Baig and Australian Postal Corporation - [2001] AATA 89

DECISION AND REASONS FOR DECISION [2001] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL ) Nos N1999/688

) N1999/1394

GENERAL ADMINISTRATIVE DIVISION       )          N2000/2
           Re      SHAHID BAIG
  Applicant

And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION

Tribunal Senior Member M D Allen

Date9 February 2001
PlaceSydney

Decision      The decisions under review are affirmed.
  (Sgd)                  M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
WORKERS COMPENSATION - Whether Applicant had work-caused cervical spondylosis with a disc protrusion and tendonitis right shoulder. Credit of Applicant in question. Reliance upon objective findings rather than Applicant's reports of symptoms. Permanent impairment claim, not satisfied condition permanent and Applicant not making out claim for lack of manual dexterity.

Safety, Rehabilitation and Compensation Act 1988

Comcare v Amorebieta 22 AAR 539

REASONS FOR DECISION

9 February 2001 Senior Member M D Allen

In this matter the Applicant sought review of three determinations by the Respondent. Those determinations were:
(i)matter No N1999/688. A reviewable decision dated 21 April 1999 affirming a prior decision to cease liability in respect of what was termed "neck and back condition";
(ii)matter No N1999/1394. A reviewable decision dated 24 August 1999 affirming a prior decision refusing to pay additional compensation to the Applicant for lost overtime after 25 November 1998; and
(iii)matter No 2000/2. A reviewable decision dated 1 December 1999 affirming a prior decision that the Applicant was not entitled to payment for permanent impairment in relation to the condition diagnosed as "right carpel tunnel syndrome".

At the hearing of this matter the claim in respect of matter No N1999/1394 was abandoned.
The Respondent has accepted liability for the Applicant's bilateral carpel tunnel syndrome and compensation together with medical expenses has been paid respecting the said condition. The Applicant's arguments in this matter were that, despite a carpel tunnel release operation carried out on both wrists, he has a permanent impairment resulting from the said condition which impairment exceeds 10% on the Comcare Tables (The Guide to the Assessment of the Degree of Permanent Impairment).
In its Statement of Facts and Contentions (Exhibit R1), the Respondent put its case as follows, namely:
"6.The respondent has no direct knowledge of what the applicant experienced however, on 23 June 1997 liability for cervico brachial soft tissues (sic) strain of the shoulder and neck was accepted.
…
8.The applicant was on leave from 3 June 1997 to 30 July 1997. The applicant returned on 31 July 1997 until 6 August 1997. During this period he was paid compensation of $8.26 per week. The applicant went on leave on 7 August 1997 and returned on 31 August 1997. The applicant resumed work on 4 September 1997 and was paid partial incapacity payments until 9 January 1998. The applicant again took leave from 10 January 1998 through to 28 February 1998. The applicant resumed work on 2 March 1998 and received partial incapacity payments until 1 April 1998.
…
CONTENTIONS
1.The respondent contends that during the course of the applicant's employment he developed bilateral carpal tunnel syndrome for which liability to pay compensation was accepted.
2.The applicant suffers from a pre-existing constitutional condition affecting his neck.
3.the applicant's (sic) sustained an aggravation to his pre-existing condition on 3 June 1997 the effects of which ceased on 20 April 1998.
4.The applicant is currently on leave without pay and is not entitled to any compensation whatsoever.
5.Any ongoing medical treatment required by the applicant is as a result of the degenerative nature of his condition and not as a result of his employment."

The Applicant was born in the Punjab on or about 14 April 1960 and, after completing a university degree in Pakistan, immigrated to Australia in 1989. He commenced employment with the Respondent in December 1990 as a parcel post officer.
At the outset I will state that I found the Applicant to be a very unsatisfactory witness. In cross-examination he was evasive and contradictory, for example at Transcript p53 (25 August 2000), apart from a failure of memory – which occurred often in his cross-examination, he denied seeing his general practitioner for problems regarding his neck. This is contrary to the general practitioner's notes (Exhibit R10).
Likewise, at Transcript p52, the Applicant states he first experienced problems in his neck and shoulders post 1993, namely on 3 June 1997. Again, this is contrary to his general practitioner's notes. On many occasions when pressed in cross-examination, the Applicant retreated into answers of "I don't remember".
The Applicant has also conceded that he has failed to declare on Taxation Returns and to the Department of Family and Community Services any income he has derived from driving a taxi.
I do not regard it as necessary to go into chapter and verse of the Applicant's inconsistencies in the course of cross-examination. Suffice it to say that my impression of the Applicant in cross-examination has been reinforced by a re-reading of the transcript of his evidence in chief and subsequent cross-examination and I find that I cannot rely upon his evidence except where it is corroborated.
Document T23 in the materials provided for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, in matter No N1999/688 reveals that the Applicant in 1993 made a claim for right shoulder ligament strain, which claim was denied. No review was sought by the Applicant respecting that claim.
As a result of pain in his shoulders in 1993, the Applicant was absent from work for two to three weeks. No apparent signs or symptoms of injury were noted by the Applicant until April 1997 when he began to feel numbness and pins and needles in his arms.
At this time the Applicant was working a rotating roster and undertaking overtime, particularly on a Sunday. Apparently the Applicant was eager to work Sundays because of penalty payments and would swap with other workers so as to carry out Sunday work.
Having experienced numbness in his arms, the Applicant consulted his general practitioner, a Dr Do, on 20 May 1997. Dr Do referred the Applicant for an x-ray of his neck. Although the Applicant in evidence in chief stated he consulted Dr Do regarding arm pain, the notes of Dr Do also refer to neck pain, and that the Applicant had acupuncture for that neck pain. Again this must be contrasted with the Applicant's evidence in cross-examination that he first experienced pain in his neck on 3 June 1997. He also denied seeing Dr Do regarding neck pain prior to 3 June 1997.
The Applicant claimed that on 3 June 1997 he had to lift a large number of parcels of varying weights into a delivery van after taking delivery of those parcels at the office of the Baptist Union at Glebe, an inner western suburb of Sydney.
The Applicant stated that after loading the parcels he began to experience pain which started in his left shoulder which then moved across to his right shoulder.
Upon return to his depot that day, the Applicant completed an incident report. That document is numbered T3 in matter No N1999/688. In that report the Applicant states that the pain started in the right shoulder, then in the neck and then in the left shoulder. More importantly, the Applicant states in that report that the symptoms were not a recurrence of a previous injury or type of illness.
On the same day, namely 3 June 1997, the Applicant completed a form for compensation. In that document he again stated that he never had a similar sort of injury.
The Applicant attended his general practitioner the same day. Dr Do's clinical notes refer to pain in the upper shoulders and neck. Dr Do issued a medical certificate stating that the Applicant was suffering "cervico-brachial soft tissue strain" and certified for absence from work until 9 June 1997. Subsequent certificates were issued and the Applicant was absent from work until 30 July 1997. He returned to work in the period 31 July 1997 to 7 August 1997, on restricted duties. On 8 August 1997 he underwent a carpel tunnel release on his left wrist, that operation being performed by a Dr Yee.
On 25 August 1997 the Applicant again returned to work on restricted duties. At the request of the Respondent, the Applicant was examined on 1 October 1997 by Dr Chen, a consultant in occupational medicine, in order to ascertain his fitness for work.
In her report (Document T57, N1999/688), Dr Chen took a history of the Applicant experiencing stiffness and discomfort in his right shoulder girdle on 3 June 1997. No history is noted by Dr Chen of pain in the neck or left shoulder. Under the heading of "CURRENT SYMPTOMS", Dr Chen notes at p220:
"Mr Baig estimated that his condition has improved by about 60-70%. He continues to complain of pain, stiffness and tenderness in both shoulder girdles, right more than left. He is still troubled by numbness, tingling and pain in the right hand, particularly at night. His left hand has improved considerably since undergoing surgery on 8 August 1997. There is still occasional numbness in the left hand."

Upon examination Dr Chen found:
"Cervico-thoracic posture appeared satisfactory. He demonstrated a full range of cervical spinal movements, reporting mild discomfort at the base of his neck with full flexion. He reported neck pain with lateral flexion and rotation towards the left. However, there was no evidence of any restriction in neck movements."

And opined at p221:

"Mr Baig complains of myofascial type pain in both shoulder girdles, right more than left, and this may be associated with some constitutional cervical spondylosis. He has a history of bilateral carpal tunnel syndrome, and clinical evidence of carpal tunnel syndrome in the right hand. The left wrist has been surgically treated with success."

As a result of Dr Chen's report, a return to work program, which included suitable duties to be performed by the Applicant, was prepared by the Respondent in consultation with the Applicant on 1 December 1997 (see Document T62, N1999/688).
Document T45 in matter No N1999/688 sets out the periods in which the Applicant was absent from work and those periods he was attending work, albeit on light duties, in the period from 3 June 1997 to 25 November 1998. As stated by the Applicant in evidence, he was absent from January 1998 to 2 March 1998 when he again resumed work on light duties. The documents indicate that his absence dated from 10 January 1998 (T45 p185).
A report on the Applicant's condition was prepared by Dr Collins, Physician, on 5 December 1997. In that report, Dr Collins records (T63 p232):
"He is still working in the parcels office. He has pain at the back of both shoulders between the shoulder and the neck. He also has pain in both elbows."

Commenting on x-rays (apparently those taken at the request of Dr Do in May 1997), Dr Collins states:

"MERRYLANDS X-RAY CERVICAL SPINE: The alignment was normal. Early marginal osteophytes are developing at the C4/5 level. The oblique views show normal neural exit foramina. No degenerative disc disease was present. No cervical ribs were present. Calcification was noted in the ligamentum nuchae. No other abnormality was detected.
Conclusion: Early degenerative changes have been demonstrated."

And diagnosed an overuse syndrome, namely:

"The patient has an overuse syndrome affecting the muscles of the shoulder girdle, the flexor muscles of the forearms just below the elbow, and bilateral carpal tunnel syndrome."

And attributed this condition to the Applicant's employment.

Following the report of Dr Collins, Dr Do referred the Applicant for a CT scan. The report of that scan dated 16 December 1997 reads (T65):
"There is a focal prolapse at the C5/6 intervertebral disc, extending towards the left lateral recess, in association with a minor degree of bony stenosis. This is consistent with left C6 radiculopathy as described. While there are discovertebral degenerative changes at other levels, no other sign of nerve root impingement is seen."
The Respondent referred the Applicant for physiotherapy. A report dated 22 December 1997 to the Respondent, with a copy to the Applicant's general practitioner, Dr Do, states (T66 p238):
"Active mobility of the cervical spine was found to be of an acceptable level in all directions although there was some reported pain at the end of range flexion."

Again, following a request by the Respondent, the Applicant was examined by Dr McGill, Consultant Rheumatologist, on 26 March 1998 (T79, N1999/688). Dr McGill took a history that on 3 June 1997 the Applicant had (p257):
"… collected parcels from six or seven customers including approximately eighty parcels from the last customer. He felt pain in the right shoulder region and also some pain in the neck and left shoulder. He saw his general practitioner, Dr Do and was referred for physiotherapy. At that time he ceased work. He resumed work in mid July performing light duties."

Upon examination Dr McGill noted (p258):

"He looked unhappy but provided a reasonably history and was co-operative with the physical examination. His movements when handling x-rays, dressing and undressing were normal.
Posture while sitting and standing was normal. He demonstrated a good range of neck movement (extension 90% of normal, other movements full) and he indicated that rotation of his neck caused some neck discomfort. Neck movements did not cause symptoms of cervical nerve root irritation.
He demonstrated full power in all muscle groups in both upper limbs, including the muscles supplied by the median nerves and including all of the shoulder girdle muscles."

And following that examination Dr McGill opined (p259-260):

"I think it is likely that his work activities contributed to the development of carpal tunnel syndrome. …
His cervical spondylosis is constitutional and degenerative in aetiology. I think it is possible that his work activities increased his symptoms related to cervical spondylosis although he may well have experienced the same level of symptoms even if he had not been performing the work activities with Australia Post. I think it is very unlikely that his work activities caused any permanent change in his neck and I think his current neck symptoms would have been approximately the same regardless of his work with Australia Post."

The next relevant report regarding the Applicant is a further report from Dr Chen dated 4 November 1998 (T90, N1999/688). Dr Chen took the following history (pp276-277):
"Mr Baig stated that he is currently performing full time clerical and administrative duties which include filing, answering the telephone and intermittent data entry, totalling two to three hours per day.
He stated that the pain in his shoulder girdles are no longer as troublesome. In the past three months, he has had a total of six injections into the muscles in his shoulder girdles by Dr Adler, rehabilitation physician. He stated that the injections have been of benefit in reducing pain in the shoulder girdles. He estimates that the pain in his shoulder girdles has improved by between 70-80%. There is residual intermittent pain in the right and left shoulder girdle, but the symptoms are no longer present on a daily basis."

On examination Dr Chen found (p278):
"He demonstrated full range of cervical spinal movements without any reports of discomfort. However, he reported a sensation of stiffness in the left side of his neck with lateral flexion towards the right. There was no tenderness to palpation of the cervical spine. He reported no tenderness to palpation in both shoulder girdles.
In the upper limbs, he reported localised tenderness to palpation around the right and left medial epicondyles. Provocative tests for medial epicondylitis was negative bilaterally.
There was no tenderness to palpation over the lateral epicondyles."

And then opined:

"Although the carpal tunnel decompression surgery has succeeded in resolving nocturnal tingling, he now has pain in his right thumb, index and little fingers, affecting his ability to type comfortably. The latter may be attributed to irritation of the right median nerve, which is expected to gradually settle over the next several months. …
He has a cervical disc prolapse at C5/6 but minimal neck symptoms. There is associated muscular type pains in the shoulder girdles, probably secondary to cervical spondylosis."

In assessing the reports of Drs McGill and Chen, it must be taken into account that the Applicant conceded in cross-examination that he had not revealed to either doctor that he was driving a taxi at weekends including up to 12 hours on a Sunday.
At Transcript pp75-76 on 25 August 2000 the Applicant was asked if he had told Drs Collins, Bodel, Cameron, McGill and Chen that he had been driving taxis. His initial reply was that he thought he told them, he then stated that he had told some of them but not all. When pressed, he finally conceded that he had told none of them.
Exhibit R3 is a report by Dr Collins to the Applicant's former solicitors, dated 18 August 1998. In that report Dr Collins states inter alia:
"I have used the Comcare scales for level of impairment of the upper extremities and back. These refer to functional impairment in accordance to loss of movement of the affected parts or loss of manual dexterity.
In accordance with these scales, the patient does not have any loss of movement or any loss of manual dexterity but only pain. The significance of this is that according to the Comcare scales disability in terms of the whole person is not assessable."

Dr Bodel, Orthopaedic Surgeon, examined the Applicant at the request of his current solicitors on 3 September 1999. In his report of 6 September 1999 (T7, N2000/2) he states (p10):
"The patient states that he began to develop a gradual onset of neck and right shoulder girdle pain which he first noted in mid 1997. There was no specific accident or injury which caused the onset of symptoms. (Tribunal's emphasis)
The patient reported the problem to his local doctor and he was off work for three or four weeks. His symptoms seemed to ease and he then returned to work and was put on lighter duty activities."

Under the heading of "INVESTIGATIONS", Dr Bodel noted (p11):

"This patient has no x rays or other tests available for review but I have seen reports of films of the cervical spine including a CT scan on 16.12.1997 showing evidence of disc pathology at C5/6 with some slight bulging to the left hand side. An x ray of the lumbosacral spine on 15.1.1998 is reported as being normal.
An ultrasound of the right shoulder on 12.6.1997 is normal and EMG and nerve conduction studies done on 11.6.1997 show bilateral median nerve compression at the wrists. Plain x rays of the cervical spine on 20.5.1997 show early degenerative change."

Dr Bodel then went on to opine (p12):

"This patient has developed a gradual onset of neck and bilateral upper limb pain which he associated with the nature and conditions of his work as a mail sorter at Australia Post.
The patient has disc pathology in the cervical spine and this has probably arisen as a result of the nature and conditions of his work at Australia Post.
The patient also has clinical signs of probable carpal tunnel syndrome in both upper limbs and also has some evidence of supraspinatus tendonitis in the right shoulder although there is no definite rotator cuff tear seen on an ultrasound.
…
The patient does suffer with a disease process which has been materially aggravated by his work. On the balance of probabilities his current ongoing complaints therefore are work related. He does have a somewhat guarded prognosis although now that he has stopped work he should slowly improve."

On 15 September 1999, Dr Bodel wrote a further report for the Applicant's solicitors in which he estimated that the Applicant had a permanent impairment in each upper limb of 10%. This assessment included impairment from "shoulder pathology". An earlier report by Dr Bodel (T8, N2000/2) dated 6 September 1999 refers also to impairment in the cervical spine and thoracolumbar spine which was, in Dr Bodel's opinion, work related. Dr Bodel did not say how these spinal disabilities were work related and his calculations of total impairment were not in accordance with Table 14.1, the Combined Values Chart, in the said Guide.
Following receipt of Dr Bodel's reports, the Respondent arranged for the Applicant to be examined by Dr Robert Cameron, Consultant Surgeon. His report of 16 November 1999 to the Respondent is Document T13 in matter No N2000/2. In that report he states (pp20-21):
"INVESTIGATIONS
Plain X-ray of Cervical Spine, 20/5/97
I viewed the films and enclose a copy of the report showing early degenerative disease consistent with his age.
…
Ultrasound of Right Shoulder, 12/6/97
I viewed the films and enclose a copy of the report showing no abnormality.
CT Scan of Cervical Spine, 16/12/97
I viewed the films and note the report in the documentation showing degenerative changes, particularly at the C5/6 level of a degree commonly found in asymptomatic people.
Plain X-ray of Lumbar Spine, 15/1/98
I viewed the films and enclose a copy of the report showing only early degenerative changes consistent with his age.
…
Examination of the Neck
Posture was normal with a normal cervical lordosis.
Mr Baig complained of pain in the back of the neck extending towards both shoulders, more on the left side.
There was mild voluntary restriction of neck movement with rotation reaching 50o to each side and lateral tilt 30o to each side. Flexion and extension were normal.
Examination of the Upper Limbs
Both upper limbs were normal to inspection with no shoulder girdle or peripheral muscle wasting, …
Elevation of both arms at the shoulders was slow but eventually near complete. No abnormality was noted in the shoulder joints.
Elbow, wrist and finger joint movements were normal. Scars of previous carpal tunnel surgery were noted in the base of each palm. There was no local tenderness."

Dr Cameron then opined:

"Treatment of carpal tunnel syndrome was appropriate with surgery to the left side in 1997 and the right side in 1998. He complains of occasional numbness in each hand at night. Reported sensory changes on physical examination today were not those of carpal tunnel syndrome or any other organic condition. There was no objective evidence of musculoskeletal or orthopaedic abnormality in the upper limbs or elsewhere."

Later reports by Dr Bodel (Exhibits A3 and A5) simply take issue with the assessment of impairment and reiterate that Dr Bodel continues to opine that the Applicant suffers a lack of dexterity in his upper limbs. Exhibit A3 is contradictory in that Dr Bodel states:
"… clinical presentation demonstrates that he does have some lack of digital dexterity … in spite of the fact that the patient had a full range of movement."

In evidence in chief Dr Bodel, having been given a history of the events of 3 June 1997 as stated by the Applicant in his evidence in chief, opined that it was more likely, on the balance of probabilities, that the Applicant suffered his disc prolapse as revealed in the CT scan on that date.
Dr Bodel also stated that his assessment of loss of dexterity in the upper limbs was following use due to increasing symptoms and fatigue. He conceded that upon viewing a video film showing the Applicant carrying out various activities including using a screwdriver, there was no major signs of incapacity in the way in which the Applicant used his hands. Dr Bodel also conceded in cross-examination that his assessment of loss of dexterity was based on an acceptance of the Applicant's description of symptoms.
Notwithstanding that an ultrasound of the Applicant's right shoulder was negative as to supraspinatus tendonitis, Dr Bodel was of the opinion, on clinical grounds, that the Applicant suffered from this condition.
Cross-examined, Dr Bodel conceded that the first time he had been given a history of injury, following events on 3 June 1997, was when he attended to give evidence. He stated that although he had, on the history previously given to him, implicated conditions of work as contributing to the Applicant's disc prolapse he "would be more comfortable with a defined event as leading to that pathology".
Questioned further as to the Applicant's right shoulder condition, Dr Bodel stated that he made his decision as an objective finding after examining the patient despite the absence of any painful arch of abduction and the negative ultrasound.
Dr Bodel was referred to Dr McGill's report of 26 March 1998 and conceded that, based on Dr McGill's findings, there was no pathology in the right shoulder, or in the shoulders, at the time of that report and any condition caused by events of 3 June 1997 had resolved at that time.
Directed to the Applicant's complaints of neck pain in May 1997, Dr Bodel agreed that it was speculative what caused a degenerative process (in the neck) to become symptomatic at that time. Further, there was no clinical evidence of any neck pathology interfering with the nerves of the Applicant's arms.
At p19 of the Transcript for 21 December 2000, the following passage occurs:
Question:"Amongst those findings about his shoulders you found no wasting in his shoulders, didn't you?"
Answer:"Yes, no wasting in the shoulders, that's right."
Question:"A finding that is consistent if the person is still using their shoulders in a relatively normal way, isn't it?"
Answer:"In general terms, yes."
Question:"the actual part of your examination that dealt with looking at the functional use of those limbs at the time you examined him you could detect no lack of movement in the elbow, wrist, or hand, isn't that so?"
Answer:"Yes, that's correct."

Further, at pp22-23, Dr Bodel is cross-examined as follows:

Question:"We are left entirely then, aren't we, with a subjective account by the patient of repetitive activity causing him symptoms?"
Answer:"That's not the whole answer that, is a substantial part of what is existing here, yes."
Question:"It basically comes down to this, doesn't it, that if you accept this man as honest and accurate in the description of his symptoms then you might be drawn to the view that he has problems with his digital dexterity?"
Answer:"Yes."
Question:"If you don't accept him on that then you're probably trying to – you can't draw that conclusion?"
Answer:"You can't, absolutely, that's correct."

Exhibit R2 is a report by Dr McGill dated 19 june 2000. In that report Dr McGill states (p3):
"Neck movements during the formal assessment of neck movement were restricted to 25% of normal. At other times, such as when looking at a scar on his left shoulder, he demonstrated full rotation.
Upper limb reflexes were normal.
Muscle development in the upper limbs were normal and symmetrical. …
During the assessment of muscle power in the upper limbs he demonstrated give way weakness with finger abduction bilaterally and during hand grip bilaterally but demonstrated full power in all other muscle groups in both upper limbs. The give way weakness in the fingers was highly variable, consistent with variable effort."

Dr McGill then answered a series of questions asked of him by the Respondent by stating that the Applicant suffered from the following conditions, namely (p4):

"carpal tunnel syndrome (cured by surgery on both sides).
Cervical spondylosis without evidence of cervical nerve root irritation or dysfunction.
Depression."

Adding:

"Despite the presence of cervical spondylosis, his musculoskeletal symptoms currently cannot be explained on that basis nor do I believe that they relate primarily to any physical disorder. I think his symptoms are primarily a manifestation of his unhappiness/depression. He repeatedly indicated that he felt under pressure from his co-workers but I do not have the psychiatric expertise to determine whether the psychological stress he described resulted primarily from endogenous (within himself) or exogenous (his co-workers) factors."

A further report (Exhibit R11) was sought from Dr McGill following the videotaping of activities carried out by the Applicant. In that report Dr McGill states inter alia:
"When I saw Mr Baig recently on 19 June, 2000, he reported widespread symptoms involving both upper limbs, the neck and the low back. There was inconsistency in the movements he demonstrated during the formal examination.
…
In summary, in the first section of the video, he was observed repeatedly bending and crouching while working on a car door. He demonstrated a very good range of neck movement and the ability to maintain his neck in difficult postures without any apparent problem. The only possible indication of discomfort related to possible stretching of the low back at one stage. He demonstrated normal upper limb function and there was no evidence of restriction of upper limb movement.
In the second section of the video … He demonstrated free bilateral shoulder movement such that his arms were elevated to just above shoulder height without any evidence of difficulty.
The video demonstrated a range of spinal movement way in excess of that which he performed during the formal component of the examination during which spinal movements were assessed. … Specifically he demonstrated a very good range of neck movement."

Cross-examined, Dr McGill conceded that a complaint of intermittent pain in the cervical spine is consistent with constitutional degenerative change that frequently produces a disc protrusion or prolapse of the sort seen on the CT scan of the Applicant's cervical spine.
In re-examination Dr McGill was asked whether, on the history of the events of 3 June 1997, it was more likely than not that the Applicant suffered a disc prolapse on that day. He replied that he did not for the following reasons, namely (Transcript p28, 22 December 2000):
"The fact that when I saw him, the events on that day didn't stand out in the history as being those of an acute disc protrusion because of the lack of severity of those symptoms. I note in fact just while I was sitting here that Dr Bodel, when he saw him subsequent to it, didn't actually record that there was any specific event at all. Put together with the fact that his cervical radiological imaging shows changes at three levels, it's not a single level disease. I think it's more likely than not that he did not have an acute disc protrusion occur on that particular day."

These remarks were entirely in keeping with Dr McGill's evidence in chief where he was asked namely (Transcript pp3-4, 22 December 2000)

Question:"It was also suggested that 3 June 1997 was a particular event that was likely to have led to a prolapse. Was there anything about the history of that event which would confirm or deny that suggestion in your mind?"

Answer:"It wasn't very suggestive of an acute disk prolapse."
Question:"Why was that?"
Answer:"If there was an event causing an acute disk prolapse it might be an event where there was a lot of extra pressure put on the disk at that moment, such as lifting something that was very heavy, particular with respect to lumbar spine. But if you were are really straining very heavily with the neck muscles then you might be able to cause an acute change in a cervical disk. His story was that he had been doing a whole lot of repetitive work, I mean it sounded like it was quite a hard days work in terms of lifting lots of boxes, but that no particular lift was strenuous to cause an acute event."

Dr McGill was also cross-examined regarding his examination and observations of the Applicant's range of neck movement. In particular he stated (Transcript p20, 22 December 2000):
"You don't have neck movements that are normal at one moment and restricted two minutes later or three minutes later. So the fact that he had restricted movements to 25 per cent of normal, followed within minutes by normal movements and preceded within minutes by normal movements. It's clearly not on the basis of fluctuation in the disease, this is a demonstration of lack of co-operation."

In dealing with the Applicant's supraspinatus tendonitis, Dr McGill stated (Transcript p4, 22 December 2000):
"When I examined him in 2000 there was again no evidence of that. …
If he had evidence of supraspinatus tendonitis when Dr Bodel saw him, given my examinations before and afterwards, I'd have to presume that he'd done something to irritate his rotator cuff in the weeks before he saw Dr Bodel or maybe a couple of months before."

At the time the Applicant saw Dr Bodel, he was on leave without pay.

Exhibit R5 is a videotape showing the Applicant performing activities including working on the passenger door of his motor vehicle. Reference to this videotape have been made by Drs McGill and Bodel. For reasons that are not apparent to me, the investigators who took the video films of the Applicant were required for cross-examination by the Applicant's counsel. The cross-examination of those persons did not advance the case for the Applicant, nor did it subtract from the Respondent's case.
Having regard to the evidence in this matter, I am more persuaded by the evidence of Dr McGill as to the cause of the Applicant's degenerative neck condition and prolapse, namely that it is constitutional. So far as the events of 3 June 1997 are concerned, I accept Dr McGill's opinion that the actions performed were not sufficient to cause a prolapse and, notwithstanding that the Applicant reported pain on that day, I find it inconsistent with an acute event that the Applicant did not tell Dr Bodel, his medico-legal consultant, about it.
Dr McGill considers that the Applicant's cervical spondylosis is degenerative and not affected by his work and I consider it significant that Dr Bodel was more "comfortable" with the neck condition being caused by a traumatic event. Dr McGill's opinion is supported by Dr Cameron who stated that the degeneration in the Applicant's cervical spine was consistent with his age as were degenerative changes in the Applicant's lumbar spine. Similarly, Dr Cameron regarded the degenerative changes at C5/6 level as being of a level commonly found in asymptomatic people.
I am therefore not satisfied that the Applicant's neck conditions have any relationship to his employment. In particular I find, based on Dr McGill's evidence, that the events of 3 June 1997 did not cause or contribute to an acute disc prolapse.
I further find, having regard to the evidence of Dr McGill, the reports of Dr Chen and the physiotherapy report of 22 December 1997, that the Applicant has no loss of movement in his neck or his right shoulder. If Dr Bodel found restriction of movement in the right shoulder, it was because the Applicant exaggerated his symptoms. I take account of the Applicant's evidence that he minimised his symptoms to Drs Chen and McGill because he wanted a clearance so as to be able to undertake higher duties but the fact remains that he was able to perform the required range of movement. In this regard, see Comcare v Amorebieta 22 AAR 539 at 553.
I am also more persuaded by the evidence of Dr McGill that no pathology exists in the Applicant's right shoulder. Dr Bodel has formed his opinion on subjective grounds and discounted an ultrasound examination and the range of movement actually demonstrated by the Applicant. As to the Applicant's statements of what his symptoms were, as stated earlier in these reasons I do not accept his evidence unless corroborated.
No dispute exists as to the Applicant having a bilateral carpel tunnel syndrome attributable to his employment. However, having seen the video film and considered the reports of Drs Chen, Collins (18 August 1998) and McGill and, having heard he evidence of Dr McGill, I find that the Applicant does not suffer any impairment as a result of that condition. Dr Bodel concedes that any finding of impairment, being a loss of dexterity, is dependent upon the Applicant's reporting of symptoms and I give credence to objective findings over the Applicant's evidence.
Even if I am wrong in this regard, I remain unsatisfied as to the permanence of the Applicant's carpel tunnel syndrome. Although the Applicant claims he now has symptoms of carpel tunnel syndrome, there was no evidence put before me as to whether further surgical intervention would relieve those symptoms. Dr Yee was the Applicant's treating surgeon and no report has been tendered from Dr Yee bespeaking as to the Applicant's current state and whether his symptoms are capable of resolution or not. Document T88 in matter N1999/688 is a request by Dr Yee for further nerve conduction studies following the Applicant's complaints of continuing symptoms. No evidence was before me as to the result of this request.
For the reasons outlined above, the decision in all three matters before me will be affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed:          Kwai-Ling Wong
.....................................................................................
Associate
Date/ of Hearing  25 August 2000, 21 & 22 December 2000
Date of Decision  9 February 2001
Counsel for the Applicant        Mr M Toomey
Solicitor for the Applicant         Ms A Webb, McClellands
Counsel for the Respondent    Mr G Elliott
Solicitor for the Respondent    Ms H Dejean,
  Australian Government Solicitor's Office

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Citations

Baig and Australian Postal Corporation [2001] AATA 89

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