Boardman and Telstra Corporation Limited
[2004] AATA 1386
•23 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1386
ADMINISTRATIVE APPEALS TRIBUNAL ) No Q2002/1122;
) Q2003/8, Q2003/654,
GENERAL ADMINISTRATIVE DIVISION ) Q2004/134, Q2004/753
Re PENNY BOARDMAN Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date23 December 2004
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
....................[Sgd]......................
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – liability - injury or disease not arising out of or in the course of employment – aggravation of injury or disease arising out of or in the course of employment – cessation of incapacity from aggravation –– respondent not liable to pay compensation for permanent impairment in the applicant.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 24, 27
REASONS FOR DECISION
23 December 2004 Mr RG Kenny, Member Background
1. On 31 October 2001, Penny Boardman, the applicant, completed a claim for workers’ compensation benefits in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for what she described as “neck, back and arm pain”. On 21 November 2001, a senior claims officer from GIO Australia determined that Telstra Corporation Limited (the respondent) was liable to pay compensation to her for temporary posturally induced aggravation of pre-existing C5/6 disc disease.
2. On 27 February 2002, the respondent determined that compensation was no longer payable in respect of the condition. That decision was affirmed on 19 November 2002 and Ms Boardman sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 16 December 2002 (Q2002/1122).
3. On 17 October 2002, Ms Boardman’s solicitor wrote to the respondent lodging a claim for lump sum compensation on the basis of permanent impairment pursuant to sections 24 and 27 of the Act. On 4 November 2002, the respondent determined that there was no entitlement for permanent impairment and that decision was affirmed by the respondent on 13 December 2002. On 7 January 2003, Ms Boardman sought review of that decision by the Tribunal (Q2003/8).
4. In a letter, dated 22 July 2003, Ms Boardman’s solicitor noted that the earlier decisions were before the Tribunal and lodged a further claim for incapacity. This was rejected by the respondent on 24 July 2003 and affirmed on 28 July 2003. On 29 July 2003, Ms Boardman sought review of that decision by the Tribunal (Q2003/654).
5. On 20 December 2003, Ms Boardman lodged a claim for osteoarthrosis of the right arm. The respondent rejected that claim on 28 January 2004 and affirmed that decision on 17 February 2004. On 18 February 2004, Ms Boardman sought review of that decision by the Tribunal (Q2004/134).
6. On 4 December 2003, Ms Boardman’s solicitor requested that the respondent provide funding for medical treatment. This was rejected on 15 December 2003 and that decision was affirmed on 15 September 2004. On 23 September 2004, Ms Boardman sought review of that decision by the Tribunal (Q2004/753).
Hearing
7. At the hearing, Ms Boardman was represented by Ms B Carter-Nicholl, of Counsel, and the respondent was represented by Mr C Clark, of Counsel. The following material was taken into evidence:
Exhibits 1-5: documents prepared in accordance with the Administrative Appeals Tribunal Act 1975 (the “T” documents) – Q2002/1122 T1-T47; Q2003/8 T1-T47; Q2003/654 T1-T15; Q2004/134 T1-T8; and Q2004/753 T1-T26;
Exhibit 6 & 7: statements, dated 31 January 2003, by Ms Boardman;
Exhibit 8:a medical report dated 10 December 2002, by Dr Peter Hodgkinson, General Practitioner;
Exhibit 9:clinical notes from the Plaza Central Family Practice; and
Exhibit 10:clinical notes from the Maroochydore Seven Day Medical Centre.
Issues and Legislation
8. The issue for determination in this matter is whether Ms Boardman suffers from a disease and/or injury which has resulted from her employment with Telstra such that the respondent is liable to pay compensation to her for incapacity, impairment or medical treatment in accordance with the terms of the Act. Ms Carter-Nicholl submitted that Ms Boardman continues to suffer the effects of an injury which arose out of Telstra employment on 22 October 2001 resulting in back, neck and right arm impairment for which she should receive compensation under section 14 of the Act, medical treatment under section 16 of the Act and lump sum compensation for permanent impairment in accordance with sections 24 and 27 of the Act.
9. The terms injury, disease and ailment are defined in section 4 of the Act and these include the aggravation of an injury, disease or ailment where the aggravation is causally related to employment. The following provisions are also relevant to the determination of these matters:
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”
Section 16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
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.
Section 27. Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
Applicant’s Evidence
10. From 1985 to 1997, Ms Boardman worked for Telstra in Canberra, largely in the personnel area, and then she moved to Nambour in Queensland. She worked with telephone directories for about a year and then she moved to Maroochydore as part of the sales section where she was involved in entering data into a computer and receiving telephone calls. In the Nambour office, she worked a standard shift of more than 7 hours per day with regular 10 minute breaks per hour. At Maroochydore, the work practices changed and she was permitted to have only a 10 minute break for morning and afternoon tea along with her lunch break.
11. In her evidence, she said that the pain started to get serious in March 2001. It began radiating down her arm and into her back and she reported it to her team leader Stewart Medland. A work assessment was done for her in April 2001 and this resulted in a re-arrangement of her work-station. An Occupational Therapist, Libby Murphy, prepared and implemented a preventative work station assessment report. This involved the following adjustments:
§keyboard flattened to minimise wrist hyperextension;
§mouse located to the right hand side to be altered fortnightly to minimise unilateral overuse of her upper limbs;
§position of telephone to be within easy reach and to be on alternate sides;
§reposition keyboard and monitor and frequently used documents in the midline to minimise sustained and repetitive cervical rotation; and
§alter keying and mouse practice to assume a neutral wrist position and alignment.
12. The report also made reference to the need for stretching and exercise breaks and, in particular, required her to have:
§a short standing break every 20 minutes (eg whilst on the phone); and
§a standing or walking break every hour (eg toilet/coffee break) to alternate posture.
13. Ms Boardman said that the procedures were implemented but that this only lasted for about a week. At that time, the whole of the work floor was re-arranged and, when she moved to her new station, the procedures recommended by Ms Murphy were not continued. The symptoms had eased in the week with the adjusted work-station but, thereafter, the symptoms got worse. She continued to refer her problems to Mr Medland but he refused to allow her to take a break away from her desk and stopped her from walking around to exercise unless it was in the standard break times. She spoke to the Call Centre Manager, Sue Schroter, who was very strict and also refused to allow her to take breaks from her desk.
14. Ms Boardman said that she continued with her work with ongoing symptoms until the morning of 22 October 2001 when she was unable to rise from her bed. She had “seized up” and, later in the day, went to her general practitioner, Dr Peter Hodgkinson, who provided her with a certificate for one month off work and sent her for physiotherapy treatment. She continued with this treatment three days a week and it helped with her symptoms.
15. After the one month off work, Ms Boardman commenced a return to work program with rehabilitation people involved and, initially, this was on the basis of three hours per day for three days per week. In December 2001, this increased to four hours per day. She confirmed that she was progressing well when her work was targeted at three to four hours a day and she accepted that Dr Hodgkinson at that time was recording her as continuing to improve through December 2001 and January 2002. She went on leave for two weeks and returned to work at the rate of four hours per day on 29 January 2002 and this was increased to six hours a day on 11 February 2002. This continued until 21 February 2002 and then hours reduced to four per day until 27 February 2002 when her compensation ceased. Thereafter, she went back to work full-time but had the same problems as before. She was not permitted to take breaks on a regular basis and her condition deteriorated until September 2002 when she stopped work.
16. Although suffering problems at work, Ms Boardman said that she continued to maintain an exercise regime which involved a small amount of walking each day and walked from her home to the work-place which took about five minutes. There were limitations on the extent to which she was able to engage in house-work activities, in particular, vacuuming and washing the floors and had difficulty if she tried to drive for more than 15 to 30 minutes.
17. Ms Boardman described the symptoms she had while at work in 2001 and 2002. Her right hand would swell, she suffered burning pain in her arm and was hardly able to move her arm by the end of a shift. The pain in her back was so bad at that time that she could hardly move and this was on a daily basis. She continued to suffer acute neck symptoms throughout the period. She also experienced horrific migraine headaches which would commence in the morning or about mid-day and were, initially, occurring about four days a week. By September 2002, they were occurring five days a week.
18. Ms Boardman said that she was offered a redundancy package in June 2001 but, on financial advice, decided not to take it. She had not expected to be made such an offer again in the following year, but would have considered it. She said she also had requested a redundancy in August or September 2002.
Evidence of Sue Schroter
19. Ms Schroter is a Customer Service Manager with Telstra and was Ms Boardman’s manager at the Maroochydore Call Centre. She recalled that Ms Boardman had complained of arm problems and that a work assessment had been completed by an Occupational Therapist, Libby Murphy, who prepared a report to restructure her work-station and recommended changes to work practices. She was to use a chair with no arms and make adjustments with the use of the computer ware. She noted that, within a short time, Ms Boardman had reverted to use of a chair with arms and she recalled that, from time to time, she often stood from her station and walked around. She said there were often relocations in the office but that, if Ms Boardman had been moved, the team manager would have ensured that her work-station was appropriately set up in accordance with Ms Murphy’s recommendations.
20. Ms Schroter denied that she had ever instructed Ms Boardman not to take walking breaks. She said that the Call Centre’s computer program monitored the working time of each operator and any breaks in computer usage would be noted at the end of the shift. Ms Boardman’s was told that this would be reconciled at the end of each day and that she should take breaks whenever she wanted to.
21. Ms Schroter said that some of her recollections related to practices during the return to work program in November 2001 but she said that there had also been full compliance by management when Ms Murphy’s recommendations were put in place. She was shown Libby Murphy’s report which were prepared in May 2001 and she confirmed that these were the recommendations that had been implemented.
22. Ms Schroter also said that there had been discussion between her and Ms Boardman concerning redundancy packages. One was offered to her in June 2001 but was rejected. Ms Boardman had advised her that a more appropriate time for her would be early in 2002. Ms Boardman approached her in February and March 2002 and requested a redundancy package but, at that time, none were available. She could recall one occasion when Ms Boardman said to her that Telstra should give her money and then she would be out of its hair or else she “would keep going down the track that she was on”.
Evidence of Stewart Medland
23. Mr Medland said he was no longer working for Telstra but had been Ms Boardman’s team leader in 2001. He could recall the assessment in May 2001 which required a restructuring of Ms Boardman’s workstation and he said he recalled implementing it. He had removed the arms from her chairs in accordance with the report but, within a week, Ms Boardman had reverted to the use of a chair with arms. He could recall using a tape measure to ensure that the ergonomics of the station were correct and he also recalled that Ms Boardman was reluctant to vary the position of the mouse from side to side. He was aware of the recommendations in the Occupational Therapist’s report and he encouraged Ms Boardman to comply with them.
24. Mr Medland denied that he had ever told Ms Boardman that she should not take breaks. He said that the computer system noted any absences from the keyboard and she had been advised that any adjustments would be made at the end of the day.
25. Mr Medland said that a redundancy offer was made to Ms Boardman in mid 2001 and that she indicated that she was more likely to take one early in 2002. He recalled that she had asked him, in the first quarter of 2002, about such packages.
Evidence of Dr Peter Hodgkinson
26. Dr Hodgkinson was Ms Boardman’s general practitioner. He believed that she had a permanent ligamentous injury to her neck and back and that her right arm symptoms were related to this. He felt that these were directly caused by her employment with Telstra.
27. Dr Hodgkinson saw her for the first time on 22 October 2001. Initially, she was suffering from right sided neck, upper back and right arm pain which she said had developed over a period of months. He arranged for her to have physiotherapy and she was off work for a month. He saw her again on 25 October 2001 where he noted some improvement and there were no further visits to his surgery until 19 November 2001 after which she commenced a graduated return to work program. At that time, she was progressing well and he was optimistic that she would make a recovery in four to six weeks. He noted continuing improvement in consultations on 29 November 2001, 28 December 2001 and 10 January 2002. On 7 February 2002, he noted that she had greatly improved after having two weeks off work and so he suggested that she increase her hours to six per day for four days per week.
28. Dr Hodgkinson was referred to his clinical notes for that period and he agreed that there was no reference to swelling of Ms Boardman’s right hand on a daily basis, to back symptoms which rendered her almost unable to move or to horrific migraines which occurred on four or five days a week. He said that he did not always take note of all descriptions of symptoms given by a patient and he recalled that she was suffering from a lot of pain on the right side of her neck with burning sensation in her hand and that she often cried from the pain. On 15 February 2002, he noted aching on the right side of her neck and right upper back. He recommended a return to four days work per week at four hours per day and, on 7 March 2002, he wrote that, on examination, there was “still some tenderness”. He agreed that this was all he found on that occasion.
29. On 9 April 2002, Dr Hodgkinson recorded that Ms Boardman had been working full-time for a month, that she had some upper back pain and neck tightness, was tender most of the time and had headaches again. His diagnosis was “? neck pain”. On 1 May 2002, he described severe headaches and wrote that Ms Boardman was not coping with the workplace pain “if no settlement”. On 6 June 2002 he noted severe headaches which were “? Neck related”. On 16 July 2002, he wrote that she had a sore back with tightness paraspinally. On 19 August 2002, she was seen at the same practice by Dr J Pitkin who reported that that she had hurt her neck at home on the weekend with a twisting injury. On 4 September 2002, Dr Hodgkinson noted ongoing neck and upper back problems.
Evidence of Dr Mark Walden
30. Dr Walden is an anaesthetist and has practised as a pain management physician for seven years. He saw Ms Boardman on 16 October 2003. She told him that she first became aware of pain in her back in March 2001 particularly on the right side. He said that she suffered from underlying mild degenerative changes to her cervical and thoracic spine with referred pain to her right arm. He believed that her employment activities with Telstra had aggravated these underlying conditions and that they had become permanent by September 2002. He also said that she suffered from osteoarthritis of the right interphalangeal joints but that this was not directly related to her Telstra employment.
31. Dr Walden agreed that the degenerative conditions in Ms Boardman’s spine were age-related and unrelated to her employment with Telstra. He said that, when a person has underlying spinal degeneration, elements of employment can cause a presentation of symptoms and he agreed that these could be temporary. He also said that a person could present with the degree of degeneration that Ms Boardman has without the presentation of pain. In his first report, he described the effects of the aggravation in relation to the right arm as temporary in nature but said that had been in error and that the condition was permanent.
32. Dr Walden did not agree that there was an absence of objective indications of organic causes for Ms Boardman’s symptoms because, when he examined her, he had noted a limited range of movement and she reported pain. He conceded that, in each of these, a subjective analysis is required and that there is reliance upon self- reporting by the patient. However, he believed that Ms Boardman was genuine in her descriptions and had not exaggerated.
33. Dr Walden said he had seen a report prepared by Dr Tony Blue and that he did not disagree with Dr Blue’s opinions. He also said he was referred to the report prepared by Dr Peter Boys, orthopaedic surgeon, dated 7 May 2004 and he agreed that this had involved a more extensive and complete examination than the one he had undertaken.
34. Dr Walden said that, when there is an aggravation such as with Ms Boardman, the muscles become weak through decreased use. He noted reports that indicated no muscle wasting or weakness in her arm muscles but said there might have been wasting of the multifidus muscle deep within the spine. He agreed that the key to his analysis of the permanence of Ms Boardman’s situation was the presence of muscle weakness.
Evidence of Dr Suzette Blight
35. Dr Blight saw Ms Boardman on 27 September 2002 and provided a report on 11 October 2002. She said that Ms Boardman sustained a repetitive muscular-ligamentous strain to her neck and back in the course of her work duties and that this had resulted in aggravation of degenerative changes in her cervical and lumbar spine. She also said there was contribution by employment to the spine conditions and that the condition was now permanent and had been since 2002. She said that Ms Boardman advised her that she was asymptomatic until March 2001. She agreed that a person could have the level of degeneration demonstrated in Ms Boardman’s spine and not have symptoms but disagreed with Dr Blue’s assessment that she had recovered from her symptoms.
36. Dr Blight said that mere age was not capable of causing degeneration in the spine and that there needed to be something additional in a person’s history, such as some insult to the spine, to cause it. She said that sitting in one position with the neck bent forward could result in neck and lumbar spine problems.
37. Dr Blight did not accept that the examination reported by Dr Boys was more comprehensive than the one that she had undertaken. This was because she had tested the range of movement of all Ms Boardman’s joints. She disagreed with Dr Boys’ conclusion that there was no evidence of any traumatic condition or any conditions specifically related to past work practices.
Evidence of Dr Peter Winstanley
38. Dr Winstanley is an orthopaedic surgeon and he saw Ms Boardman on 4 December 2002. He prepared reports on 11 December 2002 and 22 May 2003.
39. Dr Winstanley said that Ms Boardman suffered from a chronic pain type syndrome. He said that she had experienced some aggravation to her cervical and thoracic spine because of her employment but that this had now ceased. He referred to the level of degeneration in Ms Boardman’s spine as being normal for her age but said that the level of pain of which she complained was not. He described the subjective complaints from which she now suffered as not being consistent with the level of degenerative change in her spine.
40. Dr Winstanley disagreed with Dr Blight’s observation that age cannot be responsible for spinal degeneration which he described as a normal part of the ageing process. He said that there was no requirement for an injury in order for a person to suffer from chronic pain as it can result from psychiatric or physical factors.
Evidence of Dr Tony Blue
41. Dr Blue is an orthopaedic surgeon and he saw Ms Boardman on 15 November 2001 and 11 January 2002. He prepared reports on 19 November 2001 and 15 January 2002. In his first report, he recorded Ms Boardman as stating that there had been a marked improvement in her neck problem compared with when she ceased work one month earlier and that pain in her neck had lessened during that period. She had not described any burning pain in her right arm. At that time, she was suffering from a posturally induced aggravation of naturally occurring pre-existing C5/6 disease and this aggravation was due not only to the work activities but also the activities of daily living. He described the work aggravation of the neck problem as being of a temporary nature.
42. In his report of 15 January 2002, Dr Blue recorded that Ms Boardman had experienced a marked improvement in her symptoms and that the only problem she had at that time was mid-dorsal pain and weakness. He said he had no doubt that she had made a full and complete recovery from the previous disc aggravation.
43. Dr Blue was referred to the opinion of Dr Blight that age-related degeneration did not exist in the absence of some external irritant. He said this was completely wrong and totally against orthopaedic teaching. He said that age degeneration is normal and that a manifestation of this is that people lose height as they age. He said that sitting with the neck bent forward could cause a minimum presentation of symptoms in the top of the thoracic spine but that this would not be responsible for any damage to the lumbar spine.
Evidence of Dr Peter Boys
44. Dr Boys is an orthopaedic surgeon. He saw Ms Boardman on 7 May 2004. In his report of that date, he recorded the following results of his examination:
“…Latitude of the neck is normal. A thoracolumbar scoliosis is evident. The cervical and thoracic spines are non-tender.
Movements of the neck, with encouragement and repetitious examination, are noted to be well preserved. There would appear to be a mild restriction of full cervical flexion with complaints of discomfort at the extremes of all neck movements. Thoracolumbar movements are well preserved, such that this lady is able to flex her thoracolumbar spine and touch mid-shin. Rhythm of spine extension in that position is normal. Active spine extension range is only mildly limited without specific complaint. Attitude of the shoulders is normal. There is no evidence of local muscle wasting in the region of the right shoulder. The articulations to the right shoulder are non-tender. With encouragement and repetitious examination, it is noted this lady has a full active range of movement to the right shoulder but with complaints of strain around the trapezial and scapular region. Discomfort is stated to extend into the medial wall of the axilla and latissimus dorsi region with overhead movement of the arm. Impingement signs are negative. The shoulder is stable to examination.
There is no evidence of wasting of the arm, forearm or hand musculature. There is no isolated muscle weakness and apparent weakness of grip of the right hand can be abolished by repetitious testing. Neurovascular examination is normal.”
45. Dr Boys described age-related degenerative changes in Ms Boardman’s cervical, thoracic and lumbar spine but could find no evidence of any condition specifically related to her employment. He also noted mild degenerative changes in the right hand. He said that it was possible that she had suffered a degree of postural strain of the neck, back and arm muscles associated with sitting at a desk but said that this was minor and temporary in nature. He also noted the unremitting nature of Ms Boardman’s symptoms and said that the unchanged persistence of these after the cessation of work indicated that any physical basis for her complaint was constitutional rather than work-related.
46. Dr Boys said that it was nonsense to suggest that there was no such phenomenon as age-related spinal degeneration.
Consideration
47. The respondent is liable to pay compensation to Ms Boardman for a work-related injury which has resulted in impairment or incapacity for work.
48. One of Ms Boardman’s claims related to osteoarthrosis of the right hand (Q2004/134). This condition was noted by Dr Boys and by Dr Walden. However, there is no evidence to support a causal association between this condition and her employment and, indeed, Dr Walden said that it was unrelated to her employment.
49. The medical evidence shows that Ms Boardman suffers from spinal degeneration. I do not accept the contention of Dr Blight that this can not be due solely to the ageing process. That opinion was rejected by the orthopaedic specialists, Dr Blue and Dr Boys, and also by Dr Winstanley and Dr Walden. On their evidence, I am satisfied that this is not related to her employment but was an underlying condition which pre-existed her symptoms of neck and arm pain. There is evidence of an aggravation of this underlying condition by work-related factors. In November 2001, the respondent accepted liability for a temporary posturally induced aggravation of pre-existing C5/6 disc disease and Ms Carter-Nicholl submitted that Ms Boardman continues to suffer from that condition. Further, she submitted that this has resulted in permanent impairment with a presentation of symptoms of pain in the back, neck and right arm. In that, she is supported by the specialist practitioners Dr Walden and Dr Blight. Ms Boardman’s treating doctor, Dr Hodgkinson, is also supportive of her claim.
50. Dr Walden concluded that Ms Boardman experiences referred pain from the permanent aggravation of her degenerative cervical and spinal condition. In his evidence, he said that an important element of his analysis was that a person who experiences continuing pain experiences muscle weakness which results in a loss of capacity to use the muscles. Whilst he conceded that Dr Boys had noted no muscle weakness, Dr Walden said there might have been a weakness in the multi-fidus muscle deep in the spine. There was no evidence before the Tribunal of any analysis of such a condition and no evidence of its existence beyond the speculative reference by Dr Walden. Dr Walden conceded that Dr Boys had conducted a more complete physical examination than he did. Therein, Dr Boys noted an absence of muscle wasting and also an abolition of loss of apparent right-handed grip strength after repetitious testing.
51. Dr Walden also said that he had noted objective signs of an underlying organic cause for Ms Boardman’s condition and he nominated these as being the loss of range of movement and the presentation of pain as providing that measure. However, he also conceded that these depended upon the self-reporting of Ms Boardman and, in that situation, I am satisfied that they do not constitute objective measures, especially when the results of the examination by Dr Boys are noted.
52. Dr Blight saw Ms Boardman on 27 September 2002. Her diagnosis was a repetitive musculi-ligamentous strain to her neck and back with aggravation to the degenerative changes in her cervical and lumbar spine. Dr Blight described reduced hand grip strength and a loss of muscle tone in the right arm. Those findings are not consistent with those of Dr Boys in his subsequent examination of Ms Boardman. Dr Blight was not prepared to acknowledge that her examination was less thorough than that of Dr Boys and said that she had examined all ranges of movement. However, Ms Boardman was able to demonstrate to Dr Boy’s full active range of movement in the right shoulder and an absence of grip strength loss with encouragement and repetitious examination.
53. Dr Blight’s evidence was that Ms Boardman’s cervical and lumbar disc degeneration had come about through sitting before a computer with the neck bent forward. As noted above, I have not accepted Dr Blight’s opinion that there is no such phenomenon as age-related degeneration of the spine. In that regard, I have adopted the opinions of the orthopaedic surgeons Dr Blue and Dr Boys. Dr Blue also rejected the suggestion that sitting at the computer could bring about degeneration of the lumbar or thoracic spine and Dr Boys said that it could only result in muscular changes. I accept the evidence of the orthopaedic specialists in this regard.
54. In contrast with the evidence of Dr Walden and Dr Blight, Dr Winstanley, Dr Blue and Dr Boys all gave evidence that the aggravation of Ms Boardman’s underlying spinal degeneration had resulted in a temporary presentation of symptoms.
55. Dr Winstanley concluded that Ms Boardman suffers from chronic pain type syndrome and said that the degree of discomfort that she experiences was not consistent with the degree of degenerative change associated with her cervical and thoracic spine areas. Dr Boys also considered that the continuance of Ms Boardman’s unremitting symptoms indicated some constitutional basis for her symptoms. He said that the initial aggravation was produced by her fixed posture and position at the computer but the effects of this had now ceased. Dr Blue saw the applicant in November 2001 and January 2002. This was while she was still receiving compensation. In the reports he completed at that time, he was able to record a marked improvement in her neck problem in the period of one month that she initially had off work on the recommendation of Dr Hodgkinson. He also noted a lessening of neck pain. In his second report, he described a full range of movement and mobility in her neck, normal range of movement in her shoulders and a normal range of spinal rotation with no muscle spasm.
56. I am persuaded by the evidence of Dr Winstanley, Dr Blue and Dr Boys in this case. In particular, I have noted the absence of muscle wasting which was a significant factor required by Dr Walden. There was no evidence of any muscle wasting of the kind that he described or, indeed, of any other muscle wasting in the detailed report following the extensive examination conducted by Dr Boys. Limitations of movement described by Dr Walden and the presentation of pain were conceded by him to be matters of self-reporting by Ms Boardman. Although Dr Walden and Dr Blight expressed the opinion that Ms Boardman appeared genuine in her presentation of symptoms, I accept the evidence of the orthopaedic surgeons that the presentation of symptoms exceeded the underlying level of degeneration. That is consistent with the evidence of Dr Walden and Dr Blight that the presence of spinal degeneration does not necessarily mean that there will be symptoms of pain.
57. The opinions of Dr Walden and Dr Blight are reliant to a large extent on matters of self-reporting by Ms Boardman. While they believed her to be genuine, there are inconsistencies in her evidence which cast doubt upon her reliability as a witness. Ms Boardman agreed in her evidence that an important part of her dealings with Telstra related to the failure to maintain the restructured work-station beyond the one week following its introduction in May 2001. In her evidence, she conceded she had not mentioned this in her statements and could give no reason for not doing so. I accept the evidence of Ms Schroter and Mr Medland about the implementation of the work-place assessment in May 2001. Both Ms Schroter and Mr Medland denied that they had directed Ms Boardman not to leave her workstation and I accept their evidence on that matter. Accordingly, I reject Ms Boardman’s evidence that she was refused permission to leave the workstation. While Ms Schroter made reference to the return to work program in November 2001, I am satisfied that her evidence also related to the period in May 2001 because she specifically identified the report prepared at that time by Libby Murphy as being the one which was implemented. It was that report which contained the recommendation that Ms Boardman have frequent standing breaks away from her desk. I also accept the evidence of Ms Schroter and Mr Medland in respect of Ms Boardman’s attempts to obtain a redundancy package early in 2002. In her evidence, Ms Boardman was reluctant to accept that she had done this prior to September 2002.
58. There are other inconsistencies in the applicant’s evidence. She described, in the period after compensation ceased in February 2002, continual burning pain in her arm, a swollen right hand after each day’s work, back pain such that she could hardly move on a daily basis, and headaches on four or five days per week. Certainly, she described to Dr Hodgkinson various symptoms including back pain, headaches and burning in the hand. However, on 7 March 2002, his examination revealed only some tenderness and, in his evidence, Dr Hodgkinson agreed that this was a subjective sign. He did not see Ms Boardman for a further four weeks when he noted, on 9 April 2002, that she had been working full time for a month and he described her as being “tender most of the time” with headaches again and on examination neck tightness with some upper back pain. I accept that not all of the information given by a patient is recorded in clinical notes but I am also satisfied that severe difficulties as nominated by Ms Boardman in her evidence would be included. The descriptions recorded by Dr Hodgkinson are not consistent with that which the applicant gave in her evidence.
59. In reliance on the evidence of Dr Blue, Dr Boys and Dr Winstanley, I am satisfied, on the balance of probabilities, that, while there was an employment-related contribution to the aggravation of Ms Boardman’s pre-existing spinal degeneration, this was of a temporary nature and that the employment-related component had ceased by 27 February 2002. I am also satisfied, on the balance of probabilities, that her condition did not result in permanent impairment. Further, I am satisfied, on the balance of probabilities, that her osteoarthrosis right hand is not an injury or disease that arose out of or was materially contributed to by her employment with the respondent. This means that her claims under sections 14, 16, 24 and 27 are unsuccessful.
Decision
60. The Tribunal affirms the decisions under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate/s of Hearing 29 and 30 November 2004
Date of Decision 23 December 2004
Counsel for the Applicant Ms B Carter-Nicholl
Solicitor for the Applicant D'Arcys
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
0
0
0