Aghajani and Comcare
[2007] AATA 1033
•30 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1033
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/127
GENERAL ADMINISTRATIVE DIVISION ) Re VALENTINE AGHAJANI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date30 January 2007
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
John Handley
Senior Member
COMPENSATION – applicant fell on way to work in September 2003 – hyperextension type injury affecting her neck – pre‑existing cervical spondylosis – denial by applicant of prior symptoms – finding symptoms did exist previously and subsequently – finding that consequence of fall was a temporary aggravation of pre‑existing spondylosis at June 2004 – decision affirmed
REASONS FOR DECISION
30 January 2007 Mr John Handley, Senior Member 1. Mrs Aghajani initiated two applications in this Tribunal. In V2005/127, she applied to review a reviewable decision of 17 January 2005 which affirmed a determination of 26 August 2004 denying liability to pay incapacity payments beyond 21 June 2004. The second application was V2005/968 which sought review of a reviewable decision of 5 October 2005 which had affirmed a determination made on 10 August 2005 to deny payment to her of an impairment lump sum.
2. When the hearing of these applications commenced on 6 December 2006, Mr Ruddle of counsel advised that the applicant would not proceed with the second application and it was withdrawn. Accordingly the hearing proceeded only with respect to the first application concerning entitlement to weekly compensation beyond 21 June 2004. Mr Moulds of counsel who appeared on behalf of the respondent, amended his client’s Statement of Facts and Contentions – which in part mirrored the decision under review – by contending that the respondent would also assert that if there was any incapacity beyond 21 June 2004, it did not arise by injuries sustained on 15 September 2003 (refer later) or in the alternative, from 21 June 2004, the applicant has had an ability to earn that which she was earning before 15 September 2003. Those amendments to the case of the respondent were not opposed by Mr Ruddle.
3. Mrs Aghajani (the applicant), is presently 48 years of age. She was born in Iran and travelled to Australia with her parents as a child. She has been employed in Australia by the Australian Federal Police, the Department of Administrative Services, SBS Radio (SBS) and the Refugee Tribunal. She has also enjoyed periods of self‑employment as an interpreter and translator.
4. The applicant fell on escalators at Flagstaff Station in Melbourne when on her way to work at the Refugee Tribunal where she was employed as a Tribunal Officer. She had been in that employment since 1993. The applicant alleged that she fell whilst the escalator was ascending. She said she fell forward onto her face and suffered lacerations to her chin, pain and bruising to her shoulders, face and legs and an injury to one of her fingers which became wedged in the moving escalator. Significantly however, she alleged that she suffered a whiplash type injury affecting her neck. The applicant proceeded to the workplace and worked until 23 September 2003 without incapacity. Despite having suffered neck and shoulder injuries in a motor vehicle accident in 1992, she said those injuries had resolved and at September 2003, she was fine (trans. p10). Additionally, she pointed to having also held part‑time employment with SBS until the previous month (August 2003) as indicating her capacity to be engaged in employment without restriction.
5. The applicant said she attended a doctor (Dr Ng) on 23 September 2003 at the initiation of the employer. She understood that was necessary in order that she would be cleared by the employer. She acknowledged that the fall was very hard and that she had subsequently become sore but it would appear from her evidence that were it not for the employer’s requirement for clearance, she would not have – at least at 23 September 2003 ‑ sought medical treatment (trans. p11).
6. After the applicant saw Dr Ng on 23 September 2003, she was referred for X‑ray and a CT scan. Further treatment followed including physiotherapy and eventually a referral to Dr Castle, a specialist in occupational medicine. Symptoms of increased pain, headaches and dizziness emerged resulting in extensive periods of incapacity. The applicant returned to work later in 2003 on a part‑time basis, initially at three days per week at three hours per day which eventually increased to six hours per day at four days per week until June 2004 when the decision under review in these proceedings was made. That decision followed an examination with Dr Muirden, a consultant rheumatologist engaged by the respondent.
7. The applicant worked on the part‑time basis referred to earlier until November 2004, when she applied for, and was granted, leave of absence from the workplace to care for her husband who had suffered a myocardial infarction. She did not work throughout 2005 and in 2006 commenced a period of rehabilitation at the Dorset Road Rehabilitation Centre. She eventually returned to work in June 2006 on a part‑time basis and has gradually increased the number of hours worked. It was her case that the fall in September 2003 aggravated a pre‑existing degenerative condition in her cervical spine precipitating pain and discomfort and causing incapacity. She asserted an entitlement to compensation beyond June 2004 but was confident that by March or April 2007 she would have returned to work on a full‑time basis and thereafter would not suffer incapacity.
8. The applicant acknowledged in cross‑examination that in the mid 1990’s – after she had commenced employment with the Refugee Tribunal – she was confronted by a refugee at her home and was threatened by him on two separate occasions. The person on each occasion was apprehended by the police and after the second occasion was apparently charged and sentenced to three years imprisonment. The applicant entered into a period of extensive psychiatric treatment and was diagnosed with post‑traumatic stress disorder. She was incapacitated for a period of time. She was then also undertaking part‑time employment with SBS which she continued to perform during her incapacity from the Refugee Tribunal.
9. The applicant also agreed that she was engaged in an extensive period of psychiatric treatment from approximately 2001 following the commencement of a dispute with SBS. It appears that a complaint was made by a listener with respect to the applicant’s broadcasting skills in the Assyrian language. The dispute escalated resulting in termination of employment in August 2002. Proceedings had previously commenced at the Victorian Civil and Administrative Tribunal but were withdrawn. Later, other proceedings commenced in the Federal Court and the matter was eventually resolved by agreement between the applicant and SBS by written terms on 17 July 2003. Attached to an affidavit completed by the applicant which was lodged with the Federal Court were two affidavits from Dr Perekh, her treating psychiatrist and Dr Ng, both sworn in April 2003. Both doctors deposed that at the date of swearing, the applicant was attending their respective clinics for a depressive illness.
10. Mr Moulds took the applicant through the histories taken by a number of doctors by way of an attack upon her credit. The consequence of the incomplete or incorrect histories obtained by the doctors in large part caused some doubt upon the value or accuracy of the opinions that they ultimately expressed.
11. The history given to Dr Athey who examined with respect to the impairment application recorded the applicant having advised him that prior to the fall in September 2003 she had been working on a full‑time basis and working part‑time with SBS, that she had not experienced any difficulties at work, that she had decided to cut back her employment immediately prior to the fall because of her daughter and had ceased work with SBS one month prior to the accident. Additionally, he obtained a history of a denial by the applicant of any previous psychiatric history.
12. Dr Cotton, a psychologist examined with respect to the impairment application and he recorded that the applicant had reported to him that she did not have any prior history of significant mental health problems or musculo‑skeletal injury.
13. The applicant agreed that she did initially make a claim on Comcare following the confrontation at her home in the mid 1990’s but did not pursue it when it was denied. She eventually made a claim upon the Crimes Compensation Tribunal with respect to eight months of incapacity. There was no mention in the history to doctors Athey or Cotton of that claim or the subsequent incapacity or the reasons for it.
14. Dr Epstein did obtain a history of the applicant being confronted at home in the mid 1990’s but did not have any history of the period of treatment for approximately three years with Dr Perekh.
15. Dr Muiredon reported that the applicant had denied other illnesses or injuries and she had not suffered from any neck pain prior to the injury.
16. The applicant admitted that she had suffered from dizziness for many years, that it did exist before the episode of September 2003 and at the time of consultation with Dr Muiredon on 29 June 2004 it was then a major complaint. Dr Chambers reported that she gave no history of prior vestibular symptoms.
17. The applicant was asked to explain the histories as recorded above and her explanations varied as follows:
· With respect to the history of Dr Athey, the applicant said she did not deny a previous psychiatric history but rather did not mention it. She said I wouldn’t go through the whole episode.
· With respect to the history taken by Dr Cotton, the applicant agreed that she did not report any significant mental health problems because she had closed that chapter and put it behind me. Additionally, she said that the Refugee Tribunal being her employer, knew of the episode in the mid 1990’s and the subsequent incapacity and in those circumstances she had nothing to hide about it.
· With respect to the absence of a history within the report of Dr Epstein concerning treatment for three years with Dr Parekh, the applicant said perhaps I have forgotten about it and in any event that history and details of that treatment could have been made available under FOI.
· The applicant agreed that she probably did not inform Dr Muiredon of prior illnesses or injuries because they had been cured and were a closed chapter. Unless it was a bad experience she would not mention it.
· The applicant said that it was irrelevant that doctors did have incomplete histories because episodes which had occurred prior to the fall of September 2003 were not serious, they were things that came and gone in my life, I want to close that chapter and get on with my life. I cannot dwell on things 10 years ago happen and remember and keep going over and over and over and over them a psychiatrist will tell you that (trans. pp39 – 40). Additionally, recalling and discussing past events caused muscle tightness which in turn caused pain, headaches and depression. Accordingly the lesser stress you have, the lesser pain you have.
18. The applicant was then examined with respect to prior motor vehicle accidents. When pressed, the applicant said she recalled having a motor vehicle accident approximately 20 years previously. By reference to records possessed by the respondent, the applicant agreed that she did suffer whiplash type injuries following a motor vehicle accident in September 1986 resulting in treatment by a doctor in Moonee Ponds who certified incapacity for nine or ten days. Additionally a certificate for incapacity with respect to back or neck pain was submitted to the employer in December 1986. Following the motor vehicle accident of 1992, the applicant agreed that Dr Chandhu who was then treating her issued certificates with respect to headaches and painful neck and back. The pain then existing apparently flowed from a motor vehicle accident of 1992 where his certificates refer to “whiplash”. The applicant agreed that his notes or records accurately described subsequent symptoms of backache, headache, dizziness and the prescription of medication. Certificates also existed recording dizziness and tension headaches until 1997. The applicant said that she could not recall in any detail past symptoms or past periods of incapacity but did agree that it would be quite wrong to assume that prior to the fall of September 2003, she had not suffered neck or other back pain.
19. Later, the applicant commenced treatment with Dr Ng. She agreed with extracts from his notes that recorded dizziness in 1998, 2000 and 2001, neck pain in March and April 2002 (including spasm), dizziness in May 2003, neck stiffness in June 2003 and back pain in August 2003. The applicant acknowledged that the last two entries occurred one or two months prior to the episode of September 2003 but said that the pain then suffered was not a significant feature of her presenting to the doctor because if it was she would have been off work.
20. In approximately 2005 – the date of which was unclear – the Migration Review Tribunal and the Refugee Tribunal merged. The applicant agreed that her work subsequent to the amalgamation was the same as existed previously. She agreed that her duties involved photocopying files following FOI requests where she could sit and stand at will. She also agreed that a workstation made available to her was adjusted to meet her needs. She agreed that she was able to stand, walk and stretch at will. She also agreed that if her duties became onerous, she should make such a report and attempts would be made to modify her working conditions. She also agreed that when undertaking Tribunal attending she could be relieved so that she would not have to sit for extended periods.
21. As a prelude to showing a surveillance video of the applicant, she agreed that she does travel in and drive a four wheel drive motor vehicle, she walks with her daughter to school in the mornings and in the afternoons when she is collected, she undertakes shopping including carrying bags of groceries and is able to walk quickly and on occasions she is able to run.
22. The video film depicted the applicant on 10 days between 14 and 24 November 2006 inclusive. It had a duration of approximately 50 minutes. It depicted the applicant walking with her daughter to her school in the mornings and collecting her daughter at the end of school days. On some occasions she is carrying her daughter’s schoolbag across her own shoulder (left shoulder on 20 November and right shoulder on 17 November). On some occasions she is walking briskly and on other occasions she is running. The video film depicts her shopping and carrying bags of groceries or vegetables. On another occasion it appears the applicant, together with her husband, attended at a cabinet maker’s and was involved in discussions. On another occasion she is seen in discussions with other persons at or near her daughter’s school.
23. The applicant agreed, after she observed the film, that the activities then portrayed were activities undertaken by her and that she was the person portrayed on the film. She said that she was presently working five hours per day at four days per week under doctor’s instructions. She said that she would prefer to work longer hours but would do so only upon his recommendation. She said there were occasions when she felt that she could work six hours per day but there are other occasions when she feels as if she is a paralysed person. That sensation occurs after episodes of bending where her right lower back is affected. (Both counsel agreed that the respondent has not ever made a decision with respect to the applicant’s lower back). The applicant agreed that the film depicted her bustling around pretty quickly and that the activities that she was then undertaking were similar in terms of the physical activities that she would undertake in the workplace. However she said after five hours of work she sometimes suffers pain in her lower and middle back and she also suffers headaches.
dr charles castle
24. Dr Castle is a medical practitioner and has been an occupational physician for approximately 20 years. He has provided a number of reports which were either received into evidence or which were part of the T‑documents. He has treated the applicant since November 2003. When he first saw her he noted that she was working reduced hours on four days per week. He has continued to see her on a monthly basis to the present time. At June 2004, it was his opinion that the applicant was capable of working six and a half hours per day at four days per week but he later issued certificates of incapacity in that same month because of complaints of pain and dizziness. His notes indicate that the applicant was off work until October 2004 when she returned on modified duties and on reduced hours but ceased work in November of that year because her husband suffered an infarct and she left the workplace to care for him. At January 2005, it was his opinion that she was fit for modified duties at three hours per day on three days per week but she did not then work. At March 2005, his notes indicate that her condition worsened and he issued certificates for total incapacity. It appears that the applicant did not work at all throughout 2005 and from the beginning of 2006 she commenced a rehabilitation program which he said was successful and has permitted her to return to work although on reduced hours and modified duties.
25. Dr Castle said that he did not ever have any history from the applicant of prior incidents or injuries. It follows therefore that he did not know about motor vehicle accidents in 1986 of 1992 or the treatment subsequently for injuries suffered. When he was given a summary of her previous complaints of pain and the occasions she attended doctors for treatment, Dr Castle said his opinion of a connection between the fall in September 2003 and her subsequent incapacity was unaltered.
26. In cross‑examination, Dr Castle said that the giddiness suffered by the applicant was likely to emanate from her neck injury. However, he was not aware that in 2001 the applicant had attended Dr Hjorth a neurologist by reason of her complaints of giddiness. Dr Castle had no history of any significant or episodic dizziness prior to the episode of 2003. Dr Castle said it was possible that the dizziness suffered before September 2003 was related to her neck condition. Later he said the connection was probable (trans. p92). He agreed that at June 2004, nine months after the September 2003 episode, he certified incapacity by reason of dizziness and the applicant had been absent from work for approximately one week prior to a consultation at that time, because of dizziness. Indeed he then certified her as totally incapacitated by reason of dizziness. He also agreed that his notes recorded that between November 2003 and June 2004, the applicant did not work more than six hours per day because of the severity of neck pain, despite him also attending the workplace in March 2004 and reporting that the workplace is generally excellent. He noted that files lifted by the applicant would not exceed one kilogram in weight, that rotation of duties was available to her, that she was no longer required to push a trolley containing files and the employer had made available a chair/stool for her to sit on whilst photocopying. He said that the employer representatives were co‑operative with him and were willing to find a satisfactory basis for the applicant to work without discomfort. He also agreed that he left the workplace with some optimism about the ability of the applicant to return to work. Nonetheless, he is aware that the applicant has not yet returned to work on a full‑time basis and but for the dizziness suffered at June 2004, it was his belief that the applicant would have resumed full‑time employment.
27. At October 2004, Dr Castle’s notes recorded – following a neurological examination conducted by him – that the applicant had normal muscle power in her arms and normal reflexes. He could not detect any physical abnormality.
28. In early 2005, Dr Castle noted that the applicant had complained of increased pain. He acknowledged that increased pain then did not have any immediate connection with the workplace because the applicant had not worked since November 2004. It was his view that increased pain then was caused by the fall that she had suffered in September 2003.
29. In conclusion, Dr Castle was of the opinion that the applicant suffered from a chronic pain syndrome. He was not of the opinion that pain suffered by the applicant was the result of degenerative changes in her cervical spine. The chronic pain syndrome, in his opinion, was an alteration to the applicant’s nerve pathways and in his experience, such a condition (described as neuropathic pain) overwhelms persons in all daily activities. He said some persons enjoy occasions where they are not suffering from pain but on other occasions are overwhelmed by it. These are the persons he said, to whom the diagnosis of neuropathic pain would apply (trans. pp102 ‑ 105).
30. In re‑examination, Dr Castle said that the report of an MRI of July 2004 (he did not observe the films) indicated that the applicant did suffer from degenerative changes in her cervical spine. The report of disc protrusions at C4/5 to C6/7 would appear to be significant. He thought the applicant’s complaints were reliable and there have been occasions when she has been incapacitated by reason of physical pain and depression. He also acknowledged that there were absences from the workplace by reason of the infarct her husband suffered. He also noted that at June 2004, when the applicant reported dizziness, his notes also recorded that she had pain in her neck and the side of her face. Despite his opinion of the suitability of the workplace at March 2004, he thought her incapacity then was reasonable because she was then experiencing pain.
mr brearley
31. Mr Brearley is a general and trauma surgeon who examined the applicant on two occasions at the request of her solicitors. He also provided reports which were received into evidence.
32. Having observed CT and MRI reports, Mr Brearley was of the opinion that the applicant’s fall in September 2003 aggravated pre‑existing degenerative disc and ligament damage of her cervical spine. When he was acquainted in evidence of the applicant having been involved in two prior motor vehicle accidents, he agreed that he had not been given that history. He presumed it was not regarded by the applicant as being significant. He also agreed in evidence that the applicant had told him that she had not previously suffered from any neck or back problems. When he learnt the applicant attended doctors following the motor vehicle accidents, he said the extra history of past complaints did not change his pre‑existing opinion. He thought that she must have had a fairly fragile sort of cervical spine and lumbar spine prone to injury. Nonetheless it was his belief that the applicant had been working on a full‑time basis and had held a part‑time job with SBS. In those circumstances it was his opinion that she wasn’t having nearly as much trouble then as she was after she had the fall in September 2003.
33. Mr Brearley did not hold the opinion that the applicant’s complaints of dizziness before and after the fall were consistent with cervical spondylosis. He thought dizziness associated with neck injury would only occur if there was vertebral artery stenosis.
34. Mr Brearley last consulted the applicant in the month prior to the hearing and it was his opinion that there had been improvement since his consultation with her 12 months previously. Additionally he was confident that she would be able to resume her former employment and work on a full‑time basis.
mr brownbill
35. Mr Brownbill is a neurosurgeon who examined the applicant on two occasions at the request of her solicitors. He also provided reports which were received into evidence. He was of the opinion that the applicant suffered from spondylosis as evident by his interpretation of the MRI report. He held the opinion that she suffered soft tissue damage with aggravation of pre‑existing degenerative changes which were responsible for her subsequent pain. He regarded the spondylosis suffered by the applicant as being significant. He thought that the description of injury in September 2003 was classical whiplash (hyperextension). That is to say, structures within the cervical spine are compressed and distracted. He demonstrated the mechanism of cervical discs and facet joints being damaged by hyperextension. He learnt of the applicant having been involved in two previous motor vehicle accidents, whilst giving his evidence and also learnt of her attendance upon doctors with complaints of neck and back pain and headaches. Nonetheless Mr Brownbill maintained the opinion previously expressed that the fall of September 2003 had aggravated pre‑existing degenerative changes.
36. In cross‑examination, Mr Brownbill was of the opinion that the applicant remained capable only of working reduced hours because working for longer periods may exacerbate her symptoms. He agreed that he relied on the applicant’s description of symptoms in giving his opinion with respect to capacity for employment. He acknowledged that some persons do present with significant cervical degeneration with minimal and sometimes no symptoms at all. He thought the applicant did have an emotional reaction to the pain that she had experienced and it had contributed to her symptoms on presentation. He remained confident that she was capable of increasing her hours of employment if she avoided activities which caused discomfort. He thought that increased hours of work should be under medical supervision and caution must be expressed in increasing the hours because there is a risk of further cervical damage. He agreed that she should avoid heavy lifting, forced spinal movements, holding her neck in a fixed position, repeated bending and being able to sit and stand at will. He also agreed that if such a work regime was available to the applicant, the only basis upon which he could certify that she was not fit for full‑time employment was her complaints of pain.
dr muirden
37. Dr Muirden is a consultant rheumatologist who examined the applicant at the request of the respondent in June 2004. His opinions were expressed in a report of 28 September 2004 which largely gave rise to the decision made by the respondent which is under review in these proceedings.
38. Dr Muirden said that he had been in practice 30 years as a rheumatologist which he described as a speciality relating to aches and pains affecting joints, the neck and the back.
39. When Dr Muirden examined the applicant in June 2004, he said that her main complaint was of dizziness and whilst she did complain of neck pain, she consumed one paracetamol tablet per day only which he did not think indicated a severe injury. He was not aware of previous motor vehicle accidents or subsequent treatment. It was his opinion that it was difficult to determine what effect, if any, those accidents had had on spondylosis which he thought the applicant did suffer and which pre‑existed the fall of September 2003. He was of that opinion because spondylosis was apparent on an X‑ray which was taken in the week following the fall.
40. Dr Muirden was of the opinion that the applicant suffered soft tissue injury only in the fall and did not suffer any aggravation of the pre‑existing spondylosis. When he learnt of the opinions expressed earlier in the hearing by Mr Brearley and Mr Brownbill, he disagreed with them. In fact he thought that it was most unlikely that there was any aggravation of pre‑existing spondylosis. He remained resolute that there was soft tissue bruising only because in his opinion, the description of the fall suffered by the applicant was relatively minor and on that basis he expected there would have been a resolution of the effects of the fall shortly thereafter. He did acknowledge that if a cervical spine is hyper extended there could be injury to a degenerative disc or facet joint. He also agreed that whiplash injuries, even if trivial, could produce symptoms lasting for months or years. But the history that he had obtained of the applicant continuing to work for the week following the fall pointed to it not being of significance. He thought the soft tissue bruising would have resolved over a period of weeks and pain being experienced at June 2004 would more than likely be related to the pre‑existing spondylosis.
mr michael shannon
41. Mr Shannon is a consultant orthopaedic surgeon who examined the applicant on two occasions at the request of the respondent.
42. When Mr Shannon first examined in May 2005, he noted the reports of previous CT and MRI scans and thought that the applicant had significant pre‑existing spondylosis of the cervical spine which had been aggravated by the fall of September 2003. At May 2005, he also thought the applicant was then continuing to suffer the effects of the aggravation.
43. However, in October 2006, Mr Shannon again examined the applicant but had learnt of the applicant’s history of previous motor vehicle accidents and attendances upon doctors for treatment of neck and back pain. He said that when he first consulted the applicant she told him that she had not had symptoms previously of pain in her neck or back. In those circumstances he assumed that her pre‑existing spondylosis had been asymptomatic. When he learnt of the extent of her treatment including attending upon doctors in the months immediately prior to September 2003, he altered the opinion that he previously expressed. He noted that the applicant had worked for approximately one week after the fall in September 2003 and whilst he did not discount the possibility of the fall contributing to her symptoms, he was of the belief that the fall did not have a significant influence on her neck condition. He said that having learnt that the applicant had suffered fluctuating symptoms for ten years prior to the fall in 2003, it was his expectation – particularly as she became older – that she would continue to have ongoing pain consistent with the degenerative changes which were demonstrated upon the radiological examinations. He said that the applicant had told him that she was of the belief that the degenerative changes in her cervical spine had been caused by the fall and her perception of the nature of the injury had been altered.
opinions of doctors not called to give evidence
44. Dr Clayton Thomas practices in rehabilitation and pain management. The applicant was referred to him by Dr Castle. In a report of 20 January 2006, he reported that the applicant had degenerative changes in her cervical spine which were clearly long standing. He diagnosed symptomatic spondylosis of the cervical and lumbar spines. He recommended a pain management program. In a report of 29 November 2006 – after the applicant had completed her pain management program – Dr Thomas reported that the applicant was a valuable and active and hardworking participant (in the program). He recommended ongoing treatment of a conservative nature involving exercise. He thought the applicant would suffer persisting pain but believed that it would not become problematic with time. He was also of the opinion that the applicant would not suffer any future significant degeneration.
45. Dr Epstein is a psychiatrist. He reported in March 2005 and December 2006. In the latter report it was his impression that the applicant had a number of physical symptoms which pre‑existed the fall of September 2003. If that were so, it was his opinion that the pre‑existing symptoms had been aggravated by the fall, although, on the description given to him, the fall appeared to be relatively minor.
46. Dr Entwhisle is a psychiatrist who examined the applicant at the request of the respondent. In a report of 20 October 2006, he expressed the opinion that the applicant then had a capacity for work and from a psychiatric perspective she was fit for her pre‑injury duties and hours then worked.
47. Dr Ng reported on 6 March 2004 to the respondent directly (T17). It was his opinion – having referred the applicant for X-rays and CT scan of her cervical spine – that she had suffered an aggravation of her neck and back injury on spondalylitic spine with radiation of her neck pain down her right upper limb consistent with her stated cause.
submissions
48. Mr Moulds on behalf of the respondent submitted that it was beyond doubt that the applicant had degenerative cervical changes prior to the fall of September 2003. That was obvious from the X-rays and the CT and MRI scans. The critical feature of this application was the inaccurate and untruthful histories given by the applicant to medical practitioners including Dr Castle who consulted her on a monthly basis since November 2003. It followed, in his submissions, that some of the opinions expressed by doctors had been upon the basis of the applicant’s history of not having previously experienced neck or back pain and not being aware that she had previously been involved in two motor vehicle accidents for which she received treatment for neck and back pain. Additionally, there was evidence that the applicant had denied past episodes of dizziness and past psychiatric symptoms and treatment.
49. It was noted that Mr Shannon modified the opinion expressed in his first report when he learnt later of the applicant’s past history. Dr Muirden noted that the main presenting problem to him was dizziness.
50. It was noted that the applicant had been provided with duties in the workplace which would accommodate her pre‑existing spondylosis. It was noted that Dr Castle had inspected the workplace and thought that the duties and the opportunity to rotate was suitable. It was also noted that the applicant was capable of offering care to her infant daughter and to her husband and evidence in a recent video film depicted a person who was active and moving without any apparent restriction.
51. It was submitted that the respondent initially accepted responsibility for the consequences of the fall of September 2003. It also negotiated a return to work program for the applicant which she attempted by gradually increasing her hours but then became affected by pre‑existing dizziness. At June 2004, when the decision was made to end liability, the applicant then – on these submissions – was not incapacitated by the consequences of the fall in September 2003. It followed therefore upon these submissions that from that date the applicant has not had any entitlement to compensation.
52. Mr Ruddle on behalf of the applicant submitted that there was no dispute that the applicant did suffer from cervical spondylosis which although pre‑existing, had, in his submission, been significantly aggravated by the fall of 2003.
53. Mr Ruddle submitted that the previous motor vehicle accidents occurred in 1986 and in 1992. Both episodes involved minimal time away from the workplace and minimal treatment. It was submitted that at September 2003, the applicant was not then suffering from the effects of those accidents. Indeed, prior to the fall of September 2003, the applicant had been working with the Refugee Tribunal and previously had held a position with SBS Radio.
54. Whilst it was acknowledged that Dr Muirden found that the main presenting problem in June 2004 was dizziness, it was submitted that an examination of the notes of Dr Castle and his evidence indicate that the applicant’s complaints then to him were of neck pain and restriction of movement.
55. It was submitted that the applicant should be regarded as a credible person, who suffered significant injury, who has attempted rehabilitation by return to work programs and indeed by full‑time rehabilitation in 2006. She should be regarded in these submissions as a person who is attempting to return to full‑time employment but who continues to suffer from pain.
conclusion and reasons for decision
56. In this application evidence was heard from five medical practitioners and reliance made upon many medical reports written by doctors of varying specialities. The net result of that evidence is that it can be confidently stated that prior to the applicant’s fall on 15 September 2003 she did suffer from pre‑existing degenerative disease of the cervical spine which has been variously described as spondylosis. Additionally the evidence points to the applicant having previously suffered from neck, head and shoulder pain which the doctors agreed had an association with or was a consequence of the pre‑existing spondylosis.
57. The ability of medical practitioners to formulate a diagnosis must have regard to the complaints or symptoms expressed by the patient, the degree, frequency or severity of those symptoms, whether medication is consumed and if so, in what quantity and whether those symptoms have contributed to any incapacity or restriction in lifestyle. When doctors are advised that there is no prior history or significant previous events or circumstances are withheld, they are entitled to rely on the integrity of the patient and form a belief that an honest history is being given. Unfortunately the applicant’s extensive prior medical history was largely denied to doctors or withheld from them.
58. Perhaps the applicant honestly had forgotten that she was involved in motor vehicle accidents in 1986 and 1992. Those events occurred many years before the fall of September 2003. They were described by her as not being significant and caused minimal periods of incapacity. But she had many attendances on doctors over the years subsequently with complaints of neck and head pain. The frequency of attending upon those doctors for those same complaints is unlikely to have been forgotten.
59. Additionally, the applicant was exposed to two horrendous events in the mid‑1990’s where she was confronted by a disgruntled applicant from the Migration Tribunal. She was approached in her private home and it appears that on at least one occasion that person was armed. On the second occasion he was arrested by police and was imprisoned. She was subsequently diagnosed with post‑traumatic stress disorder. In early 2000 or 2001, she was engaged in disputation with SBS and was treated by a psychiatrist for many years. It is unlikely that that psychiatric history would have been forgotten. It is difficult to comprehend why, in those circumstances that history would be denied to Drs Athey, Cotton and Muirden.
60. The applicant had suffered from dizziness for many years which had been incapacitating and which had caused her to consult a number of doctors of differing specialities to determine the cause. It is unlikely that that illness would have been forgotten and it is disappointing that Drs Chambers, Castle and Mr Brearley were not aware of that condition.
61. The applicant is an intelligent articulate person. The explanations that she variously gave during the hearing for her failure to give or deny prior relevant medical histories (refer paragraph 18 earlier) do not make sense.
62. Some of the doctors were of the opinion that the applicant suffered from an aggravation of the pre‑existing spondylosis. Dr Muirden was of the opinion that the applicant suffered from soft tissue bruising. Mr Shannon initially thought the applicant suffered an aggravation of pre‑existing spondylosis and at May 2005 was of the opinion that the effects of that aggravation were then continuing. However when he learnt of the applicant’s prior history, his opinion changed and it was his belief at October 2006 that the symptoms then being experienced were consistent with the anticipated progression of the pre‑existing cervical disease. Specifically it was his opinion that the fall in September 2003 did not have a significant influence on her neck condition.
63. For reasons which will follow, I think that opinion is sound.
64. The applicant worked for approximately one week after the fall without incapacity. She attended a doctor largely because she was prompted to do so by a superior officer in the workplace. X-rays were obtained and incapacity was found by Dr Ng, the treating general practitioner. The applicant returned to work on a graduated basis and her management thereafter was largely the responsibility of Dr Castle. He said in evidence that at October 2004, the applicant had normal muscle power in both arms and normal reflexes. His recording of that neurological examination as depicted by symbols in his notes (which were received into and described in evidence) is identical with his notes of a neurological examination on 17 December 2003. That is, the same symbols are then recorded. It is difficult therefore to comprehend why the applicant was unable to work on a full‑time basis in December 2003. Certainly he recorded that there was a complaint of severe right arm pain and reduced power of grip and elbow flexion but those symptoms were inconsistent with the neurological findings.
65. In March 2004, Dr Castle conducted a workplace assessment and following consultation with relevant officers it was his opinion that the workplace was generally excellent. In a report written by him to the Assistant Director of Human Resources at the Migration Refugee Review Tribunals on 9 March 2004, he concluded that he was impressed by the co-operation of everyone present and their willingness to find satisfactory solutions to Mrs Aghajani’s difficulties at work.
66. In the months immediately prior to June 2004 it would appear that the applicant suffered a severe deterioration in her pre‑existing condition of dizziness. Dr Castle noted the presence of that condition on 10 March 2004 and it is again recorded in his notes on 22 April 2004 and 13 May 2004. On 10 June 2004, it is recorded as Dizziness very bad. Was away from work for one week. Went to Eye and Ear Hospital, had tests of balance etc. On 16 June 2004, he recorded Dizziness major problem. Stematil helps for about one hour.
67. On 21 June 2004, the applicant was examined by Dr Muirden at the request of the respondent. In a report of 29 June 2004 (T23) he recorded Her main symptom, which is dizziness, occurred several months after the injury. Despite reports of pain including headaches she is only taking a trivial amount of analgesic therapy. This points against the injury being responsible for her current condition.
68. The applicant worked intermittently until approximately November 2004 when she left the workplace to care for her husband who suffered a myocardial infarction. She did not work throughout 2005 and commenced a rehabilitation program in 2006. She has subsequently returned to work and has gradually increased her hours. It would appear that in early 2007 – subject to continuing good progress with her rehabilitation and treatment, she will be able to return to full‑time hours.
69. I think the applicant did suffer an aggravation of her pre‑existing spondylosis by the fall. I think the description given by Mr Brownbill was consistent with persons who suffer from hyperextension type injuries, that is, a sudden and forceful movement of the neck and head backwards and then immediately forwards – sometimes referred to as whiplash. In the alternative or additionally there was soft tissue bruising. But I do think that the effects of that episode were not permanent in nature and by June 2004 the pre‑dominant problem being experienced by the applicant was dizziness, (which, contrary to the understanding of Dr Muirden, existed before the fall in September 2003). I am also satisfied, contrary to the opinion of Dr Castle, that the dizziness is, consistent with the opinion of Mr Brearley, unrelated to the neck injury. The applicant did have some neck, shoulder and arm pains and headaches but I am not satisfied that those symptoms caused incapacity. The workplace had been modified in March of that year and Dr Castle had been impressed with the employer’s co‑operation. Indeed, on 1 April 2004, his notes record that the work station had been changed. The applicant left the workplace towards the end of 2004 but to care for her husband. She did not work throughout 2005 and the reasons remain unclear. She was initially given some certificates from Dr Castle for partial incapacity but later – not having returned to work at all – he provided certificates for total incapacity. She did return to work in 2006 but after the employer or Comcare provided a rehabilitation program which appears to have produced a good outcome. The applicant also agreed that after the Migration and Refugee Tribunals were merged, her duties were changed or modified in consultation with her to ensure that there was adequate rotation, that she does not perform repetitive or heavy tasks, and that she is provided with appropriate relief from duties when needed. That degree of co‑operation has apparently existed since March 2004 when Dr Castle first visited the workplace.
70. The applicant’s duties in the workplace as modified, would not, in my view, be responsible for her pain or any incapacity. The duties are consistent with the recommendations of Dr Castle and are in the nature of duties envisioned by Mr Brownbill (paragraph 36) as permitting full time employment. If the applicant does suffer pain it would be, for these reasons, the consequence of pre‑existing cervical spondylosis or its progression, unaffected by the fall in September 2003 or its subsequent temporary aggravation.
71. Her ability to care for her husband and child, maintain her home and perform activities of daily living (as depicted by the surveillance film) suggest the applicant does not suffer restrictions which could be translated to a finding of incapacity, in whole or part, from working. Whilst the film was taken in November 2006, I doubt, on the medical evidence, that the spondylosis or soft tissue bruising, or both would have caused any less restrictions at June 2004. The absence of restrictions I think can be translated into the activity expected of her at work and it follows that there would not then have been any incapacity.
72. On the probabilities I am not satisfied that the applicant has suffered incapacity by reason of an injury which arose out of, or in the course of, her employment or any disease to which the employment has made a material contribution since June 2004. Any incapacity prior to that date was by the temporary aggravation of pre‑existing cervical spondylosis or by soft tissue bruising, or both. On the probabilities, I am satisfied that the applicant has since June 2004 – at the latest – suffered from a combination of dizziness and the consequences of the pre‑existing cervical spondylosis or the consequences of the progression of that condition as would ordinarily be anticipated. As recorded earlier, I think the opinions expressed by Mr Shannon, concerning the cervical spondylosis, are sound and to be preferred. Any pain suffered by the applicant is consistent with the spondylosis. Additionally I am satisfied that the applicant has had an ability to earn since June 2004, at least an amount that she was earning prior to September 2003.
73. In all of the circumstances the decision under review will be affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace A Carney
Personal AssistantDates of Hearing 6, 7 and 8 December 2006
Date of Decision 30 January 2007
Counsel for the Applicant Mr G Ruddle
Solicitor for the Applicant Clark and Toop
Counsel for the Respondent Mr A Moulds
Solicitor for the Respondent Dibbs Abbott Stillman
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