Alsco Services Pty Ltd v Q-COMP [2011] QIRC 21

CITATION: Alsco Services Pty Ltd v Q-COMP (WC/2009/83) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Alsco Services Pty Ltd AND Q-COMP (WC/2009/83) DEPUTY PRESIDENT BLOOMFIELD 17 March 2011 DECISION Introduction [1] This decision concerns an appeal by Alsco Services Pty Ltd (Alsco) against a decision of the Review Unit, Q-COMP (Q-COMP), dated 17 September 2009, to uphold an appeal by Ms Ilene Casigan against a decision of WorkCover Queensland (WorkCover), given on 25 May 2009. The review decision refers to an application lodged on 14 April 2009. However, the Application for Compensation, tendered in these proceedings as Exhibit 1, is dated 20 May 2009. [2] The tendered Application for Compensation, which is typed and appears to have been completed within WorkCover itself, describes the injury as "lower back, trauma to muscles" which was suffered while "I am catching sheets that time when I feel the pain of my feet and legs.". This differs from the handwritten Application signed by Ms Casigan (provided in a bundle of documents at the start of the proceedings, to assist the Commission), dated 14 April 2009, which records the nature of the injury as "lower back". Relevant legislation [3] The Workers' Compensation and Rehabilitation Act 2003 (the Act) relevantly provides: "31 Meaning of event 1) An event is anything that results in injury, including a latent onset injury, to a worker. 2) An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker. 3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period. 4) If multiple injuries result from an event they are taken to have happened in 1 event. 32 Meaning of injury 1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … 3) Injury includes the following: (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation. … 4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. 33 Application of subdivision 3 This subdivision does not limit the circumstances in which an injury to a worker arises out of, or in the course of, the worker's employment. -- 1 of 23 -- 2 34 Injury while at or after worker attends place of employment 1) An injury to a worker is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment - (a) while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer's trade or business;". Nature of the Appeal [4] The appeal to the Commission is by way of a hearing de novo. It is the Appellant, Alsco, which bears the onus of proof on the balance of probabilities (see State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne1; and Qantas Airways Limited v Q-COMP2 ). In the latter case, Commissioner Blades explained the onus or burden of proof where an employer is the Appellant, as follows: "… (an employer is required to) raise, by way of admissible evidence, those matters upon which it relies to escape liability. The worker is not a party to the proceedings so it is probably not right to say that the worker has any onus of proof but the factual situation must be found to exist as will bring the worker within the provisions of the Act. That factual situation must be on the balance of probabilities.". [5] In order to succeed in its appeal, Alsco must establish at least one of the following points: • that at the relevant time Ms Casigan was not a worker within the meaning of the Act (this point is conceded and is not argued); or • that at the relevant time Ms Casigan did not sustain a personal injury; or • that if Ms Casigan did sustain a personal injury then that injury did not arise out of, or in the course of, her employment; or • that if Ms Casigan did sustain a personal injury then that injury was one to which the employment was not a significant contributing factor. [6] Because the matter is a hearing de novo, not a review of Q-COMP's decision, it is necessary for Q-COMP to establish on the balance of probabilities that Ms Casigan did suffer a personal injury that arose out of or in the course of her employment and that the employment was a significant contributing factor. Lay Evidence led by Q-COMP [7] In order to "set the scene", and to ensure that all other evidence could be considered in context, it was agreed that Ms Casigan would present all of her evidence first, followed by the other witnesses. [8] In the course of her examination-in-chief Ms Casigan described her work history with Alsco, as follows: • she originally commenced work with Alsco on 31 May 2004 and had subsequently worked in the sorting, dispatching, towelling and sheet catching areas before becoming a team leader/supervisor in the sorting area; • in approximately early March 2009 she asked to be moved from this role and was placed back into the sheet catching area. She was working in this area when she suffered her injury on 24 March 2009; • her hours of work were 6.00 a.m. until 2.30 p.m. on Mondays and 6.00 a.m. to 2.00 p.m. on the other days of the week. Work was regularly performed on Saturday until 2.00 p.m. and overtime was also performed on the other days of the week as required; • in September 2008, while performing her team leader/supervisor role, she experienced some issues with her left foot. Her doctor requested an x-ray and referred her to a podiatrist, but that person was unable to resolve the issue with her left foot; • after that incident she always wore a foot support to support her left foot; and • her request to be relieved of the team leader/supervisor role in early March 2009 was because it was too hard for her, as a woman, to cope with the carrying, lifting and pushing required in the role. [9] Ms Casigan described the work she performed in the sheet catching area, from early March 2009, as follows: • collecting sheets, which had been ironed and folded, off a conveyer belt and lifting those sheets onto a sorting table (at about waist height); • sorting the sheets into nine separate piles depending on their size (king, queen or single) and quality (100% cotton, 75% cotton and 50% cotton); 1 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne 172 QGIG 1447. 2 Qantas Airways Limited v Q-COMP 181 QGIG 301. -- 2 of 23 -- 3 • taking a bundle of sheets (between six and ten depending on size and quality) to a "binding" machine which placed a tie around one end of the bundle of sheets then reversing the bundle and allowing the binding machine to place a tie around the other end; • taking this bundle of sheets to a trolley and placing it on the trolley in a particular pattern, based upon the size of the sheet; • the lower shelf of the trolley was approximately 30 centimetres off the ground and it was necessary for her to twist and bend in order to place the bundle of sheets onto the trolley in a pattern which prevented them from tipping over; • because of her height (153 cms), it was also necessary, when the trolley was almost full, for her to "flip" some bundles of sheets from a position which was about level with her shoulder on to the top of the other stacked sheets; • once a trolley was full it was necessary to manoeuvre it by pushing and pulling it out of the way in order that an empty trolley could be brought nearer to the binding machine. The steel wheels on the loaded trolley made it difficult to manoeuvre across the concrete floor. "We were always complaining about the wheels because it's too hard for us to push those trolleys …."; • in order to move the trolleys she had to apply all of her strength, which involved using her legs. Sometimes she had to ask other workers to help her push the trolleys; • while she was sorting, binding and stacking sheets, then shifting the trolleys, new sheets were continually coming onto the conveyer belt. There were three people filling the machine but only one person "catching". "You can do your job, you can tie up, you can sort it out but they're still feeding … (you) still keep going, keep going, keep going. … it's a 100 percent physical. … Yes, it's the same routine. It's the same routine …."; and • there was also a lot of carrying. "If you catch the sheets about 3,000 in a day for eight hours, you have to multiply it by three because you had to carry it three times.". [10] Ms Casigan also said that Alsco had not provided any manual handling training in relation to any aspect of her role at any time during the course of her employment. [11] In relation to the event which triggered her application for workers' compensation (as well as some subsequent events) Ms Casigan indicated: • at around 11.00 a.m. on 24 March 2009 "I feel pain with my left foot, that's why I talked to my supervisor and I couldn't catch (sheets) in the afternoon anymore, because I feel pain with my left foot." (Transcript 3-45); • at the time she felt the pain she was working in the sheet catching area; • she had felt pain in the past but felt "sudden pain" on that day "… and I couldn't step my left foot anymore, so I just decided to talk to my supervisor that I couldn't catch the sheets in the late afternoon because of the pain." (Transcript 3-45); • after speaking with the supervisor, "who didn't say anything", she was redeployed to the sheet feeding area; • she was still in pain when she finished her shift, as well as later that day and into the night; • on the following day she started work at 6.00 a.m. (the Transcript says 7.00 a.m. but this is an error) but finished at 9.00 a.m. "because I couldn't handle it, the pain, anymore."; • she went to see the supervisor and told him, and the production manager, that she had to see a doctor; • the pain she was experiencing that day was worse than the previous day. "… I start feeling pain in my left foot … then it's going up to my leg … to my bum … and once I step my left foot and it doesn't like it, it feel - all the muscle it's shaking … so I couldn't walk properly." (Transcript 3-47); • she saw Dr Borlado at the Wuchopperan Medical Centre (the Medical Centre) and told him about the pain in her left foot running to her legs up into her buttock. (Transcript 3-47 to 49) He gave her a prescription to stop the pain and referred to her a physiotherapist. He referred her for an x-ray (on 30 March 2009); • ultimately, at her request because she was worried about her spinal cord, she was referred for a CT Scan on 23 April 2009. The CT Scan revealed she had an ovarian cyst, which was removed by surgery on 20 July 2009; • in the period between March 2009 and July 2009 she experienced pain every day (Transcript 3-50). It was "getting worse and worse." (Transcript 3-51); • this pain "always started in my feet. … It's always going up, that's why I was just wondering why I still on pain when I do all those physiotherapy and that's why I ask my physiotherapy where is those pain coming from. That's what they find out in the x-ray that my L4 and L5 it's been regenerating and (indistinct) - what they call it - sciatic nerve, that's what they explain it to me." (Transcript 3-50); • despite the surgery to remove the cyst the pain had not stopped. At times it was "very, very bad", although it was "on and off, on and off." (Transcript 3-51); and • since the surgery the pain (is) "… always in my left foot, started in my left foot, yes, it's going up to my back already. … sometimes it's just an electric, it's jumping. One in the left foot, it's running here, so …." (Transcript 3-51) (Ms Casigan ran her hand up the outer part of her left thigh to her upper buttock). -- 3 of 23 -- 4 [12] Under cross-examination Ms Casigan provided the following evidence: • she denied receiving any manual handling training at the time she commenced employment, saying she had only been given an orientation; • she denied receiving additional training in manual handling on 2 December 2008, although she accepted she signed an attendance sheet which purportedly showed she had participated in a module of training titled "019 - Manual Handling/Ergonomics" on that date; • the pain she experienced in her left foot in September 2008 was in the sole of the arch of her left foot; • she told Dr Edwards in October 2009 that part of the reason she wanted to move from being the team leader/supervisor to the catching area (in early March 2009) was because of the persistent pain in her left foot; • she also appeared to concede (see Transcript 3-62 to 63) that she told Dr Edwards in October 2009 that her left foot pain and mild limp had progressed, coming and going, getting better and worse, between September 2008 and early 2009. However, she also indicated "yes, I'm still in pain, that pain, but it's on and off, on and off." (Transcript 3-62); • she didn't tell Alsco that part of the reason why she wanted to be transferred from the team leader/supervisor role was because of the foot pain. The reason she advanced to the employer was her frustration at the number of staff changes and having to train the new staff members as part of her job; • she denied complaining to her supervisor on 24 March 2009 of a sore and "swollen" left foot, saying that she had only told him her foot was in pain; • rather than telling the health worker at the Medical Centre, which she attended on 25 March 2009, that she had pain in her left groin area going down to her left foot (as recorded in the records of the Medical Centre - Exhibit 27) she told the person that the pain had actually started in her left foot and gone up to her groin area (Transcript 3-64); • Dr Borlado checked her foot on 25 March 2009 and asked her where the pain was coming from. Apart from this, there was no other examination (by him) on that day (Transcript 3-64 to 65); • she didn't ask for a workers' compensation certificate on this date. She applied for compensation two weeks later because she couldn't go back to work (Transcript 3-66); • she told a physiotherapist at the Cairns Base Hospital in November 2009 she had experienced a previous episode of left leg pain in 2008 but couldn't afford the orthotics that had been recommended to her; • she told the same physiotherapist that the pain had started in her left foot, but there had been no specific incident, and then it was associated with left leg and back pain; • she also told the same physiotherapist that she had intermittent sharp pain in the back of her left thigh and some tingling and numbness, but no pain, in her left foot; • she told Dr Pentis, who she saw in early 2010, she had numbness, or a change in the sensation, in her (left) foot and leg in March 2009; • she denied any feeling of numbness in her leg when she saw Dr Shepherd in October 2009 because she couldn't feel any numbness that day; • she also told Dr Shepherd in October 2009 that her back pain had improved but she still had foot pain that felt worse at the end of each day as well as after she had been sitting for a long time; • on 20 October 2009 she saw Dr Borlado at his practice and told him that she still had back pain, even when just sitting upright; • on 2 November 2009 she presented at the physiotherapy department of the Cairns Base Hospital for treatment of back pain; • on the following day she requested a clearance for work at the Medical Centre and was given a clearance for light duties; • apart from several shifts she performed on suitable/reduced duties in late 2009 she hadn't worked at Alsco since 25 March 2009; • on 15 March 2010 she presented at the Accident and Emergency Department of the Cairns Base Hospital complaining of back pain. However, the back pain was diagnosed as a possible urinary tract infection. She asked the doctors could a urinary tract infection cause her to pass out or be the cause of a collapse she had apparently experienced. She had been suffering very bad back pain, until she couldn't cope with it, and went to the Emergency Department to get medicine; • apart from the occasional Panadol between 11 June 2009 and 2 November 2009, when she went to the Cairns Base Hospital, she had not received treatment of any type for leg or back pain. Equally, since she finished her physiotherapy at the Cairns Base Hospital in December 2009 she had not received any treatment for leg or back pain; and • she continued to have intermittent left foot, leg and back pain "from at least September 2008 until the present time." (Transcript 3-71). [13] Under re-examination Ms Casigan said she had an Interpreter with her when she spoke to Dr Pentis but did not have anyone else with her when she spoke to Drs Shepherd and Edwards, respectively. -- 4 of 23 -- 5 Lay evidence led by Alsco [14] Ms Alison Guthrie is an Occupational Therapist who is engaged in private practice in Cairns. Ms Guthrie conducted what was described as a "Critical Task Analysis - Catching at Ironer & Processing Incoming Soiled Linen" on 21 October 2009 at the request of Alsco. The analysis was based on observations of the work being performed in each area over a two hour period. [15] Ms Guthrie's description of the work performed at the ironer was very similar to Ms Casigan's description (above). However, there were some differences, as follows: • there are two ironing machines (one of which is called the "Lapaw" ironer and the other is referred to as the "Image" ironer) with two feeders and one catcher at each machine. There is also a "floating" operator who assists the other workers; • the work pattern is 6.00 a.m. - 8.30 a.m., a rest pause between 8.30 a.m. and 8.50 a.m., work between 8.50 a.m. and 11.30 a.m., a half hour lunch break followed by work between 12 noon and 2.00 p.m. Overtime to 4.00 p.m. is worked approximately three days each week; • the operators at each ironing machine rotate at each break; • the number of sheets taken to the wrapping machine varies between five and ten (presumably based on size); • the catcher is not the sole person who moves fully loaded trolleys out of the way. This procedure is often also performed by the floater and the immediate supervisor; • stacks of sheets moved from the conveyer and then to the strapping machine weigh approximately ten kilograms; and • the nature of the work has changed since Ms Casigan last worked at Alsco in that the number of conveyors on the Lapaw ironer has been reduced from two to one. [16] Critical analysis of each of the tasks performed by the catcher indicated that limited risk factors (as classified and described by the Manual Task Code of Practice 2000) exist with reference to: forceful exertion, working postures, repetition and duration, work area design, nature of loads and load handling. Ms Guthrie opined that if correct work techniques were used the risk of low back injury would be low. However, in certain tasks, there would be an increased risk for workers who were taller than average as more stooping/bending forward would be required. [17] Ms Guthrie also said she was aware of a previous assessment of the work, undertaken on 9 October 2008, where the total risk score was also assessed as being low. [18] Under cross-examination Ms Guthrie agreed that the risk of injury was low if the workers concerned used correct techniques. She also agreed that even if correct techniques were used it was still possible for a worker to experience lower back pain and/or aggravate a pre-existing injury. [19] Ms Guthrie was also unable to shed any light on a version of her report, disclosed during the discovery process, which had some hand-written notations adjacent to the part where she mentioned that the ironing machines discharged mixed sheet sizes in stacks of approximately six items weighing approximately ten kilograms, where someone had written "10 king 12.65, 10 queen 11.3, 10 single 8.65, mixed average 10.8 kilograms.". She said her recollection was that the catcher collected six mixed sheets and took them from the conveyer to the table for sorting. The workers involved had informed her that they weighed approximately ten kilograms. [20] Mr Richard Tomasich is the Operations Manager at Alsco having previously served as Linen Conservation Manager and Production Manager. He is also the Workplace Health and Safety Officer, as well as a Rehabilitation Co-ordinator. Although he had only worked with Alsco for ten years he had worked at the same place of employment for 18 years. [21] Mr Tomasich had an independent recollection of his discussion with Ms Casigan on 24 March 2009. Ms Casigan was catching sheets on the Image ironer and "consulted" him saying she had a sore foot. She showed him her foot and he remembered it was swollen around the ankle. She asked to be assigned to some other task because she was finding it difficult to catch sheets. Mr Tomasich could not recall exactly where she was moved to but thought it might have been feeding pillow cases into an ironer. [22] On the following day he had a conversation with Ms Casigan at about 9.00 a.m. when she told him that the pain was now down her leg and into her foot and that she wished to consult a doctor. He agreed that she should go and see a doctor. It was noticeable that she had a limp. -- 5 of 23 -- 6 [23] In the course of his other evidence-in-chief Mr Tomasich said: • the Cairns' operation of Alsco had never used metal wheels on any of its trolleys. Most of them were made from Neoprene, with a smaller number of delivery trolleys having rubber wheels for specific clients like the Cairns Base Hospital; • the sorting table, which was about waist height, was roughly six inches (15 cm) higher than the strapping machine as well as the conveyor on the ironing machine; and • engineers and other qualified personnel regularly undertook inspections of the equipment as well as workplace processes in order to make improvements. [24] Under cross-examination Mr Tomasich rejected the proposition that Ms Casigan spoke to another team leader, rather than him, on 24 March 2009 about changing her duties. He also rejected the contention that Ms Casigan had not shown him her swollen foot on that day stating that "when she consulted with me she actually came over and pulled her sock down and I could see the swelling of the top of the foot and the ankle.". Medical evidence [25] Dr Graeme Edwards (called by Alsco) is a specialist in occupational and environmental medicine and Director of Occupational Medicine of "Health for Industry". He graduated from the University of Queensland in Neuro-anatomy and Neurophysiology in 1980 and in Medicine in 1984. His specialist interest is in occupational medicine, which he has practised since approximately 1983. Dr Edwards said he was qualified to give evidence about referred pain from pelvic nerve and/or sciatic nerve irritation on the basis his research degree, completed during his medical science studies, which concerned the anatomy of the nervous system and the physiology associated with those nerves from the distal organs inside the abdomen and pelvis into the central nervous system and how the anatomy and physiology interrelated. Further, as a specialist in occupational medicine he was dealing with pain conditions virtually every day in the role of a treating physician. He also said he possessed the requisite expertise to give evidence about referred pain from pelvic nerves, including whether they were from a gynaecological cause, a gastro-intestinal cause or any other cause. [26] Dr Edwards said he had been asked by Alsco to assist them to understand the nature of the problem they were facing because they had an apparent work-related injury which did not make sense to them in terms of the risk exposure to that individual (and to others) or the nature of the pathology that the individual was experiencing. He was engaged to assess the situation and then to help them understand the medical issues involved, as well as the implications which arose from that on their duty to develop a safe workplace. [27] At the request of Alsco, Dr Edwards assessed Ms Casigan on 14 October 2009, after which he undertook a workplace inspection in order to better understand the issues involved. The purpose of the assessment, as explained to her, "was to help define the nature of her problems so that her employer could understand and safely manage her situation.". In a report (Exhibit 9) written on the following day, Dr Edwards stated: • the symptoms in Ms Casigan's left foot and back first arose while she was performing the team leader role in the sorting area; • initial investigations by her GP in September 2008 resulted in a referral to a podiatrist. The treatment by the podiatrist failed to improve the symptoms; • on specific questioning Ms Casigan described a progressive deterioration in function, associated with a pain that waxed and waned, eventually developing a limp (which sounded like a painful mild foot drop) and an inability to cope with the variabilities of demand as a leading hand in the sorting section; • as a result of her frustration at having to continually train new staff members, her frustration at having to do more hands-on work because of the inefficiency of the new staff and the frustration associated with leg symptoms, respectively, she sought a change in her employment; • she only advised Alsco about the staff issues, not her continuing foot and leg problems; • Ms Casigan reported a long history of reduced bowel frequency (intermittent constipation) which her GP advised was related to her age and diet; • Dr Edwards conducted an examination, using a modified Kraus Webber methodology, which revealed gross interior abdominal and core stability weakness (more than pain limited power); • Ms Casigan was wearing an elasticised abdominal band that gave her a sense of increased support in her back. He advised her about the hazards of abdominal bands and the propensity for them to delay rehabilitation; • Ms Casigan was not presently fit for her usual task requirements due to the gross de-conditioning typically associated with major pelvic and intra-abdominal surgery. It normally took six to nine months, and in some cases 18 months, for someone to get as well as they could after surgery of the type undertaken by Ms Casigan; • if there was a strain in March 2009 it would have resolved itself long ago, as there is no evidence on the MRI of a significant underlying problem with her back that might delay a recovery; -- 6 of 23 -- 7 • Ms Casigan's continuing disability relates directly to her significant pelvic pathology (not any alleged work related injury); • "From my direct observation of the relevant roles performed by Ilene, it is NOT biologically plausible for either roles to primarily cause 'a back strain injury'." (Set out is as per Dr Edwards' letter); • the history as related by Ms Casigan was predominantly of left leg symptoms, not back pain; • he concurred with Dr Bordalo (sic) that Ms Casigan's symptoms were consistent with intermittent sciatic nerve irritation; and • he respectfully disagreed with the explanation of the symptoms offered by Dr Bordalo (sic), stating: ¾ "There was NO observed (or speculative) biophysical demand arising from her work that might have caused any acute muscle strain of her lower back (as described by Dr Borlado). ¾ Acute injuries are always associated with acute events. There was NO specific reported incident involving lifting, bending or twisting under load of the type necessary to cause a 'strain' injury. The only possible physical demand that might cause a 'strain' is bending to pick up dropped sheets but this activity was NOT identified by Ilene as being associated with her onset of severe symptoms. ¾ The symptoms in the leg and back pre-date the date of reported injury. ¾ The CT scan films reveal only part of a very large bilateral pelvic pathology that is clearly multi- loculated and extensive on the left as well as the right side of the pelvis. The reference in the report to calcification on the right side only implies a potentially sinister cause, not that the right side only is involved. ¾ A pelvic mass is a biologically plausible explanation for both her back and leg symptoms. ¾ While Dr Borlado indicates Ilene was asymptomatic before her alleged work injury, that is not the story she expressed to me. Nor is it consistent (with) the implied treatment and response to her treatment by the podiatrist.". [28] Dr Edwards said that the initial assumption of the treating practitioners was that the point of irritation was in the back. However, the investigation, specifically the MRI, clearly indicated that there was no biologically plausible point of contact between a structure in the back and the nerve root to explain: • the symptoms that she was initially complaining about before "the incident" (of 24-25 March 2009); • the symptoms that she continued to complain about after the incident; • the symptoms that she complained about before and after her surgery of the pelvis; and • the symptoms that she continued to complain about after October 2009. "The entire sequence of events did not point to a point of contact causing irritation in the back to the sciatic nerve." (Transcript 4-13). [29] He said that there was very clear, consistent, evidence in the medical records, from the examinations and the history revealed by the worker, that she was getting irritation of the sciatic nerve, "we just didn't know where". Dr Edwards concluded that the most likely cause of the sciatic irritation was the pelvic mass, saying "Yeah. Undoubtedly, head and shoulders above any other possibility." (Transcript 4-13). [30] Dr Edwards also confirmed he had written a second report (Exhibit 10), dated 20 June 2010, in which he commented on additional medical records made available to him for his consideration, as follows: • short report by Dr David Shepherd, Orthopaedic Surgeon, dated 30 October 2009; • report by Dr John Pentis, Orthopaedic Surgeon, dated 18 March 2010; • record of attendances by Ms Casigan at Pro-Arch Podiatry, between 19 September 2008 and 3 October 2008; • records of the Medical Centre between 22 September 2006 and 22 February 2010; • records of the Cairns Base Hospital Physiotherapy Department dated 2 November 2009 to 9 December 2009; • records of the Townsville Health Service District from 20 July 2009 to 15 March 2010; and • a medical certificate issued by Dr Dhobha, Cairns Base Hospital Emergency Department, on 14 March 2010 and discharge summary by Dr Stewart (Intern) dated 15 March 2010. [31] On the basis of his consideration of the above reports and records Dr Edwards reached the following opinion and conclusion (pages 7-8 of Exhibit 10): "Opinion 1. The Townsville Hospital operation report (20 Jul 2009) details significant pathology in the pelvis overlying the origin of the left sciatic nerve that readily explains Ms Casigan's recent medical history. -- 7 of 23 -- 8 2. To paraphrase an anatomy textbook (Gray's Anatomy3) describing the relationships of the sacral plexus as it forms the sciatic nerve: a. it lies on: the wall of the pelvis created by the piriformis and psoas muscles (which were noted to be involved by the physiotherapists, and to which the surgeons noted the pelvic mass was adherent); b. immediately behind: the internal iliac vessels, ureter, and sigmoid colon on the left (two of these structures were noted by the surgeons to be involved in the pelvic mass adhesions), and the terminal coils of the ileum on the right (near the appendix that was also caught up in Ms Casigan's pelvic pathology). 3. There was no recorded attempt to explore the sciatic nerve and treat any possible involvement with the pelvic mass pathology. I suspect this was due to: a. the difficulties experienced at the time of surgery, and b. 'no consciousness' by the gynaecological surgery team (in Townsville) that the sciatic nerve irritation was the symptom that brought the pelvic pathology to medical attention (in Cairns). 4. The medical history since I saw this worker on 14 Oct 2009 suggests continuing problems associated with nerve irritation in the pelvis. This individual might benefit from an MRI specifically assessing the course of the left sacral plexus / sciatic nerve in the pelvis. Conclusion The additional medical evidence provided by the Townsville Hospital was illuminating. It indicates that the area of the pelvic wall, across which the sacral plexus / sciatic nerve traverses, was involved in the adhesions associated with the endometriomas. It also indicates that the sciatic nerve was not assessed at the time of surgery. This readily explains the continuing symptoms reported by this individual as documented by the various practitioners since involved in her care. Consequently: 1. In the absence of any significant pathology evident in the back, and 2. where a critical assessment of the occupational hazards to which this worker was exposed failed to identify plausible exposure at work that could explain her recorded symptoms and signs, and 3. in the presence of identifiable pelvic pathology that can readily explain the history recorded by multiple practitioners; 'work' is not considered 'a significant contributing factor to the injury'. 'Work' is not even a plausible 'possibility' to explain this worker's pelvic pathology which is 'the cause' of her situation.". [32] This opinion and conclusion was summarised in his oral evidence as follows: "All of the medical evidence that related to … the pre-incident, post-incident, pre-surgery (and), post-surgery is consistent in demonstrating irritation to the sciatic nerve. The pathology identified by the operative findings at the Townsville Hospital clearly indicate significant pathology, in particularly the endometriomas adherent to the pelvic wall, in the proximity of the sciatic (sic) plexus which is the origin of the sciatic nerve. So it just reinforced very clearly that the point of irritation to the nervous system was in the pelvis.". (Transcript 4-14) [33] In response to further questions in his examination-in-chief Dr Edwards stated: • the common source of irritation of a nerve root is bulging or prolapse of the disc, hitting the nerve. Something of the order of 95-98% of cases of nerve root irritation originate at that location and involve mechanical or chemical irritation. Mechanical irritation depends upon the mechanics of the movement. In this particular case the discs were not of the character that would cause mechanical or chemical irritation of the nerve roots in the back. This view was supported by the CT Scan organised by the treating practitioner and the MRI he organised prior to examining Ms Casigan on 14 October 2009 (Transcript 4-19); • the piriformis muscle runs from inside the pelvis out to the femur through the same hole that the sciatic nerve traverses. The psoas muscle also runs from inside the abdominal and pelvic space out to the muscles controlling the femur. Both of these structures were noted by the physiotherapist to be involved in the symptoms being experienced by Ms Casigan. The surgeon's report from Townsville Hospital showed the pelvic mass which was removed was attached to those same structures. By logic, if a pelvic 3 Warwick R and Williams P (1973) Gray's Anatomy 35 th Edition, Longman Group Ltd, London p1054. -- 8 of 23 -- 9 mass is attached to the very structures on which the sciatic nerve and the sacral plexus is lying then the sacral plexus and the sciatic nerve is intimately involved in the pathology (Transcript 4-21); • the records of the Townsville Hospital were noteworthy because of their description of the "sheer magnitude" and nature of the total hysterectomy performed on 20 July 2009. While her medical practitioners initially focussed on the ovarian cyst, the primary problem dealt with by the surgeons concerned the endometriomas which, in effect, had become a solid mass of tissue which had adhered to a whole lot of the surrounding structures. The surgical records noted there was a difficult dissection off the rectum and the pelvic side walls, as well as the existence of bilateral endometriomas adherent to the sigmoid colon. The sigmoid and rectum were the structures sitting right next to the sacral plexus. "… there's no way that a mass of that nature would not have some impact upon the function of the sacral plexus. In my professional opinion, it's not just possible for it not to have some effect. Whether there was clinical experience of that by the patient is a different question again.". However, there was a report of chronic constipation. "In hindsight, knowing what I know now, that symptom was actually due to the blockage, or relative blockage, of the bowel." (Transcript 4-22 to 26); • the sensations in Ms Casigan's foot could be readily explained by the nerve root being irritated in the pelvis. The pain experience she described, the nature of her limp and the location of the pain in her foot could be referenced to the S1 - L5 nerve roots, which are the main nerve roots of the sciatic nerves (Transcript 4-26); • Ms Casigan's description of intermittent experience of symptoms could be explained by the location of the pelvic mass. It was subject to gravitational force. It was also subject to the degree of fullness of either the bladder or the rectum or her bowel. Her symptoms would naturally vary depending on the circumstances of the moment. Her posture would also be relevant. How much she bent her back, bent her hip, the position of the pelvis and so on, would all give potential variance to the symptoms she experienced (Transcript 4-26); • because of the way that nerves, particularly the sciatic nerve, and nerve endings work a lot of the symptoms that any one individual experienced with pain was not because of the primary pathology at the point of pain but as part of the reaction to it. In the case of the sciatic nerve, because its companion nerve goes into the back, any irritation of that nerve, anywhere in its path, would lead to a reactive phenomena in the individual's back. This increased sensitivity in the back resulted in the nerve endings being sensitive to touch. You could also get irritability of the muscles so that the tone of them could change. You could get spasms, you could get twitches, you could get fasciculations in those associated muscles. Just because someone reported tenderness in their back did not mean that their back was the primary source of the irritability. It only meant that the nerve supply to that area was involved, and that was the situation in this case (Transcript 4-27 to 30); • the physiotherapy entries from the Medical Centre records were entirely consistent with his hypothesis. Rather than the back, there was a different locus of irritation to Ms Casigan's sciatic nerve (Transcript 4-31); • that this was the case was confirmed by the records of the physiotherapy department of the Cairns Base Hospital. These records revealed that Ms Casigan received benefit from therapy involving "neural glides", or "neural stretches". A neural glide was an exercise where you attempted to free up "the tube" through which the sciatic nerve slides. Every time a joint moved there was going to be a bit of movement of that nerve. As you improved the mobility of the nerve then the degree of irritation reduced. The fact that the physiotherapist reported that the neural glides improved Ms Casigan's symptoms reinforced that there was an anatomical irritation to the nerve rather than the back, which could not possibly have been the cause because there was no structure in her back to explain her symptoms (Transcript 4-31 to 33); • in this case his concern was that there was still some scarring (or residual adhesions) in the wall of the pelvis that created some irritation to the sacral plexus/sciatic nerve. She had responded to a treatment modality which helped free up the nerve and whether she continued to experience further symptoms would depend upon her diligence to maintain the neural stretch exercises. There were two explanations as to why the sciatic nerve was (now) being irritated. There was scarring that wasn't addressed until the physiotherapists "did their bit" (in November 2009) or there could still be some endometriotic tissue which was touching the nerve. The extent of the fullness of the bladder, bowel and the like could also contribute to the nerve irritation (Transcript 4-33 to 34); and • he disagreed with Dr Pentis' view that Ms Casigan may have a disc prolapse or a disc problem, stating mechanical low back pain is "a very, very different beast from someone who has documented evidence over a series of time (sic) by multiple medical practitioners that there is a sciatic nerve involvement." (Transcript 4-36). [34] Following Dr Edwards' examination-in-chief the following exchange occurred between him and the Commission as presently constituted: "Deputy President: Do you have a view about any injury to the disc or around the disc and the exhibiting of pain and problems in the left foot? -- 9 of 23 -- 10 Dr Edwards: Unless there is irritation of the nerve root, you won't get referred pain to the foot. The classic referred pain from low back pain is into the buttock or into the thigh. One of the key features that I've always been taught and I teach my students and junior doctors is that if the pain does not go past the knee think twice about physical irritation to the nerve. So the fact that this woman had symptoms in her foot tells us that there is a very clear irritation to the nerve somewhere in its path. It doesn't tell us where, it just tells us it's somewhere and then the subsequent investigations reveal it's actually in the pelvis. Deputy President: So a mechanical type cause to the - sorry, I'll get this right - if there is something mechanically wrong with a person say in the L5 to, I think we're talking about S --- ? Dr Edwards: -- S1. Deputy President: If there was a mechanic problem in that area ---? Dr Edwards: Yes. Deputy President: -- you would expect it not to go below the knee, from what I understood you to say? Dr Edwards: If there's just a pure mechanical cause, local cause for some back pain, irritation in the muscle, it would not go past the knee. Deputy President: And that would include a prolapsed disc ---? Dr Edwards: Exactly. Deputy President: -- bulging disc and the like? Dr Edwards: Yeah. Regardless of the pathology, if it's still up in the back … and down into the thigh, I'm still looking at the primary problem being in the back. Deputy President: Okay. But if it gets below the knee? Dr Edwards: Then I've got to look at the nerve root in its entire path." (Transcript 4-36 to 37). [35] Under cross-examination Dr Edwards stated: • prior to March 2009 Ms Casigan had only experienced pain in her left foot and leg but after that there was mention of back pain coming into play. However, "when you go back into the story and you ask this individual what actually happened … there is no sentinel episode that 'this' happened, and it was of (such) magnitude that I couldn't do 'xyz'." (Transcript 4-52); • while the work being performed by Ms Casigan involved bending, twisting, bending down to pick up dropped sheets, carrying sheets from the conveyor to the sorting table and so on, "it still comes down to the magnitude of the forces and the resultant symptoms don't fit that this woman had a significant strain, sprain, tear, bulge, rupture of a disc, internal disc arrangement. It doesn't fit." (Transcript 4-52 to 53); • Ms Casigan had a "set of symptoms" documented by various practitioners over the course of time. The symptoms, which variously affected her bowel, her foot and her menstrual cycle, were intermittent. The explanation for these symptoms was the pelvic mass, which was a combination of endometriomas, endometriosis, uterine fibroids and ovarian cysts all scarred up, all matted together (Transcript 4-62); • when he reviewed the medical records in their totality all he saw was the natural progression of the pelvic pathology and its consequences. He didn't see any critical event. He didn't see any incremental change to label it as an aggravation. It was just the natural progression of what (we now know) was going on in this person's body (Transcript 4-62 to 63); • it was possible that her work activities could contribute to an aggravation of that pre-existing pathology but, equally, the pre-existing pathology could also have been aggravated by the fact she put her shoes on in the morning. It all came down to the relative magnitude of the contribution (Transcript 4-64); • the records of the Cairns Base Hospital physiotherapy department identified that Ms Casigan experienced symptoms associated with straight left leg raises, which was a clinical test relatively sensitive to sciatic nerve irritation. "You don't see impairment of a straight leg raise with mechanical back pain where you have range of movement less than … 70 degrees, and there are records in the physiotherapy notes to say that at one stage it was 45 degrees. That implies that there is a very clear irritation of the sciatic nerve." (Transcript 4-65); • degenerative problems with the spine, referred to by Dr Pentis, could be accelerated or exacerbated by what one encounters at work (Transcript 4-65); • the activities of the worker on 24 March 2009 may have exacerbated what was going on in her body but did not aggravate it (Transcript 4-67); -- 10 of 23 -- 11 • he did not comment on Dr Pentis' report where Dr Pentis recorded that when Ms Casigan went back to work on 25 March 2009 she had increasing problems which involved pain radiating up the leg as far as the buttock on the left side. This was because this description was consistent with sciatic nerve irritation, not a muscle strain type issue. As such, it was not necessary for him to comment on what Dr Pentis had written because Ms Casigan's symptoms did not relate to a back pathology, they related to a sciatic nerve problem, which was the point he (Dr Edwards) was making (Transcript 4-89); and • in his professional opinion, the exposure of Ms Casigan to occupational hazards, the nature of those hazards, and "the time course of her symptom experience, the pattern of her symptom experience, the dominance of the leg features as opposed to the back features, basically means that we are looking at a primary pathology in the pelvis irritating the sciatic nerve … That's the primary pathology, that's where the problem is." (Transcript 4-99 to 100). [36] Dr John Pentis (called by Q-COMP) is an orthopaedic surgeon. He examined Ms Casigan on 27 February 2010 for the purposes of providing a medical report, pursuant to Rule 428 of the Uniform Civil Procedure Rules, for Lehmann Featherstone Lawyers. [37] In his report (Exhibit 17), Dr Pentis recorded that Ms Casigan informed him she was working in the laundry, having to do a lot of folding, lifting, twisting, moving around and manhandling, when she noticed pain in the arch of her left foot. On the following day she had increasing problems with pain radiating up the leg as far as the buttocks of her left side. She was seen by a doctor who determined she did have some paraesthesia at the time. She was treated with a medicine, the name of which she could not remember. She also had x-rays followed by physiotherapy, which helped her situation. It was later found, on CT Scan, that she had an ovarian cyst. This was surgically removed but it hadn't improved her back problem. She had continued with her physiotherapy and been treated conservatively. [38] Currently, (i.e. as at 27 February 2010) she still has some pain in the arch of the foot and some pain radiating up into the buttocks of her left leg. At times she experiences difficulty sitting because of pain in the buttock area. She avoids lifting and has difficulty bending and twisting. She is not happy standing for periods of time and finds that she gets sore feet if she stands or walks for too long. She can walk for about an hour and a-half. She is 45 years of age, overweight but fit. She has not had any problems with her back or leg in the past. [39] On examination there was straight leg raising of 90% on the right and 90% on the left. Jerks were present at the knees, hard to illicit at the right ankle but present in the left ankle. There was tenderness in the lower lumbar region of the spine on the left side. Slight pain in the buttock if any. The CT Scan and MRI showed no major pathology. X-rays of her foot showed no major pathology. The MRI showed some sacralization of L5 but no gross disc protrusion. There was some mild degenerative bulging. [40] Dr Pentis opined in his report that "the lady has sustained injury to her left leg, more than likely the back rather than it being a planter fasciitis as diagnosed by one of the doctors in that it appears to have been an injury to the lower disc where she does have some pre-existing degenerative problems.". [41] In the course of his examination-in-chief Dr Pentis stated: • neither the CT Scan, the MRI nor the x-ray of her foot disclosed any major pathology. However there was some evidence of mild degenerative bulging at L5-S1; • the nature of the work described to him by Ms Casigan could aggravate a spine, especially one which had some degeneration. It could also cause an injury in its own right; • it was not possible to exclude the mechanical nature of her duties as being causative of her condition; • (Ms Casigan) "probably carried bundles of sheets, and they're not exactly light, so they can be doing a lot of them and I suppose they would - could give you a problem." (Transcript 4-75); • even if Ms Casigan had "a lighter load" that could still cause problems with the disc, especially one which had some degeneration, if the work was repetitive, involved twisting, leaning forward and picking up; • any pressure from the fibroid cysts and the like would have reduced once they were surgically removed. "If it was just outright pressure from that lesion on the nerves then it would get better. If there is some infiltration of the facia pressing on the nerves, well then it may not. So it's difficult to say with a hundred percent (certainty) whether it would or wouldn't, but if you relieve the pressure, the chances are that it would get better. … If taking out the fibroids didn't help, there's some other cause for it as well." (Transcript 4-77); and • he had recorded in his handwritten notes "osteoarthritis of the facet joints", which can be another source of pain but "it usually doesn't give you pain down the legs". However, most people have some arthritis in their spine at Ms Casigan's age (45) (Transcript 4-78). -- 11 of 23 -- 12 [42] When asked to comment upon Dr Edwards' hypothesis that it was the pelvic pathology which was the cause of Ms Casigan's symptoms, Dr Pentis responded: "Yeah, well you can't say with a hundred per cent certainty it's all due to the endometriosis, or fibroid, or whatever you want to call it. I had a look at the operation report and it says there was extensive adhesiolysis, and they had to dissect the rectum and pelvic side wall of it, but usually the sacral plexus, that's the nerve roots he's talking about, are sitting between the musculature at the back, the periformis, and there's a fascia covering it, and that's the iliac fascia. There doesn't seem to be a mention as to whether it went through the iliac fascia, or there was just pressure there or just adhesions there. So, it could be a cause. It may be the cause. It may not be the cause, it may be just a secondary finding which has added to her problems. Um - the way she presents and some of the stories, the story I've heard and the fact that when she was first seen she had pain in the hip to the knee, as well as the heel problem. It's the story you get with back problems at times too, so either one can cause it. It's just a matter of which one causes it definitively." (Transcript 4-75 to 76). [43] Under cross-examination Dr Pentis said: • at the time he wrote his report he had before him a number of medical reports (see page 3 of Exhibit 19) but had not reviewed the Townsville Hospital records. However, he had subsequently received and reviewed those records; • in response to a question about whether his review of the records of Ms Casigan's surgery would have altered his opinion about the possible cause of her symptoms Dr Pentis said, "Yeah. Well, they've been added into the differential diagnosis as a cause of some of her symptoms." (Transcript 4-81). His review "would have given me thoughts as to whether there was something else as well causing her problems." (Transcript 4-85); • neither the CT Scan or MRI showed evidence of a disc lesion or pressure on the nerve roots per se; • the degenerative changes he described at L5-S1 were no different to what he would expect to find in a 45 year old woman. However, some people had terrible degeneration and experienced no problems with their back while others, who had little degeneration, may still have problems (Transcript 4-82); • the difficulty experienced in eliciting a right ankle jerk during his examination of Ms Casigan was a sign of pressure on the nerve roots (Transcript 4-83); • Dr Edwards, who possessed post-graduate qualifications in neuro-anatomy and neurophysiology "probably" had the expertise to comment on referred pain from the pelvis; • Ms Casigan did not tell him, at the time of interview, that she had been getting left foot, leg and back pain intermittently since at least September 2008. Similarly, she did not inform him about missing her period or her constipation; • the cause of the signs and symptoms of sciatic nerve irritation is either pressure on the nerve root or damage to the nerve root, or the actual nerve when it gets into the buttock (Transcript 4-84); • apart from what Ms Casigan told him and the way she presented he had no other basis upon which to make his diagnosis; and • if he had been given other elements of her history "he could have added that to the diagnosis that there may have been some problems with that pelvic mass as well causing her symptoms. So, if you've got a nerve that is normal and you have a disc (issue) you will get some problems. If you've got a nerve that has some abnormal pressure or something else wrong with it, it may take less in your spine to cause symptoms and signs. But you're at a disadvantage having had that pelvic pathology, and that's not to say that that's the cause of all the problems that she has had, but it may be part of the problems that she's having." (Transcript 4-86). [44] Following his examination by Counsel for Alsco and Q-COMP, respectively, the Commission as presently constituted asked Dr Pentis a number of questions as follows: "Deputy President: Doctor, I have a question. It's been suggested in earlier evidence that if there is some issue with the vertebrae and/or the discs L4-L5, S1, S2, S3, S4 and S5, they do not involve any pain below the knee, most particularly no pain in the ankle. Do you have a view about that? Dr Pentis: Well, the ankle area is L5 and S1, so if you've got pressure on those then you will have symptoms below the knee. Above the knee is usually 2, 3 and possibly 4. Posteriorly it can be S1, S2 and S3. Deputy President: In terms of below the knee? Dr Pentis: Below the knee. It's usually around L4, L5 and S1. Deputy President: And what about in the ankle as described by Ms Casigan? -- 12 of 23 -- 13 Dr Pentis: Yeah, well, around the back it's S1, around the front it's L4 and L5. The inside is L4 and the outer side is L5. Deputy President: Can you clarify what you mean by the inside and around the back and so on there? Dr Pentis: The inside of the ankle, it's the inside of the ankle, that's the medial side; the outside is the lateral side which is L5, that's the outer side; and around the back is where your calcaneus and tendo-Achilles is and that's S1. Deputy President: So as I understand it, it's your evidence that if there is an issue in any of those parts of the vertebrae that I've mentioned from L5 down to S3 or 4 down to S5, that can involve some pain which exhibits in the ankle? Dr Pentis: Yeah, ankle and then heel. Deputy President: And in the foot? Dr Pentis: Heel, yeah, the heel and foot, specifically if you're getting pain in the heel it's either L5 or a bit of S1." (Transcript 4-86). [45] Dr David John Shepherd (called by Q-COMP) is also an orthopaedic surgeon, based in Cairns. He saw Ms Casigan at the request of WorkCover on 16 October 2009 and forwarded a report to that organisation on 21 October (although his report records "I saw (her) today."). In his report (Exhibit 21) Dr Shepherd stated: "Ilene describes pain in a number of areas around her body. The problems seem to begin in her left foot. This seemed to be in the region of her left heel. She first noticed pain in September 2008. There didn't seem to be a sudden traumatic injury at that point in time, but rather she simply noticed the pain. She saw a podiatrist, though this didn't seem to give great relief. In March this year her pain seemed to be more severe. I could not identify any particular injury or accident at that point in time which caused this change in her symptoms. She tells me she began noticing pain in her lower back and left buttock at that time too. … I note that she works in a laundry, and this involved unloading linen from trolley's (sic), and seemed to be fairly physically demanding. I note that an ovarian cyst was found when a CT scan was done of her lumbar spine. She tells me that she had surgery in Townsville in July to have this removed, though it didn't make any great difference to her symptoms. Currently her pain seems better than it was in March, she will still get some pain in her foot, particularly when rising after sitting for a time. She will also tend to get some pain at the end of the day. She denied any numbness in her legs. … I could not find any area of tenderness in the sole of her heel, or provoke her pain in any other way. I saw some CT Scan images on a CD and a copy of the CT scan report. There was no evidence of nerve root compression. I also had a report of an MRI scan available, though the images were not available to me. The CT scan report mentioned some mild degenerative change within the discs and suggested that there was no nerve root compression. … There is very little in the way of clinical signs when I examine this lady. Her lumbar spine moves well and does not seem particularly irritable. I could find no tenderness in her foot and not really provoke her pain by any means. So far her investigations also seem fairly unremarkable. I can see no evidence of nerve root compression in her lumbar spine. The most likely diagnosis of her foot pain is plantar fasciitis. She may well have some mechanical type low back pain as well. … I've seen some investigations of her lumbar spine as follows: Plain x-rays (30/03/2009); CT scan (24/04/2009); MRI scan (12/10/2009). These show some sacralization of the L5 vertebrae. The lumbar discs show good preservation. There is no evidence of nerve root compression. I believe this lady has had some plantar fasciitis effecting her left foot, though this is now essentially resolved. She also describes some mechanical low back pain. I cannot see any evidence of nerve root compression. She seemed to be essentially comfortable now but, is only performing a low level of physical activity. Because of her period of inactivity I believe she will be significantly de-conditioned. If she returns to work at her previous level of activity she is likely to get further pain. In other words she will need to increase her level of activity gradually, rather than suddenly. This gradual increase in activity will result in an increase in her level of physical fitness, and hence an increase in the -- 13 of 23 -- 14 amount of activity she can support in comfort. This however does rely on Ilene making sensible choices regarding her activities.". [46] In a subsequent letter to Q-COMP dated 30 October 2009 (Exhibit 22), Dr Shepherd wrote: "Thanks for your copy of your report from Dr Edwards dated 15/10/09. I have read through his report and his description of Ms Casigan's symptoms are essentially the same as my own. She had some pain in her left foot in late 2008, and low back pain from March 2009. I note that he could not identify any specific injury at work which provoked her problems. I note that activation of pain in the lower back can be a compensable injury, but I could not identify a specific cause for Ms Casigan's lower back pain in March 2009. I asked her on a couple of occasions regarding the causation of her pain but I could not identify any particular factor. Similarly however, I could not exclude her activities at work as a cause either. I believe Ms Casigan had mechanical type lower back pain in March 2009, but I am unable to say that work was a significant contributing factor.". [47] In another letter, dated 31 October 2009 (Exhibit 23), this time to WorkCover, Dr Shepherd responded to a number of issues raised with him a few days earlier, as follows: "Thanks for your e-mail dated 29/10/09. Q.2 - there is nothing clinically or in the MRI or CT to indicate that Ms Casigan has a lesion in her back that could account for her complaint of back, leg or foot pain. You are correct that I could not find any particular clinical signs when I examined Ms Casigan on 16/10/09, and her investigations are also normal. She could however have suffered symptoms in March this year and still have normal investigations and no clinical signs now. Q.4 - she may have suffered mechanical back (sic) from the nature of her work but you cannot state, on the balance of probability, that this is so, given the abdominal pathology that was subsequently identified. I believe this lady suffered mechanical low back pain in March this year. I think the abdominal pathology was asymptomatic and irrelevant to any clinical problem she has encountered. The causation of her back pain is more difficult. I could not identify any particular precipitant for it, but I could not really exclude work as a cause for it either. Q.5 - If Ms Casigan suffered mechanical back (sic) from the nature of her work, would it be reasonable to conclude that the effects of any work component of her back pain would have resolved within, say 4 weeks (there was no event per se, there was no acute onset of pain). I was not able to really identify a date when Ms Casigan's back pain settled. It seemed to be present in March but not present now. She remained off work at the time I saw her yet, her back seemed comfortable. I do not know why she had not returned to work, if her back pain had resolved. Q.6 - The question as to the ongoing cause of her back pain does not need to be answered if you have given a timeframe at Q5 within which the work component of her back pain would have resolved. This lady's back pain had resolved by the time I saw her but I do not have a date for its resolution.". [48] In response to questions put to him in examination-in-chief, Dr Shepherd stated: • Ms Casigan first reported getting pain in her back in March 2009; • he described the work Ms Casigan performed as "physically demanding" in his first report (above) on the basis she was required to do a fair amount of physical work which involved shifting a volume of "stuff" from one place to another, in and out of machines and so on. To support those demands, with respect to her back, she would have needed a fair bit of core strength; • he could not exclude her work activities as being a significant contributing factor to her injuries (Transcript 4-113). "On a balance of probabilities it seemed to me that work was less likely." (Transcript 4-115); • it also seemed to him that her pain "simply came on and there wasn't any particular sort of single incident to bring on her troubles … it just seemed to develop over time and in that sense I couldn't identify a right relationship to her work." (Transcript 4-113); • if her abdominal pathology was linked to her symptoms he would have expected that surgery would have improved her situation. However, because the surgery didn't make any difference to her back pain his deduction was that the pathology involved in the surgery wasn't a particular cause of her back pain (Transcript 4-115); • "my understanding of mechanical back pain, … by definition is that it is pain due to the joints between the bones in your spine, problems due to the joints in your back or the muscles that work them. Essentially your muscle strength has a large influence on your capabilities. If your muscle strength is poor then it is easy to provoke pain, so that you can get into that situation even with a structurally perfectly normal -- 14 of 23 -- 15 spine. If you have got structural pathology in your spine … then you are more likely to suffer pain and more reliant and so then you need even better muscle strength to achieve the same level of function. In essence the structural change or wear in the joints will limit what you can achieve so that it is not uncommon for people to have mechanical back pain with a structurally normal spine. If your spine is structurally normal then your investigations will look normal, and then it revolves around muscle strength, so that if you have some pain or your muscle strength is poor and you end up with pain and then you rest up your pain will settle down, and you may then gradually gain muscle strength. So, you know, people will get over an episode of mechanical back pain sometimes even without treatment or formal medical treatment, and so they would then present, now their symptoms are settled, so there are no clinical signs to find, and of course, their investigations are normal." (Transcript 4-115 to 116); and • Ms Casigan's description of her symptoms was consistent with mechanical back pain being present in March 2009 but at the time he saw her there were no clinical signs of back pathology (Transcript 4-117). However, he did not exclude mechanical back pain, and thought that that was what she had experienced, because her muscles (core strength) were weak. She could experience some pain when she attempted to do something physically demanding, but that pain would settle down when she rested (Transcript 4-116 and 118). [49] Under cross-examination Dr Shepherd said: • that when he examined Ms Casigan her movements were normal and she didn't report any pain; • his recollection was that Ms Casigan reported pain in her left foot in September 2008 which could be felt to radiate up the leg. His understanding was that the pain in her lower back started in March 2009, so that involved two separate pathologies rather than one pathology (Transcript 4-121); • mechanical back pain will give you pain in your lower back and buttock. Sometimes there is radiation into your leg and some patients will have a moderate amount of leg pain. Planter fasciitis will typically give you pain localised to your heel (Transcript 4-122); and • "… if she was suffering nerve recompression in her lumbar spine, then that might cause significant left leg pain, but I could not find any evidence of nerve recompression in her back … I was quite happy to exclude nerve recompression." (Transcript 4-122). [50] In response to questions from the Commission as presently constituted Dr Shepherd said that Ms Casigan was experiencing repeat issues after March 2009 because of muscular fitness issues. Depending on her level of fitness she could do a certain amount before being stopped by mechanical back pain, felt in the lower back and buttocks. The pain in her left foot was a different issue. He thought she had planter fasciitis, which was essentially an overuse problem. If the structures in the foot "had had enough" they used pain to slow you down. In response to the pain you would rest up and the pain would settle down. If you continued to do things, even though you had pain, the structure would get weaker and weaker and the pain would get more severe. He also said the comment in his 21 October 2009 report to the effect "her pain seems better than it was in March …", was ambiguous. After refreshing his memory he said he thought that what he was referring to in that part of the report was her back pain, which was better when he saw her (in October) than it was in March - although she was still getting pain in her foot. [51] Dr Manuel Borlado (called by Q-COMP) is a general practitioner who was working at the Medical Centre at the relevant time. In a letter written "To whom it may concern" on 3 June 2009, Dr Borlado stated: "Ms Ilene Casigan was seen at Wuchopperen Health Service on the 25/03/2009 due to low back pain with radiation to the left foot. Based on the history of sudden-onset of pain while working as a laundry attendant, which involves bending, lifting and rotating the back, this patient suffered from low back strain with sciatic nerve irritation. She had difficulty walking and had tenderness on the back with pain radiating to the foot. This largely responded to rest, anti-inflammatory and physiotherapy. Prior to the incident, this patient is asymptomatic …. … I believe that the repetitive nature of her work contributed to her developing the condition.". [52] In response to questions asked of him in examination-in-chief, Dr Borlado stated: • when Ms Casigan first saw him on 25 March 2009 her complaint was that she was having some pain that started in the foot and then basically went up to the thigh and the back. She told him that she had foot pain sometime in 2008 which she saw a podiatrist about. She was given some support for her foot, which apparently helped. She told him that prior to the incident in March she was all right, which was why he wrote (above)"prior to the incident this patient is asymptomatic …"; • at the time of his initial examination she was limping and there was pain on straight leg raising. She was subsequently referred to a physiotherapist at the Medical Centre (Ms Jacobs); -- 15 of 23 -- 16 • he sent Ms Casigan for an x-ray which revealed some osteoarthritis of the L5-S1 facet joint but nothing else was found; • she visited the Medical Centre on a number of occasions complaining about "on and off" pain in the foot and "on and off" pain in the back. That was why he requested a CAT (CT) Scan of the lumbar spine on 23 April 2009. This scan showed no specific abnormality in the lumbar spine but suggested a large cystic mass in the pelvis; • the records of the Medical Centre showed that during May and June Ms Casigan continued with physiotherapy but reported "on and off" foot pain as well as "on and off" back pain; • when he saw her on 3 June 2009 he recorded that she was walking normally, in comparison to when he first saw her on 25 March 2009 when she was limping; • "… if it be that the cysts were causing pressure on the low back and whether this is causing the back pain, I would expect some resolution, a significant improvement in the back pain once the cysts are removed … and what worries me is that the pain has persisted despite surgery." (Transcript 5-8); and • he had opined (in his letter of 3 June 2009) that the repetitive nature of her work contributed to the development of her condition because with the continuous nature of the work on a daily basis, which would "basically" cause some stretching of the muscles of the back, there will be a certain point when they would be stretched too much and that would cause the pain (Transcript 5-8). [53] Finally, and somewhat surprisingly given the evidence that had been led to that point from all other witnesses, Dr Borlado was asked did know anything about a syndrome called "the periformis syndrome". In response, he stated that when he read through some information about that syndrome he thought to himself that if there was some muscle spasm of the periformis this would actually pinch on the sciatic nerve. If so, that might have caused the symptoms. However, because this patient had some problems with her foot in the past then, because her gait would not have been normal, that might have predisposed her to develop the periformis syndrome. However, he was not a specialist. (Transcript 5-9 to 10) [54] Under cross-examination Dr Borlado confirmed that he had not yet completed the requisite courses and examinations to be registered as a general practitioner in Queensland. As such, he only had a special registration to practice in "an area of need" and required supervision for a significant period of each day. [55] Dr Borlado also confirmed that the progress notes he had entered into the Medical Centre's records on 25 March 2009 did not include any reference to any type of back pain. However, from what he remembered, she did mention back pain. "She said it started from the foot and then to the thigh and now even the back is sore.". (Transcript 5-11) After being invited to examine his notes to identify the first occasion on which he had recorded that Ms Casigan was complaining of back pain, Dr Borlado responded by saying it was the note he appended to the 25 March 2009 entry on 2 June 2009. [Note: There is actually an entry on 28 April 2009 - see below] [56] He also agreed that he knew at that stage that Ms Casigan was seeking to review the WorkCover decision which had rejected her claim for compensation. It was in relation to her request for a review that he wrote his "To whom it may concern" letter on 3 June 2009. [57] Dr Borlado also confirmed that the Medical Centre's records repeatedly referred to restricted or painful straight leg raising. He agreed that that was a sign of sciatic nerve irritation which could occur at any place along the course of the sciatic nerve. [58] Under re-examination Dr Borlado said it had become a practice within the Medical Centre to "basically write important notes" (only) when "we" see patients. In normal cases the notes were written up within a few days of the patient's visit. The reason it was delayed in this case was because his wife was about to give birth and he went on a holiday. However, he had kept written notes of 25 March 2009 (since destroyed) and entered them into the computer records when he came back from leave. [59] He also confirmed that he had seen the records of other health practitioners employed by the Medical Centre, including (for example) those written by Ms Jacobs on 30 March 2009, where she made reference to spasms in Ms Casigan's back. [60] Dr Lewis Perrin (called by Q-COMP) practices in both the public and private systems, with his speciality being gynaecological oncology. His practice also includes the duties of an associate professor in terms of medical instruction. Dr Perrin was part of the surgical team which operated on Ms Casigan on 20 July 2009 but had no independent recollection of the surgery. [61] Dr Perrin indicated he had received the reports of Doctors Edwards, Pentis and Shepherd, respectively, as well as the records of the Townsville Hospital Service District and the records of the physiotherapy department at Cairns Base Hospital. He opined that it was unlikely that the sciatic nerve irritation suffered by Ms Casigan would be the result of her pelvic pathology alone. His experience in dealing with a lot of severe cases of endometriosis -- 16 of 23 -- 17 was that sciatic nerve irritation was very uncommon and it normally resolved with the removal of the ovaries because that took away the stimulus of the endometriosis. [62] He also recorded, in a letter to Q-COMP dated 2 August 2010: "At operation she had bilateral endometriomas involving both ovaries which were adherent to the rectum and sigmoid and extending to the pelvic sidewall. Both ureters were involved along with a multifibroid uterus. The dissection would be along the ureters and uterosacral ligaments but would not extend down to the sciatic nerve which would be deeper and more lateral in the pelvis.". [63] However, since writing to Q-COMP (above), and based upon the stimulus of this case, he had looked on the Internet at the issue of stimulation of the sciatic nerve and found "isolated case reports of where they claim and have got evidence that it does occur." (Transcript 5-19). [64] Under cross-examination Dr Perrin agreed that a patient presenting with the degree of endometriosis that was found in Ms Casigan's pelvis would, usually, suffer reasonably significant pelvic and gynaecological symptoms. He also agreed with the proposition that if she claimed she didn't suffer any symptoms then that meant she was "an unusual patient". [65] Finally, he agreed that the possibility that Ms Casigan had endometriosis or scarring caused by endometriosis, affecting her sacral root nerves and sciatic nerve, was simply not considered or explored during her surgery. Submissions from Alsco [66] Ms Callaghan, who appeared for Alsco, lodged a 14 page outline of argument on behalf of Alsco which I do not propose to refer to in detail. However, it is worthwhile to record a number of the major aspects of her submission, below: • it is very difficult, if not impossible, to determine the nature of the personal injury alleged to have been suffered by Ms Casigan. She described various pains and her account of her various pains is inconsistent (as illustrated in a four page chronology included as part of the submission), as is the history she gave to the medical experts and her evidence during these proceedings; • Ms Casigan previously complained about, and had been treated for, left foot pain in September 2008. Her left foot pain had never completely resolved and was part of the reason she sought relocation within her workplace in approximately early March 2009; • Ms Casigan did not have any lower back pain, the injury accepted by Q-COMP, when she ceased work in March 2009. At that stage she had pain in her left foot, leg and "bum"; • there was no "event" in this case. There was a complaint of pain in the left foot and leg on 24/25 March 2009 but Ms Casigan told both Dr Edwards and Dr Shepherd she had a history of such pain prior to that time; • the underlying disease or pathology responsible for Ms Casigan's left foot pain is subject to varying diagnosises: o Dr Shepherd believes it is plantar fasciitis; o Dr Pentis believes, based on what Ms Casigan told him and his examination of the medical records, that it appears to be sciatic nerve compression by a lumbar spinal disc (although this is not supported by clinical findings or radiology); and o Dr Edwards' view is that Ms Casigan has sacral plexus/sciatic nerve irritation in the pelvis as a result of her gynaecological pathology. • Ms Casigan complained of other symptoms which indicated pelvic pathology, although she described these symptoms inconsistently and did not tell some of the medical practitioners about some of these symptoms (e.g. history of constipation); • the cause of Ms Casigan's left lower limb symptoms and signs in March 2009 (and before and after this time) is nerve irritation along the course of the sciatic nerve and/or its origin nerve roots; and • Ms Casigan's employment can not be seen to be of any significance, consequence or importance to her stated injury of lower back injury. [NOTE: In the summary to her written submissions Ms Callaghan stated "Ms Casigan had mechanical back pain which developed around April 2009 …". However, her use of the expression "mechanical back pain" in her summary is not consistent with her use of the same term in the main body of her submissions or, in particular, her reply submissions. All things considered, it appears that the addition of the word "mechanical" in her summary was unintended.] -- 17 of 23 -- 18 Submissions on behalf of Q-COMP [67] Mr Johnson, who appeared for Q-COMP, argued that Ms Casigan's pain, first experienced on 24 March 2009, was amplified to such an extent that she was unable to continue work beyond 9.00 a.m. on the following day. He submitted that the exposure to tasks like bending, twisting and turning fell within the concept of an "event" as defined in s. 31 of the Act or a "state of affairs" as described in case law to which he referred. [68] Mr Johnson also argued that Dr Pentis confirmed the existence of an injury (whether by way of injury in its own right or aggravation of pre-existing degenerative problems) to the lower disc area where Ms Casigan had identified pre-existing degenerative problems. He also said Dr Pentis confirmed the nature and scope of Ms Casigan's work duties were consistent with being a cause of her condition, either by way of an injury or an aggravation of a pre-existing degenerative condition. [69] Mr Johnson was particularly critical of the evidence provided by Dr Edwards, stating that he was "retained by the Appellant" and that the evidence he gave to the Commission was "myopic" in nature. He submitted "an examination of the content of Dr Edwards' reports, combined with his oral evidence, reveals that Dr Edwards has gone beyond the role of an expert and has become an advocate for a cause - that of the Appellant. Moreover, it is submitted he patently seeks to swear the issue, which is impermissible." (paragraphs 31 and 32 of Q-COMP's submissions). [70] He further argued that Dr Edwards' report (Exhibit 10) was "interspersed with speculative assumptions" (paragraph 33) and that his "findings at best can only be speculative and tendentious and cannot be accepted to limit the cause of Ms Casigan's reported symptoms and signs to the pelvic pathology only hypothesis advanced by him only.". [71] Mr Johnson relied upon WorkCover Queensland v BHP (Queensland) Workers' Compensation Unit4 as authority for the principle that the activation of pain is to be equated with the aggravation of disease, that is, it is sufficient that an asymptomatic disease becomes painful, even though no underlying pathological change takes place. He submitted that, at the very least, there was an aggravation, in the sense of activation of symptoms associated with Ms Casigan's condition, in that her condition was made worse and was more serious in its effects upon her. It was submitted that her pre-existing degeneration was aggravated by the performance of her work duties "which likely produced the pain and symptoms which she experienced.". He also argued that the pain and symptoms she experienced in March 2009 were different to those experienced in September 2008 and were not referable to such earlier condition, for which she sought the assistance of the podiatrist. As such, in relation to the pain she described as a result of what occurred on 24 and 25 March 2009, she was previously asymptomatic. [72] It was also argued that the symptoms Ms Casigan experienced on 24 and 25 March 2009 arose out of or in the course of her employment, thereby falling within the application of ss. 31 and 34 of the Act. Mr Johnson argued that the concept of an "event" (being the continuous or repeated exposure to substantially the same conditions that result in an injury) as defined in s. 31 of the Act has application to the facts in this matter, where Ms Casigan experienced a continuous or repeated exposure to the actions of lifting, bending and turning in her work duties. The exposure and symptoms described by Ms Casigan also fell within the concept of "anything that results in injury", including a latent onset injury (see s. 31(1) of the Act). It was submitted Ms Casigan's exposure to her work duties constituted the "event" as defined in s. 31 and her injury arose out of or in the course of her employment (see s. 33(1)(a) of the Act) in that she was at work, undertaking her duties, on 24 and 25 March 2009. [73] Finally, Mr Johnson submitted that use of the term "a significant contributing factor" still permitted acceptance of the hypothesis advanced by Dr Shepherd, to the effect that Ms Casigan's pelvic pathology was a significant contributing factor to the development of her condition, without excluding the mechanical lower back pain opinion of Doctors Shepherd, Pentis and Borlado, respectively. Alsco's submissions in reply [74] Ms Callaghan took issue with a number of points raised by Mr Johnson, including: • the inconsistent description of Ms Casigan's alleged injury, which was initially referred to as pain in the foot, running to her legs then up to her "bum" (see paragraphs 6 - 9 of Q-COMP's submission, under the heading "Injury") but which was later said to be "mechanical lower back pain" (see paragraph 48). This was to be compared to the nature of the claimed injury, viz "lower back", which had been accepted by Q-COMP; • the suggestion that Dr Pentis "confirmed" Ms Casigan suffered an injury to her lower disc area. He merely expressed an opinion, unsupported by clinical examination or radiology findings; and 4 WorkCover Queensland v BHP (Queensland) Workers' Compensation Unit 170 QGIG 142. -- 18 of 23 -- 19 • Q-COMP's reliance on Dr Borlado's report of 3 June 2009 which purported to record Ms Casigan's symptoms as they existed on 25 March 2009. Contrary to what Dr Borlado said, Ms Casigan's evidence was that she did not have back pain that day and he did not examine her back. Impressions of the witnesses and general comments about their evidence [75] Ms Casigan was able to give virtually all of her evidence without recourse to the level two interpreter (see www.naati.com.au 5), who was provided to assist her if the need arose. In fact, Ms Casigan only had to seek assistance on three or four occasions to clarify a question which might have been asked of her before answering that question herself, in English. Although her grammar might not have been perfect, she had no difficulty in presenting her answers to questions she was asked or in making herself understood. [NOTE: At one point in the proceedings the interpreter chose to attempt to explain out loud, without being requested to do so, the physical actions of Ms Casigan when she was answering a question from Mr Johnson about where she felt pain following her surgery in July 2009. In doing so, the interpreter used words to describe what Ms Casigan was supposedly feeling which Ms Casigan had not used herself. Unfortunately, the Transcript records the interpreter's words as coming from Ms Casigan (see Transcript 3-51, line 44). I have ignored the interpreter's words.] [76] Ms Casigan's evidence about the nature of the symptoms she was experiencing, as well as the pain and its location, was significant in a number of ways. Firstly, she repeatedly stated that the pain she experienced "always" started in her left foot, then went up her leg to (as she described it) her bum. At one stage she pointedly did not agree with a suggestion from Ms Callaghan that she had told a health worker at the Medical Centre on 25 March 2009 that she had pain in her left groin which went down to her foot (Transcript 3-64). [77] Secondly, she hardly mentioned the existence of back pain, except on a very few occasions when it was referred to in a general sense. In particular, she did not identify a particular time when she started to experience "back pain", as opposed to pain in her foot, leg or buttock. Equally, she did not identify a particular time when her back pain might have settled. [78] Thirdly, the nature of her symptoms and pain were somewhat unusual. Initially she complained of pain in her foot, running up her leg into her buttock. Later there was (some) mention of back pain. However the pain in her foot, thigh and buttock was still evident when she was examined by Dr Pentis in February 2010. At that time she also told him that she had difficulty just sitting because of pain in her buttock area. She frequently referred to her pain being "on and off, on and off" without describing the location of that pain. Importantly, her reference to the pain being "on and off" covered the period from September 2008 up to the time of the hearing. [79] All in all, I did not gain the impression from Ms Casigan's evidence that she was experiencing back pain on either 24 or 25 March 2009, when she first reported to the Medical Centre, or in the period immediately after that. [80] Ms Casigan's evidence was that she described to Dr Borlado the nature of the pain she was experiencing when she first visited him on 25 March 2009, and in response to that description, he examined her foot. She also clearly articulated that apart from examining her foot Dr Borlado did not conduct an examination of any other part of her person on that day. [81] This is to be compared to the evidence of Dr Borlado, which was to the effect that when Ms Casigan saw him on 25 March 2009 "she was having some pain which started in the foot and basically went up to the thigh and back.". I do not accept Dr Borlado's evidence on this point. The notes he made on that day do not record any mention of back pain. Further, his entry at 10.09 a.m. on 30 March 2009 "for review, is much better but although (sic) is getting pains on (sic) the left foot" would appear to be somewhat strange if she had mentioned back pain when she saw him the previous week. Dr Borlado's reference to "back pain" was not inserted into the progress notes of 25 March 2009 until Tuesday 2 June 2009 at 3.48 p.m. This is a few days after Ms Casigan informed him that her application for workers' compensation had been rejected (29 May 2009) and a day prior to him writing his "To whom it may concern" letter above in support of her "appeal" of that decision (see paragraph [51]). [82] Although some of the entries in the records of the Medical Centre by other health practitioners, such as registered nurses, physiotherapists and so on, mention that Ms Casigan was tender in the lumbar region or exhibited spasms at various points in her lower back, the first mention of "back pain" was by Dr Borlado himself on 28 April 2009 (when he wrote "low back pain"), more than a month after she first attended at the Medical Centre. Prior to that, any mention of "pain" by the health practitioners seems to be have been in respect of "leg and calf pain", "leg pain" and "pain in hip to knee" (see Exhibit 27). In my view, the addendum to the notes of 25 March 2009 (inserted on 2 June 2009) was to accommodate Dr Borlado's letter of 3 June 2009 and was based on information he had as at that date, not as at 25 March 2009. 5 www.naati.com.au. -- 19 of 23 -- 20 [83] Based on Ms Casigan's evidence about the circumstances which led her to request a CT Scan and Dr Borlado's note on 28 April 2009 about the existence of low back pain, I have reached the conclusion that Ms Casigan first experienced back pain around the time Dr Borlado made his note in her medical records. Even then, his note read: "s) for review with ongoing pain on movement of back pain is intermittent, not daily o) CT scan of lumbar spine ok incidental finding of cyst in (the) pelvis a) low back pain pelvic cyst …". (My emphasis) [84] The nature of Ms Casigan's symptoms, as well as the source of those symptoms, was also the subject of much comment by the various specialists she saw, as is apparent from my extensive reference to their evidence (above). [85] Dr Edwards, who was the first of the three specialists to see Ms Casigan (on 14 October 2009) noted that the history related to him by Ms Casigan was predominantly of left leg symptoms, not back pain. He also noted that if Ms Casigan suffered some sort of strain in March 2009 it would have resolved itself long ago. Further, there was no evidence on the MRI, the CT Scan or the x-ray of any significant underlying problem with her back that might have delayed her recovery from any injury she might have suffered in March 2009. Dr Edwards also commented about the intermittent nature of Ms Casigan's symptoms. [86] Dr Shepherd, who saw Ms Casigan on 16 October 2009, recorded that Ms Casigan reported to him that she began noticing pain in her lower back and left buttock around March 2009 whereas prior to this the pain was in her foot and heel. At the time he saw her she was still experiencing some pain in her foot, particularly when rising after sitting for some time. He could not find any tenderness in her heel and observed that her lumbar spine moved well and did not seem to be particularly irritable. He also could not provoke any pain. Overall, her investigation seemed to be "unremarkable". [87] Dr Shepherd believed (based upon what she told him) that Ms Casigan suffered some low back pain in March 2009. However, he was unable to identify a date when that pain settled. He also thought her back pain might have been because her core strength was weak. [88] Dr Pentis, who examined Ms Casigan in February 2010, reported that she informed him she noticed pain in the arch of her left foot on 24 March 2009 and on the following day had increasing problems, with pain radiating up the leg as far as the buttocks of her left side. She also did not report any history of pain in the foot or leg prior to that time. [89] As at the date of his examination she reported some pain in the arch of her foot and some pain radiating up into the buttocks of her left leg. She also reported some difficulty in sitting because of pain in the buttock area. Dr Pentis also observed that there was some tenderness in Ms Casigan's lower lumbar region, on the left side, with some slight pain in the buttock, if any, during his examination of her. [90] None of the specialists, with the possible exception of Dr Pentis, could see anything in Ms Casigan's x-rays, CT Scan or MRI to suggest a "mechanical cause" of Ms Casigan's symptoms. Dr Edwards opined that the radiological reports, especially the MRI, showed nothing significant in the pathology of Ms Casigan's spine. Dr Shepherd said the images and reports showed some sacralisation of the L5 vertebra, with the lumbar discs showing good preservation and no evidence of nerve root compression. Overall, he was quite happy to exclude nerve recompression as the cause of her symptoms. [91] Dr Pentis stated that neither the CT Scan, the MRI nor the x-ray showed any major pathology. However, based upon what Ms Casigan told him - including the fact she was (allegedly) asymptomatic in March 2009 - he concluded that "it appears to have been an injury to the lower disc where she does have some pre-existing degenerative problems.". [92] As it transpired, all of the specialists had some difficulty in recording the actual nature of Ms Casigan's symptoms and none of them agreed on the possible cause. [93] Dr Edwards opined that Ms Casigan's pelvic pathology, with associated sacral plexus/sciatic nerve irritation, was the most likely cause of her symptoms, being "head and shoulders above any other possibility." (Transcript 4-13). [94] Dr Shepherd opined that the problem with Ms Casigan's left foot was plantar fasciitis and there was some other pathology causing back pain. In this respect her description of her symptoms was consistent with mechanical -- 20 of 23 -- 21 back pain being present in March 2009, although he could not see any clinical signs of back pathology. In addition, there was nothing of note in the MRI, CT Scan or x-ray. If she had experienced some mechanical back pain, which was what he thought she had experienced, it was because her core strength was weak. [95] Dr Pentis opined that Ms Casigan sustained an injury to her left leg and it appeared to have been an injury to the lower disc, where she did have some pre-existing degenerative problems. Conclusions [96] Notwithstanding Mr Johnson's criticisms of him, I found Dr Edwards to be an impressive and convincing witness and I have decided to accept his opinion about the likely cause of Ms Casigan's symptoms ahead of the opinions of Dr Pentis and Dr Shepherd, respectively, insofar as they suggested there was a "mechanical cause" of Ms Casigan's symptoms in March 2009. While Dr Edwards was certainly passionate about his hypothesis he was not an advocate for Alsco. [97] In contrast to the other specialists (which is not intended as a criticism of them), Dr Edwards had looked at the issue of Ms Casigan's symptoms from the time they first appeared, in September 2008, until the beginning of 2010, when she was examined by Dr Pentis. In doing so, he was attempting to identify a particular cause, or causes, of her symptoms as reported at various times during that period which would help to explain: • the symptoms that she was initially complaining about before "the incident" (of 24-25 March 2009); • the symptoms that she continued to complain about after the incident; • the symptoms that she complained about before and after her surgery of the pelvis; and • the symptoms that she continued to complain about after October 2009. [98] At the end of the day, Dr Edwards came to the conclusion that the only plausible explanation for her reported symptoms - of intermittent pain in the left foot, leg and buttock and intermittent pain in the lower back - was because of irritation to her sacral plexus/sciatic nerve by the gynaecological pathology in her pelvis, as well as the residual effects of that pathology and the surgery associated with its removal on 20 July 2009 (including scarring and residual adhesions in the wall of the pelvis). While this was the main "cause" of her symptoms, some of her back pain was because her core strength was poor - a view which Dr Shepherd shared. [99] I gained the impression, from reading his reports and listening to his oral evidence, that Dr Edwards had given considerable thought to Ms Casigan's various symptoms and what might have been causing those symptoms to give her pain in the way, and in the areas, she was reporting. On the basis of his research degree and area of practice (see paragraph [25] above) he was well qualified to apply his mind to the issue. In doing so, he appears to have weighed up a number of possible reasons why her symptoms might have presented in the way they did, before finally settling on the hypothesis he advanced during the hearing. [100] There were several aspects of Dr Edwards' evidence which seemed to be particularly supportive of his hypothesis. Firstly, he reported that there was nothing in the MRI, the CT Scan or the x-ray to suggest a "mechanical cause" to Ms Casigan's symptoms. Even if there was a degenerative issue at L5, which Dr Pentis seemed to have relied on, this would (only) have caused symptoms in her foot/ankle and not in the other areas she was reporting. [101] Secondly, for Ms Casigan's symptoms to extend beyond her foot and lower leg something more than just compression at L4/L5 - S1 had to be happening. Irritation of the sciatic nerve in the area of the sacral plexus was the only plausible explanation for the other symptoms she was experiencing (see paragraphs [33], [34] and [44] above, Exhibit 15 and Transcript 4-38 to 39). [102] Thirdly, his explanation of how, and why, the neural glides (in November 2009) helped alleviate Ms Casigan's symptoms (see Transcript 4-32 to 33) sat "hand in glove" with the overall hypothesis he was advancing. [103] Finally, Dr Edwards' hypothesis explained why Ms Casigan's symptoms appeared intermittently and why they had not "settled" - as they would have been expected to if there was a "mechanical cause" of her injury. [104] Further reinforcing the validity of Dr Edwards' opinion was the concession by Dr Pentis that the records of Ms Casigan's surgery would have "added into the differential diagnosis as a cause of her some of her symptoms" but, more especially, "would have given me thoughts as to whether there was something else as well causing her problems.". Given this concession, Dr Pentis' opinion about the cause of Ms Casigan's symptoms was somewhat lessened. It was further lessened when he acknowledged that his opinion, that the degenerative issue at L5 was involved in her symptoms, was partially formed on the basis she was asymptomatic in March 2009. -- 21 of 23 -- 22 Did Ms Casigan suffer an injury on 24 or 25 March 2009? [105] The nature of the injury claimed by Ms Casigan was "lower back", which somehow came to be described as "lower back, trauma to muscles" within WorkCover (see paragraph [2] above). [106] However, on Ms Casigan's own evidence, she did not have any lower back pain on either 24 or 25 March 2009. What she did have was pain in her left foot, going up her leg into her buttock. On my finding above (see paragraph [83]), she did not experience back pain until around 28 April 2009. [107] Further, given my acceptance of Dr Edwards' hypothesis about the cause of her left foot, leg, buttock and back pain - as being from irritation of her sacral plexus/sciatic nerve by, firstly, the gynaecological pathology in her pelvis and, later, the residual effects of that pathology, such as scarring and residual adhesions - it follows that I must conclude (and I do) that Ms Casigan did not suffer an injury of the type claimed, or at all, on 24 or 25 March 2009. [108] Notwithstanding that conclusion I propose (in the event I am wrong) to turn to the other elements I am required to consider in an appeal of this type. Did Ms Casigan's injury arise out of, or in the course of, her employment? [109] Prior to 24 and 25 March 2009 Ms Casigan had experienced intermittent pain in her left foot from at least September 2008, when she was referred to a podiatrist by her (then) GP. The treatment provided by the podiatrist failed to resolve the symptoms. The pain and/or associated symptoms caused her to develop a limp over time. The discomfort she was experiencing also caused her, amongst other reasons, to request to be moved from the sorting section of Alsco's operation to the catching area in early March 2009. [110] It was while performing the role of catcher that she (again) experienced pain in her left foot on 24 March 2009. While Ms Casigan described this pain as "sudden" I do not accept her evidence on this point. In other areas of her evidence she was inclined to be a little "loose with the truth" (e.g. her evidence about having to move heavy trolleys with steel wheels) and I believe this to be another such occasion. Rather than being a "sudden pain" , which suggests she had not experienced anything like this before, I conclude that it was pain of a similar type to that which she had experienced previously, albeit of increased magnitude, in the same foot which had previously troubled her. [111] On the following day, 25 March 2009, the pain in Ms Casigan's left foot was much worse and was also being felt in her leg and ultimately, her buttock. She was having difficulty walking. At 9.00 a.m. she ceased work and went to see Dr Borlado. [112] Accordingly, given the decision of the High Court in Hatzimanolis v ANI Corporation Ltd6, it is clear that Ms Casigan's injury arose "in the course of" her employment. Having satisfied this requirement it is not necessary, because of the disjunctive "or" (in s. 32(1) and (3)), to consider whether Ms Casigan's injury arose out of employment. Was employment a significant contributing factor to the injury? [113] Notwithstanding Mr Johnson's extensive and well developed argument (see paragraphs 37 to 43 and 48 to 56 of his submissions) it is impossible to conclude that employment was a significant contributing factor to the symptoms Ms Casigan experienced on 24/25 March 2009 in her foot, leg and buttock, or even by around 28 April 2009, when, on my findings, she first experienced back pain. [114] In essence, Mr Johnson pressed me to find that Ms Casigan's symptoms were an injury in their own right or, in the alternative, an aggravation of a pre-existing condition. This was because her condition was made worse or exacerbated, in the sense of activation of symptoms associated with her condition, by the very nature of the duties she performed at work. [115] However, this submission ignores the nature of Ms Casigan's medical condition, as well as the history of her symptoms. [116] Firstly, Ms Casigan did not suggest that her symptoms appeared after "an event" or "an incident" during the course of her employment. Rather, to quote Dr Shepherd, her pain "simply came on and there wasn't any particular sort of single incident to bring on her troubles … it just seemed to develop over time …" (Transcript 4-113). Based on what she told Dr Edwards and Dr Shepherd it is also clear that her symptoms progressively worsened between September 2008 and March 2009. 6 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 483. -- 22 of 23 -- 23 [117] Secondly, the symptoms Ms Casigan experienced in March 2009 - of left foot, leg and buttock pain - continued to trouble her, intermittently, well beyond that time. She was still reporting them when she saw Doctors Edwards and Shepherd, respectively, in October 2009. She reported them to Dr Pentis when she saw him in February 2010. She also said, during the trial, that her pain was still "very, very bad", although it was "on and off, on and off" (Transcript 3-51). If her employment had aggravated (or exacerbated) her symptoms in March 2009, then her employment (which effectively ceased on 25 March 2009) could not still be aggravating (or exacerbating) her condition some 15 or so months later. [118] The only evidence before the Commission to explain the cause of Ms Casigan's continuing symptoms is the hypothesis of Dr Edwards about the irritation of her sacral plexus/sciatic nerve by the residual pelvic pathology, scarring from her surgical procedure and residual adhesions. [119] Further, as Dr Edwards carefully explained, the nature of the irritation of the sacral plexus/sciatic nerve was such that the fullness of Ms Casigan's bladder or her bowel could have affected the degree of irritation and her symptom experience. Equally, the simple processes of tying her shoes in the morning, bending over or arching her back may have irritated the sciatic nerve and caused her to experience symptoms. Similarly, the way she lay in bed, or rolled over, may have irritated the nerve. [120] Given this evidence, and my acceptance of it, Ms Casigan's employment was not a significant contributing factor to the development of her symptoms prior to 24/25 March 2009, the possible aggravation of her symptoms on 24/25 March 2009 or the subsequent symptoms she continues to experience. Summary [121] On the basis of my findings, firstly, that Ms Casigan did not sustain a personal injury and, secondly, that if she did sustain a personal injury then that injury was not one where employment was a significant contributing factor, Alsco has established at least one of the points it was required to establish in order to succeed in its appeal (see paragraph [5] above). [122] Accordingly, for the foregoing reasons, I uphold the appeal in Matter No. WC/2009/83. I set aside the decision of Q-COMP dated 17 September 2009 and determine that Ms Casigan's claims to WorkCover dated 14 April 2009 and 20 May 2009 are ones for rejection. [123] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2010 13 and 14 July (Hearing) 17 September (Hearing) 28 September (Appellant's written submissions) 18 October (Respondent's written submissions) 28 October (Appellant's written submissions in reply) Released: 17 March 2011 Appearances: Ms D. Callaghan (Counsel), instructed by Blake Dawson for the Appellant. Mr A. Johnson (Counsel), directly instructed by the Respondent. -- 23 of 23 --