Delaney and Comcare (Compensation) - [2020] AATA 1772

Delaney and Comcare (Compensation) [2020] AATA 1772 (15 June 2020)
Division:GENERAL DIVISION
File Numbers: 2016/5808 and 2018/4562
Re:Sharon Delaney
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:15 June 2020
Place:Melbourne

The decision under review in matter 2016/5808 is affirmed.
The decision under review in matter 2018/4562 is affirmed.
...[sgd].....................................................................
Member
Catchwords
COMPENSATION – accepted conditions of synovitis and tenosynovitis, adhesive capsulitis of shoulder and lateral epicondylitis (left) – claim for aggravation of asymptomatic degenerative cervical spondylosis – whether employment contributed to rendering condition symptomatic – claim under s.14 of the Safety Rehabilitation and Compensation Act 1988 – refused – decision affirmed – nerve block treatment – whether treatment in relation to an injury – section 16(1) – claim for medical expenses refused – decision affirmed.
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Pratt and Comcare [2004] AATA 1281
PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
REASONS FOR DECISION
Member R West
15 June 2020

This matter concerns the review of four decisions of the Respondent to deny claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Act) by the Applicant in relation to her employment with the Australian Quarantine Inspection Service (AQIS) between April 2008 and December 2009.
BACKGROUND
The Applicant was employed by AQIS as an animal quarantine officer/bio-security officer. She commenced employment on a non-permanent basis on 21 April 2008 and moved to a permanent position on or about 23 November 2008.
As an animal quarantine officer/bio-security officer the Applicant’s duties involved the care of animals, principally cats and dogs, held in quarantine in the AQIS facility located in Spotswood, Victoria. Her duties required her to clean kennels and cat pens, feed the animals and provide day-to-day care of the animals in quarantine.
The Applicant performed her full range of duties until July 2009 after which she worked either light or modified duties until she ceased work entirely in December 2009.
On 27 July 2009, the Applicant made a claim for compensation. In her claim form the Applicant claimed that she had sustained injuries affecting her arms, including her hands, shoulders and left elbow in performing her normal duties.[1] On 14 October 2009, the Respondent accepted liability under s.14 of the Act for synovitis and tenosynovitis (left), adhesive capsulitis of shoulder (left) and lateral epicondylitis (left),[2] and the Applicant received compensation for time off work and medical expenses in relation to the accepted condition.
[1] T-documents in mater 2018/4562, T4 at p.17.
[2] T-documents in mater 2014/4056, T6.
On 1 July 2011, the Respondent accepted liability under s.14 of the Act for a secondary condition of unspecified injury to shoulder upper arm.[3]
Application 2014/4056
[3] Ibid T28 at p.159.
On 29 April 2014, the Respondent determined that the Applicant suffered a 10% permanent impairment in respect of her accepted psychological condition of adjustment reaction and mixed anxiety and depressed mood.[4] This was varied by determination on 25 July 2014 to increase the score for non-economic loss.[5] The Applicant seeks a review of this determination in matter 2014/4056.
Application 2014/6705
[4] Ibid T53.
[5] Ibid T59.
On 8 September 2014, the Respondent determined that the Applicant suffered a 12% permanent impairment of her left shoulder in relation to her accepted condition of synovitis and tenosynovitis, adhesive capsulitis of shoulder and lateral epicondylitis but rejected her claim in relation to her right shoulder. This determination was affirmed on 8 September 2014. The Applicant seeks a review of this determination in matter 2014/6705.
Application 2016/5808
On 27 January 2011, the Respondent determined that the Applicant was entitled to compensation under s.14 of the Act for an adjustment reaction with mixed emotional features related to chronic pain caused by her work injuries.[6]
[6] Ibid T26 at p.144.
In April 2016, Mr Gregory Alan Etherington, spinal surgeon, examined the Applicant and diagnosed that she had ongoing bilateral shoulder pathology and recommended bilateral C6 nerve root injections. On 4 April 2016, Mr Etherington wrote to the Respondent and requested approval to conduct the procedure.
On 28 July 2016, the Respondent determined that it was not liable to compensate the Applicant in respect of the nerve root blocks under s.16 of the Act as it was not related to her compensable condition.[7] The Applicant sought a review of this decision. On 23 September 2016, a senior review officer affirmed the decision.[8] The Applicant seeks a review of this decision in matter 2016/5808.
[7] T-documents in matter 2016/5808, T69 at p.296.
[8] Ibid T73 at pp.307-309.
The Applicant underwent the nerve block procedure in August 2016.
Application 2018/4562
On 29 May 2018, the Applicant made a claim for compensation under s.14 of the Act in relation to a neck injury/bilateral C6+7 radiculopathy resulting from the general course of her employment and her general duties.[9] This claim was denied on 13 July 2018[10] and the decision affirmed on review on 9 August 2018.[11] The Applicant seeks to review this decision in matter 2018/4562.
Hearing
[9] T-documents in matter 2018/4562, T16 at pp.90-95.
[10] Ibid T22 at p.121.
[11] Ibid T26 at pp.137-143.
Hearings were held on 13, 14 and 15 May, 25 November, and 2 and 3 December 2019. The Applicant was represented by Mr R Ternes of counsel and the Respondent by Mr J Lenczner of counsel.
At the outset of proceedings the Tribunal acceded to a submission by the Applicant that matters 2014/4056 and 2014/6705 be adjourned as the Applicant was then on a public waiting list for neck surgery and it was not appropriate for the hearing of those matters to proceed while the surgery was pending.
The hearing proceeded on the basis of a review of the two decisions in matters 2016/5808 and 2018/4562, with the parties agreeing that the Tribunal could have regard to all of the documents filed in all four matters.
CONTENTIONS
In relation to Application 2016/5808, the Applicant contends that the nerve root blocks at the C6 level were undertaken in relation to the work-related aggravation of a degenerative cervical spine condition which had been accepted by the Respondent as a compensable injury, and that the blocks were treatment that was reasonable for the Applicant to obtain in the circumstances as required by s.16(1) of the Act.
In relation to Application 2018/4562, the Applicant contends that her condition, an aggravation of a degenerative cervical condition (whether disc related, stenosis related or cervical spondylosis) or chronic pain in respect of the neck was contributed to, to a significant degree, by her employment between April 2008 and July 2009.
In respect of both applications, the Respondent contends:
a.That the Applicant did not sustain any neck injury to which her employment contributed to a significant degree, and that her condition before and after November 2008 involved degenerative changes and was constitutional in nature, and if the Applicant had symptoms of pain or discomfort in respect of her neck they did not constitute an injury for the purpose of the Act; and
b.In the alternative, if the Applicant did sustain a neck injury to which her employment contributed significantly, the Applicant is not entitled to compensation because she failed to give written notice of the injury as soon as practicable after she became aware of the injury[12] or has failed to make a proper claim in respect of the injury.[13]
[12] As required by s.53(1) of the Act.
[13] As required by s.54 of the Act.
EVIDENCE
In conducting the review, the Tribunal has had regard to:
a.Each of the documents lodged with the Tribunal by the Respondent pursuant to sections 37 and 38AA of the AAT Act in matters 2014/4056, 2014/6705, 2016/5808 and 2018/4562 (T-Documents);
b.The oral evidence of:
i.the Applicant;
ii.Dr Ales Aliashkevich;
iii.Dr Erin Marie Hatherell;
iv.Mr Etherington;
v.Mr Angelo Ravaneschi;
vi.Dr Scott Malcolm Fairbairn;
vii.Dr Tony Kostos; and
viii.Mr Iain Kelman; and
c.the documents tendered by each party as listed in Annexure A.
NATURE OF THE APPLICANT’S DUTIES
A central consideration in assessing the issues in this case is the nature and extent of the work performed by the Applicant during the period of the Applicant’s employment with AQIS between April 2008 and December 2009.
The Applicant described her duties in her written statement filed with the Tribunal[14] as follows:
[14] Exhibit A1, as amended in evidence: Transcript 13 May 2019 at pp.17-18.
a.The job was essentially looking after animals in the live animal import area.
b.There were a wide range of animals including cats, dogs, horses, alpacas and birds.
c.Her duties included:
i.Feeding the animals, which involved handling heavy slabs of canned wet food or bags of dry food and cutting up large rolls of wet food requiring her to take the rolls from the refrigerator, cut them up and put portions in the animals’ dinner trays before returning the trays to the refrigerator;
ii.Cleaning animal faeces which involved filling large, black, plastic garbage bags with dog faeces and placing them in a vehicle to transport them to a dumpster, and if the vehicle was not available this required carrying them to the dumpster, often more than one at a time. At the dumpster it was necessary to lift the lid and fling each bag up and over the edge of the dumpster. She described this as heavy and arduous work;
iii.Grooming and bathing dogs;
iv.Sweeping out and hosing out stables (with a hose like a fire hose);
v.Climbing ladders to pull out bird nests;
vi.Assisting with veterinary work, requiring her to lift animals on and off tables and in and out of bathtubs;
vii.Hosing out kennels;
viii.Walking multiple dogs on a lead which could be difficult to control and would pull forcefully in all directions;
ix.Picking up dog bedding;
x.Freshening water bowls;
xi.Scrubbing, sterilising, mopping and sweeping clinic rooms, kitchens and dog grooming areas, including washing and hanging up items;
xii.Cleaning windows; and
xiii.Restacking supplies, involving some heavy boxes, cartons, or cans of food.
The Applicant stated that she performed the full range of her duties continuously from April 2008 until July 2009 when she went onto administrative or light duties.
In her evidence-in-chief the Applicant added:
a.She picked up dog faeces with a pooper scooper device;
b.It was only on odd occasions that the vehicle was not available to take bags of faeces to the dumpster;
c.The vet examined small dogs on the table but larger dogs on the floor;
d.Her role in dealing with horses was to follow the vets around and complete paperwork;
e.The horses were breeding horses and racehorses – she did not groom them as they had their own strappers. The strappers did a fair amount of cleaning the stables but she had to hose out the stables each time because the strappers did not do a good job;
f.She only used the fire hose three or four times;
g.She moved slabs of cat food using a hand trolley and at times carried them by hand – sometimes more than one at a time;
h.Bags of dog food varied from two kg to quite a few kilos; and
i.There were occasions when she was required to work up to 12 days straight.
Under cross-examination the Applicant conceded:
a.It was rare to walk more than one dog at a time and she could call on assistance with boisterous dogs;[15]
b.She did not work with birds after her supervisor found out she had birds at home because of the risk of contamination;[16] and
c.She did not care for horses and alpacas but did some cleaning of their stables.[17]
[15] Transcript 14 May 2019 at p.96.
[16] Ibid at pp.82-83.
[17] Ibid at p.83-84.
The Applicant’s supervisor, Mr Ravaneschi, provided a witness statement[18] and gave evidence at the hearing. The Applicant disagreed with some aspects of Mr Ravaneschi’s written statement but did not dispute the following:
a.The Applicant’s duties predominantly involved caring for dogs and cats.
b.The weights which were likely to be involved in the preparation of the dogs’ food were around 2.5 kg.
c.The Applicant was provided with a trolley to transport the dogs’ food from the kitchen to the kennels.
d.The bags containing dog faeces were generally taken to the dumpster in a vehicle by an employee other than the Applicant.
e.The weights involved in caring for cats were, generally, significantly less than for dogs.
f.The Applicant was not required to lift large animals onto a table for grooming and larger dogs were washed in a hydro bath where they were tethered while being washed.
g.The Applicant suffered injuries at work on 11 August 2008 (contusion to her knee) and 17 October 2008 (chemical burn to the hand/right thumb) which resulted in her working restricted duties for limited periods.
h.In about August 2009 the Applicant commenced in a light duties position in the gatehouse, admitting visitors to the centre, and did not return to her previous duties before ceasing employment with AQIS in December 2009.
[18] Exhibit R2.
Mr Ravaneschi acknowledged that the Applicant may have had to carry a number of bowls of dog food into the kennels because she could not access them with the trolley provided, as claimed by the Applicant in her evidence. He estimated the weight of food in each bowl as between 300 – 500 gm, depending on the size of the dogs.
Annexed to Mr Ravaneschi’s statement was a spreadsheet setting out the Applicant’s work allocation for the period from the end of August 2008 to June 2009. It showed that the Applicant was predominantly allocated to working with cats. Of the 156 days she was allocated duties, 136 were for the care of cats[19] and only 20 for dogs. In addition, she had 11 days absent on paid workers compensation leave, 10 days on light duties, 10 days’ recreation leave and 8 days’ absence for training purposes.
[19] 13 of these days also included work looking after the whelp kennels where single dogs (such as ill or elderly dogs) were kept.
The Applicant’s allocation to work with dogs represented only slightly over 10% of the working days she was rostered over the period from late August 2008 until June 2009.
The spreadsheet confirmed the Applicant’s evidence that she was rostered for up to 12 days on occasions, and Mr Ravaneschi stated that it was a condition of employment that officers would work one in three weekends,[20] although officers could arrange to swap shifts among themselves.
Findings of Fact - Applicant’s Work
[20] Transcript 15 May 2019 at p.195.42.
In assessing the evidence regarding the Applicant’s duties, the Tribunal notes that the evidence of the Applicant and Mr Ravaneschi are in general agreement regarding substantive matters. Their evidence varied mainly in relation to extent and degree. In broad terms, the Applicant sought to paint a picture that she had to work long hours under pressure and that her duties involved repeated heavy lifting and exposure to forceful movement. Mr Ravaneschi’s evidence challenged the extent and degree of the picture painted by the Applicant. In assessing the contradictions in their evidence the Tribunal has preferred the evidence of Mr Ravaneschi who presented as a truthful and credible witness. For reasons discussed more fully in paragraph [62] below the Tribunal finds that the Applicant was not an entirely reliable witness, and in describing her work she was selective in her recollection and prone to embellishment.
The Tribunal makes the following findings in relation to the Applicant’s work:
a.The Applicant performed the full duties of an animal quarantine / bio-security officer from 21 April 2008 until she was allocated to administrative duties in the gatehouse in July 2009, save for 11 days absent on paid workers compensation leave, 10 days on light duties, 10 days recreation leave and 8 days’ absence for training purposes.
b.During this time, she worked predominantly with the care of cats although she was involved with the care of dogs approximately 10% of the time.
c.Her duties prior to 10.30 am, when the owners would visit their animals, included cleaning and feeding the animals. For cats this involved cleaning out the cats’ litter trays and sweeping out the cat pens. For dogs the Applicant collected dog faeces using a scoop and placed it in a plastic bin liner and hosed out the kennels. The bin liners typically weighed around six or seven kg and she was required to carry them from the kennels to an area adjacent to the kitchen and lift them into a vehicle for transport to a dumpster. Usually another employee drove to the dumpster and threw the bin liners into it but the Applicant may have performed this task occasionally. When preparing food for the dogs she had to manually handle dog food involving weights of no more than 2.5 kg. To feed the dogs she transported bowls of dog food to the kennel entrance on a trolley and then carried several bowls at a time to distribute the food to each dog in its kennel. A bowl of dog food weighed around 300 - 500 gm and the total weight of the trolley was no more than 20 kg. The work involved with the care of cats was similar to the work involving dogs but the weights involved were generally less.
d.The Applicant was expected to complete the cleaning of the dog kennels or cat enclosures allocated to her before 10.30 am each day, before the owners came to visit their pets. She had adequate time to do this and assistance was available if she fell behind.
e.After 10.30 am the Applicant was required to perform more general duties. She assisted the veterinary staff with paperwork. She was occasionally required to lift small dogs onto a table for examination by a veterinary officer or to be groomed. She was required to walk dogs on a lead, typically one at a time, although on rare occasions she would walk related dogs together. She cleaned out stables using a regular fire drill hose on a few occasions.
f.She was required to work on at least one weekend in three and actually worked on five weekends over the period August 2008 to the end of June 2009. On three occasions during that period she worked 12 days straight.
Medical Evidence
The Applicant relied on the expert evidence of Dr Aliashkevich, neurosurgeon, Dr Hatherell, general practitioner, and Mr Etherington, spinal surgeon who each gave evidence at the hearing.
The Respondent relied on the expert evidence of Dr Fairbairn, orthopaedic surgeon, Mr Kelman, consultant orthopaedic surgeon and Dr Kostos, consultant rheumatologist, who each gave evidence at the hearing.
APPLICATION 2018/4562
The Applicant’s claim in matter 2018/4562 is that she suffered an injury within the meaning of s.5A of the Act on 27 July 2009, namely an aggravation of a degenerative cervical condition or chronic pain in respect of the neck which was contributed to, to a significant degree, by her employment with AQIS between April 2008 and July 2009.[21]
[21] The Applicant amended her contentions on 25 November 2019 to exclude the period from 27 July to 23 December 2009, when she was on light duties, as contributing to the aggravation of the Applicant’s condition: see transcript of 25 November 2019 at p.210.31-32.

The Respondent’s primary submission is that the Applicant did not sustain any neck injury to which her employment contributed to, to a significant degree. That her condition involved degenerative changes and was constitutional in nature, and if the Applicant had symptoms of pain or discomfort in respect of her neck they did not constitute an injury for the purpose of the Act.
The determination of the Applicant’s claim involves a consideration of the following questions:
a.Did the Applicant, prior to her employment by AQIS, have a degenerative cervical condition which was asymptomatic?
b.Did the Applicant’s employment with AQIS contribute to a significant degree, to the Applicant’s degenerative cervical condition becoming symptomatic?
c.If so, can the Applicant’s degenerative cervical condition becoming symptomatic be regarded as an aggravation for the purposes of the Act?
d.If so, does the Applicant continue to suffer from the symptoms of her degenerative cervical condition which continue to be related to her employment with AQIS?
Did the Applicant, prior to her employment by AQIS, have a degenerative cervical condition which was asymptomatic?
The Tribunal is satisfied on the basis of the medical evidence that the Applicant suffered from a degenerative cervical spine condition prior to commencing employment with AQIS in April 2008.
In his report of 9 March 2018,[22] Dr Aliashkevich diagnosed the Applicant as suffering from a pre-existing cervical spine degenerative condition, and noted from X-rays of her spine taken on 3 November 2008 the presence of narrowing of the C5/6 disc and likely acquired foraminal stenosis bilaterally at the C5/6 level. Degenerative changes were also noted in the thoracic and lumbar spine. He confirmed his diagnosis in his oral evidence as follows:[23]
I have reviewed her radiological investigations, and notes of previous spinal specialists who consulted her, including Mr Greg Etherington, spinal surgeon, and I came to the conclusion that she suffered from a significant and complex condition affecting her neck, both shoulders and arms; that she had from the spinal perspective significant degeneration of the intervertebral discs C6‑7, (indistinct) C5‑6, and there was bilateral foraminal stenosis with compression of the nerve roots…
[22] Exhibit A3.
[23] Transcript 14 May 2019 at pp.7- 8.
This diagnosis was confirmed in the oral evidence of Dr Fairbairn who stated that the Applicant’s condition was cervical spondylosis, a degenerative neck condition,[24] and by Mr Etherington who gave evidence that there was most likely some asymptomatic wear and tear in the cervical spine by middle 2008.[25]
[24] Transcript 25 November 2019 at p.219.19.
[25] Ibid at p.233.10.
The Applicant asserted that her cervical spine condition was asymptomatic prior to her commencing employment with AQIS. The Respondent did not dispute this and contended further that the Applicant’s cervical spine condition did not become symptomatic prior to her ceasing her employment with AQIS in December 2009 or even before 2015.
An examination of the four related Tribunal files in this matter did not disclose any contemporaneous medical evidence to indicate that the Applicant was experiencing symptoms of a degenerative cervical spine condition prior to commencing employment with AQIS. Subsequent medical reports do not indicate that the Applicant’s symptomatology preceded the commencement of her employment.
On the basis of this evidence and the submissions of the parties the Tribunal is satisfied that the Applicant had a degenerative cervical spine condition which was asymptomatic prior to her commencing her employment with AQIS in April 2008.
Did the Applicant’s employment with AQIS contribute to a significant degree, to the Applicant’s degenerative cervical condition becoming symptomatic?
The Respondent contends that the evidence does not establish that the Applicant’s cervical spine condition became symptomatic prior to her ceasing her employment with AQIS in December 2009 or even before 2015, and that the absence of such evidence makes it unlikely that employment played any part in rendering the Applicant’s condition symptomatic.
The Applicant lodged a claim form on 27 July 2009 in which she identified the part of her body most affected by her injury as left elbow and arm, plus both shoulders arms and hands.[26] The claim did not mention her neck. The form states that the Applicant first noticed the injury on 1 December 2008 and that the action, exposure or event causing the injury was performing my normal duties as required by AQIS. The Applicant was assigned to a light duties position from July 2009 until she ceased employment with AQIS in December 2009 and the Applicant has not asserted that this period of light duties contributed to the aggravation of her symptoms.
[26] T-documents in matter 2014/4056, T3 at p.21.
The Applicant has received medical treatment for the injury to her left elbow and arm, plus both shoulders arms and hands throughout the period from July 2009 until the present. While recent medical opinion has identified a cervical spine condition as a potential source of the Applicant’s symptoms the condition did not form part of the earlier diagnoses.
The clinical notes of the Applicant’s general practitioner do not record any complaints by the Applicant related to her neck during the period of her employment.[27]
[27] Exhibit R1.
The report of Dr David Gras,[28] occupational physician, who saw the Applicant on 30 July 2009 in relation to problems with her left arm and shoulder pain, noted that the Applicant said she had some discomfort around the lower left and right sides of her neck but she had no symptoms of neck stiffness with pain or pain and stiffness with movement. He noted that on examination the Applicant had a full range of neck movements.
[28] T-documents in matter 2014/4056, T4 at pp.37-43.
Mr Max Wearne, consultant orthopaedic surgeon, reported on his consultation with the Applicant on 22 September 2009,[29] that the Applicant had described her symptoms to him as pain and weakness in her left arm and pain in her shoulders. He did not record her complaining of neck pain and noted in his report that the Applicant stood with her head and neck in a normal posture and could manage a full and free range of neck movement without complaint.
[29] Ibid T5 at pp.44-53.
Ms Nicola Eustace, a hand therapist, who referred the Applicant to Associate Professor Gavin Davis for assessment in December 2009, stated that the Applicant had been complaining of pain in her left shoulder and forearm since October 2008.[30] Associate Professor Davis’ clinical notes do refer to neck swelling’ and ‘can’t sleep either side [because] neck/shoulder pain, [left greater than right] as part of a list of symptoms, but there is no evidence that he diagnosed that the Applicant’s symptoms were due to a cervical spine condition,[31]
[30] Exhibit A7.
[31] Neither Ms Eustace nor Professor Davis were called to give evidence at the hearing.
Dr Terence Lim, a consultant in rehabilitation and pain medicine, who saw the Applicant on 14 April 2010, stated that she presented with bilateral shoulder and left upper limb pain. His report[32] makes no mention of neck pain.
[32] T-documents in matter 2014/4056, T11 at p.93.
Mr Kenneth Muirden, consultant rheumatologist, examined the Applicant in July 2010. He reported[33] his findings in relation to the Applicant’s musculoskeletal system as a left shoulder capsulitis commonly triggered by a rotator cuff tendinopathy and a left lateral epicondylitis condition.He noted there was a full range of motion of the cervical spine although pain was expressed on extremes of motion. He also noted some paracervical muscle tenderness but no obvious swelling.
[33] Ibid T23 at pp.123-132.
In contrast to the earlier medical reports there is some reference to the Applicant’s cervical condition in later reports. Dr Chris Baker, specialist in occupational medicine, examined the Applicant on 15 May 2014 in relation to constant pain affecting both arms, neck and shoulders. He reported[34] that the Applicant had a restricted range of movement and tenderness over the back of the neck and into both trapezius muscles, and that she complained of pain on light palpitation. He diagnosed that the Applicant was suffering with an adhesive capsulitis of the left shoulder and diffuse chronic pain condition affecting the neck, both shoulder girdles and both arms.
[34] Ibid T56 at pp.337-347.
On 10 September 2015, Mr Ash Moaveni, orthopaedic surgeon, reported[35] that an MRI scan shows both central and foramanil stenosis at C5/C6 and C6/C7 levels, and that this could explain some of the Applicant’s symptoms. Mr Moaveni referred the Applicant to Mr Etherington, an experienced spinal surgeon.
[35] Exhibit A7 at p.88A.
Mr Etherington noted in his report of 13 April 2016[36] that imaging confirmed that the Applicant was suffering from degenerative changes in her spine which were maximal at C6/7 and C5/6, and that bilateral foraminal stenosis at C5/6 was likely the cause of her arm pain. However, the report noted that the Applicant also had some bilateral shoulder pathology and it was difficult to say how much of each was contributing to her ongoing symptoms. In his report of 26 April 2018[37] he noted that the Applicant had problems with her neck/shoulders/arms and that most of the treatment from 2008 to 2016 was directed at the shoulders. He noted that Mr Moavani was not convinced that all of the Applicant’s problems were coming from her shoulders. Mr Etherington noted that on examination he could not find any strong neuorological signs, although there was some limited neck movement. In 2016 he arranged for some C6 nerve root injections which seemed to help with the pain for several weeks, but when he saw her again in 2017, she was still having the same symptoms.
[36] Exhibit A7 at p.29.
[37] Exhibit A5.
Mr Etherington stated in his report of 18 May 2017[38] that scans had confirmed degenerative changes at C6/7, C5/6 and C4/5 and that the Applicant’s arm pain, the symptoms of which had been ongoing for quite some time, was more likely to be coming from C5/6 and C6/7 levels. He confirmed in his later report of 17 June 2019[39] his view that the Applicant’s main problems related to her cervical spine. He also stated in that report that he had last seen the Applicant in May 2017 which was about 8 years after the onset of her symptoms.
[38] Exhibit A9.
[39] Exhibit A10.
On March 2018 Dr Aliashkevich, neurosurgeon and spinal surgeon, purported to agree with other doctors in diagnosing that the Applicant had developed a central sensitisation and diffuse chronic fibromyalgia-type pain condition affecting her neck, both shoulder girdles and both arms.[40] This diagnosis was not supported by Mr Wearne, consultant orthopaedic surgeon, who diagnosed that the Applicant suffered an overuse syndrome of her left upper limb, which has resulted in a mild rotator cuff lesion of her left shoulder and the development of a frozen shoulder syndrome.[41]
[40] Exhibit A3.
[41] T-documents in matter 2014/4056, T5 at p.49.
Dr Hatherall, a general practitioner, opined in her report of 8 May 2019[42] that the Applicant:
…originally presented to me with long-standing diagnoses of bilateral shoulder tenosynovitis and adhesive capsulitis, bilateral epicondylitis, CRPS, and chronic adjustment disorder. More recently she has been diagnosed with moderately severe cervical spine changes which have been investigated since 2015.
She expressed the view that while the Applicant’s symptoms were initially attributed to shoulder and elbow pathologies they are more likely generated by the Applicant’s spine pathologies.
[42] Exhibit A4.
When the medical evidence is considered as a whole it gives no clear indication of when the symptoms of the Applicant’s degenerative cervical spine condition manifested. Mr Etherington highlighted this in his oral evidence to the Tribunal when he said:[43]
My impression was that it came on gradually over a period of time. The exact timeframe was a bit blurry but as I was interviewing her, I think, eight years or so after the onset, you know, I wasn’t surprised that the – given that it wasn’t one specific event, recollection of how long it took to actually develop significant symptoms was a bit hard to pin down.
[43] Transcript 25 November 2019 at pp.232-233.
It seems likely that the Applicant’s current condition is multi-faceted. There is clearly a contribution from a left arm and shoulder pathology as identified by Drs Glas, Wearne and Muirden, there is the likelihood that a chronic pain condition such as fibromyalgia has developed as opined by Dr Aliashkevich and, as Mr Etherington opined, degenerative changes are likely to have progressed in relation to the Applicant’s neck condition all contributing to her overall pain.
The Applicant’s evidence on this issue does not assist the Tribunal. When directly questioned about when she first experienced the symptoms of her cervical spine condition the Applicant could not recall.[44] When confronted with various medical reports showing no mention of a neck condition in the histories taken by the relevant medical practitioners the Applicant insisted that she had raised the matter but had been ignored. This is illustrated by the following exchange during cross examination:[45]
[44] Transcript 13 May 2019 at pp.67-68 and 73.
[45] Transcript 13 May 2019 at pp.43.21-44.17.
…well firstly, did you talk to him [Mr Wearne] about the neck?
I probably would have done, yes.
Have any reason why he hasn’t recorded anything about the neck?
I can’t answer for him, so I don’t know.
You can’t really say you would have told him that, can you? I mean this is 10 years ago. You genuinely have a recollection of telling him anything about any neck pain in 2008?
I have a recollection of trying to tell a lot of the doctors that I had bilateral pain, and that it was coming from the base of the neck.
Yes. Well when you say a lot of the doctors, do you remember which doctors you tried to tell that to?
Lots of them in the very beginning, lots of them.
Yes?
Nobody was listening.
They weren’t listening?
No.
So you say that you actually talked about pain from the base of your neck, and people weren’t listening to you?
Yes.
(Indistinct)?
They were so focused on the arm.
Did you see this report [Mr Wearn’s report of 7 October 2009[46]] at some stage after it was prepared?
Quite possibly.
Did you make any effort to bring to anyone’s attention that the histories provided were wrong?
I believe I did actually, yes.
Who?
I believe that I would have brought it to the attention of quite possibly the GP, and also I’m trying to remember who I was dealing with, where I was at at that time. I believe I also brought it to the attention of – I don’t have the report here, but I think his name was Greenwich, he was the – one of the officers at quarantine, who was helping me with the last stages of being there.
What, that the doctors were not taking proper histories?
They weren’t taking proper history, but nobody was listening.
[46] T-documents in matter 2014/4056, T5 at p.44.
Nobody was listening. To what, to this specific history related to neck, or to what?
Yes. That I was trying to explain what was happening, but they were all focusing on elsewhere.
The Applicant’s evidence overall was not entirely reliable. Even allowing for the fact that the Applicant was called on to recount an event over 10 years previous, her evidence lacked credibility in several respects. In response to questions in cross-examination she frequently said she did not remember.[47] She repeatedly disputed the histories taken by medical professionals.[48] When shown a contemporaneous email from her manager (which was included in the T-documents)[49] she unreasonably denied any recollection of the person or having told her any of the facts recorded in the email.[50] She also displayed selective memory in relation to the email record of her conversation with her supervisor Mr Ravaneschi[51] and unreasonably refused to accept the roster annexed to Mr Ravaneschi’s statement without offering reasons for disputing its accuracy.[52]
[47] See Transcript 13 May 2019 at pp.26-27, 30, 37-38, 40, 47, 62-63, 67-68, 71, 73,-74, 81 and 84.
[48] See for example Transcript 13 May 2019 at pp. 76-77.
[49] T-documents in matter 2018/4562, T4 at p.30.
[50] Transcript 13 May 2019 at pp.65.25-67.45.
[51] Ibid at pp. 92-93.
[52] Ibid at pp. 84-85.
The Tribunal does not accept the Applicant’s assertion that she complained to doctors about her neck condition but was ignored.
Leaving aside the Applicant’s testimony, there is no direct contemporaneous evidence in the medical reports, or otherwise, that the Applicant experienced the symptoms of the cervical spine condition during the period of her employment with AQIS from April 2008 to December 2009. The Applicant’s complaints at the time of pain in her left shoulder, elbow and arm were diagnosed as synovitis and tenosynovitis (left), adhesive capsulitis of shoulder (left) and lateral epicondylitis (left) and this was accepted by the Respondent.
Having considered all of the medical evidence, the Tribunal is satisfied, on the balance of probabilities, that the Applicant’s degenerative cervical spine condition did not become symptomatic before she ceased employment with AQIS in December 2009. This fact does not rule out the possibility that the Applicant’s employment contributed to the aggravation of the Applicant’s degenerative condition which became symptomatic at a later time, but it does substantially detract from the likelihood that this occurred.
The Applicant’s claim is based on the proposition, reflected in her original claim form, that the aggravation occurred as a result of her performing her normal duties as a quarantine officer rather than any specific identified event. This then raises the question whether the nature of the Applicant’s duties and the circumstances of her employment with AQIS, as distinct from her other activities and the natural progression of the condition, can be identified as contributing to the aggravation to a significant degree.
The Applicant relied primarily on the medical opinion of Mr Etherington, Dr Aliashkevich and Dr Hatherell.
Mr Etherington
The written reports of Mr Etherington are less than definitive about the relationship between the Applicant’s employment with AQIS and the development of symptoms from her degenerative cervical spine condition.
In his report of 26 April 2018,[53] in response to a direct question regarding the relationship between the Applicant’s employment and her condition, he stated:
Unfortunately, the degenerative changes in her neck, mainly at C6/7 & C5/6 are extremely common, and it is not possible to say what caused them. The most I could say was [that] she has an “aggravation of pre-existing cervical spine changes”.
[53] Exhibit A5.
In his brief report of 17 June 2019,[54] Mr Etherington expressed the qualified view that:
Her work was clearly physically demanding, and potentially she may have aggravated some degenerative changes.
[54] Exhibit A10.
In his oral evidence Mr Etherington attributed the onset of symptoms of the Applicant’s degenerative condition to the general nature of the Applicant’s duties and not to a specific causal event. The transcript[55] records the following exchange during his evidence-in-chief:
Could I just ask you to explain to the tribunal what about her work it was that you regarded as being a contributor to the onset of the symptoms?
Well, as I understand from what Mr Delaney says and the other paperwork that was sent to me her work was looking after animals as well as transporting them, so that involves a lot of picking up and moving animals that don’t necessarily want to be moved, as well as the day-to-day care, carrying food, items, cleaning up after them, cages, care of the cages and such like that. It sounded - from my lack of experience of that sort of thing, it sounded as though it’s a fairly physically demanding job which would’ve involved a lot of lifting and shifting as well as twisting and turning, getting into smaller spaces. And so that was my interpretation of what her job involved, and there was also a mention of the hours of work as well which I didn’t have any definite description of that.
Are you able to be any more specific, or what is it that you mean when you describe overall workload and over a period of time?
What I mean by that is that there wasn’t one specific event, a car accident, a fall, there wasn’t any sort of one event where you can say, “Yes, on 3 May at 12.30 this happened, and therefore after that I was in pain”. My impression was that it came on gradually over a period of time. The exact timeframe was a bit blurry but as I was interviewing her, I think, eight years or so after the onset, you know, I wasn’t surprised that the - given that it wasn’t one specific event, recollection of how long it took to actually develop significant symptoms was a bit hard to pin down.
[55] Transcript 25 November 2019 at pp.232-233.

Mr Etherington made it clear that in drawing a link between the onset of symptoms and the Applicant’s employment he had not identified, and could not identify, a specific mechanism. The transcript[56] records the following exchange during cross-examination:
[56] Ibid at pp.236-241.
There was no specific action. She just noticed her left arm had difficulty moving, and then there’s a reference to pain and fatiguing over a period of time?
Yes.
Now, that’s not a history, I suggest to you, of a relationship between work and her symptoms. That is a history of some symptomatology starting to happen coincidentally with the time when she’s working at the facility. You’d agree with me about that?
Yes.
Yes. And so if you took that on its face value from what you’ve said you wouldn’t be able to relate that work with the aggravation of the symptomology because she doesn’t say, “When I’m doing this activity” or “that activity it causes me pain in my neck” or “in my arms” or “in my shoulders” or whatever. Do you accept that as a proposition?
Yes.
…
Then the normal activities of life, including the kind of activities that Ms Delaney participated in at work and probably at home and such like, don’t cause the aggravation at a structural level, but at most they do is they may aggravate the symptoms of the underlying condition?
Yes. That’s what the theory is, is that – is that the symptoms are aggravated and only very very rarely would you actually look at an X-ray, a scan or anything and say, “Ah, yes, this is - a fracture occurred” or an acute disc rupture or something like that. It’s really really rare.
And if an event of that nature occurred which would play a part …in the potential aggravation of the underlying structure and/or acceleration of it, if such an event did occur, you’d sure know about it, wouldn’t you?
Absolutely.
Mr Etherington stated that he thought it plausible[57] that the manual work the Applicant performed would produce symptomatology but he relied on the Applicant to draw the link. The transcript records the following exchange during cross examination:[58]
[w]hat in your opinion caused Ms Delaney’s asymptomatic cervical spine condition to become symptomatic at around that time?
Well, again, I was talking to her eight years after it started, so - but from what I understand from what she was saying, and the paperwork that it seemed to be - she was saying it was aggravated by her - the nature of her work. Again, not one specific event, it seemed to come on over a period of time, so the repetitive nature, the multiple lifting and shifting and twisting involved in doing her work was what I understood. The actual imaging findings were very non-specific. You can’t look back and say, “Yes, this person had a car accident”, and whereas, “This person had a football accident”, or other causes of the pain itself.
...
So absent a complaint by Ms Delaney of particular activities in the work situation causing her neck aggravations you wouldn’t say that there was a relationship between the work and the symptomatology as a result of that work? You couldn’t, could you?
No.
So you wouldn’t be saying that there was any symptomatic aggravation of the symptoms unless the patient said, “This is related to my work”?
That’s correct.
Dr Aliashkevich
[57] Ibid at p.261.12.
[58] Ibid at p.233-236.
In his report of 9 March 2018[59] Dr Aliashkevich opined that:
I consider her current neck and arm condition consistent with the chronic occupational overuse syndrome and employment-related aggravation of pre-existing degenerative spine disease. In my opinion, her employment was a materially contributing factor to significant aggravation of her pre-existing cervical spine degenerative condition.
[59] Exhibit A3.
As with Mr Etherington, Dr Aliashkevich did not identify any specific mechanism for the aggravation of the Applicant’s degenerative condition. His evidence[60] was:
Now, look, you’ve set out in the history that you obtained for the purposes of the report, there is aspects of the work that she did and you’ve now been given some more information in her statement and some more information from Mr Ravaneschi, which details the work that she undertook. Do you have any idea, for instance - well, I’ll rephrase that, which bits of the work do you see are the bits of the work that you think impact on her spine to produce the conclusion that you did? Is it the carrying of the food or is it the lifting of the firehoses? What is it about her work that you find particularly important in terms of the conclusions you form?
I think it’s all aspects of her work in combination. I cannot separate any single specific - specific activity. I think that it’s the combination of all of them together.
[60] Transcript 14 May 2019 at p17.5.
When pressed on his opinion that duties of the kind undertaken by the Applicant could cause a chronic occupational over-use syndrome, Dr Aliashkevich said that his view was supported by the medical literature, although he could not cite it at the time and no such literature was provided to the Tribunal. Ultimately Dr Aliashkevich conceded that his diagnosis was not verified. The transcript confirms the following exchange with counsel during cross-examination:[61]
So would it be fair to say that the chronic occupational over-use syndrome is a diagnosis of a complaint that hasn’t been verified by you but accepted as being possible?
Yes, correct, because as I said, it’s a little bit outside of my neurosurgical expertise. I only deal with a part of this chronic overuse syndrome which relates to the nerves but I don’t do the wrists and elbows and all the other pathology that contributes to it.
[61] Ibid at p.25.26.
Throughout his testimony Dr Aliashkevich placed emphasis on the repetitive nature of the Applicant’s work as a factor which he claimed would have caused her condition to become symptomatic.[62] The Tribunal does not accept that the evidence establishes that the Applicant’s duties can be properly described as repetitive. While it is true that some aspects of the Applicant’s duties required her to repeat some tasks, principally feeding cats and dogs, and cleaning their kennels or cages, the work as described by the Applicant and Mr Ravaneschi, involved considerable variety. The feeding and cleaning of kennels or cages involved a variety of tasks: preparing the food, transporting it to various sites within the kennel or caged areas, changing bedding, picking up faeces and cleaning. These tasks were completed by 10.30 am each day. The Applicant’s duties after this were many and varied, and included assisting the vets, washing dogs, hosing out stables, walking dogs, cleaning, restocking supplies and escorting visitors around the facility.[63] In addition the Applicant’s duties were varied regularly over her roster, and for the period from July to December 2009 she was assigned light duties in the visitor reception area. Having regard to this evidence, and noting that Dr Aliashkevich had only one consultation with the Applicant almost 10 years after she had ceased employment with AQIS, the Tribunal gives little weight to his conclusions regarding the relationship between the Applicant’s employment with AQIS and the onset of symptoms of her cervical condition.
Dr Hatherell
[62] See for example Transcript 14 May 2019 at p.47.23.
[63] See Exhibits R2 and A1.
In her report of 8 May 2019[64] Dr Hatherell stated:
Symptoms being attributed to Ms Delaney’s neck condition, including shoulder and arm pain and weakness, are not new symptoms that have only developed recently. The symptoms were initially attributed to shoulder and elbow pathologies, however clinically these symptoms are more likely to be generated by Ms Delaney’s cervical spine pathologies.
[64] Exhibit A4.
Dr Hatherell became the Applicant’s general practitioner in 2013, and saw her regularly thereafter, with appointments approximately every six to 12 weeks.[65] Her diagnosis is inconsistent with prior diagnoses by her previous general practitioners who did not identify a cervical pathology in relation to the Applicant’s arm and shoulder pain. She indicated in her oral evidence that her view that the cervical condition was work-related was based on the Applicant attributing it to heavy lifting at work.[66]
[65] Transcript 14 May 2019 at p.55.
[66] Ibid at p.64.
The Tribunal gives little weight to Dr Hatherell’s opinion regarding the part played by the Applicant’s employment in the progression of her cervical condition. She had no involvement with the Applicant until some four years after the Applicant ceased employment with AQIS. She acknowledged that it was not until 2015 that the Applicant’s moderately severe cervical spine changes were first investigated. Her view that the Applicant’s work played a part in the development of the condition appears to be entirely based on the limited information given to her by the Applicant, and the evidence does not bear out the Applicant’s claim that her work involved significant heavy lifting.
Mr Kelman
Mr Kelman, a consultant orthopaedic surgeon, assessed the Applicant on 21 March 2017 and provided a report for the Respondent on 26 April 2017,[67] and a supplementary report dated 8 March 2018.[68] Mr Kelman gave evidence to the Tribunal on 2 December 2019.
[67] Exhibit R7.
[68] Exhibit R8.
In his report of 26 April 2017, Mr Kelman opined that the Applicant’s condition of spinal stenosis with lateral stenosis of her mid cervical spine is her major pathology and is the cause of her current symptoms. He observed that the Applicant’s treating physicians at about the time of her employment with AQIS had concentrated on her shoulders and a diagnosis of adhesive capsulitis was made when there was no convincing evidence in the physician’s notes that this was the case. He stated that even in December 2009 the Applicant’s symptoms in her left elbow, shoulders, arms and hands could be related centrally to her cervical spine and not tenosynovitis, adhesive capsulitis of her left shoulder and lateral epicondylitis. He stated further that the cervical condition from which she suffered was aggravated by her employment with AQIS to a significant degree, but was not caused by her employment. However, he added that the effects of the aggravation were more likely than not to have resolved and the Applicant is now in a situation which she would have been in had such aggravation not occurred.
In his supplementary report of 8 March 2018, Mr Kelman stated that the effects of the aggravation caused by her employment which commenced in December 2008 would have lasted a period of six months, that is until June-July 2009. He went on to say that the aetiology of her persistent symptoms in her upper limbs was not related to her work duties but was related to cervical spine stenosis: [t]he musculoskeletal aggravation was resolved by mid-2009.
Mr Kelman acknowledged in his oral evidence that his opinion regarding the aggravation of the Applicant’s cervical condition was the result of the heavy lifting he had recorded in his history of the Applicant, set out in his report of 26 April 2017. Mr Kelman was asked to clarify his opinion in his oral testimony. After setting out the substance of his opinion as stated in his report of 26 April 2017, Mr Kelman was asked some questions regarding the heavy lifting. The transcript records:[69]
[69] Transcript 2 December 2019 at pp.26-27.
Now, is the heavy physical activity that you’ve identified, the activity that you described on the history provided to you on page 2 of the report, under the heading, “Injury December 2008”?
What I - the answer for that is, yes, I relied upon my opinion in 9.8(b) upon what I - on the history that I’d taken as was set out in the report on page 2.
And also, there’s an additional history after the applicant returned to her normal duties, in the second paragraph on page 3. And I assume that your answer you just gave carries as well to that history of shortages of staff, using fire hoses, cleaning stables, et cetera, et cetera? Am I right in assuming that?
Yes. You are. Yes.
And then, as consequence of that history, you expressed the opinions that I’ve taken you to earlier, consequent on the severe or significant aggravation. Is that correct?
That’s correct.
So, the way I understand the history that she gave you in terms of the strenuous work activities, she identified on page 2 staff shortages, excessive number of animals, long hours of work, work of a heavy physical nature and she added to those descriptions, when she repeated them and added to those descriptions, use of fire hoses and that’s on page 3, to clean the stables and pens which she claimed aggravated the condition in her left upper limb. Is that correct?
That’s correct.
And then, when you took the history of what she described as using fire hoses in order to clean stables and pens, what did you have in mind in terms of the fire hoses being referred to and make any comparisons you want with other fire hoses, just so the tribunal understands what she conveyed to you?
I don’t think she distinguished in the type of fire hose, but then, I imagine a fire hose, there are two type of fire hose, those that come on a reel and those that come that are canvas lined and large and heavy, which means - which fire trucks have ..
Now, if you assume and ultimate it’s a matter for the tribunal to determine, what it is that the applicant actually did in her work situation and how heavy or otherwise it was. So, I’m asking you to assume that, as opposed to, for many viewers to competing evidence of what actually happened. But if you assume that the work was more like described by Mr Ravaneschi, with no staff shortages, no excessive number of animals, no long haul hours of work, work not of a physical heavy nature, no use of the fire hoses you described, but more rather, and this is all to be assumed; that she wheeled some trays weighing maybe 12 kilograms and possibly having to lift one side of them to get them over some rough edging in the facility; bags of dog faeces, five to seven kilograms, at most; walk two dogs and only if they were owned by the same owner, that could be frisky, but there was assistance available, not always, but much of the time. Now, can you also assume, for the purpose of the history, that she commenced work in April of 2008, did light duties between August 2008 and January 2008, working mainly with cats because she had some unrelated injuries to do with her knee and her thumb. And then, between February 2009 and June 2009, she worked mainly with cats and as near as one can work out from one of the attachments you’ve been given with, assume in February seven days or thereabouts, March 22 days, April 22 days, May 23 days, June seven days. We don’t - because of some training there as well, we don’t have the July dates. But you assume that that’s the kind of work she undertook. Now, if you assume this different history of the working relationship between her and the employer, what is it, what do you say then, about the opinion that you expressed based on the heavy nature of work that I’ve taken you to and the consequential opinions expressed as to the contribution on that assumption of the work to any cervical spine condition in the period of employment?
My opinion is, noting first of all that I did not have the - any idea of her work description at the time that I assessed her and only after reading what the representative thought, his statement, while a totally different story with respect to the nature of the work that she did, into account his statements on the description of work that she was undertaking, that is work of (indistinct). It couldn’t even be called light to moderate duty in my assessment, for the weights that are carried are relatively small, 12 kilograms at best, and not any greater, I would assume that - that I would now consider that the work she was undertaking was of light physical demand and not the heavy physical demand which she described to me on the appointment when I saw her on 21 March ‘17.
So, what’s the consequence of the change, if you assume the work as I’ve detailed it to you, what’s the consequence in terms of drawing any causal relationship between the work activity and the hypothesised cervical condition as of 2008, 2009?
I would then assume, judging from what - that this was her real job and these were her accurate descriptions of what she did, that the aggravating effect of the job was minimal with respect to her elbow, shoulders, and neck.
Mr Kelman was also taken to the report of Mr Wearne, an orthopaedic surgeon, of 7 October 2009[70] and his observation:
Ms Delaney sat and stood with her head and neck in a normal posture and could manage a full and free range of neck movement without complaint.
[70] T-documents in matter 2014/4056, T5 at pp. 44-53.
Mr Kelman was asked:[71]
... assuming he undertook what normally would be undertaken by an orthopaedic surgeon for the purposes of an examination, the issue is if one looks at that result, what does it say as to whether at the time, and he saw her on 22 September 2009, whether at that stage Ms Delaney had any symptomatic neck condition?
Well, (indistinct) to talk about symptoms, but going upon the signs that Dr Wearne described, normal posture, manage a full and free range of neck movements without complaint, that would indicate that there was no symptoms in her neck at that time, and the time there was full range of movement demonstrates that there was very little pathology in her neck and she moved it without complaint.
[71] Transcript 2 December 2019 at p.28.02.
Mr Kelman was then directed to page 3 of the report and asked:
...there’s a complaint of a generalised weakness of the left arm and issues about grip and complaint of some swelling of the left forearm and then complaints of acting in both shoulders - complaints of aching in both shoulders, and some additional complaint in the last paragraph - well, in that paragraph about rolling - if she rolls on one side develops general numbness of the corresponding arm. And in the last paragraph sleep issues, difficulty dressing, left arm in a sling position, making little use of it, and the associated complaints. Now, given what Mr Wearne said as to head and neck, I mean are you able to expand or provide any opinion as to what it is that is the condition, if those complaints be accurate? That’s the ones to do with the forearm and the shoulders and such like?
Yes. The description that she gave to Dr Wearne and what - taking into - and reading what he has written are not specific, slightly vague, and do not, from what I can tell reading that, related to any specific joint of the upper limb, elbow, or shoulder, and the symptoms that she is describing are more what we call central, in other words arising from spinal cord or (indistinct) anyway. So these symptoms that she has described to Dr Wearne are more related to neck or nerve root (indistinct) or neck or nerve pathology rather than specific pathology in the upper limbs.
Well, given what Mr Wearne said about the normal posture and the full free range of neck movement without complaints, can those symptoms, under Current Status, be in any way reconciled with that examination as coming from the neck?
Very difficult to do. It doesn’t - the whole thing does not fit together, the description that he has, that he has described, is a description of central pain, but when he examined her neck and took symptoms of her neck, there was nothing (indistinct). It is likely incongruous for her to have those symptoms which appear to be coming from the neck, but she has no evidence of pathology in the neck. Therefore it is difficult to put down a diagnosis of those conditions.
Mr Kelman was also asked to comment on a report of Dr Gras[72] as follows:[73]
I’ve got a report here of Dr Grass [sic] of - which is dated 24 August 2009…is there anything in that report which would suggest that there’s any active - by that I mean symptomatic, neck-related pathology taking place?
Not when you describe no symptoms of neck stiffness or pain, therefore it is difficult to say that there is neck pathology, given no symptoms and with pain or stiffness on movement.
[72] T-documents in matter 2014/4056, T4 at pp.37-43.
[73] Transcript 2 December 2019 at p.29.03.

Mr Kelman was also asked:[74]
If it turns out that the tribunal forms the view that there are no complaints, December 2009 - 2008, rather, or before or after, within the period of employment, which relate any complaint of pain in respect of the neck, or indeed any complaint at all to any particular activity, does that make it more or less likely that this is anything that she is complaining of related to her neck?
If she is not complaining of pain, demonstrates a satisfactory range of movement of her neck, it is quite difficult to attribute what she has been describing as - in her left elbow - right elbow, right shoulder, and also of her right upper limb, to her neck. I just need to say that having also complained of symptoms in the right side, this is also a factor which makes one think that this is not limb related, but it is (indistinct) related. And I accept what you’re saying that she has range of movement and no symptoms and how does she come to have pain in her elbow and shoulder. The investigations that were undertaken of her elbow and shoulder and the diagnoses arrived at have no clinical substance to them, and that’s why the whole thing just doesn’t fit together.
[74] Ibid at p.30.22.
Mr Kelman indicated in his oral evidence that the opinion stated in his report of 26 April 2017, that the Applicant had been misdiagnosed in 2008/2009 with tenosynovitis, adhesive capsulitis of her shoulder (left) and lateral epicondylitis was based on his assessment of the Applicant’s reported symptoms at the time of his examination of her in 2017.[75]
[75] Ibid at p.32.20.
In cross-examination Mr Kelman confirmed the diagnosis he had made in his report of 26 April 2017 and accepted that the observations of Ms Eustace,[76] physiotherapist, supported his diagnosis, and the clinical noted of Associate Professor Davis[77] supported it in part.
[76] Exhibit A7 at p.89.
[77] Ibid at p.91.
Mr Kelman did, however, confirm that his opinion about the contribution of the Applicant’s employment to the aggravation of her cervical condition, was based on the Applicant’s description of the type of work she performed. The transcript records:[78]
Now, Mr Kelman, when you expressed the view that employment aggravated her condition to a significant degree, can you just say what physiologically was going on there. What was the mechanical process or disease process that was being aggravated? Are you able to just explain that?
From the type of work - what she described to me, and what I alluded to in my report, and I’ve (indistinct) her work was heavy physical work, she would have been doing repetitive work with cleaning, using hoses, lifting heavy items, managing large animals, all of which would have placed tension on her upper limbs and by extension to her neck, and therefore, all those activities - from the stories that she related to me of the work that she did I feel that those activities would have aggravated the underlying condition which I (indistinct) diagnosed.
Dr Fairbairn
[78] Transcript 2 December 2019 at p.42.20.
Dr Fairbairn, orthopaedic surgeon, examined the Applicant on 2 July 2018 and prepared a report dated 6 July 2018.[79] He gave evidence to the Tribunal on 25 November 2019.
[79] T-documents in matter 2018/4562, T21 at p.111.
In his report of 6 July 2018 Dr Fairbairn offered the following diagnosis:
Ms Delaney appears to be suffering from cervical spondylosis with non-verifiable radicular symptoms. I do not believe that she has synovitis or tendosynovitis. She no longer has adhesive capsulitis of the left shoulder. She still has some mild tenderness over the lateral epicondylar regions of both elbows.
Her diagnosis is, however, cervical spondylosis with possible nerve root irritation.
He acknowledged that initially it would have been difficult to differentiate between a neck or shoulder issue and the cervical condition as its symptoms may have been mild and intermittent but they would have become more obvious with time until the cervical spine was the predominant pathological process affecting the Applicant.
He stated directly in his report of 6 July 2018 that he believed the Applicant’s cervical spondylosis was directly related to a degenerative condition and not related to her work activities.[80] He commented on the nature of the Applicant’s work as follows:
These sort of activities which involve some lifting, some bending, some carrying, are they in any way relevant to the aggravation of the underlying structures which are involved in a cervical spondylosis?
I’m not aware of any evidence that would indicate that repetitive lifting or pushing or pulling will cause cervical spondylosis. You’re - when you’re lifting, or particularly off the ground, it is mainly your lumbar spine that is being affected. While any activity may wear symptoms of these degenerative joints, I do not believe that that level of activity would cause or permanently aggravate the cervical - underlying cervical spondylosis.[81]
[80] Ibid at p.117.
[81] Transcript 25 November 2019 at p.216.17.
He opined that a person can get a flare up of the symptoms of a degenerative condition either at work, at home, doing various activities but that doesn’t necessarily indicate that the particular activity had aggravated or changed the underlying pathological process. He was asked directly:
...do you agree with Mr Kelman’s opinion that employment contributed to a significant degree to an aggravation of Ms Delaney’s cervical spondylosis?
No? I don’t believe it caused an aggravation of the cervical spondylosis. It may cause a temporary aggravation of the symptoms from the cervical spondylosis but does not cause the underlying pathological process[82].
Dr Kostos
[82] Ibid at p,223: note the written transcript incorrectly attributes the response to Mr Lenczner of counsel.
Dr Kostos, consultant rheumatologist, examined the Applicant on 23 October 2018 and provided a report dated 30 October 2018.[83] He gave evidence to the Tribunal on 2 December 2019.
[83] Exhibit R6.
In his report of 30 October 2018, Dr Kostos disputed the earlier diagnoses of synovitis tenosynovitis, left shoulder adhesive capsulitis of shoulder (left) lateral epicondylitis and stated that they were obviously wrong at the time. He also stated that the Applicant:
… does not suffer from a neck injury or bilateral C6 and C7 radiculopathy as she has no symptoms of radiculopathy. While she may have neck degeneration and osteoarthritis this is a constitutional condition and does not represent damage.
He diagnosed the Applicant as suffering from a chronic pain syndrome related to psychological and social factors and agreed with Dr Aliashkevich’s similar diagnosis, but rejected Dr Aliashkevich’s further diagnosis of chronic occupational overuse syndrome. He stated bluntly that the Applicant does not have a permanent work-related impairment.
Assessment
This is not a case where there are two distinct medical opinions at odds with each other which might require the Tribunal to prefer one opinion over another. Rather, the medical evidence reflects a diversity of opinion as to the nature and cause of the Applicant’s condition.
Early diagnoses identified a shoulder, arm and elbow pathology. These diagnoses were accepted by the Respondent and provided the basis for treatment of the Applicant from 2009 to 2017. The presence of a degenerative cervical condition was not identified until 2015. Mr Etherington attributed the Applicant’s symptoms in 2018 to this degenerative cervical condition, although he acknowledged in 2016 that the Applicant had some bilateral shoulder pathology and it is difficult to say how much of each is contributing to her ongoing symptoms. Mr Kelman and Dr Fairbairn gave similar diagnoses in 2017 and 2018 respectively, although Mr Kelman opined that the aggravation of symptoms was only temporary. Dr Aliashkevich, said the Applicant had developed a central sensitisation and diffuse chronic fibromyalgia-type pain condition affecting her neck and chronic occupational overuse syndrome. Mr Wearne had earlier diagnosed that the Applicant had suffered an overuse syndrome of her left upper limb resulting in a frozen shoulder syndrome. Dr Kostos rejected all of the other diagnoses and instead insisted that the Applicant suffered from a chronic pain syndrome related to psychological and social factors.
Not only was the medical evidence varied as to the nature of the Applicant’s condition, it was also inconsistent as to how the Applicant’s symptomatology related to her employment with AQIS.
Mr Etherington expressed a tentative view in his reports in 2018 and 2019 as to the link between the Applicant’s symptoms and her employment with AQIS. In his oral testimony he opined that the Applicant’s work caused her degenerative condition to become symptomatic, but he did not identify any specific mechanism for the cause and attributed it to the general nature of her duties. He based this opinion on his understanding that her duties involved physically demanding work. The Tribunal is satisfied that this understanding was not correct. Mr Etherington clearly relied on the Applicant’s assertion that her symptoms were due to her work. He acknowledged this in cross-examination. The Tribunal is satisfied that the Applicant overstated the physical nature of her work and that she did not experience symptoms of her cervical condition during her employment with AQIS.
Dr Aliashkevich opined that the Applicant’s work was a materially contributing factor to significant aggravation of her cervical condition, although his assessment was based on an inaccurate understanding of the Applicant’s duties, particularly its repetitive nature.
Mr Kelman stated that the aggravation of symptoms of the Applicant’s cervical condition was contributed to, to a significant degree, by her employment but in cross-examination it was clear that he had accepted that the Applicant’s work was much heavier than it was and that his opinion did not sit well with the observations of Mr Wearne’s regarding her posture on examination. Mr Kelman appeared confused by the conflicting symptomatology stating several times in his evidence that the whole thing just doesn’t fit together. Dr Fairbairn’s opinion was that the Applicant’s cervical condition was a degenerative condition and not work-related. Dr Kostos was strident in his view that the Applicant’s condition was not work-related.
In these circumstances the best that the Tribunal can do is to consider all of the evidence as it bears on the essential question before it. In this case, the question is whether the Applicant’s employment with AQIS contributed, to a significant degree, to her degenerative cervical condition becoming symptomatic.
Aside from Dr Kostos, there is general agreement that the Applicant had a degenerative cervical condition prior to commencing employment with AQIS which had become symptomatic at the latest by the time she was examined by Mr Etherington and the other experts in 2017 and 2018. The medical evidence does not identify any particular earlier period or time when the condition first became symptomatic. The Applicant was unable to do so. For the reasons set out earlier, the Tribunal is satisfied that the Applicant’s degenerative cervical condition did not become symptomatic during the period of her employment with AQIS in 2008 and 2009. The question is therefore whether the Applicant’s employment contributed to a significant degree to the onset of symptoms of the degenerative cervical condition at some point after 2009.
In making this assessment the Tribunal gives considerable weight to the medical opinion at or about the time of the Applicant’s employment with AQIS. The Applicant’s complaint of pain in her left shoulder and arm was investigated by various doctors in 2009 and 2010. This included her general practitioner, an occupational physician, an orthopaedic surgeon, a consultant in rehabilitation and pain management and a rheumatologist. They all identified a shoulder, arm and elbow pathology and a diagnosis of bilateral shoulder tenosynovitis and adhesive capsulitis, bilateral was accepted by the Respondent as a compensable injury. The Tribunal notes the opinion of Mr Etherington, Dr Kostos and others that this was a misdiagnosis, but these views were formed on the basis of examinations of the Applicant many years after the event when her underlying degenerative cervical condition had likely progressed and reliance was placed on the Applicant’s inaccurate description of the nature of her duties. The Tribunal prefers the earlier diagnoses as evidence of the nature of the Applicant’s condition at the time she ceased employment, namely that she suffered from bilateral shoulder tenosynovitis and adhesive capsulitis, bilateral.
The Tribunal also gives considerable weight to its finding that the Applicant did not exhibit symptoms of a degenerative cervical condition, nor did she complain to her doctors of pain in her neck, during the period of her employment with AQIS. While it is possible that the Applicant’s employment contributed to the onset of symptoms of the condition at a later time this is unlikely. The medical evidence did not establish that this was the case.
The Tribunal also considers it significant that neither the Applicant nor any of the medical witnesses could identify any specific causal mechanism for the Applicant’s degenerative cervical condition becoming symptomatic. Medical opinion was based on the vague notion that the general nature of the Applicant’s duties rendered the condition symptomatic. In the absence of a specific causal mechanism it is difficult for the Tribunal to be satisfied that the onset of symptomatology was due to activity at work and not to the natural progression of the condition and/or activities outside the workplace. This is particularly so when the medical opinion was largely based on the Applicant’s inaccurate description of the nature and extent of her work.
Taking these matters into account the Tribunal is satisfied that the Applicant had an asymptomatic degenerative cervical condition prior to commencing employment with AQIS which became symptomatic at some time after she ceased employment. During the employment, the Applicant sustained an injury to her left shoulder and arm which was diagnosed as bilateral shoulder tenosynovitis and adhesive capsulitis, bilateral and was the cause of the pain she suffered at the time and for a subsequent period.The Tribunal is reasonably satisfied that the progression of the Applicant’s degenerative cervical condition had, by at least 2016, when she was referred to Mr Etherington, become symptomatic and contributed to her painful condition. The Tribunal is not satisfied that the Applicant’s employment with AQIS caused the degenerative cervical condition or that it contributed to a significant degree to the condition becoming symptomatic.
Accordingly, the Tribunal finds that the Applicant did not suffer an injury within the meaning of s.5A of the Act as claimed in matter 2018/4562 and the decision under review in that matter is affirmed.
Having reached this conclusion, the Tribunal is not required to consider the further questions posed above, nor the Respondent’s alternative submission.
APPLICATION 2016/5808
The Applicant contends that the nerve root blocks at the C6 level were undertaken in relation to the work-related aggravation of a degenerative cervical spine condition which had been accepted by the Respondent as a compensable injury, and that the blocks were treatment that was reasonable for the Applicant to obtain in the circumstances as required by s.16(1) of the Act.
On 4 April 2016, Mr Etherington wrote to the Respondent requesting approval to conduct a left C6 nerve root block which he stated was warranted for further aid to comprehensive diagnosis and evaluation of the patient’s condition and for correct treatment recommendations.[84]
[84] T-documents in matter 2016/5808, T63, at p.286.
At the time Mr Etherington wrote to the Respondent and requested approval to conduct the procedure, the only relevant compensable injuries accepted by the Respondent for the purpose of s.16 of the Act were:
a.synovitis and tenosynovitis (left), adhesive capsulitis of shoulder (left) and lateral epicondylitis (left),[85] accepted under s.14 on 14 October 2009, for which the Applicant received compensation for time off work and medical expenses; and
b.a secondary condition of unspecified injury to shoulder upper arm accepted under s.14 on 1 July 2011.
[85] T-documents in matter 2014/4056, T6.
The Applicant made a claim for neck injury, bilateral C6+7 radiculopathy on 29 May 2018[86] in matter 2018/4562. That claim was rejected and the decision to reject the claim is affirmed in these proceedings.
[86] T-documents in matter 2018/4562, T16.
In his letter to the Applicant’s treating doctor Mr Moaveni of 13 April 2016,[87] Mr Etherington explained the purpose of the left C6 nerve root block procedure:
Ongoing through her symptoms and the imaging today, it would seem that her problems are predominantly an aggravation of degenerative disease. She also has some bilateral shoulder pathology and it is difficult to say how much of each is contributing to her ongoing symptoms.
For the moment, I have suggested bilateral C6 nerve root injections to see if we can at least get some of her arm pain under control. I have told her however that she will likely need some further injections as we try and sort out where the pain is coming from.
[87] T-documents in matter 2016/5808, T64.
Mr Etherington addressed the purpose of the nerve root block procedure in his oral evidence as follows:[88]
What I wanted to ask you about your letter …were you expressing a view about the aetiology of her cervical spine problems, or was it something else in that letter?
I was just trying to find out where the pain was coming from, and I wasn’t convinced that all of her problems were coming from either the neck - just either the neck or the shoulder, or shoulders. And I thought that it might be a combination of both rather than one or the other. Certainly on the basis of her MRI, CT, X-ray, there is nothing in those pictures that you can say, yes, there is an old fracture or a dislocation or anything like that. As you said, there was no one event. Looking at the pictures from 2015 and ‘16, all I could say was that yes, there are degenerative changes, mainly at C5-6 and C6-7, and in the cervical spine they are the most common levels just to wear out, just with time. Statistically they are the most common levels. So it is - usually the issue is trying to figure out are those degenerative changes causing the symptoms that the person has come in with, or are they just, you know, a bit of rust which I can ignore? Given that Dr Moaveni and his shoulder colleagues were not convinced that all of her pain was coming from her shoulder, then they are certainly suspicious of a cervical spine - given the findings - with her neck I’d say yes, that would also be consistent with her arm symptoms as well. In 2015 and ‘16 I was certainly very suspicious that her neck was a significant contributor to her arm symptoms, which is why I wanted to organise the injections, to try and either support that or say no, that is not - and those injections are very specific into the number 6 nerve, if it is not the number 6 nerve that is causing the problems then I would look harder with the number 7 nerve.
…
Just in terms of these nerve root blocks, are they a diagnostic measure or a therapeutic measure, or how does that work?
It can be both. They certainly help with diagnosis, definitely. In her case she seemed to have a definite improvement after the right C6 nerve root injection, which helped for somewhere between two and three weeks before the pain came back. On the left side, that injection was done on 30/08, so I had only seen - I saw her a few months afterwards. But that injection lasted for four weeks or thereabouts and then the pain came back. Certainly from a diagnosis point of view that is very supportive that the C6 nerve on both sides is a significant player in where her pain is coming from. Frequently, just to sort of make sure on - you know, because the next step is if pain comes back, and I think know where it is coming from, the next step is an operation. So I often do two identical injections to try and reproduce the result because that just gives me and the patient a bit more confidence that that is where the problem is, we know where the problem is, all we have got to do is sort out what to do about it. That is why I suggested repeating the injections on both sides. Then I think she was seeing - by looking at the notes, she was seeing Dr Moaveni again in early 2017 as well. Again, just to see - just to make sure that he didn’t want to do anything before I did more to her neck. I’m just trying to think if that actually happened.
[88] Transcript 15 May 2019 at pp.117-118.

Apart from Dr Kostos, who was unreasonably dismissive, it was not disputed that the C6 nerve root block procedure was a reasonable treatment for the purpose of diagnosis. However, it is clearly a procedure directed at the cervical spine and to the extent that it has a therapeutic effect it is to relieve the pain emanating from the cervical spine. Its potential relevance to the two accepted compensable injuries of synovitis and tenosynovitis (left), adhesive capsulitis of shoulder (left) and lateral epicondylitis (left) and unspecified injury to shoulder upper arm is incidental. It might, for example, eliminate those conditions as the source of pain where the source is identified as a specific part of the cervical spine.
Sub-section 16(1) of the Act provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The question here is whether the C6 nerve root block procedure is in relation to the compensable injuries of synovitis and tenosynovitis (left), adhesive capsulitis of shoulder (left) and lateral epicondylitis (left) and unspecified injury to shoulder upper arm.
In Pratt and Comcare [2004] AATA 1281 (Pratt) the Tribunal considered a number of decisions in which the High Court and the Federal Court had dealt with the meaning of the phrase in relation to. The relevant principles which emerge from these decisions are:
a.the words are wide in their meaning and by themselves simply signify that there be some connection between two matters;
b.the connection which the phrase imports is a matter of degree;
c.the connection required is determined by having regard to the context of the phrase and the scope of the Act; and
d.must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.[89]
[89] PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.
In Pratt at [25], the Tribunal concluded in relation to s.16(1) of the Act that:
The phrase "in relation to" in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation. In accordance with the decisions referred to above we should interpret the phrase widely unless the context requires it to be read down.
At [24]-[25] the Tribunal rejected the argument raised by Comcare that the medical treatment for which compensation is payable should be restricted to treatment of the injury and said that it could apply to the underlying condition.
In this case the Applicant has experienced pain associated with conditions affecting her shoulders, arm and neck. The Respondent has accepted liability in relation to the shoulder and arm conditions which manifested in 2008 or 2009. However, recent medical assessments state that the Applicant’s principal source of pain is now her degenerative cervical spondylosis, the condition having become symptomatic at some time since 2009. The Applicant’s employment did not contribute to a significant degree to her degenerative cervical spondylosis becoming symptomatic. While the Applicant’s shoulder and arm pathology, and her degenerative cervical condition, each are associated with similar pain symptoms and there is overlap in the symptomatology, they are distinct conditions with unrelated causation. In that sense they do not reflect a common underlying condition. They are, at least partially, coincident but otherwise unrelated conditions. Thus a treatment directed at one condition, such as C6 nerve root blocks, does not constitute treatment of the other condition even though it may alleviate symptoms which had been attributed to that other condition. In that sense it is not treatment in relation to the other condition.
This distinction is consistent with the objects and purpose of the Act which is to provide compensation only for work-related injuries and diseases, and not for degenerative conditions.
The Tribunal therefore concludes that the C6 nerve root block procedure for which Mr Etherington sought approval on 4 April 2016 was not medical treatment in relation to an injury within the meaning of s.5A of the Act and the Respondent is not liable to pay for the cost of the treatment.
DECISIONS
The decisions under review in matters 2016/5808 and 2018/4562 are affirmed.

I certify that the preceding one-hudred and twenty-nine (129) paragraphs are a true copy of the reasons for the decision herein of Member R West.

…[sgd]……………………………………………………………
Associate
Dated: 15 June 2020

Dates of hearing: 13-15 May, 25 November, and 2-3 December 2019

Counsel for the Applicant: Mr R Ternes

Solicitor for the Applicant Mr D Arvia, Arvia Lawyers

Counsel for the Respondent: Mr J Lenczner

Solicitor for the Respondent Ms P Heffernan, Australian Government Solicitor
ANNEXURE A – LIST OF EXHIBITS
A1       Statement of the Applicant dated 15 March 2019 with amendments
A2       Bridge Rehabilitation report dated 24 July 2009
A3       Report of Dr Ales Aliashkevich dated 9 March 2018
A4       Report of Dr Hatherell dated 8 May 2019
A5       Report of Mr Greg Etherington dated 26 April 2018
A6       Two reports of Mr Greg Etherington dated 16 November 2016
A7Applicant's Tribunal book other than the SFICs and documents otherwise made an exhibit

A8       Report of Mr Etherington dated 14 February 2017
A9       Report of Mr Etherington dated 18 May 2017
A10     Report of Mr Etherington dated 17 June 2019 along with letter of instruction
A11     Minutes of Spotswood Staff Meeting dated 20 May 2009
R1      Progress notes as at 5 May 2010
R2      Statement of Mr Angelo Ravaneschi dated 1 April 2019
R3      Two pages of clinical notes dated November to December 2015
R4      Map of the Spotswood AQIS compound marked up including photographs
R5      Curriculum Vitae of Dr Scott Fairbairn
R6      Report of Dr Kostos dated 30 October 2018 with covering letter of instruction
R7      Report of Mr Kelman dated 26 April 2017 with covering letter of instruction
R8      Report of Mr Kelman dated 8 March 2018 with covering letter of instruction

Dates of hearing:	13-15 May, 25 November, and 2-3 December 2019
Counsel for the Applicant:	Mr R Ternes
Solicitor for the Applicant	Mr D Arvia, Arvia Lawyers
Counsel for the Respondent:	Mr J Lenczner
Solicitor for the Respondent	Ms P Heffernan, Australian Government Solicitor