to a question of the respondent he reported there is generally no specific causation factors for this condition. Generally repetitive trauma such as bending or lifting would accelerate the degree of disc degeneration in the lumbar spine. Mr Han agreed that there could be a hereditary component to the occurrence or progression of degenerative disease as would trauma or a person's age. He thought that sitting involved the use of the spine and that would also contribute to the degenerative process. When he was reminded that in 1999 when the applicant was 16 or 17 years of age and was then reported to have a weight of 99kg, Mr Han agreed that obesity would accelerate the degenerative disease.
76. Mr Han was then given a summary from the clinical notes of the applicant's treating practitioners who in August 2003 variously reported a history of lumbar pain, right lower back tenderness with similar complaints in December 2003 including specific reference to the L5 / S1 level. With that knowledge – but in the absence then of radiology – Mr Han said that the symptoms then expressed by the applicant could represent disc damage and degenerative disease could then have been present. He said that he had been advised by the applicant that she suffered a gradual increase of back pain since commencing employment with Centrelink and without specific trauma. He said that he had presumed that she had worked 40 hours per week involving rotation and turning. He acknowledged that he would need to reconsider his opinions having regard to the history of which he was not aware.
77. Mr Han was then asked to consider from the evidence heard in these proceedings, that the applicant had been provided with ergonomic furniture, that she had been assisted by an occupational therapist and an occupational health and safety officer, that the maximum working week was 36¾ hours, that she could sit and stand at will when working at the call centre in 2004 and similarly when conducting interviews at the counter. On that history, Mr Han said that it would appear that the applicant had early disc damage and degenerative disease but having heard of the duties that she performed at Centrelink it was his opinion that that employment could have accelerated the degree of degenerative disease. He said the history of pain was more important than the activities undertaken in the workplace. He acknowledged that outside work persons would be expected to sit and stand and twist and turn however, in his experience a workplace does not provide an opportunity to rest as might occur at home.
78. Mr Han said that he considered the possibility of surgery after he first saw the applicant and observed the results of the CT scan but dismissed it when he saw the results of the MRI. Initially he thought that surgery would be warranted because of the complaints of severe leg pain but on review, he thought the lack of musculature and the applicant being overweight contributed to her symptoms. He agreed that pregnancy was a common cause of back pain.
79. In his report Mr Han also concluded that a psychiatric assessment of the applicant may be of value. He reported that he was not aware of any significant psychological effect by reason of a miscarriage suffered by the applicant and he thought that psychiatric assessment might determine whether there was any association between the previous pregnancy and the back pain.
80. At the hearing Mr Han said that a person with a vulnerable personality would perceive pain more than was usual. When he learnt that the applicant had been diagnosed with PTSD in 2001, had attended for treatment following an overdose of painkilling medication, suffered depression, hyperventilation, and stress in 2005 and of concerns expressed by the Royal Women's Hospital after the birth of her first child in 2007, Mr Han said that a history of psychosocial factors may affect the degree of reported pain.
81. Mr Han agreed with conclusions expressed by Mr Shannon and Mr MacIntosh that the employment did not significantly contribute to the applicant's injury. He also agreed that the employment did not materially contribute to the causation, aggravation or acceleration of her degenerative disease or the development of the disc prolapse.
82. In re-examination Mr Han was asked to consider the work duties he had assumed were undertaken by the applicant and was also asked to assume that the back pain reported in 2003 did not have its origin in her spine. He said that in those circumstances and in the absence of any pre-existing injury to the back, he thought the work duties could bring on back pain.

CONCLUSION AND REASONS FOR DECISION

83. The applicant was 22 years of age when she commenced employment with Centrelink in 2004. At a pre employment medical examination she was asked to complete a questionnaire disclosing whether she had or had not previously suffered a number of stated conditions. Of some significance (Exhibit R4, p626), the applicant denied that she had previously suffered back pain. The evidence heard in these proceedings clearly demonstrated that answer to be false and the applicant ultimately admitted that it was false. The applicant said in evidence that she misunderstood the question asked but I am satisfied that she is a person of considerable intelligence and she clearly understood what was being asked of her.
84. The medical evidence heard and read in these proceedings revealed complaints to a number of doctors in 2003 of back pain. In 2006 a CT and MRI scan was conducted demonstrating the presence of a disc prolapse at L4/5 and L5/S1. Whilst there was a radiological absence of nerve root compression, the back pain suffered, at least in 2003 by the applicant, is consistent with the presence then, as evident by the CT/MRI scans, of lumbar disc protrusion at least at one and probably two levels before the commencement of employment. I am not satisfied that those conditions arose out of, or in the course of, the employment. I make those findings because protrusions are more likely to have occurred by strenuous physical activity involving lifting or bending (refer evidence of Dr Hill). Those types of activities were foreign to the work undertaken by the applicant. On the evidence of Doctors Cheung, Hill, Bahnasawi, and Shannon it is likely that the prolapse at one or both levels also had an association with the applicant being overweight (the evidence pointed to the applicant at all relevant times being between 112 and 116kgs). There was nothing from the evidence which points to the applicant being exposed to any traumatic or strenuous event or activity in the workplace which would account for the prolapse at one or both levels. Mr McIntosh said the prolapse was degenerative in nature.
85. The only support – on the reports – for the applicant's case was from Dr Bahnasawi and from Mr Han. I found the evidence of Dr Bahnasawi to be confusing and superficial and from which I would place no reliance. His clinical notes did not reveal any meaningful history and were brief in the extreme. His evidence of the history given to him was from memory but I discount it and find it to be against the weight of the evidence heard from the other doctors in these proceedings. He did acknowledge that it was unlikely that working in a seated position would cause a disc prolapse but thought that obesity and heredity factors might increase the risk of aggravation of a pre-existing prolapse. Mr Han initially supported the applicant's case but had an incorrect history. He associated the prolapse and or the aggravation of it by the applicant being exposed to frequent bending, twisting and turning type movements at work. When he learnt that those activities had not been undertaken and learnt also of the applicant's prior medical history – including attendances upon doctors in 2003 – and learnt also of other illnesses for which treatment had been undertaken, he reversed his opinion and was of the view that there was no material contribution to the causation, aggravation or acceleration of any degenerative disease of the lumbar spine or the development of the prolapse.
86. Having decided that the employment did not cause the prolapse the issue then to be considered was whether the employment aggravated the pre-existing prolapse or degenerative disease. On this issue I am also satisfied that there was no material contribution.
87. One of the most significant features of this review was learning of the frequency of the applicant's absences from the workplace.
88. The applicant did not attend the workplace at all in 2007. In 2006 she worked for a few days only in January, April, May and June. There were significant absences throughout 2004 and 2005 described as having an association with either sick leave or recreation leave or other/maternity. The absences from the workplace make it difficult to conclude that the work aggravated a pre-existing degenerative state. That is to say, if the applicant is not regularly or routinely in the workplace, the employer can hardly be responsible for any resulting injury or aggravation.
89. Added to the above it would appear that the employer did provide a system of work which permitted sitting or standing at will. The evidence of Ms Heldt and Ms Camille was in my view compelling. I dismiss the evidence of the applicant that she worked performing up to 21 interviews per day when the work involved a system of rotation at the counter and then conducting walk-in and scheduled interviews. The counter work could be performed either being in a seated or standing position and the interviews were conducted in a seated position but with frequent punctuations for walking and standing by escorting the client to and from the interview desk, walking to and from photocopiers and printers and walking to and from filing cabinets. But that work of course was only undertaken on the occasions where the applicant attended the workplace.
90. Additionally, it would appear that the applicant's complaints of poor furniture were acknowledged by appropriately qualified occupational health and safety officers in the workplace where either appropriate furniture was provided and/or the applicant was instructed in the manner in which chairs and desks could be raised or lowered or adjusted to meet her needs.
91. At its highest the applicant suffered the symptoms of the pre-existing prolapse and the lumbar disease when at the workplace. However the respondent is liable only in the event that an employee suffers an injury as defined (including the aggravation of an injury) or a disease to which there was a material contribution by the employment. Especially because of the frequency of absences from the workplace I am not satisfied that the applicant did suffer the aggravation of any pre-existing disease or injury. Additionally, the duties performed when at the workplace and the unrestrained opportunities to sit and stand at will together with routine breaks for lunch and afternoon and morning teas, do not permit a finding on the probabilities of workplace attribution. The applicant's obesity, pregnancies and gynaecological abnormalities were responsible either for the aggravation of degenerative disease or causing that disease to be symptomatic.
92. In all of the circumstance I am satisfied that the decision under review should be affirmed.

POST SCRIPT

STATEMENTS OF PRINCIPLES/VETERANS' ENTITLEMENTS ACT 1986

93. During cross-examination counsel for the respondent sought to rely on a Statement of Principles (SoP) issued by the Repatriation Medical Authority by the authority given to it under s 196A of the Veterans' Entitlements Act 1986. The SoP concerned lumbar disc prolapse and purported to have the absence of any factor associating operational or defence service with activity undertaken in a seated position. I indicated to counsel that I thought the question was an irrelevance and the answer would carry no weight. On review, I remain firmly of that opinion.
94. In Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey J decided at p275:

. . . the SoP has no function in relation to the proof or disproof (under s 120(1) of the particular facts of a veterans' case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can "uphold" the hypothesis . . . The SoP is a subset of proved . . . or known . . . scientific fact. Where an SoP is applicable it is a statute backed declaration of what is a proved or known scientific fact.

95. It is difficult, having regard to the above analysis, to conceive how any SoP determined by the Repatriation Medical Authority, can have any relevance at all to proceedings under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Proceedings for review of decisions made under the SRC Act involve findings, on the balance of probabilities, of connection between employment and injury or disease and of entitlement to compensation. Evidence is heard and witnesses are cross-examined. SoP's are relevant only to assess liability under the Veterans' Entitlements Act or the Military Rehabilitation and Compensation Act 2004. I have heard from Interstate colleagues that attempts have been made to agitate for affirmation of decisions under review made under the SRC Act by reliance on factors contained within a SoP. For the reasons given above, such attempts have no validity in proceedings under the SRC Act.

I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed: Grace Carney, Personal Assistant

Dates of Hearing 19 and 20 August, 15 and 16 December 2008

Date of Decision 6 February 2009

Counsel for the Applicant Mr N Horner

Solicitor for the Applicant Arnold Thomas Becker

Counsel for the Respondent Ms J Macdonnell

Solicitor for the Respondent Australian Government Solicitor