Imbriano and Comcare
[2009] AATA 919
•27 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 919
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5058
GENERAL ADMINISTRATIVE DIVISION ) Re MARINA IMBRIANO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date27 November 2009
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
Dr J D Campbell
Member
CATCHWORDS
COMPENSATION – constitutional (pre-existing) conditions – injury – a second injury – acceptance of liability – compensation in respect of medical expenses ceased – issue of reasonable treatment – decision under review is affirmed
Safety, Rehabilitation and Compensation Act 1988 – s 16
REASONS FOR DECISION
27 November 2009 Dr J D Campbell, Member 1. Ms Imbriano was born in Italy in 1950. Ms Imbriano completed her school certificate in Canberra, having migrated to Australia in 1957. Ms Imbriano joined the Australian Public Service in 1967 and from 1972 until 2000 worked in the Department of Health and Ageing. Ms Imbriano was retrenched from her position as an IT network manager in 2000 as a consequence of outsourcing that activity. Ms Imbriano moved with her husband after her retirement to live at Batemans Bay.
2. On 22 March 1993 Ms Imbriano was involved in an accident where she fell from her bike that she was riding to work causing her to receive a bump to the head and injury to right arm and right leg. Ms Imbriano was certified unfit to work on that day by her doctor (Dr Roantree), but returned to work on the following day, “with no aches, no pains” – such a situation remaining for the ensuing two to three weeks. Ms Imbriano submitted a claim for compensation on 23 March 1993, with Comcare accepting liability for shock and abrasions to the right side under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
3. Some three weeks later Ms Imbriano, while cleaning her shower at home experienced an acute pain at the back of her right shoulder when she lifted her right arm. Ms Imbriano consulted Dr Roantree who detailed rest (one to two weeks off work) and physiotherapy. Ms Imbriano returned to work much improved and continued to ride her bike to and from work and undertake her keyboard activities with no difficulties.
4. On 9 May 1994, Ms Imbriano lodged a claim for compensation for pain in her right shoulder, which she believed had arisen as a consequence of extensive keyboarding activity over the latter two weeks in April 1994. Ms Imbriano had seen Dr Roantree on 4 May 1994 at which time she had complained of neck pain and paresthesia of the right hand after extensive keying work. Dr Roantree referred Ms Imbriano for physiotherapy, and on review on 15 June 1994 noted that the shoulder pain had resolved, but tenderness remained in the right cervical head of the trapezius.
5. On 14 July 1994 liability was accepted for “Brachialgia of right shoulder joint and cervical strain” sustained on 3 May 1994. On 19 April 1995 such admission of liability was changed to “exacerbation of right acromioclavicular strain”.
6. On 19 August 1996 a Comcare delegate rejected Ms Imbriano’s claim for incapacity payments for the period 9 July 1996 to 26 July 1996 as the delegate was no longer satisfied that the incapacity was related to the accepted condition, namely “exacerbation of right acromioclavicular strain”.
7. On 25 October 1996 a Comcare delegate rejected Ms Imbriano’s claim for various periods of incapacity payment between July 1996 and October 1996, as the incapacity is not related to the accepted condition.
8. On 8 August 1997 a reconsideration decision was issued in which the independent review officer:
·Affirmed the determination of 19 August 1996 that Ms Imbriano was no longer suffering from the effects of the injury of 22 March 1993, namely, shock and abrasion to the right side; and
·Revoked the determination of 25 October 1996. In substitution thereof the review officer determined that Ms Imbriano had “suffered an aggravation of a soft tissue injury to her right shoulder and neck as a result of a high level of keyboarding in her employment in mid 1994 and that this has resulted in regional pain syndrome which has required some incapacity for work.”
9. On 14 April 2008, a delegate determined that Comcare “is not presently liable to pay compensation for medical expenses under section 16 of the Act as at 14 April 2008”, in respect of the “exacerbation of right acromioclavicular strain”. On 30 April 2008, a Comcare delegate concluded that “[T]he Medical Review Certificate provided by Dr Roantree on 4 April 2008 does not provide any further evidence to indicate the relationship between your current condition and the incident sustained in 1994.” The delegate also concluded that she was not satisfied, in the absence of further supporting medical evidence, that the Medical Review Certificate and associated costs were reasonable.
10. On 1 September 2008 a Comcare delegate affirmed the decision of 14 April 2008 which ceased the payment of compensation for medical expenses pursuant to section 16 of the Act. Such was done after consideration of the relevant medical evidence, including the opinion of Dr Brook, a consultant rheumatologist, dated 18 March 2008.
ISSUES
11. The relevant issues in this matter are:
(a) What were Ms Imbriano’s neck and shoulder symptoms at the time of cessation of compensation payments for medical expenses on 14 April 2008 and are such symptoms continuing?
(b) Do such symptoms arise out of or have a causal relationship to either of Ms Imbriano’s compensable injuries?
(c) Is Ms Imbriano entitled to payment of compensation in respect of reasonable medical treatment pursuant to section 16 of the Act after 14 April 2008?
EVIDENCE OF MS IMBRIANO
12. In her oral evidence Ms Imbriano detailed the following:
·That after her initial fall from the bike in March 1993, she was off work for the day of the fall and returned to work the following day with no aches and pains and did her work – circumstances which remained the same for two weeks.
·When cleaning the shower at home some two weeks later, she felt a “huge pain” in her right shoulder (above the scapula), when lifting her right arm. Was off work for two weeks, had physiotherapy during this period prior to returning to work, which at that time she was pain free and riding her bike to and from work.
·That in May 1994, when working extended hours with significant keyboard activity, she experienced acute pain in the right shoulder girdle (posterior aspect) with pain, pins and needles radiating to three or four fingers of her right hand. She was off work for some six to seven weeks and treated with laser acupuncture.
·Since leaving work in 2000, she has undertaken temporary work as a teacher’s aid with disabled children with hours of work varying from a day a week to four hours a day for a time.
·That between 1994 and 2000, her symptoms in the right shoulder region continued, with such symptomatology increasing with keyboarding activity, and being not so intense when on holidays.
·That after moving to Batemans Bay in 2000, she did attempt to find a local doctor, but after he moved on, she elected to return to Dr Roantree in Canberra for her continuing treatment, with her and her husband sharing the driving.
·That currently she is five or six days pain free, but with particular activities (cleaning shower, windows, scrubbing the pots, prolonged driving) the pain is aggravated. Ms Imbriano noted that she was currently having a massage on a fortnightly basis and that this is of much help, as the underlying pain sits there.
·That she gets relief from swimming, regular massages, stretching exercises and takes Panadeine Forte after cleaning the house.
13. In answer to questions during cross-examination:
·Dr Roantree provides her with certificates and prescriptions, as well as checking the movements of her neck and shoulder during the consultation.
·That her swimming activities (hydrotherapy) was undertaken in a heated pool in Canberra or Ulladulla (winter months) or Narooma, all of which involve considerable travel.
·That she takes Pandeine Forte after long drives and massages.
·Confirmed the factual circumstances of the incident in March 1993, with the right shoulder shower event occurring more than two weeks later, namely 19 April 1993.
·That when she saw Dr Roantree on 4 May 1994, she complained of having neck pain for two weeks and some sensory disturbance affecting the fingers of the right hand, following a period of heavy keyboarding activities.
·That the pain has been intermittent since, with referral to Dr McGrath who in November 1997 reported that she was pain free.
·That in December 2005 she did receive some neck facet joint block injections, with relief of right shoulder girdle pain for four to five months (Dr Whittaker March 2007), three to four months (Dr Brook’s second report), settled for 12 months (Dr Roantree’s clinical notes for 24 January 2007) – an issue with which she disagrees.
DIAGNOSTIC IMAGING
14. The following diagnostic imaging examinations are in evidence:
·17 January 1995 – x-ray right shoulder:
Very mild widening of the right acromioclavicular joint suggests minimal injury to the joint capsule … The bones, joints and soft tissues of the right shoulder are otherwise normal.
·8 February 1995 – ultrasound right shoulder:
The long lead of biceps, subscapularis and infra spinatus tendons are intact. There is no subacromial/subdeltoid bursal fluid. No complete or partial tear of the supraspinatus lumbar is seen…
·10 July 1996 – plain x-ray cervical spine:
Degenerative disc disease and ostephytic encroachment of the exit foramina at the C5/6 level warrants correlation with MRI for further evaluation, in view of the suspected radicular symptoms.
·22 July 1996 – MRI cervical spine:
C5/6 cervical spondylosis with disc height reduction, osteophyte formation, and broad based disc bulge. Diminished spinal canal sagittal diameter. Annular tear at C6/7 with mild indentation of the anterior theca.
·10 March 1997 – MR arthrogram: the only abnormality noted on those features which suggest a small capsular tear on account of extravasated contrast beneath the subscapularis tendon.
·5 December 2005 – MRI cervical spine:
Mid and lower cervical spondylosis causing a little cervical stenosis but no cord compromise demonstrated. Potential compromise of the exiting C6 nerve roots bilaterally and the left C7 nerve root. Mildly increased spondylosis since the previous examination of 1996.
·2 April 2007 – MRI lumbar spine: this demonstrates features consistent with multi-level lumbar disc disease together with moderate degenerative changes in the facet joints at L5/S1 level.
MEDICAL EVIDENCE
15. In a report dated 12 May 1995, Dr Reid, a sports physician, concluded that Ms Imbriano suffered from “a right levator scapulae trigger point pain associated with an aggravation of the right acromio-clavicular joint and trapezius pain of the insertion of the trapezius just posterior to the right acromio-clavicular joint.” These have caused a secondary problem with her posture, all of which are secondary to the injury sustained when she fell off her bike in 1993 and associated with the excessive amount of keyboarding that she has done since that time. Dr Reid considered that the injuries had not stabilised, but were improving rapidly. Dr Reid also noted that the exacerbation of her pre-existing condition had not yet ceased, but that he would expect it to return to normal within six to eight weeks.
16. In a report dated 20 June 1996, Dr Stevenson, a consultant physician, concluded that the most accurate diagnosis was regional pain syndrome as a consequence of Ms Imbriano’s presenting with a history of “diffuse pain over the area of the right side of the neck, top of the shoulder and down the arm.” Dr Stevenson noted that Ms Imbriano had suffered an injury to her right shoulder as a consequence of her fall from a bicycle in March 1993, and gave an ongoing history of pain in her right shoulder, arm and neck, which appeared to be related to intensive keyboarding.
17. Dr Stevenson could find no evidence of any underlying tissue injury and did not consider the pathology in the acromio-clavicular joint a sufficient explanation for her symptoms. Dr Stevenson did not consider that there was any underlying or pre-existing condition.
18. I note that Dr Stevenson provided a supplementary report dated 30 July 1996, which noted some issues in the history provided by Ms Imbriano to him. Dr Stevenson also provided the report without knowledge of any of the radiology undertaken in July 1996.
19. In a report dated 2 October 1996, Dr Newcombe, a consultant neurosurgeon, notes a history of Ms Imbriano falling from her bicycle in 1993, which resulted in her experiencing pain in her right shoulder and arm. Further, she experienced neck pain which was provoked by physiotherapy. Further, Dr Newcombe recorded that there had “been pain radiating to the right shoulder from the day of the fall,” with working on a keyboard provoking such pain as well as particular nominated domestic activities.
20. Dr Newcombe considered that as a result of the fall in 1993, Ms Imbriano “suffered aggravation of cervical spondylosis and also intervertebral disc herniation at the C5-6 level.”
21. In a report dated 22 November 1996, Dr Roantree, the treating general practitioner concluded, after reviewing Ms Imbriano’s clinical history, as detailed by him and the radiological investigations undertaken, that the condition affecting the right shoulder was “almost certainly an occupational overuse syndrome, related to keying and her work station posture, rather than the bicycle accident.” Dr Roantree considered “that the effects of the bicycle accident resolved during the twelve months of freedom from symptoms” between April 1993 and May 1994.
22. Dr Roantree recognised that Ms Imbriano had an underlying cervical spondylosis which is aggravated but not caused by work-related injuries. He further considered that the disc disruption and associated neck pain were probably related to the bicycle accident.
23. In a report dated 20 March 1997, Dr Ashman, a consultant orthopaedic surgeon, concluded that Ms Imbriano had suffered some form of soft tissue injury to her right shoulder three years before (that is, when she fell from her bicycle), and that this was temporarily aggravated in April 1994 by her work duties. Dr Ashman was unable to clarify the source of the symptoms.
24. In a further report dated 24 April 1997, Dr Reid concluded that in the light of radiological investigation and specialist opinion his diagnosis for Ms Imbriano’s condition would change to one of “a neck problem associated with the level of C5/C6 with some neural irritation causing the right shoulder pain.”
25. In a report dated 10 June 1997, Dr Fuller, a consultant neurosurgeon, concluded that while Ms Imbriano does have an underlying cervical spondylitic condition, he believed that her symptoms were “more attributable to soft tissue problems in the region of her trapezius muscle rather than specifically originating from her cervical spondylosis, although this may be very difficult to substantiate.” Dr Fuller considered that a review by Dr McGrath or a rheumatologist may be helpful.
26. In a report dated 21 July 1997, Dr McGrath, a consultant occupational, musculosketal physician, concluded that the main source of Ms Imbriano’s problems is the lower part of the neck, with “the pain referral pattern into the right shoulder … consistent with a C6/7 source of pain.” In a further report dated 24 November 1997, Dr McGrath noted that Ms Imbriano was pain free, but not without some limitations.
27. In a report dated 28 March 2007, Dr Whittaker, a consultant rheumatologist, noted Ms Imbriano’s symptoms as:
·Right-sided shoulder girdle pain with spread to the right side of the neck (if bad).
·Right shoulder pain with spread to the lateral upper arm particularly with elevation of the arm (for example, cleaning shower, windows, sink).
·Right-sided low back pain which spread into the buttock, which developed around September 2006.
28. Dr Whittaker summarised his opinion in the following terms:
It was three weeks later [referring to bicycle accident on 22 March 1993] that she first developed posterior right shoulder pain with radiation down the arm. She has had episodic symptoms in the right neck/shoulder girdle and upper arm since with her right upper arm symptoms improving considerably following right C5/6 facet joint injection … performed in late 2005 [28 December].
Her ongoing symptoms are the result of an underlying constitutional disorder which has been evident on radiological investigations as far back as July 1996 and with progressive changes throughout the cervical spine on serial radiological investigations [eg MRI cervical spine December 2005]…
29. Dr Whittaker did not consider that Ms Imbriano’s employment with the Department of Health and Ageing has contributed to the cause, aggravation or acceleration of the underlying condition, with the effects from the fall from her bike in 1993 being nothing more than transient.
30. In a report dated 18 March 2008, Dr Brook, a consultant rheumatologist, having detailed the clinical history and examination of Ms Imbriano, concluded that his diagnosis was one of a localised source of pain, namely, at the attachment of the supraspinatus to the supraclavicular fossa of the scapula. In the alternative, Dr Brook suggests pain referred from the neck causing local tenderness in the upper trapezius, with it being difficult to be sure this is not the case.
31. Dr Brook in noting Dr Whittaker’s report stated that there was no argument that Ms Imbriano has nodal osteoarthritis, which may also involve the acromioclavicular joints. Nevertheless, Dr Brook considers that Ms imbriano’s right upper girdle shoulder pain is not referred from the neck or due to the osteoarthritis, but is a local soft tissue problem, and, as such, remains a compensable condition.
32. In a further report dated 5 February 2009 following further examination, Dr Whittaker concluded:
Ms Imbriano is a 58-year-old lady who has symptomatic cervical spondylosis with a typical pattern of referred pain to the right shoulder girdle, as indicated by the duration and persistence of her symptoms over many years, radiological findings and past response to right C5/6 and C6/7 facet joint injections. Quite clearly, her complaints are not the result of soft tissue injury, localised shoulder girdle pathology or a non-specific regional pain syndrome.
33. In a further report dated 20 April 2009, Dr Brook notes that the relief received from the corticosteroid injections to the facet joints may be a non-specific effect because of the amount of steroid injected. Dr Brook acknowledged that both explanations for Ms Imbriano’s continuing symptomatology are plausible (namely, a soft tissue injury or a facet joint injury). Dr Brook expressed his preference for a soft tissue issue, arguing that Dr Whittaker provided no justification for taking the view that the effects of the fall from the bicycle in March 1993 were transient.
34. In a further report dated 12 October 2009, Dr Whittaker noted that there was no neck/shoulder girdle injury at the time of the fall in March 1993, that the referred pattern of pain is typical in this case and that degenerative cervical spine disease and lumbar spine disease are pathologies which invariably co-exist. Dr Whitakker confirmed his written opinions in his oral evidence.
35. In oral evidence Dr Brook stated:
·That he had accepted at face value the decision in 1996 that there was nominated a compensable injury and as such considered the symptoms could be attributed to that injury.
·That in the circumstances that Ms Imbriano received relief from the facet joint injections (three to four months in his report, four to five months in Dr Whitakker’s and 12 months noted in Dr Roantree’s clinical records) would be in favour of the diagnosis that it is due to cervical spondylosis.
·That he not unhappy with the explanation that her pain was coming from the facet joint.
·That the onset of symptoms in a person found to have cervical spondylosis can occur without any precipitating incident being able to be recalled.
·That the closer in time the onset of symptoms is to an injury or incident, the easier it is to attribute the onset of symptoms to the incident/injury.
·That a history he took of continuous symptoms since the 1993 accident may be inconsistent with what has been recorded by other doctors (Dr Roantree, Dr Reid).
·That exacerbation of symptoms that arise from neck or shoulder girdle pathology will occur with increased use, and will resolve once the use is discontinued.
·That he did not think there was a treatment that could be offered that would fix the problem.
·That if there was in effect a new injury in May 1994, and if there was an absence of chronocity (symptoms) arising from the March 1993 incident, this would be strongly against the injury of 1993 as being the cause of her ongoing problems.
CONSIDERATIONS AND FINDINGS
36. In this matter I have been particular to detail the many opinions rendered by many doctors over a 16 year period. I would note and so find that there has been no suggestion of Ms Imbriano exaggerating her symptoms over this period. While I note that many of the clinicians have recorded somewhat varied histories as to events in 1993 and 1994, I am satisfied that Ms Imbriano suffered a fall from her bike on her way to work on 22 March 1993 and that after one day absence from work she returned symptom free, having received a bump to her head and some abrasions to her right elbow, hip and right leg as a consequence of the fall. Further, I am satisfied that Ms Imbriano continued at work symptom free until some time three weeks later, at which time she experienced pain in her right shoulder, when she raised her right arm while cleaning the shower at home. I observe that after receiving physiotherapy and one to two weeks off work, she again returned to work, where she continued undertaking her duties until April 1994, at which time she commences experiencing pain and discomfort in her right shoulder. She attended upon Dr Roantree, her general practitioner after two weeks, complaining of pain posteriorly in the right should together with numbness and tingling in the lateral fingers of her right hand, following a two week period of extensive keyboarding activity at work.
37. Thereafter Ms Imbriano had been subject to much assessment and investigation and many treatment programs including acupuncture, hydrotherapy, physiotherapy, swimming, massage, medication and facet joint injections. It would appear from the material before me that Ms Imbriano’s symptomatology was of more significance in the years 1996-2000 and following the redundancy in 2000 it would appear that Ms Imbriano has been able to better manage her symptomatology by moderating the nature of the activities that increase her discomfort and indeed perhaps she has experienced some diminution in the frequency of her symptoms.
38. I am satisfied on the balance of probabilities that Ms Imbriano continues to experience episodic right posterior shoulder and right neck pain, often associated with particular activities (cleaning showers, windows, pots, sinks, prolonged driving) as evidenced by pain occurring to a level that requires strong analgesic medication on a defined circumstances basis. In the intervening period (five to six days) Ms Imbriano, while being aware of a defined area in her right neck and shoulder, is essentially free of pain symptomatology.
39. I am mindful of the many diagnoses made over time in this matter. On the evidence before me, including the history of events as provided by Ms Imbriano, I am satisfied on the balance of probabilities that the initial injury in March 1993 resulted in an injury that was described as shock and abrasions. In the absence of any clinical detail as to continuing symptomatology over a 12 month period until April 1994, I conclude, again on the balance of probabilities, that the injury of March 1993 does not play any part in the symptomatology that has arisen as a consequent of the May 1994 injury. In this regard I place particular significance on the clinical notes of Dr Roantree and the opinions of both Drs Whitakker and Brook. I would also observe that opinions rendered prior to radiological investigation (Dr Reid, Dr Stevenson) are opinions formed without such assistance, while opinions given by Drs Newcombe, Fuller, Ashman are of some assistance, with the accuracy of clinical history recorded in their reports remaining a particular issue, either for want of apparent accuracy with what has been detailed in evidence or because of brevity. I note that Dr Reid did change his opinion post his access to radiological investigation.
40. Despite the many opinions rendered in this matter I have been particular to detail the various compensation determinations to ensure that I appreciate exactly what determination is before me and the antecedents that led to that determination. In this regard, while there has been a variation as to the diagnosis (overuse syndrome, brachialgia, exacerbation right acromioclavicular strain, aggravation of soft tissue injury in right neck and shoulder leading to a regional pain syndrome), the clinical symptomatology described has been relatively consistent.
41. In addressing that clinical symptomatology that I have found to exist in this matter, I am satisfied on the balance of probabilities that such symptomatology arises from the underlying, pre-existing condition of cervical spondylosis and associated facet joint arthritis at the C5/6 and C6/7 level. Such a condition is responsible for the pain and the symptoms experienced in the right neck and shoulder posteriorly. In so finding, I rely upon the radiological investigations of the cervical spine and right shoulder (the latter with minimal injury sustained pathology demonstrated), the opinions of Dr Whitakker and, in part, the opinion of Dr Brook.
42. In so finding, I am mindful of Dr Whitakker’s reasoning as outlined in relation to the effect of the facet joint injections and Dr Brook’s reasoning that if there were few, if any, symptoms continuing post the 1993 incident for a period of a year, then any continuing symptomatology would most likely arise from exacerbation of the underlying pre-existing condition of cervical spondylosis, if indeed the cause of the exacerbation (strenuous keyboarding activity) ceased with the symptomatology continuing to exist. I would observe that while Dr Brook contended that a soft tissue injury was a plausible explanation, his argument and comments also in response to particular scenarios put to him during cross-examination placed to my satisfaction an increasing weight on his other equally plausible explanation (referred pain from cervical spondylosis) as being the most likely cause of the continuing symptomatology.
43. As a consequence of my consideration and findings, I conclude that Ms Imbriano’s symptoms in her right neck and right shoulder as at 14 April 2008 and continuing thereafter arise from her pre-existing constitutional condition of cervical spondylosis associated with facet joint arthritis.
44. There is no evidence in the material before me that the constitutional condition of cervical spondylosis has been aggravated by Ms Imbriano’s work activities, although it is evident that such symptoms arising from such a condition can be exacerbated on a temporary basis when undertaking particular activities such as, in this matter, keyboarding, prolonged car driving and various cleaning activities.
45. In the light of my findings I conclude that Ms Imbriano is not entitled to payment of compensation for medical expenses from 14 April 2008, with the decision under review being affirmed.
46. Further, in noting that such expenses can be claimed only in relation to the cost of reasonable medical treatment, I would comment, as no findings are necessary, that travel to and attendance upon Dr Roantree in Canberra would pose issues as to reasonable medical treatment, as it would appear to be a matter of personal preference as opposed to clinical need. Similarly, I would observe that current treatments regarding massage and hydrotherapy would require further medical evidence for such to be considered as reasonable medical treatment, if indeed the condition was compensable.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: ...................[sgd]............................................................
AssociateDates of Hearing 10 September and 28 October 2009
Date of Decision 27 November 2009
Appearance for the Applicant Self-represented
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms L Brady, Australian Government Solicitor
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