Malgapo and Australian Postal Corporation - [2002] AATA 717

DECISION AND REASONS FOR DECISION [2002] AATA 717

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1349

GENERAL ADMINISTRATIVE DIVISION

Re: ELENA MALGAPO

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             23 August 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(Sgd) B.H. Pascoe
Senior Member
COMPENSATION – pain in left shoulder and arm – aggravation of degenerative lumbar spine – whether arose out of or in the course of employment – whether effect ceased – decision affirmed
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

23 August 2002 Mr B.H. Pascoe, Senior Member

This is an application to review a decision of the respondent of 28 August 2001 which affirmed a prior determination of 18 June 2001 ceasing liability for compensation in relation to left shoulder and lower lumbar soft tissue injuries and temporary aggravation of lumbar degenerative changes from that date.
At the hearing the applicant was represented by Mr. D. Harrison of counsel and the respondent by Mr. J. Ferwerda of counsel. Evidence was given by the applicant, Ms. E. Malgapo, Mr. D. Jensen, a neuro surgeon, Dr. C. Mak, a general practitioner, and Mr. D. Billett, an orthopaedic surgeon.
Ms Malgapo was born in the Phillipines on 18 August 1947. She has been employed by the respondent since 7 July 1997 as a mail officer on a part time basis of six hours per day, Monday to Friday. Her work has involved mail sorting either at a sorting frame or computer coding of mail. On 16 August 2000 Ms. Malgapo lodged a claim for compensation for an injury described as "lower back, slipped disc" which occurred on 9 August 2000. Liability for compensation for "hyper-rotational trauma" was accepted by the respondent on 29 August 2000. It would appear that at some later date the respondent accepted liability for compensation for left shoulder injury. On 18 June 2001 the respondent determined that it was no longer liable to pay compensation from that date for either injury, then described as "left shoulder and lower lumbar soft tissue injuries and temporary aggravation lumbar degenerative changes".
Ms. Malgapo said that she first noticed problems with her left shoulder in approximately 1998 and the pain had increased subsequently. Initially the pain had been in the left shoulder joint but had since extended into the upper left arm, at times to the lower left arm, across her neck and into the right shoulder and she experienced headaches. She had complained to her general practitioner and had been sent by the respondent to Dr Bratt in February 2000. He had prescribed Feldene and recommended physiotherapy treatment. She maintained that she had not suffered any pain or symptoms in the left shoulder or arm prior to working for Australia Post. She said that frequently, after ceasing work, she found difficulty in undressing because of the shoulder and arm pain. Most days the shoulder is alright in the morning or after leave but becomes painful after commencing work. Ms. Malgapo acknowledged that she had made no claim in respect of the left shoulder or arm prior to lodging a claim in relation to her back in August 2000.
Ms. Malgapo said that, on 9 August 2000, while video-coding of mail, she noticed that the back rest of her chair had dropped. She said she did not stop work but reached behind her with her right hand to adjust the back rest and felt pain in her back as if she had strained a muscle. After remaining seated for a period, she logged off from the computer and went to the toilet. On returning she resumed video-coding for approximately 30 minutes then moved to frame sorting. She said her back was "tingling" and she thought that it would pass. She said that the next morning she could not move her lower body and her back was very painful. She crawled out of bed and tried to telephone friends. After some difficulty she contacted a friend who came and took her to a general practitioner, Dr Mak, who prescribed Panadeine Forte, said that she may have a slipped lumbar disc and arranged for a scan at the hospital. She had four weeks off work and returned on restricted duties. Subsequently she has had some days off work since. Ms. Malgapo said that she continues to suffer back pain particularly by the end of a working week. She said that, if she forgets and moves her leg incorrectly, she suffers pain. She accepted that the back pain was variable and that she has some pain free days. While the back can be painful, she acknowledged that, currently, it was not as painful as in the past.
Ms. Malgapo said that she works her full six hours per day and has not had time off work since March 2002. After returning to work in September 2000 on restricted duties, she moved from four hours per day to the six hours per day by the latter part of 2000. She has restrictions on lifting, bending and standing. She said that she has had time off for headaches and dizziness since the shoulder problem developed and, while she had a free range of movement in her neck formerly, neck movement is now limited, particularly when driving. She was not aware of any other contributing cause of her shoulder and back pain other than work at Australia Post. She said that it was difficult to say whether or not either had improved since August 2000.
Mr. Jensen first examined Ms. Malgapo on 7 December 2000 on referral by Dr. Mak. He said that while she referred to symptoms in her left shoulder, she regarded this as a minor but ongoing problem and Mr. Jensen did not undertake an examination of the shoulder or make any diagnosis of the reasons for any symptoms. He noted that a CT of the lumbar spine performed on 14 August 2000 showed relative lumbar canal stenosis at L4-5 and that a follow up scan on 17 November 2000 again showed this appearance and a mild right-sided L5-S1 disc prolapse. At that first examination, Mr. Jensen noted "that her symptoms were explicable in terms of degenerative intervertebral disc disease". He reviewed Ms. Malgapo on 26 July 2001 and 11 February 2002. On both occasions she reported experiencing intermittent pain. On 26 July 2001 Mr. Jensen said that she had "a fair range of lumbar mobility, a minimal restriction of leg raising and a slight depression of the right ankle jerk". On 11 February 2002, Mr. Jensen said that "there was no evidence of para-spinal muscle spasm but mobility of the lumbar spine was less than half the normal range. Straight leg raising was 60 degrees on the right and 40 degrees on the left. No signs of nerve root compression were detected in the lower limbs". Mr. Jensen's opinion in his report of 19 March 2002 (Exhibit A1) was that "Ms. Malgapo suffers from degenerative disease of the lumbar spine and her symptoms appear to have been precipitated by an incident which occurred at work in August 2000." He was of the view that the incident at work provoked the symptoms which had persisted so that the condition remains employment related. He believed that, only if the symptoms had resolved and then later occurred, would the relationship with the employment related incident be broken. Mr. Jensen said that the incident in August 2000 described by Ms. Malgapo was a common enough way for such symptoms to commence. In his oral evidence, Mr. Jensen said the symptoms of left shoulder, arm, neck, head and right shoulder pain described by Ms. Malgapo in her evidence indicated that her problem was most likely to be arising from the cervical spine.
Dr. Mak was first seen by Ms. Malgapo in 1988. He said that she consulted him on 10 August 2000 with severe back pain. He thought that the most likely cause was a prolapsed disc, prescribed Panadeine Forte and radiological investigation. He referred her to Mr. Jensen. In his written report of 27 March 2002, Dr. Mak said that Ms. Malgapo has not reported any worsening of the injury but had not shown any significant improvement. He was of the opinion that, with the restrictions on lifting and repetitive actions, her progress in terms of her dysfunctional symptoms would remain quite stable. In his oral evidence, Dr. Mak said that he thought that the lumbar spine was not as symptomatic as previously and accepted that it was possible that "other things" could now be causing the symptoms and not the effects of the August 2000 aggravation. In relation to the left shoulder, Dr. Mak said that his records indicate that this was first raised with him in October 2000. He had assumed that it was a mild rotator cuff illness or some other joint injury caused by repetitive work. He accepted that nothing had shown up in radiological studies and that, while he had not considered the possibility of a cervical spine problem, it could well be the cause of the problem.
Mr. Billett first examined Ms. Malgapo on 28 September 2000 and provided a report the same day (T9). In that report, he noted that Ms. Malgapo appeared to have a possible rotator cuff problem which should be further explored. He was of the opinion that she had developed a soft tissue injury to her lower lumbar region with aggravation of underlying degenerative changes, making them symptomatic. He stated that the injuries recurred during employment and that work had contributed to making the underlying degenerative changes symptomatic. Mr. Billett said in that report that he would expect the effects of the aggravation to resolve over the following eight to ten weeks. Mr. Billett again examined Ms. Malgapo on 5 April 2001. In his report of the same day (Exhibit R1) he considered that her shoulder problem was probably linked to her cervical spine noting that she complained of discomfort while executing full movement in relation to her right shoulder. Again he was of the opinion that the effects of the aggravation of the underlying degenerative changes in the lumbar spine had resolved. In his oral evidence, Mr. Billett, while accepting that there were no objective studies on the long term effects of aggravation of an underlying degenerative spine on the symptoms, was very strongly of the view that such effects resolve within six to nine months and that there was no possibility of such effects continuing after two years. He accepted that, if a person such as Ms. Malgapo is required to sit or stand for long periods or significant flexion is required in the work environment, aggravation could continue. However, he understood that the restrictions in place would obviate such a problem.
It was submitted for the applicant that there was clear evidence that Ms. Malgapo's left shoulder and lumbar spinal injury arose from her work activities and still the effect continues. It was said that, whether her shoulder condition is related to her cervical spine or rotator cuff, the condition arose as a result of carrying out her work duties and has continued ever since. It was submitted that the opinion of Dr. Mak should be preferred as Mr. Jensen had not fully examined Ms. Malgapo's shoulder and Mr. Billett had changed his diagnosis with no explanation. In relation to the lumbar spine condition it was submitted that the only question was whether the aggravation in August 2000 continues to be the cause of her ongoing symptoms. The evidence of Ms. Malgapo, Mr. Jensen and Dr. Mak was relied upon, it being said that Mr. Billett displayed inflexibility and lack of objectivity in not conceding that there was any chance that he was incorrect and that research might contradict his views.
It was submitted for the respondent that the effect of employment on Ms. Malgapo's left shoulder and lumbar spine had ceased no later than 18 June 2001. It was said that whether or not the shoulder condition had been aggravated as a result of employment, the medical evidence was that it was more likely due to and indicative of pathology of the cervical spine which has never been alleged to have been affected or reported in the course of employment. In relation to the lumbar spine the respondent relied upon the opinion of Mr. Billett that the aggravation by a work place incident was temporary and had ceased. It was said to be clear that Ms. Malgapo has degenerative intervertebral disc disease and that it was more likely than not that any persisting symptoms are referable to that pre-existing underlying condition. The respondent noted that Dr. Mak, who may be considered as having the best knowledge of Ms. Malgapo, had conceded that he could not state definitively that the effects of the August 2000 aggravation had persisted and that symptoms could relate to the underlying condition and any one of range of physical activities of Ms. Malgapo.
It is appropriate to deal with the two conditions separately. In considering the question of the complaint by Ms. Malgapo relating to her left shoulder and arm, it was that condition which appeared to be uppermost in her mind while giving evidence. However, it seems clear that no specific claim was made in relation to the condition and it would appear that it was treated as a claimed condition by the respondent as a result of its inclusion in medical certificates provided by general practitioners. Ms. Malgapo was unable to provide evidence of any specific event or events which could be said to have caused an injury or aggravation to the left shoulder. Her evidence was that she believed that the pain commenced in 1998 and, as it commenced whilst employed by the respondent, assumed that some aspect of her work had caused it. Dr. Mak in 2000 thought that it may have been rotator cuff illness and could have been caused by "the repetitive type of work" done by Ms. Malgapo. In his oral evidence he accepted that there was no such clear diagnosis and that it was possibly a cervical spine problem. Mr. Jensen did not examine the shoulder and made no diagnosis but noted that it appeared to be a minor problem. On having the full symptoms relayed to him during his oral evidence, Mr. Jensen considered that it was likely to be a cervical spine problem. Mr. Billett, while initially accepting the likelihood of rotator cuff problem needing further evaluation, ultimately concluded that there was no evidence on examination of such a problem and the most likely cause of the pain was linked to the cervical spine. There is simply no evidence that the problem Ms. Malgapo has with her left shoulder and arm at times extending across the neck and to her head and right shoulder is attributable to any particular aspect of her employment with Australia Post. At best she believes that it is likely and Dr. Mak originally believed that it was possible. Given that and the most likely cause being a cervical spine problem rather than any tendon or soft tissue injury I cannot be satisfied on the balance of probabilities that the left shoulder and arm condition arose of, or in the course of, or was contributed to in any material degree by, her employment with the respondent.
In considering the lumbar spine condition, the question is more difficult. There is no doubt that Ms. Malgapo suffers from an underlying degenerative lumbar spine condition. I accept her evidence that this was not symptomatic until the incident on 9 August 2000 and this incident resulted in severe pain. The difficulty is the conflict between the views of Mr. Jensen and Mr. Billett as to whether that acknowledged aggravation of the pre-existing condition is the continuing cause of her symptoms beyond 18 June 2001. It might be said that Dr. Mak has no clear opinion one way or the other. it is clear from the evidence of Ms. Malgapo that her symptoms are less painful and less constant in more recent times than they were immediately following the incident. The applicant's representative accuses Mr. Billett of inflexibility and lack of objectivity by being adamant that his view is correct. However, Mr. Jensen was equally adamant that his view is the correct one. One of the major difficulties in such a case is that, if the view of Mr. Jensen is adopted, how long does the effect of such an aggravation last? Acceptance of that view results in any trivial work related incident which causes symptoms in what has been an asymptomatic condition to be attributed as the ongoing cause as long as symptoms last no matter how intermittent or severe. It appears also to ignore the possible effects of other activities which may be undertaken by the person. There is no doubt that a work related incident which causes symptoms in an existing vulnerable but asymptomatic lumbar spine is an injury and compensable under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). In this case the respondent accepted liability for some ten months and two years had passed at the date of hearing by the Tribunal. On balance, I accept the evidence of Mr. Billett, an experienced orthopaedic surgeon, supported, albeit somewhat reluctantly by Dr. Mak, that the work related contribution to Ms. Malgapo's lumbar spine condition had ceased and any ongoing symptoms are the result of the underlying degenerative lumbar spine.
It follows that the decision under review should be affirmed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Signed:         Grace Carney
  Personal Assistant
Date of Hearing  2 August 2002
Date of Decision  23 August 2002
Counsel for the Applicant        Mr. D. Harrison
Solicitor for the Applicant         Slater and Gordon
Counsel for the Respondent    Mr. J. Ferwerda
Solicitor for the Respondent    Hall and Wilcox