McLellan and Comcare - [2014] AATA 166

[2014] AATA 166

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/5763

Re

Stuart McLellan

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J Toohey
Dr Isles, Member

Date 27 March 2014

Place Sydney
The Tribunal affirms the decision under review
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Senior Member J Toohey
CATCHWORDS – COMPENSATION – neck and shoulder injuries in 1989 and 1990 – liability for incapacity accepted – claim for permanent impairment made in 2012 –whether applicant has permanent impairment of neck and shoulder – whether related to employment – degree of permanent impairment – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5B(1), 5B(3), 14 , 24, 27
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment
REASONS FOR DECISION
Senior Member J Toohey
Dr Isles, Member
Background

Mr Stuart McLellan was involved in a car accident in 1989 while employed by the Australian Federal Police (AFP). He was off work for approximately one week. Comcare accepted liability under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for “soft tissue bruising to the head and left shoulder”.
In 1990, Mr McLellan suffered “neck and back muscle strain” when a brown snake he was attempting to remove at work lunged at him suddenly. His doctor certified him unfit for work for two days. Comcare accepted liability for his injury.
Mr McLellan made no claims for incapacity or medical treatment in relation to either injury between September 1990 and February 2012 when he claimed compensation under ss 24 and 27 of the SRC Act for permanent impairment and non-economic loss. Comcare denies liability to compensate Mr McLellan.
Relevant legislation
Comcare is liable to compensate an employee who suffers an injury that results in death, incapacity for work, or impairment: s 14 of the SRC Act.
By s 5A(1), injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment.
6.By s 5B(1), disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. Significant degree means a degree that is substantially more than material: s 5B(3).
Ailment means any physical or mental ailment, disorder, defect or morbid condition whether of sudden onset or gradual development. Aggravation includes acceleration or recurrence: s 4.
By s 24, the respondent is liable to pay compensation to an employee in respect of an injury that results in permanent impairment. Such liability does not arise if the degree of permanent impairment is less than 10%: s 24(7).
Where compensation is payable under s 24 for permanent impairment caused by an injury, the respondent is liable to pay additional compensation for any non-economic loss suffered by the employee as a result of that injury or impairment: s 27.
The degree of permanent impairment or non-economic loss suffered by an employee is to be assessed under the provisions of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide): s 24(5).
The issues
We have to determine:
(i)whether Mr McLellan has a permanent impairment of his neck or shoulder;
(ii)if so, whether either is related to his employment;
(iii)if so, what is the degree of his permanent impairment.
Mr McLellan’s evidence
Mr McLellan gave evidence that he was on his way to work in 1989 when the car in which he was a passenger mounted the gutter and landed on the footpath. His recollection of the accident is not clear. As he recalls, he hit his head on the roof of the car and was “knocked out”. He hit his left shoulder on the pillar of the car causing pain. The driver drove him to hospital where he was examined. Mr McLellan could not say why an ambulance was not called but he took it that the driver did not think his injuries serious enough. He was discharged from hospital after several hours.
Mr McLellan was off work for approximately one week. He cannot recall if he saw his general practitioner or if he was given a medical certificate. Comcare has been unable to locate its file in relation to his claim for compensation but it is reasonable to assume that Mr McLellan had to provide a medical certificate before his claim was accepted.
Mr McLellan says he resumed work and “did not give the injury much more thought after that”. However, he says, he has been in constant pain since the accident and kept getting “extreme pain” when sitting in certain positions. He took Panadol, and used alcohol to deal with the pain when it became unbearable. He saw his general practitioner, whose name he cannot recall, but the itinerant nature of his work meant he did not have one doctor monitoring his condition and he “just put up with the pain”.
In 1990, Mr McLellan was transferred to Woomera in South Australia. He injured his neck one day while trying to remove a brown snake which lunged at him, causing him to move his head back suddenly. He “felt a crack” in his neck and felt “immediate and searing pain” in the same place he had injured his neck in the car accident. He recalls being off work for approximately one week and “unable to move” his neck. He returned to work but has “not been pain free since”. A workers compensation medical certificate shows he was certified unfit for two days with no further review considered necessary.
Mr McLellan says he resigned from the AFP in 1994 because he was worried the nature of his work might cause “further and more serious damage” to his neck. In 1994, he started work as a sub-contractor carpet cleaner for Grace Bros. He says he had to stop after six months because of constant pain in his arm and neck. In 1995, he bought a pressure cleaning franchise but gave it up after 18 months for the same reason. In 1998, he started work as a security officer at the University of Western Sydney but gave that up after 18 months because of his neck pain.
In 2001, Mr McLellan says he felt able to work again and started work as a security officer at the University of Western Sydney. The duties of that position were lighter but his neck was still causing him pain and his right arm was becoming weaker and he had tingling in his hand.
In 2004, Mr McLellan started work as a correctional officer with the NSW Department of Corrective Services. The pain in his neck became “extreme” and he was losing strength and movement in his neck and right arm. He started taking time off because of the pain and depression. He resigned in 2009.
Giving evidence, Mr McLellan said that he had to undergo a medical assessment before taking up the position with the Department of Corrective Services in 2004. He agreed that the position required him occasionally to restrain offenders. There is no evidence that he had any difficulty performing his duties; he was made permanent after two years and, at some point, he was promoted to the next rank.
Mr McLellan’s Notice of Resignation from the Department gives his reasons for resigning as “medical issues”. It notes that he was not considered suitable for re-employment because of his “medical issues” but this “could be reviewed if remedial medical treatment proves successful”. There is no evidence that Mr McLellan underwent “remedial medical treatment” and he agreed in evidence that he did not.
After resigning from the Department, Mr McLellan was granted a disability support pension (DSP). He found that hard to live on and has resumed work at different times since, then gone back on the DSP when the job was too much for him.
Mr McLellan claims he has had “constant medical treatment including pain killers, physiotherapy and various scans and x-rays over the years”. He says the pain has never gone away and has prevented him from continuing each of the jobs he has had over the years.
Medical evidence – clinical records
Mr McLellan’s claim that he has had “constant medical treatment” over the years for his injuries is not borne out by the clinical records available to the Tribunal. Giving evidence, he confirmed that he was asked by the respondent to provide the names of doctors whom he saw for treatment but he was unable to recall any prior to 2004.
Clinical notes from 2004 onwards have been obtained from: four medical practices that Mr McLellan could recall attending; Dubbo Hospital; and Dr Paul Ekman, who was the only physiotherapist whose name Mr McLellan could recall. The notes that have been obtained show, at most, a fairly sporadic attendance on medical practitioners.
We set out below those attendances that appear to relate to Mr McLellan’s neck or shoulders, or where we would have expected some record of neck or shoulder pain if he was experiencing either. We accept that he moved from time to time and did not always have a regular doctor but, given his claim of constant neck and shoulder pain, the infrequency of complaints, and apparent absence of treatment, are notable.
Mr McLellan’s first recorded attendance on any doctor in the clinical notes was in May 2004 at the Dural Medical Centre. He complained of “some back pain from lifting today” and unrelated matters. The only past medical history recorded was hypertension.
Mr McLellan saw Dr Paul Ekman, physiotherapist, on three occasions in October 2004. Dr Ekman’s notes appear to record pain in Mr McLellan’s right shoulder and neck. Dr Ekman apparently referred him for x-rays which showed degenerative disc narrowing at C5/6 with small spurs encroaching on the foramina at this level but no significant foraminal narrowing, and minor scoliosis in the thoracic spine. Other than three consultations, no ongoing treatment is noted and nothing in the notes suggests any relationship between Mr McLellan’s conditions and any employment.
The next recorded attendance was in November 2005 at the South West Rocks Medical Centre for matters unrelated to Mr McLellan’s neck or shoulders. In November 2006, Dr Campbell noted “slightly reduced movement-flexion [right] shoulder” and prescribed Mobic (an anti-inflammatory).
In September 2007, Dr El Souki noted Mr McLellan presented “for medication and to fill form for insurance re ankle injury”. Dr El Souki ordered x-rays for a twisted left ankle and referred him for physiotherapy. On 2 October 2007, he noted that Mr McLellan’s ankle had healed well and he could return to his pre-injury duties.
In December 2007, Dr Leggett ordered x-rays of Mr McLellan’s cervical and thoracic spine and noted “intrascapular ache constantly”. He prescribed Mobic. Mr McLellan next attended in April 2008 for matters unrelated to his neck or shoulders.
On 22 October 2008, Mr McLellan presented at Dubbo Hospital with “chronic neck pain”. A report from the resident medical officer shows he had sustained a neck injury “years ago” and had had “ongoing intermittent concerns” since. He was experiencing dull left shoulder pain which was beginning to affect his sleep and ability to function normally. The doctor recommended more extensive imaging of Mr McLellan’s cervical spine with CT and MRI, pending the result of which, he said, he might benefit from an orthopaedic opinion.
In December 2008, Mr McLellan’s file was transferred to Bawrunga Aboriginal Medical Centre. On 8 December 2008, he saw Dr Dik who recorded “old neck injury” but did not appear to treat Mr McLellan for this.
On 13 May 2009, Dr Win recorded “painful neck – had impingement for C- nerve – discussed anti-inflammatory and anti-depressant”. On 15 May 2009, Dr Abdulrazak recorded “chronic neck pain” and prescribed Mobic.
On 15 February 2012, Dr Abdulrazak noted that Mr McLellan had been “travelling around” but was now coming regularly. Reasons for contact that day were hypertension and anxiety. Dr Abdulrazak took what appears to be a detailed history in which he noted “no neck stiffness”. For Mr McLellan it was submitted that, by inference, this suggested he must have had previous neck problems, but the extensive list of body parts and functions checked by Dr Abdulrazak suggests a general check-up rather than anything significant about Mr McLellan’s absence of neck pain.
On 27 February 2012, Dr Abdulrazak requested a CT scan of Mr McLellan’s cervical spine. There is no reference to Mr McLellan’s neck at subsequent appointments on 30 April 2012, 23 May 2012 or 30 September 2012.
On 25 June 2012, Dr L Prasad, Senior Injury Management Consultant, reported to Comcare that Mr McLellan had neck and shoulder pain “so intense that he is unfit for work”. On 2 July 2012, Dr Prasad reported to Mr McLellan’s doctor that he had cervical spine degeneration at C5/6 and C6/7, cervical spondylosis with osteoarthritis, “neck and both shoulder pain with frequent headaches”. On 27 August 2012, he reported to Comcare that he saw Mr McLellan in April for “injuries suffered on 31 December 1989” when he sustained “bruising to his head and bruising and soft tissue damage to his left shoulder”. He also noted an injury on 10 September 1990 but did not describe it. He noted Mr McLellan’s “constant pain” and diagnosed cervical spondylosis with osteoarthritis related to the injury in 1989 for which “there has not been any active treatment”.
Imaging evidence
X-rays were taken of Mr McLellan’s cervical spine on 15 October 2004 and 21 December 2007. CT scans of his cervical spine were taken on 22 December 2008 and 14 March 2012. An x-ray of his thoracic spine was taken in December 2007 and an ultrasound of his left shoulder was performed in February 2011.
The x-ray of Mr McLellan’s cervical spine in 2004 showed:
Degenerative disc narrowing … at C5/6. Spurs are present at the vertebral body margins. Small spurs encroach into the foramina at this level but there is no significant narrowing. The remaining foramina define normally. There is no loss of vertebral body height. The prevertebral soft tissues are normal.
X-rays of Mr McLellan’s cervical spine in 2007 showed:
Disc lesions at C5/6 and 6/7, with spur encroachment on the right side at both levels and minor spur encroachment on the left side at C5/6. Loss of the normal lordosis. [Nothing] further of importance.
The CT scan in December 2008 showed:
Quite marked loss of disc height at C5/6 with less loss of disc height at C6/7 with associated bilateral uncovertable osteoarthritis on both sides resulting in bilateral bony foraminal narrowing at both levels, much more so at C5/6 on the right with less changes seen at C6/7 on the right and minimal changes at C5/6 and C6/7 on the left. An osteophytic ridge disc complex results in moderate canal narrowing at C5/6.
The CT scan in March 2012 showed:
Encroachment upon the canal by osteophytes/disc at C5/6 and C6/7 levels. Changes of [osteoarthritis] in associated neurocentral joints with narrowing of the right sided foramina.
The x-ray of Mr McLellan’s thoracic spine in December 2007 showed:
There is a mild increase of the normal kyphosis, caused by wedging of several of the dorsal vertebral bodies. Anterior and lateral osteophytosis seen from T4 down to T12, with disc space narrowing of several levels.
The ultrasound of Mr McLellan’s left shoulder in February 2011 showed:
Mild to moderate subacromial-subdeltoid bursitis with accompanying tendinosis of the subscapularis and supraspinatous tendons. No rotator cuff tear seen.
The imaging results were made available to Dr Guirgis and Dr McGill whose evidence is considered below.
Evidence of Dr Guirgis and Dr McGill
Dr Mehdat Guirgis, orthopaedic surgeon, saw Mr McLellan for assessment on 24 April 2013. He provided a written report and gave oral evidence.
Dr Neil McGill, rheumatologist, saw Mr McLellan for assessment on 24 April 2013. He has provided a written report of his assessment and four supplementary reports, and gave oral evidence.
Left shoulder
Both Dr Guirgis and Dr McGill found that Mr McLellan had restricted range of movement and pain on moving his left shoulder on examination, and they agreed it showed signs of rotator cuff tendonitis. They disagreed about the relationship between his symptoms and the injuries in 1989 and 1990.
Dr Guirgis gave evidence that, in his opinion, the shoulder injury sustained by Mr McLellan in 1989 persisted and worsened over time. He said he assumed, because movement in his left shoulder was restricted, that there was pathology in his left shoulder and he assumed it was from the accident. In cross-examination, however, he agreed that any association between any pathology in Mr McLellan’s left shoulder and the 1989 incident was speculative.
In Dr McGill’s opinion, the rotator cuff tendonitis in Mr McLellan’s left shoulder is degenerative in nature and unrelated to the injury in 1989. He said it was “very very common” to find similar degenerative changes in a man of Mr McLellan’s age, and they are commonly asymptomatic. He said it was common for degenerative changes to be one-sided, and nothing significant could be drawn from the fact they were not bilateral.
In concluding there was no relationship between the 1989 injury and the changes in Mr McLellan’s left shoulder, Dr McGill said he took into account that his initial injury was not severe; he spent minimal time in hospital and had only a short time off work. Dr McGill thought it unlikely, if Mr McLellan’s injury was serious, that the driver would have driven to hospital rather than call an ambulance, but it does not strike us as implausible that another AFP officer would decide to drive him, even if he had been knocked unconscious for a time.
Dr McGill gave evidence that, for such an injury to persist for over 20 years, he would expect the ultrasound examination of Mr McLellan’s left shoulder to show, at the very least, a supraspinatus tendon tear, but it did not. The absence of any reference in the clinical notes to shoulder symptoms until 2006 further supported the conclusion that Mr McLellan’s left shoulder condition developed later in life and, in the absence of any other reported injury, it was reasonable to conclude it was degenerative.
We prefer Dr McGill’s evidence to that of Dr Guirgis. Dr McGill supported his opinion by reference to the circumstances of Mr McLellan’s injury, the clinical records and the imaging of his shoulder. By his own evidence, Dr Guirgis could only speculate as to a relationship between the condition of Mr McLellan’s shoulder and his 1989 injury.
The first record of complaint by Mr McLellan of pain in his left shoulder was in November 2006 when he reported a “sore arm 1 night” at which time he was diagnosed with a soft tissue injury to his shoulder. The only other reports of shoulder pain were in December 2007 when it was recorded as “[I]ntrascapular ache constantly” and in 2008 at Dubbo Hospital. Mr McLellan was prescribed an anti-inflammatory in 2006 and had an x-ray of his thoracic spine in 2007. The next record is the ultrasound in February 2011. There is no evidence that he required treatment for his shoulder prior to 2006 and thereafter his complaints were sporadic. This strongly suggests that the onset of symptoms in his left shoulder was some 16 or 17 years after the accepted injuries.
We are not satisfied, on the material before us, that there is any causal relationship between the condition of Mr McLellan’s left shoulder and either injury in 1989 or 1990. We find that it is degenerative in nature and unrelated to either incident. It follows that it is not necessary to determine whether any impairment is permanent, or the degree of any permanent impairment.
Cervical spine

Dr Guirgis gave evidence that, in his view, Mr McLellan sustained a serious injury to his cervical spine in 1989, likely to have caused a disc injury at C5/6. He thought it likely that the second incident in 1990 aggravated that injury.
Dr Guirgis thought Mr McLellan’s original disc injury deteriorated with time, more rapidly than usual degenerative decline. He said the degree of disc damage seen in his cervical spine was greater than would be expected from degenerative changes in a man of his age. He said the damage to the C5/6 disc was greater than that seen in the other cervical discs. He thought the degenerative changes to the C6/7 disc could have been caused by stress placed on that disc by the hypomobility of the C5/6 disc above.
Dr Guirgis agreed that relating the changes in 2004 in Mr McLellan’s spine to the 1989 injury was speculative. He agreed they could be due to some other factor that he was not aware of. He agreed that the x-rays showed a “possible” cause. He agreed that Mr McLellan told him, he had injured his neck and then had pain, and he therefore thought the injury the probable cause.
Dr McGill did not agree. He found Mr McLellan had restricted movement in his cervical spine in April 2013 but, in his view, his findings on examination and the degeneration shown on the imaging were unrelated to the 1989 or 1990 injuries. He gave evidence that the C5/6 and C6/7 discs are most commonly the first to degenerate in the cervical spine and are usually the worst, and Mr McLellan’s cervical spine was consistent with normal degeneration at that level.
Dr McGill noted that the first evidence of Mr McLellan attending a medical practitioner for treatment of his cervical spine was in 2004, some 15 years after the first injury. He thought it “very speculative” to suggest the injury in 1989 hastened the progression of degenerative changes, especially given that the initial injury appears not to be serious.
We again prefer Dr McGill’s evidence to that of Dr Guirgis. We accept Dr McGill’s evidence that degenerative changes in the cervical spine are most common at C5/6 level. We accept that is the most probable explanation for the changes in Mr McLellan’s spine and for his pain symptoms. Dr Guirgis could not put any relationship between them and Mr McLellan’s employment higher than speculation.
We are not satisfied, on the material before us, that there is any causal relationship between the degenerative changes in Mr McLellan’s cervical spine and either injury in 1989 or 1990. It follows that it is not necessary to determine whether any impairment is permanent, or the degree of any permanent impairment.
Conclusion
We find, on the information before us, that Mr McLellan suffered minor injuries to his left shoulder and cervical spine in the accident in 1989. We accept that he suffered a minor aggravation to his cervical spine in 1990.
We do not accept that Mr McLellan suffered constant neck and shoulder pain following the incidents at work. He had a brief period off work after the first injury and an even briefer period off work after the second. His next recorded attendance on a doctor in relation to his neck or shoulder was in 2004. During that period, he made no claim for incapacity despite claiming he had to cease work several times on account of his neck pain. He made no claim in respect of medical treatment. He does not claim, and there is no reason to think, that he was unfamiliar with how to claim compensation, having lodged claims in respect of both incidents.
We find, on the medical evidence before us, that the degenerative changes in Mr McLellan’s cervical spine are the result of the normal ageing process and are unrelated to either injury at work. We find that his left shoulder condition developed relatively recently and is degenerative in nature and unrelated to either injury at work.
It follows that the respondent is not liable to compensate Mr McLellan in respect of either condition.
We affirm the decision under review.

1. I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

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Associate
Dated 27 March 2014

Date of hearing 11 and 12 March 2014

Counsel for the Applicant Mr William Carney

Counsel for the Respondent Ms Rhonda Henderson

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5763
Re	Stuart McLellan
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J Toohey Dr Isles, Member
Date	27 March 2014
Place	Sydney

Date of hearing	11 and 12 March 2014
Counsel for the Applicant	Mr William Carney
Counsel for the Respondent	Ms Rhonda Henderson