Angelakos and Australian Postal Corporation
[2004] AATA 1132
•29 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1132
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/93
GENERAL ADMINISTRATIVE DIVISION ) Re SUSAN ANGELAKOS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P.J. Lindsay, Senior Member
Dr M.E.C. Thorpe, MemberDate29 October 2004
PlaceSydney
Decision The Tribunal affirms the reviewable decision of 14 November 2002 that determined there was no liability to pay Ms Angelakos compensation for permanent impairment resulting from the injury suffered on 4 December 2000. ..............................................
Senior Member
CATCHWORDS
Workers Compensation – lumbosacral musculo-ligamentous strain injury – whether entitled to compensation for permanent impairment of lower back and lower limbs – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 24, 27
REASONS FOR DECISION
P.J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member1. This is an application by Susan Angelakos for review of a decision made on 14 November 2002 by Australia Post refusing to pay compensation to her under ss. 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for permanent impairment resulting from a back and right hip injury.
2. At the hearing, Mr B O’Sullivan of counsel appeared for the applicant. Mr B Kelly of counsel appeared for Australia Post. The applicant gave oral evidence, as did a number of medical experts. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing.
3. Ms Angelakos is 38. She began employment with Australia Post in August 1999.
applicable legislation
4. Section 14(1) of the Act provides that an applicant is to be paid compensation if he or she suffered an injury that results in an incapacity for work or an impairment.
5. The following definitions in the Act are relevant:
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
permanent means likely to continue indefinitely;
6. Section 24 relevantly states:
Section 24 Compensation for injuries resulting in permanent
impairment(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
evidence
7. In her evidence, Ms Angelakos said that at around 11.30am on 4 December 2000 while working at Hurstville Post Office, she was asked by a colleague to help lift a big parcel that she thought looked heavy. Ms Angelakos said the parcel was on the floor under a cupboard, and they moved it to the end of a corridor. On placing the parcel on the floor, she twisted and felt a sharp, jabbing pain in the lower back. She said that she felt pain also in her right calf and the leg was numb. She did not complain about the pain at the time, either to Amy Kwok, who asked for help with the parcel, or to anyone else during the rest of her shift that finished at 5.00pm. She drove home despite her right leg having gone numb. In a statement dated 18 January 2001 that she gave to Australia Post, she said she did not report the injury straight away, since she did not think that the injury would be as serious as it turned out. She thought the pain would go away, and all she wanted to do was go and lie down and take something for it.
8. Amy Kwok, also a postal services officer, gave evidence at the hearing. Ms Kwok said that around mid morning, she had just finished serving a customer who had brought in a large parcel, weighing approximately 15 kgs. She needed someone to help her move the parcel off the counter. Since the ULD (a large storage unit) was full, they had to place the item in the entrance of the storeroom. Ms Kwok stated that the applicant did not say anything to her after they had placed the parcel on the floor.
9. Ms Angelakos had pain in the back that night but returned to work the next day, 5 December 2000. She found it difficult to stand and perform her duties at the counter, so the postal manager referred her to Dr T Sarich who certified her unfit for duties from 5 December 2000 to 7 December 2000 and made a diagnosis of lumbosacral musculo-ligamentous strain. She consulted her GP, Dr P Papadakis on 8 December 2000, who arranged an xray but it did not show any pathological bone lesion. The applicant’s evidence was that she was in a lot of pain in her back and her lower right side on her return to work on 8 December 2000. She did light duties involving some work at the computer, but sitting down caused her some pain in the back. She started physiotherapy to her middle back – ribs area and low back, but it did not relieve the pain.
10. Ms Angelakos completed a claim for compensation and rehabilitation on 11 December 2000. In the claim she described the events leading up to the injury, noted as being to her back and right hip, as follows: “Lifting heavy parcel approx 15 kilos with Amy (in the storeroom) in a cluttered area with no room to put the parcel down.” (T6) Jenny Davison, the applicant’s supervisor, made a statement on 13 December 2000 noting that the incident was not reported to anyone for 24 hours, not even to Amy Kwok (T6-15).
11. On 21 December 2000 Australia Post disallowed the applicant’s claim for compensation because the delegate was not satisfied that she had suffered an injury at work on 4 December 2000. The applicant sought reconsideration and her letter of 18 January 2001 (T13) explained that she did not report the incident immediately as it was not until she had completed the full day’s work and while walking to her car that she felt sore and struggled to walk and get into the car. She added that she was new to that post office and so did not want to feel embarrassed about complaining. On 23 January 2001 the respondent accepted liability for a low back soft tissue injury suffered on 4 December 2000 and for total incapacity from 5 December 2000 to 7 December 2000. Liability for incapacity from 19 December 2000 was denied because the applicant’s medical evidence did not provide an explanation for her relapse of symptoms. However, the respondent accepted that Ms Angelakos may still require medical treatment.
12. The applicant’s G.P. Dr Ralec considered that she was unfit for all duties from 19 December 2000 to 7 February 2001 due to left and right sided back pains radiating into the right hip and referred her to Dr G Richards, rheumatologist. A further xray on 2 February 2001 found a mild generalised annulus bulge at L4/5 and L5/S1 slightly lateralised to the left, with the intervertebral disc between L3/4 appearing to be fairly normal. Dr Richards reported to Dr Ralec on 6 February 2001 that he arranged for a CT of the lumbar spine to exclude a discogenic basis, which he thought was an unlikely cause of her low back pain and tingling sensation in her right anterior thigh region.
13. Australia Post arranged for Dr S Simmons to assess her. Dr Simmons considered her fit to return to work from 7 February 2001 on restricted duties for two hours a day, excluding lifting and repetitive bending. Dr Simmons suggested that a CT scan and nerve conduction study be undertaken. However, the applicant’s own doctor, Dr Papadakis examined her on 8 February 2001 and certified her unfit for any work that day due to back pain and right sided sciatica (T22-50). The applicant saw Dr C Costa, occupational health consultant, on 12 February 2001 who certified her unfit for work from that day and to be reviewed on 19 February 2001.
14. Dr Costa arranged an MRI scan by Dr K Falk on 14 February 2001 that disclosed no significant disc bulge in the cervical or thoracic regions. There was minimal disc bulging at L1/2 but no protrusion and the remaining lumbar discs showed no significant bulging. No arthritic process involving the right hip was found on xray. Nerve conduction studies on 16 February 2001 by Dr H Park disclosed no distal conduction abnormality in the right lower limb and no electrical changes of significant lumbar radiculopathy on the right. Dr Costa sent her to Dr G Rosenberg, orthopaedic surgeon, who informed Dr Costa on 22 February 2001 that the history and findings on examination suggested a lumbosacral disc injury. Dr Rosenberg noted, however, that the investigations had found no evidence for that, and accordingly he proposed a bone scan. The bone scan on 23 February 2001 (T36) did not show evidence of active skeletal or arthritic pathology or significant abnormalities in the lumbar spine, sacroiliac joints, pelvis, hips, femurs or knees. Dr Rosenberg’s report to Dr Costa on 2 March 2001 (T38) noted that, despite the findings in the bone scan, “I still believe, symptomatically, she has most likely sustained a lumbrosacral disc injury, subtle, such that it does not show up on the MRI Scan.”
15. On 25 February 2001 Dr Costa’s diagnosis was back pain, right sided sciatica and adjustment disorder, rendering the applicant unfit for any work (T37-77). Acupuncture and hydrotherapy sessions were recommended to help alleviate the applicant’s symptoms, and she continued receiving physiotherapy. Although she gained some relief, the pain did not disappear completely from her back.
16. Dr J Downes, orthopaedic surgeon, examined the applicant for Australia Post on 24 April 2001. Dr Downes prefaced his report as follows:
I state in advance that I am totally bewildered by this case and I only hope that my report is of some help to you. I have no clue what is wrong with the girl and I cannot even be sure whether she is genuine or suffering from some major stress condition.
She was with me for something like fifty five minutes and in that time I could not formulate an opinion. The whole thing could only be described as weird. I can only present the case therefore as I see it and allow you to come to your own conclusions. (T48)
From his examination, Dr Downes was unable to decide whether her pain was genuine because Ms Angelakos would not try to extend her spine due to pain. He thought the effort involved in helping to lift and move a parcel weighing approximately 15 kgs would be unlikely to cause damage to the back and that the absence of pain for the rest of the day of the incident, indicated on the balance of probabilities that she had not hurt it through that lifting. Dr Downes was unable to make a diagnosis on the basis of his clinical findings of diffuse pain around the pelvis precluding her from moving properly. He noted the investigations were normal. He suggested obtaining an opinion from a rheumatologist.
17. On 4 May 2001 Australia Post relied on Dr Downes’ opinion in making its determination that Ms Angelakos’ symptoms were not attributable to the injury at work on 4 December 2000 and thus she was not totally incapacitated for work and there was no longer liability to continue to pay compensation for her back injury (T50). By reconsideration dated 10 May 2001, the delegate affirmed that liability to pay compensation in relation to incapacity for work ceased from 19 December 2000 and liability for medical expenses and other benefits payable under the Act ceased with effect from 7 May 2001 (T54).
18. An xray of the pelvis on 12 May 2001 also found no acute bone pathology or abnormalities, though there was some calcification to the left side of the pelvis. In a report for the applicant’s solicitors dated 24 May 2001 (T59) Dr Costa diagnosed chronic low back pain aggravating an underlying degenerative and congenital condition as well as multiple intervertebral disc lesions. He considered there were symptoms of nerve root irritation to the right lower limb. He also diagnosed adjustment disorder due to chronic pain and ongoing disability. Dr Costa continued his certification that she was unfit for work. In his opinion there would be little improvement in the future. He found a 20 per cent permanent impairment of the back and 10 per cent loss of function of the right lower limb at or above the knee, both due to the work injury. However, his report did not in terms refer to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) issued by Comcare under s.28 of the Act.
19. Ms Angelakos returned to work on part time duties in May 2001 but did not cope with having to sit for extended periods and she experienced pain when getting up from her seat. She said her chair contributed to the pain and did not allow her to sit with her foot in an elevated position. She could not cope with the moving and twisting required when stamping envelopes.
20. When Dr Rosenberg reviewed Ms Angelakos on 8 June 2001, he noted she was angry and frustrated due to her continuing back and right leg pain. Dr Rosenberg found marked muscle spasm but could not establish a surgical cause for her symptoms (T61). In a report to Australia Post dated 18 June 2001 (T63) Dr Costa opined that by June 2001 Ms Angelakos was permanently unfit to return to duty as a postal services officer (T63). Dr Costa thought her low back strain had become chronic and was aggravating an underlying, degenerative and congenital condition involving disc lesions at L4/5 and L5/S1. She suffered from an adjustment disorder with mixed anxiety and depressive features due to her chronic pain and ongoing disability.
21. Dr Costa certified Ms Angelakos fit for restricted duties from August 2001. Australia Post, however, directed her to remain on sick leave because the workplace could not accommodate the medical restrictions (T65). Australia Post continued to direct her to remain on sick leave over the following months for that reason and also because the certificates from Dr Matar did not meet Australia Post’s requirements in respect of procedures for managing employees with non-work related medical restrictions. Ms Angelakos continued to receive physiotherapy and hydrotherapy. She began to have acupuncture in March 2002.
22. Ms Angelakos lodged a claim for compensation for permanent impairment on 4 June 2002 (T70), relying on Dr Costa’s assessment of 20 per cent impairment of the back under table 9.6 of the Guide and 20 per cent impairment of the right leg under table 9.5. By reviewable decision dated 14 November 2002, Australia Post determined that there was no liability to pay compensation under ss. 24 and 27 of the Act for any permanent impairment. In coming to that decision, the respondent noted that Dr Rosenberg could not identify any pathology that would account for the applicant’s symptoms, all investigations were reported as normal and Dr Costa did not offer an opinion as to the relationship between the applicant’s condition and her employment with Australia Post.
23. By December 2002 the respondent informed Ms Angelakos that she was going to be medically retired effective from 20 February 2003 unless she could produce further evidence that she was capable of carrying out the duties that her position entailed (T88). Subsequently, she was informed in a letter dated 28 August 2003 that she was to be medically retired from work on 4 September 2003 (Exhibit A10).
24. In response to a question from Mr Kelly, the applicant said she had not worked since she stopped working for Australia Post. She later had to contradict that answer when she acknowledged that she has at times helped out in her parents’ dress shop. She also said that she had done some selling of perfumes.
25. The applicant’s evidence was that she did not have a problem with her back or right leg before sustaining the injury at work on 4 December 2000. Since then, her pain has not improved except while receiving treatment, whether hydrotherapy, acupuncture, use of a TENS machine or through medication such as Panadol, Vioxx, mersyndol forte and a cortisone injection. She said the injury to her back and right leg prevent her from walking or driving long distances without pain, from standing for extended periods of time and from going up steps. She said she needed help with carrying heavy shopping bags.
26. The history of the incident and sequelae differed a little from doctor to doctor but was basically that of lifting an article at work on 4 December 2000, which resulted in pain in her right lower back.
27. Dr Papadakis reported that while lifting a parcel at work in a small cluttered area she felt (L) lumbar pains. She reported continuing low back pains and was therefore referred to Dr Richards. Dr Richards also reported whilst lifting a heavy parcel from the ground, she twisted her back experiencing a sharp pain on the right side. Dr Rosenberg reported that she helped another person lift a parcel when she felt a sharp right sided lumbar pain. Dr Costa reported that she lifted a parcel with another person when she suddenly developed a sharp pain in the right lumbar region. Dr D Maxwell, orthopaedic surgeon, qualified by Australia Post, took a more detailed history concerning the circumstances of lifting a box that resulted in her developing a sharp pain in the back on the right side. Dr N McGill, consultant rheumatologist, also qualified by Australia Post, obtained a history of a sharp pain in the back on lifting the box.
28. The doctors elicited varying physical findings on physical examination. We found no consistency in the findings apart from the respondent’s doctors eliciting no definite findings consistent with the underlying pathology.
29. Dr Rosenberg reported on 22 February 2001 (T34) that on examination, Ms Angelakos was stooped and in a great degree of discomfort. There was pain on straight leg raising, tenderness around the right sacroiliac joint and the top of the right buttock, with weakness in the right foot though reflexes were present. She had minimal forward flexion and no extension. There was weakness of her right foot, secondary to pain but reflexes were present and normal. In a later report dated 19 September 2003 (exhibit A3) he reported a slight reduction to light touch in the S1 and L5 dermatomes of the right leg.
30. On 22 July 2003 Dr Costa reviewed the applicant. He reported on 31 July 2003 (exhibit A5) that on examination she was tender over the low thoracic spine and the thoracolumbar junction, and back movements were more than 50 per cent reduced and neuromuscular component bilaterally. Straight leg raising on the right was to 60 degrees with increasing pain and to 80 degrees on the left with the pain increasing. There was weakness in the right lower limb proximally, mainly under the right foot.
31. Dr Richards, a rheumatologist who gave his opinion to the applicant’s GP on 6 February 2001, noted that she had difficulty bending forward whilst still standing and other movements appeared to be causing discomfort. There was no obvious para vertebral muscle spasm and when sitting on the couch she was able to touch her toes with her legs fully extended. She had normal straight leg raising during this manoeuvre.
32. Dr Maxwell examined the applicant on 20 March 2003. He reported that she walked with an affected limp on her right leg. There was decreased sensation in the right leg in the stocking distribution, a non-organic sign. Her right thigh measured 53cm and her left thigh 57 cm, probably as a result of disuse. Straight leg raising on the right was 20 degrees with a complaint of back ache and on the left 80 degrees. Dr Maxwell did not consider this was positive for nerve root irritation. Ms Angelakos complained to the doctor of tenderness on palpation of the L5 S1 facet joint.
33. At examination on 22 April 2003, Dr J O’Neill, consultant neurologist, could find no hard abnormalities on neurological examination. The abnormalities that were detected were of a non organic nature and included the giving way on testing power of dorsiflexion and plantar flexion of the right foot and the circumferential blunting to sensory testing in the right leg when compared to the left. His report dated 22 April 2003 (exhibit R1) concluded “It is likely Mrs Angelakos experienced a musculo-ligamentous low back injury at the time of the incident on 4/12/00 and such symptoms would be expected to settle within a matter of days to weeks. There is no discernable physical cause for her continuing complaints and I have no doubt there is a major if not total psychosomatic component to continued complaints… She is fit to return to her pervious type of work.”
34. Dr McGill examined the applicant in April 2003 and noted in his report dated 9 April 2003 that “She today demonstrated abnormal behaviour during the examination inconsistent with a physical cause. The alleged restriction of right hip movement could not be explained on the basis of spinal disease. “ (exhibit R2)
35. Relevant to the opinions expressed by the doctors were the reports and investigations available to every doctor:
·X ray of the lumbar spine (T5) taken on 8 December 2000 at the request of the applicant’s doctor, the report of which stated that:
There is slight scoliosis convex to the left, but lateral alignment and the heights of the disc spaces are within normal limits. The pedicles are intact and the SI joints are normal. L5 is transitional with a large right transverse process, but no pathological bone lesion is seen.
·CT Lumbar spine (T20) Dr S Mudbidri reported in February 2001 that:
Angled scans through the intevertebral discs from L3 to S1 showed mild generalised annulus bulge at the L4/L5 and L5/S1 slightly lateralised to the left. The intevertebral disc between L3/L4 appeared to be fairly normal. The spinal canal was adequate with no signs of canal stenosis, cord or nerve root compression. Normal neural exiting foraminae and exiting nerves were seen. In the bony windows, normal bony outlines were seen with normal lateral facet joints noted.
·MRI Cervical, thoracic and lumbar (T25) also taken in February 2001, Dr Falk reported that:
In the cervical region no significant disc bulge or protrusion is seen. The canal and foramina are adequate and the exiting nerve roots outline normally. The cervical spinal cord outlines normally.
In the thoracic region no significant disc bulge or protrusion seen. The canal is adequate and no abnormality can be seen in the thoracic spinal cord or conus.
In the lumbar region there is minimal bulging of the L1/2 disc but no disc protrusion is seen. The remaining lumbar discs outline normally with no evidence of significant disc bulge or protrusion. The lumbar canal is adequate and no foraminal compromise is seen.
No vertebral crush fracture is evident on scans obtained. No significant bony lesion is identified in the vertebral bodies.
Dr Falk concluded that there was slight bulging of the L1/2 disc, but no other significant abnormality was demonstrated.
36. Other investigations also available to the doctors included nerve conduction studies (T27) which concluded that
There is no distal conduction abnormality in right lower limb. There are no electrical changes of significant lumbar radiculopathy on the right.
A localised bone study with SPECT undertaken on 23 February 2001 found that (T36):
There is no evidence of active skeletal or arthritic pathology as a cause for the patient’s symptoms. No significant abnormalities are noted in the lumbar spine, sacroiliac joints, pelvis, hips, femurs or knees.
37. A number of diagnoses and opinions were made by different doctors.
38. Dr Sarich issued a certificate on 6 December 2000 listing the diagnosis as lumbosacral musculo-ligamentous strain/lower back injury/back injury while Dr Papadakis, another local doctor, on 8 January 2001 certified right lumbar pains radiating down to the right hip.
39. Dr Richards on 31 January 2001 arranged for a CT scan to exclude a discogenic lesion, which he considered unlikely. He reported some exaggerated response on her part during the clinical examination. He encouraged a return to work as soon as possible if the CT scan showed no evidence of nerve root irritation.
Dr Rosenberg initially reported that the applicant had sustained an injury to her lumbar spine as a result of an injury in December 2000. He considered it most likely due to a soft tissue injury but thought there was a chance she may have injured her lumbosacral disc. In a further report 8 June 2001 he considered she was unable to work such was her level of pain. In oral evidence, Dr Rosenberg did not have any doubt about the genuineness of the applicant’s complaints. When asked about the usefulness of the diagnostic tools such as CT scans and MRI, he replied that if they show what you expect to find then they are useful, yet it was difficult not to believe a genuine person even with normal or near normal radiology. He considered that taking CT scans and MRI in a static position when the patient was lying supine was an inherent defect, since typically people with mechanical back pain did not have pain when lying supine. Dr Rosenberg would recommend a provocative disc injection.
40. Under cross examination Dr Rosenberg held to his report of 19 September 2003 that although no pathology was demonstrated on any of the investigations, this did not necessarily rule out the existence of pathology. Tribunal member Dr Thorpe had asked Ms Angelakos to identify the site of the pain she felt and it was noted as left lower costal at the level of L1, about midway between the spine and the outer side of the chest. She also described a right lumbar sacral pain and a pain that was all over the right buttock. There was a diffuse pain that went down the right leg and in the back her right calf, as well as a tingling sensation in the sole of her right foot. In answer to the tribunal’s account of the applicant’s description of this pain and site of the pain and how this related to any disc pathology, Dr Rosenberg considered it most likely to be lumbar-sacral, the lowest disc.
41. Dr Costa in his report of 31 July 2003 opined that Ms Agelakos was suffering from chronic low back strain and multiple intervertebral disc lesions, particularly at the L4/5 and L5/S1 level and with nerve root irritation of the right lower limb. There was secondary cervical strain which is being perpetuated and aggravated by the altered lower back and lower limb/gait mechanics. In evidence Dr Costa said that it was fairly clear to him from the CT scan that there was a two level disc lesion at L4/5 and L5/S1 and that this was consistent with his observations on examination. In cross-examination, Dr Costa considered there were significant disc lesions at L4/5 and L5/S1. He also considered the MRI was not always 100 per cent accurate. He assumed the MRI would not necessarily show up a disc lesion properly and it might not show up a disc lesion if the patient was lying flat.
42. In response to the tribunal’s question concerning Dr Rosenberg’s report of 22 February 2001 stating that “I must say her story and findings strongly suggest a lumbosacral disc injury but I do not see evidence on the MR scan. Possibly she has strained her sacroiliac joint or else a facet joint and this would be amenable to a cortisone injection. This is the reason for ordering a bone scan initially”, Dr Costa had no comment. When asked about provocative lumbar disc injection, Dr Costa thought this was reserved as a preoperative procedure. The tribunal put the same question to Dr Costa as was asked of Dr Rosenberg concerning the site of the applicant’s pain and its relation to any disc pathology. Dr Costa replied that the pathological basis was a thoracolumbar strain affecting the left paravertebral, two level intervertebral disc lesions of the lower back with nerve root irritation to the right lower limb consistent with probably L5 and L4/5/S1 sciatica.
43. Dr Downes on 24 April 2001 in summary reported (T48) “You ask me a series of questions and I would love to be able to answer them but I really cannot. I will try but I do not have a clue what is wrong with this lady as I have previously stated and my general feeling is that there is nothing seriously wrong with her at all.” He suggested she be seen by a rheumatologist.
44. Dr Maxwell on 9 April 2003 did not consider there was a pathological basis to her pain. He did not consider she had any structural lesion responsible for her pain. Similarly, Dr O’Neill in April 2003 reported no discernable physical cause for her continuing complaints, and he had no doubt there was a major if not total psychosomatic component to continued complaints. In oral evidence, Dr O’Neill stated the examination findings were normal, apart from those that were non-organic and that the extensive investigations had failed to show any cause for the pain. He considered the MRI more accurate than CT scan for a disc lesion and that lying supine for CT scan or MRI examination did not cause any problem. He did not consider a discogram to have a role by and large these days. Under cross-examination Dr O’Neill stated the history was not typical of any organic process and that there was no diagnosis.
45. Dr McGill, in an examination conducted in April 2003, observed that Ms Angelakos demonstrated abnormal physical behaviour during the examination inconsistent with a physical cause. In his evidence Dr McGill said the examination had a number of inconsistencies that were just not in keeping with physical disease. He said he had viewed the CT scan itself and the MRI film, not merely the operators’ reports, and concluded the discs were normal, explaining that mild bulging is not an abnormality but something commonly found in asymptomatic people. Dr McGill knew of no advantage detecting a disc abnormality using positional CT and MRI.
46. Mr O’Sullivan questioned Dr McGill in detail concerning the following statement in his report (exhibit R2) “Unfortunately, assessment of her true situation was markedly hampered by a pattern of behaviour not consistent with physical disease”. To summarise his response to this line of questioning, Dr McGill did not resile from his written opinion, namely that his findings on physical examination were not consistent with organic disease and best explained by abnormal behaviour.
47. A surveillance video (exhibit R6) of Ms Angelakos was accepted into evidence. The general opinion by the doctors was that the video showed the applicant walking normally. Dr O’Neill considered that the applicant walked perfectly normally in the video, which was in contrast to her gait during the examination he had conducted. Under cross examination Dr Rosenberg agreed that Ms Angelakos did not walk in a stooped fashion on the video. Dr McGill said that the video suggested that her abnormal illness behaviour did not extend into everyday life. Dr Maxwell said the video indicated that Ms Angelakos did not have a limp when not being formally examined.
consideration and findings
48. We find that there was an incident at work on 4 December 2000 that occasioned pain to the applicant’s lower back and right leg, best described by Dr Sarich as lumbosacral musculo-ligamentous strain.
49. The applicant’s doctors, Dr Costa and Dr Rosenberg, are of the opinion that her ongoing symptoms are related to an injury to lumbosacral discs, in the case of Dr Rosenberg the lowest disc and in the case of Dr Costa, L4/5 and L5/S1. On his viewing of the CT scans, Dr Costa considered there to be significant disc lesions at L4/5 and L5/S1. Dr Rosenberg said that he believed the applicant’s symptoms despite the normal radiology. He also considered that the patient lying supine in a static position during the radiological examination was not the position when patients would be symptomatic. This was debated by all three doctors for the respondent on the basis of their clinical findings, the normal CT scans and all other investigations.
50. Looking at the findings on physical examination, we noted there was no consistency. The applicant’s doctors found restriction of spinal movement, variable response to straight leg raising and other odd signs, including a slight reduction in touch in the S1 and L5 dermatomes and weakness in the right lower limb proximally, mainly under the right foot. The respondent’s doctors found no consistent neurological signs. Dr McGill said Ms Angelakos demonstrated abnormal behaviour inconsistent with a physical cause. Dr Downes did not have a clue what was wrong with her and his general feeling was there was nothing seriously wrong with her at all.
51. Of some significance to us was the observation by Dr Richards about the applicant’s exaggerated response during the clinical examination, especially as he saw her in a treatment as opposed to a medico-legal context. Turning to the video, it was apparent that the limp present on medical examinations was not observed on the video. All doctors had difficulty interpreting the limp clinically, and taken in conjunction with the video showing her walking without a limp, we cannot accept the limp as genuine. We do not accept the applicant’s evidence regarding the extent and intensity of her lower back symptoms, and so we put less weight on the evidence of Dr Rosenberg and Dr Costa who said they relied on her accurate reporting of pain, its duration and distribution.
52. The difficulty for us was to determine any pathological basis to her complaints when there were no consistent, demonstrable physical findings and completely normal investigations, including nerve conduction studies and bone scan. Dr Rosenberg conceded that there was no pathology evident on the investigations, but contended that did not rule out there being pathology present. He thought provocative tests such as a discogram might demonstrate pathology, yet he has not recommended any such tests despite having seen the applicant on four occasions as a treating specialist. The value of discogram in these circumstances is doubtful in any event, given the evidence of Dr O’Neill and Dr McGill, the latter stating that an MRI is the most accurate and reliable means of detecting disc disruption. On balance we prefer the evidence of Dr Maxwell, Dr McGill and Dr O’Neill, whose interpretations of the investigative findings, that have been quite numerous and extensive, are more persuasive than that of Dr Costa and Dr Rosenberg. Moreover, Dr Costa appeared a little too willing to find an organic cause for a range of symptoms that baffled the other specialists. We were surprised by his opinion that the applicant’s life expectancy had been reduced by reason of the injury, even though there was no specific, relevant evidence pertaining to the applicant apart from a temporary increase in body weight. Dr McGill in fact found that her weight was ideal for her stature.
53. In the absence of any consistent abnormal physical findings, the normal investigations including full imaging of the lumbosacral spine, the opinions of all of doctors, save Dr Costa and Dr Rosenberg, that there was no underlying pathology and the presence of a strange limp that disappeared on video of three different days, we are unable to be satisfied on the balance of probabilities that there is any ongoing symptomatology due to the applicant’s lumbosacral musculo-ligamentous strain. We find that from 24 April 2001 when Dr Downes examined the applicant, she no longer suffered from the effects of that injury and she was capable of resuming her usual duties at Australia Post. She has no present entitlement to receive compensation under the Act in respect of the injury sustained on 4 December 2000.
54. We accept the evidence of Dr O’Neill and Dr McGill in preference to that of Dr Costa and find that Ms Angelakos’ lumbosacral musculo-ligamentous strain has not resulted in any impairment to the neck. The respondent submitted that whether the applicant suffered a permanent impairment to her lower back from her injury is dependent to some extent on her reliably reporting symptoms, such as restriction of movement of the back and the claimed muscle spasms. We agree with the opinions of Dr Maxwell and Dr McGill that the applicant does not have an impairment of the lower back that results from her injury, as we cannot be satisfied that she has not exaggerated her symptoms. In relation to her right leg, again an assessment of the level of whole person impairment depends on her description of her ability to deal with steps and grades. Based on the opinions of Dr Maxwell and Dr McGill as well as the video evidence, we are not satisfied to the requisite standard that the applicant has suffered an impairment, let alone a permanent impairment, to her right leg.
55. Accordingly, the reviewable decision of 14 November 2002 that determined there was no liability to pay Ms Angelakos compensation for permanent impairment resulting from the injury suffered on 4 December 2000 must be affirmed. There is no entitlement to costs.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member and Dr M.E.C. Thorpe, Member
Signed: .....................................................................................
AssociateHearing 1 December 2003 & 7 May 2004
Decision 29 October 2004
Applicant’s counsel B O’Sullivan
Respondent’s counsel B Kelly
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