Lynch and Comcare
[2007] AATA 1025
•25 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1025
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2005/1306 N2006/507
GENERAL ADMINISTRATIVE DIVISION ) Re ROSALINE LYNCH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date25 January 2007
PlaceSydney
Decision The Tribunal affirms both decisions under review, that is in Matters N2005/1306 and N2006/507.
Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.
...................................
Ms G Ettinger Senior Member
CATCHWORDS
Compensation– liability accepted for sprain injury at work – Respondent held that based on the medical evidence there was no present liability at 30 January 2006 to pay section 16 medical expenses – Applicant argues diagnosis, jurisdiction – claim for permanent impairment to include headaches for which there is no section 14 liability accepted – decisions under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 24, 27
Comcare, Guide to the Degree of Permanent Assessment, Tables 9.4, 9.6, 13.1
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Canute v Comcare (2006) 91 ALD 552
Abrahams v Comcare [2006] FCA 1829
REASONS FOR DECISION
25 January 2007 Ms G Ettinger - Senior Member
BACKGROUND
1. Ms Rosaline Lynch is 38 years old, and has been employed by the Australian Tax Office (“the ATO”), since approximately 1986. She is married to Darren Mitchell who is a high school teacher. Ms Lynch has completed secretarial studies, worked for a real estate developer, and in the NSW State Library. Her duties at the ATO were in debt collection, and her work has also involved call centre work. Ms Lynch claims that she injured herself at work, and on 26 August 2003, Comcare accepted liability for “sprain of shoulder & upper arm (left) and neck sprain”, incurred on 16 June 2003. Accordingly Ms Lynch was paid compensation and medical expenses which included physiotherapy, osteopathy and massage treatments pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988. On 2 February 2006 Comcare determined that Ms Lynch was not presently entitled to compensation for medical treatment from 30 January 2006.
2. On 19 November 2004 the Applicant also made a claim for permanent impairment. The medical section of the claim form was completed by Ms Lynch’s general practitioner, Dr Ajam, who indicated that she suffered impairment of the neck, upper limb function, and headaches. This claim was refused on 14 April 2005. Ms Lynch has appealed against both decisions and has appeared at the Tribunal to give evidence.
3. I noted that in 2003 Ms Lynch was enrolled at the University of New South Wales in a taxation course, and records before me indicate that she had applied for, and been granted study leave between 12 June and 16 June 2003. However, she gave evidence of having been at work on 16 June 2003, of having suffered the incident at work for which she had claimed compensation, and for which she was granted compensation. At the hearing, Mr Anforth, Ms Lynch’s counsel argued vigorously for two days that she had been at work on 16 June 2003, submitting that she had injured herself when she turned to greet a friend she was meeting for lunch, and stood up from her chair at approximately lunchtime on that day.
4. Unfortunately there was quite an amount of conflict of evidence about dates. After Ms Lynch had given her evidence, and on the third day of hearing, Mr Anforth told me that new evidence had become available which indicated that Ms Lynch suffered the injury at work on 12 June 2003, and that she had not been at work at all on 16 June 2003. He submitted that the pain Ms Lynch suffered on 12 June 2003 at work, (and no longer on 16 June 2003), was of a different kind and magnitude from other pain Ms Lynch had previously experienced.
5. Coincidentally, the evidence before me was that Ms Lynch had attended a Pilates class on the day before, that is, 11 June 2003, and had awoken on 12 June 2003 with a stiff neck, so sore, she said she could hardly move. However she had attended work. She claimed to have suffered an injury at approximately lunchtime on 12 June 2003 as she turned around and then arose from a chair to greet a friend.
6. I noted from the medical reports that Ms Lynch did not inform the doctors who examined her that she had a very stressful period in her life between 1997 and May 2003 with her then partner, who was, she told us, alcoholic, and took drugs. She also told us that he took approximately $100,000 of her money, and that there has been litigation in connection with the return of the money. When she found that he had been unfaithful to her, she not only suffered the anxiety of having to be tested for a sexually transmitted illness, but, in May 2003, developed an anxiety condition. Ms Lynch took all types of leave from work during that period including sick leave, compensation leave, long service and recreation leave, and cared for her partner in a vain attempt to rehabilitate him. Ms Lynch had extended periods away from work as detailed later in these Reasons for Decision.
7. The Respondent did not argue that liability had been accepted, but submitted that medical treatment as contemplated by section 16 of the Act was no longer required after 30 January 2006, and that Ms Lynch did not suffer permanent impairment as claimed by her.
8. I have preferred the arguments of the Respondent, and have affirmed both decisions under review. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
9. I have had to decide:
· Whether Ms Lynch is presently entitled, after 30 January 2006, to claim for section 16 medical expenses pursuant to the Safety Rehabilitation and Compensation Act 1988 (“the Act”);
· Whether Ms Lynch has an entitlement to permanent impairment pursuant to sections 24 and 27 of the Act in relation to her neck, upper limb function and headaches.
LEGISLATIVE FRAMEWORK
10. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act”), in particular sections 4, 14, 16, 24 and 27.
11. Section 4 of the Act defines “disease” and “injury” as follows:
“4. (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;
...
“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’s employment), 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;
...”
12. Sections 14(1) provides for liability for compensation for injured workers, and 16 of the Act provides for reasonable medical expenses to be paid in that regard.
“14 Compensation for injuries
14(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.
…
16 Compensation in respect of medical expenses etc.
(1)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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
13. Sections 24 and 27 of the Act deal with permanent impairment of the worker. Ms Lynch has made claims for permanent impairment in relation to the neck, upper limb function and headaches which have not been accepted.
14. There is of course well established authority both State and Federal, which deals with injury and disease, with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimus contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.
WHETHER MS LYNCH IS ENTITLED AFTER 30 JANUARY 2006 TO SECTION 16 MEDICAL EXPENSES PURSUANT TO THE SAFETY REHABILITATION AND COMPENSATION ACT 1988 (N2006/507)
15. Ms Lynch whose date of birth is 21 September 1968, made a claim for compensation in respect of “injured left shoulder/neck” on 11 August 2003. She said in her evidence that she commenced work with the ATO in 1986, and that prior to commencing work with the Commonwealth, had never had any problems with her arms or neck. Ms Lynch told me that prior to March 2003 she was a very physically active person, enjoyed training, and did a lot of triathalon training, as well as gym work. She said she represented the ATO in running and touch football.
16. Ms Lynch said that her work from 1986 to March 2003 was in various returns processing areas, working as a PA to the Executive in the ATO, working in the Child Support Agency, and then returning to the debt collection area in which she is still employed. Ms Lynch said that when she first joined the ATO, most of her work was keyboarding. She said she also worked in a second job doing similar work once or twice a week, but had not done so between September 2002 and March 2003 except for one four hour shift at the end of March 2003.
17. Ms Lynch claimed that she first experienced tightness of the left side of her neck and shoulder on approximately 20 March 2003, and that the injury arose and developed over a period of time as a result of the ergonomics of her workplace. I was mindful that Ms Lynch was on long service leave, and accordingly not at work on 20 March 2003, and of Mr Anforth’s submission that it was approximately, rather than precisely 20 March 2003 that she nominated as the day when she first became aware of the tightness in her upper body described by her. I was mindful also of Ms Ford’s comment that notwithstanding Mr Anforth’s submission that Ms Lynch nominated an approximate date, Ms Lynch had been able to be so precise about the date as to nominate that it was Thursday, 20 March 2003. I noted that notwithstanding Ms Lynch nominated Thursday as the day of injury she had written the word “about” above 20 March 2003. (T7, Exhibit R1). I draw no particular inferences from the above.
18. Ms Lynch told me that in March 2003, she did not feel the sensations (tightness) were severe, so she did some stretching classes and rubbed Deep Heat into the areas which felt tight. She said that the pain grew progressively worse, however, especially with computer work. Ms Lynch said that the headaches she now claims are severe and occur on a regular basis, (since the event of 12 June 2003), were previously intermittent.
19. Ms Lynch then told me that on 16 June 2003 she woke with a very stiff neck, but had a shower and proceeded to work. The transcript of the hearing on 25 October 2006 records Ms Lynch saying:
“… I actually awoke on the 16th of June and my neck was very stiff. I then … proceeded to have a shower and I went to work and I completed my shift. I did my normal daily duties and then around lunch time a friend … my friend came to pick me up for lunch and she called my name and I turned my neck and then I turned around and proceeded to stand up and then as I took steps, each step that I took, agonising pain. That’s the pain I felt that went down my neck into my arms …”
20. Ms Lynch said that she proceeded to lunch, but returned and informed her supervisor Mr Yasin Naqi of her pain, and then went off on sick leave. Mr Naqi gave evidence at the hearing first by telephone, and following that in person, when he presented his diary, and a handwritten timesheet which he, as a supervisor, kept as well as other documents which are Exhibits A 4, A7, A8 and R11.
21. Mr Naqi was Ms Lynch’s supervisor in 2003, and had been since 2000. He gave evidence recalling Ms Lynch mentioning soreness and not feeling well in 2003, and also described her returning from her lunch break one day in 2003 feeling numbness down her right arm and leg, and leaving work early. He remembered Ms Lynch had some days off after that episode, but could not be precise about the dates. Mr Naqi also told me that in either late July or August 2003, he asked for the OH&S officer to do a workplace assessment for Ms Lynch.
22. He had recorded in his diary that Ms Lynch had left at 1:30 pm on sick leave on 12 June 2003 (page of the diary, Exhibit A8). That information was also recorded on the ATO Flex Calculator then in use. Mr Naqi had some recollection of Ms Lynch not feeling well and of her complaining about some numbness but could not recall the date. There was also a record of Ms Lynch having been approved for study leave for 12 June 2003, and on 26 June 2003, he had altered the record for 12 June 2003 to indicate study leave rather than the original sick leave notation.
23. After hearing evidence for two days with regard to the incident having occurred on 16 June 2003, Mr Anforth told me on the third day that he had evidence which established that the date on which Ms Lynch claims she injured herself at lunchtime at work was 12 June 2003. I have accepted as a result of the documents and evidence that the incident Ms Lynch claims was the injury, and for which liability was accepted, took place on 12 June 2003.
24. There was no argument that Ms Lynch did not seek medical assistance (at the Miranda Medical Centre), until 16 June 2003 which was approximately four days after the incident at work she described in her evidence, (12 June 2003).
25. The medical notes of the Miranda Medical Centre (Exhibit R3) for 16 June 2003 record in relation to Ms Lynch as follows:
“Stiff neck 4/7 … been doing a lot of computer work. On the day before the pain she went to Pilati (sic) (stretching class!). Next day lower cervical L sided pain. Went to Physio this afternoon. Tightness o/e Tender neck centrally about C4
To have XR Panadeine forte (2 nocte)
W Tax Office Voltaren 25 mg + gel
C Crick (sic) neck 16,17”
26. Ms T Logan who is a Pilates and fitness instructor and massage therapist who also treated Ms Lynch on 16 June 2003, wrote on 11 August 2003 as follows:
“Ms Lynch came to me complaining of chronic pain to her left cervical, posterior rotator cuff and thoracic region and muscular sensitivity on the 16th of June. She told me the pain has been progressively getting worse and is starting to travel across to the right side of her mid thoracic region. Rosaline noticed the left cervical and rotator cuff muscles were starting to ache and progressively got worse from March 2003 onwards. I have been treating Rosaline with Remedial massage therapy twice a week for a one hour session …” (T9, Exhibit R1)
27. I noted that Ms Lynch did not mention injuring herself upon turning around at work to meet a friend to either Dr Rowe or Ms Logan. The Applicant had previously had left sided pain, but Ms Logan recorded the Applicant also reporting pain across to the right side of her mid thoracic region.
28. Ms Lynch gave evidence that she had approximately two weeks off after the incident on 12 June 2003. It is not in dispute that she attended Dr Rowe on 16 June 2003. Dr Rowe’s notes (Exhibit R3), reflected the fact Ms Lynch told him she had had a stiff neck for about four days and reported left sided pain, pain in her cervical spine and neck, “crick neck.” She also told him she had been to Pilates the day before the pain commenced which I accept was 11 June 2003. Dr Rowe gave Ms Lynch a medical certificate only for 16 June 2003, and the following day, 17 June 2003. On 17 June 2003, Ms Lynch received a further medical certificate until 20 June. She then attended the Caringbah Medical Centre and saw Dr Ajam on 24 June 2003 with a report of stiffness in the neck dating back two weeks which dates it back to 11/12 June/ . Ms Lynch then saw no doctors for a couple of months before lodging her compensation claim with supporting medical evidence from Dr Ajam on 11 August 2003.
29. In approximately late June 2003, Ms Lynch’s work station was reviewed and adjusted to be more ergonomic.
30. I have accepted Ms Ford’s submissions that in the months and weeks leading up to the incident of 12 June 2003, Ms Lynch had significant absences from work which would have reduced the impact of the ergonomic problems of her workplace, that she had worked only for a month or so without a telephone headset in early 2002, and that her job was varied so that she had intervals where she did not use the telephone or keyboard. I have noted Ms Lynch’s absences below.
31. Ms Lynch made a claim for compensation in respect of “injured left shoulder/neck” on 11 August 2003. Liability was accepted on 26 August 2003 for “sprain of shoulder & upper arm (left)” and neck sprain” (sections 4 and 14 of the Act). The deemed date of injury based on Ms Lynch’s completion of the form, was 16 June 2003. Both parties accept that Ms Lynch has at all times had an underlying degenerative spinal condition.
32. The information on the claim form was which was at T8, (Exhibit R2), and dated 11 August 2003, did not mention any incident at work either, and was as follows:
“my left side shoulder, arm, neck feels a little numb pain in these area’s (sic) neck stiff – my neck when I awoke on the 16.6.03 was so sore could hardly get out of bed. headaches at times …”
33. On 2 February 2006, a determination was made, which was affirmed on 10 April 2006, that from 30 January 2006, Ms Lynch was not presently entitled to compensation for medical treatment. That treatment had been, amongst others, physiotherapy, osteopathy and massage.
34. I have noted that notwithstanding the evidence given at the hearing that Ms Lynch continues to have massage, osteopathy, pain management (Dr Christou), and other treatment for which she herself pays, in the light of Dr Griffith’s evidence, she is no longer pursuing physiotherapy, osteopathy and massage as being reasonable medical treatment in terms of section 16 of the Act. Instead, Mr Anforth submitted that Ms Lynch was entitled to succeed on claims for the costs of pain management and counselling.
35. It was not in dispute and I accept that Ms Lynch has had a very interrupted history of attendance at work. From her evidence, and Mr Anforth’s submissions, I have accepted that from 1997 to May 2003, Ms Lynch was in a traumatic domestic relationship with a man who was a drug addict and stole $100,000 from her. She took leave to deal with the situation, and attempt to assist her partner. From the leave records tendered after the close of the evidence, (Exhibit R12), and other documents, I have accepted that the leave consisted of compensation, study, sick, long service, and other leave. I have noted as follows;
· Between 7 May 1997 and late January 1999, Ms Lynch was on extended leave for a year and a half visiting relatives in England; she denied she was bored with her job and had considered resigning from her job.
· Ms Lynch took further leave of 47 days in 1999;
· 50 days leave in 2000;
· 100 days leave in 2001;
· 75 days leave in 2002;
· 45 days leave in the first half of 2003;
· Ms Lynch worked 14 days in February 2003, 15 days in March 2003 and 12 days in April 2003;
· Ms Lynch worked only 6 days in May 2003, and only four full days in the two weeks before 16 June 2003;
· In the first half of 2003 the Applicant had ceased serious training activities and was undertaking Pilates classes. She had undertaken approximately three Pilates classes before 12 June 2003.
· In May 2003 the Applicant’s domestic relationship in which she had been since 1997 ceased, causing her both anxiety and financial pressures.
· Ms Lynch was diagnosed with anxiety in May 2003.
· The Applicant hadv a day of bereavement leave in early June 2003.
· Ms Lynch sat a university examination on 25 June 2003 for which she had study leave from the ATO, and the rest of the day off on sick leave.
36. Ms Lynch’s claim, and the submissions made on her behalf by Mr Anforth revolve around the claim that notwithstanding the discomfort or tightness felt from approximately 20 March 2003, the pain increased dramatically immediately after Ms Lynch turned around to greet her friend and stood up from her chair at work on 12 June 2003. Mr Anforth described it in his submissions as “a new pain of a different kind and magnitude involving severe pain in the neck radiating into the arms”. He attributes that to Ms Lynch who said in reply to Mr Anforth’s question: “What was the difference between the sensations you were feeling after 16 June 2003 relative to the sensations prior to that date? I was – the pain was severe. After the 16th of June the pains were severe and when I would – when I would walk …… before that it was … tightness of feeling on my left side because I was answering the phone with my left hand. So that’s the only thing I can think of…but after 16th of June the pain increased dramatically.” (transcript 25 October 2006, p 16).
37. I noted that from the notes of the City Massage Canberra that Ms Lynch reported that she had pain and a decreased range of movement until November 2003 . She told me that she disagreed with that entry, and that she was never pain free.
38. Ms Lynch was certified by Dr Ajam in December 2003 as able to accept a fulltime position in Canberra, with the recommendation that she have massage twice weekly. Notes of City Massage Canberra were reproduced by the Respondent and accepted as accurate by Mr Anforth, although Ms Lynch disputed an entry which referred to her having been sailing and disputed ever having been painfree.
39. Ms Lynch’s evidence is that she continues to work on restricted hours as a debt collection officer doing case work, and has been receiving payments of compensation. She says that her headaches increased after 12 June 2003 and that she is never painfree.
The Canberra Period
40. In December 2003, Ms Lynch was certified by Dr Ajam as fit for fulltime work and acted on higher duties fulltime in Canberra between January 2004 and the end of April 2004. She attended City Massage Canberra twice a week as recommended by her doctor. No days off work were recorded over that period, and only very few instances of pain was recorded in the clinical notes of the massage therapists, although Ms Lynch reported tightness in her neck. Ms Lynch explained that there was less computer/keyboard work in Canberra than in Sydney, in part because the system was not working well. She also said that she always had pain in her neck which does not accord with the notes of City Massage Canberra recorded below.
41. The summarised clinical notes of City Massage Canberra (Exhibit R5) follow. The emphasis is mine.
“5 February 2004 Clinical notes of City Massage in Canberra. The Applicant reports that she injured her cervical spine in June 2003 over-reaching and poorly set up workstation – had pain and neural symptoms and a decreased range of movement until November 2003 -
9 February 2004 No pain just tightness through the neck.
16 February 2004 C/P presents pain-free.
19 February 2004 Still has no neck pain. Had a headache on Tuesday night, glands were up in her left armpit.
23 February 2004 low back pain slight - post sailing… , no neck pain, some stiffness in the back, tightness between the shoulder blades.
26 February 2004 Neck stiff L side and mild midback stiffness
1 March 2004 Some stiffness through the cervical spine and upper back.
2 March 2004 Pain at right side of neck, feels quite stiff, range of movement limited especially on the right side. Felt more comfortable post treatment.
9 March 2004 Range of movement quite good. Had referral last week during severe neck tightness and reduced range of movement, no referral this week and neck feels normal.
12 March 2004 Range of movement same as previous treatment.
16 March 2004 Range of movement normal, only complaining of tightness through …
23 March 2004 Range of movement normal. Usual treatment. Tightness through …
26 March 2004 Usual treatment, range of movement the same, tightness through…
30 March 2004 Usual treatment, tightness still there ..
2 April 2004 P.a. Mid shoulders, lower back, especially some cervical discomfort.
6 April 2004 Felt a little bit of soreness between the shoulders as indicated it feels good overall.
13 April 2004 Complaining of tightness …
16 April 2004 Back still tight, mid back with low back pain.
22 April 2004 Usual treatment, tightness through the lower thoracic.- forearms little tight – Chest .. neck okay
27 April 2004 Usual treatment, back still tight between scapula, still pain and tightness in the low thoracic inter-scapula muscles.
29 April 2004 Neck fairly good, mid back still tight, inter-scapula area feeling better, tightness has decreased, returning to Sydney tomorrow, work in Canberra has finished.”
42. The above notes indicate that for the period Ms Lynch was in Canberra, she complained to City Massage of tightness in her back on several occasions, and headache once. She complained of pain on approximately three occasions, and the notes of City Massage record the Applicant as being painfree on a number of occasions. Ms Lynch denied the accuracy of the notes made on 23 February 2004 which recorded that she had slight low back pain post sailing, no neck pain and some stiffness in the back. Ms Lynch said that she had not been sailing.
43. I am satisfied from the evidence before me that contemporaneous notes of health professionals are more likely to be accurate than Ms Lynch’s personal recollections, and accordingly accept the accuracy of the City Massage notes for the period February to 29 April 2004 with regard to Ms Lynch. I therefore accept that Ms Lynch reported to City Massage Canberra on 5 February 2004 that she had been painfree since November 2003. I also note that the Applicant was certified to work fulltime in Canberra from the beginning of 2004 and did so until the end of April 2004. There is no evidence before me to indicate that she returned to Sydney because of any problems with her health, neither are there records of attendance at doctors until June 2004.
The Medical Evidence
44. I turn then to consider the medical evidence, noting that there is no dispute Ms Lynch has an underlying degenerative spinal condition.
45. I refer briefly to an event of 12 June 2003 which Ms Lynch claims has made her eligible for continuing section 16 treatment in the way of pain management and counselling. In that connection I note that the Applicant consulted Dr Rowe, a general practitioner at the Miranda Medical Centre, (Exhibit R3), and also Ms Logan, a massage therapist, on 16 June 2003 (Exhibit R1,T9), and lodged a claim for compensation on 11 August 2003 (Exhibit R2, T8). Ms Lynch mentioned to Dr Rowe having done a Pilates class the day before she awoke with her neck severely stiff (12 June 2003), but did not mention it to Ms Logan or on her claim form. She did not mention having done Pilates to Drs Griffith (surgeon), McGill (rheumatologist), or O’Neill (neurologist), when they examined her.
46. I have already stated that I am satisfied from the evidence that Ms Lynch was not at work on 16 June 2003, and that the incident to which she refers (turning around to greet her friend and stand up from her chair), took place on 12 June 2003.
47. I note further that when Ms Lynch consulted Dr Rowe on 16 June 2003, and Ms Logan on the same date, and lodged her claim for compensation (T8, Exhibit R2) she did not mention any incident at work on 12 June 2003.
48. Mr Christou, Ms Lynch’s psychologist, recorded that she was experiencing tightness in the neck region, and that on 16 June 2003, “she experienced severe pain to the neck and radiating pins and needles sensation down to her arms and legs.” There was no mention of turning around at work to greet a friend she was meeting for lunch.
49. I am mindful in reviewing the medical evidence that Ms Lynch did not give an accurate history to several of the doctors who examined her. The majority of the doctors were told that there was an incident at work on 16 (12) June 2003, but not about Ms Lynch having undertaken a Pilates class the day before she suffered pain she said was so severe she could barely get out of bed.
50. I note also that Ms Lynch omitted to include mention of the abusive relationship in which she found herself between 1997 until 2003, to Drs Griffith, O’Neill, McGill and Mr Christou. She omitted to tell them that as a result she suffered anxiety and financial worries and was diagnosed with an anxiety condition in May 2003.
51. I am satisfied from the reports of Drs Griffith and Mr Christou that Ms Lynch also exaggerated the significance and length of time she worked without a headset
52. I was able to conclude from the evidence of Dr Griffith dated 19 September 2005 (Exhibit A5) and 20 April 2006, (Exhibit A6), that he mistakenly understood that Ms Lynch had to cradle a telephone headpiece and work unergonomically for a much longer period than was shown to actually be the case.
53. In his first report dated 5 July 2005, (T100), Mr Christou recorded Ms Lynch’s work history involving answering “telephone inquiries, type at the same time, and turn her neck around to answer any question posted by her colleagues. She stated that the position of the phone was awkward and had to stretch to reach the phone, and bend her neck in a straining position while typing.” relating to a year prior to 16 June 2003.
54. I am satisfied from the evidence before me that the time for which Ms Lynch worked without a headset was for a period of approximately one month in 2002.
Comment on the Radiological Evidence
55. A CT scan of Ms Lynch’s cervical spine was carried out on 8 September 2003, and an MRI cervical spine on 18 June 2004. Both studies demonstrated degenerative cervical disc disease.
56. A report of a CT scan cervical and thoracic spine and CT through left shoulder dated 8 September 2003 indicated that “Focal disc protrusion at the C4/5 level in the left paracentral region with impact on the left aspect of the spinal cord. No further cervical or thoracic abnormalities are detected. The left scapula outlines normally as does the shoulder joint.”
57. On 18 June 2004, Ms Lynch underwent an MRI of the cervical spine which revealed trivial bulging at C2/3, C3/4, C4/5 and a significant broad C5/6 bulge, and a mild posterior and posterocentral disc bulge at C6/7, but not associated with significant abnormality of the cord or compromise of the exist foramina. There was no suggestion of neural compression at any level.
58. On 16 December 2005 Ms Lynch underwent a further MRI of the cervical spine where an annular tear of C5/6 with a central protrusion was noted. No compression of the spinal cord was detected. A further annular tear at C6/7 was noted, associated with early neurocentral degenerative changes, without causing spinal canal stenosis or encroachment on the exiting nerves.
59. Dr Griffith was the only medical practitioner who considered that a disc lesion had occurred on 12 June 2003. He opined that: “The acute episode which occurred in the workplace on 16.6.03 is entirely consistent with an acute disc lesion. On the basis of the CT performed soon after the injury, it appears to be at C4/5 level. This has now remitted and involves a C5/6 and C6/7 to a minor extent remaining. There has been remission of C4/5 disc lesion in the approximately nine months between CT and MRI of 18.6.04.”
60. Dr Griffith opined in September 2005 that the acute injury appeared to have resolved but that the ongoing focal myalgia in the cervical and cervicodorsal region had not, and noted that Ms Lynch “has been continuously symptomatic since.” He accepted that Ms Lynch did not require surgery in the absence of major neurological symptoms or major disc prolapse, adding that she required effective pain management addressing psychological and physical aspects with equal importance.
61. Dr McGill opined that there was no evidence regarding Ms Lynch rupturing a disc. He said that the rupture of a disc caused severe pain, often building up over the first few days, persisting for a number of weeks, and then settling down. Dr McGill added that however that degenerative changes in the Applicant’s neck in the absence of disc herniation can cause pain, and pain which radiates to various areas.
62. Dr O’Neill opined that there were no radiological studies which supported nerve compression that could have caused radiation of pain into Ms Lynch’s arms. He opined that whilst neck pain and disc lesions can cause some radiation of pain down into the upper part of the medial shoulder blade, and between the shoulder blades into the upper part of one or the other, pain does not radiate all the way down into the thoracic spine. He said that nerve root compression causes very severe pain, largely unresponsive to medication into the arm, and manifests as weakness and sensory impairment, and is visible on X-ray. Dr O’Neill said that Ms Lynch’s X-rays did not show any evidence of nerve root compression, and the pain of a non-specific nature that had been present in the arms had disappeared according to Ms Lynch. (Exhibit R7, 10 February 2006). Dr O’Neill agreed that the act of turning around in her chair at work to greet a friend in June 2003 could have triggered a disc lesion in Ms Lynch’s degenerative back and caused it to go from being asymptomatic to symptomatic, and that once the pain had commenced, it might remain thus. However, Dr O’Neill qualified his reply in regard to Ms Lynch after being informed that the massage therapist had recorded:
“Ms Lynch came to me complaining of chronic pain to her left cervical, posterior, rotator cuff and thoracic region and lumbar muscular sensitivity on 16 June.”
63. Dr O’Neill said that the above notation did not accord with the acute onset of a disc prolapse. He said that if Ms Lynch had suffered a disc prolapse, she would have experienced severe neck pain and stiffness for which she would have sought medical attention. Dr O’Neill concluded that he had heard nothing in regard to Ms Lynch which would allow him to conclude she had sustained an acute disc lesion at work on that day in June 2003.
64. Dr McGill opined that when considering Pilates and Ms Lynch’s work duties, that it was much more likely that the Pilates class caused an acute flare of symptoms (as experienced by Ms Lynch on 12 June 2003). He added that “I don’t believe that the Pilates class at that time continues to influence her symptoms now, just like I don’t believe that doing her normal duties at that time influences her symptoms now.” In reply to Mr Anforth, Dr McGill also stated that “the commonest presentation of a flare of degenerative spinal disease is a spontaneous one. … it usually comes on suddenly and it usually comes on with no change in their activities and without an identifiable precipitant.”
65. Dr McGill concluded that Ms Lynch has diffuse degenerative change in the cervical discs, (cervical spondylosis), and no suggestion from the history she provided or from that documentation that she sustained any significant injury at any stage. Dr McGill opined that Ms Lynch’s condition is entirely constitutional. Dr McGill referred to the MRI of Ms Lynch’s cervical spine in his oral evidence, stating that it did not show herniation. He said that it showed a disc bulge at C5/6 and C6/7.
66. Dr Griffith did not advocate surgery for Ms Lynch, but suggested that she required effective pain management addressing psychological and physical aspects with equal importance. He opined in his oral evidence that psychogenic pain owing to depression, anxiety and muscle spasms can produce Ms Lynch’s reported spread of physical symptoms into the arms, and back and lower back, and become chronic pain syndrome. He holds the opinion that in cases of chronic pain there is alteration in recruitment cells, and disturbed neurophysiology.
67. Dr Griffith added that a program such as Ms Lynch’s monthly treatment by a psychologist should be reassessed periodically. Dr Griffith added: “There are problems with ongoing massage for protracted periods, in fact ongoing manual therapies for protracted periods in excess of three months.” He opined that the latter gave temporary relief but did not result in cure, that there was significant time and costs commitment involved, and that they inculcated an invalidity mind set. Drs O’Neill, Rimmer, Coyle, Pascal and McGill agreed that passive therapy was not required. Dr McGill agreed with Dr Rimmer’s advice to Ms Lynch, and opined that “there has been no role for passive therapy and there is clearly no role for passive therapy currently”.
68. On the basis of Dr Griffith’s recommendations, Mr Anforth withdrew the earlier applications for section 16 payment of massage and similar passive therapies, and submitted that Ms Lynch was claiming for pain management and counselling.
69. Mr Christou opined that the clinical interview and results of the psychometric tests indicate that Ms Lynch meets the diagnostic criteria for Pain Disorder associated with a General Medical Condition as recognised by DSM IV (722.91). Mr Christou opined that this would be the direct result of her neck injury.
70. Dr McGill concluded that was nothing in the further documentation which he was provided which would alter his opinion that the type of activity the Applicant was performing at work would not have influenced the degenerative changes in her cervical spine, nor had any effect on the level of symptoms experienced as a result of such changes. He added: “It is possible but not likely that from time to time her work duties did result in a change in the level of discomfort experienced as a result of the degenerative changes in her neck, but if that had occurred, any change in the level of symptoms would have been restricted to the period of time of doing the activity and for minutes, up to a maximum of two or three hours after that activity.”
71. Dr McGill also opined that the incident of turning around to greet a friend at work, and standing up does not represent an injury to the neck. He added: “Because we all stand up and turn repeatedly every day. So if someone does something which they do as a normal part of life and they experience a symptom while doing it, you can’t attribute that symptom to having done it. …”. Dr McGill added that his view was that whilst the activity of getting up from a chair and turning around suddenly did not cause an injury to a neck, it could influence symptoms related to changes in the neck on a very temporary basis…. “maybe at most lasting for a few hours but more likely just to last for the minute of actually doing the standing up.”
72. When asked by Mr Anforth what he said to Dr Griffith’s view that Ms Lynch ruptured a disc in the incident of 12 June 2003 which caused the sudden and acute onset of the different patterns of symptomatology from that time, Dr McGill answered that there was no evidence regarding the rupture of a disc. He said that the rupture of a disc caused severe pain, often building up over the first few days, persisting for a number of weeks and then settling down. Dr McGill added that however that degenerative changes in the neck in the absence of disc herniation cause pain and pain which radiates to various areas.
73. After having heard the chronology of events in Ms Lynch’s life including the difficulties with a previous partner put to him by Ms Ford, Dr McGill stated that it did not change his opinion. Dr McGill said however that the traumatic psychological period Ms Lynch had undergone superimposed on her diffuse degenerative changes in the spine no doubt increased her perception of, and reporting of pain. Dr Griffith agreed that psychological factors are important in the magnification and genesis of pain.
74. In summary Dr McGill said that 1) degenerative changes in the spine frequently cause exacerbations in the absence of injury; 2) it is necessary to consider the psychological influences that are affecting the person at the time and whether that has changed the way they perceive and report more symptoms than previously.
75. Dr Rimmer who is an orthopaedic surgeon was of the opinion that Ms Lynch suffered a minor musculo-ligamentous strain of the cervical paravertebral musculature. Dr Rimmer then recorded in September 2004 that Ms Lynch reported she was able to perform her work with minimal difficulty, and that she had a markedly improved range of motion in the cervical spine which was pain free. (Exhibit R1, T35). He wrote on 14 October 2004 to Dr Ajam saying that he had again gone through the MRI of Ms Lynch’s cervical spine, and that that excluded any significant pathology. He suggested Ms Lynch see a chronic pain specialist. Ms Lynch was not happy with Dr Rimmer and said he did not check the MRI or examine her. Ms Lynch explained that in October 2004 Dr Rimmer suggested she go for a run in the sand which caused her “phenomenal” pain.
76. Dr Coyle who is an orthopaedic surgeon examined Ms Lynch and wrote a report dated 28 September 2005 (Exhibit R2, T114). Dr Coyle accepted Ms Lynch’s report that she continues to have pain, “allegedly from work, probably a day a fortnight .. She says most the time she ‘copes’ with the pain.” He opined that Ms Lynch’s symptoms started at work, her work was repetitive, her work station apparently ergonomically unsound, and that therefore on the balance of probabilities the condition she was suffering was related to her employment with the ATO in June 2003. Dr Coyle also opined that the usefulness of physiotherapy and hydrotherapy had been exhausted, and that the same results could be obtained by a self-managed home exercise program. I was mindful that the Applicant appears not to have informed Dr Coyle about the Pilates class she took the day before her episode of pain on 12 June 2003, and does not appear to have informed Dr Coyle of the effects of the abusive relationship in which she found herself between 1997 and 2003. As Dr Coyle did not give oral evidence, his reports, written on the basis of a history which was incomplete, are of limited value in coming to my conclusions.
77. Dr Pascal who is a consultant occupational physician examined Ms Lynch on 15 February 2006. Her report is at Exhibit R2,T142. Dr Pascal opined that:
“she should be self-managing her problem rather than relying on these passive means [massage, osteopathy] of reducing her pain levels…. I note that Dr Ajam has not included any management plan in his medical certificate of 30th January, and therefore can assume that he too, feels that she should have the means within her own capabilities to control the amount of tension that builds up in her neck and shoulder muscles. Attendance at a psychologist’s is of assistance in encouraging her to manage her pain levels and her inability to function while experiencing the pain. There is clear evidence in the history that Ms Lynch provides that she escalates the pain and tension in her neck, and subsequently the headaches because of her inability to defocus from the pain and her anxiety about the consequences. She also seems to have quite a bit of reinforcement in her life, both at work and at home, of considering herself disabled because she does have pain. It is solely within herself that she will be able to reverse this consideration of disability and her psychologist should be able to assist her with that.”
78. In answer to the question regarding whether Ms Lynch has residual symptoms from the injury sustained in June 2003, Dr Pascal replied: “Ms Lynch’s original injury has subsided. Because of the underlying problem in her neck, it may be that she will never have no pain as her normal state again. This is not because of an ‘injury’ but because of the manner in which the degenerative changes in her neck are manifest.” Dr Pascal addressed the type of work Ms Lynch should do but stated that there was no reason she should not be working full hours.
79. I am mindful that Dr Pascal referred to Ms Lynch’s degenerative cervical spine and pain arising out of prolonged keyboarding work and tension. She was apparently not made aware of the present nature of Ms Lynch’s work which does not consist of relentless keyboarding. Ms Lynch also appears not to have told Dr Pascal about the Pilates class she took the day before her episode of pain on 12 June 2003, and does not appear to have informed Dr Pascal of the effects of the abusive relationship in which she found herself between 1997 and 2003. Notwithstanding, I have noted that Dr Pascal does not advocate more physiotherapy or osteopathy but rather the assistance of a psychologist to reverse self-perception of consideration of disability.
Surgery
80. Drs O’Neill and McGill expressed strong disapproval that Dr Diwan had offered Ms Lynch surgery to assist with her problems. Dr Griffith noted that Ms Lynch did not require surgery in the absence of major neurological symptoms or major disc prolapse. When asked by Mr Anforth for his views about surgery involving arterial decompression and stabilisation of the segment C6/7 or C5/6 or a total disc replacement, Dr McGill stated that: “To recommend cervical spine surgery in the absence of neural compression I think is bad. To do it in the setting of diffuse degenerative disc disease, evidence on the MRI from C2/3 to C6/7 I find it a suggestion that I couldn’t disagree with more strongly.”
81. Ms Lynch told me that she was fearful of surgery and that accordingly it was not an option she would consider.
Effects of the Abusive Relationship
82. I have noted in the paragraphs above, the time Ms Lynch has had off work and the various types of leave she has taken. Much of that was between 1997 and 2003 when Ms Lynch was diagnosed with anxiety, which was due to the effects of a difficult personal domestic relationship. Once the doctors qualified to provide medico-legal reports had been informed of that relationship, which was at the hearing, their views were as follows:
· Dr Griffith opined that psychogenic pain owing to depression, anxiety and muscle spasms can produce Ms Lynch’s reported spread of physical symptoms into the arms and back and lower back and become chronic pain syndrome. He holds the opinion that in cases of chronic pain there is alteration in recruitment cells, and disturbed neurophysiology.
· Dr McGill said that the traumatic psychological period Ms Lynch had undergone superimposed on her diffuse degenerative changes in the spine no doubt increased her perception of and reporting of pain.
· Mr Christou’s tests indicated that Ms Lynch is an anxious person who is focused on her health, and it is likely that her perceptions of pain if they occur now, even now are as a result of her anxiety.
CONCLUSIONS
83. In coming to a conclusion, I accept from the evidence and the fact that it is undisputed by the parties, that Ms Lynch has a degenerative condition of the spine which causes her problems from time to time.
84. Mr Anforth argued that notwithstanding the discomfort or tightness felt from approximately 20 March 2003, the pain increased dramatically immediately after Ms Lynch turned around to greet her friend and stood up from her chair at work on 12 June 2003. Mr Anforth described it as “a new pain of a different kind and magnitude involving severe pain in the neck radiating into the arms”. He argued that Ms Lynch suffered a tear at C4/5, and disc herniation at C5/6 and C6/7 on 12 June 2003 when she turned around to greet her friend at work. Ms Lynch gave evidence that she has not been painfree since.
85. Ms Ford submitted in relation to the claim regarding the incident of 12 June:
“We challenge the business at lunchtime. It is the first time it has ever been mentioned, years after the event. We didn’t accept that. We accept the fact that she had a stiff sprained neck because she had an unergonomic desk, we accepted it, but that is not what is troubling her now. I don’t agree with my friend that the psychological factors are part of an eggshell skull. It comes down to causation. The psychological factors have everything to do with whether it is work-related or not. It is clearly all these psychological factors are personal matters, nothing to arise out of work.”
86. I am mindful that if pain of the magnitude Mr Anforth submitted occurred as a result of Ms Lynch turning around in her chair at work on 12 June 2003, Ms Lynch would have mentioned the incident to the health professionals she consulted four days later on 16 June 2003. However as noted above she did not mention it to Dr Rowe on 16 June 2003, nor to Ms Logan on 16 June 2003, and did not mention any such event in her claim for compensation dated 11 August 2003. As reflected in his clinical notes, Ms Lynch did mention to Dr Rowe having done a Pilates class the day before the pain commenced on 12 June 2003.
87. Ms Lynch also told me that, what is now established to have been the morning of 12 June 2003, her neck was so sore she could barely get out of bed. That was also recorded on Ms Lynch’s claim form on 11 August 2003.
88. From the above, I have decided that the contemporaneous documentary evidence is more likely to be accurate than Ms Lynch’s recollection of events, and I have thus preferred it. I have accepted that Ms Lynch suffered pain and discomfort on awakening on 12 June 2003, and was barely able to get out of bed. I accept Dr McGill’s evidence that it was more likely that the Pilates class caused an acute flare of symptoms than anything Ms Lynch did at work on 12 June 2003. I am mindful however that liability for a sprain was accepted by the Respondent, and that section 16 treatment costs were paid for until 30 January 2006. My task is to consider whether there is present entitlement for section 16 costs to be paid after 30 January 2006.
89. I accept:
· That Ms Lynch has a degenerative spine and will suffer pain and aggravations to it from time to time as agreed by the doctors whose reports I have considered;
· That if Ms Lynch “suffered a new pain of a different kind and magnitude involving severe pain in the neck radiating into the arms” which arose out of an incident at work on 12 June 2003 she would have described it to Dr Rowe when she sought his assistance on 16 June 2003, she would have described it to her massage therapist on 16 June 2003, and she would have described it on her claim form on 11 August 2003. I am therefore satisfied that it is more likely that the pain Ms Lynch experienced when getting out of bed on 12 June 2003, and later during the same day at work was due to her attendance at a Pilates class the day before.
· I am satisfied that notwithstanding Dr Griffith’s opinion that Ms Lynch suffered an acute disc lesion at work on 12 June 2003, this is not confirmed by radiological evidence. I preferred the opinion of Dr O’Neill who opined that Ms Lynch’s X-rays did not show any evidence of nerve root compression. He said that nerve root compression causes very severe pain largely unresponsive to medication into the arm, and manifests as weakness and sensory impairment and is visible on X-ray. Dr McGill opined that there was no evidence of the rupture of a disc which he said would have caused severe pain building up over a few days, persisting for a few weeks and then settling down. I also preferred the opinion of Dr McGill to that of Dr Griffith.
· Dr Rimmer wrote that Ms Lynch presented on 17 June 2004 with a one year history of a painful cervical spine. He continued: “This was of gradual onset with no specific initiating event. Her symptoms deteriorated within a few weeks and when she awoke on one particular day, she was unable to move her neck. She has been on full duties since January 2004.” I am satisfied that Ms Lynch did not inform Dr Rimmer about her Pilates class the day before the onset of pain on 12 June 2003, nor Drs McGill, Griffith and O’Neill.
· In deciding when the pain Ms Lynch experienced on 12 June 2003 had settled, and that she no longer needed treatment, I noted that the Applicant first obtained a medical certificate from the Miranda Medical Centre for two days only, (16 and 17 June 2003). She returned to work after approximately two weeks and was able to sit a University examination on 25 June 2003, and work overtime all day on Saturday 5 July 2003. Her work station was adjusted ergonomically at the end of June.
· I have noted that in December 2003 Dr Ajam cleared Ms Lynch to work fulltime on higher duties in Canberra with the recommendation she attend massage.
· Ms Lynch worked fulltime in Canberra on higher duties from February 2004 to the end of April 2004, and did not seek medical assistance until June. She did not leave Canberra for any medical reasons.
· I am mindful that Ms Lynch told City Massage in February 2004 that until November 2003 she had pain and decreased movement. She subsequently reported tightness in her back on several occasions between February and the end of April 2004, but pain on only approximately three occasions, and reported as painfree on a number of occasions. Ms Lynch did not agree with several of the notations in the City Massage records including the reporting of painfree periods, and the notation that she had been sailing. I have considered the evidence, and I prefer the contemporaneous documentary evidence of City Massage over Ms Lynch’s recollections.
· I am mindful that Dr Griffith opined in September 2005 that the acute injury (12 June 2003) as he termed it, appeared to have resolved, although he accepted that Ms Lynch’s disclosure to him was that she remained continuously symptomatic.
· I have noted the report of Dr Rimmer of 2 September 2004 in which he stated “Since last seen she has finally commenced a physiotherapy programme concentrating on strengthening her cervical paravertebral musculature, and as expected her symptoms have dramatically improved. She is able to perform her daily work duties with minimal difficulty. She claims that she has a markedly improved range of motion in her cervical spine, which is pain-free.”
· I have noted that Dr O’Neill recorded in his report of 10 February 2006 that Ms Lynch no longer had pain in her arms but that her neck remained stiff;
· I have noted that Dr McGill recorded that in September 2005 Ms Lynch had an ache between her shoulder blades, a tight feeling in the neck and some headaches, but no symptoms in the upper limbs, lower limbs or low back. Dr McGill concluded that despite Ms Lynch’s constitutional cervical spondylosis he believed she was fit for her full normal duties. He considered no work restrictions were necessary, but occasional stretches to allow muscle relaxation would be reasonable.
· I am mindful that Ms Lynch has been compensated for medical treatment pursuant to section 16 of the Act until 30 January 2006, and that she may require further treatment from time to time if her degenerative back has work related flare-ups. She can make applications as appropriate. However, in relation to the present claim, I am satisfied that the pain Ms Lynch felt on 12 June 2003 is more likely to have been as a result of her Pilates class the day before than any event at work on 12 June 2006. I am mindful that liability was accepted for a sprain in June 2003. However, by the end of 2003, Ms Lynch’s doctor certified her as fit for fulltime higher duties in Canberra. She reported to City Massage that she had pain and a decreased range of movement until November 2003. In the paragraphs above, I have detailed the findings of the various doctors which indicate that Ms Lynch’s problems related to 12 June 2003 had resolved well before 30 January 2006. (Dr McGill reported Ms Lynch was fit for fulltime work in September 2005. Dr Griffith opined in September 2005 that the acute injury as he termed it, appeared to have resolved, although he accepted that Ms Lynch’s disclosure to him was that she remained continuously symptomatic. Ms Lynch had however not given him an accurate history, i.e. not told him about the abusive personal relationship in which she was between 1997 and 2003, neither been accurate about the length of time she was without a headset, neither that she had been to Pilates the day before the onset of severe pain in the morning.)
90. I am concerned that Ms Lynch did not report to many of the doctors who examined her that she was in an abusive relationship from 1997 until 2003, and that she was diagnosed with anxiety at that time. Dr Griffith considered that psychogenic pain owing to depression and anxiety can produce chronic pain, while Dr McGill considered that the traumatic psychological period Ms Lynch suffered superimposed on her diffuse degenerative changes in the spine has increased her perception and reporting of pain. None of that is a compensable injury or disease, and it does not arise out of Ms Lynch’s work, and is therefore not compensable.
91. I find that any effects of an aggravation of Ms Lynch’s degenerative spine which she may have suffered on 12 June 2003 have resolved, and she is not presently eligible for section 16 expenses after 30 January 2006. Accordingly the decision under review in Matter N2006/507 is affirmed.
MS LYNCH’S CLAIM FOR PERMANENT IMPAIRMENT PURSUANT TO SECTIONS 24 AND 27 OF THE ACT IN RELATION TO NECK, UPPER LIMB FUNCTION, AND HEADACHES (N2005/1306)
92. At the commencement of the hearing, there was discussion of whether Ms Lynch’s claim for permanent impairment could proceed because the Applicant presented (for the first time), an unsigned report of Dr A Diwan of the Department of Orthopaedic Surgery at St George Hospital Campus of the University of New South Wales dated 7 September 2006. Mr Anforth said that he had received the report on the first day of the hearing, 25 October 2006. It had not been previously served on the Respondent or lodged with the Tribunal. Despite efforts to contact Dr Diwan to obtain a signed report and hear evidence from him, this proved too difficult and was abandoned.
93. In summary, Dr Diwan’s view was that Ms Lynch should consider the option of anterior decompression and stabilization of the segment by way of a total disc replacement. Dr Diwan expressed a view that Ms Lynch has significant herniation of C5/C6 and a tear at C6/C7 which may require surgery. That suggested that whatever injury Ms Lynch suffered had not yet had all reasonable rehabilitative treatment, and was accordingly was not permanent, and that a permanent impairment claim could therefore not succeed.
94. However, Ms Lynch told me that she was afraid of surgery and did not favour that option, and was not proceeding with surgery. I noted also that Drs McGill, O’Neill and Griffith considered surgery was not a suitable solution for Ms Lynch’s problems.
95. Accordingly the parties were prepared to proceed with the permanent impairment claim, and I was satisfied that I could do so.
96. The next matter for discussion was the claim itself, which was for permanent impairment of Ms Lynch’s neck, upper limb function and headaches, which had been refused in a determination dated 7 December 2004, and affirmed on 14 April 2005. The decision had been made on the basis that Dr Ajam who completed the doctor’s section of the form indicated that Ms Lynch was still undertaking active treatment for her condition. However, Dr Ajam also wrote on 24 January 2005, that the Applicant’s “injury is permanent and the treatment at present is to maintain ongoing management.”
97. As stated in the paragraphs above, section 14 liability had been accepted by the Respondent for “sprain of shoulder & upper arm (left) and neck sprain”. No claim had previously been made for headaches, and no liability has been accepted for headaches. Mr Anforth argued that the headaches were a sequelae of the compensable neck injury, they were the subject matter of the application, and it was within the Tribunal’s jurisdiction to deal with the headache claim. Mr Anforth referred to provisional diagnoses, and the fact that diagnoses may change as time goes by and further radiology is carried out. I have noted that in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 Conti J stated:
“The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer …”
98. I am mindful also of the submissions made with regard to Canute v Comcare (2006) 91 ALD 552 and Abrahams v Comcare [2006] FCA 1829 and am accordingly able to consider the claim for headaches in the context of other claimed permanent impairments as made by Ms Lynch.
99. I am mindful that sections 24 and 27 of the Act are relevant to permanent impairment, and to be eligible for payment of compensation for permanent impairment, the impairment must be permanent, and be at least 10%.
100. Sections 24 and 27 of the Act are relevant and follow:
“Section 24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purposes of determining whether an impairment is permanent; Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
….
Section 27 Compensation for non-economic loss
(1)Where an injury to an employee results in 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.
….”
Neck
101. Ms Lynch’s claims for permanent impairment in relation to the neck must be assessed pursuant to Table 9.6 of the Comcare Guide which is reproduced below.
“TABLE 9.6: Spine
Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table.
% DESCRIPTION OF LEVEL OF IMPAIRMENT CERVICAL SPINE THORACO-LUMBAR SPINE 0 X-ray changes only X-ray changes only 5 Minor restrictions of movement Minor restrictions of movement
OR
Crush fracture - compression 25-50 percent10 Loss of half normal range of movement Loss of less than half normal range of movement
OR
Crush fracture - compression greater than 50 percent15 Loss of more than half normal range of movement Loss of half normal range of movement …”
102. Dr Ajam opined that Ms Lynch suffers 10% whole person impairment of her neck pursuant to Table 9.6 of the Comcare Guide.
103. Dr Griffith in his report of September 2005, assessed Ms Lynch’s permanent impairment of her cervical spine as 5% in the application of Table 9.6.Dr Griffith’s assessment of Ms Lynch’s whole person impairment was 15%.
104. Dr McGill also concluded that Ms Lynch can be assessed at 5% pursuant to the Comcare Guide, that is, as having a minor restriction of movement in her neck. However Dr McGill attributed it as being entirely related to constitutional factors.
105. Dr O’Neill opined that chronic neck pain related to constitutional degenerative disease of the cervical spine was most unusual outside the medico legal setting. He did not give an assessment pursuant to Table 9.6.
106. There was no dispute between the parties, and I accept from the medical evidence that Ms Lynch has a degenerative condition of her spine. Liability was accepted for a sprain arising out of ergonomic factors in the workplace. I have found in the paragraphs above that the pain Ms Lynch suffered on 12 June 2003 was likely to have been as a result of attending a Pilates class the day before rather than any defining event at work. I have already stated above that I preferred the evidence of Drs McGill and O’Neill who found that Ms Lynch did not suffer a disc lesion at work on 12 June 2003 when she turned around to greet a friend at lunchtime.
107. Drs Griffith and McGill both agree that Ms Lynch’s permanent impairment of her cervical spine amounts to 5% which I accept to be the correct assessment. Pursuant to Canute, this can be aggregated by applying the Combined Values Chart with other impairments if they are sequelae or consequential impairments.
Headaches
108. I considered the permanent impairment claim for headaches pursuant to sections 24 & 27 of the Act, (mindful of the cases of Hannaford, Canute and Abrahams), the evidence of Ms Lynch, and the submissions of Mr Anforth regarding the origin of the headaches. I was mindful that permanent impairment in relation to headaches is assessed pursuant to Table 13.1 of the Comcare Guide which follows as relevant.
“TABLE 13.1: Intermittent Conditions
(Percentage Whole Person Impairment)
For use in the assessment of disorders of the Hemopoietic System such as anaemia, polycythaemia, leucocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc.
Principles:
Determine the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living.
% DESCRIPTION OF LEVEL OF IMPAIRMENT 0 Attacks may be of any frequency BUT do not interfere with activities of daily living
OR are readily reversed by appropriate medication or treatment10 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 care20 Attacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care 30 Attacks occur up to 30 percent of the time AND cause significant interference with most activities of daily living other than self care …”
109. Ms Lynch told me that she suffers headaches two to three times a week during work times. She said that they commenced after the June 2003 injury, but that they have become worse in the last 18 months. Ms Lynch said that about once a fortnight she needs to leave work, take medication, and lie down at home as a result of headaches. She is aware that tension brings the headaches on. Ms Lynch said that other activities also bring on headache such as “chopping”. She said that she does not hang out washing or do vacuuming, and cannot carry heavy shopping or do jarring activities. She said that her sporting and social life, and her relationship with her husband are affected by her headaches.
110. Ms Ford questioned Ms Lynch about her headaches, putting to her that apart from one or two a year as recorded in 2003 and 2004, they did not commence until 2005. Ms Lynch did not agree, but replied that although the headaches commenced after June 2003, they had become worse in the last 18 months, and explained that when her neck “inflames”, the intense pain brings on the headaches. I am mindful that Ms Lynch has been described as an anxious person, and was diagnosed with anxiety in May 2003. She is focused on her health problems (Mr Christou & Dr Pascal), and I am satisfied that it is more likely than not that if she had headaches, she would have reported to them to her doctors. As the contemporaneous 2003 and 2004 medical records indicate few episodes of headache, I am satisfied they reflect more accurately what was occurring at the time than Ms Lynch’s present recall of the situation.
111. I did not see a record of headaches reported to health professionals in the period March 2003 to June 2003, and noted that Ms Lynch worked an extra shift in her second job at the end of March 2003, did a University examination on 25 June 2003, and worked overtime on Saturday 5 July 2003.
112. At the end of 2003, Dr Ajam certified Ms Lynch as fit for fulltime work and is on that basis that she was transferred to her higher duties job in Canberra. Between the beginning of Febuary 2004 and the end of April 2004, there is only one entry with regard to headache in the notes of City Massage.
113. Ms Lynch told me that she is 38 years old and would like to have a child but is afraid she would not be able to cope. The oral and written evidence of Mr D Mitchell (Exhibit A, dated 16 October 2006), Ms Lynch’s husband, with whom she has lived since May 2004, corroborated her evidence regarding headaches, housework and her hesitation to have children.
114. Mr D Lynch, aged 83, Ms Lynch’s father, produced a written statement dated 14 October 2006 (Exhibit A2), and gave oral evidence. He commented on the decline in his daughter’s physical activities since the incident of June 2003.
115. Ms Charmaine Clancy a childhood and close friend of Ms Lynch gave evidence by telephone link from Queensland. Her statement dated 13 October 2006 was Exhibit A3. Ms Clancy had written in Exhibit A3 that Ms Lynch had stayed with her for “a period of up to 12 months, this was about six months after the injury”. I was satisfied that the evidence showed Ms Lynch actually stayed with Ms Clancy only a short time. I appreciated her wanting to give Ms Lynch assistance with her case, particularly as to knowledge of the frequency of headaches. Unfortunately as the dates were inaccurate, the evidence was of little assistance, and I have given it little weight.
116. Dr Ajam assessed Ms Lynch’s headaches at 20% whole person impairment pursuant to Table 13.1 of the Guide.
117. Dr Griffith commented on Ms Lynch’s headaches in his report dated 26 April 2006, (Exhibit A6). He had been asked to comment on Dr O’Neil’s report that Ms Lynch’s headaches are due to tension and psychogenic factors, and not due to underlying cervical spondylosis. Before preparing the report, Dr Griffith contacted Ms Lynch by telephone regarding her headaches which he recorded as not having been present before approximately March 2003, and which she told him had been more marked since the June 2003 episode. Dr Griffith characterised the headaches as typically cervicogenic as opposed to migrainous headaches. He concluded that in the first instance disc lesions were responsible, followed by continued aggravation of Ms Lynch’s cervical spondylosis. He recorded Ms Lynch as telling him the pain referred to the left arm had largely remitted, and considered that likely to be due to remission of the disc lesion. Dr Griffith assessed Ms Lynch at 10% in relation to headaches in the application of Table 13.1.
118. Dr O’Neill noted that Ms Lynch described various headaches to him and opined that “they did not form part of her initial constellation of symptoms which have, rightly or wrongly, been attributed to constitutional degenerative disease of the cervical spine.” Dr O’Neill characterised the headaches as tension headaches. He stated that he explained to patients, and opined that in Ms Lynch’s case, they did not arise from the cervical spine. He said in reply to cross-examination by Mr Anforth that disc lesions (as described by Mr Anforth), were extremely common in the community with the people remaining asymptomatic. He also added it was uncommon outside the medico-legal world for degenerative disease of the mid cervical spine to be associated with global headache. He said that by contrast, an injury in the upper cervical spine, C2/C3 was known to cause headache and respond to local anaesthetic and steroid injections. Dr O’Neill said that the first reference to Ms Lynch’s headaches he could find in the documents was in the Respondent’s decision of 14 April 2005 which referred to a report of Dr Ajam.
119. Dr O’Neill assessed Ms Lynch’s headaches pursuant to Table 13.1 of the Comcare Guide. He took into account Ms Lynch’s estimate of suffering headache as often as three times a week, and estimated that on her account of the duration of the headaches, she would suffer headache for a maximum of 20% of the working week. He equated that to a 10 % whole person impairment pursuant to Table 13.1, but did not consider that the impairment was permanent. He opined that the headaches are based on tension and “would be expected to reverse completely if underlying tension factors are removed.”
120. Dr McGill opined that he did not assess any permanent impairment in relation to Ms Lynch’s headaches. He said that he could not relate Ms Lynch’s headaches to her work.
121. I accept from the documentary evidence which I prefer to the oral evidence, that Ms Lynch’s headaches date to approximately 2005, and that if she suffered headaches earlier, she would have reported them to her doctors. In fact very few were reported in 2003 and 2004. I also rely on Dr O’Neill’s opinion that Ms Lynch’s headaches arise out of tension, and rely on Dr O’Neill to find that they do not arise out of the Applicant’s degenerative mid-cervical spine. I am mindful that Ms Lynch has suffered anxiety, and was diagnosed with anxiety in 2003, following her relationship with an abusive man which caused her unhappiness between 1997 and 2003. Accordingly I do not find that Ms Lynch’s headaches are permanent, and agree with Dr O’Neill that if her tensions and anxiety remit, so will her headaches. Accordingly I cannot assess Ms Lynch’s headaches according to Table 13.1.
Upper Limb Function
122. Ms Lynch’s upper limb function falls to be assessed pursuant to Table 9.4 of the Comcare Guide which follows as relevant.
“TABLE 9.4: Limb Function ? Upper Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT 10 Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity 20 Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding …”
123. Dr Ajam assessed Ms Lynch’s upper limbs at 10% whole person impairment pursuant to Table 9.4 of the Guide.
124. Dr Griffith assessed 0% in relation to the left upper limb in the application of Table 9.4. Mr Anforth accepted on behalf of Ms Lynch that the claim for the upper limb could not be sustained.
125. Dr McGill assessed no impairment with regard to upper limb function.
126. I have noted in the paragraphs above that Ms Lynch reported her upper limb pain had remitted, and given the assessment of the doctors quoted in the paragraphs directly above, I find no permanent impairment in relation to Ms Lynch’s upper limb function.
CONCLUSIONS RE PERMANENT IMPAIRMENT
127. In summary, and with reference to the findings in the paragraphs above, I cannot assess Ms Lynch’s headaches according to Table 13.1 because they are not permanent (Dr O’Neill).
128. I cannot assess permanent impairment in relation to Ms Lynch’s upper limb function because I am satisfied it has resolved (Drs Griffith and McGill).
129. Drs Griffith and McGill both agree that Ms Lynch’s permanent impairment of her cervical spine amounts to 5%. As the minimum impairment required for compensation to be paid must be 10%, the permanent impairment claim is not sustainable.
DECISION
130. The Tribunal affirms both decisions under review, (Matters N2005/1306 & N2006/507).
131. Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 costs may not be awarded.
I certify that the 131 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:
Associate
Dates of Hearing 25, 26, 27 October & 13 December 2006
Date ofDecision 25 January 2007
Solicitor for the Applicant Mr D Steiner, Capital Lawyers
Counsel for the Applicant Mr A Anforth
Solicitor for the Respondent Mr J Pinder, Phillips Fox
Counsel for the RespondentMs E Ford
0
8
0