Kenny and Comcare [2011] AATA 43 (31 January 2011)

Last Updated: 1 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1697

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GAIL KENNY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 31 January 2011

Place Brisbane (Heard in Darwin & Brisbane)

Decision

The decision under review is affirmed.

.................[Sgd]..................
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – Tribunal not satisfied that applicant’s condition was contributed to in a material degree by the applicant’s employment – decision under review affirmed

Safety, Rehabilitation Compensation Act 1988 (Cth), ss 4, 7(4), 14, 16

REASONS FOR DECISION

31 January 2011

Deputy President P E Hack SC

INTRODUCTION

1. The applicant, Ms Gail Kenny, has been an employee of Centrelink for a number of years. In late May or early June 2003 she hurt her back while lifting and carrying computers at the Katherine office of Centrelink. Ms Kenny now suffers from frequent debilitating back pain. She attributes that back pain to the lifting incident in 2003 and seeks compensation for that injury.
2. Comcare initially accepted her claim for compensation however it says that the back pain that Ms Kenny now complains of is unrelated to her employment; the likely cause, according to Comcare, is disc degenerative disease.
3. Ms Kenny seeks a review of Comcare’s decision to refuse to accept liability for her current complaints.

THE LEGISLATIVE SCHEME

4. The scheme of the Safety, Rehabilitation Compensation Act 1988 (Cth) (the SRC Act) need only be briefly noticed. By virtue of s 14 of the SRC Act, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Section 16 of the Act creates a similar liability in respect of the costs of reasonable medical treatment for the injury.
5. There is no question that Ms Kenny was an employee at the relevant time nor that the condition from which she suffers results in, at least, incapacity for work. What is in issue in these proceedings is whether her condition is an injury as that term was defined in the SRC Act as in force at the relevant time.
6. Ms Kenny first made a claim for compensation in May 2005. At that time[1] (and at the time of the initial incident in May/June 2003) “injury” was defined in s 4 of the SRC Act as meaning:

“(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; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

Within the same section, “disease” was defined as meaning:

“(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.”

“Ailment” was defined as meaning:

“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

7. The present case is one where it is accepted that Ms Kenny’s condition, if it otherwise be accepted as an injury, is an injury qua disease rather than an injury properly so called. That being so, s 7(4) of the SRC Act is relevant. It provides:

“(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”

THE FACTUAL BACKGROUND

8. Comcare accepts that there was an incident of the type described by Ms Kenny in which she hurt her back lifting computers; her evidence of the incident, and that of her supervisor, Ms Elisabeth Noble, was not challenged. Ms Kenny and Ms Noble were taking part in the refit of the Katherine office of Centrelink. That involved replacing all computers in the office. As Ms Kenny was lifting a computer she experienced pain in her lower back. She was unable to continue with the refit and went home. She was unable to assist Ms Noble to complete the refit over the following weekend, as had been planned.
9. There is controversy about the immediate consequences to Ms Kenny from the incident. Her evidence at the hearing was that she had attended the Wurli Wurlinjang Health Clinic and was given “analgesia and several days off”. Thereafter Ms Kenny returned to fulltime duties taking analgesia as required. She said that she visited the Wurli Wurlinjang Clinic approximately monthly thereafter until early 2005 to receive more analgesia for back pain. In early 2005 Ms Kenny commenced field duties however she says that she found that doing so exacerbated her pain, requiring her to make more regular visits to the Wurli Wurlinjang Clinic.
10. The contemporaneous records are not consistent with this account.
11. First, Ms Kenny’s leave history, maintained by Centrelink, does not show any absences for sick leave in or about May or June 2003. Additionally, the records of the Wurli Wurlinjang Clinic do not record any attendance by Ms Kenny at that time. Moreover, in a statement made in May 2005 Ms Kenny recorded that she had not sought medical attention at the time of the original incident.
12. Given that the issue is whether the present complaints are attributable to the May/June 2003 incident or disc degenerative disease it will be helpful to catalogue the evidence of back complaints from the primary records available, those of the Wurli Wurlinjang Clinic, the Kintore Clinic (another general practice clinic) and the Katherine Hospital.
13. The first record of a complaint of back pain appears in the records of the Katherine Hospital for 27 October 2003. Those records indicate that Ms Kenny attended the Hospital’s Emergency Department with a complaint of “lower back pain since yesterday – gradual worsening – no known mechanism of injury”. The history recorded was that Ms Kenny had had lower back pain previously “but not for 3 yrs”. Ms Kenny attended the Kintore Clinic on 31 October 2003, having been referred there by Katherine Hospital. Her back pain was recorded as being “much better than earlier”.
14. Ms Kenny visited the Wurli Wurlinjang Clinic for medical treatment on three occasions during 2004. On no occasion was any complaint of lower back pain recorded. The first recorded complaint of back pain appears to be that of 11 January 2005. Then on 11 March 2005 a note was made to the effect that Ms Kenny had experienced back pain “for a couple of years, on & off”, increasing at night. Ms Kenny was seen by Dr David Forster, a general practitioner, on 18 April 2005. His report[2] includes the following,

“[Ms Kenny] reported the pain to be a continuous sharp 4/10 pain, exacerbated by lower back movement, prolonged sitting and standing. It commenced in January 2005 in the midline of her lower back, but then moved to bilateral paraspinal, and is now midline and left paraspinal. ...
The patient reported that the pain was similar to a work related back pain 2 years ago, but could not be more specific as to the cause.”

15. For completeness, I should say that Ms Noble, who remained Ms Kenny’s supervisor for about a year after the computer lifting incident, said that she was able to recall occasions during that period when Ms Kenny telephoned to advise that she was unable to attend work because her back was too sore. She was also able to recall observing Ms Kenny in apparent difficulty in sitting whilst at work and that Ms Kenny was taking pain killers during this period.
16. Ms Kenny’s leave records, as I interpret them, appear to demonstrate numerous absences on sick leave during that period: for four days in August 2003, three days in October 2003 (coinciding with the visit to Katherine Hospital), one day in April 2004 and two absences, each on two days, in May 2004. The records also indicate, consistent with the evidence of Ms Kenny, that from the start of 2005 she took more frequent sick leave.
17. In early 2005 Ms Kenny’s work duties changed. She started on field duties however performing these duties exacerbated her back pain. Ms Kenny seemingly reported this back pain to Centrelink which led to a referral to an occupational therapist at CRS Australia in February 2005[3].
18. Ms Kenny first made a claim for compensation on 14 April 2005 following a visit to the Wurli Wurlinjang Clinic on 12 April 2005. The medical certificate issued by Dr Brad Gray on that occasion noted a “2 yr history of intermittent episodic pain”[4]. The history provided was that the back pain then complained of had existed since January 2005.
19. A similar history of “ongoing niggles” from May/June 2003 but with an increase in pain and symptoms from early 2005 was taken by an exercise physiologist from CRS Australia in May 2005[5].
20. On 6 July 2005 Comcare accepted liability, pursuant to s 14 of the SRC Act, to pay compensation for an injury described as “lumbar sprain” which was, by virtue of s 7(4) of the SRC Act, taken to have been sustained on 12 April 2005 i.e. the day of the visit to Dr Gray. Comcare’s letter, accepting liability, referred to her employment having exacerbated lower back pain however the decision maker was not satisfied that Ms Kenny’s employment had caused the L5/S1 disc prolapse which had, by then, been demonstrated on radiological examination.
21. Thereafter Comcare provided various forms of compensation, including incapacity payments and payment of medical expenses, until 7 November 2008. On that date Comcare determined that compensation was not payable pursuant to ss 16 and 19 of the SRC Act. The decision maker was of the opinion that Ms Kenny’s then current symptoms were related to underlying degenerative disease and no longer related “to the incident of 12 April 2005”. There was, of course, no such incident, the date being one deemed by the legislation.
22. That determination, which was affirmed on reconsideration on 27 February 2009, is the subject matter of these proceedings.

THE MEDICAL EVIDENCE

23. I had the benefit of the reports and evidence of Mr Matthew Sharland[6], consultant orthopaedic surgeon, Dr Gavin Chin, Director of Rehabilitation of the Royal Darwin Hospital, and Dr Richard Gibberd, consultant orthopaedic surgeon. Dr Gibberd saw Ms Kenny solely for medico-legal purposes however Mr Sharland and Dr Chin both treated Ms Kenny so that their reports are a mixture of reports to referring practitioners and medico-legal reports.
24. The first report is that of Dr Chin, to whom Ms Kenny was referred by Dr Foster from the Wurli Wurlinjang Clinic. Dr Chin described the condition suffered by Ms Kenny as “chronic mechanical back pain secondary to disc degeneration.”
25. Mr Sharland’s first report, that of 6 October 2005, was a simple report back to the referring general practitioner. It spoke of a “3-year history of chronic back pain” and made reference to investigations, including a CT scan and MRI, showing “disc degeneration of L5/S1 only”.
26. Dr Chin’s next report of 17 November 2005 noted a MRI scan of 19 July 2005 which showed “L5/S1 disc degeneration and collapse”. Dr Chin requested an MRI which was undertaken on 6 December 2006 and undertook a comparison with the previous study in July 2005.
27. Ms Kenny was seen by Dr Gibberd, for the purposes of a medico-legal report, on 22 July 2008. The history given was consistent with Ms Kenny’s evidence in the proceedings i.e. a lifting incident in 2003, attendance upon a general practitioner with analgesics and three to five days off work followed by approximately monthly attendances on her general practitioner thereafter. Ms Kenny told Dr Gibberd that the pain had slowly increased until she had sought attention on 12 April 2005 when x-rays were performed. Dr Gibberd noted that radiological imaging had shown disc degenerative disease in the lower lumbar spine to which he attributed Ms Kenny’s continuing pain in the lower lumbar area. He considered that the lifting incident in 2003 “may have some contribution to her disc degeneration disease”.
28. Mr Sharland saw Ms Kenny on 2 October 2008 for the purposes of preparing a medico-legal report. He took a history consistent with that taken by Dr Gibberd. He concluded:

“There is no doubt that there was pre-existing degenerative disease at the L/5 S/1 level but from the history as given by Ms Kenny this was not symptomatic to any great degree. If one believes Ms Kenny she has outlined quite clearly that there was an incident at work in 2003 which was the start of her ongoing problems.
I believe it reasonable to suggest that at the time of the lifting incident she did further injure her back and cause an increase in pathology, whether it be at the facet joint level at L4/5 or L/5 S1 or at the disc level at L/5 S/1. This increase in pathology is reflected in the immediate and ongoing increase in pain which has been ongoing and I do not believe given her current level of disability it would be reasonable to suggest that there has been resolution of the work related injury.
I believe it most reasonable to make the assessment that Ms Kenny suffered a work related injury in May or June of 2003 which led to an increase in pathology and either facet joint or disc which has been ongoing. I believe her ongoing problems therefore should continue to be attributed to the work related injury and her current level of disability should continue to be considered work related.”

29. Ms Kenny saw Mr Sharland again on 18 September 2009 and prepared a report dated 20 September 2009. Mr Sharland remained of the same view regarding Ms Kenny’s ailment and its cause. He said:

“There have been investigations, which have certainly shown a significant degree of pre-existing degenerative condition. I do believe though from the history, however, that at the time of the injury there was clearly either an exacerbation, which has been ongoing, or an acceleration of the underlying degenerative process; in either case, the injury as it occurred remains a component of her current level of disability.”

30. Mr Sharland’s report was among the material considered by Dr Gibberd when preparing a supplementary report dated 23 October 2009 as were reports of another orthopaedic surgeon, Dr Lewis. Dr Gibberd said:

“Having re-read these reports I see no reason to change my opinion that she exacerbated her pre-existing symptomatic disc degenerative disease in the incident as described in 2003, but continuing complaints of pain should be regarded as attributable to her pre-existing condition plus psychosocial factors.
I would disagree with Dr Sharland’s and Dr Lewis’ reports that the lifting of the computer has caused Ms Kenny’s continuing complaints of pain. The weight of personal computers is not particularly heavy and therefore there would not have been a significant force through the lumbosacral spine.
She only required a few days off work following this incident and was able to return to full-time duties with no restrictions for some two years with gradually increasing pain. The history of gradually increasing pain is not consistent with an injury – any acute injury tends to decrease in symptoms over a 6 – 12 week period. I believe this history supports my concept that her pain is due to disc degenerative disease.”

31. Dr Gibberd provided a further report of 27 April 2010 in which he reiterated his opinion that the 2003 lifting incident exacerbated a pre-existing degenerate condition but that the exacerbation had ceased.
32. Mr Sharland provided a further report dated 4 August 2010 in which he discussed the significance of the July 2005 MRI report and considered the opinion of Dr Gibberd. As to the former he considered that the findings were consistent with any of three possibilities – an injury sustained in a lifting incident, in a patient with no history of back pain and no history of a lifting incident, and in a patient with ongoing back pain secondary to disc degenerative disease. He was unable to reach a concluded view in Ms Kenny case. The degeneration and prolapse of L5/S1 level “may have been pre-existing or may have occurred to some extent at the time of the work related injury.” And Mr Sharland regarded the history given by Ms Kenny to be contrary to Dr Gibberd’s opinion that the 2003 lifting incident caused an exacerbation which had resolved.
33. The importance of the history given by the patient was taken up with Mr Sharland in his oral evidence. He was taken to this passage in his report of 20 September 2009:

“In 2003 there was a clear-cut incident when she was lifting computers and when she had a significant acute incident of back pain and this was reported to her supervisor.”

He said of that passage[7]:

“Well, a clear cut incident means that there’s been in the patient’s view that they’ve done something and then noted a significant change or increase in any pain that they might have had before. So that generally would be taken as a significant piece of history in that event or some new injury or increase in a pre-existing problem may have occurred at that point because the patient has a clear recollection of a significant change in her level of pain or of new pain.”

The apparent inconsistency between the history relied upon by Mr Sharland and that demonstrated by clinical records was also taken up with Mr Sharland. He dealt with that in this way[8]:

“THE D. PRESIDENT: Mr Clark has just reminded you of the history that you were given and we have got some more documents in today – that have been admitted in evidence – that seem to be somewhat inconsistent with the history that you were given. Now, for example, we have a note from the Katherine Hospital in October 2003, which describes:
Lower back pain since yesterday, no known mechanism of injury, has had lower back pain before but not for three years. Distressed, crying –
And then I think it’s – there is further complaint of back ache on 30 October 2003. But there doesn’t seem, then, to be any further complaint – and the barristers will correct me if I have misunderstood this. The next complaint in the general practice notes of back pain seems not to come until about 2005. What am I to make of the disconnect between the history that you were given and the history that appears to emerge from the clinical notes? I’m sorry I’ll just get – gentlemen is that – have I said that accurately? There’s nothing between that October 2003 and April 2005?
MR CLARK: January 2005.

THE D.PRESIDENT: Sorry, January 2005, is then the next reference.
...
There were three doctors’ visits for other medical consultations in that period between October 2003 and January 2005. Now, I’m sorry have – does that make sense to you? What am I to make of that disconnect between the history given to you and the apparent lack of need to attend a doctor and the reference in October 2003 to no back pain except three years prior?---I guess my input would be that – firstly that the patient outlined a history to me which I asked specifically about and wrote down and she did state that she had had pain for that period which she was broadly coping with, with intermittent use of analgesia and then at one point it became bad enough to really start seeing the doctor and having time off work. So that was the history given to me. To some extent I think that’s consistent with her not having to see the doctor about it as she was coping with it herself. But I can also see the opposite viewpoint that, you know, perhaps you would have thought she might have made more complaint to the GP if for two years she had back pain that was troubling her, you know, in quite a constant basis.
...
MR CLARK: In respect of that incident, in respect of the lifting of the computer, part of the factual substratum that you were given was the fact that she had to consult a doctor, was given some pain killers and had time off work. Isn’t that so?---That’s what I have written down, that’s what she would have told me, yes.
Okay. There’s also some evidence that she did not seek – this is in a statement from her – that she did not seek medical attention at that time. Okay. Clearly, once again, that is a different history to what you were given?---That’s right.

Okay. And do you accept the fact that if she didn’t – if that is correct, that she didn’t seek medical history, it puts the nature of the injury in May 2003 to a different category to what you comprehended it to be. Isn’t that so?---Yes.

MR McCONNEL: Yes. Just on that last point, Mr Sharland, we have evidence from Ms Kenny this morning that she believed she had consulted a doctor and we also have evidence in the form of a statement from her then team leader, Ms Elisabeth Noble. If you just bear with me for a moment, I’ll turn that up. Ms Noble says that they – they meaning Ms Noble and Ms Kenny were going to come in over the weekend to finish the job but that Gail reported that she was in too much pain to complete the work and so she completed the refit on her own. I just wonder if you could comment on what that does in the overall assessment of the seriousness of the injury as reported to you?---Well, I think that confirms – that statement – it would then to be confirming the conclusion I drew that it was a significant injury which has definite potential for having caused a long term problem. If she was positioned then to think at that stage that she couldn’t do the work that she was asked to do.”

34. Two features only of the oral evidence of Dr Chin need be remarked upon. First, he expressed the opinion that Ms Kenny’s presentation is not typical of a person with age related degeneration. He said[9]:

“No I don’t think that she is typical of a person with age related degeneration. She is relatively young, she has not previously been in an occupation – or wasn’t in an occupation that required significant manual handling and in someone of her age I would feel that disc changes such as she had were certainly uncommon and an indication that it was not just related to age disc changes or age degeneration.”

35. The oral evidence of Dr Chin was also relied upon as demonstrating the genuineness of her complaints of pain. That, however, is not in issue; the issue is the cause of that pain.
36. It is not necessary to detail any of the oral evidence of Dr Gibberd.

CONSIDERATION

37. The case for Ms Kenny depends upon an acceptance of the evidence of Mr Sharland. That, in turn, is very much dependant upon the view taken of the reliability of the history given to him which very much informed his opinion of the cause for Ms Kenny’s present complaints. For the reasons that follow I am of the view that I am unable to accept Mr Sharland’s evidence because I regard as unreliable the history that it is based upon.
38. As has been seen, Mr Sharland’s opinion (and, indeed, that of Dr Gibberd) was formed on the basis of a history of an attendance by Ms Kenny upon her general practitioner following the lifting incident and the need for her to take several days off work followed by almost constant pain. Yet the contemporaneous documents are simply not consistent with that history. Much closer to the event Ms Kenny made a statement that said that she did not attend a doctor and gave reasons for that. The records of the Wurli Wurlinjang Clinic do not show any attendance for back pain in the aftermath of the lifting incident, indeed the first attendance for back pain did not occur until late October 2003, some four or five months after the lifting incident, when Ms Kenny attended the Katherine Hospital. Contrary to the sick leave records, Ms Kenny did not take any time off work although I accept, given the evidence of Ms Noble, that she may not have been able to work, as planned, on the weekend after the lifting incident. The records of Wurli Wurlinjang Clinic do not demonstrate, as Ms Kenny told Dr Gibberd and said in her evidence, that she attended that Clinic on an approximately monthly basis after the lifting incident.
39. It is, as well, significant that when Ms Kenny attended the Katherine Hospital in October 2003 complaining of back pain she was not able to relate the pain to any particular mechanism and told that Hospital that she had not experienced low back pain in the previous three years. That does not demonstrate the “clear recollection of a significant change in her level of pain or of new pain” that Mr Sharland referred to when describing the “clear cut incident” that informed his opinion.
40. Mr Sharland, sensibly, considered that the injury from the lifting incident was in a different category were it to be the case that Ms Kenny did not consult a medical practitioner in the aftermath of the incident. I am satisfied that she did not consult a medical practitioner. I am, as well, satisfied that she first consulted a medical practitioner, relevantly, for back pain in October 2003 and then not until January 2005. In these circumstances I am unable to rely upon Mr Sharland’s opinion on which Ms Kenny’s case relies.
41. I do not doubt that Ms Kenny genuinely experiences pain and now genuinely believes that her account of events is accurate. But I am not satisfied that her present symptoms are related, in any way, to the lifting incident of May/June 2003 and, in particular, I am not satisfied that her present condition was contributed to, in a material degree, by her employment. It follows that I would affirm the decision under review.
42. I would add only that I have not relied, in coming to these conclusions, upon the evidence of what Dr Gibberd described as “psychosocial factors”. Those matters were not canvassed directly with Ms Kenny nor with Mr Sharland and it would be unfair to Ms Kenny to rely upon such matters. As I have said I am satisfied that Ms Kenny was and is genuine, albeit that her recollection is faulty.
    

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .............[Sgd]..........................................................

Associate

Dates of Hearing 30 September 2010 (Darwin) &

13 December 2010 (Brisbane)

Date of Decision 31 January 2011

Counsel for the Applicant Mr D McConnel

Solicitor for the Applicant Halfpennys Lawyers

Counsel for the Respondent Mr C J Clark

Solicitor for the Respondent Dibbs Barker

---

[1] The definitions were subsequently amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (No. 54, 2007) however those definitions apply in relation to diseases, injuries or aggravations suffered on or after 12 April 2007.

[2] Exhibit 1, pages 42-44.

[3] Exhibit 1, pages 26-28.

[4] Exhibit 1, pages 30-31.

[5] Exhibit 1, pages 36-38.

[6] Mr Sharland continues the age-old practice of surgeons of eschewing the title “Doctor”.

[7] Transcript page 43, lines 35-40.
[8] Transcript page 47, line 36 to page 49 line 28.

[9] Transcript page 57, lines 21-26.