Hedges and Australian Postal Corporation

[2006] AATA 1027

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1027

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos   

N2005/176

N2006/68

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL HEDGES

Applicant

And AUSTRALIAN POSTAL CORPORATION  

Respondent

DECISION

Tribunal Professor T Sourdin, Member
Dr M Thorpe, Member

Date30 November 2006  

PlaceSydney

Decision

The determination of 29 November 2005 and the reviewable decision of 9 December 2005 in Matter No N2006/68 are set aside, and the following determination is substituted: The Respondent is liable to pay compensation to the Applicant pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) an amount of $14,135.12 in respect of a 10% whole person permanent impairment of the cervical spine resulting from the injury. The Respondent is liable to pay compensation to the Applicant pursuant to section 27 of the SRC Act 1988, an additional amount in respect of non-economic loss, and the matter is remitted to the Respondent for determination of that amount according to law. The Respondent is to pay the Applicant’s costs of the proceedings relating to Matter No N2006/68, as agreed or taxed.

..............................................

Professor T Sourdin, Member
  Dr M Thorpe, Member   

CATCHWORDS

COMPENSATION – compensation for permanent impairment of cervical spine – degeneration of cervical spine – symptoms caused by work accident – underlying cervical canal stenosis – nexus between work injury and pre existing condition – decision under review incorrect 

Safety, Rehabilitation and Compensation Act 1988, sections 16, 19, 24, 27

Comcare v Amorebieta (1996) 66 FCR 83

Williams v Australian Postal Corporation [2006] AATA 695 (11 August 2006)

Martin v Australian Postal Corporation [1999] FCA 655 (14 May 1999)

Salisbury v Australian Iron and Steel (1943) 44 SR (NSW) 157

Darling Island Stevedoring and Lighterage Co Limited v Hankinson (1967) 117 CLR 19

REASONS FOR DECISION

30 November 2006   Professor T Sourdin, Member
Dr M Thorpe, Member        

1.     Mr Hedges is a 45 year old man who began working with Australia Post in early 2001 as a technical officer. On 30 June 2004, he stumbled on a step at work and fell forward some distance striking his head on a large stainless steel sink. He was unconscious for a short time and his forehead left a large impression on the stainless steel sink.  Following the fall, he experienced bruising and lacerations to his forehead and lost some movement in his arms and legs. He was admitted to Royal North Shore Hospital (‘RNSH’) under the care of Professor Michael Ryan for a period of two days.

2.     During his period of admission to RNSH, an MRI scan showed narrowing of the spinal canal due to osteophyte formation and a disc protrusion at C4/5 with osteophytes at C5/6 and C6/7. Essentially, Mr Ryan had multiple level degenerative changes. Prior to Mr Ryan’s work accident on 30 June 2004, he had some symptoms of a painful neck and shoulder and possibly some neurological symptoms which arose following a self drive holiday in Queensland in April 2004. These earlier symptoms led to a CT scan being undertaken in April 2004 which showed degenerative changes however no further action was taken as Mr Hedges symptoms had subsided by the end of April 2004.

3.     All evidence given to the Tribunal indicated that Mr Hedges had degenerative central canal stenosis in his cervical spine. Following the accident at work on 30 June 2004, he suffered from weakness in his arms and legs and pain in his neck. He also complained of numbness, pins and needles and a burning sensation between his shoulder blades. These symptoms did not improve over time, although they may have lessened on some occasions. After consulting Dr Farey, an orthopaedic surgeon in August 2004, he was advised that he needed a laminectomy and spinal fusion and that failure to undergo spinal surgery could lead to a worsening of his symptoms and eventual paralysis. He approached Australia Post about the surgery and they made a determination that they had no liability in respect of his cervical spine condition.

4.     In March 2005 Dr Farey performed a laminectomy, stabilisation and fusion on Mr Hedges cervical spine. As a result of that surgery, Mr Hedges has lost some movement in his spine which is agreed to be an impairment of 10% using the COMCARE Guide to the Assessment of the Degree of Permanent Impairment (Table 9.6) (‘The Comcare Guide’). All medical experts agreed that the surgery was necessary and that if surgery was not undertaken there was a risk of continuing loss of movement and paralysis.

5.     Mr Hedges has continued to be employed by Australia Post and took sick leave during and following his surgery. He wants the Tribunal to set aside Australia Post’s decision that it has no liability to pay him compensation for his cervical spine condition.

issues

6.     What is the cause of Mr Hedges’ impairment? Clearly his impairment is directly related to his surgery but would that surgery have been required at that time as a result of the degenerative condition suffered by Mr Hedges, or was the surgery required because the work accident materially contributed to, or aggravated his degenerative back condition? These questions are central because if his symptoms stem from degeneration of his cervical spine, or an injury in April 2004, and not the work injury in June 2004, then the need for surgery and resulting restriction of movement is not caused by his employment.  If, however, the work injury aggravated or accelerated his condition then the impairment resulted from his employment.

what was the cause of the symptoms in mr Hedges that led to his surgery in March 2005?

7.     Mr Hedges indicated that in the two months prior to his work injury on 30 June 2004 he had no symptoms of any cervical spine injury and was unrestricted in his neck movements. He indicated that in April 2004 he had taken his 11 year old daughter boogie boarding at Surfers Paradise while on holidays and had while standing in waist deep water been knocked over by a wave which forced him to hit the sand floor with his shoulder. He recovered, was knocked over by another wave but continued with his holiday activities after taking some Panadol for a headache. He drove back from Queensland to Sydney via Toowomba and on his return consulted a General Practitioner (‘GP’) at his local practice about shoulder and neck pain. The GP he consulted was not his usual GP, and she recommended that he have a CT scan of his cervical spine. A CT scan was performed on 27 April 2004 and showed degenerative changes to his cervical pine. He saw his usual GP on 30 April 2004 but took no further action to seek further treatment as his symptoms had subsided. In evidence Mr Hedges indicated that for the next two months, until his work accident, he returned to normal duties and continued with his hobby of gem stone preparation with no restrictions.

8.     On 30 June 2004 Mr Hedges had a bad fall at work and was hospitalised. After missing his footing on some stairs he was propelled forward approximately three metres and hit his head on a stainless steel sink with some force. The Tribunal was shown a photograph of the sink which had an indentation that had been left when Mr Hedges forehead hit the sink. Following the incident he awoke on the floor and initially had no feeling in his arms and legs. He then experienced tingling and was eventually able to move to the sick bay at his work. From there he was driven to RNSH and suffered from tingling in his arms and legs as well as soreness in his head, arms and legs. He had lacerations and bruising on his forehead and appears to have struck his head with considerable force. Professor Michael Ryan at RNSH ordered that X-Rays and an MRI be undertaken. His findings were that there was ‘severe canal stenosis’ as well as broad disc based protrusions with other findings suggestive of cord compression at C4/5, C5/6 and C6/7. There was also evidence of muscle strain at the cervicothoracic junction (A3). Professor Ryan indicated that if Mr Hedges sustained a further injury that he could sustain ‘significant spinal cord damage.’

9.     Following his discharge from hospital, Mr Hedges resumed work but was guarded in his movements. His evidence, which was accepted by the Tribunal, was that he continued to suffer pain that sometimes lessened but that ‘it never went away’ and that he ‘was slow at everything.’ Mr Hedges said that other work colleagues supported him and that his neck movements were restricted. He appears to have developed symptoms of foot numbness following the accident and by October 2004 this was ‘getting worse.’ He indicated that by December 2004 he was ‘tripping’, that is, he stated he was ‘dropping my foot’ and that by January 2005 his fingers and hands developed numbness. Throughout this period he continued to consult medical practitioners and was scheduled for surgery in March 2005. Surgery took place and his symptoms abated although he has been left with some agreed impairment.

10.   Australia Post has indicated that in its view the problems suffered by Mr Hedges were the result of an underlying condition. They say that it is possible to separate the accident on 30 June 2004 and its impact from the underlying condition and say that the surgery was required because of the underlying condition. In essence, Australia Post say that the accident on 30 June 2004 brought this underlying condition to the attention of medical practitioners.

Medical Evidence

11.   Following the April incident in the surf and the drive from Toowoomba to Sydney, Mr Hedges saw at different times Dr Wolska, Dr Ubel and Dr Morton at the Willoughby Medical Practice, initially one week after the incident. He complained of paraesthesias in the upper limbs, fingers and numbness in both feet. He had a CT scan of the neck. He was advised to go the RNSH for a neurological opinion and MRI. He did not attend the hospital as he was concerned about dental work and his teeth implants. Subsequently he was seen by his usual GP, Dr Morton on 30 April 2004, who reassured him and indicated that no further investigations were required. Mr Hedges did not seek further medical advice regarding this incident, and no medical consultation or assessment was undertaken in the period 30 April through 30 June 2004.        

12.   In addition to the reports and notes from the General Practice, the Tribunal had the benefit of medical evidence from three specialists (one of whom was the treating doctor), a summary of the radiology, and also reports from two other specialists including the surgeon who performed the surgery.

13.   The reports on the cervical spine X-Ray (27/4/04), cervical spine CT (27/4/04) and cervical spine MRI (1/7/04) are available in Dr Korber's report (21/9/04). Dr Korber's opinion was significant spinal canal stenosis at three levels, being C4/5, C5/6 and C6/7. It is clear that the patient had a significant spinal canal stenosis prior to the injury with moderately large protrusions at C4/5 and C5/6 on the CT scan. A disc protrusion is not appreciated at C6/7 on the CT scan. There is however an accompanying postereocentral protrusion at the C6/7 level on the MRI that was undertaken following the June work injury and it was noted that  - ‘Within the limits of comparing dissimilar investigations it is possible that there has been an alteration at C6/7 since the CT examination.’

14.   This information was available to all the specialists but because of the uncertainty comparing different modalities, no real issue was taken with the possibility that the C6/7 protrusion was a direct consequence of the June 2004 incident.

15.   Following his fall at work on 30 June 2004, Professor Michael Ryan at RNSH reported that Mr Hedges was knocked out for an unknown period and when he awoke on the floor was unable to move and had no feeling, initially in the whole of his body. He also noted that sensation and strength largely returned. An MRI was performed and Professor Ryan diagnosed the condition precipitated by Mr Hedges’ fall as myelopathy and initial transient quadriparesis. He advised that decompression of the cervical spine (C4-C6) and stabilisation (C4-7) should take place. Professor Ryan assessed Mr Hedges one month prior to his surgery in March 2005, reporting his hands were still clumsy, he dropped simple items such as washers and that he had a sensation of pressure in the neck. There was a sensation of ‘thick socks’ on both feet which had diminished sensation (indicative of myelopathy). Professor Ryan said that following his review and prior to surgery Mr Hedges was unfit for work because of the possibility that a further injury caused by slipping or falling could render him quadriplegic. Professor Ryan made no reference to any recent deterioration referred to by Dr McGill in his report.

16.   Professor Ryan gave evidence that it was not possible to predict into the future when or if patients with cervical cord stenosis would require surgery. He was very clear that the indications for surgery in this condition were:

• Pain;
• Myelopathy; and
• Disc protrusion.

17.   He did not consider surgery was indicated after the April incident as the symptoms had settled. Professor Ryan said that under normal circumstances and without the accident in June 2004, Mr Hedges may or may not have required surgery, much in his view depended on the vicissitudes of life. He also said that surgery may not be required for 20 years or more. He also noted that surgery was not without risk of in fact damaging the spinal cord and paralysis. He considered the April 2004 incident as minor, not requiring intervention and the June 2004 event as major, resulting in myelopathy and the need for surgery.

18.   Dr Farey, who eventually performed the surgery, examined Mr Hedges on 12 August 2004 at the request of Dr Morton. Dr Farey reported Mr Hedges had a spinal cord injury which was directly related to his fall at work. He had residual spinal cord compression at the C4/5, C5/6 and C6/7 levels. The compression is present both anteriorly and posteriorly and there is evidence of instability at the C4/5 and C5/6 levels (retrolisthesis). Dr Farey stated:

Consequently I would recommend that he undergo C4-7 laminectomy, stabilisation and fusion. The prognosis without surgery was poor.

19.   This surgical procedure was performed by Dr Farey on 4 March 2005 and he returned to work 13 weeks later. Dr Farey assessed Mr Hedges as having a 10% level of impairment of the cervical spine (loss of half normal range of movement) according to the Comcare Guide. He attributed this loss of range of movement as a direct consequence of the cervical fusion performed at surgery.

20.   Professor Sambrook also considered that Mr Hedges had fully recovered from the April incident and was symptom free for the two months preceding the June 2004 work accident. As he was asymptomatic prior to the June 2004 accident he did not see that there was any indication for surgery prior to his work accident, but if there were symptoms and signs he would have referred Mr Hedges to a surgeon. Despite this, he was also of the opinion that there was no way of predicting the need for surgery in the future. Professor Sambrook attempted the difficult task of apportionment of contribution to the impairment. He estimated the contribution from the pre-existing disease to be about 40%, from the April accident to be about 20% and the June accident to be 40%. On questioning, this apportionment related to the pathology in the spine which he then translated to apportionment of impairment according to the Comcare Guide. The difficulty in doing so is two fold. Impairment is to do with range of movement and the impairment is a direct consequence of the treatment (surgery); that is 10%.

21.   Professor Sambrook argued that the underlying presence of the cervical canal stenosis pathology allowed the June accident to trigger further pathology to the cervical spinal cord sufficient to require surgery which resulted in 10% impairment. Professor Sambrook has apportioned contribution to the underlying pathology and extrapolated this into apportionment of impairment. Professor Ryan would not attempt to apportion contribution as it would, in his words, be pure guess work.

22.   Dr McGill took a different view. Basically he considered that irrespective of the June accident Mr Hedges would have come to surgery within one to two years. He had seen Mr Hedges in October 2004 and reported at that time that he thought the exacerbation related to the fall in June 2004 had now ceased and his current symptoms were due to the pre-existing severe multilevel cervical stenosis. In a later report dated 1 April 2006 Dr McGill said:

‘I think the deterioration in his symptoms in the few weeks prior to surgery which he today describes provides further evidence that surgery would have been required regardless of the June 2004 incident.’

23.   Dr McGill's opinion is at variance with Dr Farey and Professor Sambrook, both in terms of contribution of the June incident and the question of the indications or need for surgery in cervical canal stenosis. He is alone in his assessment that the cervical myelopathy, secondary to multilevel canal stenosis; in turn due to degenerative cervical spine disease was 100% responsible for the need for surgery in Mr Hedges regardless of the June incident. This is also separate to the opinion of Dr David Maxwell for the Respondent, dated 12 October 2004, who considered that the fall at work has been a substantial contributing factor to the aggravation of the underlying condition. His opinion that surgery was indicated after the April 2004 incident was also not the opinion of Professor Ryan the treating specialist. Dr McGill did temper his opinion and stated that an MRI would be required. Notably, Professor Ryan in evidence had said that about 30% of the population have a narrowed cervical canal and go through life without encountering problems.

REASONS

24.   There is no doubt from the history of loss of consciousness and transitory quadriparesis, the photos of his forehead and nose and the dent in the sink, that Mr Hedges suffered a significant trauma in June 2004. Dr Farey, the operative surgeon, considered the mechanism of injury to be a frank spinal cord injury as a result of a work related injury.

25.   Counsel for Mr Hedges argued that he was asymptomatic for the two month period before the June accident, and that there was no record of any impairment prior to the accident. Any impairment as a consequence of the fall in the surf and his subsequent drive to Sydney was temporary and that Dr Morton had not seen the need for further action to be taken after the end of April. Counsel stated that if even 5% impairment had been attributed to the neck condition prior to the June accident, this would have to be taken into account when determining the contribution to permanent impairment.

26.   Without the June 2004 accident, on the evidence of Professor Ryan and Professor Sambrook, it was not possible to say if Mr Hedges would have ever required surgery or if he had required surgery when that could have taken place.  Following the June accident, the treating specialist, Dr Farey, said the long term prognosis without surgery was for a progressive deterioration of his condition. Dr Maxwell for the respondent was of the view that the June incident was a substantial contributing factor. Dr McGill was alone in his opinion that surgery was indicated after the April 2004 incident or at worst in one to two years.

27.   Professor Sambrook attempted to apportion contribution to causation. Dr McGill said it was all constitutional which again placed him alone. Professor Ryan said it was not possible medically to apportion contribution. This again highlighted the difficulties with the Comcare Guide. As this type of surgery will inevitably result in restriction of neck movement equating to 10% impairment, the argument then becomes an argument to do with the requirements for surgery.

28.   The Tribunal has found that Mr Hedges was asymptomatic from his cervical canal stenosis prior to the time of his fall at work in June 2004. Also the Tribunal is satisfied that either his work accident materially contributed to, or aggravated the cervical canal stenosis and that therefore the respondent is liable for the total percentage of the impairment found to exist. This situation is similar in some respects to that referred to by Jenkinson J in Comcare V Amorebieta (1996) 66 FCR 83, 97 where is was stated:

‘The aggravation resulted in whatever restriction of thoraco-lumbar spine movement, whether caused by pain or by physical incapacity, should be assessed under Table 9.6 at the time when the determination required by s24(5) is made. There was no evidence of restriction of that movement immediately before the January 1992 incident. Such evidence as there was of restriction before that incident related to short periods of time following incidents of onset of back pain. A compensable effect of the aggravation upon the pre-existing or underlying condition is accordingly the restriction of movement found at a time of determination after January 1992.’

29.   The Respondent suggested that any contribution resulting from the cervical canal stenosis prior to the June 2004 incident must be taken into account when assessing permanent impairment. In Williams v Australian Postal Corporation [2006] AATA 695 (11 August 2006) the Tribunal distinguished a situation similar to that in Amorebieta where 60% of the impairment was attributed to the loss of range of movement of the lumbar spine due to the underlying chronic degenerative disc disease and facet joint degenerative change and one third was due to the applicants work. Hr Hedges circumstances can be distinguished from those of Williams in that he was symptom free with a normal range of movement of the cervical spine with no documented impairment prior to the June 2004 incident. Any exacerbation including pain and restriction of movement following the April 2004 incident had been temporary and resolved - notably Dr Morton saw no need for any further investigations or assessment. In Williams the Rheumatologist was able to apportion 60% of the spinal symptoms and signs (impairment) to the underlying degenerative spinal condition and less than half due to the injury.

30.   We find, as was found by the Tribunal in Martin v Australian Postal Corporation [1999] FCA 655 (14 May 1999) that it is impossible to say when exactly the Applicant's symptoms would have manifested themselves had the work accident not occurred. That is, the Tribunal finds on the basis of the evidence that it is impossible to say when Mr Hedges’ symptoms would have manifested themselves had he not fallen down the stairs and struck his head. Burchett J stated in Martin:

‘In my opinion, the Tribunal's findings bring the case squarely within the principle stated by Jordan CJ and Barwick CJ. As there were no symptoms prior to the work-related injuries; those injuries aggravated or accelerated the condition so as to produce symptoms; it cannot be known when the condition itself might have produced similar symptoms in the absence of any such aggravation or acceleration; and the contribution of the aggravation or acceleration has been held…to be still continuing, it was open to the Tribunal to find that the aggravation or acceleration which constituted the injury within the meaning of s24 had resulted in the impairment, which was likely to continue indefinitely and therefore fell within the statutory notion of permanence.’

31.   We also consider Mr Hedges fits within the principle as stated by Jordan CJ in Salisbury v Australian Iron and Steel (1943) 44 SR (NSW) 157 and Barwick CJ in Darling Island Stevedoring and Lighterage Co Limited v Hankinson (1967) 117 CLR 19, namely, that as there were no symptoms in the two month period prior to the work related injury, it would seem that the injury aggravated or accelerated the condition to produce symptoms, and it cannot be shown the condition itself might have produced similar symptoms in the absence of the acceleration. Although Mr Hedges’ underlying condition was a predisposing cause, this does not deny the causal connection between the work accident and the disability. The aggravation or acceleration is continuing as surgery was required to the cervical spine. Consequent upon this there is a 10% permanent impairment.

32.   For these reasons, the Tribunal makes orders in the following terms:

The determination of 29 November 2005 and the reviewable decision of 9 December 2005 in Matter No N2006/68 are set aside, and the following determination is substituted:

·The Respondent is liable to pay compensation to the Applicant pursuant to section 24 of the SRC Act, an amount of $14,135.12 in respect of a 10% whole person permanent impairment of the cervical spine resulting from the injury.

·The Respondent is liable to pay compensation to the Applicant pursuant to section 27 of the SRC Act, an additional amount in respect of non-economic loss, and the matter is remitted to the Respondent for determination of that amount according to law.

·The Respondent is to pay the Applicant’s costs of the proceedings relating to Matter No N2006/68, as agreed or taxed.

WHAT THE PARTIES HAVE AGREED

33.   The parties agreed upon certain matters during the hearing and the Tribunal makes orders in these terms:

The determination of 12 November 2004 and the reviewable decision of 11 January 2005 in Matter No N2005/176 are set aside, and in lieu thereof the following determination is substituted:

·The Respondent is liable to pay compensation to the Applicant pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’), in respect of the cost of reasonable medical treatment required by the Applicant as a result of the compensable injury of facial haematoma and neck strain sustained on 30 June 2004 (‘the injury’), including the posterior C/4 to C/7 laminectomy, stabilisation and fusion carried out by Dr Farey on 4 March 2005 (‘the operation’).

·The Respondent is liable to pay compensation to the Applicant pursuant to section 19 of the SRC Act as a result of the injury, in respect of incapacity for work, including incapacity for work arising from the operation.

·The Respondent is to pay the Applicant’s costs of the proceedings relating to Matter No N2005/176, as agreed or taxed.

I certify that the preceding 33 paragraphs are a true copy of the reasons for the decision herein of Professor T Sourdin, Member and Dr M Thorpe, Member

Signed:         ………[sgd]………
  Associate

Dates of Hearing  16 & 17 November 2006          
Date of Decision  30 November 2006
Counsel for the Applicant        Mr L Gray
Solicitor for the Applicant         Mr T Mannah
Counsel for the Respondent    Mr N Polin
Solicitor for the Respondent    Mr G Jones