Hopper and Comcare - [2001] AATA 53

DECISION AND REASONS FOR DECISION [2001] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/88

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALVIN HOPPER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member

Date31 January 2001
PlaceCanberra

Decision      The tribunal sets aside the decision under review and in substitution therefor decides that the applicant suffers a compensable aggravation to his cervical spondylosis causing right-sided neck, shoulder and arm pain.
  .....................(Sgd).....................
  Pamela Burton
  Senior Member
CATCHWORDS
COMPENSATION – aggravation injury – pre-existing degenerative condition – aggravated by non-compensable injury – whether use of computer in employment contributed to further aggravation
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
CASES
Comcare v Fyfe [1999] FCA 1368
Commonwealth v Beattie (1981) 35 ALR 369
Fyfe v Comcare [2000] AATA 769

REASONS FOR DECISION

31 January 2001 Pamela Burton, Senior Member Dr Michael Miller, AO, Member

This is an application by Mr Alvin Hopper (the "applicant") for review of a decision made by Comcare (the "respondent"), on 8 March 2000. That decision affirmed a decision of the respondent which disallowed the applicant's claims for neck sprain and sprain of his shoulder and upper arm, which the applicant alleges are aggravations of a previous non-compensable injury. The respondent found that the injuries alleged by the applicant were not work-related.
The hearing was held over two days on 18 and 19 December 2000. Mr Graeme Lunney represented the applicant and Ms Lorraine Gabriel represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and a number of medical reports and clinical notes were admitted into evidence. The applicant gave evidence in person, and telephone evidence was given by Dr David Batagol, the applicant's general practitioner, Dr Garth Eaton, occupational physician, Ms Jacqui Barker, physiotherapist, Mr John Clifford, the applicant's work supervisor and Dr J M Matheson, neurosurgeon.
The issue
The issue is whether the applicant's conditions of work have aggravated a pre-existing degenerative disease of his cervical and upper thoracic spine, which had previously been aggravated in May 1988 and 19 September 1999 by two motor vehicle accidents. The 1988 motor vehicle accident occurred in the course of the applicant's employment (T5, p.11), but was the subject of a common law award of damages and is no longer compensable. The 1999 accident was not work-related and is not compensable. Both parties agree that the applicant is suffering from a degenerative condition of the spine. The degenerative disease was asymptomatic prior to the 1988 accident.
The applicant contends that the two motor vehicle accidents aggravated his pre-existing underlying degenerative condition. In relation to the 1988 motor vehicle accident, he contends that the aggravation settled following treatment. The respondent accepts this. In relation to the second accident, the applicant acknowledges that it aggravated his condition and contends that his employment further contributed to his degenerative condition. He contends that he suffers an overuse injury superimposed on and further aggravating his degenerative condition, amounting to a compensable injury.
The respondent contends that the applicant's present situation is the result of the natural progression of a degenerative disease made symptomatic and aggravated by the two motor vehicle accidents. The respondent contends that the disease causes the applicant's difficulties at work, but that his work has not aggravated his condition. The respondent further contends that the pain symptoms reported by the applicant are contributed to by family stresses unrelated to his work environment.
The issue for the tribunal is whether the applicant's computer work has caused or contributed to his continuing symptoms or whether his current symptoms are the manifestation of the natural progression of his underlying degenerative condition as aggravated by the two motor vehicle accidents, and in particular the 1999 accident.
The legislation
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the "Act"), provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 4 of the Act defines "injury", among other things, as including an "aggravation", as follows:
an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not than 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.

"Aggravation" is defined by clause 4 of the Act as including "acceleration or recurrence". Section 16 provides for liability for the injury with respect to reasonable medical expenses.
The evidence

The applicant works for the Australian Capital Territory Parliamentary Counsel's Office as Principal Assistant Parliamentary Counsel (Exhibit H, p.1). In evidence the applicant described his health as "good" prior to the 1988 motor vehicle accident. The effect of this accident was to make symptomatic a previously asymptomatic degenerative disease of the neck or cervical spine (Exhibit B, report of Dr David Batagol 11 November 1999, p.1; Exhibit 8, report of Dr R G Rushworth 9 March 1998, p.3). Degenerative change in the applicant's spinal region has been noted since the time of his accident in 1988 (Exhibit 10, bundle of x-ray reports).
After the 1988 accident the applicant underwent extensive physiotherapy treatment. The applicant stated in evidence that his condition improved and symptoms subsided by 1994. From 1997, the applicant continued to get some stiffness but the symptoms had "abated" to a "large extent". In the months before the 1999 accident, the applicant stated that his back was "good", although there has always been some "residual stiffness". He was experiencing some discomfort but he was not receiving physiotherapy at this time. In his statement of 16 November 1999 (T5, p.11), the applicant said that by "1998 the condition had stabilised and, whilst I still had symptoms of stiffness etc (mainly on the left side of the neck and upper back), these were not particularly severe."
The day after the 1999 accident, the applicant visited his general practitioner, Dr Batagol (Exhibit B, report of 11 November 2000, p.1). Dr Batagol prescribed some anti-inflammatory medication and certified the applicant unfit for work for a week. The applicant resumed physiotherapy treatment, provided by Ms Maureen Bailey (Exhibit A). The applicant returned to work on 27 September 1999 (T5, p.11) but later that day saw Dr Batagol again. The applicant stated in evidence he was feeling "very unwell" at this time and Dr Batagol certified the applicant fit for work on the basis of reduced hours. The applicant stated that he was working about five to six hours each day, with increasing "stiffness and soreness" in his "right shoulder", becoming "significant by about Tuesday 6th October" (T5, p.11). The applicant states he experienced muscular spasms in his right shoulder blade, at times "intense pain" and soreness and stiffness extending into his right arm and "paraesthesia similar to what I had experienced in my left arm" (T5, p.11). The applicant further described these symptoms as follows:
I have noticed that this became more pronounced by the use of the computer at work (especially the "mouse" button). I had never previously had trouble with my right shoulder or arm. I am right-handed. The pain has often kept me awake at night and on occasions I have had to use strong pain-killer tablets (eg paracetemol forte) to get to sleep. Waking up tired in the morning has also affected my ability to function adequately at work (my work as a parliamentary drafter is intellectually demanding).
The applicant continued to experience stiffness and discomfort. He received physiotherapy once a week. He had a number of periods off work following the 1999 accident in response to the pain he has experienced in his neck, upper back and right arm. He had numerous visits to Dr Batagol (Exhibit B), Dr Garth Eaton, occupational physician (Exhibit D) and physiotherapists, including Ms Maureen Bailey (Exhibit B). In addition, his work space has been considerably adjusted through consultation with physiotherapists and ergonomics consultants (see reports by Ms Jenny Kerr 13 June and 30 June 2000, Exhibit E, and report by CRS Australia 22 November 2000, Exhibit F). This has included the installation of voice activated software (and training), a new chair and a reduction in the amount and complexity of work expected from the applicant.
The applicant is enrolled part-time to study for a PhD at the University of Canberra. The work requires him to write a thesis. In evidence he said that he was permitted by his employer to work on his thesis during quiet times, and did so at work during January and February 2000. This was verified by Mr Clifford, the applicant's supervisor.
On his return to work after the Easter break 2000, he stated that he experienced an "acute episode" of muscle contraction while at work. The stiffness increased that evening and was followed by "severe back pain" which "felt like electric shocks". The applicant also stated in evidence that he was experiencing stress at work because he was not able to achieve the "tight deadlines" required of him. In response to a workplace assessment made by CRS Australia (Exhibit F, p.2) the applicant tried using his "mouse" in his left hand. He continued to do this occasionally but said in evidence that he dismissed this option as a "long term solution". The applicant stated in evidence that he believed switching to the use of the mouse in his left hand "contributed" to the acute episode described above.
The tribunal heard evidence from Mr John Clifford, the applicant's supervisor at work, who was able to comment on the nature of the applicant's work and his office's response to the applicant's situation. Mr Clifford also provided a statement to the tribunal (Exhibit H). The applicant's job involves preparing draft Bills for enacting by the ACT Legislative Assembly and drafting subordinate laws for making by the Executive. Mr Clifford described the pressures of the job, including "the vagaries of politics and the pressure of ambitious and changing deadlines" (Exhibit H, p.1). Mr Clifford stated that the process of drafting bills is "almost entirely computer-based and all drafters normally type and edit most of their own work on personal computers."
The applicant is one of the most senior drafters in the office. In evidence the applicant said that computer work comprised 60% to 70% of his daily work. Mr Clifford stated that the applicant would "probably" spend four to five hours a day at his computer, and "could" spend up to six hours a day during busy periods "or as little as half an hour in quiet times (which are increasingly rare)" (Exhibit H, p.1). Mr Clifford also stated that the applicant's work involves "significant use of the mouse and keyboard for navigating to sites or within a document" but that there are "normally good opportunities for regular short breaks from the computer, despite the intensity of the work." In evidence he said that it was "easy to pace yourself" in the job, to stretch and move around. Mr Clifford also said since the applicant's 1999 accident the tasks assigned to him have been the "less urgent" ones. He said that the office had "done a lot" for the applicant.
In relation to the applicant's psychological state, Mr Clifford recalled that the applicant looked "down" at times in May and June of 2000, but was more "buoyant" after that. He could not recall any specific event at work which could account for the applicant feeling "down". However, the applicant's evidence was that the transition to a new computer system in his workplace had contributed to his level of stress, as it was a "bad system which disrupted the office". Mr Clifford confirmed that the transition was a "particularly frustrating one for everyone" (Exhibit H, p.2). It was an "unhappy process" involving many "corrupt documents" and the unavailability of documents. There were a number of "salvage operations" and it seems clear that the process affected the entire office.
The medical evidence
Dr Batagol, the applicant's general practitioner since 1999, provided a number of reports (Exhibit B). In his report of 11 November 1999 Dr Batagol provided a detailed history of the events following the accident of 19 September 1999 including clinical findings and treatment. He expressed the view (p.2) that the applicant's symptoms and disabilities were caused by the 1999 motor vehicle accident, but he acknowledged that the symptoms could be an exacerbation of a pre-existing injury. He opined that the symptoms were probably a combination of muscle spasm and disc disease resulting in nerve root compression, which was causing the parasthesiae in both the applicant's upper limbs.
In his report of 23 March 2000 Dr Batagol opined that it was more likely than not that the latest accident in 1999 had exacerbated the previous 1988 accident, and that this had been further exacerbated by his daily computer duties at work.
In a letter dated 10 May 2000 to Comcare, Dr Batagol reports on the applicant's complaints of neck pain following a full day's activity on the computer. He said:
I am writing to advise that I reviewed… [the applicant] … when he reported a severe flare-up of his neck pain after spending the entire day of the 3rd of May working on the computer, to complete work to a deadline. The pains are consistent with muscle spasm and are clearly related to his computer work, as illustrated by this latest incident.
I believe that you are already aware that his current job involves much computer work, both with keyboard and mouse and that has already led to pain in the neck, shoulders and forearms …
I think it is almost certain that his job has caused a significant aggravation of his neck problems …

In his report of 11 November 1999 Dr Batagol said that the applicant had "developed some right-sided neck pain and stiffness, with associated right arm paraesthesiae." In evidence Dr Batagol said that the fact that the applicant has a new set of symptoms suggested "something new has happened". Under cross-examination, he was questioned at length about the applicant's personal problems including the breakdown of his marriage. It was put to Dr Batagol that this in itself could have aggravated the applicant's condition, to which Dr Batagol agreed this was a possibility. The tribunal asked Dr Batagol whether the "something new" that had happened could have been the 1999 accident. Dr Batagol agreed this was possible but that it could also have been the work-related problems.
Dr Kitchin, orthopaedic surgeon, provided a report dated 9 May 2000 (Exhibit 1). Dr Kitchin notes a well-documented degenerative disease of the mid cervical spine dating back to the 1980s. He reports that the applicant has had increased shoulder pain and some arm pain since the 1999 accident and that he has some difficulty with a full workload in terms of computer operation.
According to Dr Kitchin, the aggravation of the pre-existing degenerative disease has not yet stabilised but there is still time for steady improvement over the next 12 months. Dr Kitchin also believes that it is more likely that the aggravation caused by the 1999 accident is permanent. The applicant, he reported, remains fit to continue his usual work but "on present indications it would seem that he is restricted for a heavy work load and this may affect his full employability" (Exhibit 1, p.3).
Dr Matheson, neurosurgeon, provided two reports of 24 and 26 July 2000 (Exhibit 2). He records that the applicant has fairly widespread symptoms, which extend beyond the history of his known cervical spondylosis and may well have some upper thoracic spondylosis as well. According to Dr Matheson, "all of this is longstanding and constitutional in origin. I doubt that any of the accidents was material in making it any worse. This has just been a slow progression over the years" (Exhibit 2, report of 24 July 2000, p.3).
Dr Matheson believes that the applicant's work "is not causing his problem and is not aggravating it" (Exhibit 2, report of 24 July 2000, p.3) and that the applicant will get pain whether or not he is at work. He states that the applicant's condition is a "pre-existing" one not contributed to by his situation at work. However, he explains that the "two motor vehicle accidents may well have been aggravating factors in his neck condition" (Exhibit 2, report of 24 July 2000, p.3). Dr Matheson reports that although the applicant has "some incapacity for work", it is "not great" and that his work is "suitable for a person with symptomatic cervical spondylosis".
In cross-examination Dr Matheson stated it was hard to see how working with computers could cause neck pain. He said that the use of the arm would have no effect on the neck. He stated in cross-examination if a person's pain continues for a number of months to years, this would have "nothing" to do with computers or sitting in the flexed position. Counsel for the applicant asked Dr Matheson if he thought a person was "lying" if that person said that working at a computer, with his or her head in a flexed position, caused ongoing pain. Dr Matheson said "yes". In response to a question from counsel for the respondent Dr Matheson modified his reply and agreed that a person who attributed working at a computer with the head in a flexed position to ongoing pain lacked "insight" into the cause of these problems. Dr Matheson did not support his assertions with any sound scientific bases and the tribunal is not prepared to give his dogmatic views much weight.
In contrast, Dr Batagol's opinions are logical and plausible in the light of the known pathology in relation to the applicant's neck and they are given weight accordingly. Dr Batagol was prepared to accept a number of hypotheses that were put to him (unlike Dr Matheson) but was confident that the applicant's work conditions had produced an aggravation of his degenerative condition. The tribunal also notes the number of occasions noted in the reports on which Dr Batagol has seen the applicant in relation to his recent history of pain, including 11 October 1999, 18 October 1999, 29 October 1999, 4 November 1999 and 5 May 2000. These dates all follow 6 October 1999, on which date the applicant recollects his pain at work becoming "significant" (T5, p.11).
Dr Eaton, occupational physician, provided two reports, dated 20 August 2000 and 21 October 2000 (Exhibit D). In his report of 20 August 2000 Dr Eaton stated that the applicant had suffered the effects of a severe whiplash injury to the neck, shoulders and upper back in the 1999 accident. He opined that this had resulted in severe musculoligamentous strain and probable aggravation of the underlying cervical spondylosis. He further noted that these conditions had been aggravated by the applicant's excessive computer use. In his opinion the applicant had suffered an occupational overuse injury which had complicated underlying problems of the whiplash injury and cervical spondylosis. He stated in evidence that the applicant had problems with his neck and shoulders, particularly on the right side. According to Dr Eaton, the right-sided symptoms were predominant. Dr Eaton believed that if the applicant had first noted symptoms on the right side at work, it could be that the right side was "more aggravated" than the left and that this is associated with the computer work.

In evidence Dr Eaton stated that he believed the effects of the 1988 accident had settled symptomatically at least but noted that acceleration of the degenerative process could occur without symptoms. He thought the process was likely to have been further aggravated by the 1999 accident. He said that the injury associated with the applicant's computer work has made the applicant's underlying problems worse, and will continue to do so.
Dr Eaton's description of the mechanism of the applicant's injuries and symptoms is similar to the views expressed by Dr Batagol. In relation to the issue of whether the applicant's psychological stresses might have increased his pain, Dr Eaton thought that the applicant's physical pain was more likely to be the cause of his psychological problems. He said that "most studies" of people with "chronic pain show psychological problems result from injury not the other way around".
Dr Billett, orthopaedic surgeon, provided two reports dated 14 August 2000 and 9 October 2000 (Exhibit C). In the first of these Dr Billett remarks that the applicant had quite marked pre-existing constitutional degenerative changes in his cervical spine which were aggravated by the 1988 accident, during the course of his work thereafter and again as the result of the 1999 accident. He then reports that "Mr Hopper is still experiencing exacerbation of the underlying changes in his neck, during the course of his work" (Exhibit C, report of 14 August 2000, p.7). In response to a question from the respondent as to whether the condition is related to the workplace. Dr Billett answers that "his condition is related to his work as a result of the aggravation that is making the pre-existing changes symptomatic" (Exhibit C, report of 14 August 2000, p.7).
In his report of 9 October 2000 Dr Billet answered specific questions put by the respondent in which he appears to modify his previous views. He attributes the 1999 accident to causing a brief aggravation of what was present before then. He concludes that the pain the applicant feels when he is using the computer at work emanates from his underlying degenerative changes.
The tribunal accepts the views expressed by Dr Billett in his first report as being the most accurate representation of the opinions expressed in his two reports. His first report supports the applicant's contention that his employment has materially contributed to the aggravation of his degenerative neck condition. Even in the report of 9 October 2000 Dr Billett acknowledges a role played by the applicant's employment. He states at p.3 that the applicant's "position at the computer terminals continues to aggravate the underlying changes in his neck". He further stated that "Mr Hopper's incapacity for work is related to the aggravation which occurs at work, superimposed upon the pre-existing degenerative changes which exist in his neck."
The respondent's counsel submitted that the applicant's symptomatology was something of a "moveable feast" and that the applicant was "vague" about the nature of any new symptoms which could be distinguished from those he had experienced after the 1988 accident. In cross-examination it was put to the applicant that his current symptoms were "similar" to those from which he had suffered since the 1988 accident. It is noted that the applicant did complain of neck and shoulder pain and stiffness between 25 January 1989 and 15 February 1989 (Exhibit 7). The applicant stated that the difficulties he had with his right arm were "very different" from the symptoms which he first experienced in 1988. He said that the stiffness, soreness and tightness in his back were similar but that the pain in his shoulder region was different.
The respondent also submitted that much of the evidence pointed to the applicant having problems with depression, which was likely to exacerbate his pain symptoms. The applicant appears to have had a history of depression. On 18 July 1990, after the 1988 accident, Dr Colin Andrews, neurologist, reported that the applicant's "present depression is aggravating the level of his symptomatology" (Exhibit 5). Dr Andrews also reported on three occasions, 7 September 1990, 24 February 1995 and 16 July 1997, that use of the computer was causing further problems. On 16 July 1997 he noted that the use of the computer was aggravating the applicant's symptoms. Dr Rushworth, psychiatrist, saw the applicant on 26 February 1998, and reported on 9 March 1998 that depression had "augmented" the "overall picture" and could be responsible for neck pain and associated symptoms (Exhibit 8, p.3). The applicant did discuss his marital problems with Dr Batagol (Exhibit 4, clinical notes of Dr Batagol, entry on 27 September 1999 and Exhibit B, report of 11 November 1999).
Conclusions
The tribunal found the applicant to be a credible witness who was honest in his answers. He was prepared to accept that there were a number of factors which might have contributed to an aggravation of his degenerative condition, including his marital problems. The tribunal accepts that the applicant is prone to depression and that he has had personal problems. The applicant's depression, along with the injury sustained in the 1999 accident, is likely to have contributed to his pain symptoms. That is not to say that the applicant's employment which requires him to position himself at the computer and use a keyboard and mouse, has not also materially contributed to the aggravation of his underlying neck condition and pain symptoms. The weight of the medical evidence supports this finding. There is sufficient evidence of a different symptomatology to that from which the applicant suffered in the past. In particular, he reported right-sided parasthaesiae in the arm and pain and stiffness in the right shoulder.
The respondent cited the cases of Comcare v Fyfe [1999] FCA 1368) and Commonwealth v Beattie (1981) 35 ALR 369 submitting that the applicant's pain suffered in the course of his computer work is not compensable as it falls within the category of a temporary "flare up". The respondent referred the tribunal to the discussion by the tribunal in Fyfe v Comcare [2000] AATA 769. In that decision the tribunal made it clear that an "aggravation" which is only a "temporary aggravation" and one that causes "no ongoing problems or structural change" is rather a "minor flare up" which temporarily increases pain rather than constituting distinct injury (paras. 57-58). The tribunal is satisfied that the right sided neck, arm and shoulder symptoms from which the applicant currently suffers is an aggravation injury under the Act and not merely a non-compensable "minor flare up". There is sufficient material to support the finding that the aggravation is ongoing. In particular, the tribunal takes into account the applicant's evidence, Dr Batagol's evidence, and the reports of Dr Billett (Exhibit C) and of Dr Eaton (Exhibit D). The tribunal is satisfied that the applicant's conditions at work have contributed to the aggravation of his pre-existing degenerative disease in his cervical spine.
Decision
The tribunal sets aside the decision under review and in substitution therefor decides that the applicant suffers a compensable aggravation to his cervical spondylosis causing right-sided neck, shoulder and arm pain.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, Member
Signed:         James Enderbury           .....................................................................................
  Associate
Date/s of Hearing  18 and 19 December 2000
Date of Decision  31 January 2001
Counsel for the Applicant        Graeme Lunney
Solicitor for the Applicant         Higgins Solicitors
Counsel for the Respondent    Lorraine Gabriel
Solicitor for the Respondent    Dibbs Barker Gosling