Kitchener and Australia Postal Corporation
[2006] AATA 1509
•21 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1509
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/74
GENERAL ADMINISTRATIVE DIVISION ) Re SHANNON KITCHENER Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member
Dr M Thorpe, MemberDate21 December 2006
PlaceSydney
Decision The decision under review is affirmed.
……………………………….
Robin Hunt
Senior Member
CATCHWORDS – WORKERS COMPENSATION – injury and impairment – liability of comcare to pay compensation in respect of injury to neck and lower back – intermittent condition – worker sustained no injury causing intermittent consequential injury to the head as intermittent headaches – finding intermittent headaches do not cause interference with activities of daily living under table 13.1 so as to cause a permanent impairment.
LEGISLATION
safety rehabilitation and compensation act 1988 (cth) ss 4, 24, 27, 28 & 124
AUTHORITIES
canute v comcare [2006] HCA 47
o’rourke v comcare [1999] No 12154 (unreported)
comcare v emery [1993] 32 ALD 147
allen v comcare [2000] AATA 152
daniel v department of defence [1988] AAT No 13246, 730
REASONS FOR DECISION
21 December 2006 Ms R Hunt, Senior Member
Dr M Thorpe, MemberSUMMARY
1. Mr Kitchener, the applicant, sought compensation for permanent impairment caused at work. We have considered his claims and are not satisfied, on balance, that he has any compensable permanent impairment resulting from any workplace injury. This means his claim has failed. Our reasons appear below.
BACKGROUND
2. This is an application for review concerning a decision of Australia Post dated 28 December 2005 affirming a determination of 30 November 2005 that Australia Post is not liable under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to pay Mr Kitchener compensation for permanent impairment in relation to his lumbar/thoracic strain injury.
3. Australia Post by determination, dated 17 May 2002, accepted liability for mild sprain to thoracic and lumbar spine with a date of injury 14 March 2002. By a further determination, dated 15 September 2003, Australia Post accepted liability for cervical facet joint irritation with a date of injury 17 June 2003.
ISSUES
4. The issues before the Tribunal are:
a) whether Mr Kitchener has suffered any permanent impairment to his neck, pursuant to table 9.6 of the Comcare Guide;
b) whether Mr Kitchener has suffered any permanent impairment of his lower back pursuant to table 9.6 of the Comcare Guide as a result of the incidents on 14 March 2002 and 17 June 2003;
c) whether Mr Kitchener suffers from migraine consequent to the incidents and, if so, any permanent impairment pursuant to table 13.1 of the Act; and
d) whether Mr Kitchener is entitled to a lump sum payment for permanent impairment of his neck and lower back pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.
MR KITCHENER’S HISTORY:
5. Australia Post records before us show that Mr Kitchener commenced employment with Australia Post on 19 July 1996 as a Postal Delivery Officer, initially at Baulkham Hills, then Merrylands and Girraween. In 1997 he had a left knee reconstruction by Dr Eugene Sherry from which he has made a full and uneventful recovery and which is not the subject of this review.
6. Mr Kitchener gave oral evidence before us about a series of incidents that took place during his work for Australia Post. On 14 March 2002 Mr Kitchener was riding his Australia Post motorcycle along the footpath in Boronia St, South Wentworthville, in the course of delivering mail. His motorcycle hit a hole measuring about 30cm across and 15cm deep, causing the bike to jolt and Mr Kitchener’s body to jar. Mr Kitchener stayed on the bike and completed delivering the mail in the half hour following the incident. He later complained of a sore neck, sore middle back and sore lower back.
7. Mr Kitchener reported the incident to his supervisor and on 18 March 2002 saw Dr Tang, who prescribed three to five sessions of physiotherapy for his middle and lower back. He continued to work but on restricted duties (no motorcycle delivery). Mr Kitchener said the symptoms persisted but he was able to return to normal duties including riding the motorcycle.
8. Mr Kitchener's work history includes a number of incidents. The next incident was on 15 July 2002 when he ran into the back of a stationary car on a roundabout at Westmead. He reported knocking his knee and further soreness in his back. In evidence Mr Kitchener said the back soreness has never left him since the original incident in March 2002.
9. Mr Kitchener reported he started to get "migraines" in November 2002. The migraine first came on over an hour while he was delivering. He described the "migraine" as at the back of the neck on the left hand side, extending over to the left temple and behind the left eye and being of a throbbing character (like a pulse). There was no previous history of this type of headache. He saw a local doctor, Dr Woolnaugh, who prescribed physiotherapy.
10. There was a further incident 17 June 2003. When riding a motor cycle delivering mail, Mr Kitchener again struck a hole in the ground. The hole was a vacated Telstra pit in the nature strip overgrown with grass. This caused jarring to his back. Subsequently, on the advice of Dr Chase, Mr Kitchener was precluded from bike duties and commenced delivering mail out of a hand pushed buggy.
11. The next incident was at Pendle Hill on 5 September 2003 when delivering mail using a mail buggy. The front wheel of the buggy hit the kerb causing jarring to Mr Kitchener’s neck and back. Subsequently, he reverted to delivering mail using a back pack (appros 80 cm x 40 cm) with a 16 kg limit. This caused pressure on his neck and lower back such that he was unable to carry the pack.
12. Mr Kitchener gave evidence that he further aggravated his back while sorting mail on 9 September 2004, was placed on restrictions, but did not have time off from work.
13. Mr Kitchener reported a further incident 8 December 2004 when he woke up with a migraine and sore back. He described the incident as due to the injury at work and neck spasm due to fatigue as a consequence of a previous injury. His oral account was that he suffers a "migraine" on average once every three weeks, in the same location with some associated tingling of the top left side of the mouth. The headache lasts for about 5 hours and he has been prescribed Panadeine Forte and Nurofen Plus.
14. Mr Kitchener continues to work with Australia Post in his current capacity as an Acting Team Leader, a position he has held for over 12 months.
15. Mr Kitchener said the symptoms of sore neck and sore lower back have never left him. He said he has restricted trunk movement making it difficult to bend over and that he can only bend down 80 percent. He now has more intense pains affecting his sciatic nerves with sharp shooting pains down his leg. He has restriction of neck movement, in particular, turning to the left and the ability to make quick movements. This restriction affects his ability to drive. He said he was restricted in his recreational activities. He stopped playing touch football in 2003, is severely restricted in time spent fly fishing (only twice a month), has ceased hiking, since 2003, because he is unable to carry a pack and the headaches, his driving is limited to a couple of hours because of neck and back strain and he now can only play golf a couple of times a year as the repetitiveness of swinging irritates his neck and back. Emotionally he feels inadequate.
Medical Evidence
16. MRI Imaging reports were available from Penrith Imaging:
§MRI Cervical spine - 16 October 2003: Normal MRI of cervical spine
§MRI Lumbo-sacral spine - 16 October 2003: There is a moderate posterior central disc protrusion at L5/S1 with annular tear effacing the CSF anterior to the thecal sac and abutting both S1 neve root sheaths.
17. Dr Endrey-Walder, Orthopaedic Surgeon, now Medico-Legal Consultant, had examined Mr Kitchener on one occasion, 26 September 2005. His history from Mr Kitchener was:
I have continuous acheness (sic) in the back of my neck. When I aggravate it I have limited neck movement. On average I get a migraine once every two weeks which makes me lie down in a dark room.
18. About his lower back, the history from Mr Kitchener was “aches more so on the left side” and that he experienced “sharp pains shooting down the back of my leg (left)”. Dr Endrey-Walder reported Mr Kitchner indicated that this occurred at lower calf level.
19. On examination of the cervical spine, Dr Endrey-Walder reported 65-70 degrees rotation to the right and attaining almost 90 degrees to the left. He was able to reach to lower shin level with his finger tips on forward flexion, hyperextension moderately restricted as was leaning to the left which obviously caused pain. Dr Endrey-Walder's written opinion was that Mr Kitchener's neck symptoms were on account of damage to the lower cervical facet joints and it was quite likely that his reported migranous headaches, always emanating from the posterior aspect of the left neck, are related to the condition. He attributed the disc prominence and annular tear at the lumbo-sacral level as a direct consequence of the original injury of March 2002 with further exacerbations. Dr Endrey-Walder, based on the Guide to the Assessment of Permanent Impairment by Comcare, provided the following impairment assessments:
§
Neck:
Table 9.6 (minor restrictions of movement)
5%
Whole Person Impairment
§
Migranous headaches:
Table 13.1 (attacks occur 12 or more times a year and cause minor interference of daily living
10%
Whole Person Impairment
§
Back:
Table 9.6 (loss of less than half normal movement
10%
Whole Person Impairment
20. Dr Maxwell, Orthopaedic Surgeon, had examined Mr Kitchener on a number of occasions, initially on 14 May 2002 and most recently on 19 June 2006. In August 2003 Dr Maxwell was of the opinion Mr Kitchener had some mild facet joint irritation of the cervical spine on the left side related to the June incident. At that time he found the range of movement of the neck:
§extension 50 degrees;
§flexion 75 degrees; and
§lateral rotation to the right and left 90 degrees.
As submitted by Mr Johnson, counsel for the respondent, Dr Maxwell had seen Mr Kitchener on three occasions and on each occasion found a normal range of movement of both the neck and of the lumbar spine and no suggestion of any loss of movement of the thoracic spine.
Concurrent Evidence Dr Endrey-Walder and Dr Maxwell
21. Dr Endrey-Walder found a degree of restriction of movement at the cervical spine, not gross but measurable. He found some restriction on rotating the neck and head to the right, 65-70 degrees as opposed to 90 degrees to the left. He thought there was facet joint irritation and that that may account for his headaches, probably referred pain. He did not consider the headaches could be blamed on radiculopathy or occipital nerve neuritis. He believed Mr Kitchener’s lower back symptoms were due to a pathology at the lumbar sacral disc and that the MRI findings of the lumbo-sacral disc were significant. Dr Maxwell's opinion was that Mr Kitchener probably had a back sprain in 2002, maybe involving a facet joint, that his symptoms were fairly minimal, that he had in fact sprained his neck and at that time had mild cervical facet joint irritation. His neck had subsequently completely recovered, with a full range of pain free movement. When he saw him again in August 2003 and subsequently in 2006 he again felt that he had sprained his back and that pain was most likely related to facet joint irritation. Dr Maxwell did not find any restriction of movement of the cervical spine or lumbar spine and was at a loss to explain the pain down the leg as described by Mr Kitchener as he found no signs of radiculopathy.
22. There was dispute about the significance of the MRI findings of the L5/S1 disc. Dr Endrey-Walder accepted there was no radiculopathy but noted the radioliogist’s report of dehydration and desiccation could not be disregarded. He considered the disc prominence abutting on the S1 nerve root, even if not pressing on the nerve root, was relevant and it was reasonable to suspect that, when the patient was upright as opposed to lying down during imaging, there could be intermittent irritation of the nerve. Dr Maxwell said that it is normal to take an MRI scan to verify radiculopathy as an adjunct to clinical examination for rariculopathy. He cited the high incidence of false positive MRI scans and that the scan did not demonstrate the cause of the intermittent back pain in this man. The L5/S1 disc is a transitional disc and thinner than the other discs. The disc is very dehydrated but that dehydration is a very poor indicator of a damaged disc at the L5/S1 level.
23. Concerning range of back movement, Dr Endrey-Walder found Mr Kitchener able to reach lower shin level with his finger tips but with restriction of hyperextension and also clearly restricted in side flexion to both sides. Dr Maxwell found a full range of spinal movement on the three times he examined Mr Kitchener, no restriction in straight leg raising, no muscle weakness, no alteration in reflexes and no alteration in sensation. On questioning by the Tribunal, Dr Maxwell said he found all movements of the spine including flexion, extension, lateral flexion and lateral rotation were normal.
Video
24. We were shown a video in which Mr Kitchener was observed at home carrying out some tasks in and around his residence. Mr Kitchener gave evidence that he was arranging some objects in his garage. We also saw him practising his golf swing later in the video. Dr Endrey-Walder and Dr O’Neil commented on what they had seen Mr Kitchener do during the video. Dr Endrey-Walder did not feel that whatever he had seen on the video corroborated, or otherwise, his performance of physical examination on Mr Kitchener when he examined him in September 2005. Dr Endrey-Walter said he did not see Mr Kitchener demonstrate lateral flexion or hyperextension or arching his back on the video. He accepted he had good flexion at the torso on the film as he did when he examined him. In his report he had given a 10% impairment but in evidence he thought somewhere between minimum restriction and less that half restriction of movement - at least 5% or somewhere between 5 and 10%. Dr Endrey-Walder was unable to judge Mr Kitchener's functional capacity of the neck on the video. Dr Maxwell saw nothing on the video to alter his opinion, based of his findings on physical examination, that there was a full range of movement of both Mr Kitchener's neck or back. Mr Kitchener appeared to be functioning at a reasonable level and confirmed his impression that his flexion was unrestricted. Despite Mr Kitchener’s evidence of his physical limitation, we found no confirmation of this from watching the video. However, we have relied on medical opinions before us in reaching out conclusions rather than form an opinion of Mr Kitchener’s possible impairment from observing the video. See discussion below.
Further Medical Evidence
25. Dr O'Neill, Neurologist, examined Mr Kitchener in March 2006 and viewed the video subsequently. Giving Mr Kitchener the benefit of the doubt, Dr O'Neill initially accepted he had some degree of mechanical low back pain related to the degenerative change demonstrated at L5/S1 level in the MRI scan. He could find no physical examination explanation for episodic leg complaints. There were no typical signs of S1 radiculopathy. He considered neck symptoms to be minimal and the MRI scan of the cervical spine was normal. He initially assessed a 10% permanent impairment of the back according to table 9.6, less than half the normal range of movement and nil impairment for the neck. Having viewed the video, he changed his earlier opinion about the low back impairment. In the video he saw no evidence of restriction of the lower back so that he had "x-ray changes only", and according to table 9.6, therefore, there would be no impairment of the lower back.
26. Dr Robin Chase, Occupational Physician, examined Mr Kitchener on 3 December 2003 and on 30 April 2004. At initial consultation, physical examination revealed tenderness over the left upper cervical articular pillars and no particular or specific abnormalities in the low back. On the basis of history, physical examination and medical imaging, Dr Chase reported Mr Kitchener most likely was suffering from:
§Capsular strain of the upper cervical facer joints, probably C2 and C3. He has some referred pain in the C2 dermatome resulting in dysesthesia and occipital and temporal headaches.
§Intermittent chronic low back pain secondary to L5/S1 annular tear.
When he examined Mr Kitchener in April 2004, Dr Chase found a full range of movement in the cervical spine and a full range of movement in the lumbar spine
Headaches
27. Mr Kitchener's evidence was that whilst doing his normal duties in November 2002 his lower back and neck symptoms gradually came back and then progressed to migraine. He was referred to an Australia Post doctor on 13 November 2002, Dr Woolnough, who prescribed physiotherapy. There was no history of this type of headache before this date.
28. The Derby Street Family Medical Practice records show that Mr Kitchener attended the practice on 29 July 2003 complaining of “headaches (migraine) since this afternoon not relieved with Panadol”. Similar to previous headache left sided but prolonged. Headache started after back/neck injury 14 February 2003. He was diagnosed as having a soft tissue injury neck/back with headache. He again attended the practice on 10 September 2003 and again on 26 September 2003 reporting a migraine three weeks earlier and was prescribed Panadol, Panadeine Forte and Naprosyn. Further consultation on 4 February 2004 with a throbbing headache affecting the left temple, left retro-orbit, diagnosed as migraine and treated with Neurofen Plus. Headaches again reported on 24 February 2004 and last reported on 9 September 2004 as a bad migraine. This is also the last clinical note available from the practice.
29. Dr Chase's history was that Mr Kitchener started to develop “tingly” symptoms in his left occipital and temporal region after the 15 June 2003 incident and that he later developed headaches. In his April 2004 report Dr Chase reported the headaches had largely gone although Mr Kitchener got occasional flare-ups. His diagnosis of capsular strain of the upper cervical facet joints and some “lesser” referred pain in the C2 dermatome remained unchanged.
30. Dr O'Neill obtained the history that Mr Kitchener became prone to headaches on his way home after the June 2003 incident. He volunteered "migraines" as his initial symptom. He told Dr O'Neill he would experience a headache about once every three weeks. He said he felt pain over the left side of the head and it was associated with a feeling that "the neck tenses up; the joints get sore". On specific questioning, Mr Kitchener said additional symptoms might include "a bit blurry vision in the left eye; as if I rubbed it" and a "tingle" in the region of the left upper molar teeth. There was no nausea, vomiting, photophobia or phonophobia. He said he tried to avoid medications but, when more severe, he would take two Neurofen Plus tablets. Dr O'Neill in evidence said that he certainly could not make a diagnosis based on the description of the headaches and he did not consider the headaches as typical of migraine as they were not accompanied by nausea, vomiting, photophobia or phonophobia. On the occasions that medication was used, the headaches usually responded quite quickly to Neurofen Plus. The best that Dr O'Neill could say was that Mr Kitchener was complaining of an episodic headache of a non-specific nature.
31. Dr O'Neill said it would be difficult to relate migraine to a traumatic event and it would be very difficult to relate to the incident earlier that day on 17 June 2003. Further if his history was inaccurate and if in fact the "migraines" began in late 2002 from simply riding the motorbike around, there was no way he could relate the development of migraine, which he does not believe is the type of headaches Mr Kitchener suffers, to either of the two incidents.
32. Concerning the possibility of Mr Kitchener having occipital neuralgia consequent to any neck problems Dr O'Neill said occipital neuralgia is a very specific type of headache. True occipital neuralgia arises from the C2/C3 facet joint degenerative disease that occurs in later life. It is due to the irritation of the nerve roots C2 and C3 which radiate towards the head. There is a severe pain in the occiput on the appropriate side, that's the back of the head on the appropriate side, often with shooting type pains, certainly completely different to the type of headache Mr Kitchener described and certainly, in this case, without any underlying substrate cause in terms of the MRI of the cervical spine, he definitely does not have occipital neuralgia.
Analysis and Findings
Lumbar spine
33. It is not contested that the MRI imaging demonstrates an altered or damaged L5/S1 disc present since at least 2003. Dr Maxwell argued that the changes seen on MRI were not significant and a variant of normal, but we accept these as being pathology of the disc. For permanent impairment assessment the significance of altered disc, showing a broad based posterior protrusion with an annular tear, must be tempered with the clinical findings. To qualify for 10% permanent impairment a reduction of less than half the normal range of movement is required by the Comcare Guide. All specialists examining Mr Kitchener found a full range of forward flexion (and this was confirmed on the video), being able to forward flex with his fingers to the ground, allowing for slight knee flexion. Dr Maxwell and Dr Chase found a full range of movement of L/S spine. Dr O'Neill initially, on his clinical examination, apportioned a 10% impairment, but having viewed the video changed his impairment to zero. Dr Endrey-Walder, whilst accepting forward flexion as normal, remained unconvinced about the other movements of extension and side flexion and would have preferred to give a 5% impairment or somewhere between 5% and 10%.
34. The reviewable decision also includes the right lower limb. No specialist was able to give a clinical explanation as to the pain in this area. The MRI reported the disc protrusion abutting both S1 nerve roots which are not displaced or thickened and the S1 lateral recesses as normal. These appearances, as pointed out by Dr Maxwell, must be taken in conjunction with the physical findings. Physical examination of the right lower limb was found as normal by all examiners and there were no signs of radiculopathy. There were no motor or sensory signs in the leg. The symptoms referable to the leg remain unexplained and result in no impairment according to the medical opinion before us.
35. Using table 9.6, we are unable to apportion any permanent impairment to the lower back as three specialists have found a full range of movement, and Dr Endrey-Walder can now at best suggest a 5%, or somewhere between 5 and 10% impairment, which is insufficient to qualify Mr Kitchener for permanent impairment. We assess Mr Kitchener as having 0% impairment of the lower spine.
Cervical Spine
36. It is accepted Mr Kitchener had facet joint irritation in 2003. Dr Maxwell, who saw him at the time, was of the opinion the facet joint irritation was as a result of the June 2003 incident and, as Mr Kitchener still had some ongoing symptoms relating to the incident of March 2002, there was probably an aggravation from 2002. Dr Chase was of the same opinion. His diagnosis was capsular strain of the upper cervacal facet joints. Dr Maxwell expected Mr Kitchener would improve over the next 6 weeks sufficiently to return to normal duties. Dr Chase noted some tenderness over the left cervical spine maximal in the midcervical region in 2004.
37. The MRI scan report shows Mr Kitchener’s condition is normal and the posterior facet joints outlines are normal, and are normally aligned. We are entirely dependent on the clinical findings to assess any impairment. The video was of limited value in the assessment of neck movement. Mr Kitchener has a normal range of neck movement as reported by Drs Chase, Maxwell and O'Neill. Using table 9.6 and accepting the opinions of these doctors, Mr Kitchener does not qualify for any minor restriction of movement or greater loss of movement to allow him any percentage impairment for the cervical spine. Dr Endrey-Walder is alone in his finding of minor restrictions of movement. We find his assessment of 5% impairment should not be preferred. We assess Mr Kitchener as having 0% permanent impairment of the neck.
38. As we have found no permanent impairment for either the neck or lower back, there is no question of aggregation of the impairments under s 24(7).
Headache
39. Comcare have accepted that Mr Kitchener has suffered two injuries in the course of his work with Australia Post. Mr Perry submitted that it was common sense that it was more likely than not that the headaches were related to the work that Mr Kitchener describes. We are cognisant of the recent decision in Canute v Comcare [2006] HCA 47 that there is no foundation in the Act for any distinction between "an injury" and a consequential or secondary injury. For instance, if we accept Mr Perry’s submission of "migraine" as consequential to the neck injury, it would be open to us to make a separate assessment in respect of the migraine. Mr Johnson submitted that unless the headaches were the result of some event at work or unless the headaches truly were related to some work injury which is continuing, there could not be a permanent impairment compensable under the Comcare Guide in relation to the headaches.
40. Before a nexus can be created between a previous injury or injuries and a consequential or secondary injury it is necessary to determine the nature of the secondary condition. The disease or ailment is headache or headaches, labelled "migraine". This label appears to have been made by the doctors at the Derby Street Family Medical Centre and therefore, not unreasonably, used by Mr Kitchener. The first question for us is to determine is when the headaches commenced. Mr Kitchener's evidence was that he first experienced headache in November 2002, when it gradually came on whilst he was riding his motor cycle doing deliveries. He saw Dr Woolnough on 13 November 2002 complaining of sore side of neck, back and lower back and headache. The history he gave to Dr O'Neill was that he had his first ever "migraine" on driving home the evening of 17 June 2003, the day he rode his bike over the obscured Telstra pit. Dr Chase's history taken on 3 December 2003, was that on the 15 June 2003 after he ran over the Telstra pit hole Mr Kitchener kept working but he started to develop “tingly” symptoms in his left occipital and temporal region. He later started to get headaches. Dr Chase diagnosed that “he had some referred pain in the C2 dermatome resulting in dysesthesia and occipital and temporal headaches". On 19 April 2004 Mr Kitchener reported to Dr Chase that his headaches had largely gone although he got occasional flare-ups.
41. Dr Endrey-Walder did not record the time of onset of the headaches, only recording Mr Kitchener's report that he had continuous “achenes (sic)” in the back of the neck and on average "migraine once every two weeks”, which causes him to lie down in a dark room. Dr Endrey-Walder's opinion was that Mr Kitchener continues to have symptoms on account of damage to lower cervical facet joints, and it is quite likely that his reported migranous headaches, always emanating from the posterior aspect of the lower neck, are related to this condition. Dr Maxwell in his report of 14 August 2003 reported Mr Kitchener was complaining of "migraine type headaches" on the left side and discomfort on the left side of the neck. At the commencement of their concurrent evidence both Dr Endrey-Walder and Dr Maxwell agreed that migraine was not in their specialty area.
42. Dr O’Neill was the only neurologist to provide evidence and his diagnosis was episodic headaches and that the headaches were not typical of migraine. They were episodic, as would be expected of migraine, but they were rather atypical kind of pain and certainly not associated with any of the more typical features of migraine, in particular, nausea, vomiting, photophobia or phonophobia and, on the occasions medication was used, they responded quite quickly to Nurofen Plus. Of more importance, Dr O'Neill saw no reason why a person prone to episodic headaches would have had those headaches generated by the type of incident which Mr Kitchener felt was responsible, namely the incident on 17 June 2003. When referred back to the other history of migraines starting in November 2002, Dr O'Neill again said there was no reason why riding a motor bike should cause the development of episodic headache, whether or not they be migraine or otherwise. Dr O'Neill said the inconsistencies in Mr Kitchener's reporting of symptoms made it very hard to make a meaningful assessment when talking about a subjective complaint such as pain.
43. Mr Perry asked Dr O'Neill about occipital neuralgia. Dr O'Neill said this was a very specific type of headache, arising from the C2/C3 facet joint degenerative disease. It occurs in later life with severe pain in the occiput on the appropriate side often with shooting type pains and certainly completely different to the type of headache Mr Kitchener described and certainly in this case, without any underlying substrate cause in terms of the MRI.
Table 13.1:
Intermittent Conditions
44. Table 13.1 provides ascending guidelines for use in the assessment of disorders of the Haemopoietic System such as anaemia, leucocyte and platelet disorders and intermittent dosorders such as asthma, migraine, tension headache, epilepsy etc.
45. The table shows that in order to satisfy a permanent impairment of 10%:
“Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR
Attacks occur less frequently AND cause interference with all activities of daily living other than self care.”
46. We have decided, based on the evidence of the Neuroloigist, Dr O'Neill, that Mr Kitchener does not suffer migraine or occipital neuralgia. Dr O' Neill considered the headaches as episodic headaches. As in Daniel V Department of Defence AAT No 13246 3 September 1998, where the preamble in table 13.1 which nominates certain conditions, including asthma, migraine, tension headaches, epilepsy etc, caused the Tribunal to consider Mr Daniel's headaches should be assessed pursuant to table 13.1 as they were intermittent and they were debilitating for one to six hours, we also consider it reasonable to assess Mr Kitchener's episodic headaches under table 13.1. A similar approach was taken in Allen V Comcare [2000] AATA 534 which involved an intermittent disorder to the auditory apparatus. Mr Kitchener’s episodic headaches satisfy the 12 or more times a year requirement as they occur at least every three weeks. Dr O'Neill did not connect the episodic headache with the incidents at work but we are not convinced, on balance, that the episodic headache is not consequential to the impairment resulting from the neck injury.
47. The percentage of permanent impairment or non-economic loss suffered by an employee as the result of an injury ascertained under the methods referred to in (5) paragraph (1) (c) may be 0%. This is the case with Mr Kitchener, who has 0% impairment of the neck. This does not prevent a finding of impairment from the second injury (intermittent headaches), consequent to the neck injury.
48. To meet a 10% permanent impairment under table13.1, having satisfied the frequency criterion of the headaches, the question then is, are these headaches causing minor interference with activities of daily living?
Activities of Daily Living
49. The Comcare Guide to Permanent Impairment defines “Activities of Daily Living” as those activities that an employee needs to perform to function in a non-specific environment, that is, to live. The measure of activities of daily living is a “measure of primary biological and psychosocial function”. They are:
§Ability to receive and respond to incoming stimuli
§Standing
§Moving
§Feeding
§Control
§Self care (bathing, dressing etc)
§Sexual function
50. Mr Kitchener told us takes medication (Panadeine Forte or Nurofen Plus) when the headaches come on. He can sometimes continue to work with the headache and sometimes he lies down, either on the floor or the sick bed and this is usually for one to one and a half hours until the medication kicks in. He may or may not go back to work. Outside of work, if he has a headache, he said it restricts him from performing household chores, playing with his children and his participation in fly fishing competitions. He has ceased contact sports but this was more so as not to aggravate the neck. He has virtually stopped hiking because of his neck and back but also because of the risk of developing a headache on a long hike. We note that earlier his evidence was that his earlier hiking was in company with his father and part of his upbringing, so that circumstances may have changed. He also told us of restriction in sexual function was due to his neck and back problems without reference to headaches.
51. Deputy President Burns in the matter of Re O’Rourke V Comcare [1999] No 12154 (unreported) took a global approach. In that matter, the applicant suffered intermittent headaches and the level of impairment was assessed under table 13.1. The only activity of daily living that was interfered with to some degree was sexual libido. However, on the evidence he normally indulged in sexual relations on an occasional basis only and the impairment was not such as could be regarded as minor interference. Any impairment of sexual function with Mr Kitchener is related to his neck and back.
52. Spender J in Comcare v Emery (1993) 32 ALD 147 considered the construction of "activities of daily living" and focused on those activities an individual needs to perform in a non-specific environment, that is, to live. A difficulty for Mr Kitchener is that it is extremely difficult to separate his neck and back problems for which he has no impairment entitlement from any potential interference with activities of daily living consequent to the episodic headaches. Spender J quoted the Tribunal decision in Emery at (150-151):
The tribunal has also regard to the term ADL (activities of daily living). This term is frequently used by members of the caring professions and is often related to basic biological functioning. The Tribunal has the advantage of a glossary definition of this term. The definition goes beyond the common usage of the term by defining ADL as a "measure of primary biological and psychosocial function."
53. We are not able to find that Mr Kitchener’s episodic headaches occurring at about three week intervals and relieved in 60-90 minutes by medication interfere with his activities of daily living even to a minor degree. The Shorter Oxford English Dictionary defines "minor" as "comparatively small or unimportant, which is compared with "no interference". Before us is no analysis of what "activities of daily living” of Mr Kitchener are compromised. According to the “Activities of Daily Living” as described in the Guide, we are unable to say the episodic headaches caused any interference, let alone minor interference, to Mr Kitchener primary and psychosocial function. We do not consider that a headache every three weeks relieved by analgesic, is capable of the description “debilitating”, as in Daniel, not as causing an interference, albeit a minor interference to any of the daily activities listed in the table. That is, the headaches do not prevent Mr Kitchener from performing all activities of daily living without minor interference. In addition the headaches do not fulfil the other definition for 10% impairment, namely, attacks occur less frequently AND cause interference with activities of daily living other than self care.
54. It follows that we find no impairment that comes within table 13.1. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Rhonda Pietrini
AssociateDate/s of Hearing 1-2 November 2006
Date of Decision 21 December 2006
Counsel for the Applicant Mr Perry
Solicitor for the Applicant Hamad Zreika
Counsel for the Respondent Mr Johnston
Solicitor for the Respondent Laurence Forner
0
3
0