Dogan and Military Rehabilitation and Compensation Commission

[2008] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL        )

) No  V 200601013

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		ELIF DOGAN

Applicant

And MILITARY REHABILITATION
AND COMPENSATION
COMMISSION

Respondent

DIRECTION [2008] AATA 348

TRIBUNAL:             Mr John Handley, Senior Member

DATE:                      7 May 2008

PLACE:                   Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by including the following paragraph.

The respondent shall pay the applicant's legal costs and disbursements in these proceedings.

.  
  (Sgd)  John Handley
  Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V 200601013

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		ELIF DOGAN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date1 May 2008

PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED the liability of the respondent following injury suffered in December 1997 is extended to include neck injury.

(Sgd)  John Handley
Senior Member

  

WORKERS' COMPENSATION – applicant suffered traumatic shoulder injury in 1997 and subsequently required surgery – respondent accepted liability – later complaints of neck pain and an MRI finding of cervical disc bulge at two levels – liability denied for neck injury – finding that cervical injury arose out of trauma in 1997 (when applicant then 29 years) – decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24

REASONS FOR DECISION

1 May 2008   Mr John Handley, Senior Member

1. On 7 December 1997 the applicant was a member of the Army Reserve. Whilst running to her barracks at the Singleton Base she slipped on wet grass and fell heavily onto her left shoulder. She suffered a grade 3 dislocation of the acromioclavicular joint (the AC joint) which required surgical reconstruction on 9 December 1997. Liability was accepted for that injury. A lump sum award of compensation has been accepted by the applicant pursuant to a permanent impairment assessed under s 24 of the Safety, Rehabilitation and Compensation Act 1988.  The applicant has also accepted a lump sum payment in redemption of future entitlements to weekly compensation.  The respondent’s liability for medical and like expenses continues.

2.      In 2005 the applicant applied to extend liability for a neck injury that she alleged was suffered when she fell dislocating her shoulder.  That request was denied and affirmed on reconsideration on 30 November 2005.  The applicant applies by this application to review that decision.

3.      Prior to the incident in December 1997, when the applicant was then 29 years of age, she had been physically active.  She attended a gymnasium between four and seven days per week which involved some weight lifting.  She also exercised by walking, jogging and participating in taekwondo.  Motor cycle riding was also undertaken.  The applicant said that she did not ever suffer any shoulder or neck injuries prior to the fall in December 1997.

4.      After discharge from Singleton hospital the applicant returned to Melbourne where she has remained under the care of her general practitioner, Dr Ridgway.  She has also been treated by Mr Coglan a physiotherapist and has been under the care of Mr Peter Hannon an orthopaedic surgeon who performed further surgery to her left shoulder in February 1999.  The applicant has also been referred to other doctors of differing speciality for treatment and opinion.

5.      The applicant said that she continues to suffer from shoulder and neck pain.  She said there has been some reduction in pain in her left shoulder following the second operation but she has always had pain in the left side and the back of her neck.  Whilst acknowledging that she did not initially claim for neck injury, she said the effect of the shoulder dislocation was to cause pain and discomfort across her left shoulder into the left side of her neck and down into her left arm.  She said she did not distinguish the pain in her shoulder and in her neck but rather described pain and discomfort in an area encompassing the left side of her neck, her shoulder and her upper arm.  When describing her symptoms to her doctors the applicant said that she would demonstrate those areas by pointing to or running her hand across the top of her shoulder and up the left side of her neck.

6.      In cross‑examination the applicant agreed that in her incident claim form she did not refer to neck injury.  She also agreed that she did not describe a neck injury when discharged from the Army Reserve in her claim for compensation or in her claim for permanent impairment in 2000.  She agreed that the first record in notes, made by her, of an association between the fall in 1997 and the neck injury was on 17 December 2004.  She agreed that Dr Ridgway did have a reference to neck pain at a consultation on 13 November 1999 (which was described as associated with swimming) and on 2 February 2000 (which was associated with holding a telephone receiver between her shoulder and the side of her head when working at a computer).

7.      The applicant said that she had complained to Dr Ridgway of pain in the area comprising her shoulder and her neck without specific reference to pain in either location.  She denied that she was swimming in November 1999 as described by Dr Ridgway but rather said the reference to breaststroke was a reference to breaststroke type aerobic exercise undertaken by her at the suggestion of her physiotherapist Mr Coglan.

8.      The applicant said she consulted Mr Hannon in June 2000 and complained of severe pain in her neck over the previous three months.  She also acknowledged that attendance occurred about three or four months after she consulted Dr Ridgway complaining of neck pain where a history was recorded of holding the telephone at her workplace with her neck in a bent position.  The applicant agreed that Mr Hannon did not have a history recorded in his notes of neck pain before a consultation in June 2000 because she thought the pain on the left side of her neck was associated with her shoulder injury.  The applicant also said that she thought that she would have given a history to Mr Hannon of neck pain becoming worse over the three months preceding the consultation in June 2000.  That is to say, neck pain had pre‑existed that three month period.

9.      The applicant said that she had always suffered neck and shoulder pain since the fall in December 1997.  She agreed that there had been some improvement in the function of her left shoulder (and a reduction in pain) since the second operation but her neck pain had progressively become worse.  She could not recall giving a history to Dr Mutton or Mr Shannon of becoming aware of neck pain 6 or 12 months after the fall (that is in 1998) but said that she may have told those doctors that the neck pain was then becoming worse.  She said that she had been having massage of her neck and shoulders with Mr Coglan the physiotherapist in 1999 and in 2000.

10.     The applicant was then examined concerning the activity that she performed when she attended a gymnasium prior to the fall in December 1997.  She agreed that she did attend between four and seven occasions per week under the supervision of a personal trainer where the emphasis was on strengthening of her arms and legs.  She agreed that she did perform some weight training including a 60kg snatch and a 50kg bench press.  Initially the applicant said that she lifted weights on two or three occasions only but later said that weights were lifted on one attendance at the gymnasium per week and when pressed she said that weights were lifted at a frequency less than once per week.  She said Dr Ridgway would have known of her gymnasium activity including the lifting of weights, but said that she had probably not notified Mr Hannon.  The applicant said that she could not recall whether she had ever notified Mr Coglan or Doctors Lewis and Laidlaw or Professor Goodchild or Mr Shannon that she had lifted weights.

11.     The applicant was then asked to comment on a report completed by Dr Baker who examined at the request of the respondent in 2004.  It was his opinion that sitting in a forward position using a computer in the workplace was likely to aggravate the applicant’s neck and back.  She agreed that prolonged periods of sitting in that position did precipitate increased pain.  She said that she had worked as a full time employee of Pioneer Electronics since 1999 principally at a desk which had been ergonomically assessed.

kevin king

12.     Mr King who was previously the Director of Orthopaedics at Royal Melbourne Hospital continues to practice as an orthopaedic surgeon in Melbourne.  He examined the applicant at the request of her solicitors.

13.     On examination he obtained a history of left shoulder injury and subsequent surgery following a fall in December 1997 with a complaint later of neck pain.  Mr King observed the reports of radiologists following an X-ray of June 2000 and an MRI scan of July 2000 which recorded a central disc bulge at C6 / 7 and a smaller disc bulge at C5 / 6.  It was his opinion that the report of the radiologist disclosed abnormality in the cervical discs and in supporting ligament structures at two levels, consistent with a level of degeneration that would be expected in a person at the age of 60.  He said that having regard to the applicant's age of 31 years (in 2000) it was an abnormality that he would not expect.

14.     Mr King was aware that there was a dispute concerning the occurrence of the neck pain.  He was satisfied that an association did exist between it and the previous shoulder injury.  He said the applicant suffered from a double pathology which he described as multiple injuries arising from a traumatic episode where there is an overlap or a masking of symptoms of one injury by the other.  He acknowledged that there was difficulty differentiating between both injuries because the injury producing the greater pain overwhelmed the injury causing lesser pain.  In his experience shoulder girdle pain and neck pain do overlap because the pain radiates to the side of the neck and over the shoulder girdle.  He acknowledged that the applicant had a mild residual chronic problem with her neck with mild limitation of movement.  He had no doubt that that occurred at the time of the fall.  Unless there was an alternative explanation he reaffirmed that the disjunctive changes in the applicant's neck are not usually found in a person aged 31 because the changes observed are consistent with older persons.

15.     In cross‑examination Mr King reaffirmed his opinion that the trauma which gave rise to the shoulder injury was responsible also for the radiological appearances in the applicant's neck.  He was satisfied her complaints of neck pain were organic in origin.  He was satisfied that the neck pain was overwhelmed by the shoulder pain but subsequently became obvious as the shoulder pain subsided.  On examination of the applicant's neck he was of the opinion that the symptoms produced were not feigned and the radiological appearances were consistent with injury of traumatic origin (having regard to the applicant's age) as opposed to those changes while normally observed in a person of older years.

16.     Mr King dismissed a suggestion that the applicant's complaint of neck pain following breast stroke and supporting a telephone head set between her head and shoulder were responsible for neck pain.  It was his opinion that neck pain following breast stroking in a fit young adult would be indicative of an underlying abnormality in the neck.  Additionally, pain associated with supporting a telephone head set would be consistent with abnormal stress which would not be expected in a person without an underlying cervical abnormality.  Mr King also dismissed the possibility of the applicant suffering cervical degeneration by weight lifting in which she had been engaged for some years previously.  He thought the proposition was theoretically possible, but thought it more likely that any degeneration, by weight lifting, would affect the applicant's lumbar spine.

17.     Whilst acknowledging the applicant may have had an underlying asymptomatic degenerative condition affecting her cervical spine manifesting in pain after breast stroking, holding a telephone and by weight lifting Mr King said:

If you are standing up to your waist in a swamp surrounded by alligators you don't worry about the mosquitoes.  If you fall heavily onto the point of your shoulder running full tilt as a fit young adult that represents being surrounded by alligators to me.  Lifting a . . . represents being eaten by a mosquito.  Either can cause you trouble but the overwhelming probability is that the fall did it.  (Trans. pp67‑68)

robyn ridgway

18.     Dr Ridgway is a doctor in general practice who has treated the applicant since May 1997.  The first consultations occurred before enlistment of the applicant in the Army Reserve.  Dr Ridgway said that she then had no recollection nor did she have any note of the applicant having complained of neck or shoulder pain.

19.     Dr Ridgway said that she consulted with the applicant after she returned to Melbourne from Singleton.  She recalled the applicant had her arm in a sling and there was complaint of upper chest and shoulder pain.  She eventually referred the applicant to Mr Hannon an orthopaedic surgeon because of the applicant's continuing complaint of pain and a second operation was performed.

20.     In about 1999 the applicant first complained to Dr Ridgway of neck pain.  The history then given was the onset of low neck pain after swimming breast stroke and on another occasion a complaint of neck soreness after she was holding a telephone receiver between her neck and shoulder.

21.     Dr Ridgway was satisfied that the applicant did suffer a neck injury in the fall at Singleton.  In a report of 13 April 2005 (T87, p182) Dr Ridgway recorded there was no other noted cause for her neck injury other than it arising out of the fall in 1997.  In evidence, Dr Ridgway said that she was surprised that the applicant suffered neck pain after swimming breast stroke and thought that any pain then following that activity would have been the result of aggravation of the neck injury caused by the fall in the Army Reserve.

22.     In cross‑examination Dr Ridgway agreed that the first entry in her notes of a complaint of neck pain was on 13 November 1999.  She also agreed that before that date there was no record of any complaint of neck pain.  She also agreed that the next entry of a complaint of neck pain was in February 2000 where again there was no reference to any long standing or pre‑existing neck symptoms.  The complaints in November 1999 and February 2000 followed episodes of swimming and working at a computer respectively.

23.     Dr Ridgway referred the applicant to a number of other doctors for assessment having regard to her continuing complaints of pain subsequent to the second operation with Mr Hannon.  One of those doctors, Mr Laidlaw, a neuro surgeon, diagnosed muscular ligamentous strain as the cause of neck pain.  Whilst Dr Ridgway agreed that it was possible that that diagnosis would explain the applicant's complaints of pain after swimming and after sitting at her computer, she remained firm in the opinion expressed previously that the consistency of complaints of neck pain since 1999 were more likely to indicate neck injury in the fall in 1997.  Dr Ridgway said that in her opinion there was no cause for the degenerative changes evident from the MRI other than the fall.

peter Hannon

24.     Mr Hannon is an orthopaedic surgeon to whom the applicant was referred by Dr Ridgway in January 1998.  Mr Hannon saw the applicant shortly after she had undertaken surgery on her shoulder at Singleton.

25.     Mr Hannon initially managed the applicant by observing whether there was progress by physiotherapy, however by early February 1999, he was satisfied the applicant was not progressing and he made a recommendation to her – which she accepted – that she undertake further surgery.  In October 1999 the applicant continued to complain of pain and she was referred by Mr Hannon to Professor Goodchild who held an expertise in pain management.  In June 2000 the applicant complained to Mr Hannon of neck pain.  In July 2000 an MRI displayed the presence of a disc bulge at C6 / C7.

26.     Mr Hannon described a disc bulge as a weakness which would not necessarily produce pain at its onset.  He said that a person with a disc bulge could be asymptomatic and experience pain later as the disc degenerates and as the person becomes older.  He initially treated the applicant for her complaints of shoulder pain.  In the absence of any evidence other than the fall whilst in the Army Reserve, it was the opinion of Mr Hannon that the neck injury – having regard to the applicant being 29 years of age at the time of the fall and 31 years at the time of the MRI ‑ was more likely to be traumatic in origin and arose out of the fall in 1997.

27.     In cross‑examination, Mr Hannon agreed that he performed surgery to the outer end (refer report 23 May 2007) or the tip of her shoulder being the site of a degenerate AC joint.  He said that he did not have a record in his notes of the applicant complaining of pain in her shoulder girdle region because it is not an expression that he uses, it being a description of the area around the shoulder joint (the scapula).  He agreed that the pain being experienced by the applicant as reported to him was typical of the pain experienced by persons who have a dislocation of the AC joint.

28.     Mr Hannon said that an MRI of 5 July 2000 revealed the presence of a disc bulge at C6 / C7.  A further MRI of November 2004 also showed the presence of a disc bulge at C5 / C6.  He was unable to explain why a second bulge would occur in the interim between both MRI assessments.  He said he could not state with any certainty that the radiological features arose out of the fall in the Army Reserve but said it would be unusual at her age for the changes to appear just out of the blue.  He reaffirmed the opinion expressed in evidence in chief that the neck pain suffered by the applicant arose out of disc bulge which was traumatic in origin, that opinion being reinforced by her age.  He said if the applicant was over the age of 50 it would be more likely – in the absence of trauma – for a person to suffer disc pathology by the ageing process. 

29.     Mr Hannon disagreed with opinions expressed by Mr Shannon who examined at the request of the respondent and who reported that disc bulging was not particularly uncommon for an active woman in her 30s.  It was his opinion that the applicant initially suffered a dislocation of her AC joint which he described as an extremely painful injury and where the focus subsequently was on treatment of her shoulder injury including surgery.  He said that even if the applicant had mentioned to him that she had neck pain – and he acknowledged that he had no record of such a comment – he would have continued to concentrate on the shoulder injury which he regarded as being the major injury.  He agreed that if there had not been a dislocation of the applicant's AC joint, it would be likely that there would be symptoms of neck pain shortly after the injury but said if you've dislocated your AC joint and its required surgery that would take your mind off your neck a fair bit.

michael shannon

30.     Mr Shannon is an orthopaedic surgeon who assessed the applicant at the request of the respondent in February 2007.  He provided two reports of 28 February 2007 and a second report in August 2007 where he made comment upon the opinions expressed by Mr Hannon and Mr King in their reports.

31.     Mr Shannon held the opinion that degenerative change commences in late teenage years and the rate of progress is unpredictable.  He said that wide spread degenerative change in the early 30s is unusual but by no means unheard of.  He noted that X-ray and MRI investigations revealed degenerative changes at C4 /C5 and disc bulging at C5 / C6 and C6 / C7.  He said those findings were indicative of early degenerative change at three levels in the applicant's cervical spine.

32.     Mr Shannon was not prepared to connect the applicant's neck injury with the fall in 1997 because of the absence of complaint and delay in notifying of symptoms of neck pain for some years.  He acknowledged that an AC dislocation is painful and could have masked symptoms of neck pain but he would have expected a complaint of symptoms from the neck within two or three months of the trauma.

33.     In cross‑examination Mr Shannon said that the applicant may have had pre‑existing degenerative changes in her neck which were aggravated by the fall.  He was also of the opinion that the force of the fall which obviously caused an AC dislocation could have caused a jarring of the applicant's neck with resultant injury.  However he remained rigid in his opinion that the absence of complaint within two or three months suggested that the neck injury was not connected to the fall.  He regarded Mr Hannon as a competent orthopaedic surgeon who would have thoroughly assessed and examined the applicant and would have investigated whether continuing pain had its origin elsewhere than the event which caused the shoulder injury.  He said the absence of any reporting to or finding by Mr Hannon (as evident by his notes) of neck pain until June 2000 reinforced his opinion that the neck injury was not related to the fall.

34.     When a chronology of events was brought to the attention of Mr Shannon and it was learnt that a treating physiotherapist had a record of a complaint of neck pain in March 1999 – being one month after the surgery performed by Mr Hannon and being 16 months after the fall at Singleton, Mr Shannon reaffirmed that he would have expected complaints at an earlier date.  He reaffirmed that the shoulder pain could have masked neck pain.  He acknowledged that the applicant's treating doctors could have been concentrating on relieving shoulder symptoms but thought such a scenario was unlikely.  He said that it was difficult to accept that Mr Hannon would have missed her neck condition that was causing significant symptoms and thought it was unlikely that he was diverting his attention to the applicant's shoulder.

conclusion and reasons for decision

35.     There is no dispute that the applicant suffered a very severe injury to her left shoulder in December 1997 when she was a member of the Army Reserve.  The treating surgeon diagnosed a grade 3 dislocation of the AC joint which required surgery two days after the fall.  Further surgery was performed by Mr Hannon in February 1999.  The issue which has given rise to the decision under review is whether a neck injury evident by MRI is related to the trauma of December 1997.  For reasons which follow I am satisfied on the balance of probabilities that such a connection exists.

36.     I am satisfied that the applicant is a witness of truth and who did make a complaint of neck pain shortly after she returned to Melbourne from Singleton.  It would appear from her evidence and from letters that she wrote on 23 March 2005 to both Dr Ridgway and Mr Hannon that she had pain radiating up my neck.  It would appear – and I am satisfied and find as a fact – that the doctors treating the applicant – including Mr Hannon – were concentrating on treatment of the shoulder injury, it being severe in nature as evident by requiring surgery on two occasions.  The doctors' notes point to treatment of the shoulder injury but the absence of specific reference to a complaint of neck pain until sometime after the second operation does not amount to a permissible finding that no such pain existed.  Mr Shannon said in evidence that he thought it unlikely that the applicant's treating doctors would have concentrated on the shoulder injury to the exclusion of the neck symptoms.  That is precisely the evidence given by Mr Hannon, namely, he did concentrate on the shoulder symptoms and did not make a note of any complaint of neck pain.

37.     The nature of the relationship between patient and doctor and the manner in which medical records are completed featured prominently during the evidence.  Mr King a senior experienced orthopaedic surgeon (Trans p63) discussed the nature of medical records.  It was his opinion that the records made by a treating physician are shorter and they're quite adequate for the purpose.  However, notes made for the purpose of compiling a medical report where a specific consultation and examination would be conducted are more likely to be detailed in nature.  It was his opinion that the record keeping in this case was not a sign of carelessness and it would be unlikely that a conscientious GP would not be writing out the extent of her exact symptoms every time he saw her over three years.  Those observations and opinions in my view are relevant and more likely to be accurate.  No less in this case where Dr Ridgway was able to recall the applicant pointing to parts of the applicant's neck which were described as the site of pain.  It would not be unreasonable for those treating the applicant to have an expectation that the site of the pain as demonstrated by the applicant in a clinical environment would have a relationship to the prior traumatic shoulder injury and a focus, by them, directed to that injury.  It would be preferable of course for a recording to have been made of the complaint of neck pain but the absence of the recording of the complaint as I have referred to above does not in my view permit a conclusion that the neck pain was absent.

38.     I am also satisfied that the relationship between the applicant and her treating doctors, especially Dr Ridgway and Mr Hannon, was of such a nature that the opinions expressed by them in support of her application were made by reason of the long relationship that they have had with the applicant and they each being satisfied, based on their medical qualifications, and on their relationship with the patient, that a nexus does exist between the shoulder trauma and the subsequent neck injuries.

39.     Another explanation may be, particularly in a busy general practice environment, of an assumption on the part of the practitioner that the neck pain arose out of the shoulder injury in the absence of any other history.  On this issue it is worthy to note that Dr Ridgway took a history on 13 November 1999 of a complaint of low neck pain having obtained a history of swimming last week – breast stroke.  On the evidence of the applicant in these proceedings she was not swimming.  In fact the applicant had been advised to undertake water aerobics by Mr Coglan her physiotherapist.  The applicant said in evidence (Trans pp12, and 18 – 19) that she was exercising in a swimming pool because it was low impact.  On the evidence of the applicant she did not exercise by breast stroke swimming but rather was engaged in hydrotherapy type activity – it being low impact – involving the movement of her arms in a breast stroke type manner.

40.     I am however satisfied that Dr Ridgway was aware of complaints made by the applicant of neck pain although a history in those terms is not specifically recorded in her notes until 2004.  In a letter to Mr Hannon on 17 December 2004, Dr Ridgway recorded that the applicant had neck and shoulder pain after a fall in 1997.  Dr Ridgway made similar comments in a letter to Dr Laidlaw on 22 January 2005.  Dr Ridgway must have known prior to these letters being prepared of the applicant's complaints of neck pain.  She also wrote in a report of 13 April 2005 that she had treated the applicant since 1997 and the applicant had at that time and since complained of persisting pain in her shoulder and also in her neck.  Dr Ridgway also recorded that she found it difficult to differentiate the applicant's neck and shoulder pain as she has always complained of pain in this region.  I am satisfied that the history of neck pain recorded by Dr Ridgway in these letters is a reflection of the history given to Dr Ridgway by the applicant although not apparent from an observation of the treating records.  Dr Ridgway said in evidence that she may have focussed her treatment on the applicant's shoulder because it had been the subject of surgery on two previous occasions and probably did not record in her notes the complaints of neck pain.  She was adamant and I am satisfied and find as a fact, that the applicant had complained of neck pain – consistent with the opinion expressed by Dr Ridgway in her report of 13 April 2005 – subsequent to the first operation in December 1997.

41.     In concluding this part with respect to the note taking of treating practitioners and the opinions expressed by them, I should record by these reasons some unfortunate comments made by Mr Shannon in his report of 2 August 2007 which attracted considerable attention in cross‑examination.  In that report Mr Shannon recorded that Mr Hannon was placed under considerable pressure by the applicant to support her claim for acceptance of neck injury.  He made those comments based on his interpretation of a report written by Mr Hannon on 26 September 2000 where he then recorded that it was his opinion that by reason of the applicant's age and the absence of any history of neck pain prior to the fall in December 1997 that it was reasonable to assume that the two are related.  However, that report should in my view be placed in context and should not be afforded the negative interpretation given by Mr Shannon.

42.     Mr Hannon did obtain a history of neck pain in June 2000.  An MRI was subsequently obtained and it revealed the presence of a disc bulge at C6 / 7.  On 26 September 2000 Mr Hannon recorded Army does not want to pay for physio – need letter.  A letter completed by the applicant on 21 August 2000 (T56) apparently follows a telephone conversation between the applicant and an officer of the respondent where the applicant's neck injury was discussed, and by reason of it, the applicant requested a reassessment of her entitlement to compensation for permanent impairment.  The conversation referred to by the applicant and her letter of 21 August 2000 was subsequent to the consultation with Mr Hannon on 22 July where the results of the MRI were discussed and preceded the consultation of 26 September 2000 where the applicant requested an opinion with respect to the neck injury.

43.     Mr Hannon gave his evidence over a number of hours at the Tribunal and I was impressed by his even handed and methodical expression of opinion.  He did not seek to prosecute the applicant's application and concluded, based on his professional experience, that by reason of the applicant's age, and in the absence of any other cause, it was probable that the neck injury arose out of the traumatic fall of December 1997.  He described an AC dislocation as being extremely painful and said that surgery for it would take your mind off your neck a fair bit.

44.     Accordingly I am not satisfied that Mr Hannon was placed under considerable pressure by the applicant but rather he was asked to express an opinion which he did and which is found in his report of 26 September 2000.  That opinion was then expressed because it was the first time that such an opinion was ever sought.  It was, in my view, inappropriate on the part of Mr Shannon to conclude that because such an opinion was not expressed in earlier reports, that Mr Hannon changed his report (Trans p139).  Rather I prefer, based on my observation of Mr Hannon giving evidence and by the contents of the many reports that he has written, that the opinion expressed by his report of 26 September 2000 was made having regard to his professional judgement and by reason of his relationship with the patient.  I am also satisfied that if Mr Hannon held the opinion that an association did not exist between the shoulder injury and the neck injury that he would not have written the report that he did.  In conclusion I am satisfied that he wrote that report and expressed the opinion contained in it because it was an opinion reasonably and genuinely held by him.

45.     The T‑documents contain a number of reports of doctors who were not called to give evidence.  Dr Baker examined on behalf of the respondent and in a report at T79 concluded that the applicant suffered damage to the C6 / 7 disc as a result of her fall.  Dr Mutton, in a report at T90, regarded the cervical spine condition as a stand alone condition by way of cervical disc degeneration.  Dr Gras who also examined on behalf of the respondent at T62 reported that the disc based lesion did not have any causal or close relationship to the original injury but also reported that her reported symptoms of neck pain were really of minor if not trivial nature in 1999.  Dr Laidlaw to whom the applicant was referred by Dr Ridgway at the suggestion of Mr Hannon, reported at T83 that the applicant's pain was probably musculo ligamentus rather than primary discogenic although he did obtain a history of gradual onset of lower neck and interscapular ache subsequent to the injury in 1997.  He also obtained a history of increasing stiffness and ache in the lower neck and across the shoulders but it had only been bad for the last two years.  Professor Goodchild to whom the applicant was referred by Mr Hannon reported on 6 October 1999 that the applicant complained of pain on the left side of her neck.  He also noted that burning pain in the applicant's shoulder was spreading to her neck producing migraine type headache.  The finding by Professor Goodchild of neck pain is the first record that I can locate from the multitude of medical records tendered in these proceedings of a history of neck pain.  His finding preceded the first recording by Dr Ridgway on 13 November 1999 of neck pain then thought to have an association with swimming.

46.     Dr Ridgway was examined extensively concerning her notes of examinations of the applicant but in fairness she was absent from her practice for some years on maternity leave.  The file of the McDonald Street Medical Centre records Dr Hewitt having completed a certificate on 29 January 2001 where he was of the opinion that the applicant suffered service related shoulder and neck injuries.  Dr Nichols recorded a history on the patient notes on 6 and 13 October 2003 of neck pain from time of fall.

47.     In conclusion I am also satisfied of an association on the probabilities between the trauma of December 1997 and the subsequent neck injury having regard to the applicant's age.  I am satisfied on the evidence of Mr King and Mr Hannon that the extent of degeneration in the applicant's cervical spine, by reason of her age would be unusual in the absence of trauma.  I am aware that Mr Shannon has a contrary view but I prefer the evidence of Mr Hannon especially, and no less because of him being a treating practitioner of the applicant and who has assessed her over a number of years.  I am also mindful of the evidence of Mr King who – despite a suggestion to the contrary – said that MRI assessments are frequently (and unnecessarily) taken of persons of a similar age and if there was cervical degeneration apparent in 31 year old persons it would be well known and documented.

48.     In all of the circumstances and for the above reasons I am satisfied that the liability of the respondent previously accepted with respect to the shoulder injury should be extended to include liability for compensation with respect to the neck injury.

49.     The decision under review will accordingly be set aside and a decision in the above terms will be substituted.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Dates of Hearing  27 and 28 August 2007 and 26 February 2008
Date of Decision  1 May 2008
Counsel for the Applicant         Mr M Carey
Solicitor for the Applicant          Mr D Opie, Opie and Co
Counsel for the Respondent     Ms A McMahon
Solicitor for the Respondent     Ms H Weston, DLA Phillips Fox