Koutzas and Australian Postal Corporation
[2003] AATA 637
•4 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 637
ADMINISTRATIVE APPEALS TRIBUNAL N 2001/1690
GENERAL ADMINISTRATIVE DIVISION
Re: Nikolaos KOUTZAS
Applicant
And: Australian Postal Corporation
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
Date: 4 July 2003
Place: Sydney
Decision:The Tribunal:
i) varies the respondent’s reviewable decision dated 23 October 2001 by setting aside the determination made on 28 August 2001 to cease liability in respect of the injury. Liability continues from 28 August 2001.
ii) affirms the reviewable decision to deny liability under ss.24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of any permanent impairment resulting from the injury.
The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.
(sgd) P. J. Lindsay
Senior Member
© Commonwealth of Australia (2003)
CATCHWORDS
COMPENSATION - disc prolapse –- respondent ceased liability – whether liability continues – whether applicant entitled to compensation for permanent impairment
Safety, Rehabilitation and Compensation Act 1988 ss. 6, 14, 16, 24, 27
Health Insurance Commission v Van Reesch (1996) 24 AAR 81
REASONS FOR DECISION
P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
1. This is an application by Mr Nikolaos Koutzas (the applicant) for review of a decision by the respondent, the Australian Postal Corporation (the respondent), ceasing liability from 28 August 2001 to pay compensation for an injury to the applicant’s neck and right shoulder.
2. At the hearing, the applicant was represented by Mr B Batchelor of counsel. Mr P Jones of counsel appeared for the respondent. The applicant gave evidence at the hearing and Dr G Mahony, orthopaedic surgeon, gave evidence on his behalf. The respondent called Dr N McGill, rheumatologist. The Tribunal also heard evidence from Dr T Salama, the applicant’s general practitioner. Documents prepared under s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) were before the Tribunal as well as the following exhibits tendered at the hearing:
Exhibit No Document Date A1 Dr Salama’s Workers Compensation File Undated A2 Report of Dr Mahony (excluding sections as ordered by the Tribunal at the hearing) 31 August 2000 A3 Report of Dr Mahony 20 August 2002 A4 Assessment of Dr Mahony 20 August 2002 A5 Report of Dr Mahony 17 February 2003 A6 Report of Dr Mahony 23 April 2001 A7 Report of Dr Chase 7 December 2001 A8 Report of Dr Endrey-Walder (excluding sections as ordered by the Tribunal at the hearing) 11 July 2002 A9 Report of Dr Maxwell 22 March 2002 R1 Letter from Forners to Slater and Gordon 29 April 2003 R2 Letter from Slater and Gordon to Forners 24 April 2003 R3 Applicant’s amended statement of facts and contentions 24 April 2003 R4 Letter from Forners to Slater and Gordon 29 April 2003 R5 Affidavit of service, and
Summons to Produce documents addressed to Dr Salama23 April 2003
9 April 2003R6 Affidavit of service, and
Summons to Produce documents addressed to Dr Salama9 January 2002
18 December 2001R7 Facimile from Forners to the Tribunal 21 February 2002 R8 Letter from the Tribunal to Forners 27 February 2002 R9 Surveillance video of the applicant Undated R10 Report of Dr McGill 2 May 2003 R11 Report of Dr McGill 10 March 2003 R12 Report of Dr Maxwell 12 May 2003 R13 Report of Dr O’Neill 13 September 2002 R14 Supplementary report of Dr O’Neill 13 September 2002 R15 Letter from the Forners to Dr O’Neill and report of Dr O’Neill 24 September 2002 R16 Report of Dr O’Neill 28 February 2003 R17 Report of Dr O’Neill 12 May 2003 Background
3. Mr Koutzas was born on 29 September 1964 and commenced work with Australia Post on 31 August 1987 as a full-time Parcel Post Officer Grade 3. On 17 May 1999 he lodged an incident report with the respondent reporting an incident that happened on 7 May 1999 (T8). The applicant stated that he had sustained an injury to his neck and right shoulder in the following terms:
after consolidating & getting rid of the W.A. I felt a stiffness in the neck & I felt pain in the neck and right shoulder.
4. The applicant’s claim for rehabilitation and compensation was also lodged on 17 May 1999.
5. On 31 May 1999 the respondent accepted liability for a neck and right shoulder injury (“strained right sterno-cleido-matoid muscle (neck)”) and commenced the payment of weekly compensation from 10 May 1999 (T12).
6. By its determination made on 28 August 2001, the respondent’s delegate ceased liability to pay compensation from that date. On 18 September 2001, the applicant requested a reconsideration of this decision but on 11 October 2001, the respondent affirmed the determination. In explaining why liability had been ceased, the delegate referred to the opinions of Dr McGill and Dr Carr, another rheumatologist, that the applicant suffered from a degenerative condition. The respondent also noted that Mr Koutzas had not specified a particular injury at the time of claiming compensation. Further, the respondent noted the opinion of Dr Chase, an occupational physician, that the disc rupture could be related to the circumstances of 7 May 1999, was not the only pathological finding in relation to his cervical spine. The delegate stated (T186-304):
… I prefer the evidence of Dr McGill and consider this rupture to represent the progression of the degenerative condition rather than an indication of any frank injury. In summary, the balance of the available evidence satisfies me that your current condition would be the same irrespective of your employment.
7. On 18 October 2001 the applicant lodged a claim for permanent impairment in respect of his neck, right shoulder and back (T189).
8. On 23 October 2001 the respondent varied its determination of 11 October 2001 to include a denial of liability for permanent impairment. The decision, as varied, stated (T190):
To remove any doubts which may exist regarding the AAT’s authority to consider your client’s claims under sections 24 and 27, I will issue a further s.62 decision specifying the extent of the cessation and denial of further liability. … Australia Post is not liable to pay compensation to Mr Koutzas in respect of any in jury to the cervical spine./neck and arms. The denial of liability encompasses all relevant provisions of the Act, including sections 14,16, 19, 20, 21, 24, 25 and 27.
9. The applicant sought review of this decision on 5 November 2001.
Evidence
10. For the first three or so years of the applicant’s employment by Australia Post his duties included sorting mail and dock work. The latter involved loading and unloading mail bags on trucks, which he described as moderately physical work. From about 1990 he sorted parcels, performed dock work and drove a fork-lift. Around 1996 the mix of work altered and the applicant’s duties included more dock work. The applicant was required to top up or “consolidate” containers standing a metre high by a metre wide, known as ULDs, with mail, small parcels and mailbags weighing between 5 to 50 kgs. He said the work at the Parcel Distribution Centre consolidating the ULDs, involved bending and twisting his back. By 1999 he was also supervising others but he said he still spent a large part of his time actually doing the more physical sorting, consolidating and dock work.
11. The applicant’s evidence was that he had not experienced problems with his neck or right arm prior to 1999. In April 1999, however, he noticed he had a stiff neck and he had to take a day off work. He did not seek any treatment for the stiffness. When he returned to work, his neck was alright. The stiffness returned on 7 May 1999, a Friday. He debated whether he would go in for his night shift. He decided to work though he informed his co-workers that he would supervise only. However, he found that all his staff were fully occupied, so no-one was available to prepare the ULDs for delivery in Western Australia. He had no option but to do some physical work for about an hour to an hour and a half. In detailed questioning he stated that he had no pain during the physical work but felt an increase in stiffness. Pain came on within an hour of completion of the physical task. This pain, which was in his neck and shoulder, was an onset of pain that had not occurred previously. He completed his shift, doing supervisory work only.
12. In cross-examination Mr Koutzas denied that his neck became progressively stiffer in the three week period before 7 May 1999. He said that in this period he had a stiff neck for a couple of days only. He agreed that he was on sick leave on 6 May 1999 but could not remember the reason.
13. On returning home after the 7 May 1999 shift, Mr Koutzas still had pain and stiffness in the neck. Unfortunately he had little detailed recollection of going home, his ability to get to sleep after his shift, the restfulness of his sleep overnight, or his lack of symptoms when he awoke before he got out of bed. He stated, however, that he was very stiff. His only definite recollection was that, on the morning of 8 May as he reached forward to lift the kettle to make a cup of coffee, he suffered severe stiffness and pain in his right arm and shoulder (he is right handed). It was excruciating pain. He graded the pain as being eight out of ten.
14. Mr Koutzas stated that his pain and stiffness continued at that level for the rest of the weekend. He presented to Dr Salama on 10 May 1999 who regarded his symptoms as a minor injury, diagnosed a wry-neck, and gave him analgesics (Voltarin tablets) and an ointment. Dr Salama told the Tribunal that the applicant returned two days later with no relief from the treatment. As a result, she took a full history and his description of the onset of pain led her to suspect a serious and work-caused injury. She ordered X-rays. Mr Koutzas attempted to work on 30 May 1999 but the pain flared. A report by Dr P Phillips (T3) stated that an x-ray of the applicant’s cervical spine on 12 May 1999 disclosed a mild cervical curve convex to the left with loss of normal lordosis indicating muscular spasm. There was very mild narrowing of the C4/5 and C5/6 disc spaces but no other abnormality. Dr Salama then referred the applicant to Dr Steel.
15. Dr Steel, consultant neurosurgeon and spine surgeon, examined the applicant on 9 June 1999 (T16). He obtained a history of neck stiffness without pain during April 1999. No specific exacerbation caused the episode of pain, but the applicant had a night away from work, rested and the stiffness settled until he noticed it again on 7 May 1999. On examination Dr Steel found the applicant to have a stiff neck and a diffusely reduced range of movement. There was no wasting and neurological examination of his upper extremities was normal. Dr Steel noted that applicant’s pain was reduced to 1/10 compared to 8/10 when it began. He considered there was no urgent need for surgical decompression. Dr Steel thought an MRI scan would permit more accurate assessment of cord compression and neurological deficit.
16. Dr Salama certified the applicant to be fit for restricted duties work from 12 August 1999 for four hours daily, with no lifting, pushing or pulling and supervisory duties only. Dr Steel reviewed the applicant following his cervical spine MRI scan on 14 July 1999 and advised Dr Salama (T21) that the MRI scan showed a significant right sided C5/6 disc protrusion and indenting the C7 nerve root. However, there was no significant spinal cord distortion or compression. Dr Steel recommended that exercises and physiotherapy continue. Dr Steel reviewed the applicant again on 15 September 1999 and advised Dr Salama (T32) that, with physiotherapy, Mr Koutzas had continued to improve. He felt the occasional sharp neck pain should settle.
17. On 24 September 1999, Dr Salama certified the applicant fit for light duties from 27 September 1999 for eight hours per day (T33). She stated he was to avoid heavy lifting, pushing and pulling. On 5 October 1999, Dr Salama certified the applicant unfit for work between 5 October 1999 and 8 October 1999 due to pain in his neck, right shoulder and right arm (T34). It was recommended that he re-commence light duties from 11 October 1999.
18. At the respondent’s request, Mr Koutzas was examined by Dr R Chase, occupational physician, on 29 October 1999. Dr Chase, who observed that the applicant presented in a very straight forward manner and appeared to have a sensible approach to his condition, considered it unlikely that the applicant would be fit to return to his pre-injury duties and would have a permanent lifting restriction of 15 kgs. Dr Chase suggested that the conservative treatment continue for another six months since Mr Koutzas was responding well to physiotherapy. Dr Chase re-assessed the applicant on 28 March 2000 and noted (T56) that the applicant was suffering from a ruptured C5/6 disc with extension to the right that was compressing the right C6 and C7 nerve root. Dr Chase noted the applicant’s chronic neck pain and radicular pain into the right arm. Dr Chase suggested that Mr Koutzas reduce his working day to six hours. Since the physiotherapy was not providing relief, Dr Chase proposed that it be discontinued. Mr Koutzas asked the respondent to re-instate his physiotherapy because the pain and stiffness in his neck and shoulder became worse. He consulted Dr Steel on 21 July 2000 about pains in his right arm. Dr Steel advised Dr Salama that the physiotherapy should be resumed (T84). As it was considered that Mr Koutzas was not improving, Dr Steel suggested a cortisone injection and on 18 August 2000 a periradicular injection of steroid was administered into the right C5/6 intervertebral foramen and into the capsule of the right C5/6 facet joint.
19. At the request of his solicitors, Mr Koutzas was examined by Dr Mahony on 24 August 2000. Dr Mahony obtained a brief history (Exhibit A2) of the applicant’s duties on 7 May 1999. He noted that Mr Koutzas intended not to perform any physical work during that shift because of his stiff neck, but he could not avoid having to pack mail bags firmly together into steel cages. Dr Mahony reported symptoms of pain in the back radiating into the occipital area and to the right upper arm, pins and needles in some fingers of the right hand and pain in the outer aspect of the right elbow. After reviewing the investigative material Dr Mahony formed the view that the applicant’s symptoms were referable to cervical disc lesions at C4/5 and C5/6 in association with degenerate changes with nerve root irritation affecting the right upper limb, a capsulitis of the right shoulder.
20. In oral evidence, Dr Mahony said that he thought that Mr Koutzas suffered a frank disc lesion on 7 May 1999. Dr Mahony believed that the carrying and packing involved in consolidating the ULD would involve the applicant in awkward actions and that work activity on 7 May 1999 produced the disc lesion. It was significant in his opinion, that the applicant was a relatively young man whose cervical spine, as revealed in the xrays taken later in May 1999, revealed only mild changes and narrowing of the spaces at C4/5 and C5/6. In Dr Mahony’s opinion the disc lesion is simply too great for it to have been present in such an individual who has been mainly asymptomatic. When asked by Mr Jones whether he knew that the applicant had stiffness in his neck prior to going to work on 7 May 1999, Dr Mahony responded that he did not, but in any event that would not change his view that the pattern of symptoms altered considerably on 7 May after the applicant went to work. Dr Mahony acknowledged that his assessments of permanent impairment were subjective and that he did not consider the Guide to the assessment of the degree of permanent impairment (the Guide) to be a reliable basis for assessment.
21. The applicant was reviewed again by Dr Chase on 4 October 2000. Dr Chase noted (T99) that the applicant’s symptoms improved for a few weeks following the injection of steroid. Physical examination found that the applicant held his neck very stiffly. Range of movement of the cervical spine had not materially changed since the assessment in March 2000. There was mild tenderness only in the right neck. Dr Chase thought that workplace restrictions be continued and advised that Mr Koutzas was capable only of working up to six hours per day. Dr Steel reviewed him on 16 October 2000 and informed Dr Salama that a microdiscetomy and a nerve root decompression were advisable.
22. The respondent sought the opinion of Dr Carr, rheumatologist, who examined the applicant on 3 November 2000 (T107). The applicant’s history referred to the limitation in right neck movements for about 3 or 4 weeks prior to 7 May 1999, but not to a specific incident. An episode of neck stiffness could last for about four to five days. Dr Carr noted that the x-rays taken on 12 May 1999 “ … perhaps showed a little degenerative change at C5/6 segment with some anterior osteophytes.” The CT scan of 2 June 1999 suggested a right sided posterior paracentral disc protrusion, with some minor degenerative changes at C6/7. On examination Dr Carr noted that Mr Koutzas had approximately 20 per cent restriction of cervical extension and about 10 per cent restriction of left cervical rotation. He could not reproduce the applicant’s arm pain by posturing the neck but noted that this did increase pins and needles in the applicant’s third, fourth and fifth fingers. Lumbar movement was satisfactory. Dr Carr stated:
Mr Nikolaos Koutzas seemed to develop fairly spontaneous onset of stiff neck unrelated to any particular incident for the month or so before 7.5.99. Again on that night he really didn’t claim any particular incident but noted a little stiffness in the neck with minor soreness which became severely painful the next morning on waking.
It is quite conceivable that his disc protrusion may simply have occurred earlier over the month and was potentially worsened by the activities on 7 May 1999, or sleeping postures.
… It is difficult to be certain as to whether or not the disc protrusion was caused by work activities, but in the absence of other activities it is possible that this was the case, but equally likely that he may have slept in awkward postures to begin the problem in the first place.
Dr Carr thought that surgery may improve the arm pain but not the neck stiffness. Even with surgery, Dr Carr was of the view that Mr Koutzas may not be able to return to pre-injury duties and his prognosis was guarded.
23. Dr Steel performed a successful microdiscectomy on 11 December 2000. It produced the expected result of a dramatic decrease in Mr Koutzas’ radicular pain, and almost completely relieved it. The neck stiffness remained. On review six weeks following the surgery, Dr Steel advised that the applicant should start a course of muscle strengthening for his cervical and spinal musculature (T122).
24. Dr Chase reviewed Mr Koutzas on 4 April 2001. Dr Chase noted (T142) that the applicant demonstrated full forward flexion but lateral flexion and extension had decreased by approximately 50 per cent. There was tenderness in the cervical spine and over the right shoulder girdle, and crepitus in the shoulder. In Dr Chase’s opinion the current symptoms were still referable to the incident on 7 May 1999 and that they were unlikely to cease. Dr Chase stated that the applicant “will be left with permanent impairment of some degree although it is too early to state the precise degree that will be left”.. The applicant was considered fit for four hours work daily. An MRI scan and physiotherapy were recommended. In a report dated 14 May 2001 (T151) Dr Duncombe summarised her findings of an MRI of the cervical spine and noted that the previous scan of 14 July 1999 was not available for comparison. Dr Duncombe stated that there were post-operative changes on the right at C5/6 and some mild residual posterolateral disc protrusion at this level not causing evidence of cord compression. There were also minor central C4/5 and C6/7 protrusions, also not causing cord compression.
25. Mr Koutzas was reviewed by Dr Steel on 22 May 2001. Dr Steel noted (T158) that the MRI scan did not show evidence of nerve compression and that the previous disc protrusion at C5/6 had been removed. He felt that a steroid injection would assist in settling down the inflammation and associated right arm pain. Dr Steel thought that the pain would settle over the coming weeks.
26. At the respondent’s request Mr Koutzas was referred to Dr McGill for examination on 21 June 2001. Dr McGill reported (T162) that the applicant’s history was essentially the same as given to Dr Steel. The applicant’s current symptoms were stiffness and a cramp like feeling in the neck, soreness in the right shoulder and proximal arm, and a cramp feeling at times in the right elbow. Until recently, Mr Koutzas had been taking up to four Panadeine Forte a day. On examination Dr McGill noted restricted neck movements which he felt were a genuine representation of the applicant’s true capacity. Dr McGill diagnosed degenerative cervical spine disease. In Dr McGill’s opinion the course of the applicant’s symptoms would probably have been the same regardless of his work activities. He felt that the lifting activities the applicant had been performing on 7 May 1999 would not have had any significant influence on the development of the degenerative changes in his cervical spine nor the development of disc protrusion. Finally, Dr McGill stated that the degenerative changes to the cervical spine were widespread and would progress in accordance with the history of degenerative cervical spine disease. For someone with degenerative disc disease, a disc protrusion is a progressive event.
27. In cross-examination Dr McGill said that, while it is not possible to be dogmatic, he thought the concept that a protrusion suddenly occurs one day is a faulty concept. He allowed that a disc protrusion can be brought on by a trauma, such as a motor vehicle accident, but he did not regard the physical activities performed by Mr Koutzas on 7 May 1999 to amount to a substantial event or trauma. In his view, had there been an MRI scan in January 1999 it very likely would have shown evidence of a disc protrusion.
28. The respondent had arranged surveillance of Mr Koutzas. Thirty six minutes of video (Exhibit R9) was shown of activities on 11, 12 and 13 April 2003. It was filmed over six days of surveillance. Much of the footage showed Mr Koutzas watching his son play a game of soccer. Dr McGill in cross-examination said he had viewed the video and commented that the applicant’s neck movements looked normal. In his report dated 2 May 2003 (Exhibit R10), Dr McGill stated that in light of the video, he assessed the applicant’s permanent impairment under the Guide at nil per cent in relation to Table 9.6 Spine, and Tables 9.1 Upper Extremity and 9.4 Limb Function – Upper Limb.
29. Dr Steel reviewed the applicant on 6 July 2001 at the request of the applicant’s solicitors. Dr Steel noted (T172) that the diagnosed condition, C5/6 disc protrusion, was consistent with the applicant’s history of first noticing a stiff neck in April, which settled, followed by stiffness again on 7 May 1999 after two hours of lifting work. Dr Steel’s prognosis was guarded. He noted that Mr Koutzas still experienced significant neck pain despite physiotherapy and analgesia. Dr Steel thought the applicant’s neck pain may continue and may require ongoing physiotherapy and exercise treatment. Surgery, however, was unlikely.
30. Dr Salama reported to the respondent on 3 August 2001 (T173). Dr Salama stated that in her opinion Mr Koutzas had a work injury and not a degenerative condition. She referred to the initial X-ray of 12 May 1999 in support of her opinion. In this X-ray it had been stated that there was no reactive change present.
31. Dr Chase examined Mr Koutzas again on 4 December 2001 and gave Dr Salama a note of the consultation dated 7 December 2001 (Exhibit A7). Dr Chase’s history recorded that the applicant had been performing his usual job in April 1999 and noticed his neck had been stiff which caused him to take a day or two off work. Although the symptoms went away, they returned on 7 May 1999 when he was consolidating ULDs. In summary Dr Chase noted:
Mr Koutzas is a 37 year-old man who sustained an intervertebral disc disruption of the C5/6 disc with compression of the right C6 and C7 nerve root. It is probable that he developed the symptoms as a result of activities at work. …
Dr Chase thought that the applicant was permanently unfit to return to his full duties. He reported that Mr Koutzas was still experiencing significant neck pain, stiffness and radicular pain into the right arm, but is coping with the symptoms.
32. The applicant was examined by Dr D Maxwell, orthopaedic and spinal surgeon, on 24 January 2002 at the request of the respondent’s solicitors. Dr Maxwell obtained a history that largely conformed to that given by the applicant to the other doctors. The applicant said that he took a day off work in April 1999 due to his stiff neck, but he went back to work and his neck improved. Dr Maxwell reported (Exhibit A9):
There is no doubt that from Mr Koutzas’ history that his neck was painful prior to developing right shoulder and arm pain after lifting at work on 7.5.99. It is possible that he had some internal disc damage causing neck pain prior to the prolapse which I consider probably occurred while he was lifting on 7.5.99 when consolidating ULDs for the West Australian mail. It is not unusual for the nerves to take 24 hours to become inflamed causing the radicular pain. …
I consider, given the history I obtained, that he did engage in quite heavy work on 7.5.99 and the next morning developed radiculopathy. It is probable that the disc protrusion actually occurred on 7.5.99. …
I consider that because of the absence of radiculopathy prior to 7.5.99 it is unlikely that the protrusion had occurred before this time.
Referring to the Guide, Dr Maxwell made the following assessments of the degree of the applicant’s permanent impairment: Table 9.1 Upper extremity – nil per cent; Table 9.4 Limb function, upper limb – nil per cent; and Table 9.6 Spine – 5 per cent level of impairment of the cervical spine.
33. Dr Maxwell was asked by the respondent’s solicitors to view the video (Exhibit R9). He reported on 15 May 2003 (Exhibit R12) that the video altered his earlier opinion. Dr Maxwell considered that the applicant’s symptoms had improved since he had seen him twelve months earlier. Consequently, Dr Maxwell found Mr Koutzas had no loss of movement of his cervical spine and consequently revised his assessment of permanent impairment under Table 9.6 to nil per cent.
34. Mr Koutzas was referred by his representatives for examination and assessment to Dr P Endrey-Walder, surgeon, on 11 July 2002. The applicant’s symptoms were recorded (Exhibit A8) as pain across the T1 and T2 levels of the upper back, the right supraclavicular area and in the lateral aspect of his right arm. He referred to stiffness in his neck and restricted rotation of his right shoulder. Dr Endrey-Walder observed that throughout the examination, the applicant kept his neck almost motionless with his neck tilting forward. Extension was mildly restricted and flexion moderately restricted. Dr Endrey-Walder found no evidence of neurosensory deficit of the upper limbs. Mr Koutzas was unable to rotate his head beyond 45 degrees to the right, achieving 60 degrees rotation to the left. Dr Endrey-Walder noted that the x-ray on 12 May 1999 showed slight reduction in the height of the C5/6 disc space “ … but no other evidence of underlying spondylosis or disc degenerative condition. Furthermore, the subsequent CT scan and MRI scan refer exclusively to the damage at the right side of the C5-6 disc without any evidence of other pathology in the cervical spine column, …”
35. Mr Koutzas was examined by Dr J O’Neill, consultant neurologist, on 13 September 2002 and a report was prepared for the respondent’s solicitors (Exhibit R 13). Dr O’Neill recorded that the applicant had neck stiffness but no pain about three weeks before 7 May 1999, and it lasted for a couple of days. He did not require medical treatment. On examination, the applicant performed cervical spine movements slowly but fully and without obvious pain. Dr O’Neill noted that upper limb bulk, power and reflexes were normal. In his opinion,
I have no doubt symptoms at that point in time [the morning of 8 May 1999] were on the basis of a right C5/6 disc prolapse but it is my view this occurred on the basis of constitutional degenerative disease of the spine and would have happened whether or not Mr Koutzas had been at work on 7.5.99. There was some radiological support for this view in that plain x rays on 12.5.99 reported (clearly well established) disc narrowing at C4/5 and C5/6 and subsequent CT and MRI studies reported discogenic change at C4/5 as well as the C5/6 disc prolapse.
As Dr O’Neill considered the applicant to have demonstrated only minor restrictions of neck movement, he assessed (Exhibit R15) the degree of permanent impairment at 5 per cent according to the Guide.
36. Mr Koutzas said in evidence that he is now working full days of clerical work. He uses a computer and it involves some keying. He is not to lift items heavier than 5 kgs. He says his pain is usually about 2 or 3 out of 10, but at times the pain will be 8 or 9 out of 10. He takes Neurofen Plus or Panadeine for the pain. He said that his neck and arm pain prevent him from playing with his children. He gets headaches and pain in the right occipital and lateral side of his head and forehead, on average, twice a week. He said that his wife attends to household tasks, such as washing the car, mowing the lawn and gardening. In cross-examination Mr Koutzas acknowledged that he does not have any difficulty in walking. He likes to play the guitar, strumming or plucking with his right hand, and to play computer music which requires him to use a mouse and at times, the key-board. He conceded that he is able to lift the bonnet of his car. Mr Jones suggested to Mr Koutzas that he deliberately restricted his neck movements when examined by Dr Endrey-Walder. The applicant denied that he exaggerated his restrictions and said he did not put on a show for the Tribunal when demonstrating his neck movements.
37. As for the applicant’s headaches, the respondent requested Dr McGill to assess whether there was any permanent impairment under the Guide’s Table 13.1 ‘Intermittent Conditions’. Dr McGill noted in his letter dated 10 March 2003 (Exhibit R11) that his examination of Mr Koutzas in June 2001 found that he did not have problems in the head. Consequently, Dr McGill considered the applicant did not have a permanent impairment in accordance with Table 13.1 regarding headache or other head symptoms. Dr O’Neill was also asked to assess permanent impairment according to Table 13.1. He disagreed with Dr Mahony and thought it incorrect to refer to the neck pain radiating to the occipital area as a headache, separate from the radiated pain. Dr O’Neill did not have a history of headache as such. In his letter of 28 February 2003 (Exhibit R 16) he stated that Mr Koutzas had a nil per cent permanent impairment under Table 13.1.
applicable legislation
38. The following provisions from the Safety, Rehabilitation and Compensation Act 1988 (the Act) are relevant:
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …
The Act contains relevant definitions:
Section 4
Interpretation
(1) In this Act, unless the contrary intention appears:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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'semployment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment
Section 16 provides that the respondent is liable to pay for the cost of reasonable medical treatment for the injury.
39. The following provisions are relevant where there is a claim for permanent impairment:
Section 24
Compensation for injuries resulting in permanent impairment(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section. …
Section 27
Compensation for non-economic loss(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…
Section 28 Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
…
Findings and Consideration
40. Mr Batchelor advanced alternative submissions. First, if the Tribunal finds the applicant suffered from degenerative cervical spine disease, then in his submission, the disease was aggravated by the work. Mr Batchelor said the aggravation started in April 1999 and he relied on the opinion of Dr Endrey-Walder. Alternatively, Mr Batchelor submitted that the disc protrusion was an injury that occurred either between April 1999 and 7 May 1999 or on the evening of 7 May 1999 and he relied on Dr Maxwell’s opinion. In contrast to the firmly held view of Dr McGill he referred to the opinion of the other rheumatologist, Dr Carr, who said it was difficult to be certain how the protrusion occurred.
41. The respondent submitted that the applicant has degenerative cervical disease and that there has not been a trauma that brought about the pathology that subsequently required surgery in December 2000. On the balance of probabilities, Mr Jones emphasised that there was no connection between the disc prolapse and the applicant’s employment. The respondent contended that Mr Koutzas did not suffer an injury as defined in the Act, on 7 May 1999. Mr Jones submitted that the video evidence was at odds with the symptoms that the applicant has described to the various doctors and to the Tribunal. Further, Mr Jones submitted that, if there was liability for compensation to the applicant then the operation performed by Dr Steel in December 2000 had rectified the applicant’s problem.
42. The Tribunal finds that Mr Koutzas was a truthful witness. He has given each of the doctors a broadly consistent history and although at the hearing he could not recall some detail, we accept his evidence. We reject the respondent’s contention that the applicant’s evidence is unreliable. We accept his evidence that he had not had pain or stiffness in his neck prior to 1999. We are satisfied that the video did show a greater freedom of movement than was demonstrated at the hearing. However, this is hardly surprising because in a hearing it could be expected that the stress on the applicant would decrease the range of movement relative to the relaxant atmosphere of watching his son in a game of soccer.
43. We are satisfied that on 7 May 1999, Mr Koutzas found that the staff under his supervision were fully occupied on other duties and thus he felt obliged to consolidate the ULDs for Western Australia. We find that this work, of about one and a half hours duration, involved physical activity. He lifted and packed parcels, mail and mail bags and it can be accepted that the mail bags varied in weight but some could be as heavy as 16 kgs. Consolidating required him to get into ULDs and bend and twist his back. He loaded the semitrailer with mail for Western Australia by using a forklift. He experienced pain for the first time about one hour after this activity and his pain subsequently became significantly worse.
44. On the basis of the opinion of the treating specialist, Dr Steel, we find that Mr Koutzas suffered a right C5/6 disc prolapse. We accept Dr Maxwell’s opinion that “I consider that because of the absence of radiculopathy prior to 7.5.99 it is unlikely that the protrusion had occurred before this time.” Consequently, we find, as Dr Maxwell stated, that the C5/6 disc prolapse probably occurred on 7 May 1999, during the intense activity during the shift when the applicant was consolidating the ULDs. In making this finding, we also rely on the oral evidence of Dr Mahony who said the frank disc lesion at C5/6 occurred on 7 May 1999. In addition, the opinion of Dr Chase of 17 April 2001 (T142-237), that the applicant’s symptoms were the result of ‘the incident’ of 7 May 1999, supports the Tribunal’s conclusion. As noted in Dr Chase’s report of 7 December 2001, it was probable that Mr Koutzas developed symptoms as a result of activities at work. Similarly Dr Steel’s opinion that the applicant’s history, mentioning as it did his work on 7 May 1999, was consistent with the disc prolapse at C5/6, supports our conclusion. It is also relevant to our finding that both Dr Maxwell and Dr McGill are of the view that a person may not experience pain at the time of rupturing a disc. Dr Maxwell stated that onset of pain may take up to 24 hours and in Dr McGill’s opinion, symptoms may take from 12 to 48 hours to come on.
45. Dr McGill and Dr O’Neill each holds the view that Mr Koutzas suffers from degenerative disease of the cervical spine. Dr McGill said the MRI scan of July 1999 revealed disc space narrowing and osteophyte formation that left him in no doubt that Mr Koutzas had pre-existing degenerative change. Dr O’Neill’s written report advanced a similar opinion. Given that underlying condition, each specialist considered that the applicant’s prolapsed disc would have occurred regardless of his activities at work on 7 May 1999.
46. Dr Mahony, however, disagreed, stating that the x-ray of 12 May 1999 revealed only a very mild narrowing of the C4/5 and C5/6 disc spaces and the CT scan showed only a mild diffuse bulge at C4/5. Dr Mahony could not accept that the major lesion that occurred on 7 May 1999 was a progression of underlying degenerative cervical spine disease. For Dr Mahony, it was significant that Mr Koutzas was relatively young at 35, had been largely asymptomatic and had only very mild changes to his cervical spine. In his report of 3 November 2000 Dr Carr noted that the x-rays of 12 May 1999 showed little degenerative change at C5/6 and the subsequent CT scan showed only minor degenerative change at C6/7. To similar effect was the opinion of Dr Steel who said the x-rays showed only very mild narrowing of the disc spaces and no other abnormalities. Dr Endrey-Walder went further and stated that apart from slight narrowing of the disc spaces, there was no evidence of underlying spondylosis or disc degenerative condition. The Tribunal takes notice of Dr McGill’s comment that “it is hard to be dogmatic” concerning his view that the disc protrusion was gradually occurring by 7 May 1999. In looking at all the evidence, on balance the Tribunal is satisfied that when the disc ruptured on 7 May 1999, it was not due to any degenerative condition of the applicant’s cervical spine. We reject the respondent’s submission that the disc prolapse was the natural progression of the applicant’s degenerative cervical spine condition. We find, therefore, that the C5/6 disc prolapse was not the inevitable consequence of such a condition and is an “injury” as defined in s.4 (Health Insurance Commission v Van Reesch (1996) 24 AAR 81, at 87, Northrop J).
47. We are satisfied that Mr Koutzas continues to suffer from the symptoms of his right C5/6 disc prolapse, namely pain and stiffness in the neck, and pain in the upper right arm. The respondent is liable to continue to pay compensation in respect of the injury, such as medical expenses and compensation for any absences from work while seeking treatment. However, the evidence does not satisfy the Tribunal on the balance of probabilities that the applicant’s headaches are related to his compensable injury. We note that there was no mention of headaches to Dr Steel, Dr Chase, Dr Carr, Dr McGill or Dr Maxwell. We accept Dr O’Neill’s evidence that while it is possible to have referred pain from the neck to the occipital area, the pain that Dr Mahony diagnosed as ‘headache’, we prefer Dr O’Neill’s opinion that the primary mechanism for such pain is the neck not a new symptom complex of ‘headache’. We find, therefore, that the injury has not resulted in an impairment due to headaches.
48. There was a substantial divergence of expert opinion concerning the degree of any permanent impairment that resulted from the injury. Under Table 9.6 of the Guide, Dr Endrey-Walder assessed the applicant’s level of impairment of the cervical spine as 15 per cent, being the loss of more than half normal range of movement. Dr Endrey-Walder assessed the degree of permanent impairment of the right arm under Table 9.1 ‘Upper extremity’ at 10 per cent. It appears that Dr Steel did not make his 15 per cent assessment of permanent impairment of the cervical spine by reference to the Guide.
49. In his report of 20 August 2002 (Exhibit A4), Dr Mahony determined the applicant’s level of impairment of the cervical spine under Table 9.6 as 20 per cent, which represents complete loss of movement. When cross-examined Dr Mahony acknowledged that he did not find a complete loss of movement in the cervical spine. Rather, he considered the applicant’s level of impairment to be 20 per cent. Dr Mahony assessed the permanent impairment of the applicant’s right arm under Table 9.4 ‘Limb Function – Upper Limb’ at 20 per cent, such level of impairment being described in the Guide as “Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding”. Dr Mahony said in cross-examination that the Guide’s actual definition of a 20 per cent impairment was not adequate to describe the impairment of the applicant's right arm yet he felt that his assessment was accurate nonetheless.
50. On the other hand, each of Dr Maxwell, Dr McGill and Dr O’Neill found Mr Koutzas did not have any permanent impairment of his right arm. Dr Steel came to a similar conclusion. In relation to permanent impairment of the cervical spine, Dr Maxwell initially determined that there was 5 per cent permanent impairment, which corresponds to minor restrictions of movement under Table 9.6 of the Guide. However, after viewing the video Dr Maxwell considered Mr Koutzas had no loss of movement of the cervical spine and so assessed the level of permanent impairment at nil per cent. Dr McGill also altered his opinion of the level of permanent impairment of the cervical spine after having watched the video. In his report of 2 May 2003 (Exhibit R10) he stated that the applicant showed normal neck movements in the video and normal upper limb function. Thus Dr McGill assessed the applicant’s level of permanent impairment under each of Tables 9.1, 9.4 and 9.6 at nil per cent. Dr O’Neill also viewed the video but he did not change his original conclusion regarding permanent impairment, namely, that the applicant had 5 per cent level of permanent impairment in respect of the cervical spine but no loss of movement of either arm above or below the elbow.
51. The Tribunal rejects the evidence of Dr Mahony and Dr Steel in this respect because they failed to determine the degree of permanent impairment under the provisions of the Guide (cf. s.24(5) of the Act). Having regard to the weight of the remaining medical evidence, the Tribunal finds that there is no impairment, as defined, of the applicant’s right upper limb. As for the applicant’s cervical spine, the Tribunal finds that the injury did not result in a compensable degree (at least 10 per cent) of permanent impairment (s.24(7)).
52. For the above reasons the Tribunal will vary the respondent’s reviewable decision dated 23 October 2001 by setting aside the determination made on 28 August 2001 to cease liability in respect of the injury. Liability continues from 28 August 2001. The Tribunal affirms, however, the reviewable decision to deny liability under ss.24, 25 and 27 in respect of any permanent impairment resulting from the injury. The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr P.D. Lynch, Member:
Signed: .......................................................................................
AssociateDate of Hearing 27 & 28 May 2003
Date of Decision 4 July 2003
Counsel for the applicant Mr BatchelorCounsel for the respondent Mr Jones
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