Amanda Dwyer and Comcare
[2013] AATA 564
[2013] AATA 564
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3533
Re
Amanda Dwyer
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr W Isles, MemberDate 12 August 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – whether applicant suffered aggravation of pre-existing degenerative neck condition – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
CASES
Tippett v Australian Postal Corporation [1998] FCA 335
SECONDARY MATERIALS
F.M.K. Williams , P.N. Sambrook, 'Neck and back pain and intervertebral disc degeneration: Role of occupational factors', Best Practice & Research Clinical Rheumatology 25 (2011) 69–79
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr W Isles, Member12 August 2013
Ms Dwyer has worked as a Customer Service Officer for the Child Support Agency since 2006. In April 2007, while sitting at her workstation, she experienced pain in her neck. She notified her employer of the incident but made no claim. She saw her general practitioner, obtained some mechanical massage and took over the counter pain medications and fortnightly massage therapy for the next three months. Over the following four years she had occasional flare ups of pain and her neck never “felt right”. She had massage therapy monthly and took non-prescription medications.
In July 2011, while a passenger in a car, Ms Dwyer’s neck became very painful and “locked up” without any apparent incident or cause. After some investigations and treatment, she claimed compensation.
There is no dispute that Ms Dwyer has underlying degenerative cervical spondylosis which had, before April 2007, been asymptomatic. The only radiological investigations, undertaken in 2011, confirm this. Ms Dwyer contends that her employment has aggravated or accelerated her condition. Comcare contends that her symptoms arise from the natural progression of her degenerative cervical spondylosis.
The issue for us to consider is whether Ms Dwyer’s employment has aggravated or accelerated her underlying degenerative cervical spondylosis.
DID MS DWYER’S EMPLOYMENT AGGRAVATE OR ACCELERATE HER UNDERLYING DEGENERATIVE CERVICAL SPONDYLOSIS?
Ms Dwyer told the Tribunal that she first experienced pain in her neck when she was sitting at her desk typing. After her initial treatment with massage, Panadol and Nurofen she did not consult doctors further and continued with monthly massage, feeling that her neck was a “bit tight”. Following an assessment of her workstation she was given a document tray at work which she said helped her.
In July 2011 after she experienced severe and apparently spontaneous neck pain as a passenger in a car, Ms Dwyer went to a chiropractor for treatment which she ceased by the end of the year on the advice of her general practitioner. She took seven days off work. On her return she still had some pain but felt much better. Since the July 2011 incident Ms Dwyer has taken Panadol or Panadol Osteo every day and said she takes Nurofen for three days at a time when she is “in a lot of pain”. After December 2011 she was referred to a neurologist who in turn referred her to a physiotherapist who taught her some exercises. An MRI scan was done. She has had modifications to her keyboard and her office chair and now takes 10 minute breaks every hour and limits the amount of data entry she does. Occasionally she works standing up at her “sit/stand” desk.
Ms Dwyer said her necked “locked up” again in December 2012 while she was sitting at home having a coffee before work.
Ms Dwyer said she experiences pain or discomfort at work in the mornings and also if she vacuums for an hour or after she hangs washing on the line.
Ms Dwyer described the work she was doing when her neck was first painful in 2007. She said she spent roughly three quarters of her day speaking to customers on the phone and entering details such as name, address, bank account, marital status and workplace on the keyboard. Then she would make a telephone call and enter more data on the keyboard. She also completed form letters.
She said that on a recent six week holiday she experienced few symptoms, but when she returned to work she experienced symptoms within an hour.
We heard concurrent evidence from Dr Deveridge, General Surgeon, and Associate Professor McGill, Rheumatologist. They agreed that Ms Dwyer has degenerative cervical spondylosis and agreed they had taken the same or similar history from her. However, Dr Deveridge considered that her employment had aggravated her condition while Associate Professor McGill considered that her symptoms had arisen simply as the natural progression of the disease.
Dr Deveridge said that Ms Dwyer’s underlying condition was “exposed to an adverse posture”. He referred to “suboptimal ergonomics” and Ms Dwyer’s sustained posture at work. He considered the ergonomics of her work station to be suboptimal because changes were made to them after she complained. He considered that the nature and conditions of her work, in these respects, aggravated the underlying condition. The only specific aspect of the nature and conditions of her work that he mentioned was the position of her computer monitor, but we heard no evidence from Ms Dwyer about this. He allowed that locking of the neck is consistent with the natural history of her underlying condition.
Associate Professor McGill said there is no study that establishes a link between clerical work and neck problems. He thought Ms Dwyer’s symptoms were the result of the progress of her degenerative cervical spine condition and did not consider that her previous or current work activities were of a kind that would aggravate her underlying condition. He noted that Ms Dwyer has fluctuating symptoms whether she is at work or not. He said the potential influence of a suboptimal chair or computer monitor is limited to the time spent using them. He said the underlying disease process and genetically determined pain perception are responsible. Associate Professor McGill also noted that Ms Dwyer had been treated for anxiety for some time and suggested that her pain perception might be contributed to by this. He referred us to a study by F.M.K. Williams and P.N. Sambrook, ‘Neck and back pain and intervertebral disc degeneration: Role of occupational factors’ in Best Practice & Research Clinical Rheumatology, that indicates that the major contribution to spondylosis is genetics.
We find Dr Deveridge’s opinion less persuasive than that of Associate Professor McGill. Ms Dwyer said her posture at work was not sustained but rather data entry was interspersed with telephone calls, reading, meetings, the completion of form letters and sometimes using a pen, all with the ability to move around in her chair and adjust her posture. We also note the absence of complaint about or treatment for her condition for four years. This was in the context of a workplace that appears to have responded quickly to her complaints in 2007 with a small change to her workstation in the form of a document tray and, prior to 2011, with a new chair and keyboard and a “sit/stand” desk and the opportunity to take 10 minute breaks every hour. Nor are we satisfied that changes made to ergonomics are evidence of suboptimal ergonomics. The changes made were of a minor nature. It is also difficult to reconcile an aggravation caused by the nature and conditions of her work with the fact that most reported exacerbations occurred when she was doing nothing and was not at work.
We note Dr McGill’s suggestion that Ms Dwyer’s anxiety may have contributed to her perception of pain. However, this was not explored with Ms Dwyer and we have insufficient evidence to reach a concluded view.
Ms Dwyer said she experiences more symptoms at work than she does when she is at home, but she is not symptom free at home, despite being able to exercise more control over her environment and her own movements there.
We were referred to the judgment of the Federal Court in Tippett v Australian Postal Corporation [1998] FCA 335 in which Finkelstein J drew a distinction between the case of a person who has a pre-existing injury that causes the person to suffer pain whether or not the person is at work and the case of a person who has a pre-existing injury and it is the activities of work that cause the person to suffer pain or to suffer it more intensely. We consider that Ms Dwyer falls into the first category. In accordance with the judgment in Tippett, it could not be said that Ms Dwyer suffered an aggravation of her pre-existing degenerative condition.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Ms Ne Bell, Senior Member, Dr W Isles, Member ......[Sgd]..................................................................
Associate
Dated 12 August 2013
Dates of hearing 22 and 23 July 2013 Counsel for the Applicant Mr M Vincent Solicitors for the Applicant Williamson Isabella Lawyers Counsel for the Respondent Ms R Henderson Solicitors for the Respondent Sparke Helmore