Chalkley and Australian Postal Corporation
[2009] AATA 558
•29 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 558
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/4708
2008/3429
GENERAL ADMINISTRATIVE DIVISION ) Re TANYA GAIL CHALKLEY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Date29 July 2009
PlaceNewcastle
Decision 1. The Decision in Matter No 2007/4708 is affirmed.
2. The Decision in Matter No 2008/3429 is set aside and remitted to the Respondent with the direction that the Applicant remains entitled to payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
3. If no submissions are received by the Tribunal within 14 days from today’s date, the Respondent is to pay the Applicant’s costs.
....................[sgd]........................
M D Allen
Senior Member
CATCHWORDS
WORKERS COMPENSATION: Applicant injured neck in motorcycle accident in 2001 - on going pain - Respondent maintained current incapacity due to underlying degenerative spinal condition and that effects of motorcycle accident injury had ceased - Applicant found to have a chronic pain syndrome caused by motorcycle accident - decision set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act (1988): s14
CASE LAW
Commonwealth Banking Corporation v Percival (1988) 82 ALR 54
Martin v Australian Postal Corporation (1999) 29 AAR 420
REASONS FOR DECISION
Senior Member M D Allen 1. On 21 May 2001, whilst carrying out her duties as a postal delivery officer for the Australian Postal Corporation (“Australia Post”), the Applicant was riding a motorcycle and in so doing ran into a power cable lead passing from the back of a workman’s truck to the frame of a dwelling house which was under construction.
2. The cable caught the peak of the motorcycle helmet she was wearing and jerked her head backwards. Fortunately she was able to maintain her control of the motorcycle and brought it to a halt without falling off.
3. She was shocked and upset at the time, and on her return to her depot informed her occupational health and safety officer and made a claim for compensation on the basis, as she put it, “in case something happened.”
4. Over the next couple of days the Applicant continued to work but found she began to experience neck pain which worsened. She contacted her general practitioner but some days elapsed before that general practitioner was able to make an appointment time available.
5. As a result of the above incident, the Respondent accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for “neck and shoulder muscle strain”. Various payments were then made for medical treatment and loss of earnings pursuant to sections 16 and 19 of the SRC Act.
6. On 31 July 2007, the Respondent issued a reviewable decision affirming a prior determination dated 20 June 2007 stating that the Applicant was not entitled to the payment of a denervation procedure as recommended by rheumatologist Dr Anthony Schwarzer.
7. Subsequently, on 30 June 2008, a reviewable decision affirmed a prior determination of 6 June 2008 that the Applicant had no present entitlements pursuant to sections 16 and 19 of the SRC Act in respect of the incident dated 21 May 2001.
8. In Matter No 2007/4708, which matter related to the reviewable decision dated 31 July 2007, no evidence was adduced by the Applicant and the Applicant consented to the reviewable decision in the matter being affirmed.
9. At the outset, when considering this matter, I find that I am in total agreement with the comments made by Professor Beran, neurologist, in his report of 6 December 2007 at page 16 namely:
“ What is of serious concern to me, in the management of this patient, and confided to me by the patient, is the multitude of doctors whom this patient has been forced to attend, for medicolegal purposes rather than therapeutic intervention. The patient confided in me that she did object to the intrusive nature of the ongoing dispute and it is my belief that this is contributing to her presentation, above and beyond the consequences of her constitutional cervical degenerative disease...”
10. In addition, a confounding element has been that the Applicant has attended medico-legal consultations arising from common law action taken by Australia Post against the third party it alleged was responsible for the injuries received by the Applicant on 21 May 2001.
11. In these reasons I do not intend to deal with all the medical reports which have been obtained regarding the Applicant. The majority of those reports have been précised by Professor Beran in his report of 6 December 2007 and it would be mere surplusage to regurgitate this material in these reasons.
12. The Applicant’s evidence to the Tribunal was that prior to her motorcycle accident, she had had some pain in her neck when the Respondent introduced V sorting frames. In 1999, she had made an incident report complaining of “muscular pain in the right shoulder and neck”. Later in 2000, a compensation claim was made for “torticollis neck and shoulder”. Liability was accepted for a closed period, namely, 25 January 2000 to 21 February 2000.
13. Following the resolution of her torticollis, the Applicant made no further complaints of pain or discomfort until her motorcycle accident on 21 May 2001.
14. As stated above, the Applicant consulted her general practitioner on 29 May 2001. In a report dated 4 November 2002, the general practitioner, Dr Hindley stated:
“On the 29/5/2001 Mrs Chalkely complained of pain the occipital area radiating to the trapezius muscle region. The range of movement was full but guarded. I would feel that Mrs Chalkely had sustained a soft tissue neck injury and the condition would certainly be consistent with the history given. On the 29/5/2001 I recommended neck x-rays which demonstrated normal alignment with no evidence of any recent fracture nor dislocation. These x-rays did indicate some degenerative disc space narrowing of moderate severity noted at the C5/6 level with some end plate sclerosis and osteophytic lipping. I would feel that Mrs Chalkley’s injury could have certainly aggravated neck pain especially if there was some underlying disc degeneration at the C5/6 level.”
15. Dr Hindley also referred the Applicant to orthopaedic surgeon Dr Kuru. In a report dated 18 September 2001 to Dr Hindley, Dr Kuru opined:
“ My impression is that Tanya’s probably had longstanding degenerative disc disease of the C5/6 space which has been asymptomatic, until she’s exacerbated this with her recent injury.”
16. Prior to consulting Dr Kuru, the Applicant had been referred to occupational medicine physician Dr Burke by the Respondent. In his report of 16 July 2001 Dr Burke stated:
“ The indications are that the incident at work on the 21st May 2001 has been a substantial contributing factor to the onset of her symptoms. It is my opinion that there is a definite connection between her symptoms and the event on that date. It is considered that this event aggravated underlying degenerative changes in the cervical spine and probably caused initiation of soft tissue injury at that time.
The effect of the incident on the 21st May 2001 are still continuing and in my opinion she is likely to have ongoing symptoms for some time, however they should gradually settle down.
It is not my opinion that she would have any symptoms if she had not incurred the incident on the 21st of May 2001.”
17. The Applicant also underwent physiotherapy. Apparently the physiotherapist told the Applicant about treatment provided by rheumatologist Dr Schwarzer. The Applicant therefore obtained a referral to Dr Schwarzer from her general practitioner and Dr Schwarzer performed a series of joint blocks and two denervations. The efficiency of such treatments has been queried by some of the medical specialists who have provided reports in these proceedings. Suffice it to say that the Applicant gained relief with the first denervation procedure but that the second was not successful.
18. In a report to the Applicant’s current solicitors, dated 14 April 2008, Dr Schwarzer stated:
“ I consider that Ms Chalkely suffers from pain arising from the left C6-7 zygapophysical joint. This in itself does not say what the precise pathology is but only identifies the source of pain. There may well have been an injury to the cartilage, a small subchondral fracture, a tear of the surrounding ligaments or joint capsule, a haemarthrosis or a combination of these but the imaging techniques to date will not be able to identify these types of pathology. Even having undergone the radiofrequency denervation of the C6-7 joint she continues to experience some pain. The pain that was abolished with the procedure on the first occasion was the left lower neck and shoulder pain. However, she continued to report central low cervical pain which may well be discogenic. The course of this pain has not been determined. I can not explain the lack of efficiacy following the last C6/7 denervation procedure as the response was different from the response she experienced following the first such denervation procedure. The last C6-7block completely, although temporarily, abolished her pain which would indicate that the C6-7 joint is a substantial contributor to her pain. It is acknowledged that it not the only source of pain.”
19. The Applicant also began to suffer depression as a result of her pain. She was initially reluctant to undertake treatment for her depression, but her general practitioner encouraged her to accept treatment and the Respondent referred her for psychological counselling. In addition, the Applicant began to take anti-depressants.
20. According to the Applicant, her neck pain has been in existence since her motorcycle accident in 2001. She stated that although the pain fluctuates in intensity, it is there constantly. She also has shoulder pain with pain in the left shoulder present all the time.
21. That the Applicant may have been suffering from a degree of psychological decompensation was suggested by occupational physician Dr Graham in a report dated 24 October 2001, that is, not long after the motorcycle accident.
22. In a report dated 16 April 2002 to the Respondent, Dr Maxwell, orthopaedic surgeon, also opined that a psychological element was affecting the Applicant’s presentation. He wrote:
“There is still a connection between the above condition and the accident of the 21/5/01 but it is due to an abnormal reaction to the injury rather than the injury itself. Therefore the effects of the accident of the 21/5/01 are still continuing.”
23. On 11 April 2006, the Applicant attended upon psychiatrist Dr Jonathon Phillips for assessment. I understand that the attendance upon Dr Phillips was in connection with the proceedings initiated by Australia Post against a third party and the report refers to the Applicant as “the Plaintiff”. In a report dated 28 April 2006, Dr Phillips opined, inter alia:
“I obtained a history of a depressive disorder linked with her work-related accident. It is more likely than not that her psychological symptoms were triggered by the accident and existed by and large in the context of post accident physical symptoms.”
24. A further psychiatric report was obtained by the Respondent from Dr Lovric, psychiatrist, and is dated 8 February 2007. Dr Lovric opined that the Applicant suffered from an Adjustment Disorder with Depressed Mood (chronic). On the balance of probabilities the circumstance that gave rise to this illness was the incident of 21 May 2001 and chronic pain which was precipitated by the accident. She found no non work related factors which would have contributed to the development of her adjustment disorder.
25. Dr Lovric concluded her report by stating:
“Ms Chalkely is a woman who has never suffered from psychiatric problems previously. She would benefit from treatment as outlined above. Although she may continue to suffer from chronic pain, there is significant possibility that her psychiatric state would improve significantly, if not resolved completely, with appropriate treatment.”
26. Rheumatologist Dr McGill gave two reports in this matter. In his first report of 23 November 2006 he stated:
“I think her level of symptoms and her functional capacity in the future will depend primarily on psychological factors. That is not to say that she does not have a physical problem in her neck but I think psychological factors are of far greater importance in determining her level of distress, reported symptoms and her perceived functional capacity.”
Dr McGill continued:
“Although I do not think the incident, on the basis of probabilities, lead to any change in the structure of her cervical spine, I think it did put in train a pattern of symptoms and behaviour and thus I think the aggravation produced by that incident is ongoing.”
In a second report dated 4 June 2009 Dr McGill said:
“I do not think the incident of May 2001 lead to any change in the structure of her cervical spine and I do not think there is any ongoing condition related to that incident, at least not on any physical basis.”
27. Counsel for the Applicant criticised Dr McGills opinions, submitting that the 2006 opinion as to cause of the Applicant’s symptoms was inconsistent with his opinion in 2009. To my mind there is no inconsistency. As Dr McGill explained in evidence, he accepts that the Applicant has continued to experience symptoms but that whereas the motorcycle accident in 2001 put in train a sense of symptoms and pattern of behaviour, any physical symptoms now experienced were being caused by the underlying degenerative changes in her neck.
28. I note that in his 2009 report, Dr McGill clearly referred to symptoms on “any physical basis”.
29. Cross examined, Dr McGill stated that the motorcycle accident did not hasten the degenerative process present in the Applicant’s cervical spine. As pointed out in his 2009 report, the motorcycle accident did not lead to any structural changes in the Applicant’s cervical spine although she did experience an exacerbation of symptoms.
30. Neurologist, Professor Beran was of a similar opinion. In a report dated 6 December 2007 he stated, inter alia:
“The history as provided was endorsed by the materials offered from Australia Post. The one issue that is of importance is the report by Professor Oakeshott in which he identified neck and shoulder pain in October 1999, which he stated was a recurrence of symptoms in August 1999 and further neck pains in January 2000. There was a reference to toticollis and time off work in February 2000, all of which pre-date the motorcycle accident. This clearly indicates a pre-existing condition that had been active for at least two years prior to the motorcycle accident…
On the basis of the history, additional information and physical examination I would have no alternative diagnosis to that of a constitutional basis to the patient’s complaints which precede the motorbike accident.
There can little doubt that the motorbike accident exacerbate the symptoms but there is no apparent evidence of ongoing damage consequent to the motorbike accident and hence one would have expected those issues, referable to the motorbike accident, to have resolved some 6 ½ years later…
It is my opinion that the symptoms do not relate to the motorbike accident and any symptoms that were referable to it should have subsided by this point in time. As stated above it is my opinion that the patient suffers constitutional cervical degenerative disease which was exacerbated as a consequence of the motorbike accident but there have been so many confounding and intrusive matters since that time it is impossible for me to accept that the current symptoms are still referable to what constituted a minor neck injury 6 ½ years ago.”
31. Cross examined, Professor Beran conceded that the motorcycle accident caused the Applicant to have pain but that while it did not cause the underlying problem (namely, degenerative changes in the cervical spine) it did bring on the symptoms. He added that in the Applicant’s case, there was emotional overlay.
32. Dr Bracken, an orthopaedic surgeon, opined that the motorcycle accident caused the Applicant’s ongoing pain. In his report of 8 August 2008, the history obtained by him stated that prior to the motorcycle accident the Applicant “had full normal use of her neck and had never had any symptoms in it.” This history is inaccurate as there is clear evidence of the Applicant suffering torticollis in 1999 and neck pain in January 2000, that is, prior to the motorcycle accident.
33. Cross examined, Dr Bracken stated that there were significant degenerative changes in the Applicant’s cervical spine at C5/6 in keeping with her age. Noting that the Applicant had complained of spinal pain in the neck consistently since the motorcycle accident, he opined that the degenerative changes as seen in the Applicant’s cervical spine may have become symptomatic following an injury.
34. Dr Muratore, who terms himself a “sports physician” gave a medical report to the Respondent. Dr Muratore is not a member of any specialist college and I place no weight on his opinions when compared or contrasted to those opinions given by the medical practitioners who are members of one of the specialist colleges.
35. As remarked upon by Professor Beran, there has been a multitude of doctors to whom the Applicant has been referred for medico-legal opinion. In assessing the evidence before me, I put more weight on the opinion of those medical practitioners who have seen the Applicant, at least initially, for treatment purposes.
36. The first specialist consulted by the Applicant was orthopaedic surgeon Dr Kuru. As stated above he has opined that the Applicant had long standing degenerative disc disease of the C5/6 space which had been asymptomatic until exacerbated by the motorcycle accident.
37. Although Dr Kuru did not recommend or indeed agree with the treatment proposed by Dr Schwarzer, that medical practitioner had a significant role in attempting to treat the Applicant’s symptoms. In his most recent report dated 7 April 2008 he implicates the motorcycle accident as the cause of the Applicant’s ongoing pain.
38. Having and seen and heard the Applicant give evidence and be cross examined, I am satisfied that she is not seeking to exaggerate her symptoms and that she had given a full and frank account of the events and its affect upon her. I note that none of the medical practitioners whom she has attended has doubted that she has ongoing pain and some have specifically commented upon her cooperation with their examination and apparent genuineness. The real question in this matter is therefore the cause of the pain currently experienced by the Applicant.
39. In Commonwealth Banking Corporation v Percival (1988) 82 ALR 52 at 54, the Full Court of the Federal Court said at 930:
“No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of the disease and mere symptoms of the disease. For some legal purposes for example s104(2) of the Act the distinction is also pertinent; see Johnston v Commonwealth (1982) 150 CLR 331 at 341-3. But that is not to say that the symptoms of a disease are not part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.”
40. Here, the Applicant was to all intents and purposes asymptomatic immediately before the motorcycle accident of 21 May 2001. Since that time she has continued to experience pain in her neck.
41. There is evidence in the reports and oral evidence, particularly of Dr McGill and Professor Beran to suggest that the pain now experienced by the Applicant is not as a result of the motorcycle accident but to underlying degenerative disease, however both medical practitioners refer to an emotional overlay contributing to the pain. Dr Maxwell in his report of 16 April 2002 is of a similar opinion, referring to an “abnormal reaction to the injury”. Cf Dr Graham in his report of 24 October 2001 to like effect.
42. The Respondent submitted that if the Applicant was suffering any psychiatric illness as a result of her ongoing neck pain, and if that pain was caused by the non compensable degenerative condition, then any psychiatric illness arising out of that pain was likewise non compensable.
43. This submission is predicated upon a finding that any current psychiatric condition is caused by the current pain. However, in her report to the Respondent of 8 February 2007, Dr Lovric clearly states:
“On the balance of probabilities, the circumstance which has given rise to the Adjustment Disorder with Depressed Mood has been the incident of 21 May 2001 and the chronic pain which was precipitated by that accident. I find no non-work related factor which would have contributed to the development of her Adjustment Disorder.
And at page 12 of her report states that the Applicant may continue to suffer from chronic pain. Dr Phillips, psychiatrist, was of a similar opinion.
44. By a decision dated 1 March 2007, the Respondent amended the Applicant’s diagnosis of compensable injury to read:
“aggravation of pre-existing constitutional condition – cervical spondylosis and adjustment disorder with depressed mood.”
The Respondent subsequently paid for twelve sessions of cognitive therapy.
45. A report by Mr Newton-John PhD, clinical psychologist, dated 12 May 2008 reads inter alia:
“ Tanya has now completed her twelve sessions of cognitive behaviour therapy for her chronic neck pain. Overall she has made good progress in the sessions, despite the setback last year where she fell from a ladder and fractured her pelvis…She continues to experience some marital problems which cause her a degree of distress. However she has some strategies for managing this distress now, and would not meet the criteria for major depressive illness. I do not think that her issues at home would interfere with her return to work progress.”
46. Mr Newton-John refers to marital problems. No further details were given of these but for myself I can well understand that having chronic neck pain since May 2001 would lead to marital problems.
47. Although Mr Newton-John states that the Applicant would not now meet the diagnostic criteria for major depressive illness, I consider that Dr Lovric, psychiatrist, correctly diagnosed the Applicant’s current illness, namely, that of a chronic pain syndrome. That syndrome may, as alluded to by Mr Newton-John, wax and wane. For example, she apparently experiences less pain when away from work, but that does not mean that the syndrome is not present and ongoing.
48. Whatever may be the state of the Applicant’s neck at present, I am satisfied that she continues to suffer pain as a result of a chronic pain syndrome and that the cause of that pain syndrome is the motorcycle accident on 21 May 2001.
49. For the Applicant it was submitted that the exacerbation of an asymptomatic condition is an aggravation. The authority for this proposition was said to be Martin v Australian Postal Corporation (1999) 29 AAR 420. I do not accept this submission. In that case, the cases upon which Burchett J relied, namely Salisbury v Australian Iron & Steel Ltd (1943) 44 SR NSW 157 and Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19, both make the point that the effects of the employment injury must continue (Salisbury) or be permanent (Darling Island). In this matter the argument for the Respondent is that the effects of the employment injury have ceased and that the pain currently experienced by the Applicant is caused by the pre-existing degenerative condition alone.
50. For the reasons given above I am satisfied that the Applicant does have an ongoing pain syndrome which was caused by the 21 May 2001 injury.
51. The decision in the Matter No 2007/4708 is affirmed for the reasons previously stated. The decision in Matter No 2008/3429 is set aside and remitted to the Respondent with the direction that the Applicant remains entitled to payments pursuant to sections 16 and 19 of the SRC Act 1988.
52. No submissions were made regarding costs therefore my order will be that the Respondent is to pay the Applicant’s costs unless submissions are made to the Tribunal within 14 days from the date of the delivery of this decision.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: ..........................[sgd]......................................................
M.Corcoran, AssociateDate/s of Hearing 1,2 &3 July 2009
Date of Decision 29 July 2009
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Australian Postal Corporation
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