Albert and Australian Postal Corporation

[2006] AATA 95

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 95

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos      N2001/132; N2001/845

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHIRLEY ALBERT

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member

Date6 February 2006

PlaceSydney

Decision The decisions under review are affirmed.

(Sgd)  M D Allen

..............................................

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – Applicants claim for permanent impairment – whether Applicant’s work with Respondent materially contributed to Applicant’s degenerative change or whether it is constitution based – conflict in medical opinion – decisions under review affirmed.

Safety Rehabilitation and Compensation Act 1988; s.14, 24

REASONS FOR DECISION

Senior Member M D Allen
Dr M E C Thorpe, Member

1.      By applications made 31 January 2001 and 18 June 2001, the Applicant sought review of decisions by the Respondent denying liability pursuant to Division 1 of Part 2 of the Safety Rehabilitation and Compensation Act 1988 for benefits including lump sum payments for permanent impairment.

2.      On 18 August 1997, the Applicant made two claims for compensation, the first referred to “recurrent upper back pain – neck - upper back – arms – elbows – hands” whereas the second referred to “disc protrusion – lower back – legs – right ankle, right foot, left ankle”.

3.      A further claim for non-economic loss for permanent impairment was made on 21 February 2001.

4.      Following the initial rejection of her claims on 5 May 1988, the Applicant was referred by her then solicitors to Dr Grahame Mahony, surgeon.  In a report dated 2 October 1998, he took a history:

“About 4 years prior to this consultation she noticed that she had difficulty in getting out of bed because of pain in her neck.  She said that she couldn’t ‘straighten’ her neck, however she continued working and her neck symptoms eased after two months.  She also added around that time she noticed pain in her back and left leg.  She sought advice from Dr Robertson and had attended physiotherapy and had seen a chiropractor.  She said her pain had been intermittent.

She later added that from 1987 to 1990, she stated she carried out ‘a great deal of mail sorting’.  She also carried out activities which involved separating and tearing documents which had been issued and she had to remove staples from Money Orders.

From 1990 to 1992, she carried out reconciliation of issued money orders.

In 1990 to 1998, she also added that her work had involved prolonged sitting since 1987.  Her work also involved stacking boxes of money orders, taking them on a trolley to a store room, each box weighing about 5 kgs and could stack to a maximum of 14 boxes and a minimum of about 10 boxes.”

5.      After examining the Applicant and reviewing imaging, Dr Mahony opined:

“Mrs Albert has developed symptoms referable to a cervical strain in association with degenerate changes with nerve root irritation affecting the upper limbs and there does appear to be associated discogenic lesions at the C4/5 and C5/6 levels and degenerate osteophytic displacement at the annular contour at the C6/7 level, a generalised strain of the elbows and the metacarpo-phalangeal joint of the right thumb as well as a thoracic back strain in association with degenerate changes and a low lumbar disc lesion of the L4/5 level with nerve root irritation affecting the lower limb.

It is consistent that excessive hard or heavy activities, carried out over a period of time as described, has produced such lesions”.

6.      On 17 May 1999, the Applicant was examined by Dr Chen, a consultant in occupational medicine.  The history taken by Dr Chen is consistent with the evidence given by the Applicant in these proceedings.  Dr Chen noted:

“Ms Albert has a long history of neck complaints dating back to 1990 and intermittent low back pain dating back to 1995.

She informed me that her neck pain began insidiously around 1990, when she woke up one morning and could not move her neck due to pain and stiffness.  She had a CT scan and eventually an MRI scan.  The MRI scan which was obtained on 19 August 1998 showed a disc annular tear at C4/5 and mild disc bulging at C5/6 and C6/7.

… She stated that when her neck pain began around 1990, she was employed in the GPO in an administrative and clerical capacity.  Her job was to sort mail into pigeon holes, open mail, collect/collate documents and bank cheques and file the bank cheques into boxes.  Other ancillary tasks included removing staples and securing bundles of cheques with elastic bands.  She worked in this capacity between December 1987 until 1990.

After her neck pain began, she found that she had difficulty removing staples and removing rubber bands and keeping her neck flexed for long periods.  She informed her supervisor, and was redeployed to a different job.  She learnt to do reconciliation of money orders, and worked in this capacity until 1998.  At some stage, she was asked to process mail again, but declined reporting neck, arm and upper back pain.  An assessment by a CMO in 1990 resulted in recommendation against further mail sorting.  Since then, she has been employed entirely in a clerical and administrative capacity.

In July 1998, she was redeployed to her current position as an Administrative Officer Grade 1.  She stated that her work involved keying computer cheque details into the computer, extracting information from the computer, tracing bank cheques (retrieval from boxes stored on shelves), photocopying and sending facsimiles.  She stated that she is performing all duties required in this position.  Occasionally, when the boxes are located at extremely high shelves, she obtains assistance for retrieving these boxes, as she is unable to reach.  She stated that she could probably mount a short step-ladder to access some of these boxes herself.  She stated that she is filing all the cheques and returning the boxes to the shelves without assistance.  She stated that her main difficulty is with prolonged neck flexion and repetitive arm movement.  Currently, she has a break from computer-based work every half an hour, during which she traces bank cheques, does photocopying and sends facsimiles.

Ms Albert informed me that she first experienced low back pain sometime in 1995.  She attributed this to having shifted a trolley containing several boxes of money orders.  She stated that she had placed several boxes of money orders weighing 5 kg each onto the trolley.  Then, as she tilted the trolley onto the backwheels, she experienced a stinging sensation in the central low back.  Initially, she did not pay much attention to this.  By the time she got home, she had increasing low back pain.  She put up with the symptoms and continued working for another week before consulting her GP”.

7.      After examining the Applicant and MRI reports, Dr Chen opined:

(1)Ms Albert has L4/ disc degeneration, mid thoracic disc degeneration and lower cervical disc degenerative disease.  These conditions are constitutional and consistent with age related change.

(2)…

(3)…

(4)Ms Albert is currently able to meet the inherent requirements of her position as an Administrative Officer Grade 1, despite the abovementioned restrictions.

…

8.      A further report was obtained from Dr Mahony dated 26 July 2001 but this report does not add anything to Dr Mahony’s prior opinion as to the causation of the Applicant’s injuries.  A later report dated 4 October 2001 refers to percentages of impairment.  It is impossible to give any weight to this report as Dr Mahony gives no indication as to how he derived the percentages of impairment he arbitrarily nominates.

9.      At the request of her solicitors, the Applicant was examined by Dr Philip Marnie, Orthopaedic Surgeon, on 7 June 2001.  Dr Marnie stated:

(a)That the nature and conditions of the Applicant’s work, with repeated neck movements, had been a substantial contributing factor in the production of symptoms and disability in her neck.

He further stated:

“In my opinion there are no substantial degenerative changes which are contributing to her neck disability”.

(b)As to her low back, the nature and conditions of her work with the pushing and loading of trolleys and also some rotatory strain on her back over the years with mail sorting were substantial contributing factors to impairment.  Dr Marnie went on to state that there was no evidence to suggest any marked degenerative changes contributing to that impairment.

10.     In his report Dr Marnie took a history that the Applicant used to enjoy walking and aerobics but had to give up those activities.  This is totally contrary to the contents of Exhibit R7; a video of the Applicant filmed in 2001, which shows her walking briskly, then jogging.

11.     In his report of 27 September 2001, Associate Professor Champion, Rheumatologist, noted degenerative changes both in the Applicant’s neck and back.  Also observed was a disc protrusion at C4-5 and a posterior disc protrusion at L4-5.

12.     Both in his report and in evidence to this Tribunal, Professor Champion stated that so far as the Applicant’s neck incapacity was concerned, repeated flexion of her neck in the course of her work may have influenced genetically predisposed changes.  As to her back, whilst the incident with the loaded trolley was not the primary cause of the pathology, repetitive stressors could have aggravated the disc pathology there.

13.     Professor Champion in evidence referred to studies, without being specific, which linked neck posture to degeneration.  This evidence was in direct contrast to that of Dr Neil McGill, Rheumatologist, called by the Respondent, who stated he knew of no such studies and that Professor Champion’s opinion was in direct contrast to other studies including studies carried out on twins.  These studies demonstrated that the major factor in degenerative change in the spine is genetic and that environmental factors played little part.

14.     Dr McGill examined the Applicant on three occasions.  His reports can be summarised by stating that whereas he accepts that there is pathology demonstrated in the Applicant’s cervical, thoracic and lumbar spine, the changes are degenerative only and conditions of work have played no part.  The Applicant remains fit for her previous duties with the Respondent.

15.     Dr David Maxwell, Orthopaedic Surgeon, also examined the Applicant on behalf of the Respondent.  He concluded his report by stating:

“Mrs Albert has minor degenerate changes in her neck and back.  She describes the onset of pain in her neck which she attributes to repetitive work.  There was no specific injury.  She is a vague historian and her symptoms fit no particular pattern of injury or disease.  They are probably related to fatigue.  There is no evidence on examination or on reviewing the reports of investigations that she has any significant structural lesion.

I consider the apparent tear of the triangular fibro cartilage of the left wrist is irrelevant.  It is a common false positive finding on MRI scans and she states categorically that she has no symptoms relating to her left wrist.

I do not consider she needs to have any restrictions placed on her work duties.  She is quite fit to work her normal duties without restrictions.

I do not consider that she has suffered any work related injury.

I do not consider that any work related injury or the nature and conditions of her work have contributed to her present symptoms”.

16.     Exhibits R7 and R8 in these proceedings are video films of the Applicant.  Exhibit R7 was taken in 2001 and shows the Applicant walking briskly and jogging.  This is contrary to her evidence to us that in late 2001 “it became impossible to walk”.

17.     In evidence, the Applicant complained of continuing neck, shoulder, elbow, wrist, calf and hamstring pain.  Although she stated she had difficulty in raising her arms, Exhibit R8 clearly shows her putting her hands behind her neck to attend to her hair.

18.     The major conflict in this matter is whether the Applicant’s objective pathology revealed on imagery is constitution-based degenerative change or whether the nature and conditions of her work have made a material contribution.

19.     So far as the Applicant’s lumbar spine is concerned, even Professor Champion agrees that the incident with the trolley was not the primary cause of any disc damage.  As the Applicant did not regard it necessary to seek medical attention the next day, it is unlikely any disc rupture occurred as a result of this specific trolley incident.  In his report of October 1998, Dr Mahony took a history of pain in the back and left leg four years prior; that is to say in 1994.  Yet the incident with the trolley was said to have occurred in 1995 leading to the inference that the Applicant certainly was experiencing back pain before the incident with the trolley.

20.     In his opinion of 2 October 1998, Dr Mahony stated that the Applicant’s conditions were consistent with excessive hard or heavy activities carried out over a period of time.  We do not accept, nor has it been argued, that the work activities carried out by the Applicant could be described as “excessive, hard or heavy activities”.  As this is apparently the basis of Dr Mahony’s opinion, that opinion can be rejected.

21.     Dr Marnie in his report attributes the Applicant’s symptoms in her neck and left arm to the C4/5 disc lesion.  He goes on to state that the nature and conditions of her work with repeated neck movements, has been a substantial contributing factor in the production of her symptoms and disability.  Dr Marnie does not explain how work caused a disc protrusion.  If however he means that neck movements at work cause pain, then that pain should have resolved when the Applicant ceased work.  If pain has continued then it is not work-caused.  We note also that Dr Marnie does not believe that degenerative change is causing the Applicant any problems and this is contrary to the opinion of Professor Champion who implicates degenerative changes aggravated by work.

22.     So far as the Applicant’s back is concerned, Dr Marnie regards the protrusion at L4/5 as causing symptoms.  He regards work as a contributing factor to impairment but does not state how the work would have caused a disc protrusion.

23.     Where the opinions of Dr Marnie conflict with those of Drs Chen, McGill and Maxwell, we prefer the opinions of the latter.

24.     Dr Chen in 1999 was of the opinion that the Applicant suffered from degenerative changes unrelated to her work.  Dr McGill took issue with Professor Champion in regards to the effect of work conditions including neck posture.  To our mind, Professor Champion’s evidence was vague and although he referred to studies, this was disputed and he did not specify the particular studies upon which he relied.  We were more convinced by Dr McGill’s evidence, supported as it is by Drs Chen and Maxwell, and we are not satisfied that the nature and conditions of the Applicant’s employment have made a material contribution to her current incapacities.

25.     The decision in matter N2001/132 regarding liability will be affirmed.  As the Respondent is not liable pursuant to s.14 of the Act for the Applicant’s incapacities the decision in matter N2001/845 rejecting the claim for permanent impairment payments pursuant to ss.24 and 27 of the Act is also affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member

Signed:  .....................................................................................
  Associate

Date/s of Hearing  20 January 2006
Date of Decision  6 February 2006
Solicitor for the Applicant          Ms B Lingeberzins, Turner Freeman Solicitors
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Graham Jones Lawyers