Bryant and Comcare (Compensation)

[2016] AATA 1030

Bryant and Comcare (Compensation) [2016] AATA 1030 (15 December 2016)

Division	GENERAL DIVISION
File Number	2015/2369
Re	Diane Bryant
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member J Sosso
Date	15 December 2016
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member J Sosso

CATCHWORDS

COMPENSATION – workplace injury – cervical spondylosis - where condition of applicant suffered prior to employment - whether the employment of the applicant significantly contributed to the onset of the condition – whether employment contributed to a significant degree to the aggravation of underlying cervical spondylosis - decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14.

CASES

Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508

Comcare v Power [2015] FCA 1502;(2015) 149 ALD 286

Raman and Comcare (Compensation) [2016] AATA 122.

Tippett v Australian Postal Corporation (1998) 27 AAR 40.

REASONS FOR DECISION

Senior Member J Sosso

15 December 2016

INTRODUCTION

1. On 8 September 2014 Mrs. Diane Bryant (the Applicant) made a claim for workers’ compensation for neck sprain pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act)  – Exhibit 1 T6 p.33. The claimed condition developed on 3 September 2014 as a result of the Applicant, while at work, bending and pointing at a computer screen. She felt a pull in her neck and a pain like a shock – Exhibit 1 T6 p.38.

2. On 14 November 2014 Comcare (the Respondent) accepted the Applicant’s claim – Exhibit 1 T20 p.113.

3. On 17 December 2014 the Department of Human Services (the employer) requested a reconsideration of this determination – Exhibit 1 T25 p.140.

4. On 16 March 2015 the Independent Review Officer revoked the earlier determination and decided that the Applicant was not entitled to compensation for the claimed condition – Exhibit 1 T36 p.198.

5. The Applicant has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of the 16 March 2015 determination – Exhibit 1 T1 p.1.

6. The Applicant was represented at the hearing on 14 November 2016 by her husband. The Applicant called no witnesses and declined the opportunity to cross-examine Dr John Cameron. The Applicant also declined to give evidence.

7. The Respondent was represented by Mr Ben Dube of Sparke Helmore Lawyers. Mr Dube determined not to call Dr Cameron to give oral evidence and called no other witnesses.

8. With the consent of the Applicant, Mr Dube tendered a summary of key summonsed material in relation to the Applicant’s prior neck issues. This document was admitted into evidence as Exhibit 6.  Before I admitted this document into evidence I gave the Applicant and her husband an opportunity to read it to ascertain if there was any contest as to the accuracy of the material contained therein. The Applicant, through her husband, raised no objection either to the admission of this document into evidence or of the accuracy of its contents.

9. The hearing itself focused on oral submissions by the representatives of the parties, and for the purposes of this determination the primary focus has necessarily been on the documentary evidence produced by the parties.

   FACTS

10. The Applicant was born on 9 September 1957 and is currently aged 59 years. She left school in 1974 when she was 17 and worked in a number of casual jobs in both Australia and New Zealand. Initially her longest period of employment was as a retail assistant in a pharmacy. Later she was a manager of a cosmetic store and completed an Associate Diploma in Community Recreation and worked at the Salvation Army Pindari Centre in Brisbane where she provided recreational therapy for patients in the detox centre. During this time she married for the first time and gave birth to two children. When her first husband passed away the Applicant was engaged in various casual jobs. She remarried approximately 25 years ago and had two further children. She completed a Bachelor of Social Sciences at Southern Cross University majoring in human resources and communications – Exhibit 1 T4 p.21

11. The Applicant commenced work with Centrelink on or about 28 June 2002.  In September 2014 she was a Customer Service Officer APS 4 and worked the Rockhampton Customer Service Centre, Musgrave Street Rockhampton – Exhibit 1 T6 pp. 47-49.

12. When she first commenced duties with Centrelink the Applicant was engaged in giving one-on-one interviews to people in target groups, such as the long-term unemployed and women returning to the workforce.  With the passage of time the Applicant’s duties changed to less one-on-one contact to more general customer service.

13. The Applicant had a specially set up workstation which was ergonomically correct and worked usually Monday to Friday, 7 ½ hours per day – Exhibit 1 T4 p.22 and Exhibit 1 T10 p.63.

14. The Applicant’s residence was a 40 minute car drive from her place of work.

15. The Applicant states that she suffered two workplace injuries.

16. The first incident was in 2010 when she was asked to move a large file and put it into a filing bag. The bag weighed, in her estimation, between 10 to 12 kilograms. She picked up the bag from the floor to place it on a high bench, but when doing this she noticed a slight burning discomfort in her left shoulder and the side of her neck. She reported the incident and overall had around 8 weeks off work. Investigations at the time revealed calcification in her shoulder. The Applicant underwent an ultrasound guided injection and intensive physiotherapy.

17. The Applicant had difficulty moving her shoulder and experienced discomfort with neck movements and restriction on turning her neck from side to side. The discomfort settled but in the years thereafter she had occasional discomfort and needed to take days off work – Exhibit 2 p.3.

18. The second incident, as previously mentioned, occurred on 3 September 2014.

19. In between these incidents the Applicant also submitted a claim for a sprain of the shoulder and upper arm for an incident on 26 February 2013 – Exhibit 1 T11 p.68. That incident related to a busy work period processing claims following the 2013 floods – Exhibit 1 T4 p.27. Following that incident, the Applicant’s symptoms were aggravated when she had to use an alternative workstation that had not been specifically set up for her.

20. The Applicant submitted medical certificates for the periods: 5-7, 8-9 August 2013, 25-29 November 2013, 6-8 January 2014, 5-7 and 10-12 February 2014, 23-24 and 29-29 April 2014, 30 April – 2 May 2014 – Exhibit 1 T4 p.21.

21. The Applicant’s personal general practitioner, Dr Monica Gantus De Whitton (Dr Whitton), of Northside Plaza Medical Centre, noted that she treated her for hypertension and tonsillitis on 14 January 2013 – Exhibit 1 T11 p.79.

22. The Applicant was referred to Dr Ki Douglas, Consultant Occupational Physician for assessment and the provision of a medical report. A report was duly prepared and is dated 19 June 2014. The assessment and report predates the injury of 3 September 2014.

23. Dr Douglas stated that the Applicant had a number of conditions which negatively impacted on her ability to work. The conditions were: degenerative cervical spine, left shoulder tendinopathy,  respiratory infections, giardia, high blood pressure and anxiety – Exhibit 1 T4 pp. 22-23.

24. The summary and assessment of Dr Douglas is as follows (Exhibit 1 T4 pp. 25-26):

    “SUMMARY AND ASSESSMENT

    Ms Bryant is a 56 year old APS 4 customer service officer with Centrelink in the Rockhampton office who sustained an injury to her left shoulder in 2010 and who has age-related degenerative changes in the cervical spine and left shoulder.  More recently she has had multiple episodes of unplanned leave in the last 12 months due to a variety of causes including high blood pressure, migraine, infective diarrhoea, respiratory infections as well as neck and left shoulder pain.

    Diagnoses:

    1.Degenerative cervical spine.

    2.Degenerative tendinopathy left shoulder.

    3.Migraine with recurrent attacks.

    4.Hypertension currently under control.

    5.Giardia gastroenteritis now resolved.

    6.Class 1 obesity

    Assessment

    Ms Bryant’s recurrent unplanned leave due to illness is consistent with the stated causes and her medical history, which she related today. She currently does not require further investigations and is having appropriate treatment particularly for her musculoskeletal symptoms as they arise….

    Prognosis

    In the short term Ms Bryant will be able to return to her normal work with the restrictions as specified. In the long term it is likely that her cervical spine and shoulder tendinopathy will degenerate with age and, like many people in her age group required to sit at a computer, she will from time to time have an exacerbation of neck and shoulder symptoms.”

25. On 30 July 2014 the Applicant advised that she was unable to attend work as she had hurt her shoulder and neck at home and was attending the doctor that day. The Applicant was absent from work for the next three days – Exhibit 1 T11 pp.68 and 70. When she did return to work she requested that she not complete self-service tasks, and her duties were adjusted accordingly.

26. On 6 August 2014 the Applicant approached the Service Centre Manager, Ms. Debbie Miller, and asked to be taken off self-service duties as she had hurt her arm the previous afternoon. Ms Miller’s account of the conversation is as follows(Exhibit 1 T11 p.70):

    “she said it was her fault and she just wasn’t thinking. Di said she dropped a bundle of papers and bent over to pick them up with the good arm (the arm without the reported condition) and at the same time, something fell on the other side and she automatically leant over to grab it with her bad arm (the arm with the reported condition which had commenced from the incident at home). Di said it (the condition) wasn’t bad enough for her to be taking the stronger medication she had available.”

27. Ms. Miller also provides this account of the 3 September 2014 incident (Exhibit 1 T11 p. 71):

    “Di approached me to advise she had been out at Self Service area at the front of the office and had hurt her neck helping someone at the ‘new’ Self Service computer. Di indicated that the computer was ‘too low’, and when a customer had asked her for assistance she had cracked her neck when she had turned around to help the customer. I am not aware of any witnesses to this reported incident in the workplace.

    Di said she had taken some painkillers and she felt like she was going to be physically sick. She held her hands out and said ‘look I am shaking’. The acting Team Leader was with me at the time and asked her if she wanted to lie down and Di said no that would make her sick. Di said she couldn’t go back to Self Service and asked if she could do some Learning on LMS (Online Learning Management System). The Team Leader said she would give her some of this learning to do.

    About 10 minutes later, I noticed Di was not at her desk, I went out to look for her and found her in the toilets. I asked her if she was okay and she said ‘no her bowels had now turned to water’.

    When she came back to her desk, I approached Di to ask how she was and what had actually happened at Self Service. She said she was not okay and was in a lot of pain. I again asked her how it actually happened and if she had been using the stool available for staff at Self Service area. Di said she does use the stool but she was walking past the particular computer and when the customer asked her for help she turned quickly and hurt herself.”

28. Following that incident the Applicant was referred to Advanced Personnel Management (APM) for assistance with the provision of rehabilitation and return to work services.  An initial assessment of the Applicant was undertaken by Ms Catherine MacMillan (APM Rehabilitation Consultant). The report was prepared without the benefit of medical feedback and is dated 9 October 2014.

29. Under the heading “History of injury” Ms MacMillan wrote (Exhibit 1 T10 p.61):

    “Ms Bryant is a 57 year old right hand dominant Customer Services Officer.

    Ms Bryant reported she sustained an exacerbation of neck and left arm pain whilst performing duties in the self-service area on 3 September 2014. Ms Bryant advised that she experienced a pain described as a ‘jab’ in her head, neck and left arm after pointing at a screen when assisting a customer. Ms Bryant also reported she experienced nausea due to the pain and secondary bowel symptoms.

    Ms Bryant advised that she continued working, using medication and heat packs to assist with managing her symptoms, for a further two days.

    Ms Bryant advised that she attended Dr Gantus De Whitton (Treating Medical Practitioner) on 8 September 2014 following which she was referred for a CT Scan, prescribed prednisone and certified unfit for work.

    A CT scan of Ms Bryant’s neck was completed on 10 September and results discussed with Dr Gantus De Whitton (Treating Medical Practitioner) on 16 September 2014. Ms Bryant was referred for an MRI following this appointment.

    Ms Bryant also had a scheduled appointment with her physiotherapist on 9 September 2014, and attended physiotherapy twice weekly for the following fortnight. Ms Bryant has been completing gentle stretches as prescribed by her physiotherapist and has been given strapping across her back to assist with positioning of her left shoulder and for postural awareness.

    Ms Bryant remains unfit for duties until 31 October 2014, following a review with Dr Gantus De Whitton on 30 September 2014.”

30. Ms MacMillan then reported the Applicant having the following symptoms (Exhibit 1 T10 pp.61-62):

    “Left Neck

    Ms Bryant experiences stiffness and reduced range of motion in her neck. She advised that the stiffness is predominantly on the left side.

    As rest, Ms Bryant advised that her pain is 5 to 5.5 out of 10, using the Visual Analogue Scale (VAS where 0 = no pain and 10 = excruciating pain). When exacerbated pain is rated as up to 10 out of 10 (VAS), with a reported ‘average’ pain of 8.5 to 9 out of 10 (VAS). Ms Bryant described the pain as a ‘burning, tearing, electric shock’ type pain. When exacerbated, Ms Bryant uses medication, rest, heat such as from a shower, changing position and supporting her head with pillows. Ms Bryant advised that the pain radiates up the back of her neck, with a tightness feeling in her skin into the back of her head.

    Left upper limb

    Ms Bryant advised that she experiences pain from her neck into the back region of the shoulder, which radiates down into her elbow and shoulders.

    Ms Bryant describe a general ‘ache’ in her neck, shoulder blade region, which can be a sharp pain into her elbow, wrist, and into her middle and little finger in her left hand.  This symptom is ‘more or less constant’, however varies in intensity.

    At best Ms Bryant reported a light ‘tingling’ sensation in her left upper limb, rate as 5.5 out of 10 (VAS) which can exacerbate to 8 to 8.5 out of 10 (VAS). Ms Bryant rests if symptoms exacerbate.

    Ms Bryant also reported feeling clumsy with movement in her left hand a ‘dull’ feeling in her middle left finger.

    Lower back

    Ms Bryant reported she experiences lower back discomfort if sitting for extended periods of time, however no specific functional restrictions were reported.

    Other symptoms

    Ms Bryant advised that she experiences stomach-related symptoms secondary to the medication and pain symptoms. She manages these symptoms with medication.”

31. The Applicant was referred by Dr Whitton to several doctors for testing and examination, including Dr Richard Kahler, who specialises in neurosurgery and spinal surgery. In her referral letter of 30 September 2014, Dr Whitton said (Exhibit 1 T11 p.79):

    “Diane has been experiencing severe neck and shoulder pain, with paresthesia in the L arm, that was aggravated recently at work.

    I’ve done CT neck and MRI. The latter shows mild broad based disc bulges at C5/C6 and C5/C7, that are contacting but not compressing the spinal cord. The bulge at C5-C6 maybe irritating the C6 nerve roots bilaterally.”

32. Dr Whitton also referred the Applicant to Dr Anthony Chan and Dr Alex Splatt who, on 12 September 2014, prepared a CT Cervical and Thoracic Spine Report. The findings of these doctors was as follows (Exhibit 1 T11 p.81):

    “Loss of the normal cervical lordosis in the mid to lower cervical spine. Vertebral body heights are maintained throughout. No fractures identified.

    Moderate degenerative changes are present in the lower cervical spine, from C5 to C7. There is associated loss of intervertebral disc height at these levels. In addition there is an extradural soft tissue density within the spinal canal at the C7 level – likely disc herniation. It has a central apex but is also narrowing the C7/T1 intervertebral foramine bilaterally. As such, the exiting T1 nerve roots and descending T2 nerve roots bilaterally may be contacted.  MRI is suggested to help better characterize.

    Marked degenerative changes of the left sided facet joints from C2 to C4.  Associated osteophytic intervertebral foraminal narrowing at C3/4 (left, moderate).”

33. Subsequently the Applicant had a MRI scan of the cervical spine. The findings of Dr Chan an Dr Splatt were as follows (Exhibit 1 T11 p.82):

    “The apparent lesion on CT is not appreciated today, suggesting that the previous appearances may have been the result of beam hardening artefact. There is, however, mild generalised disc bulges at C5/6 and C6/7, which both contact the spinal cord without compressing it. No altered spinal cord signal. The exiting of C6 nerve roots, however, may be contacted at the C5/6 level.

    The posterior spinal canal is slightly narrowed at C7/T1 by thickening of the ligamentum flavum.

    Aside from mild loss of cervical lordosis in the mid cervical spine, alignment is preserved. Vertebral body heights are maintained. No fracture detected. The neural foramina are patent throughout.”

    Comment

    Mild broad based disc bulges at C5/6 and C6/7 are contacting, but not compressing the spinal cord. The bulge at C5/6 may be irritating the C6 nerve roots bilaterally.”

34. The week after these reports were prepared Centrelink sent a questionnaire to Dr Whitton. In response to one question Dr Whitton stated (Exhibit 1 T14 p.99):

    “As I’ve expressed before, Ms Bryant needs to be seen by Neurosurgeon, as lesions in the cervical spine are of concern.”

35. The Respondent wrote to Dr Kahler on 15 October 2014 (Exhibit 1 T12 p.90) and 13 November 2014 (Exhibit 1 T19 p.111), as well as sending an email and making several phone calls, seeking the submission of a medical report on the Applicant. In the letter of 13 November 2014, Dr Kahler was informed that a determination on the Applicant’s claim would be made without the benefit of his report unless it was generated urgently.

36. Similarly, the Respondent wrote to Dr Whitton on 9 and 22 October and 13 November 2014 (Exhibit 1 T18 p.109) requesting the provision of relevant clinical notes in respect of the Applicant’s claim for compensation. Unfortunately, Dr Whitton also failed to provide this information to Comcare before the initial compensation decision was made.

37. In the absence of this information, a decision was made on 14 November 2014 to accept the Applicant’s compensation claim for neck sprain – Exhibit 1 T20 p.113. The decision-maker accepted that the Applicant suffered from an ailment. She referred to a medical certificate from Dr Whitton who diagnosed the Applicant as suffering from cervical spine pain with radiculopathy. In the absence of a precise diagnosis, she accepted the Applicant’s condition for a sprain only.

38. The decision-maker also accepted, on the balance of probabilities, that the claimed condition was contributed to, to a significant degree, by the Applicant’s employment, namely the neck sprain was due to the 3 September 2014 workplace incident.  The decision-maker also said – Exhibit 1 T20 p.116:

    “I further consider that the said injury to your neck on 30 July 2014 had resolved and was asymptomatic before injury you suffered on 3 September 2014.

    I have considered the evidence before me and I am satisfied your condition was contributed to, to a significant degree, by your employment.”

1. On 18 November 2014 Dr, Whitton’s clinical notes were provided to the Respondent and contained the following notes of a consultation on 30 July 2014 – Exhibit 1 T22 p.130:

   “Also injured her L shoulder when trying to carry a bag of groceries”

2. Dr Kahler submitted his report on 11 December 2014 – Exhibit 1 T24 p.135. Dr Kahler made the following initial observation (pp. 135-136):

   “Examination showed her to be anxious with a tremor.  She had sweaty hands but attributed this to her anxiety. She had some reduced movement in her neck with rotation left 70o and right 70o with extension 10o. She had no obvious sensory deficit to light touch. Phalen’s test was negative. On shoulder examination she does have some restriction in abduction above 110o with obvious crepitus but no gross weakness.

   Imaging showed degenerative disc changes, particularly at C5-C6 with foraminal stenosis to the left. She also has changes at C6-C7 without gross neurological impingement. She has facet joint arthritic changers at C4-C5 to the left and C6-C7 to the right particularly. There was no gross neurological compression, however.

   I referred her for MRI scan of the brachial plexus and left shoulder. She had an MRI scan in 2010 of her left shoulder and I will allow this for comparison. I cannot find an obvious neurological impingement although she has neuropathic symptoms and therefore a neurological review may be warranted and considerations for EMG nerve conduction studies.

   She appears to have multiple pathologies superimposed by anxiety and aggravation at her workplace. She thinks that her work colleagues think she is ‘bunging it on’. Psychological counselling may be prudent in her case as well.

   The MRI scan of the shoulder and brachial plexus was performed on the 27^th October 2014 – I have included the report in your reference. There is no obvious neurological pathology. Her shoulder pathology is recorded.”

3. In response to the question “In your opinion, what is the specific diagnosis of the condition/s from which Mrs Bryant suffers?”, Dr Kahler responded (p.136):

   “I do not have a specific diagnosis other than she suffers neuropathic upper limb symptoms for which the cause is not determined. She is awaiting neurological review.”

4. A series of questions were posed to Dr Kahler with respect to the relationship between the Applicant’s condition and her employment. Dr Kahler was asked what, in his opinion, was the relationship between the Applicant’s condition and her employment. His response was (p. 137):

   “At this point, I can see no relationship between Mrs. Bryant’s condition and her employment.”

5. Dr Kahler was then asked whether the Applicant’s condition was caused or aggravated by factors during the scope of her employment. Again he responded (p.137):

   “At this point, I can see no relationship between Mrs. Bryant’s condition and her employment.”

6. Following an evaluation of the medical evidence received after the initial determination, the employer, on 17 December 2014, requested a reconsideration of that determination. The employer also requested that a section 57 assessment should be undertaken at the same time as the reconsideration – Exhibit 1 T25 pp. 141-144.

7. On 22 December 2014 Dr Michael Coroneos, consultant neurosurgeon, forwarded two medical reports to the employer. Dr Coroneos had reviewed the available records and file data and interviewed and examined the Applicant. Dr Coroneos advised (Exhibit 1 T27 p.151):

   “I have seen the MRI report left shoulder and brachial plexus 27 February 2014. The MRI report of the shoulder reports infraspinatus tendinopathy and mild subscapularis tendioptathy and some bursitis. MRI of the left brachial plexus shows the nerve roots, trunks and divisions of the brachial plexus to demonstrate normal appearances with no evidence of any compression at any level and no significant signal abnormalities in the brachial plexus.”

8. In response to a question on the Applicant’s current symptoms and sequence of events pre and post injury Dr Coroneos said, inter alia (p.152):

   “There was no objective neurological deficit with minor restriction of cervical movement and no evidence of radiculopathy or myelopathy.”

9. In response to a question on discussing findings from his clinical examination of the Applicant, he advised (p.152):

   “There was no objective neurological deficit. There was no evidence of radiculopathy or myelopathy. There was minor restriction of cervical movements. Ms Bryant reported diminished sensation to pinprick distal volar pulp of the left 3^rd finger not in a segmental or dermatomal distribution. Remainder of neurological examinations were normal.”

10. Finally when asked to give a diagnosis he said (at 152): “I am unable to determine a neurological diagnosis.”

11. At the request of the employer, Dr Ki Douglas reassessed the Applicant on 16 February 2015. In undertaking this reassessment, Dr Douglas took the comments of Dr Coroneos into consideration – Exhbit1 T33 p.175. Her summary and diagnoses were as follows (p. 179):

    “Ms Bryant is a 57-year-old customer service officer at Centrelink who developed acute neck pain referred to the left arm on 3 September 2014 in the course of leaning over and pointing with her left arm at a computer while assisting a customer.  She is slowly improving, however, her symptoms and range of motion particularly in the left arm and neck fluctuate. She has a degenerative condition of the cervical spine which is made worse by static postures.  Her progress is slow and she is likely to recover from this episode. There is some perceived workplace stressors. She is yet to see a psychologist.

    Diagnoses:

    Degenerative cervical spondylosis with headache and aggravated by muscle tension

    Degenerative tendinopathy and bursitis, left shoulder.”

12. On 16 March 2015 the reconsideration of the 14 November 2014 determination was delivered. The Review Officer revoked the determination. The Review Officer provided the following reasons for this decision (Exhibit 1 T36 p.202):

    “In order to be entitled to compensation, I must be satisfied that your employment has contributed to your injury to a significant degree – a degree substantially more than material.

    Dr Coroneos advised that he was unable to determine a neurosurgical diagnosis.

    The evidence of your treating specialist Dr Khaler was not available at the time of the primary determination and he has since advised that he could not provide a specific diagnosis. Dr Khaler considered there was no relationship between your condition and your employment.

    Based on the evidence I am not satisfied that your employment can be considered to have contributed to your current condition to a significant degree.”

13. The Tribunal also has before it further medical reports that were undertaken more recently. The first is from Dr John Cameron who is a neurologist. Dr Cameron saw the Applicant on 9 September 2015.

14. Dr Cameron was of the opinion that the Applicant “has underlying cervical spondylosis and degenerative tendonopathy in the left shoulder. Those are common conditions of ageing in this age group.” – Exhibit 2 p.6. He then opined (at p.7):

    “It is possible that Diane Bryant may have suffered a temporary aggravation to her cervical spondylosis in the incident she described on 03.09.14. There is no evidence that she has any ongoing impairments related to this.  Her radiological studies have shown no evidence of any specific nerve root compression or spinal cord compression and she has failed to respond to a number of interventional procedures to support this diagnosis.”

15. Dealing specifically with  the 3 September 2014 incident, Dr Cameron said (pp. 7-8):

    “Diane Bryant has a pre-existing degenerative spondylosis. I assess she has suffered a temporary aggravation to this condition on 03.09.14 and this temporary aggravation has since abated. I cannot explain her ongoing discomfort and clinical findings and the failure to respond to conservative treatments from this work incident.

    The incident she described on 03.09.14 would not have caused any longstanding disturbance in a cervical spine causing her present symptoms. I would not conclude that her present condition has been contributed to a significant degree by this particular incident at work.”

16. Finally, Dr Cameron addressed the question whether the workplace incident was a significant factor in her ongoing problems (p.8):

    “I do not consider the work related incident as she described on 03.09.14 was a significant factor in her ongoing problems. I believe any temporary aggravation to her cervical spondylosis possibly caused by this incident and manoeuvre would have settled within a matter of days at the most.  Any ongoing symptoms at this time I believe are unrelated to the work event. There appear to be factors which are contributing to her ongoing symptomatic complaints.

    The event on 03.09.14 would not have aggravated her underlying spondylosis causing permanent changes or to a deterioration in the state of the cervical spine.”

17. The Applicant was assessed by Dr David Douglas, consultant occupational physician. The conclusion he reached in his report of 2 February 2016 was as follows (Exhibit 4 p.6):

    “In my opinion Ms Bryant suffers from moderate cervical spondylosis including multilevel disc disease and facet joint arthritis together with degenerative changes in her left shoulder involving rotator cuff tendinopathy and arthritis of the acromioclavicular joint. These conditions were aggravated in a work incident on 3 September 2014 leading to irritation of the left C5/6 nerve root and ongoing severe neuropathic pain which did not respond to a wide range of treatment modalities.

    Since having a spinal cord stimulator inserted in September 2015 her pain levels have improved somewhat but remain severely disabling.  Additionally Ms Bryant has for the past two years been prescribed medication for generalised anxiety disorder.”

18. The Applicant was also referred by Dr Whitton to Dr Frank Thomas, a specialist pain medicine physician. Dr Thomas made the following observations in his report of 12 April 2016 (Exhibit 5 p.1):

    “My impression was that she was experiencing pain as a consequence of root irritation that occurred in the event at work. While medical imaging did not identify any anatomical abnormality that required surgery, this does not imply that her pain was imagined as I understand has been implicated. There are some degenerative changes in her cervical spine that may or may not have contributed to the pain, and I considered this in my plan for managing her pain…

    Mrs Bryant underwent a trial of high frequency spinal cord stimulation on 3 August 2015. At the conclusion of that trial she reported an overall reduction in pain from 9/10 to 5/10. Consequently she was offered a permanent implantation and this took place on 14 September 2015.

    Following the implantation Mrs Bryant reports an overall 50% reduction in pain with the use of high frequency spinal cord stimulation.”

19. The final medical report is that of Dr John Cameron dated 16 June 2016, which was prepared after he had perused the medical reports of Dr Frank Thomas and Dr David Douglas. It should be noted that Dr Cameron refers to Dr Ki Douglas, but the report of 2 February 2016 was prepared by Dr David Douglas.

20. Dr Cameron was asked a series of questions. The first question was whether the Applicant’s cervical spondylosis was made worse by the workplace incident of 3 September 2014 or whether it became worse irrespective of the incident.  Dr Cameron answered as follows (Exhibit 3 p.2):

    “Her radiological studies post event on 12.09.14 and 23.09.14 demonstrated degenerative changes throughout her cervical spine and no evidence of any acute pathology to account for these symptoms.

    I would accept that Dianne Bryant suffered a mild aggravation/exacerbation of her cervical spondylosis caused by the event of 03.09.14 on the history related to me.

    It is very typical to see periods of acute discomfort at times with radicular pain developing in people who have chronic cervical spondylosis.

    I do not believe that the incident she described would have ‘made worse’ her cervical spondylosis. If Ms Bryant still has ongoing neck pain and arm discomfort I would conclude that this reflects an underlying normal progression of her cervical spondylosis.”

21. Later in his report he said (p.3):

    “The event on 03.09.14 was of a minor nature and in my opinion would not contribute to any long term impairment. I would consider that if the event occurred on 03.09.14 this would have represented only a mild exacerbation of her underlying cervical spondylosis which was existing at the time.”

22. When asked to comment on the reports of Dr Douglas, Dr Cameron stated that he could find no evidence of specific nerve root impairment. He concluded as follows (p.4):

    “I accept that Diane Bryant might have at times, symptoms related to underlying degenerative cervical spondylosis.

    It is possible that the incident she described on that particular occasion may have caused a temporary aggravation of her underlying cervical spondylosis.

    I would have expected such temporary aggravation would have resolved within a matter of weeks following the incident.

    I disagree with Dr Ki Douglas’ conclusion that her present stated disability is due to that particular event on the 03.09.14.

    The incident alleged to have occurred on the 03.09.14 would appear to have been quite a minor event and I cannot conclude that it would be causing any of the alleged disability at this time.”

    THE LEGISLATION

23. Section 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results, inter alia, in incapacity for work or impairment.

24. Section 5A of the Act defines injury to mean

    (a)“a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment) that is an aggravation that arose out of, or in the course of, that employment”.

25. Section 5B of the Act defines a disease to mean an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.

26. Section 5B(2) of the Act provides that in determining whether an ailment or aggravation was contributed to, to a significant degree, the following matters may be taken into account:

    (a)The duration of the employment;

    (b)The nature of, and the particular tasks involved in, the employment;

    (c)The predisposition of the employee to the ailment or aggravation;

    (d)The activities of the employee not related to the employment;

    (e)Any other matters involving the employee’s health.

27. Section 4 of the Act defines “aggravation” to include acceleration or recurrence.

    CONTENTIONS OF THE APPLICANT

28. The Applicant presented written submissions dated 12 July 2016. The Summary section of these submissions very ably articulates the Applicant’s case:

    “The injury was initially diagnosed to be Neck Sprain with Radiculopathy and was later described as Cervical Spondylosis by Dr John Cameron in his report of 15^th September 2015. In the meantime Diane Bryant has undergone the implantation of a Spinal Cord Stimulation Device which uses electrical impulses to relieve chronic pain. This implant was conducted by Dr Frank Thomas who described her pain symptoms in his report of 12^th April 2016 as being the result of Nerve Root Irritation that occurred at the time of the injury.

    The report by Dr John Cameron (and a subsequent report prepared by him dated 16^th June 2016) appear to be the focus of Comcare’s case to refuse further consideration of more than a short term injury.

    The report by Dr Frank Thomas and a report by Dr David Douglas, requested by the Department of Human Services and dated 2^nd February, 2016 are in conflict with the findings of Dr Cameron. In addition their findings are in concert with those of Diane Bryant’s General Practitioner, Dr Monica De Gantus Whitton, who has been involved with this case since her initial examination on the 8^th September 2014.

    Diane Bryant is requesting that the Tribunal find that the reports by Dr Thomas, Dr Douglas and Dr De Gantus Whitton are a true reflection of her injury and subsequent condition and that her Comcare Claim be re-approved.

    Diane Bryant will continue to experience pain in her neck and shoulder for the rest of her life and is looking at replacement of the Spinal Stimulation Device in 2015 when its battery life is exhausted. She needs to recharge the battery each day for a period of 30 to 40 minutes. She is restricted in her activities and is classified as disabled and not able to rejoin the workforce as her pain and vomit reflexes are unpredictable.”

    CONTENTIONS OF THE RESPONDENT

29. The Respondent’s contentions are helpfully set out in the Respondent’s Statements of Issues, Facts and Contentions (RSIFC) dated 5 August 2016.

30. The Respondent contends that the Applicant suffers from an ailment described as cervical spondylosis – RSIFC para 4.1. It is further contended that the Applicant’s employment did not contribute, to a significant degree to the onset or aggravation of the cervical spondylosis – RSIFC para 4.4. It is conceded that the Applicant suffers pain from the cervical spondylosis, but this pain is unrelated to whether the Applicant is at work or not – RSIFC para 4.6.

31. In summary, the Applicant contends, liability does not exist under section 14 of the Act for the claimed injury which occurred, or was first noticed, on 3 September 2014 – RSIFC para 4.7.

    CONSIDERATION

32. The uncontested evidence before the Tribunal is that the Applicant has been seeking medical assistance for neck and shoulder pain since at least 2005. The Applicant was seen by Dr Krasser of Yeppoon Medical Centre on 9 and 13 May 2005 for pain in the neck and shoulders – Exhibit 6 p.1. She again sought medical assistance on 19 June 2008 for “overnight sudden onset of pain between the shoulders blades, great pain when moving right arm” – Exhibit 6 p.1.

33. These visits occurred some years before the first workplace incident in March 2010.

34. In the report of Dr Ki Douglas of 19 June 2014, which was prepared three months prior to the workplace incident the subject of the compensation claim, Dr Douglas outlines her discussions with the Applicant in relation to her ailments – Exhibit 1 T4 p.22:

    “Degenerative Cervical Spine

    Ms Bryant reported that she has had an MRI at the Mater Hospital in Rockhampton some years ago following the injury of March 2010 and was told it was a degenerative condition. Since that time she has had several recurrences of left-sided neck, shoulder and upper limb pain as well as headache which she relates to static postures at work, predominantly affecting forward flexion of the neck or forward reaching when assisting customers as a self-managed services assistant. She finds her neck pain and headache are aggravated by poor posture, static postures, lifting more than 5 kg and bending down under furniture, all of which she tries to avoid. Her symptoms are usually well controlled provided she can use her own workstation, which has been properly set up for her.”

35. Dr Douglas concluded that the Applicant has “age-related degenerative changes in the cervical spine and left shoulder” – Exhibit 1 T4 p.25. Dr Douglas diagnosed the Applicant as having (p.25):

    1Degenerative cervical spine.

    2Degenerative tendinopathy left shoulder.”

36. The prognosis of the Applicant is also instructive (p.26):

    “In the short term Ms Bryant will be able to return to her normal work with the restrictions as specified. In the long term it is likely that her cervical spine and shoulder tendinopathy will degenerate with age and, like many people in her age group required to sit at a computer, she will from time to time have an exacerbation of neck and shoulder symptoms.”

1. Dr Kahler reported (Exhibit 1 T24 p.136) that the Applicant had “degenerative disc changes, particularly at C5-C6 with foraminal stenosis to the left.” Overall, though, he opined that there was no gross neurological compression.

2. Dr Coroneos noted (Exhibit 1 T27p.149) that the external appearance of the entire spine was “normal”. He concluded that there was “no evidence of radiculopathy or myelopathy. There was minor restriction of cervical movements...Remainder of neurological examinations were normal”.

3. The first medical report which explicitly diagnoses the Applicant with cervical spondylosis is that of Dr Ki Douglas of 25 February 2015. After an extensive review of the material before her, Dr Douglas diagnosed the Applicant as follows (Exhibit 1 T33 p.179):

   1“Degenerative cervical spondylosis with headache aggravated by muscle tension.

   2Degenerative tendinopathy and bursitis, left shoulder.”

4. The subsequent medical reports of Dr Cameron of 15 September 2015 and Dr David Douglas of 2 February 2016 both conclude that the Applicant suffers from cervical spondylosis. In the case of Dr Douglas, he refers to it as “moderate cervical spondylosis” -  Exhibit 4 p.6.

5. The thrust of the Applicant’s case is that she is suffering from nerve root irritation that was caused by the workplace incident of 3 September 2014.

6. In support of this contention the Tribunal was referred to the medical reports of Dr Thomas and Dr David Douglas

7. Dr Thomas states that it was his “impression” that the Applicant was suffering pain as a result of a nerve root irritation, but notes that medical imaging identified no anatomical abnormality.

8. Some support for this diagnosis is provided in the report of Dr David Douglas, who, while agreeing that the Applicant has moderate cervical spondylosis, opined that her condition was aggravated by the 3 September incident leading to irritation of the C5/6 nerve root.

9. Dr Cameron considered both of the reports in his medical report of 16 June 2016 - Exhibit 3. Dr Cameron stated – Exhibit 3, p.4:

   “I could find no evidence of any specific nerve root impairment on physical examination”

10. Further, Dr Cameron disagreed with Dr David Douglas’ diagnosis that the Applicant’s disability was due to the 3 September 2014 workplace incident.  He stated:

    “That the incident alleged to have occurred on the 3/9/14 would appear to have been quite a minor event and I cannot conclude that it would be causing any of the alleged disability at this time.”

11. The Applicant’s contention that her pain is caused by nerve root irritation that occurred at the time of the 3 September incident and not cervical spondylosis, is not supported by the preponderance of medical evidence.  Insofar as there is a difference of opinion between Dr Cameron and Dr Thomas and Dr David Douglas, I prefer the diagnosis of Dr Cameron.  Dr Cameron’s reports are clear and unequivocal. His second report was prepared after considering and analysing all relevant medical material.  Finally, his findings are consistent with the bulk of the medical evidence presented to the Tribunal.

12. I find that the Applicant suffers from degenerative cervical spondylosis. I further find, based on the preponderance of evidence that the Applicant was suffering from this degenerative condition prior to the workplace incidents of 2010 and 2014.

13. In order to be eligible for compensation under the Act the ailment or an aggravation of such ailment must be contributed to, to a significant degree, by the employment.

14. It is instructive to refer to the observations of Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266, which was a case involving spondylosis (at [6] – [8]):

    “[6] It has been well settled by a series of decisions…that if an underlying condition is aggravated, in the sense of being made worse, then any incapacity which results is compensable.  On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.

    [7] In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.

    [8] This would require compensation for the period when the symptoms were operative, but would not, without more constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect.  The mere fact that incapacity resulting from spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.”

15. Since Bessey was decided the Act has been amended and a significant contribution test has been inserted. Before the 2007 amending legislation the ailment or aggravation must have contributed to in a material degree by the employment.  What constituted a material contribution was the subject of numerous Federal Court decisions. The 2007 amending Act was designed to maintain the financial viability of the scheme which was said to have been brought under growing pressure by an increasing number of accepted claims. In Comcare v Power (2015) 149 ALD 286 Katzman J said (304/[93]):

    “There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of ‘significant’ as ‘substantially more than material’ makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial.”

16. I accept that there were workplace incidents involving the Applicant in 2010 and 2014. I also accept that the Applicant has been physically ill and in considerable pain over the past few years. I accept that the pain she has suffered is real and that she did not invent her condition in an endeavour to avoid her workplace responsibilities. I also accept that stress and emotional issues can exacerbate pain and generally magnify symptoms in some persons – Raman and Comcare (Compensation) [2016] AATA 122 at [45].

17. The overall evidence before the Tribunal supports a finding of a non-traumatic origin of the Applicant’s cervical spondylosis. Further, the evidence also supports a finding of that there has been a natural progression of the Applicant’s underlying condition over a number of years.

18. As I have previously noted, the Applicant visited Dr Krasser of Yeppoon Medical Centre on 9 May 2005 and 19 June 2008 complaining of neck  and shoulder pain – Exhibit 6 p.1. Further, the Applicant visited Northside Plaza Medical Centre and was treated by Dr Dhamsania on 14 January, 26 February, 4 March, 18 March and 6 May 2013 for neck and shoulder pain – Exhibit 6 p.2. During this time she received ongoing physiotherapy treatment, and by 12 April 2013, Dr McGrath, Occupational Physician, reported: “Ms Bryant states that her symptoms have resolved. She has a full range of movement of the shoulder girdle and neck and is entirely happy with the progress.”  - Exhibit 6 p.4. Unfortunately, by 25 November 2013 the Applicant’s neck pain had resumed and she sought treatment at Central Queensland Physiotherapy. On 7 January 2014 she was treated by Dr Toby of Northside Plaza Medical Centre for localised neck pain – Exhibit 6 p.5.

19. The Applicant advised her workplace on 30 July 2014 that she was not able to attend work as she had hurt her shoulder and neck at home, and did not return to work until 4 August 2014 – Exhibit 1 T2 p.10.

20. On 25 August 2014, shortly before the September 2014 workplace incident, the Applicant sought assistance from CQ Physiotherapy.  The Applicant was seen by Mrs Kasey Bonato. The following notes were made – Exhibit 7:

    “PRESENT HISTORY

    Duration L) neck and shoulder pain down into the finger, then corrected seated posture and pain commenced down central back into lower back pain.

    History since last Thursday,

    MOI: ?Driving 40 mins to get to and from work each day.

    Location: Left

    PAIN

    P &B Ns Yes

    Tingling Yes

    Numbness NO

    AGGS and EASES

    Aggs: Neck movement, turning head to reverse

    Seated prolonged looking down

    Reaching for objects

    Eases NSAIDS

    Heat

    Pain relief spray”

21. Mr Dube drew to my attention the decision of Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40. His Honour made the following observations (44):

    “Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of the employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percvial at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Fed Ct, FC, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.

    However, as was pointed out by the Full Court in Commonwealth v Beattie, at 201 per Evatt and Sheppard JJ:

    ‘It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.’

    This passage draws a very important and perhaps obvious distinction the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”

22. In his medical report of 16 June 2016, Dr Cameron opined (Exhibit 3 p.2) that the workplace incident would not have “made worse” the Applicant’s cervical spondylosis. Further, he was of the view that the ongoing neck pain and arm discomfort reflected an underlying normal progression of her cervical spondylosis. He accepted that the workplace incident would have resulted in a mild aggravation of her condition, but that it was of a minor nature and would not have resulted in any long term impairment (p.3).

23. In his report of 11 December 2014, Dr Kahler, a specialist neurosurgeon, stated that imaging of the Applicant  showed degenerative disc changes and facet joint arthritic changes, but without gross neurological compression. He stated that the Applicant had multiple pathologies superimposed by anxiety and aggravation in her workplace and thought psychological counselling might be prudent – Exhibit 1 T24 p.136.

24. There is ample evidence that the Applicant has been suffering back, shoulder and neck pain for some years, and certainly before the 2010 and 2014 workplace incidents In short, the preponderance of evidence leads to the conclusion that the Applicant’s employment did not cause her pre-existing degenerative condition.

25. Accordingly, the Tribunal must determine whether the Applicant’s employment contributed to a significant degree to an aggravation of her pre-existing condition and, if so, gives rise to liability under section 14 of the Act. Contributed to a significant degree means substantially more than trivial. This, in turn, is a question of fact to be determined on a case by case basis from the evidence presented. Further, there may be factors, other than employment factors, that have contributed to the aggravation of a pre-existing condition. The Act does not require that employment to be the sole cause of an injury or an aggravation thereof.

26. As in many compensation matters, the Tribunal has before it a body of medical evidence prepared over a period of time from different practitioners having different spheres of speciality, or no speciality at all. Unfortunately as neither party called medical witnesses to give oral evidence, and then be subject to cross-examination, the Tribunal has had to proceed purely on the basis of written material without the benefit of any forensic testing of the conclusions that the professionals reached.

27. The Respondent, in both the written and oral submissions, relied heavily on the reports prepared by Dr Cameron.  Dr Cameron is a specialist neurologist. I found his two reports of particular assistance and gave them due weight. Further, his findings comport with the bulk of the evidence before the Tribunal. Viewed from the prism of the uncontested material submitted, the findings of Dr Cameron are compelling.

28. If an underlying condition is made worse by a person’s employment, then the test of aggravation is met. However, if a person’s employment produces no permanent and deleterious change to the underlying condition, but rather is responsible, to a significant degree, for a temporary increase in pain and suffering, then the test of aggravation is not met. In short has the “aggravation” caused by employment been a temporary, albeit painful, phenomenon, or has that aggravation made the underlying condition worse?

29. The preponderance of the evidence strongly suggests that the Applicant has a degenerative disease which makes her susceptible to short term inflammations brought about by relatively minor incidents. The workplace incidents of 2010 and 2014 as well as the domestic incidents previously outlined, all, it would seem, resulted in the Applicant suffering pain and discomfort. The evidence also suggests that there are other ailments which have impacted on the Applicant’s physical and psychological health.

30. The preponderance of the evidence also leads to the conclusion that  the workplace incident of 3 September 2014 resulted in the Applicant suffering immediate and short-term pain and discomfort but that the incident was not the cause of the Applicant’s ongoing pain and suffering.  Rather, it was a short term aggravator of a long term degenerative disease and did not result in a long term aggravation of that disease. Gyles J in Bessey  stated that if an underlying condition is made worse any incapacity which results in compensable, but if the aggravation is temporary and the underlying condition is no worse the statutory test for the payment of compensation has not been met.

31. I am not satisfied, on the balance of probabilities, that the workplace incident of 3 September 2014 contributed to a significant degree to the aggravation of the Applicant’s underlying cervical spondylosis.

    DECISION

32. The decision of Comcare of 16 March 2015 to deny liability to pay the Applicant compensation is affirmed.  

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

........................[Sgd]................................................

Associate

Dated 15 December 2016

Date of hearing	14 November 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers