Kirk and Comcare (Compensation)

[2019] AATA 3556

Kirk and Comcare (Compensation) [2019] AATA 3556 (17 September 2019)

Division:GENERAL DIVISION

File Number(s):     2016/2008; 2018/5094   

Re:Sheila Kirk

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:                Deputy President R I Hanger AM QC

Date:17 September 2019

Place:Canberra

The reviewable decisions dated 8 February 2016 and 5 September 2018 are affirmed.

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

Deputy President R I Hanger AM QC

Catchwords

COMPENSATION – whether Comcare is liable to pay compensation for medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 – general practitioner consultations – pharmaceuticals – decision under review affirmed

COMPENSATION – whether the Applicant suffered an ailment or aggravation thereof which arose out of, or in the course of, employment – whether an ailment or aggravation thereof was contributed to in a material degree by employment – whether an ailment or aggravation was contributed to in a significant degree by employment - widespread disc degeneration – osteoarthritis – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Cases
Mellor v Australian Postal Commission [2009] FCA 504
Re-Blasco v Australian Post Corporation [2017] AATA 1222

Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Deputy President R I Hanger AM QC

17 September 2019

INTRODUCTION

1. There are two applications for review before this Tribunal.

2. Proceeding 2016/2008 concerns an application for review of the Respondent’s reviewable decision dated 8 February 2016 in which Comcare revoked a determination dated 2 February 2016. The determination had accepted liability to compensate the Applicant in respect of the cost of certain kinds of medical treatment under section 16 of the Safety, rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The injury in respect of which liability had been accepted was referred to as “aggravation of cervical spondylosis without myelopathy,” which the claimant claimed occurred when her office temperature dropped to a very cold level over a number of days in early 2015.[1]

   [1] Exhibit 9, T documents filed in proceeding 2016/2008, T 1.1, pages 3 – 7, Reviewable Decision, 8 February 2016.

3. Proceeding 2018/5094 concerns an application for review of the Respondent’s decision dated 5 September 2018 in which Comcare affirmed a determination dated 1 May 2018. The determination denied liability to pay compensation to the Applicant in respect of “widespread disc degeneration and osteoarthritis affecting the entire spine” or an aggravation thereof, under section 14 of the Act. In that respect, the Applicant claimed that she was injured on or about 10 September 1997, or that she was injured due to the nature and conditions of employment between September 1997 and 23 October 2015.

   BACKGROUND

4. The Applicant was born in 1953. In 1994 she began to work for the Australian Public Service and in September 1997 suffered an incident while at work.[2] The nature of the incident has been described in a variety of ways which I shall deal with hereunder.

   [2] Exhibit 3, Statement of the Applicant dated 9 September 2016, page 1, [5].

5. On 10 September 1997, the Applicant signed an incident report in which she alleged that she had strained her neck muscles while “moving back and forth from keyboard to customers”.[3]

   [3] Exhibit 16, T-documents filed in proceeding 2018/5094. T4.1, page 61, Extract of Claim for Workers’ Compensation dated 10 September 1997.

6. On 10 September 1997, Dr Hill, her treating GP signed a medical certificate referring to “strained neck and right shoulder muscles” and referred to it as having been caused by an “altered workstation”.[4]

   [4] Exhibit 16, T-documents filed in proceeding 2018/5094, T4.7, page 66, Medical Certificate for Workers’ Compensation dated 10 September 1997.

7. On 7 February 2000, the Applicant signed a claim for compensation for “strained neck muscles” which occurred on 10 September 1997.[5] The form that she completed called on her to describe in detail the events which contributed to her claimed condition. She said “a new workstation at reception point. Pain first occurred within short period of work at this new station. The pain worsened with usual work at own desk”.

   [5] Exhibit 10, Supplementary T-documents filed in proceeding 2016/2008, ST1, pages 1-8, Claim for Workers’ Compensation. 

8. On 31 May 2000, she was assessed by Dr Le Leu (Occupational Physician).[6] He summarised her presenting complaint in the following terms: “When her neck problem first occurred ‘they had moved the reception desk’. Everything was new and the customers were coming from a different angle. She was the first person to use the reception desk. It seemed she turned the ‘wrong way’ and strained her lower back muscles. She didn’t have immediate pain but she was aware that there was pain there that gradually worsened and she was continuing to move her neck. She developed a frontal headache and such a headache has been associated with each subsequent episode”.

   [6] Exhibit 10, Supplementary T-documents filed in proceeding 2016/2008, ST3, pages 11-4, Medical report of Dr Leon Le Leu dated 31 May 2000.

9. On 23 May 2001, she was assessed by Dr Eaton (Occupational Physician) and Ms Conroy (Physiotherapist).[7] She told them that she first noticed pain in her cervicothoracic spine following working in a new office area using a computer and dealing with customers in 1997.

   [7] Exhibit 10, Supplementary T-documents filed in proceeding 2016/2008, ST6, pages 23-24, Report – Canberra Injury Management Centre dated 23 May 2001.

10. On 1 February 2005, she was assessed by Dr Whittaker (Consultant Rheumatologist). His history records:[8]

    “On 10 September 1997, Centrelink had just installed a new reception desk. Ms Kirk was seated at this desk on a swivel chair. She informed me that she turned on her swivel chair towards the computer and then back again. As she did this she developed left-sided neck pain and felt that she had pulled a muscle.”

    [8] Exhibit 10, Supplementary T-documents filed in proceeding 2016/2008, ST8, pages 27-33, Report of Dr Whittaker dated 1 February 2005.

11. In proceeding 2018/5094, the Applicant claimed to have suffered a neck injury in September 1997 when she says she “fell from a work chair and twisted or jarred her neck”. In her evidence in the Tribunal she explained that she did not actually fall to the floor, but that her foot slipped on the footbar of a swivel stool and that caused her to use her arm to break her fall which caused her to twist and jar her neck.

12. She described the initial event to Dr Still who recorded, “she was acting as a receptionist and was busy dealing with a line of customers.  She stated that she had been provided with a new workstation including a swivelling, high chair with built-in foot supports. She reported that she turned quickly and almost fell off the chair and jarred her neck”.[9]

    [9] Exhibit 9, T-documents filed in proceeding 2016/2008, T12, page 42, Report of Dr Robert Still dated 7 December 2015.

13. Dr Kostos recorded as follows, “she claims that ‘the first injury I had was in 1997’ when she fell off a stool and ‘jarred all my neck and arms’”.[10]

    [10] Exhibit 16, T-documents filed in proceeding 2018/5094, T6, page 83, Report of Dr Tony Kostos dated 26 April 2018.

14. In a report of 6 December 2016, Dr Le Leu says that she fell off a chair hurting her neck.[11]

    [11] Exhibit 2. Medical report of Dr Leon Le Lue dated 6 December 2016 and Briefing Letter dated 23 November 2016, page 6.

15. In the Applicants own statement of 9 September 2016 she says “I fell from a work chair and twisted my neck”.[12]

    [12] Exhibit 3, Statement of the Applicant dated 9 September 2016, page 1, [6].

    CLAIM HISTORY

16. The injury involved her neck. She made a claim for workers compensation which was accepted and she underwent some treatment involving physiotherapy and medication. The treatment was effective and she was able to return to work after a graduated return to work program. In early 2000, she says that she continued to experience pain and an investigation into her workstation determined that it was inappropriate. She lodged a claim for workers compensation in May 2000 which was accepted and backdated to the original injury on 10 September 1997. She underwent a significant period of treatment which included medication, physiotherapy and attending a pain management clinic. That treatment was effective and she was able to return to work full-time following a graduated return to work program.

17. She had what she described as “flare ups” or “bad turns” in her neck from time to time in 2000, 2002 and in 2005.[13] She has a lengthy history of depression and has been on antidepressant medication for most of her life.

    [13] Transcript of Proceedings, 20 September 2018, page 35.

18. In 2015 she accepted a new role which brought a change in her duties and she became desk based. She did not travel as she had in the previous years and was required to work from her desk for the duration of each day. It was a sedentary job where she had to move between her phone and computer screens. She found the air-conditioning in this site at Braddon to be extremely cold and it caused her to suffer what she described as “unbearable pain, stiffness and aching in my neck and upper spine. The increase in the severity of my pain and stiffness came on quite quickly over a number of days rather than weeks. I had not experienced pain to that degree previously, including when I injured my neck in 1997”.[14] She attended Dr Hewitt on about 9 June 2015. She was issued with a medical certificate saying she was unfit for work from 27 May 2015.[15]

    [14] Exhibit 3, Statement of the Applicant dated 9 September 2016, page 2, [11].

    [15] Exhibit 3, Statement of the Applicant dated 9 September 2016, page 2, [14]-[16]; Exhibit 17, Supplementary T-documents filed in proceedings 2016/2008 and 2018/5094, ST32, page 126, Medical Certificate for Workers’ Compensation dated 9 June 2015.

19. She was subsequently sent for a medical review to assess her for rehabilitation. She was told that there was no prospect of recovery such that she would be able to return to work. She says that she had been hoping to continue working for another few years or at least until she reached the age of 65 but was told that she should be medically retired. She has not worked since May 2015.[16]

    [16] Exhibit 3, Statement of the Applicant dated 9 September 2016, pages 2-3, [17]-[18].

20. Since she ceased work her neck symptoms have continued to cause constant nagging pain. They have got worse.[17]

    [17] Ibid, [18].

21. She lodged a workers compensation claim and received a letter dated 8 January 2016 accepting the claim. The letter said that the respondent agreed to pay for her medical treatment and time off work from 8 May 2015 to 23 October 2015.[18] She received advice from the Respondent dated 2 February 2016 which said that the Respondent accepted the expenses for treatment that she would need until 24 October 2016. She received a further letter from the respondent dated 8 February 2016 in which the Respondent reversed the previous decision.[19]

    [18][18] Ibid, [20].

    [19] Ibid, [21].

    PRINCIPAL ISSUES TO BE DETERMINED BY THE TRIBUNAL

22. The issues before the Tribunal for determination are whether:

    (a)In respect of proceeding 2016/2008, the Respondent is liable to compensate the Applicant for the cost of certain kinds of medical treatment under section 16 of the Act in respect of “aggravation of cervical spondylosis without myelopathy” for the period 23 October 2015 to 24 October 2016; and

    (b)In respect of proceeding 2018/5094, the Respondent is liable to pay compensation to the Applicant under section 14 of the Act in respect of what is described as “widespread disc degeneration and osteoarthritis affecting the entire spine or an aggravation thereof”.

    RELEVANT LEGISLATION

23. In respect of proceeding 2016/2008, the right to compensation in respect of medical expenses is conferred by section 16(1) of the Act which provides that:

    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

24. Section 4 of the Act provides the definition of medical treatment which relevantly includes:

    (a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

    …

    (h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise.

25. In respect of proceeding 2018/5094, section 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee.

26. ‘Injury’ is defined in section 5A of the Act, so far as this case is concerned:

    (1)…

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

27. A ‘disease’ is relevantly defined in section 5B of the Act to mean:

    (1)…

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

28. The relevant test for a disease (or aggravation thereof) is dependent on the timing of the onset of the compensable injury. The Act was amended in 2007 replacing the “material degree” test with the “significant degree” test.

29. In respect of proceeding 2018/5094, the relevant period of injury is between 10 September 1997 and 23 October 2015. At the onset of the Applicant’s injury, or aggravation thereof, in September 1997 section 4(1) of the Act defined ‘disease’ to mean any ailment or aggravation of any ailment suffered by an employee ‘that was contributed to in a material degree by the employee’s employment with the Commonwealth or a licensed corporation.’

30. Following the enactment of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), section 5B(3) of the Act defines “significant degree” as a “degree that is substantially more than material.” The “material degree” test applies to an ailment or aggravation thereof which occurred before 12 April 2007 and the “significant degree” test applies to an ailment or aggravation thereof which occurred on or after 12 April 2007.

    CONTENTIONS

    Applicant’s Contentions

31. The Applicant’s case is that the incident in September 1997 was responsible, basically, for her subsequent neck and back problems. The Applicant contends, in relation to both proceedings before the Tribunal, that the Applicant’s worsening of symptoms has happened at a rapid pace which is not consistent with gradual deterioration.[20]

    [20] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions filed in proceeding 2016/2008 dated 31 January 2017, page 3, [25]; Exhibit 26, Applicant’s Statement of Facts, Issues and Contentions filed in proceeding 2018/5094 dated 21 June 2019, page 4, [27].

    Respondent’s Contentions

32. In respect of proceeding 2016/2008, the Respondent’s position is that the applicant suffers from a degenerative disease, namely spondylosis, which is not contributed to by her employment.[21]

    [21] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions dated 14 February 2017 filed in proceeding 2016/2008, page 6, [4.1].

33. In the Respondent’s submission, the Applicant has a longstanding degenerative disease in her cervical and thoracic spines which is constitutional in nature and not contributed to by her employment. Any neck complaints the Applicant has suffered at work reflect her underlying degenerative disease and do not reflect an aggravation of her degenerative disease.[22]

    [22] Ibid, page 6, [4.2] – [4.3].

34. In respect of proceeding 2018/5094, the Respondent contends that to the extent that 2018/5094 presses a new or different claim, it should be considered under the “significant degree” test because the Applicant has already been compensated for a neck condition before 12 April 2007. The Respondent submits that this threshold is not met.[23]

    [23] Exhibit 27, Respondent’s Statement of Facts, Issues and Contentions dated 12 July 2019 filed in proceeding 2018/5094, page 9, [4.10]-[4.11].

35. The Respondent made it clear that it did not seek to set aside earlier determinations, but that does not stop the Tribunal examining all relevant evidence for the purpose of determining the present matters.[24]

    [24] Telstra Corporation Limited v Hannaford (2006)151 FCR 253.

36. The evidence from a number of medical experts, discussed below, supports the respondent’s contention.

    MEDICAL EVIDENCE

37. Dr Khurana, a Neurosurgeon, has provided a report dated 4 February 2019.[25] After obtaining a history from the Applicant he reviews other medical reports before providing his own opinion. He refers to a report of Dr Wilkins, Occupational Physician, and refers to that doctor’s impression that the Applicant suffers from “long-standing cervical spondylosis… Multilevel degenerative disease… Pain level is constant and worsening”.[26]

    [25] Exhibit 21, Report of Dr Vini Khurana dated 4 February 2019 and Briefing Letter dated 22 January 2019.

    [26] Ibid, page 7 quoting Exhibit 9, Section 37 T-documents filed in proceeding 2016/2008, T5, page 13, Report of Dr Peter Wilkins dated 24 July 2015.

38. He refers to a report from Dr Still, Sports Physician, dated 17 December 2015. He opines, “the specific diagnosis of the condition from which Ms Kirk suffers is cervical and thoracic spondylosis…a degenerative condition…in Ms Kirk’s case the causation would appear to be age, injury and malalignment. I am unaware of any hereditary factors… The current condition suffered by Ms Kirk is partly due to injuries sustained in 1997. It is also partly due to gradual degeneration with the ageing process”.[27]

    [27] Ibid, page 7, quoting Exhibit 9, Section 37 T-documents filed in proceeding 2016/2008, T12, page 45, Report of Dr Robert Still dated 7 December 2015.

39. He refers to a report of Dr Ross Whittaker, Rheumatologist, who writes, “I am most surprised that no investigations have been undertaken… Clearly, simple muscle strains do not last for seven years and her current examination findings demonstrate structural abnormalities with a spinal kyphoscoliosis with compensatory cervical hyperlordosis, moderate restriction of spinal movement in all three spinal regions…it is highly likely that this lady has degenerative cervical, lumbar and presumably thoracic spinal disease. This is a constitutional degenerative disorder which quite often has a genetic basis….This is not a work-related condition….Ms Kirk would be experiencing the same level of symptoms regardless of her period of employment at Centrelink.”[28]

    [28] Ibid, page 7; Exhibit 10, Supplementary T-documents filed in proceeding 2016/2008, ST8, page 31, Report of Dr Ross Whittaker dated 4 February 2015.

40. Dr Hewitt is the Applicant’s GP and she expresses the opinion that her current neck problem is a continuation of the accepted injury of cervical strain. She says that it is a progression of spinal injury but Dr Khurana disagrees.[29] He says that her multilevel multiregional constitutional changes are not properly explained by jarring when on a chair in 1997 which both he and the applicant referred to as a relatively innocuous event.[30]

    [29] Ibid, page 7-8; Exhibit 10, Supplementary T-documents filed in proceeding 2016/2008, ST9, page 34, Report of Dr Julie Hewitt dated 8 July 2015. 

    [30] Ibid, page 8.

1. Dr Khurana refers to the report of Dr Stubbs, Orthopaedic Surgeon, of 15 September 2016 who said, “The findings were straightforward. There were degenerative changes seen in the cervical and upper thoracic spine as one would expect with a lady of her age.”[31] He did not believe that her condition was significantly contributed to by her employment.  In an addendum, Dr Stubbs writes “Dr Hewitt’s contemporary notes in August, November and December 2014 and January 2015 mostly mentioned stress and anxiety both at work and with immediate family members. It is not until 15 May 2015 that Dr Hewitt mentions cervical spondylosis. The notes confirm my view that this is age-related degenerative spondylosis, the symptoms of which will fluctuate from time to time as part of its normal course”.[32]

   [31] Ibid, page 8; Exhibit 11, Section 37 T-documents filed in proceeding 2016/5473, T5, page 22, Report of Dr Geoffrey Stubbs dated 15 September 2016.

   [32] Ibid, page 8; Exhibit 11, Section 37 T-documents filed in proceeding 2016/5473, T5, page 25, Addendum to Report of Dr Geoffrey Stubbs dated 15 September 2016.

2. Dr Khurana says that he is in overall independent agreement with the opinions of Drs Stubbs and Whittaker. He refers to the initial injury as being a “relatively innocuous mechanism injury at work”. [33]

   [33] Ibid, page 8.

3. Dr Khurana concludes that the Applicant suffers from constitutional/multiregional spondylosis. A whole of spine x-ray series in 2009 indicate multilevel spondylotic changes in cervical, thoracic and lumbar spine regions. She has a degenerative condition which will continue to progress structurally and symptomatically over time and the condition is not properly related to work. [34]

   [34] Ibid, page 9.

4. After writing his report, Dr Khurana was shown lengthy surveillance footage taken of the Applicant carrying out a variety of different tasks including driving, shopping and gardening. Having viewed the video he expressed the opinion that “Any claimed ongoing physical incapacity in relation to the claimed work injury appears entirely inconsistent with the footage. There is no reasonable way, in my opinion, of concluding that there is some significant ongoing spinal injury at the time of this footage. There is probably constitutional spondylosis unrelated to work, but it does not appear to be adversely impacting her ability to engage in relatively physical/manual activities as shown in the recent footage. This matter now appears to me to be a factitious presentation with regard to any current significant symptomatic spinal condition; there is no proper relationship between the claimed condition and the alleged work incident of 1997.”[35]

   [35] Exhibit 22, Supplementary Report of Dr Vini Khurana dated 10 July 2019 and Briefing Email dated 5 July 2019, page 3.

5. Dr Still provided reports. His second report somewhat qualifies his first report. It was written after he viewed video surveillance footage. The Applicant had outlined her injury to him including the suggestion that she jarred her neck. Despite this, the doctor says that the injury sustained was relatively minor.[36]

   [36] Exhibit 24, Supplementary Report of Dr Robert Still dated 22 February 2019 and Briefing Letter dated 11 February 2019, page 3.

6. In his second report he reaches the conclusion that “any possible contribution of the injury to the applicant’s overall condition of cervical and thoracic spondylosis was likely quite minor and that her condition is entirely or almost entirely related to underlying constitutional factors.”[37] Her current condition is not significantly contributed to by her employment. It is due entirely to underlying constitutional factors. It is not a continuation of and was not significantly contributed to by the incident in 1997 or her claim in 2015 that related to very cold air conditioning.

   [37] Ibid.

7. Dr Sergides is a neurosurgeon who provided a report dated 26 March 2019 in which he said that her current symptoms are best explained by the degenerative changes which are present in her neck on the nuclear medicine bone scan. It is not possible to say with these degenerative changes have occurred as a direct result of trauma\repetitive motion due to her work.[38]

   [38] Exhibit 18, Report of Dr Yanni Sergides dated 26 March 2019 and Briefing Letter dated 21 March 2019.

8. The evidence of Dr Le Leu (Occupational Physician) is to the effect that the applicant suffered a musculoligamentous strain which was exacerbated by repetitive neck movement while at work. In his report of 6 December 2016, he said that the applicant appeared to have a structural worsening of her cervical spine at about the time of her having to work in a situation where she regarded the air-conditioning as excessively cold but he accepted that her symptoms were caused by cervical spondylosis.[39]

   [39] Exhibit 2, Report of Dr Leon Le Leu dated 6 December 2016 and Briefing Letter dated 23 November 2016.

9. Dr Kostos has provided two reports.[40] He confirms that she suffers from cervical spine disc degeneration and osteoarthritis and that these are constitutional conditions and that there is no evidence of an ongoing physical injury related to her employment. He points out that this condition can be periodically temporarily exacerbated and that her condition has steadily deteriorated since she stopped work. He regards her as having significant psychological factors that contribute to her present condition. He says that her condition was not contributed to by the work injury in 1997 or the work conditions in 2015. He agrees with the assessment by Dr Khurana. He says that the air-conditioning has no relevance to her presentation.

   [40] Exhibit 5, Report of Dr tony Kostos dated 26 April 2018 and Briefing Letter dated 19 April 2018; Exhibit 23, Supplementary Report of Dr Tony Kostos dated 14 February 2019 and Briefing Letter dated 11 February 2019.

10. Dr Pillemer (Orthopaedic Surgeon) in a report dated 5 February 2019 states that she has clinical and radiological evidence of cervical spondylosis.[41] He says that the main reason for her ongoing symptoms is due to her underlying cervical spondylosis but “if not for the nature and conditions of her work and the incident described, her symptoms are unlikely to have been as significant as they are”.[42] In referring to the incident, it was described to him as an event in which the applicant “fell off a stool and jarred her neck”.[43] However, the doctor suggests that it is worth considering the fact that since the onset of symptoms in 1997 her complaints have never really settled which suggests that the original incident and the various aggravations need to be regarded as contributing to her ongoing discomfort.

    [41] Exhibit 19, Report of Dr Roger Pillemer dated 5 February 2019 and Briefing Letter dated 31 January 2019.

    [42] Ibid, page 4.

    [43] Ibid, page 1.

    CONSIDERATION

11. The Applicant was not an entirely reliable witness. I have set out various versions of what happened to her in 1997 and there is a degree of inconsistency between them. She was asked about this in her cross examination but her evidence was not satisfactory considering the notes made by the doctors of what she said happened. Put at its highest she jarred her neck. The evidence which I accept is that this resulted in, at best, a relatively minor injury. It resulted in her being absent from work and she was compensated.

12. Eighteen years later she was again compensated for absence from work because of pain in her neck and shoulders caused by what she described as cold air-conditioning. A great deal of evidence was given in these proceedings and reports were obtained from a galaxy of medical experts. One wonders why so many were necessary. The conclusion that I draw from the evidence is that the Applicant suffers from a degenerative condition of the spine. It is a natural progression which will get worse over time. Since she stopped work it has not improved and has got worse. That is to be expected. I take account of the fact that Dr Pillemer points out that her complaints have never really settled since 1997 and that therefore the various aggravations need to be regarded as contributing to her ongoing discomfort. However Dr Khurana, Dr Whittaker and Dr Stubbs had all the relevant material before them and did not reach the same conclusion. Dr Sergides concludes that one can’t say whether the degeneration has occurred as a result of trauma or not. Dr Still only goes so far as to say that her present condition is only partly the result of the 1997 incident.

13. In proceeding 2018/5094, I must determine whether the respondent is liable to pay compensation to the Applicant in respect of what is described as ” widespread disc degeneration and osteoarthritis affecting the entire spine or an aggravation thereof”. The relevant dates are between 10 September 1997 and 23 October 2015. On the evidence available I am not satisfied that she suffered widespread disc degeneration and osteoarthritis affecting the entire spine or an aggravation thereof that was in any way connected with her employment. She suffers from natural degeneration that occurs to all of us and from a degenerative disease that may be genetic in origin.

14. The decision in proceeding 2018/5094 is affirmed.

15. I turn then to consider the issues raised in proceeding 2016/2008. This involves a question of whether the Respondent is liable to compensate the Applicant for the cost of certain kinds of medical treatment under section 16 of the SRC act in respect of “aggravation of cervical spondylosis without myelopathy” which the applicant claimed occurred when her office temperature dropped to a very cold level over a number of days in early 2015.

16. I proceed on the basis that the Applicant suffers from spondylosis that has not been caused by employment. I am satisfied that she did suffer pain at work in 2015 and that that pain was caused by the excessively cold air conditioning. There was no change in the underlying pathology caused by the air-conditioning. It merely precipitated the pain. The pain was caused because she had the underlying spondylosis. That pain is prime facie compensable under the provisions of the SRC act.[44]

    [44] Mellor v Australian Postal Commission [2009] FCA 504.

17. The Respondent submits that the fact that the Applicant felt symptoms at work is insufficient to find a causal connection with her employment.[45] While I accept that as a proper statement of the law, I’m satisfied that the applicant has satisfactorily established a causal connection with the onset of particularly bad symptoms and the air-conditioning problem. However, I cannot accept that the pain caused by the air-conditioning continued for a lengthy period after its cause was removed. The Respondent paid for the applicant’s medical treatment and time off work from when she stopped in May 2015 to 23 October 2015. The present matter concerns the liability for medical expenses from 23 October 2015 to 24 October 2016. She has been adequately compensated for medical expenses that arose from her pain caused by cold air conditioning.

    [45] Re-Blasco v Australian Postal Corporation [2017] AATA 1222 at [131-132].

18. Decision 2016/2008 is affirmed.

    CONCLUSION

19. The decisions under review are affirmed.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC.

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

Associate
Dated: 17 September 2019

Date(s) of hearing:	3 October 2017; 20 September 2018 – 21 September 2018; 2 September 2019 – September 2019; 5 September 2019
Date final submissions received:	9 September 2019
Counsel for the Applicant:	Mr Karl Pattenden
Solicitors for the Applicant:	Mr Andrew Freer, KJB Law
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	Mr Andrew Schofield, Comcare