Cheryl Forster and Comcare
[2014] AATA 529
•31 July 2014
[2014] AATA 529
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1622
Re
Cheryl Forster
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 31 July 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Claims for permanent impairment and non-economic loss – Respondent previously accepted liability for work-related condition of musculoligamenous strain – Medical evidence does not support finding that applicant’s current symptoms attributable to her
work-related condition – Decision under review affirmed.LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14; 24; 27
REASONS FOR DECISION
Senior Member Bernard J McCabe
31 July 2014
Cheryl Forster has a back problem that was either caused or aggravated by events in her workplace in 1998. Comcare accepted liability for musculoligamentous strain - cervical paravertebral area under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). (Comcare also accepted liability for a lumbar spine condition but that issue does not arise in these proceedings.) Ms Forster subsequently lodged claims for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the SRC Act in 2012. The claims were rejected because Comcare, the respondent, says Ms Forster no longer suffers from a work-related condition. Comcare says any residual symptoms are properly attributed to an underlying degenerative condition that is constitutional in nature.
The applicant says the outcome of the case turns on whether she continues to experience clinically significant radiculopathy and headaches that are attributable to her original work-related condition, which the applicant now describes as a C5-C6 disc protrusion. Comcare agrees with that assessment of my task, although it suggests the original injury should have been described as an aggravation of spondylosis at C5/6. Comcare has presented medical evidence in relation to the issue. Comcare adds the evidence does not suggest the applicant experiences a whole person impairment of at least ten percent under the relevant tables. If that is so, the applicant is ineligible for compensation under ss 24 and 27 even if she establishes she continues to experience radiculopathy.
THE APPLICANT’S HISTORY
Ms Forster has been employed at Commonwealth Rehabilitation Service (CRS) Australia for 24 years. She explained in her oral evidence that she experienced a neck injury (she described it as “just a strain and muscle soreness to my left side”: transcript at p 6) in November 1996. She had physiotherapy and the symptoms subsided after a few weeks. In January 1998, she was moving boxes at work when she experienced “immediate” pain on the right side of her neck, through her shoulder and down her right arm. That injury has not resolved.
In her oral evidence, Ms Forster summarised her current conditions as follows:
I experience quite severe pain through my shoulder that goes down my arm into my right hand – sorry, my elbow, I get lots of pain in my elbow. And in my little finger and my right finger I get numbness and tingling. And my right thumb is pretty numb all the time.
Ms Forster added the right thumb and one of her fingers are “continually numb and tingly all the time” (transcript, p 7). She insisted that since the incident in January 1998 she has experienced:
·pain in her neck and right shoulder constantly through day and night;
·numbness in her thumb that is “always” present;
·a tingling sensation, or pins and needles, which is always present in the fourth and fifth digits (i.e. the ring and little fingers) on her right hand; and
·numbness in the knuckles of her right hand.
Ms Forster said the pain and discomfort has grown progressively worse since the incident in 1998, although she acknowledged there was some variation in the severity of symptoms throughout the day. She explained in her oral evidence that the symptoms are more severe early in the morning after getting out of bed, and when she drives or undertakes keying work. She said keying work accounts for around 98 percent of her workload (transcript, p 14) but that her employer has provided her with a trackball and other measures to help her out. She said she does not use Dragon Speak or any other voice recognition software that would eliminate the need to use the keyboard. She said she has physiotherapy regularly – about once a fortnight at present – which helps her get more movement but without controlling the pain or the numbness or tingling. The numbness and tingling are also associated with a reduction in grip strength, which has led to problems grasping the steering wheel in the car and undertaking everyday tasks like opening bottles and caps.
The physiotherapy has helped a little with the headaches, she explained in her oral evidence. Ms Forster said she experiences headaches every day. They are worse first thing in the morning before she takes medication, but the pain usually returns by lunch. They are also aggravated by driving to and from work, a distance of around 12-14 kilometres each way. She occasionally experiences blurred vision in connection with the headaches, and she has difficulty concentrating and becomes “impatient”
(transcript, p 10). Ms Forster confirmed she takes at least one Celebrex tablet
(a prescription-only pain killer) each day and up to six Nurofen tablets.
Ms Forster’s evidence is not entirely consistent with the various medical records. Comcare concedes the applicant did mention headaches to an occupational therapist in 1998 (see exhibit 8 at p 1) and her physiotherapist reported that headaches were present when asked in 2010 (see exhibit 1 at pp 69-71). Yet it was pointed out in
cross-examination that Ms Forster’s treating general practitioner did not record either headaches or tingling sensations in a medical certificate he issued in 1998, not long after the accident: exhibit 1 at p 15. More significantly, Dr Scott-Young, an orthopaedic surgeon who saw Ms Forster in July 1998, recorded in his report (exhibit 1 at p 26):
Her pain is present 24 hours a day and fluctuates in its intensity. It is not associated with headaches, and there is no distal radiation into either arm. There is no pins and needles, numbness or weakness…
Dr Barr was the applicant’s treating general practitioner in 2010. He provided information to Comcare in response to a series of questions: exhibit 1 at p 67. While he referred to back and neck pain, he did not refer to headaches, numbness or tingling, or reductions in grip strength. He did not refer to headaches or numbness in the compensation claim form he completed for the applicant in 2012, either: exhibit 1
at p 105ff.
Dr Journeaux, a consultant orthopaedic surgeon, saw the applicant at Comcare’s request in December 2010. He did not record any complaint of headaches and reported the sensation of numbness in the two fingers on the right hand only occurred once a month (exhibit 1, p 74). Dr Khursandi, a consultant orthopaedic surgeon who saw the applicant in 2012 at the request of Comcare, does not report complaints of headaches or tingling and numbness and specifically concludes: “She had no neurological symptoms in either limb”: exhibit 1 at p 93. Dr Bookless (another consultant orthopaedic surgeon) also saw the applicant and took a history but there was no reference in his reports to complaints of headaches or thumb problems, and only limited evidence of numbness in the right little finger (as opposed to pins and needles): exhibits 5 and 6. Ms Forster insists she told those doctors about all of the symptoms she was experiencing.
Ms Forster also saw Dr Campbell, a consultant neurosurgeon, in 2012. Dr Campbell records Ms Forster complaining of headaches when the incident occurred in 1998 but does not suggest they continued to be a feature of her presentation thereafter. He also records numbness in the ring and little fingers in her right hand, but does not report any symptoms in the thumb. Ms Forster said Dr Campbell may not have asked her about headaches, which would explain his silence on the topic.
Mr Dillon, who appeared for Comcare, took the applicant through the medical records summonsed from her treating general practitioner. Mr Dillon suggested to the applicant that, in 14 years of records, there was only one reference to a headache in connection with the neck that was recorded in August 2000. He also suggested to her he was unable to identify any record of a complaint of numbness or tingling in the hands. Ms Forster said her doctors were aware of her complaints but she could not explain why the complaints were not recorded. Mr Dillon also suggested the physiotherapist records did not record any complaints of numbness and tingling, and complaints about headaches really only began to appear intermittently after 2010 – and that was following an incident in which the applicant is recorded as hitting her head on a garage door. Once again,
Ms Forster was unable to explain why her regular complaints of pain were not recorded.
Interestingly, there is no record of the applicant seeking out medical attention specifically in respect of headaches – recalling that she says she has experienced headaches constantly since 1998 – apart from one visit to the emergency room at Pindara Private Hospital on the Gold Coast on 11 March 2001 (exhibit 9, p 206). It was a weekend and the applicant says she decided she needed urgent medical attention. The attending doctor, who was not a specialist, referred the applicant for a brain scan which showed no abnormality. Thereafter, the applicant said she took the question of the cause of her headaches to be settled: it was her neck condition (transcript at p 26).
Comcare says the medical records, taken as a whole, do not support Ms Forster’s claim that she experienced constant headaches. It makes the same point in relation to the neurological signs and pain in her right limb. At best, the respondent submits, the records suggest the applicant complained infrequently or inconsistently of the various symptoms which she now alleges she experienced constantly.
Mr Anforth, who appeared for Ms Forster, rejected the suggestion that the applicant complained infrequently of headaches in conversations with her doctors. He prepared an analysis of the medical records which showed the dates on which the applicant referred to headaches in the course of his submissions (at [32]). The chronology refers to complaints about headaches on four occasions between April 2001 and April 2010.
That is more regular than the respondent concedes but it makes no difference, in my view: I do not accept the records showed a pattern of consistent complaint. The applicant says she may not have mentioned the headaches regularly because there was no point, and she did not want to be repetitive. She also says the absence of reference to headaches in the various medico-legal reports was because she thought it was up to the reporting doctors to ask the questions. I note Mr Anforth performed the same analysis (at [33] of his submissions) in relation to the medical evidence concerning Ms Forster’s right arm pain. He was able to identify a number of references to complaints of pain or discomfort in the right arm.
I agree with Comcare’s assessment of the medical records. I do not accept the complaints of various symptoms recorded in the medical records are of sufficient volume or regularity to suggest a pattern that is consistent with the applicant’s claim of constant pain. There must be particular doubt about the various neurological signs the applicant claims to have experienced in the digits of her right hand. These are, generally speaking, not well-documented, and certainly not consistent. I note in particular there are no references in the medical evidence to numbness in the right thumb.
WHAT IS THE APPLICANT’S COMPLAINT?
I noted at the outset of these reasons that my challenge is to determine whether the applicant continues to suffer from clinically significant radiculopathy and headaches that are attributable to her C5-6 disc condition that was caused or aggravated by her workplace injury. The inconsistency of the complaints of radicular symptoms and headaches in the medical records calls into question the applicant’s claim that she has been experiencing symptoms continuously since 1998. But what of the medical opinions?
I should begin by briefly describing my understanding of the concept of radiculopathy. That understanding is drawn from the medical evidence. Radiculopathy is caused by an impingement of the nerve roots emanating from the spine. The impingement might be the result of some kind of deformity caused by trauma. The impingement of the nerve causes symptoms elsewhere in the body that are served by that nerve root. All the medical experts agreed the distribution of the nerves in the body is well-understood. I was told we are in a position to map a connection between the nerve roots emanating from each point in the spine with a particular dermatome – an area of skin that is served by that nerve. It follows we should be able to link an injury to a particular level of the spine to symptoms in particular parts of the body if there is nerve root impingement.
The applicant’s principal medical expert was Dr Campbell. Dr Campbell opined that
Ms Forster continues to suffer clinically significant radiculopathy as a result of a small but clinically significant C5-6 disc protrusion that impinges on the nerve root. He agreed in his oral evidence that a finding of impingement or compression was necessary before concluding there was radiculopathy: transcript at p 49. He acknowledged other experts might well have a different opinion as to the existence of an impingement in light of the imaging, which was unclear. His evidence on this point was ultimately tentative.
When Mr Dillon asked Dr Campbell if he was saying there may or may not be nerve root compression, he answered (transcript at p 50):Yes, and my impression was that it was but if someone got up and argued fairly that it was in the opposite direction I wouldn’t think they were giving what you’d call a bad opinion.
Dr Campbell agreed the distribution of symptoms in the hand and digits did not suggest a classic case of impingement of the C5-6 nerve root. He said the symptoms in the fourth and fifth fingers were typically explained by an impingement at C7 or even C8. He said he was still content to make the connection between the symptoms and the C5-6 impingement that he detected because up to ten percent of people did not have a normal dermatome pattern. Ms Forster may be one of those individuals, he suggested. I note he also suggested the numbness of the thumb (which was not referred to in the medical records) is consistent with C6 involvement, and that the absence of thumb symptoms was consistent with a finding that there was no radiculopathy as a consequence of C5-6 impingement. He added that pain or numbness in the arm could occur without the presence of radiculopathy: transcript, p 51.
The evidence of Dr Campbell in relation to the headaches was even less extensive.
He did not address the issue in his earlier reports because he said the history did not suggest they were a major problem: transcript at pp 55-56. He agreed in
cross-examination that he had not investigated the headaches in detail for the purpose of preparing the fourth report which discussed this aspect of the applicant’s condition.
He did not discuss the headaches with the applicant; he saw her statement and noted she complained of headaches which was consistent with his observation that patients experiencing neck injuries often experience headaches. He did not consider any differential diagnoses.The medical experts called by the respondent reached a different view on all this.
Dr Bookless said the applicant experienced a disc protrusion at C5-6 and now experiences cervical spondylosis. He denied there was nerve root compression.
He explained a disc bulge of this kind has a natural course: the disc protrudes then shrivels over time, and spondylosis is the consequence: transcript, p 60.
(He acknowledged a very significant disc prolapse might impinge and create permanent damage before receding, but said that was unlikely in this case: transcript at p 62.)
Dr Bookless said the MRI did not show any evidence of impingement or compression. The absence of neural entrapment meant there was no radiculopathy. He went on to explain (transcript at p 60) that nerve root compression at C5-6 would not explain the symptoms in the fourth and fifth fingers in any event. He suggested (transcript at p 61) the nerve root maps were very reliable; the combination of an MRI suggesting there was no impingement at C5-6 and the absence of signs consistent with compression at C5-6 enabled him to conclude with confidence there was no clinically significant radiculopathy in this patient. He did not dispute Ms Forster may have been suffering symptoms in her arm, but he said they can exist as a consequence of spondylosis. There are a lot of pain symptoms that are not a consequence of nerve damage, he explained: transcript at pp 63-64.Dr Bookless also concluded the headaches were not necessarily or even probably a consequence of the neck condition. He said there was no connection between that level of the spine and the head, which suggests the headaches were unrelated: transcript, p 62.
Dr Journeaux was also called to give evidence. His view was essentially the same as
Dr Bookless on the question of radiculopathy. He said the MRI did not show any abnormality in the spine that suggested nerve root compression, and the reported symptoms in the fourth and fifth digits were inconsistent with compression at the C5-6 level. He suggested the applicant suffers from non-verifiable radiculopathy – which means she exhibits radicular symptoms that are unexplained by the objective findings.
He expressly denied the applicant is suffering from clinically significant radiculopathy. He was less inclined to express a view on the headaches: he suggested headaches were potentially a consequence of spondylosis.I am inclined to prefer the evidence of Drs Bookless and Journeaux on the question of radiculopathy. Dr Campbell offered what was ultimately a tentative opinion about the presence of nerve root compression at C5-6. He agreed others might have a different view (as indeed they do). While it is certainly possible the applicant’s reported symptoms in the fourth and fifth digits reflect an unusual dermatome pattern, that only happens in a small number of cases and there is no way of establishing whether the applicant is one of those relatively rare exceptions to the norm. The opinions of Dr Bookless and Journeaux were more robust and are consistent with both the imaging and the normal dermatome patterns.
I am not persuaded by the evidence of Dr Campbell in relation to headaches.
He conceded he did not see the headaches as a significant issue when he took the history. He agreed he did not investigate the condition closely when he wrote his opinion on the topic.It is unsurprising that Dr Campbell did not see headaches as a major issue when he took the applicant’s history. It seems the applicant did not report that history to any of her treating doctors or others concerned with assessing her health. I note she explained she did not mention headaches regularly because she was satisfied there was nothing that could be done, but that is a surprising conclusion: she did start to mention headaches to her physiotherapist in recent years, which suggests she had not in fact resigned herself to suffering in silence soon after the original injury in 1998.
CONCLUSION
I am not satisfied the applicant continues to experience clinically significant radiculopathy connected to her C5-6 condition. I am also not persuaded she continues to experience headaches related to the same neck injury, or to a work-related aggravation of a neck injury. It follows I do not need to consider whether she experiences a whole person impairment of at least ten percent under the relevant tables. The decision under review must therefore be affirmed.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 31 July 2014
Date of hearing 31 March 2014 Date final submissions received 12 May 2014 Counsel for the Applicant Mr Anforth Counsel for the Respondent Mr Dillon
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