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[2006] SAWCT 78
General information, not legal advice.
Workers Compensation Tribunal (SA)
2006-10-12
Original judgment source is linked above.
1 Suchin Deo applied to work at Woolworths in 1997. Previously he had been a clerical worker. His left arm was weak as a result of polio as a child. Woolworths offered him casual employment as a storeman after a medical examination. By 2001 he was employed on a full time basis. He suffered a series of minor injuries whilst working at Woolworths between 1997 and 2003 and the work often left him with various aches and pains.
2 In January 2004 he experienced a sudden onset of weakness in his legs and pain in his back and neck after he had been picking orders in the morning. Eventually Mr Deo was diagnosed with cervical myelopathy. Cervical myelopathy is the late sequel of severe degenerative cervical spine disease. He says it was caused or contributed to by his work at Woolworths and that it still prevents him from working.
3 Woolworths disputes his claim. It says that the problems he experienced are caused by a degenerative condition or by activities outside his work.
4 The issues for me to decide in this matter are as follows:-
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Is cervical myelopathy a compensable condition?
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Did Mr Deo suffer a 'disability' or a 'secondary disability' in the course of his employment?
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If it was a secondary disability, is there a causal nexus between the disabilities claimed and the employment?
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Did Mr Deo's employment at Woolworths cause or contribute to his current medical condition?
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Did he suffer a temporary exacerbation? Is it now spent?
5 If Mr Deo suffered an injury on 20 January 2004, it is a 'disability' for the purposes of the Act and I must only be satisfied that it arose out of or in the course of Mr Deo's employment with Woolworths.
6 If Mr Deo suffered an aggravation, acceleration, exacerbation, deterioration or a recurrence of a prior disability either on 20 January 2004 or over the years he worked as a storeman for Woolworths then I must treat it as a 'secondary disability' and I must also be satisfied that Mr Deo's employment contributed to the injury (s 30(2)(b)).
7 Mr Deo gave evidence about the range of packing and picking duties he performed at the Woolworths distribution centre. He was required to do repetitive bending, reach above shoulder height, reach away from his body, squat and carry heavy loads. He used his weak left arm to support and balance as he handled the goods with his right arm. In May 2003 he consulted his general practitioner, Dr Argawal, who provided him with a letter to Woolworths regarding the difficulties he was experiencing with some of his work.
8 I have no hesitation in accepting Mr Deo as a truthful witness. I have preferred his evidence over the witnesses for Woolworths because only Mr Deo was able to say what duties he did perform, rather than what duties he was supposed to perform as prescribed by the occupational therapist, Ms Pattison and the warehouse manager, Mr Young.
9 Mr Richter argued that Mr Deo's real complaint was about the unfair treatment he received from two of his immediate supervisors. It is clear from the evidence that Mr Deo was unhappy about the treatment he received but this does not affect the validity of his workers compensation claim or the truthfulness of his evidence regarding his duties.
10 Mr Deo had completed two heavy picking orders, and then during the third order he experienced aches and pains in his body before his smoko break. It was a hot day. He felt the onset of weakness in his knees and legs as he walked up the stairs to the smoko room. When he went to get up after the smoko break he experience the onset of pain in his neck, back, the weakness in his legs, the feeling of going to fall over and weakness in his arms. This was the first time he experienced the feeling of weakness in his legs.
11 After the incident on 20 January 2004, Mr Deo underwent a series of investigative procedures, none of which assisted in the correct diagnosis or improvement of his symptoms. The initial diagnosis of Mr Deo's problems was carpal tunnel syndrome. Later medical practitioners suspected he was suffering from some form of post polio syndrome. As well, in the early 1990s, it was likely that he had suffered from a radiculopathy at the C7 level that had resolved.
12 It was not until July 2005 that he underwent an MRI that showed he was suffering from cervical myelopathy.
13 Mr Deo was treated or examined by a number of specialist medical practitioner. Of the medical witnesses who gave evidence before me, I have preferred the evidence of Professor Jones, neurosurgeon. He is the treating doctor with the relevant speciality for the particular condition that Mr Deo was eventually diagnosed with.
14 According to Professor Jones the cervical myelopathy is related to degeneration of Mr Deo's spine at the C5/6 level and to a lesser extent at the C6/7 level. He said that the symptoms of cervical myelopathy were weakness, numbness, and stiffness. Pain in the neck was not an ongoing feature of the condition. Cervical myelopathy can be related to trauma and neck extension as well as degeneration of the spine.
15 Mr Deo's condition requires surgery. The surgery would prevent any worsening in the future. It was Professor Jones' impression that Mr Deo may have suffered a disc prolapse at the C5/6 level sometime before the MRI scan in July 2005 that had partly resolved leaving behind the signal change in the spinal cord. He regarded the history as consistent with a disc prolapse of the cervical spine. He expressed the view that heavy lifting increases the pressure in a disc making it more likely that a disc can prolapse. Working above shoulder height, extending his neck, or bending over and extending his neck and doing it over and over could aggravate cervical myelopathy in the presence of an underlying stenosis or narrowing of the spinal canal. He believed there was permanent injury to Mr Deo's spinal cord.
16 Professor Jones was given the precise history of what occurred on 20 January 2004 and he agreed that the history given was consistent with a disc prolapse of the cervical spine. Under cross-examination he agreed that there were other possible causes.
17 A neurologist, Dr Hall, whose report was part of the evidence before me, but did not give evidence before the Tribunal, expressed the view that the myelopathy could have been aggravated and rendered symptomatic by the nature of the work which has involved lifting and arm use above shoulder level which would be accompanied by repetitive neck extension, particularly when he was required to lean into low shelves to access items.
18 In my view, in light of the evidence of Mr Deo and the medical evidence that I have referred to it is more likely than not that the moderately heavy picking and packing work he performed over a period of years as well as the specific duties he performed on 20 January 2004 contributed to the disc prolapse noted by Professor Jones.
19 It is also more likely than not that the cervical myelopathy became symptomatic on 20 January 2004, given the history of store work and the first onset of weakness in the legs that day and the evidence of Professor Jones that "...doing that over and over could certainly aggravate cervical myelopathy in the presence of an underlying stenosis or narrowing of the spinal canal" (tr 261).
20 I am satisfied that Mr Deo has suffered cervical myelopathy as a consequence of both the picking and packing work he performed generally at Woolworths, as well as the specific duties he performed on 20 January 2006. I am satisfied on the evidence before me that there is a causal nexus between Mr Deo's cervical myelopathy and his employment as a storeman at Woolworths.
21 I accept that Mr Deo's physical activities outside of work would also have aggravated his condition. That does not of itself prevent his claim from succeeding. In my view it is more likely than not that those activities such as playing social soccer games, cleaning his car and other household tasks contributed to his condition to a lesser extent than his work as a storeman. As a full time worker from 2001 he would have spent more time engaged in his work than he did engaged in those other activities.
22 There was no real dispute that Mr Deo remains incapacitated for work as a storeman. Until he undergoes surgery he is unfit to undertake any meaningful employment
23 It was argued on behalf of Woolworths that if work aggravated his condition the aggravation was now spent. I am not satisfied on the evidence before me that the aggravation is now spent. There has been no improvement of his condition.
24 I am satisfied that Mr Deo has suffered a secondary disability in the course of his employment and that there is a causal nexus between the disability and his employment.
25 In some instances cervical myelopathy may arise without any cause, but it can also arise as a consequence of repeated heavy work or neck extension. I am satisfied that his work generally, as well as his work on 20 January 2004, contributed to the cervical myelopathy. In the circumstances of this matter, because of the description of the duties performed by Mr Deo at Woolworths and the history of his symptoms, I am satisfied that the cervical myelopathy suffered by Mr Deo is a compensable condition.
26 I am satisfied that Mr Deo's employment at Woolworths did cause and contribute to his condition. I am satisfied that Mr Deo has suffered a secondary disability. It was not a temporary exacerbation that is now spent.
28 I will hear the parties in relation to any other issues that arise from this matter.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
Deo
Woolworths