Manley and Comcare - [2001] AATA 994

DECISION AND REASONS FOR DECISION [2001] AATA 994

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº A2000/127

GENERAL ADMINISTRATIVE DIVISION)

Re: FELICIA GAI MANLEY

Applicant

And: COMCARE

Respondent

DECISION

Tribunal:       Mr B. H. Pascoe, Senior Member
  Air Marshal I.B. Gration, ao, afc, Member
  Dr M. Miller, ao, Member
Date:             5 December 2001
Place:            Canberra

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member
COMPENSATION — pain in neck, right shoulder and right arm – claim for compensation in 1991 accepted – liability denied from October 1997 – whether incapacity for employment – whether symptoms have causal relationship with employment – whether incident in 1986 contributed to symptoms – whether injury in 1991
Safety, Rehabilitation and Compensation Act 1988

Commonwealth v Smith (1989) 10 AAR 277
Australian Telecommunications commission v Tzikas (1985) 5 AAR 173

REASONS FOR DECISION

5 December 2001  Mr B. H. Pascoe, Senior Member
  Air Marshal I.B. Gration, ao, afc, Member
  Dr M. Miller, ao, Member

This is an application to review a decision of the respondent of 8 February 2000 that the respondent was not liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act1988 ("the Act") on and from 10 October 1997 in respect of "neck, shoulder and arm pain" deemed to have been sustained on 22 August 1991. The applicant had submitted a claim on 31 July 1991 for "occupational overuse syndrome of arm, neck and shoulder". On 30 August 1991 liability was accepted in respect of "neck, shoulder and arm pain" deemed to have been sustained on 22 August 1991. A determination to cease liability for incapacity and medical expenses from 10 October 1997 was made on 4 September 1997. A request for reconsideration was made on 22 September 1998 but reasons for the request were not provided until 16 June 1999. The applicant had accepted voluntary redundancy on 12 August 1996.
At the hearing the applicant, Mrs Manley, was represented by Mr S. Pilkington, of counsel, and the respondent by Mr J. Wallace, of counsel. Oral evidence was given by the applicant. Neither party called any other witness. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T161). The following additional documents were tendered:
Exhibit A1 — Report of Dr V.D. Lieu, general practitioner, dated 4 September 2000
Exhibit A2 — Report of Dr B. Ashman, orthopaedic surgeon, dated 4 December 2000
Exhibit A3 — Report of Dr Ashman dated 29 October 2001
Exhibit R1 — Report of Dr P. Stevenson, consultant physician, dated 21 August 2000
Exhibit R2 — Report of Dr N. McGill, consultant rheumatologist, dated 31 August 2000
Exhibit R3 — Documents relating to applicant's claim in April 1986
Exhibit R4 — Videotape of applicant
Exhibit R5 — Clinical notes of Dr T. Gavranic, general practitioner
Mrs Manley was born on 15 August 1966 and is married with three children aged 9, 6 and 3 years. After leaving school in 1982, enrolling in a secretarial course in 1983, and working in a supermarket, she commenced work with the then Department of Industry, Technology and Commerce in 1988 ("the Department"). Initially Mrs Manley was employed in the mail area delivering mail by trolley around the Department, sorting mail and delivering parcels. She said that, on 17 April 1986, when returning from a trolley run, she had to enter through a door with a digitised lock. With one hand keeping the door open and one hand on the trolley, Mrs Manley said that she twisted her back, heard a "crack" similar to a bone joint crack and felt instant pain in her upper back. She said that she rested for most of the remainder of the day. She returned to work the next morning but was in pain and had difficulty moving. A colleague drove her home and she consulted her general practitioner, Dr Carter. She had a few days off work, received physiotherapy treatment and returned to work on lighter duties with no trolley deliveries. Mrs Manley maintained that she continued to have pain in her upper back which developed into pain in the neck, shoulder and right arm by 1988. She was then in the Public Relations Section and said that it was particularly painful when manually dealing with a large issue of press releases.
Mrs Manley moved to the Account Section in 1989 managing petty cash, travel reimbursements, collecting large amounts of cash from the bank and writing receipts. She said she had difficulties with her right arm particularly in carrying heavy bags of cash and writing receipts. In 1990 she transferred to another area of the Accounts Section and operated a computer up to five hours per day. In 1991 she was referred to a Dr Duncan who diagnosed "occupational overuse syndrome" and prescribed anti-inflammatory and pain killing medication. Mrs Manley said that her pain was constant although fluctuated in intensity. She said that on many occasions she had to stop computer work after one hour because of the pain. She made a claim for compensation on 31 July 1991. She said that, between April 1986 and July 1991, she had various days off work because of her neck, shoulder and arm pain but took them as sick leave rather than making a compensation claim.
Mrs Manley maintained that the pain has not improved since 1991 although it fluctuates in intensity. She said that she has difficulty with household duties such as vacuuming, cleaning, washing and making beds. Her husband, who is working on a casual basis, assists in the household duties. She has consulted Dr Lieu since September 1993 with the initial visits to try acupuncture treatment which proved unsuccessful. She continues to consult Dr Lieu approximately every two months for medical certificates and prescriptions for painkillers and medication to assist in sleeping. She said that she takes one panadeine forte three to four times per week and other medication at night to overcome sleeping problems caused by the discomfort in the arm.
A surveillance video of Mrs Manley was taken by the Investigation Unit of Comcare between August 1995 and January 1996. Mrs Manley said that she first became aware of its existence in April 1997 when she was examined by Dr Scott at the request of the respondent. Although he had not seen the video he referred to it. A copy of the video was obtained by her legal advisors in December 1997. She accepted that it showed her carrying articles from a car and trailer while moving house, weeding the garden and picking up and holding her six month old child for some 26 minutes during the watching of a street parade. She maintained that she moved only light articles which had to be moved but very likely suffered as a consequence. She said that, while she enjoyed gardening, she did it rarely and with difficulty. In relation to the street parade, she said that the noise of a fire engine in the parade disturbed the child and she had to pick him up to comfort him. She believed that she would have used both arms and accepted the shooting pain in the right arm and neck in putting the needs of the child first. She said that her husband was not near enough to her at the time to provide assistance.
In cross-examination, Mrs Manley acknowledged that she had been injured in falling off a motor bike in November 1985. She denied telling her doctor that she had been knocked unconscious but accepted that she suffered an exhaust pipe burn on her ankle and extensive abrasions to a large part (she said 80 per cent) of her body, including arms, legs, hands, elbows and shoulders as a result of wearing only a singlet top and jeans. She went to Queanbeyan Hospital for treatment. She acknowledged, also, that, in April 1990, she had been assaulted by her then fiance and struck directly on the back of the neck. She maintained that her neck hurt for a while but the pain went away subsequently. Mrs Manley acknowledged that she had not mentioned either incident to any subsequent medical examiner and, in particular, was embarrassed about the assault so as to be reluctant to refer to it later.
Mrs Manley accepted that her claim for compensation and incident report in April 1986 referred only to "strained lower back muscles" and that treatment was for low back pain. However, she believed that she had told her doctor of upper back pain although confirmed that she had made no complaint of neck pain. She acknowledged also that Dr Ashman, to whom she was referred by Dr Lieu in June 1994, had stated that she had told him of neck, shoulder and arm pain for eights years but could not recall any specific injury to her neck or arms (T76).
Dr G. Stubbs, an orthopaedic surgeon, in a report of 15 August 1988 (Exhibit R3) noted that Mrs Manley ". . . complained of aching pain throughout most of her spine, lumbar, thoracic and cervical, precipitated by activity such as vacuuming and making beds". She had spoken of wrenching her back whilst reaching behind her to pull a trolley through a door. Dr Stubbs thought that her symptoms were no longer caused by such injury but were due to Scheuermann's kypho-scoliosis and the consequent postural problems.
Dr J. Joubert, a consultant neurologist, examined Mrs Manley at the request of the respondent on 18 January 1996 and reported on 5 February 1996 (T75). He referred to the incident of April 1986 and stated that ". . . In March 1991, Mrs Manley suffered an exacerbation of her symptoms . . .". He understood that she had suffered an injury to her neck and back in 1986 and that pain in her lumbar area, thoracic spine and cervical spine had persisted until the present time. An MRI scan of the cervical spine of 28 June 1994 showed a C5/6 disc protrusion associated with posterolateral osteophytes on the right causing narrowing of the right neural foramen. In his examination, Dr Joubert found no evidence of postural deformity or muscle atrophy, no evidence of muscle wasting or deformity, no abnormality of shoulders, elbows and wrists, normal muscle power and coordination of both upper limbs and no abnormality of the thoracolumbar spine. He diagnosed an underlying degenerative condition of the cervical spine, cervical spondylosis, which had been aggravated by "the injury in March 1991" and that there was a direct relationship between her then condition and "the injury suffered in March 1991". In a subsequent letter to the respondent dated 29 April 1996, Dr Joubert stated that he had subsequently viewed the videotape taken of Mrs Manley. He noted that, during the activities filmed, she showed no evidence of impairment of function or evidence of pain and was able to move all limbs normally and freely. He stated that ". . . the clinical picture presented to me during the assessment of 18 January 1996 was diametrically opposite to what I observed on the video tape" and that ". . . I have no doubt that Ms Manley does not suffer from the severe pain and incapacity which she complained of during the assessment".
Dr Ashman examined Mrs Manley at the request of Dr Lieu on 27 June 1994, 30 June 1994 and 6 February 1996. In his report of 7 February 1996 (T76) his diagnosis was premature cervical spondylosis causing neck pain and referred pain to the right shoulder but was unable to make a specific diagnosis with regard to her bilateral forearm and hand symptoms. He stated that ". . . It is hard for me to reconcile this lady's stated level of disability and her paucity of abnormal physical findings". However, he believed her to be truthful in her complaints. In a report of 4 December 2000 (Exhibit A2), Dr Ashman offered the opinion that ". . . this lady suffers from some sort of chronic regional pain syndrome affecting her neck and arms". He stated that:
. . . Although I am still prepared to accept that her symptoms are real for her, in light of other medical reports, particularly those referring to video surveillance of her activities, I am no longer prepared to accept that her degree of disability prevents her from being employed.

In a letter of 29 October 2001 (Exhibit A3), Dr Ashman said that he has reviewed the video tape and stated:

. . .
This video tape does not change my opinion of her condition as expressed in my report of 4 December 2000. It confirms my initial impression of a discrepancy between her objective findings and her stated level of disability when I originally saw her in 1994 and for review in 1996.

Dr Stevenson examined Mrs Manley on 17 August 2000 and provided a report dated 21 August 2000 (Exhibit R1). He took a history of an injury in 1986 and ". . . my back and neck cracked". He said that Mrs Manley indicated that most of her problem was in her neck but could not explain why liability was accepted for sacroiliac bilateral pain. He stated that she had told him that her symptoms of neck pain, right shoulder pain and right arm pain had got worse in 1991 but had "just started gradually". She told Dr Stevenson that she felt that the cervical abnormality identified by Dr Ashman was a consequence of the 1986 injury. Dr Stevenson noted:
". . . marked restriction of cervical movement with some observed discrepancy. The right upper limb indicates a pattern of non-dermatomal pain and inconsistent physical signs".

He thought that it was possible that some of Mrs Manley's right arm symptoms reflected a cervical radiculopathy secondary to her degenerative disc disease but that the pattern of pain was one seen variously in somatoform and factitious disorders. Dr Stevenson could not securely identify any condition caused or contributed to by her employment. He considered that a diagnosis of overuse syndrome was unsustainable given the amount of part-time work, extensive periods of maternity leave and extensive period out of the workforce since 1991. He felt that the effect of any work-related condition, with some substantial margin for safety, would have well resolved before December 1997. Dr Stevenson was not prepared to make a judgement as to whether there was conscious exaggeration of symptoms.

Dr McGill examined Mrs Manley on 31 August 2000 and provided a report on the same day (Exhibit R2). He took a history of Mrs Manley dating the onset of her symptoms from the injury in 1986 and a belief that she heard a crack in her upper back. Dr McGill noted also that the documentation provided referred only to "sacroiliac bilateral pain". He noted that Mrs Manley told him that she had neck, right shoulder and right arm symptoms on and off between 1986 and 1991 when someone at work advised her to make a claim. She was unable to give Dr McGill details of any other specific incident at work. Dr McGill reported that the physical examination was "objectively normal" and that ". . . she demonstrated behaviour indicative of a lack of cooperation in an attempt to allege difficulty". He diagnosed premature cervical spondylosis and that the changes demonstrated of her cervical spine could not have been influenced by her work duties or the incident in 1986. He stated that:
. . . If there was any condition genuinely related to her employment (which from the evidence available currently I think is in doubt) then that condition would have ceased well before 10 December 1997.
At the commencement of the hearing, Mr Pilkington stated that no medical witnesses would be called as their opinions were before the Tribunal in reports and that the success or failure of the applicant's case would be determined on the evidence of the applicant herself. It was submitted that Mrs Manley continued to suffer problems in the neck, right shoulder and right arm as a consequence of a work-related injury in April 1986 and that there was abundant evidence of the problems since that precipitating incident. It was said that the opinion of Dr Stubbs indicated that the incident had made symptomatic a pre-existing cervical spondylosis. It was argued that the sustained keyboard work in 1990 and 1991 exacerbated the symptoms. Mr Pilkington discounted the video evidence as being taken from a considerable distance, mostly from behind Mrs Manley, unable to show pain, a composite of short periods over some five months, not disclosing anything that Mrs Manley said she could not do and, being taken six years ago, not evidence of current limitations. It was said that Drs Scott, Stevenson and McGill were all aware of the video prior to their examination of Mrs Manley and it may well have unconsciously coloured their views. Mr Pilkington submitted that Mrs Manley had been honest and straightforward in her evidence with no real attack on her credit. He sought a decision setting aside the reviewable decision and remitting the matter to the respondent with a finding that Mrs Manley was still suffering an incapacity arising from a work-related injury with the degree of incapacity and the amount that she is able to earn in suitable employment to be assessed.
For the respondent, it was submitted that the Tribunal should affirm the decision under review. It was said that the contemporaneous records in April 1986 referred only to "strained lower back muscles" with no reference to any upper back or neck problems. There was no evidence of any prior complaint of neck, shoulder or arm until 1988. Mr Wallace noted that no claim for compensation was made between 1986 and 1991 with any days off work taken as sick leave. It was argued that all of the medical opinions provided in this matter had relied on a history given by Mrs Manley of neck, shoulder and arm symptoms since 1986 but there was no other evidence to support this history. Mr Wallace suggested that the mechanism of the incident in April 1986 was one which was unlikely to have produced a disc injury. It was said that the medical opinion was that any pain was the result of a cervical focal disc protrusion and degenerative changes in all cervical disc spaces and there was no evidence of this being caused by a work-related injury. Mr Wallace noted the motor bike accident in November 1985 where Dr Gavranic had noted that Mrs Manley was unconscious and the assault in April 1990 involving a blow to the neck requiring medical treatment. It was submitted that video evidence was over several months and showed a person having no apparent difficulty in using her right arm, bending and lifting at a time when Dr Lieu was certifying her not fit for work at all and Dr Joubert had been convinced that she was unable to work.
The videotape of the surveillances of Mrs Manley between August 1995 and January 1996 (Exhibit A4) was viewed by the Tribunal after the conclusion of the evidence of Mrs Manley and before submissions. It must be said that we recognise the limitations of filming from a distance and, in much of the footage, from behind Mrs Manley. We recognise, also, that filmed images cannot demonstrate actual pain although we noted that there were no external signs of pain or discomfort seen. What the video did show was Mrs Manley able to carry in her right hand, extended to shoulder height, bundles of clothing suspended on coat hangers from a car trailer to inside the house. We have significant doubts that a person suffering the symptoms alleged by Mrs Manley could cope with the strain that such an activity would put on the arm and shoulder. The video showed her squatting and bending with neck fully flexed for some 20 minutes and using both arms and hands in weeding the garden. It showed her, also, holding her 6 months old child in her arms without apparent discomfort for some 26 minutes. It is difficult to reconcile these images with her stated symptoms.
We have concern, also, in relation to the incident in April 1986 which was alleged to be the precipitating event for the increasing symptoms of pain in the neck, shoulder and arm. The claim in Mrs Manley's own handwriting refers only to "strain lower back muscles". This was the description of her condition on the certificate given by her then general practitioner, Dr Carter, on 18 April 1986. Dr Carter's comments on the claim form states the disability as "Sacroiliac Strain Bilateral" and that the condition "should be better within one week". In her evidence when describing the incident and the "crack" in her back, Mrs Manley indicated a point on her back at the upper thoracic level, certainly a long way from the lower back or sacroiliac. It is noticeable that the history given to various doctors, starting with Dr Stubbs in August 1988, has been of cervical spine pain since April 1986.

In her evidence, Mrs Manley, placed some emphasis on an exacerbation of her symptoms in 1990 and 1991. There was little in the way of detail or specifics in relation to such alleged exacerbation. We noted that Dr Joubert took a history of an exacerbation in March 1991. We have seen no evidence of this on or about such a date. Mrs Manley believed that the symptoms in 1990 and 1991 were the result of occupational overuse, a term apparently given to her by Dr Duncan. We cannot but agree with both Dr Stevenson and Dr McGill that, if there was such a correct diagnosis at that time, it would have resolved well before October 1997 given that she did little or no work for a significant period before that date.
We have no doubt that Mrs Manley has suffered and continues to suffer some pain. The questions are whether that condition incapacitates her for work, and if so, how much and whether the condition has arisen from a work-related injury. Dealing with the first question, it would appear that all of the medical evidence and the evidence of the videotape are that Mrs Manley is not and has not been, at least from October 1997, incapacitated for work. Even Dr Lieu in his report of 4 September 2000 appears to believe that she could work full time with some limitations. It is difficult for us to accept that the cause of the condition arose from a work-related injury. We do not accept that the April 1986 incident caused any subsequent neck, shoulder or arm pain. It is more likely that, once Mrs Manley developed pain in that area, she sought to attribute a reason and the April 1986 incident was seen as an appropriate causation factor. We are not saying that she is now deliberately untruthful about the circumstances and result of the incident, but it has loomed excessively largely in her thinking. The medical evidence shows that cervical disc problems may well be causing some pain in the neck and shoulder, although it is less clear as to the alleged arm pain. It is relevant that, of the many doctors who have seen and reported on Mrs Manley, none has been given a history of the motor bike accident in 1985 or the assault in 1990. We do not necessarily suggest that either or both of these have had any ongoing effect on her condition but they are, if anything, more likely to have been a contributing factor than the incident at work in 1986 which we are satisfied concerned the lower back only and not the cervical spine. As indicated earlier there is no evidence of any other work-related injury other than general references by Mrs Manley to difficulties in 1990 and 1991. It would seem that she may have then had some difficulty with extended periods of computer work as a result of some neck, shoulder and/or arm pain but that pain was a consequence of an underlying cervical disc problem not the computer work itself. True it is that the computer work may have exacerbated the underlying condition but the effect of such aggravation would have well ceased prior to October 1997.
In summary, we are satisfied that Mrs Manley has been and is either consciously or unconsciously exaggerating her symptoms and is not incapacitated for work as a result of such symptoms. Further, while we accept that Mrs Manley may well believe that the cause of her symptoms was the April 1986 incident, we cannot be satisfied, on the balance of probabilities, that such incident plays any part in such symptoms. We were urged by Mr Pilkington to accept that, even if her symptoms can be said to be psychologically rather than physically based, she had accepted precipitating injuries in 1986 and 1991 and the reasoning in Commonwealth v Smith (1989) 10 AAR 277 should be followed. However, as we are not satisfied that either the incident in 1986 or the alleged aggravation in 1991 were precipitating injuries relative to symptoms after 1997, we do not accept any psychologically-based symptoms as being work-related. Rather, we see the approach in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 as being more relevant. Here, at best, there may have been a belief by Mrs Manley that her current condition arose from the 1986 incident and continued to provide a focus for her in an endeavour to explain the symptoms. Given our findings that such incident was not such a contributing factor, the mere belief that it was does not provide a causal relationship between the condition and Mrs Manley's employment.
As a consequence of our findings, the decision under review should be affirmed.
I certify that the twenty one (21) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
(sgd) Rhona Hammond            .....................................................................................
  Personal Assistant
Date/s of Hearing  12 November 2001
Date of Decision  5 December 2001
Counsel for the Applicant        Stuart Pilkinton
Solicitor for the Applicant         Paul Crabb
Counsel for the Respondent    John Wallace
Solicitor for the Respondent    Stuart Marris