Grieve and Australian Postal Corporation
[2003] AATA 777
•11 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 777
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/575
GENERAL ADMINISTRATIVE DIVISION ) Re CINDY LEE GRIEVE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member Date11 August 2003
PlaceSydney
Decision The Tribunal affirms the decision under review. Costs may not be ordered under s.67 of the Safety, Compensation and Rehabilitation Act 1988 in this matter. [Sgd] P.J. Lindsay, Senior Member
CATCHWORDS
WORKERS COMPENSATION – neck injury – aggravation of underlying condition - whether neck pain attributable to employment – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14
Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
11 August 2003 P. J. Lindsay, Senior Member 1. This is an application by Ms Cindy Lee Grieve (the applicant) for review of a decision by the Australian Postal Corporation (the respondent) on 8 March 2002 denying her claim for compensation in respect of a neck injury sustained on 19 October 2001.
2. At the hearing of this matter in Newcastle, Mr A Edwards of counsel appeared for the applicant. The Commission was represented by Ms R Henderson of counsel. The applicant gave evidence as did her husband David Grieve. Expert evidence was given by Dr P Spittaler, a consultant neurosurgeon, who was called by the applicant, and by Dr M Gliksman, an occupational physician, called by the respondent. The Tribunal had before it documents prepared in accordance with s.37 of the Administrative Appeals Tribunal Act 1975 (T-Documents) and the exhibits tendered at the hearing.
Background
3. Ms Grieve commenced employment with Australia Post in November 1995 as a Mail Officer at the Hunter Region Mail Centre. She is still employed by Australia Post and works three days a week.
4. Ms Grieve took a number of days off work between October 2001 and January 2002 citing an acute neck and shoulder strain, and cervical spine pain as her reasons (T21). Dr Welbourne, general practitioner, placed her on restricted duties during this period. She prepared an incident report on 22 January 2002 (T26). The report noted that on 19 October 2001 she was involved in a motor vehicle accident when entering the car park of the Hunter Region Mail Centre at the start of her shift. She reported that the car behind her failed to stop and hit the rear end of her car and she felt pain and spasms in the neck as a result. Her manager, Mr I Kells, questioned why it took so long for the incident report to be submitted and requested a full investigation of the incident.
5. Ms Grieve completed a claim for rehabilitation and compensation on 25 January 2002 (T27) in relation to the injury to her neck. She attached additional information about her claim (T27-110). Ms Grieve noted that on 30 September 2001, while visiting her sister’s home, she fell onto her left side injuring her neck and left shoulder. She stated that she took time off work on 17 and 18 October 2001. She then noted that on her return to work on 19 October 2001 she had been involved in the accident in the car park and had reported it to the Police Assistance Line.
6. The applicant’s husband provided the respondent with a witness statement dated 30 January 2002 (T30). Mr Grieve stated that he last saw his wife prior to the accident at about 5:20pm on 19 October 2001 and that she was free of injury or illness at that time.
7. On 7 February 2002 the respondent denied liability for compensation (T31). Reconsideration was requested. In a decision dated 8 March 2002 (T35) a reconsideration officer affirmed the determination of 7 February 2002 for the following reasons:
The medical evidence provided indicates that Mrs Grieve was suffering from a neck injury prior to the minor incident on 19 October 2001. The incident was not reported to the work area until 22 January 2002 following advice from her solicitor. Dr Welbourne examined Mrs Grieve on numerous occasions following the MVA on 19 October 2001, however made no mention of any episode of aggravation resulting from MVA at work until 3 months after the incident.
In conclusion I am not satisfied that Mrs Grieve has injured or aggravated her cervical spine during the course of her [sic] with Australia Post, and therefore I am not satisfied that there is liability to pay compensation for her condition. The decision of the delegate is therefore affirmed.
8. Ms Grieve has applied to the Tribunal for review of that decision.
Evidence
9. Ms Grieve was born on 6 November 1962 and is married with a ten year old son. Her husband is in part-time employment of one day a fortnight. He is a diagnosed paranoid schizophrenic. She has been the breadwinner for about five years. The applicant said that she was diagnosed with bipolar disorder in the mid-1970s. She has seen Dr Welbourne on a number of occasions in relation to her emotional problems.
10. Before the incident in the car park at work on 19 October 2001, Ms Grieve had lodged a compensation claim for a cervical spine injury suffered at work on 1 December 1998 (T9). The respondent denied liability for that injury. No further action was taken regarding the claim. The applicant said in evidence that her symptoms from this injury resolved in about a week. She lodged a number of other claims for compensation between 1997 and 2001. For example she suffered a wrist injury in 1999 that resolved and in December 2000 she lodged a claim for bilateral plantar fascilitis that was accepted by the respondent.
11. Ms Grieve recalled an incident that happened at her sister’s home in late September 2001. While fooling about with her husband near the swimming pool, she fell backwards through a garden and down some steps. She said that she landed on her side and that her husband fell on top of her. Her evidence was that she felt fine following the fall but later had a little bit of pain in her neck that went away after about an hour. In evidence Mr Grieve said that they had been wrestling, they both fell on the ground and his wife injured her neck in the fall.
12. Ms Grieve consulted Dr Welbourne on 16 October 2001. Her evidence was that she told him she had had a stiff neck and headaches intermittently since she fell over at her sister’s. Dr Welbourne recorded her headaches as frontal and occipital and “like having been hit with a brick” (Exhibit A3). On examination Dr Welbourne noted that the applicant demonstrated diffuse spasm in the neck muscles bilaterally, that her range of motion was restricted to about half the normal range in all directions except flexion and that she was tender bilaterally at the C6 and C3 levels. Simple analgesics and an anti-inflammatory drug Vioxx were advised as required. It was also suggested that she consult Chris Dekenne, an osteopath, if she did not improve. The applicant said the headaches that she suffered as a result of the fall were worse than the neck pain it caused.
13. On 17 October 2001 Dr Welbourne noted that Ms Grieve was threatening to overdose on Aurorix, an anti-depressant. Ms Grieve said that, at this time, she was on edge and really miserable. Dr Welbourne provided a medical certificate for 17 and 18 October 2001 (T21).
14. Ms Grieve went back to work on Friday 19 October 2001. She was rostered for the night shift. As her car approached the postal centre, she noticed a car swerving back and forth behind her. That car, driven by a co-worker, ran into her’s while she was entering the car park at work. She said the impact caused her head to move backwards and forwards. When she got out of the car, she saw a dint in the back of her car. She noticed that after the accident her neck was sore and she felt a burning sensation in the neck, but had no other pain. When asked to compare this pain with how she felt following the fall at her sister’s house, Ms Grieve said that on the earlier occasion she had pain in a different area and it was more of a twinge than a burning sensation. Although she had to take a couple of pain-killers during her shift, she worked the full eight hours and ten minutes. By the end of the shift she was in tears from the pain. Asked why she did not report the accident or the injury that night, she replied that she did not then know that an injury suffered while travelling to work was covered by workers compensation. The applicant said that a few days after the incident on 19 October 2001 she felt pain in her arms.
15. Mr M Hayter, the other driver involved in the accident in the car park, provided an outline of the incident in a letter dated 24 January 2002 (T28). In Mr Hayter’s recollection the following took place:
… While entering HRMC car park three cars had to stop while a parked car in the carpark was reversing. I was stopped at the bottom of the driveway. Cindy stopped on hill in driveway and another car was in front of her.
When the other car and Cindy went to proceed she rolled back slightly bumping my stationary car. Once parked in the carpark I asked Cindy about what happend [sic] and Cindy said “there was no damage to her car”.
On inspecting my own car I also notice no damage at all. Nothing further was discussed until Cindy spoke to me in late November about fixing damage to her car. I informed Cindy that I was not responsible for the damage.
16. Mr Grieve’s evidence was that he was awake when his wife returned from her shift on 19 October 2001. She told him about the incident in the car park. He rubbed some ointment into her neck that night when she complained that it was sore.
17. The applicant was on recreation leave from 23 October 2001. On 1 November she and her husband went to Melbourne for a week’s holiday. During the holiday she said she had pain and a burning sensation in her neck and pain in her arms. She said she was taking Panadeine Forte. She said her neck was still the same when she returned from her trip away.
18. Following the incident in the car park on 19 October 2001, the applicant had reason to consult Dr Welbourne on a number of occasions about a range of complaints, phoning him on 22 October 2001 and seeing him on 24 October 2001. She agreed, however, that her first mention of the car park incident to Dr Welbourne was on 12 November 2001, and then only in the context of her being stressed by Mr Hayter’s denial of liability for damage to her car. On 13 November 2001 Dr Welbourne recorded a telephone call in which the applicant complained about a flare up in her neck pain. He noted that Ms Grieve had been seeing the osteopath, Mr Derkenne, who had recommended that she have time off work and take analgesics as required. Mr Derkenne provided a sickness certificate dated 13 November 2001 stating that the applicant was suffering from acute neck and shoulder strain and was unfit for work until 15 November 2001 (T21-87). Ms Grieve said she did not make a claim for compensation at this time but instead used her sick leave. Dr Welbourne examined the applicant on 15 November 2001, and recorded that she was “here today because of pain in her neck. Neck has been trouble free for a while - then out dancing on Saturday night and got pain in the neck. Has had some treatment with Chris Dekenne – with some improvement, but still has ongoing problems …” (Exhibit A3). Dr Welbourne recorded that he saw the applicant on 19 November 2001 in relation to an accident a day or two earlier when she injured her clavicle. His clinical notes stated that Ms Grieve’s neck was slowly improving.
19. Supported by medical certificates, Ms Grieve continued on restricted duties until 19 January 2002 (T21). Dr Welbourne noted on 14 January 2002 that Ms Grieve still had a problem with her neck. He reported that the neck pain suffered in the fall at her sister’s in late September 2001 had not settled down. She had pain moving her neck, especially with rotation to the left. Dr Welbourne noted she was taking Panadeine Forte and Voltaren, and seeing the osteopath. Ms Grieve was sent for x-rays of the cervical spine. The report of Hunter Imaging Group dated 16 January 2002 (T24) stated that there was degenerative narrowing of C3/4, C4/5, C5/6 and C6/7 cervical discs. In summary, the report found “moderately advanced cervical spondylosis”.
20. Dr Welbourne’s clinical notes of an examination on 17 January 2002 recorded that Ms Grieve was symptomless at the time of the fall in September 2001 but has since experienced neck pain. He also noted that she was upset about advice that she sue the compulsory third party insurer of Mr Hayter’s car and the workcover insurer. In relation to the car park incident Dr Welbourne noted “While this may have aggravated the problem further it is not the original cause.” On 25 January 2002 she lodged her claim for compensation with the respondent. Her explanation for the delay in claiming was that she only then became aware, through another employee, that workers compensation applied to injuries suffered on the way to work.
21. Ms Grieve continued with her consultations with Dr Welbourne, who noted that her neck did not improve over the ensuing weeks. She saw him on 18 February 2002 after returning to work on 15 February and Dr Welbourne noted that sorting mail had made her neck pain worse. He referred her to Dr Spittaler, consultant neurosurgeon.
22. Ms Grieve said that currently she does not experience pain radiating into her arms. Acupuncture over the previous year has also improved her neck condition but she still has pain flare ups and a burning sensation in the neck, especially when she has to raise her hands above her head, for instance while hanging out the washing. Rotation movement of the neck is restricted.
23. In cross-examination Ms Grieve acknowledged that she knew it was important to let Australia Post know about accidents at work, even if a claim for compensation was not being made. She also acknowledged that on various occasions she has completed incident report forms, a number of which are included in the T-documents. She denied that she delayed completing an incident report form about the incident on 19 October 2001 because the incident did not cause her any problems. She maintained that she did not fill in the form at that time because she did not know that an injury suffered while travelling to work was covered by workers compensation. Her recollection of discussions with Mr Hayter changed during the course of questioning. Initially Ms Grieve said she had two conversations with Mr Hayter, the first on the night of the incident in the car park, the other during the following week. Later Ms Grieve conceded that their only discussion must have happened after she returned from annual leave but she was adamant that the discussion was not delayed for six weeks from the accident.
24. Counsel asked the applicant about Dr Welbourne’s note of 17 January 2002 that she had been symptomless at the time of the fall at her sister’s house. Ms Grieve agreed that was the case. In this regard Dr Welbourne’s report dated 30 May 2002 (Exhibit A1) to the applicant’s solicitors noted that “She felt that while the [car park] incident definitely aggravated the problem further, it was not the original cause.”
25. Ms Grieve was questioned by Ms Henderson about the consultation with Dr Welbourne on 15 November 2001. He noted that her neck had been trouble free for a while, but that she experienced pain after a night of dancing a few days earlier on 10 November. Ms Grieve agreed that she would not have gone dancing if her neck was causing problems. In answer to Ms Henderson she said she had been pain free for a couple of days before the dancing and her neck became better while holidaying in Melbourne. Mr Edwards in re-examination sought to clarify what the applicant meant by saying her neck became better in Melbourne. The applicant said her neck was better but only for half an hour, or possibly an hour or two.
26. Ms Henderson asked her about Dr Welbourne’s note that she was upset by the suggestion that she should sue for workers compensation and Mr Hayter as the driver of the car that hit her’s. Ms Grieve said that she was worried about potential discord at work if she brought these actions since they directly involved a co-worker. She explained that her concern was that colleagues would take sides. She denied that she let six weeks pass after the car park incident before she discussed the damage to her car with Mr Hayter. However, her evidence in relation to the timing and content of her discussions with him was contradictory in some respects. She admitted that she may have been wrong about some of the dates of the discussions. Ms Grieve also corrected her evidence in chief as to when she started her consultations with Mr Derkenne. She said that contrary to that evidence, she did not consult Mr Derkenne prior to 16 October 2001 when Dr Welbourne suggested she see him. Cross examined about her use of Panadeine Forte, Ms Grieve contradicted her earlier answer that it was initially prescribed by Dr Welbourne after the incident in the car park. When pressed, she allowed that Dr Welbourne first prescribed Panadeine Forte for her after the holiday in Melbourne. Asked why she did not mention the pain radiating into her arms to Dr Welbourne at the consultations before going to Melbourne, Ms Grieve explained that she mainly discussed other things with him, such as her emotional state.
27. In re-examination, Ms Grieve said that the anger, anxiety and agitation that Dr Welbourne recorded on 15 November 2001 had been present for some months and accounted for her confusion regarding dates of discussions with Mr Hayter and the sequence of events she relayed to Dr Welbourne in consultations.
28. Dr Spittaler examined Ms Grieve on 15 March 2002 and 19 September 2002. He provided her solicitors with a report dated 16 December 2002 (Exhibit A4) and a separate, lengthier report of the same date to the compulsory third party insurers (Exhibit A5). The history recorded that Ms Grieve did not have symptoms in her neck prior to the fall at her sister’s house. The fall caused mild neck pain that radiated into both arms. Symptoms “increased markedly” following the incident in the car park. On examination Dr Spittaler found all cervical movements were limited by pain, particularly flexion and extension. No movement produced any pain in the arms and neurological examination of the upper limbs was normal. Dr Spittaler noted that a CT scan of the cervical spine performed in February 2002 demonstrated spondylitic changes with possible mild canal stenosis and foraminal stenosis at a number of levels. He diagnosed “ an exacerbation of cervical spondylitic disease”.
29. Although Dr Spittaler did not recommend any specific treatment, he arranged for an MRI scan which he noted showed “ … evidence of multilevel disc degeneration but no evidence of pathology producing pressure on either cord or nerve roots.” He considered that the applicant was very likely to have continued arm and neck symptoms, though surgery was unlikely. Dr Spittaler did not believe neurological deterioration would occur. He also suggested that treatment such as facet joint blocks from a pain management clinic may improve her neck pain but would not lead to any long term benefit. In his opinion:
The patient’s history of neck pain radiating into the arms is consistent with a hyperextension type injury as described by the patient as occurring in a rear end motor vehicle accident.
I do believe the patient’s employment was a substantial contributing factor to her injury insofar as she was injured whilst travelling to work. (Exhibit A4)
I would consider the aggravation continues to the present and I suspect the aggravation will be permanent. (Exhibit A5)
30. In oral evidence Dr Spittaler said he did not agree with the suggestion that to render the underlying cervical spondylitic disease symptomatic, a trauma would be required, evidence of which would show up on an MRI scan. Dr Spittaler said the Vioxx tablets that Dr Welbourne prescribed on 16 October 2001, a few days before the car park incident, can be used to treat acute musculoskeletal pain. He said Vioxx may act on a disc injury and reduce inflammation. Dr Spittaler said the history he had taken was of the car park incident markedly worsening the applicant’s neck pain, which became continuous thereafter. In his opinion Ms Grieve suffers from a cervical spondylitic disease that was present before her fall and the car park incident. He felt these events caused an exacerbation of that disease and that it was possible the applicant was more susceptible to injury from the motor vehicle accident due to the fall at her sister’s. In the absence of facet joint injections, Dr Spittaler would be surprised if the applicant became symptom free within a few weeks of that incident. If pain then recurred, Dr Spittaler would want to know whether there had been another injury.
31. Dr Kleinman, orthopaedic surgeon, examined Ms Grieve on 18 June 2002 and provided her solicitors with a report of that date (Exhibit A2). Ms Grieve relayed a history of neck pain suffered while at work with Australia Post in 1999, but from which she made a full recovery. The injury suffered in the fall at her sister’s house in late September 2001 caused her neck to ache a bit. Two weeks later it began aching. The applicant told Dr Kleinman that as a result of the incident in the car park on 19 October 2001 she suffered neck pain that was worse than the pain that recurred after the fall. She also had pain radiating into her arms for the first time and numbness in some fingers of both hands. The history provided was that she continued working for the next couple of weeks but the pain in her neck and down her arms grew worse so she consulted Dr Welbourne who certified her unfit on 13 November 2001.In the months following her referral to Dr Spittaler, the neck pain gradually improved and acupuncture has helped. She feels her neck improved by about 60 per cent in the three months after February 2002. On examination Ms Grieve was very tender in the mid-cervical region posteriorly between C5/6 and tender anteriorly on the left side particularly at C4/5, C5/6 and C6/7. Dr Kleinman commented that she has a long neck that was very stiff. The radiological investigations showed advanced degenerative changes in the intervertebral discs at C3/4, C4/5, C5/6 and lesser changes at C6/7. She had marked osteophytosis with intervertebral foraminal involvement at C5.
32. In Dr Kleinman’s opinion the applicant’s injuries and disabilities are consistent with the history. He found that her long standing constitutional cervical spondylosis had been aggravated by the fall and in particular by the car park incident. “From her history she has got considerably worse since the rear end collision and has, for the first time, developed symptoms down both arms.” Dr Kleinman thought her current symptoms are due to the aggravation on 19 October 2001 and the effect of the aggravation to her neck condition is permanent. In time, Ms Grieve’s degenerative changes will progress and she may require surgery to decompress the nerve roots.
33. Dr Gliksman, occupational physician, examined the applicant on 1 August 2002 at the respondent’s request and provided a report of the same date (Exhibit R1). Dr Gliksman noted that Ms Grieve presented complaining of pain in the cervical spine associated with paracervical muscular spasm, and that this pain radiated into both upper limbs and sometimes to the hands. At times headaches were associated with the cervical pain. On examination Dr Gliksman noted reduced lordosis in the cervical spine and paracervical muscular spasm. Cervical flexion was possible to 40 degrees and extension to 10 degrees. Bilateral cervical rotation was possible to 40 degrees in each direction. Abduction of the shoulders beyond 110 degrees bilaterally provoked a complaint of cervical pain. Examination of the upper limbs was normal. The history referred to onset of cervical pain in 1998 while rotating her head in the course of mail sorting. There was full recovery.The fall at her sister’s house did not cause any significant symptoms at the time, which Dr Gliksman noted was not entirely in accord with the briefing from the respondent’s solicitors. The incident at work in the car park led to deteriorating cervical pain with radiation of the pain. In March or April 2002 Ms Grieve commenced acupuncture that has brought about a steady improvement. Dr Gliksman reported that the applicant experiences symptomatic aggravation when attempting to hang out washing or making beds.
34. Dr Gliksman diagnosed significant constitutional degenerative change affecting the cervical region of the spine which was likely to be causing signs of bilateral cervical radiculopathy. However he could not exclude the possibility that a traumatic soft tissue injury might be a contributing factor to the development of symptoms. Dr Gliksman stated that without an MRI scan, it was premature to attribute the cause of the applicant’s condition either to the fall or the car park incident. Consequently, Ms Grieve had an MRI scan on 18 September 2002. The conclusion of Dr Parker, of Specialist Magnetic Resonance Imaging, dated 23 September 2002 was as follows (Exhibit R3):
There are changes of cervical spondylosis as described with some evidence of spondylosis in the upper thoracic spine. There is no soft tissue herniation detected but some neural foraminal narrowing due to uncovertebral osteopyhtes is present.
In a report dated 16 October 2002 (Exhibit R2) Dr Gliksman considered that the MRI showed no evidence of a material, acute traumatic contribution to the applicant’s spondylosis and foraminal narrowing, a constitutional condition. In his opinion “While it is possible that the two incidents described by Ms Grieve as occurring on 19 October 2001 and 30 September 2001 may have aggravated temporarily the condition, it is not the cause of that underlying condition nor of her continuing symptomatology.”
35. Mr Edwards asked Dr Gliksman whether Ms Grieve, at 40, was rather young to exhibit symptoms from degenerative change to her cervical spine. Although Dr Gliksman agreed, he thought that the MRI showed the extent of the degeneration was not restricted to the bony spine but extended to the discs. Dr Gliksman considered such widespread rather than focussed change, reflected degeneration not a trauma. In his opinion there was no evidence that the process of degenerative change had been permanently altered. He thought the applicant’s symptoms would have developed regardless of any trauma. Symptoms may emerge from very minor activities, such as showering and hair grooming. In re-examination Dr Gliksman stated that if a patient said her symtpoms were temporary and she had become pain free, it would influence his opinion and suggest to him that any temporary aggravation had ceased.
applicable legisation
36. The respondent is liable to pay compensation for a work related injury under s.14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) which provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …
The following definitions found in s.4 of the Act are relevant:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; …
37. Section 6 of the Act extends the circumstances in which an injury will be regarded as having been sustained in the course of employment. Subpar 6(1)(b)(ii) applies to journeys between the employee’s residence and the place of work.
consideration and findings
38. Mr Edwards submitted that the evidence established that, as a result of the incident in the car park at work on 19 October 2001, the applicant suffered a permanent aggravation of her underlying cervical spondylitic disease. Mr Edwards noted that the respondent did not contest that the applicant suffered an injury from the incident, and drew attention to both the respondent’s failure to call Mr Hayter and to Mr Grieve’s corroborative evidence. The applicant’s volatile emotional state immediately following the incident would explain her confusion about the sequence of events that occurred when she gave a history to Dr Welbourne on 15 November 2001 that her neck had been trouble free for a while. She should not be seen as dishonest. Mr Edwards emphasised, however, that Ms Grieve did not concede that her neck ever became better or trouble free for more than half an hour while she was on annual leave in Melbourne. It was submitted that Dr Spittaler’s response to the respondent’s questions regarding an alleged pain free period was unreliable. The respondent did not put a specific time frame to him and, as such, Dr Spittaler was unable to give a proper response to that question.
39. In Mr Edwards’ submission, the evidence of Dr Spittaler should be preferred to Dr Gliksman’s because Dr Spittaler was the treating specialist. Mr Edwards submitted that the Tribunal should accept Dr Spittaler’s opinion that an aggravation of the discs will not necessarily show up on an MRI scan. He submitted that if the effects of the aggravation were found not to be permanent, the applicant is entitled to compensation during the time during which the aggravation persisted.
40. For the respondent it was submitted that the detailed, contemporaneous clinical notes of Dr Welbourne are crucial to the review by the Tribunal. Ms Henderson noted that there was a significant delay between the time of the incident on 19 October 2001 and its first reference in Dr Welbourne’s notes on 12 November 2001, and then the mention relates only to the stress it was causing her in the office. However Dr Welbourne did record the attendance on 16 October 2001 concerning the applicant’s fall a fortnight earlier at her sister’s as causing a significant restriction of movement of the neck and required the prescription of Vioxx in addition to analgesics. No reliance, therefore, ought be placed on the opinions of Dr Spittaler and Dr Kleinman because they did not obtain accurate histories of the applicant’s symptoms following these two injuries. Ms Henderson submitted that there was no confusion on Ms Grieve’s part in relaying to Dr Welbourne that she hurt her neck dancing while on annual leave. Ms Henderson referred to the cross-examination where Ms Grieve gave a series of explanations as to what she meant by saying she was “better” while in Melbourne, none of which in her submission was convincing. In addition Ms Henderson referred the Tribunal to a number inconsistencies in the applicant’s evidence regarding the time and number of her conversations with Mr Hayter about the accident. Despite her having emotional difficulties at the time, it was noted that on 31 October 2001 the applicant was able to refer to her symptoms of foot drop while consulting Dr Welbourne about a marked tremor she had suffered.
41. Finally, Ms Henderson submitted that the history reported by Dr Welbourne is consistent with the evidence of Dr Gliksman. Dr Gliksman’s opinion is that a patient with constitutional degenerative changes will eventually report symptoms from minimal activities and that these are merely temporary aggravations. Ms Henderson conceded that a low impact accident can cause a serious injury but stated that there needs to be a contemporaneous report of those symptoms and that this is not present in the medical records of Dr Welbourne. It was the respondent’s position that there was not even a temporary aggravation because Ms Grieve had made a recovery in Melbourne before experiencing further symptoms while out dancing on her return. Thus it was the respondent’s position that the Tribunal should affirm the decision under review.
42. There is consensus among the specialists that Ms Grieve suffers from constitutional degenerative changes of cervical spondylosis. The Tribunal accepts the opinion of Dr Kleinman that such change has been long standing. The existence of the degenerative change to the applicant’s cervical spine is not attributable to her work at Australia Post. The Tribunal is satisfied that the degenerative change affecting her cervical spine is an ‘ailment’ as defined in s.4 of the Act, being a “ … disorder, defect or morbid condition …”. Aggravation of an ailment comes within the definition of ‘disease’ where the aggravation was contributed to in a material degree by the employment. The Federal Court has held that compensation for incapacity is payable under s.14 of the Act where the incapacity results from “an underlying condition [that] is aggravated, in the sense of made worse” but not where “the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse …” (Australian Postal Corporation v Bessey [2001] FCA 266 Gyles J at [6]).
43. The respondent has submitted that the opinions of Dr Kleinman and Dr Spittaler are not sound because they are based on a history that is not supported by the contemporaneous clinical notes of the applicant’s G.P, Dr Welbourne. In the case of Dr Spittaler, his report refers to Ms Grieve’s symptoms markedly increasing following the incident in the car park on 19 October 2001. Dr Kleinman reported that Ms Grieve’s neck pain subsequent to that incident was worse than the pain she experienced about a fortnight after the fall at her sister’s, that prompted her to consult Dr Welbourne on 16 October 2001. On that occasion Dr Welbourne assessed a substantial restriction of movement in the neck and led him to prescribe an anti-inflammatory drug.
44. After observing Ms Grieve give her evidence and answer questions in cross-examination the Tribunal is satisfied that she is not a reliable historian. She changed her account of the dates and content of her discussions with Mr Hayter. She gave inconsistent answers as to whether her neck was better while she was holidaying in Melbourne. She had to correct her evidence that she was taking Panadeine Forte while on her annual leave, admitting in cross-examination that it was first prescribed after her holiday. The Tribunal, therefore, rejects the submission that Ms Grieve gave Dr Welbourne an inaccurate sequence of events because of her emotional state at that time. The Tribunal also rejects the submission that she did not refer to her neck condition during consultations because she was more concerned about her emotions. The thorough clinical notes of Dr Welbourne are to be preferred to the applicant’s evidence and the history she has provided to Dr Kleinman and Dr Spittaler. In this regard the Tribunal is mindful that there was no mention in Dr Welbourne’s notes of pain radiating into Ms Grieve’s arms and the Tribunal finds on balance that such pain was not the result of the incident in the car park.
45. The Tribunal rejects the applicant’s evidence that the incident caused a major or substantial increase in her symptoms of pain and stiffness in the neck. In addition, the Tribunal rejects her evidence that her neck symptoms improved for only an hour or so while she was on holidays in Melbourne. The Tribunal finds that on 19 October 2001 there was a minor accident involving Ms Grieve’s car and Mr Hayter’s car as they were about to enter the car park at work. However, the Tribunal is satisfied on balance that any resulting neck symptoms, such as required Mr Grieve to apply an ointment immediately after the shift on 19 October 2001, had resolved by 24 October 2001. Dr Welbourne’s note of the consultation on 24 October 2001, her first since the car park incident, does not refer to any neck pain at all, or for that matter to any pain radiating into the arms. Indeed his note on 31 October 2001 was that apart from a tremor and an episode of foot drop, the applicant was “otherwise fine”. This finding is further supported by Dr Welbourne’s note of the consultation on 15 November 2001 that the applicant’s neck had been “trouble free for a while” until she developed pain when dancing on the night of 10 November 2001. To similar effect is Dr Spittaler’s oral evidence that he would suspect another injury, if within weeks of the car park incident the applicant no longer had symptoms but later had a recurrence of pain.
46. On balance the Tribunal is satisfied that the dancing brought on symptoms after the applicant’s neck had been trouble free. Accordingly, the Tribunal finds that the effects of the incident on 19 October 2001 in aggravating symptoms due to the underlying condition were temporary and had ceased by 24 October 2001. There was no permanent effect on her underlying condition. The Tribunal prefers the opinion of Dr Gliksman that the incident of 19 October 2001 is not the cause of the applicant’s continuing symptomatology. The Tribunal accepts his view, expressed in cross-examination, that there was no evidence, by way of MRI scan or otherwise, of the degenerative process having been permanently changed by the incident.
47. The Tribunal therefore finds the respondent is not liable to pay compensation in accordance with the Act in respect of an injury to the applicant’s neck. The decision under review is affirmed. No costs may be awarded under s. 67 of the Act in this matter.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:
Signed: .......................................................................................
A. Krilis, AssociateDate of Hearing 10-11 June 2003
Date of Decision 11 August 2003
Counsel for the applicant Mr A EdwardsCounsel for the respondent Ms R Henderson
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