Barrett and Australian Postal Corporation
[2011] AATA 348
•25 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/3481 & 3685
GENERAL ADMINISTRATIVE DIVISION ) Re Raylee Barrett Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Senior Member Jill Toohey and Dr Haida Haikal-Mukhtar, Member Date25 May 2011
PlaceSydney
Decision The Tribunal sets aside the decisions under review and in substitution decides that:
(i) the effects of the injury sustained by Ms Barrett on 4 January 2010 did not cease as of 10 May 2010;
(ii) as of 10 May 2010, she was not fit to perform her pre-injury duties and did not have an earning capacity of 20 hours and 31 minutes per week; and
(iii) the respondent is liable to compensate her for the cost of the MRI scan.
....................[sgd]..........................
Jill Toohey
Senior Member
CATCHWORDS
COMPENSATION – postal delivery officer – lower back injury – whether effects of injury had ceased – whether applicant fit to resume pre-injury duties and hours – whether respondent liable to compensate applicant for costs of MRI scan – decisions under review set aside
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
REASONS FOR DECISION
25 May 2011 Senior Member Jill Toohey and Dr H Haikal-Mukhtar, Member Background
1. Raylee Barrett has worked as a postal delivery officer at the Singleton post office since 1996. On 4 January 2010, she injured her lower back while bending down to pick up a parcel.
2. The respondent accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for Ms Barrett’s injury and paid her compensation under sections 16 and 19 of the Act. The respondent contends, however, that the effects of the injury were short-lived and that any lower back problems Ms Barrett experienced after 10 May 2010 are the result of degenerative changes. The respondent also disputes liability to meet the cost of an MRI scan performed on 28 April 2010.
3. Ms Barrett seeks review of decisions made by the respondent, and affirmed on 24 August 2010, to the effect that:
(i)as of 10 May 2010, it was no longer liable to pay her compensation under ss 16 or 19 of the Act;
(ii)as of 10 May 2010, she was fit to perform her pre-injury duties and her compensation under s 19 would be calculated on the basis that she had an earning capacity of 20 hours and 31 minutes per week; and
(iii)it is not liable to compensate her for the cost of the MRI scan.
Ms Barrett’s evidence
4. Ms Barrett is 54 years old. At the time of her injury, she worked from 6am to 9.30am on Mondays, and from 6am to 9am from Tuesdays to Fridays (a total of 15 and a half hours), sorting and delivering mail. She occasionally worked overtime during busy periods such as Christmas and around tax time.
5. Starting around 6am each morning, mail would be delivered to the back verandah of the post office in three loads. It comprised letters, bulk mail such as magazines, some of which was too big for the private boxes, and parcels and boxes. The second and third loads were delivered around 7am and 8am.
6. Ms Barrett and another worker were responsible for bringing in the mail, sorting it into private boxes, and putting parcels and heavier items in the appropriate part of the office for collection. They had to work quickly to ensure all mail was sorted and ready for collection by 9am. They sorted letters into private boxes which were organised in a U-shape in front of them at heights ranging from about knee level to above head height. The boxes were arranged in such way that they were usually within reach but there was a degree of bending, reaching and moving around, and some degree of twisting to retrieve mail from a small trolley beside her.
7. Ms Barrett gave evidence that an increase in internet purchases means she and her co-worker have to bring in deliveries of bulky items such as televisions and Christmas hampers from the verandah to sort. She estimates some of the parcels could be “up over 30 kilos” and said she and the other worker would try to share the load. There was a trolley for moving parcels around in the office and a smaller trolley which had been out of use for several years after a wheel came off. The heaviest part of the work was collecting the large bags of mail from the front of the post office where people had posted it; Ms Barrett gave evidence that she did this alone and the bags “were just way too heavy”, although this was not something she did every day.
8. On 4 January 2010, Ms Barrett had taken a number of boxes of photocopier paper from the verandah into the office. While bringing in the second load of mail, she bent down to pick up a parcel from the floor. As she did, she felt severe pain in her lower back and down her left leg and could not straighten up. She left the box, made her way inside and told a fellow worker what had happened. She was advised to wait for “the boss” to come in to make a report. She was in a lot of pain and took some painkillers.
9. Ms Barrett continued working but later that day saw Dr Jiwan Jyoti, a doctor whom she had not seen previously. She was told at work to see someone that day and, as her usual doctor, Dr Jon Pauley, was away, she saw Dr Jyoti at another practice some distance away.
10. Dr Jyoti certified Ms Barrett unfit for work for one week and asked her to return at the end of the week. Ms Barrett says she was in pain all that week; she “did a lot of lying down” and took Panadeine Forte all week. A week later, Dr Jyoti referred her for physiotherapy which did not help. Dr Jyoti then referred Ms Barrett for a CT scan which was performed on 15 February 2010 and which showed some abnormality at the L3/4 segment of her spine. Dr Jyoti referred her to Professor Youssef Ghabrial, orthopaedic and spinal surgeon, who sent her for an MRI scan. The need for the MRI scan, and the differing medical opinions as to its significance, are considered below.
11. On 19 March 2010, Ms Barrett saw Dr John Watson, orthopaedic surgeon, at the request of the respondent. Dr Watson thought she had sustained a minor soft tissue injury of a musculoligamentous type, which had resolved, and that she had returned to her pre-accident state. He thought any ongoing problems were the result of degenerative change. He did not think she needed further investigation.
12. Ms Barrett has continued to see Dr Jyoti for her lower back pain. Dr Jyoti has certified her unfit to resume her normal duties other than for one hour each day and subject to a five kilogram restriction on lifting.
13. Ms Barrett was asked in evidence why she has continued to see Dr Jyoti even though her practice is some 11 kilometres further from her home than Dr Pauley’s. Ms Barrett said she likes Dr Jyoti and the medical practice where she works, and she had been thinking of changing from Dr Pauley in any event.
14. Ms Barrett says she continues to suffer from pain in her lower back, with occasional pain in her right leg but mainly in her left leg. She maintains she is no longer able to perform her pre-injury duties; in particular, she could not do the heavy lifting; she says she wanted to return to work but no suitable duties were made available.
15. By letter dated 11 October 2010, the respondent advised Ms Barrett that the restrictions placed on her by Dr Jyoti could not be accommodated in her usual position and nor was there any suitable other position to which she could be deployed; in these circumstances, she was directed to remain on sick leave until such time as her restrictions, or operational requirements, changed.
16. Ms Barrett’s current treatment comprises monthly physiotherapy and walking, and most days she takes Panadeine Forte and Voltaren. She says she tries to do everything that she could previously but she finds it hard to stand for long periods and could not do the repetitive twisting and reaching down involved in her work duties. She says she has difficulty driving but does so a couple of times each week, such as into Singleton for groceries; her husband or daughter usually drives her to physiotherapy appointments, although she has driven herself “a couple of times”.
17. Ms Barrett denies any lower back problems prior to January 2010, other than in 2001 when she fell from a horse. She gave evidence that, on that occasion, she had “a slight crack” in her lower sacrum, she thinks on the left side. Asked by her counsel whether she had “a pelvic injury”, she said she had. In cross-examination she said she was “not real good on anatomy”; she was not sure if the word “pelvis” was used, she only remembers being told she had “a fine crack”.
18. The report of a CT scan in 2001 of Ms Barrett’s lumbar spine and pelvis shows “an undisplaced fracture measuring about a centimetre in length is seen in the lower left sacral body adjacent to the postero-inferior aspect of the left SI joint”. She was off work for six weeks. She was treated with painkillers and rest, and the injury resolved quickly.
19. Apart from treatment for her work injury, Ms Barrett is also consulting Dr Ludka Berkowski for hormone and thyroid problems. She first saw Dr Berkowski around May 2009 when she was experiencing fatigue, and aches and pains. She has attended on Dr Berkowski in her Chatswood rooms twice; her daughter drove her on both occasions. Dr Berkowski faxes prescriptions to a pharmacy which fills them and sends the medication to Ms Barrett.
20. Ms Barrett has also been treated by a chiropractor for neck problems that she has had for “quite a few” years, and for shoulder problems. It was put to her in cross-examination that Dr Ghabrial’s report showed that she told him she had started to develop symptoms in her neck, radiating to the left arm, a few weeks after her work injury. Ms Barrett gave evidence “that was the arm problem” and she did not recall telling Dr Ghabrial that neck problems developed after her work injury. (Dr Ghabrial was not asked about this part of his report in evidence.)
Consideration of Ms Barrett’s evidence
21. The respondent contends that the credibility of Ms Barrett’s evidence is open to question on several grounds and that we should approach it with caution.
22. The respondent contends that Ms Barrett has not been frank in disclosing her medical history to all the doctors, in particular, her prior back injury, and her neck condition. For instance, she did not tell Professor Ghabrial about her previous neck condition or about the fall from the horse, and Dr Neil McGill, rheumatologist, stated in his report that “she could not recall any similar previous problems”.
23. In oral evidence, Ms Barrett said she told those doctors who asked her about her history. Support for her claim is found in the report and oral evidence of Dr Raymond Wallace, orthopaedic surgeon, who saw Ms Barrett for assessment. He refers to the 2001 injury in his report and told the Tribunal that he specifically asked Ms Barrett about prior injuries. We note, too, that Dr Ghabrial gave evidence that she told him she was seeing a chiropractor. On the other hand, Dr McGill recorded that “she could not recall any similar previous problem”, tending to suggest that he asked her directly. However, as he was not asked about this in evidence, we cannot know for sure.
24. Further, the respondent says, Ms Barrett has given inconsistent histories to the doctors of the work injury itself. For instance, Professor Ghabrial recorded that she was lifting heavy boxes at the time of her injury; Dr Watson recorded that she was lifting a parcel; Dr Wallace recorded that she had been lifting 14 boxes of computer paper and other cartons weighing up to 12 kilograms prior to her injury. In contrast, Ms Barrett confirmed in oral evidence that she was not lifting a parcel at all but had her hands on it, prior to lifting it. We note that her oral account was consistent with Dr McGill’s report that “she bent over to pick up a parcel and at that time felt sharp pain in her lower back. She put her hands on the parcel but did not move it off the ground.”
25. The respondent also contends that Ms Barrett’s results on straight leg raising have been inconsistent when seeing different doctors: Dr Watson recorded 80 degrees on the left leg and, 90 degrees on the right leg on 19 March 2010; in November 2010, Dr Wallace recorded 30 degrees on the left leg and 40 degrees on the right leg; in November 2010, Dr McGill recorded 70 degrees bilaterally. The respondent contends that these varying results would have influenced the doctors’ findings.
26. The respondent points also to Ms Barrett’s decision to continue seeing Dr Jyoti about her back rather than Dr Pauley, who had been her doctor for some years and who knew her medical history including her prior back injury and neck, even though she has to drive (with some difficulty) 11 kilometres further to see Dr Jyoti. The implication suggested by the respondent is that Ms Barrett has chosen to see the doctor more favourable to her claim. In any event, the respondent contends, Dr Jyoti had not had the same lengthy knowledge of Ms Barrett as Dr Pauley would have.
27. Finally, the respondent says Ms Barrett refused to consent to the respondent talking to Dr Jyoti about the work restrictions she had imposed, including why she thought a five kilograms weight restriction appropriate, in contrast to Professor Ghabrial, who thought 10 kilograms appropriate. Dr Jyoti was not called to give evidence and so we know only that she considers a five kilogram restriction appropriate. Mrs Barrett denies ever refusing such consent. There is no evidence before us of such request by the respondent.
28. We have considered carefully the matters raised by the respondent but we do not think they undermine the overall credibility of Ms Barrett’s evidence. We found her to be a credible witness. Her memory for dates and details of events was not always clear but we are satisfied she did her best to give her evidence as truthfully as she could and without exaggeration.
29. We accept Ms Barrett’s evidence that she only disclosed her prior back injury to doctors when specifically asked. It occurred nine or ten years ago, it resolved quickly, and there is no evidence of ongoing problems; it is plausible that she did not mention it unless specifically asked. The only suggestion that she may have failed to disclose the prior injury is in Dr McGill’s report and, as we have already noted, we draw no conclusions about this from his report.
30. It is true that there is some variation in the histories recorded by the doctors of the incident on 4 January 2010 when Ms Barrett injured her back but they are not great and we do not think they undermine her credibility overall. They may have been influenced by what each doctor asked her at the time and in what detail.
31. Dr Wallace, who was the only doctor asked specifically about Ms Barrett’s results on straight leg raising, gave evidence that levels of limitation can vary over the course of an injury and on the underlying pathology. There is no evidence that would lead us to conclude that Ms Barrett was exaggerating the limitation at different times.
32. Ms Barrett did not appear to us to exaggerate her claims. She did not deny that she can do things such as drive to the shops to do the shopping, and take groceries to the car and unload them at home, but says she does so with difficulty.
33. We do not think it undermines Ms Barrett’s evidence that she has continued to see Dr Jyoti. She happened to see her on the day of her injury and her explanation for continuing to do so is plausible.
34. Considering all the evidence, we are satisfied that Ms Barrett was a truthful witness and we accept her evidence. We accept that she continues to experience painful symptoms in her lower back. The question is whether, since 10 May 2010, those symptoms have been attributable to her work injury.
Professor Ghabrial’s evidence
35. Professor Youssef Ghabrial has provided three written reports and gave oral evidence. He first saw Ms Barrett on 1 April 2010. On that date, he reported to Dr Jyoti that there was no evidence of radiculopathy in Ms Barrett’s lower limbs or left arm but, due to the doubt about the L3/4 disc shown on the CT scan, he had referred her for an MRI scan of her lumbar spine.
36. On 3 June 2010, Professor Ghabrial reported to Dr Jyoti that the MRI had shown “a small right bulge at the L3/4 segment without neural compromise. There was similar bulging at the L4/5 and L5/S1 segments, worse at the L4/5 segment, towards the right side”. It showed no pressure on the neural elements and, in the absence of any radiculopathy, he would be reluctant to consider surgery.
37. Professor Ghabrial concluded that Ms Barrett’s problem was most likely related to the L3/4 disc, most likely as a result of her injury at work, and he recommended she avoid lifting weights over 10 kilograms, excessive bending and excessive twisting. He noted that her job involved these activities but thought a modified job could be considered by her employer. (We note there is no evidence that Ms Barrett‘s job involved excessive bending and twisting). He confirmed that he had had no contact with Dr Jyoti and had not discussed her restriction on lifting to five kilograms.
38. In oral evidence, Professor Ghabrial agreed that Ms Barrett has degenerative changes consistent with her age but said that the asymmetrical bulge shown on the MRI is more consistent with an injury than with degenerative change which, in his view, tends to involve the disc bilaterally.
39. In reaching the conclusion that Ms Barrett’s symptoms were due to her work injury rather that to degenerative change, Professor Ghabrial considered it significant that she had no history of prior problems but had problems following the work injury, the MRI scan “confirmed the CT scan doubt”, and it was consistent with his clinical examination in which Ms Barrett showed “muscle guarding” consistent with spasm. Further, although the MRI did not show when the changes occurred, he thought it likely they were within the past two years because there was little evidence of degenerative change such as dehydration of the disc which occurs over years, or ossification. He gave evidence that the only way to determine the matter for sure would be by way of a discogram, an invasive procedure which he would not recommend just to put the matter beyond doubt.
40. Professor Ghabrial thought it reasonable that Ms Barrett avoid lifting weights of more than 10 kilograms which he thought could increase to 15 kilograms once she was fully recovered and if she had no tenderness or muscle spasms. He gave evidence that, when he last saw her in June 2010, she had muscle guarding consistent with some spasms.
41. Professor Ghabrial confirmed that Ms Barrett told him she was seeing a chiropractor but he had not recorded whether she told him the treatment was successful or not.
42. Professor Ghabrial’s evidence about whether an MRI was necessary or relevant in Ms Barrett’s case is considered below.
Dr Wallace’s evidence
43. Dr Raymond Wallace, orthopaedic surgeon, saw Ms Barrett on 25 October 2010 for examination. He provided reports dated 18 November 2010 and 9 March 2011, and gave oral evidence.
44. The history Dr Wallace took from Ms Barrett included the injury in 2002 when she fell off a horse; he noted the injury to her lumbar spine settled with a short conservative treatment plan. He thinks it “highly unlikely” that injury has any bearing on her current condition because it happened nine or ten years ago, it resolved quickly and she had no intervening problems. He confirmed that Ms Barrett told him she has been seeing a chiropractor.
45. Dr Wallace diagnosed musculoligamentous strain of the lumbar spine, central disc protrusion at L3/4 level, and temporary aggravation of pre-existing degenerative disc disease of the lumbar spine, all as a result of Ms Barrett’s work injury. By “temporary” he explained that he meant only that he could not predict the future and could not say at this time that it is permanent; he would expect improvement after six to twelve months from when he saw her.
46. When he saw her on 25 October 2010, Dr Wallace considered Ms Barrett unfit to return to her pre-injury duties; her condition had not stabilised and she had not reached maximum medical improvement. He thought she was not fit for activities requiring repetitive bending or twisting movements at her lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above 7.5 kilograms (he thought she could lift that weight “occasionally”), working in confined spaces, at heights or on ladders, or prolonged periods of walking or climbing stairs. However, subject to these restrictions, she was fit for light duties up to 15 hours per week.
47. In Dr Wallace’s opinion, the condition of Ms Barrett’s spine at L3/4 level is consistent with an acute injury. He considers her employment a substantial contributing factor to her condition. He agrees that she has degenerative changes but believes the disc protrusion at L3/4 level is more consistent with acute injury than with degenerative change which he believes explains the changes seen at the lower level discs. He agrees with Professor Ghabrial that a symmetrical bulge at L3/4 level would be consistent with degenerative change and the asymmetrical bulge in Ms Barrett’s lumbar spine is consistent with an injury.
48. It was put to Dr Wallace that, whereas according to his report Ms Barrett was straightening while lifting a parcel, her evidence was that she had only put her hands on the parcel when she felt a sharp pain. He said he had the impression, from his notes, that she was attempting to straighten up while lifting the box but he thought it made little difference because she had been lifting weights up to 12 kilograms prior to her injury and, he said, pain is not always felt at the time of lifting; a disc can rupture at the time of lifting without pain and protrude and cause pain on the next occasion of bending, even without lifting.
49. Dr Wallace’s evidence about the need for the MRI is considered below.
Dr McGill’s evidence
50. Dr Neil McGill, rheumatologist, saw Ms Barrett on 18 November 2010 for examination. He has provided a written report and gave oral evidence.
51. Dr McGill disagrees with Professor Ghabrial and Dr Wallace in a number of respects. He attributes Ms Barrett’s symptoms to the mild degenerative disc disease at L3/4, L4/5 and L5/S1 shown on the imaging studies. While he could not exclude the possibility that the incident at work led to some minor disc injury superimposed on Ms Barrett’s degenerative disc disease, he thinks that her capacity at the time he saw her would have been the same regardless of her work duties or injury. In any event, in his view, an injury of that kind would typically resolve itself within three to six months.
52. Dr McGill gave evidence that disc bulging is “an extremely common finding” and can be either central or to one side; it only influences the clinical management if the patient has symptoms and signs of nerve compression.
53. In Dr McGill’s opinion, Ms Barrett’s reported symptoms and her apparent perception of her work capacity were not consistent with his objective findings. In this regard, Ms Barrett commented to him that she believed her back was “40% damaged”. Ms Barrett was asked about this in cross-examination. She agreed she made the comment to Dr McGill, based on what Dr Jyoti had told her but said she did not know what it meant, only that it meant she had an injured back. We accept her evidence about this and do not take it to mean she was trying to exaggerate her injury.
54. Dr McGill agreed that Ms Barrett should not be attempting to do repetitive heavy lifting. He agreed that she should not be lifting “25 kilograms or more” but he thought the respondent’s limit of about 16 kilograms appropriate. He did not think she should be doing extensive twisting because it could cause discomfort – as opposed to changing the pathology – but he did not think the amount of twisting involved in sorting mail would cause her difficulty. As we have already noted, there is evidence that Ms Barrett’s duties involved a degree of bending and reaching and twisting but not that it was overly repetitive or excessive.
55. Dr McGill’s evidence about the need for the MRI is considered below.
Other medical evidence
56. There are two reports from Dr John Watson, orthopaedic surgeon, before the Tribunal. In his first report, on 24 March 2010, Dr Watson wrote that he saw Ms Barrett on 19 March 2010. Her CT scan confirmed a “normal study with no evidence of compression of any nerve root at any level”. He thought she had a soft tissue injury of a musculoligamentous type which had resolved, and that she had returned to her pre-accident state. He thought her ongoing symptoms may well be related to degenerative spondylosis. In his view, she did not need further investigation. He thought she could return to work “as of Monday 29 March 2010, undertaking all her duties … with no restrictions”. Why he nominated that date is not clear; it may simply have been the start of the next week after he wrote his report.
57. In his second report, dated 2 August 2010, Dr Watson wrote that he had reviewed the MRI report (but not, apparently, the film) which confirmed degenerative changes. He confirmed his diagnosis of soft tissue injury and his opinion that any ongoing problems related to Ms Barrett’s lumbar degenerative spondylosis.
58. Also before the Tribunal are a number of medical certificates from Dr Jyoti which certify Ms Barrett unfit for work from the date of her injury.
Consideration
59. We accept that Ms Barrett has degenerative changes in her lumbar spine. There is no dispute that she has pain in her lower back. She also has a history of neck pain and of fatigue, and aches and pains in her body but the evidence does not suggest that those conditions play any significant role in her work injury.
60. In support of Ms Barrett’s contention that the effects of her injury have not ceased are the medical certificates from Dr Jyoti. As Dr Jyoti was not called to give oral evidence, there are limits to the weight we can place on her certificates but she nevertheless has seen Ms Barrett regularly since her injury.
61. Professor Ghabrial’s evidence is that the MRI did not show extensive degenerative changes and that those changes are not themselves significant, that her ongoing problems are more likely attributable to her work injury, and that she is not fully recovered.
62. Dr Wallace supports Dr Ghabrial. He saw Ms Barrett in October 2010 at which time he thought her injury had not yet stabilised and would not do so for a further six to 12 months. In our view, Dr Wallace gave careful and considered evidence.
63. Against Ms Barrett are the reports of Dr Watson, who saw her once, in March 2010. However, as Dr Watson was not called to give evidence, we have not had the benefit of clarifying with him matter such as the significance, if any, of Ms Barrett’s prior injury or even whether he was aware of it; it does not appear from his report that he was. His report pre-dates Ms Barrett’s MRI but we have not heard his view of the benefit or otherwise of the MRI. In the circumstances, we place only limited weight on his reports.
64. Also weighing against Ms Barrett is the evidence of Dr McGill. He could not exclude the possibility that she suffered a minor disc injury injury at work superimposed on degenerative change but, even allowing for that possibility, he thought such injury would have improved within three to six months at most, that is by about July 2010 at the latest.
65. Dr McGill has many years of experience and his evidence cannot easily be dismissed. However, in our view, the weight of the evidence from Professor Ghabrial and Dr Wallace, who also have many years of experience, supports Ms Barrett’s claim that she has continued to suffer the effects of her injury since 10 May 2010.
66. In relation to the hours Ms Barrett could work at 10 May 2010, the evidence is not entirely clear. Professor Ghabrial stated in his report of 3 June 2010 that he recommended she avoid heavy lifting over 10 kilograms and “excessive bending and excessive twisting indefinitely”. He noted that “her job involves these activities” but he thought a modified job could be considered by her employer which avoided these activities. He did not specify how many hours she could perform a modified job. On 14 March 2011, he reported that Ms Barrett was to return to work on a part time basis “on restricted duties 20 hours per week avoiding heavy lifting excessive bending and excessive twisting”. We have already noted that the evidence does not support the conclusion that her duties involved excessive bending or twisting.
67. In November 2010, Dr Wallace reported that Ms Barrett would not be fit for activities requiring repetitive bending or twisting movements at her lumbar spine sitting or standing in one position for prolonged periods repetitive lifting above 7.5kg working in confined spaces at heights or ladders or prolonged periods of walking or stair climbing. In his view she was fit to return to work “at part time light duties up to 15 hours per week with due consideration given to these restrictions on her activities”.
68. Dr Jyoti’s opinion that Ms Barrett is able to work only one hour per day is not supported by any of the other medical evidence. However, we are not satisfied, on the evidence, that she was fit to resume her usual duties or that she had earning capacity of 20 hours and 31 minutes per week as at 10 May 2010 as determined by the respondent.
Is the respondent is liable for the cost of the MRI
69. By sub-section 16(1) of the Act, the respondent is liable to pay the cost of medical treatment obtained by Ms Barrett in relation to her injury provided it is treatment that it is reasonable for her to obtain in the circumstances.
70. “Medical treatment” includes an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis”: sub-section 4(1)(e).
71. The respondent contends that it was not reasonable, in the circumstances, for Ms Barrett to undergo an MRI. The respondent relies firstly on a report from Dr John Watson, orthopaedic surgeon, who examined Ms Barrett on 19 March 2010 at the request of the respondent.
72. On 24 March 2010, Dr Watson reported that he found “no neurological signs in the lower limbs and no clinical signs of and L3/4 lesion”. A CT scan performed on Ms Barrett on 15 February 2010 confirmed “a normal study with no evidence of compression of any nerve root at any level”. In his view, she had sustained a minor soft tissue injury only and did not require further investigation.
73. The MRI was ordered by Professor Joe Ghabrial after he first saw Ms Barrett on 1 April 2010. As noted above, he reported to Dr Jyoti that, due to the doubt about the L3/4 disc, he had arranged for an MRI of Ms Barrett’s lumbar spine.
74. In oral evidence, Professor Ghabrial said he ordered the MRI because Ms Barrett was having pain and he had doubt about the CT scan; it showed only that there was some abnormality at the L3/4 level, which is complex. As a spinal surgeon, he was required to offer a diagnosis, the CT scan was not conclusive, and an MRI is common practice in such cases.
75. Professor Ghabrial was asked what further information the MRI provided him with that the CT scan had not. He said it confirmed “that there is a bulge of the L3/4 disc with minimal compression of the thecal sac … as well as some broad base bulging at the L4/5 and L5/S1 segments”. Taking both scans into account, he thought the L3/4 disc was probably the cause of her problem.
76. Dr Wallace also gave evidence that an MRI is more accurate in regard to disc pathology than a CT scan and, relying on Ms Barrett’s MRI, he came to the same conclusion as Professor Ghabrial. He was not asked specifically when an MRI is indicated, or whether it was reasonable to order one in her case, but implicit in his evidence is that it was a useful thing to do, in particular to distinguish between the degenerative changes at the lower levels and what appeared to be the result of a more recent injury.
77. Dr McGill agreed that an MRI gives a more accurate picture of disc pathology, and is more likely to show disc changes, than a CT scan. However, he said, advice to all medical professionals, supported by guidelines that are “well-promulgated”, is that an MRI may be indicated where there are signs, or a moderately strong suspicion of, radiculopathy because it may identify the site of nerve compression; otherwise it would add to the information that was useful to the clinician. As the consistent medical evidence was that Ms Barrett did not have radiculopathy, an MRI was not indicated and he would have ordered ordinary x-rays rather than an MRI.
78. Asked whether he thought it reasonable to order an MRI in Ms Barrett’s circumstances, Dr McGill said it is not a harmful or invasive procedure, but it would not assist in her clinical management. He did not dispute that it may be helpful in determining the nature of pathology for legal purposes but said it is “absolutely not” standard practice for people with back pain; it may assist specificity of diagnosis but will not affect management.
79. There is no dispute among the doctors that an MRI gives a more accurate picture of disc pathology than a CT scan. Even though Ms Barrett showed no signs of radiculopathy, we are satisfied that it was reasonable, in the circumstances, for Professor Ghabrial to order an MRI. We take into account that he is a specialist orthopaedic surgeon to whom Ms Barrett had been referred for investigation and that the CT scan was inconclusive and indicated some abnormality. We are not persuaded that it was not reasonable for him to order the MRI. Even allowing that it would have no bearing on treatment, it was reasonable for him to attempt to diagnose the cause of her problem in the manner the considered appropriate.
80. We are satisfied that it was reasonable for Professor Ghabrial to order the MRI scan in the circumstances and find the respondent liable to meet the cost.
Conclusion
81. We set aside the decisions under review and decide instead that:
(i)the effects of the injury sustained by Ms Barrett on 4 January 2010 did not cease as of 10 May 2010;
(ii)as of 10 May 2010, she was not fit to perform her pre-injury duties and did not have an earning capacity of 20 hours and 31 minutes per week; and
(iii)the respondent is liable to compensate her for the cost of the MRI scan.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr H Haikal-Mukhtar, Member.
Signed: ...............[sgd]......................................................................
Diana Weston, AssociateDates of Hearing 30 and 31 March 2011
Date of Decision 25 May 2011
Counsel for the Applicant Mr D Shillington
Representative for the Applicant Ms K Stouppos, Slater & Gordon Lawyers
Counsel for the Respondent Ms R Henderson
Representative for the Respondent Ms D Hatton, Australia Post
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