Ellis and Comcare
[2005] AATA 545
•7 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 545
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos N2002/1666, N2004/930
GENERAL ADMINISTRATIVE DIVISION ) N2004/1341 & N2005/136 Re ANNE ELLIS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr P Lynch, MemberDate7 June 2005
PlaceSydney
Decision The decisions under review are affirmed.
(Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – whether Applicant suffered work caused injury or aggravation – whether pain due to work injuries or pre-employment injury and car accident – Applicant’s current back, neck and shoulder pain held to psychosomatic, aggravated by stress at work – no claim for pain syndrome considered by the Respondent – decisions under review affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 14, 24, 27
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
7 June 2005 Senior Member M D Allen
Dr P Lynch, Member1. This matter dealt with four separate applications to review “reviewable decisions” made by the Respondent. They were:-
N2002/1666 A reviewable decision dated 3 October 2002 that affirmed a prior determination to cease liability for the condition described as “aggravation of lumbar sprain” as and from 10 April 2002. The claim resulted from a fall experienced by the Applicant whilst on a lunch break on 13 July 2001.
N2004/930 A reviewable decision dated 9 July 2004 that affirmed a prior determination rejecting a claim for permanent impairment in respect of injury alleged to have been suffered as a result of the fall on 13 July 2001.
N2004/1341 A reviewable decision dated 28 September 2004 affirming a prior determination rejecting a claim for permanent impairment alleged to have been suffered as a result of the injury described as “right shoulder and neck strain”, which injury was caused by excessive keyboard work on 30 June 1992.
N2005/136 A reviewable decision dated 11 November 2004 that rejected claims for compensation for the injury described as “aggravation of neck sprain, sprain of shoulder and upper arm bilaterally and lumbar sprain” post 29 July 2004. The said injury being the result of a fall at work on 18 August 2003.
2. The Applicant said in evidence that she was born on 14 January 1952. In 1978 she commenced nursing studies and became a registered nurse. In 1986 she was working at a nursing home as a registered nurse when she injured her lower back whilst lifting a patient. As a result of that injury she was placed off work by her general practitioner and eventually her services were terminated by her employer although she later received an award of workers compensation.
3. Within two years of the 1986 injury she felt fit enough to return to the workforce and did some home nursing not involving lifting. In December 1989 she obtained employment with Centrelink as a clerical officer.
4. By 1991 she had resumed pre-injury activities such as social tennis, aerobics, gym and “rock and roll” dancing.
5. In June 1992 she was required to spend two to three days constantly using a keyboard in order to prepare a prosecutor’s brief for a social security fraud. On the second day she noticed that her neck and right shoulder were becoming sore. She saw her general practitioner who prescribed physiotherapy. The pain settled down “a bit” but did not completely resolve and she has had ongoing pain in her neck and right shoulder since that time. She also began to experience pain in the left shoulder, which has also continued.
6. A claim for compensation was made and on 28 July 1992 liability was accepted for “right shoulder and neck strain (date of injury 30/6/92)”.
7. On 13 October 1998 the Applicant was injured as the result of a motor vehicle accident. The injury occurred during the course of her employment but the Applicant decided to take common law action although certain medical and travelling expenses plus lost wages were originally paid by Comcare but refunded when the Applicant’s claim against the third party insurer was determined.
8. As a result of the motor vehicle accident, the Applicant experienced neck and lower back pain. This pain settled down a few weeks after the accident. Later she found dancing aggravated pain in her shoulders so she ceased this activity but the lower back pain only took a few weeks to settle down.
9. During the course of her lunch break on 13 July 2001, the Applicant was walking through a car park of a Woolworths supermarket at Casino on her way to get some massage treatment when she fell on her buttocks jarring her lower back, neck and shoulders and grazing her right knee.
10. The Applicant’s masseur treated her afterwards and she returned to work that afternoon although very shaken.
11. In the period July to December 2001, the Applicant worked full time but her physical condition got progressively worse. Her back was aching almost daily and she was becoming short tempered and “teary”. Domestic activities were inhibited.
12. The Applicant took three weeks leave in the December/January period but her back did not get better and upon return to work her pain was worse than after the fall. She consulted her general practitioner. Pain continued at a severe level for 12 to 18 months but now there has been some slight improvement.
13. In May 2002, the Applicant commenced a return to work programme on restricted duties. Her back continued to ache and she experienced intermittent “sharp” pain. Her neck and shoulders were also giving her alot of pain.
14. On 18 August 2003, the Applicant fell at work after she became entangled in a loose telephone cord. In this fall she jarred her neck, shoulders and back.
15. Currently, the Applicant is on a return to work programme working four days per week, six hours a day. Her shoulder and neck pain is exacerbated by stress at work as the Casino Centrelink office is short staffed and there is considerable pressure upon her. Some of the people she has to deal with as “customers” of Centrelink are difficult and if she is involved in a confrontation she is inclined to tense up with consequent neck and shoulder pain. She can only cope by working Monday, Tuesday and then taking the Wednesday off and then working Thursday, Friday with the weekend to recover.
16. The Applicant was cross examined regarding the amount of time she spends doing book work for the business carried on by her husband but in which she is a partner. We do not regard the amount of time spent in these activities as significant although we consider that the Applicant did attempt to minimise the amount of time she does devote to the affairs of the business.
17. Whereas we accept that the Applicant did suffer what is generally termed an occupational overuse syndrome in 1992, the question for the Tribunal is whether that syndrome is still causing the pain experienced by the Applicant in her neck and shoulder or whether some other cause has now supervened. We must also consider whether the pains the Applicant states she suffers in her back are as a result of the motor vehicle accident alone or whether work injuries are playing a part in her current disability.
18. An MRI scan of the Applicant’s neck was taken on 12 May 2004. That scan revealed a C5-6 disc protrusion impinging on the exiting right C6 nerve.
19. Regarding this finding Dr David Maxwell, orthopaedic surgeon said:
“…I note at the C5/6 level they have described a postero-lateral disc protrusion extending in to the right C6 foramen displacing the exiting nerve. An important feature of this is that the disc protrusion is bridged by a small posterior vertebral osteophytes suggesting this is a chronic long standing lesion and is probably secondary to disc degeneration. If it is a traumatic disc protrusion it is more likely to not be bridged by osteophytes and is therefore more likely to resorb.
I consider this is likely to be a long standing degenerative lesion and has probably not been caused by an episode of trauma. The important feature of radicular pain due to lesions in the neck is that the pain in the arm is normally worse than the pain in the neck.
I also note that there was no muscle wasting off the right arm and no other evidence of neurological compromise. The biceps jerk in particular was present and there was no obvious sensory loss.
I therefore consider this finding on the CT scan (sic) is an incidental variant and not directly related to her symptoms which are more global involving her neck, back and both arms.”
20. Dr Black is of a contrary opinion and states that the MRI findings show a C5-6 disc lesion, which would be responsible for the Applicant’s neck pain and neurological symptoms in her right upper limb. In a report dated 4 May 2004, Dr Black says inter alia:
“The subject accidents do appear to be substantial contributing factors and in relation to apportionment, I can only suggest that the 1998 and 2001 accidents would have contributed more than symptoms beginning in 1992.”
Dr Black however does not discuss how the specific lesion can be said to have been caused by the Applicant’s work activities.
21. Where the opinions of Doctors Black and Maxwell conflict, we prefer the opinions of Dr Maxwell as he has specialist qualifications as an orthopaedic surgeon whereas Dr Black does not appear from his letterhead to have any post graduation qualifications but simply the Bachelor of Medicine, Bachelor of Surgery.
22. We are therefore satisfied that whereas the MRI scan has demonstrated pathology in the Applicant’s cervical spine, that pathology and its symptoms have no connection with the Applicant’s employment but are as stated merely degenerative changes.
23. Reports obtained prior to the elucidation offered by the MRI scan also cast doubt on a work-caused injury being the cause of the current neck and shoulder pain suffered by the Applicant.
24. In a report dated 10 April 2002 Professor Oakeshott, surgeon stated after referring to a CT scan of the Applicant’s cervical spine:
“I consider that these minimal degenerative changes are constitutional in origin and I could not correlate these changes with any objective clinical finding at today’s consultation.”
He continued:
“At today’s consultation I was unable to identify any objective clinical evidence of any physical injury or underlying pathology in any part of her body including her back, shoulders and neck that could account for her alleged symptoms”
And discussed any permanent impairment by stating:
“I consider that any injury that she sustained in any of the above accidents while working with Centrelink, have now completely resolved and there as (sic) no objective clinical evidence of any such injury at today’s consultation.”
25. On 7 October 1997 Dr Carr, rheumatologist, in a report to the Respondent stated:
“The Applicant had non-specific cervico-brachial pain.”
He continued:
“In her own words I believe that she “carries tension in her neck” and I feel that a precise diagnosis can’t be given apart from to say that she has a low grade strain injury of the muscles around the posterior aspect of the cervical spine and scapular region.”
He continued:
“In my opinion, I feel it’s not likely that her current condition stems from the work related incident of 30.6.92 and that presently there is no connection between her current condition and the incident of 30.6.92.”
He concluded by stating:
“Her prognosis will be one of exacerbations and remissions of pain as this is a woman who carries her tension in her neck.”
26. Dr Kleinman, orthopaedic surgeon in a report dated 16 April 1996 to the Applicant’s then general practitioner stated:
“On examination today, she has a fully mobile cervical spine and shoulders and she has normal neurology in the upper limbs. I have reviewed the x-rays she brought with her. X-rays of her cervical spine taken on the 13/9/95 showed a long elegant neck, one could view down to T1 on the lateral view otherwise completely normal. An x-ray of the 13/7/90 of her cervical spine also showed no abnormality.
This lady appears to be suffering from a tension state associated with the stresses of her job which is relieved by massage…”
27. Exhibit A7 is a report by rheumatologist Dr Gray to the Applicant’s general practitioner dated 9 August 2002. In that report he notes:
“Cervical spinal movements today revealed a normal range of neck flexion but little neck extension. Rotation was reduced to approximately 50% of normal values. Thoracic spine was stiff as assessed in rotation. The spinal contours were normal. Lumbar spine flexion was possible to 60˚ with extension to 25° both being mildly reduced. Her gait is normal and she is able to walk on her toes and her heels. She had no abnormal neurological findings in the lower limbs.”
Under the heading diagnosis Dr Gray stated:
“I feel she has features of chronic pain syndrome. I wondered whether she might have fibromyalgia as she has numerous tender points but the control points are also tender and I think this is more in keeping with allodynia associated with a chronic pain state. I did not think there was any alternate diagnosis such as thoracic outlet syndrome and while radiologically there are minor degenerative changes, I do not feel they account for her symptomatology.
…
There are no easy answers for this woman who certainly is troubled by pain and this pain being made worse by stress. Such exacerbation is a perfectly valid input in the chronic pain paradigm.”
28. Dr Young, orthopaedic surgeon in a report dated 4 February 1999 to the Applicant’s then general practitioner stated after an examination of the Applicant and taking a history:
“I believe Mrs Ellis’s pain is muscular. I do not believe surgery has a role to play her (sic) and have suggested to her that perhaps relaxation may bear more fruit together with continued massage. Should her headaches persist this may be helped by neurosurgical consultation.”
29. Dr Adam, specialist in occupational medicine in a report dated 24 July 2002 stated:
“Ms Ellis has suffered ongoing symptoms since the onset of an overuse syndrome in 1992, although she has been able to work for much of that time. However, the condition has been aggravated and perpetuated by further incidents, including a vehicle accident in 1998 and the effects of ongoing pressure at work. As a result of the chronic and recurrent disability, I consider that Ms Ellis has become entrenched in a chronic pain presentation…”
30. That the Applicant’s current neck, shoulder and back symptoms have a psychological element was also the opinion of Dr Low, another specialist in occupational medicine. In a report dated 1 November 2002 to Centrelink he stated inter alia:
“Ms Ellis’ symptoms can only be explained in terms of a disturbance in her psychosocial functioning with associated tightness in her spinal musculature. She said that her upper torso symptoms developed when she was under a lot of stress in 1992 and have been particularly prominent since March-April 2001 when, she says, she was placed under tremendous pressure at work with a reduction in staff. Not working for three and a half years after developing low back pain, on moving a patient in 1986, is also reflective of a disturbance in her psychosocial functioning. It also appears that she developed an emotional reaction to a minor car accident in 1998 with a worsening of her neck and lower back symptoms.”
Dr Low concluded his report by stating:
“Any work issues which, she perceives, are impacting on her emotionally also need to be appropriately addressed…”
31. In a latter report dated 14 February 2003 Dr Low opined:
“In my opinion, unless Ms Ellis begins to understand that her symptoms are due to a disturbance in her psychosocial functioning, which will be related to her personality functioning, with consequent tightness in her spinal musculature, she will continue to report symptoms on exposure to psychosocial stressors. The persistence of her symptoms is related to reinforcement that she is suffering from a physical disorder.”
32. The MRI scan of 12 May 2004 clearly indicates that the Applicant has some pathology in her neck but as pointed out by Dr David Maxwell, this pathology is degenerative and not related to the symptoms of which she complaints.
33. The Applicant in evidence stated that the symptoms were aggravated by work stress and thus we find that Drs Carr and Low have correctly identified the cause of the Applicant’s neck, shoulder and some back pain, namely that it is psychological. This finding is not in contrast to the findings of Drs Adam and Gray who implicate a chronic pain syndrome.
34. Professor Oakshott could not find any objective clinical evidence of physical injury or pathology but this finding is not inconsistent with a chronic pain syndrome. We accept Professor Oakshott’s opinion as to there being no objective signs of injury supported as it is by the findings of Drs Carr and Low.
35. A report by Dr Klestov, rheumatologist dated 21 April 2004 refers to aggravation sustained in the fall of 18 August 2003 but goes on to state:
“Given that her work commitments are largely unaffected, and that a number of conservative therapies that have been adopted, are continuing to benefit the patient, I would suggest that it is unlikely that the 18.08.03 aggravation is contributing significantly to her current symptoms.”
36. In summary, we are satisfied that the Applicant did suffer an overuse injury in 1992 and that the falls in 2001 and 2003 caused a temporary aggravation of those symptoms. Currently however, she is suffering a chronic pain syndrome which is made worse by what she perceives to be “stress” at work.
37. A claim for a chronic pain syndrome has never been considered by the Respondent. As pointed out by Dr Low, her problems are psychological and thus may well resolve when treated as such.
38. So far as the Applicant’s lower back condition is concerned, we note a contrast in both history and opinions between those specialists dealing with the Applicant’s third party claim and those dealing with her workers compensation claim.
39. In a statement of claim lodged in the New South Wales District Court in her third party case, the Applicant claimed injury to her neck, right shoulder and back. It was further alleged that these injuries had led to permanent impairment of the neck, right arm and shoulders and back.
40. Professor Ghabrial, orthopaedic surgeon in a report to the Applicant’s then solicitor dated 11 January 2001, took a history of some previous problems with her neck and shoulder in 1986 and 1992 and opined:
“Mrs Ellis was involved in a motor vehicle accident on the 13th October 1988. Since then she continued with marked symptoms in her neck and right shoulder as well as lower back. She had previous problems regarding the neck and right shoulder as stated earlier in my report as the result of a work related severe strain in 1992.
Regarding the back, I believe that she sustained an injury to her sacro-iliac joints as the result of her motor vehicle accident of October 1998. I believe that the symptoms in 1986 have resolved fully and left her without any residual problems.
I consider that Mrs Ellis has 20 % whole person impairment as a result of her right shoulder injury assessed in accordance with Table 9.1 of the guide to the assessment of degree of permanent impairment.
I consider that Mrs Ellis has 10% whole person impairment as a result of her neck injury assessed in according (sic) with Table 9.6 of the guide to the assessment of degree of permanent impairment.
I consider that Mrs Ellis has 5% whole person impairment as a result of the back injury assessed in accordance with Table 9.5 of the guide to the assessment of degree of permanent impairment.
I believe that she is not fit for any activities involving heavy lifting, excessive bending and twisting as well as excessive use of the right upper limb, mainly above the shoulder level.
I believe that her condition has stabilised and future complications are unlikely.”
41. A further report by Professor Ghabrial dated 4 December 2002 stated that the Applicant had as a result of her motor vehicle accident (Tribunal’s emphasis), sustained a 20 per cent impairment to her right shoulder, 10 per cent permanent impairment to her neck and 20 per cent permanent impairment to her back. This assessment was made after the Applicant’s fall in the Woolworth car park on 13 July 2001 and the percentage allocated to shoulder and neck impairment have not changed. (Apparently, for reasons best known to himself, Professor Ghabriel assessed the Applicant’s common law injuries by using Tables 9.1 and 9.6 of the Comcare guide to impairment)
42. Professor Mitchell, orthopaedic surgeon in a report to the third party insurers solicitors dated 6 June 2002 opined:
“Mrs Ellis has clinical evidence of impingement in both shoulders, more so on the right side, with aching and restriction of abduction and forward flexion. She also appears to have lower cervical symptoms which I would attribute to disc degenerative changes in the lower cervical discs…Her lumbar spine is restricted in movements with significant loss of height at the lumbar-sacral disc level with referred low back and bilateral thigh pain. There is no evidence of radiculopathy or nerve compression.
I am of the opinion that the motor vehicle accident of 13 October 1998 aggravated her neck and lower back. Her low back was further aggravated by the fall in July 2001 in the car park at Casino. It is clear from her history that she had low back pain in 1986 which may account for the degenerate disc at L5/S1, and was requiring massage and back physiotherapy before the motor vehicle accident, and I believe that this accident is not responsible for her present symptoms which, in my opinion, are due to degenerative changes in her vertebral column and shoulders associated with impingement.”
43. In a report to the Respondent’s solicitors dated 8 April 2004 Dr David Maxwell stated inter alia:
“Mrs Ellis continues to complaint (sic) of discomfort in her neck and lower back discomfort. There are some anomalies regarding the physical examination. There are inconsistencies in the range of movement of the shoulders and also, in my opinion, of the lumbar spine. I consider there isn’t any pathological explanation for her complaints…
She also mentioned a fall on 18.8.2003 which in my opinion has not made any difference to her symptoms…”
Dr Maxwell went on to opine that the Applicant suffered no permanent impairment either as a result of any injury on 30.6.92 or from the fall of 18 August 2003.
44. Dr Black in a report dated 4 May 2001, noted that the fall in 2003 contributed to the Applicant’s impairment and that following the fall there had been a worsening of her symptoms, however the degree of impairment as per the Comcare Tables remain the same.
45. An earlier report of Dr Black dated 4 June 2003 noted that after the car park fall “her symptoms gradually improved” and diagnosed “symptomatic cervical and lumbar spinal degenerative disease” stating as to apportionment:
“Based upon the history, it seems obvious that her injuries and disabilities and the effects of them have extended beyond April 2002. The subject accidents do appear to be substantial contributing factors and in relation to apportionment, I can only suggest that the 1998 and 2001 accidents would have contributed more than symptoms beginning in 1992.”
46. The report of Professor Ghabriel of 4 December 2002 notes the car park fall but does not attribute any ongoing disability as a result. Reading Dr Ghabriel’s report it is clear that he implicates the motor vehicle accident as the cause of the Applicant’s back and neck problems.
47. Professor Mitchell stated that the car park fall “aggravated” the Applicant’s back symptoms but regarded any symptoms as at the date of his report as being due to degenerative changes only.
48. Having regard to the abovementioned reports we are satisfied that the Applicant did suffer an exacerbation of symptoms as a result of her falls in 2001 and 2003 but that any such exacerbation has resolved and the pain now experienced by the Applicant in her back is as a result of degeneration compromised by her initial back injury in 1986 and the motor vehicle accident in 1998. In addition, she continues to experience symptoms as a result of what Drs Carr, Adam and Low have referred to as a disturbance in her psychosocial functioning.
49. The net result is that whereas we accept that the Applicant has ongoing pain in her neck, shoulder and back, we find that the genesis of her back pain is a result of an injury in 1986, before employment with the Commonwealth and a motor vehicle accident in 1998. Currently, the Applicant’s back pain together with her neck and shoulder pain is psychosomatic aggravated by stress at work. No claim for a pain syndrome has been considered by the Respondent, therefore it is not open to this Tribunal to impose liability in respect of this condition, see Lees v Comcare (1999) 56 ALD 84.
50. For the reasons given above however the decisions under review will be affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen; Dr P Lynch, Member
Signed: (E.Pope) .....................................................................................
AssociateDate/s of Hearing 23 and 24 May 2005
Date of Decision 7 June 2005
Counsel for the Applicant Ms M Gillies
Solicitor for the Applicant Geoffrey Edwards & Co
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Sparke Helmore
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