Millard and Comcare

[2007] AATA 1257

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1257

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N200600454 

GENERAL ADMINISTRATIVE  DIVISION		)               N200700591
Re		JOHN HAVILAND MILLARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal      Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell

Date of hearing      5 March 2007

Date of decision     26 April 2007

Place          Sydney

Decision           We affirm both decisions under review in proceedings N2006/454    and N2007/591

.....................[sgd].........................

Presiding Member,
  Senior Member, Mrs Josephine Kelly

CATCHWORDS

WORKER’S COMPENSATION – whether employment aggravated cervical spine condition – whether entitled to medical expenses – held symptoms not caused by activities at work – reviewable decisions affirmed.

LEGISLATION

Sections 14 & 16 Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell                

Introduction

1.Mr John Millard worked at the ABC for 23 years as a Program Maker.  In June 2000 he suffered neck and right shoulder pain which radiated down his right arm to his fingers.  Comcare accepted liability for “aggravation of degeneration of cervical intervertebral disc (right) sustained on 26 June 2000”.  Mr Millard was off work for three months, had physiotherapy, and undertook a course in the Alexander technique.  He returned to work in the same job and continued working until his second claim in September 2003.  Again liability was accepted for “aggravation of displacement of cervical intervertebral disc (right) sustained on 9 September 2003”, and payments were made for medical treatment between 9 September 2003 and 29 January 2004 [see T69].  In March 2005 Mr Millard left the ABC. 

2.These proceedings (N2006/454) arose from Mr Millard’s claim dated 5 May 2005, for:

“Anxiety disorder – Post Traumatic Stress with associated aggravation of displacement of cervical intervertebral disc (right) (Comcare Claim No. 54951/4) causing neck/shoulder/arm pain.”

3.On 6 September 2005 a decision was made to accept liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) for “aggravation of anxiety state” and “aggravation of degeneration of cervical intervertebral disc (right)”. The ABC sought reconsideration of the decision. The reviewable decision made on 6 March 2006 varied the earlier determination finding that Comcare ’is not liable to pay compensation pursuant to s 14 for “aggravation of degeneration of cervical intervertebral disc (right)”’. The consequence was that Mr Millard had to repay the cost of treatment he received after 16 January 2004.

4.Acceptance of liability for the aggravation of anxiety state was not in issue in these proceedings.  It is therefore unnecessary to go into detail about the circumstances in which Mr Millard’s psychiatric condition arose.  It is sufficient to say that he feels a sense of injustice about how he was treated during his employment, and that he was forced to leave a job he loved, for which he had received various awards.  

5.At the beginning of the hearing, it became clear that Comcare was taking a very narrow view of the claim relating to Mr Millard’s cervical spine.  It argued that Mr Millard’s claim was worded in such a way that the Tribunal could only consider whether the psychiatric condition had caused an aggravation of the displacement of cervical intervertebral disc condition, and not whether the condition had been aggravated by the physical aspects of his employment, which is what Mr Millard wished to argue.

6.After some discussion, Mr Millard filed in the Tribunal an application for review of the decision made on 20 October 2004 affirming a determination made on 28 May 2004 (Proceedings N2007/591).Extension of time was granted without objection.  We appreciated Comcare’s co-operation which ensured we could address all relevant issues on the allocated hearing dates.

7.The May 2004 determination disallowed Mr Millard’s claim dated 11 May 2004 seeking payment of medical and physiotherapy costs relating to his “back/neck/right arm”.      

8.After the hearing, Mr Millard submitted additional material which was sent to Comcare for consideration.  Comcare provided additional submissions and a further report from Dr McGill, rheumatologist.  Mr Millard responded to that material.  That response was provided to Comcare which advised the Tribunal on 17 April 2007 that it did not wish to make any further response.

The Issues

9.The issues are:

i.Did Mr Millard’s employment aggravate his cervical spine condition in 2004 and 2005, either as a consequence of his psychiatric condition, or of his physical activities?

ii.If so, is he entitled to medical expenses pursuant to s 16 of the SRC Act?

Mr Millard’s case

10.Mr Millard represented himself.  He firmly believes that his undoubted cervical spine condition, and in particular a disc protrusion, were caused by what he described as “heavy mouse-work” on the computer, particularly from 1997 until the onset of symptoms in June 2000. 

11.It is useful to refer to the results of imaging and medical reports from 2000.   In summary, the imaging carried out reported cervical spondylosis with moderate narrowing of the C6/C7 disc space, small posterior osteophytes causing mild bony impingement on the intervertebral foramina on both sides, mild osteoarthritis in the apophyseal joints, particularly at C4/5 and C5/6, and a focal posterior lateral disc protrusion with possible compression of the existing right C7 nerve root. 

12.Mr Millard provided a comprehensive Statement of Facts and Contentions (“SOFACS”) setting out his case.  He also gave oral evidence.  He described in detail his work method, the intense and very repetitive actions involved, and his bad posture for extended unbroken periods of time, which he said broke all the “OH&S rules and advice on avoiding neck injury when using the mouse”. 

13.He referred to reports of research which he argued supported his case, described his employer’s recognition of the inadequacies of his workplace, and the alterations that were made, including a supporting structure for his arms, and after 2000, his change of work practice to using the mouse with his left rather than his right hand. 

14.Mr Millard emphasised that he had never had any neck injuries, or such symptoms before 2000, and that there was no familial history of such a spinal condition.  He did not think he had had time off work in 2004 other than for his anxiety condition.  His claim with respect to his neck was for the cost of treatment, not incapacity.  He said that he had not had pain radiating down his arm for a couple of years.  The situation in 2004 was that he had learned about improving his posture after 2000, but around February 2004 he had pain in his neck and right shoulder and stiffness in the right side of his neck.  He provided diagrams which he said reflected the fluctuating pain that he has now, and as we understand it, was the same in 2004.  Sitting, and small movements including using the mouse, working at a bench in his workshop, and preparing food, engenders the pain. He also said that his anxiety contributes to the pain.  It is only his right side that is affected.   He believes his present condition prevents him from choosing jobs involving computer work. 

15.He did another course about the Alexander technique after his claim was refused in 2004 but could not afford to pursue a recommendation to do pilates exercises.  He does do exercises that he learned during his treatment in 2000. 

16.A substantial part of his SOFACS, evidence and submissions, was concerned with his contention that his work duties had caused the spine to be in the condition it is, particularly the prolapsed intervertebral disc.  He considered that his employer had misled him, and if he had understood the significance of the word “aggravation” in the 2000 determination, he would have appealed against that decision. 

17.Mr Millard relied on the certificates and reports of Dr Chen, general practitioner, and reports of Dr Laurent, consultant physician.   On 17 February 2004 Dr Chen certified Mr Millard unfit for work from 18 February to 2 March 2004 because of stress symptoms.  In his certificate dated 19 April 2004 Dr Chen described the injury as “anxiety caused by unresolved victimisation by senior ABC management affecting mental health and related muscle/spine pain in neck”.  Dr Chen linked the two conditions in further certificates in 2004. 

18.In his report of 11 August 2006 Dr Chen said that Mr Millard had presented with pain in his right shoulder/rhomboid muscle area in 1992 but he did not suspect it was cervical spine related and no investigations were undertaken.   From June 2000 Mr Millard complained of symptoms in the same area and paraesthesia in his right fingers, having trouble working, suffering spasms at night and not sleeping, which he associated with his “extensive computer and mouse use”.  Dr Chen also referred to Dr Laurent’s diagnosis of prolapsed intervertebral disc, and mentioned other imaging findings.  In Dr Chen’s opinion it was clear from Mr Millard’s history “that there was a relationship between his work and exacerbations of his symptoms”, but he did not feel qualified to “venture an opinion as to whether three and half year’s heavy mouse use could cause the degenerative changes found in 2000.”  He concluded:

“It does appear to me however that his subsequent stresses associated with his work as well as his computer work activity has continued to perpetuate his symptoms.  As to whether he can completely recover or to what extent he may expect to recover is hard for me to say.” 

19.In 2000, Dr Laurent, consultant rheumatologist, stated that Mr Millard’s neck and right shoulder pain was due to a “prolapsed intervertebral disc at the C6/7 Level with compression on the right C7 nerve root”.  In September 2003 Dr Laurent referred to recurrence of neck pain particularly on the right side with occasional pain radiating down the arm.  His opinion was that the neck pain was due to “the mild cervical spondylosis”.  There was no evidence of nerve root involvement. 

20.Dr Laurent provided a report dated 6 September 2006. He did not state that he had examined Mr Millard at that time or since 2003.  In summary, he referred to Mr Millard’s condition in 2000, describing his working conditions, his symptoms, and the MRI finding of focal postero-lateral disc protrusion with possible compression of the C7 nerve root.  He said that Mr Millard’s radicular symptoms resolved with physiotherapy, that he continued with an exercise program, but does have intermittent neck and upper thoracic spinal pain.  Dr Laurent described Mr Millard’s “other problem” in 2000 as right shoulder pain which was independent of the cervical spinal disorder.  Dr Laurent stated that the symptom was consistent with rotator cuff tendonopathy and “could also have been precipitated by his work at that time”.  The symptoms resolved with physiotherapy and exercise and “subsequently this right shoulder has not given him any major problems”.  Dr Laurent’s opinion was that the right shoulder pain in 1992 was more likely to be rotator cuff tendonopathy “in view of his work” and was similar to his 2000 condition, and unlikely to have been related to his cervical spondylosis: “Both rotator cuff tendon problems and neck pain are associated with frequent use of a computer, particularly if the work station is not appropriately set up.  This places increased stress on these structures and is more likely to cause tendonopathy and problems with cervical spondylosis.”

21.Dr Laurent also provided answers to questions sent to him by Mr Millard in March 2007.  In particular, he answered “Yes” to the question that asked if      3 ½ years of heavy repetitive strain mouse work would be sufficient wear and tear to cause early and mild degenerative change at C4/5 and C5/6 apophyseal joints. 

Consideration

22.First, we should explain why we find that we cannot address Mr Millard’s argument that his spinal condition in 2000 was caused by his work rather than aggravated by it.  Simply, he did not appeal against the decision which accepted liability for aggravation of the condition as set out earlier.  We can only deal with the claims and the decisions the subject of the proceedings before us. 

23.We now address the case that was before us.  Mr Millard agreed during cross-examination that in 2004 he worked for only 8 weeks which included the first two weeks of February, most of March and the first week of April.  He also agreed that there had been no change in his symptoms since leaving the ABC.  They continue to fluctuate.  We also understood that the reason he was off work in 2004 was his psychiatric condition and not his neck condition. 

24.The report of Ms Yorston, physiotherapist, dated 4 February 2004 is significant.  She set out her findings on examination and said that Mr Millard had completed a program of 10 sessions of treatment which she described.  She also said that Mr Millard “now has no pain, he is confident about management by appropriate exercise and pause breaks at work.  I have advised him to swim regularly”. 

25.We had reports from Dr McGill, consultant rheumatologist, who also gave oral evidence.  In his opinion, it was likely that Mr Millard had cervical spondylosis from 1992 when he had pain in his right shoulder.  He said that the degenerative changes shown in the radiological studies in June and July 2000 such as moderate narrowing of C6/C7 disc space takes years to develop.  A disc protrusion can happen quickly or slowly and it is not possible to determine the age of it, but the other degenerative changes, although described as early or mild, take years to develop, and were unlikely to have occurred within 3 ½  years. 

26.He said that there is no evidence that extremely repetitive mouse work and keyboard work would have any influence on the development or progression of the degenerative changes in his cervical spine which have been responsible for his neck, right upper back and right upper limb symptoms. The principle factors are age and heredity.  Further, it is not common for work activity to cause symptomatology.  Rather, during an exacerbation of symptoms, the pain makes it harder to work.   If the working conditions did contribute to the symptoms, that would cease when the person ceased working or within a week or so afterwards. He expected that during flares of pain Mr Millard would have found it more difficult to tolerate other symptoms, including stress related symptoms.  There is no evidence that using a mouse will aggravate a C6/C7 disc protrusion. 

27.Dr McGill also said that anxiety and depression may make it more difficult to tolerate pain, but they do not aggravate cervical spondylosis or its symptoms.  

28.Dr McGill did not accept that the references Mr Millard relied on supported his case that his work duties influenced the development of his cervical spondylosis.  

29.We accept Dr McGill’s evidence and prefer it to that of Dr Laurent and Dr Chen.  Dr McGill’s evidence was comprehensive and considered.  It is not apparent that Dr Laurent saw Mr Millard at all after 2003.  He also changed his opinion about Mr Millard’s shoulder condition without explaining why. In 2000 he related it to his prolapsed disc but in his 2006 report he said it was an independent condition the symptoms of which were consistent with rotator cuff tendonopathy.  We do not know what information was provided to Dr Laurent when he prepared his 2006 report.  

30.As we prefer Dr McGill’s evidence, we do not accept the linkage made by Dr Chen and Dr Laurent of Mr Millard’s work duties and his symptoms.   Neither of the latter two doctors provided an explanation of the relevant relationship.

31.A significant fact that was not referred to in any of the medical evidence is that after 2000 Mr Millard no longer used the mouse in his right hand.  In that case, it seems to us that the ongoing symptoms could not have been caused by his physical activities at work.  Rather, as Dr McGill said, his fluctuating symptoms are typical of cervical spondylosis.  We think this shows that Mr Millard’s case before us was really seeking a finding that the cervical spondylosis, or more particularly the intervertebral disc protrusion which became symptomatic in 2000, was caused by his work up to that time, and therefore later exacerbations related to that injury.  That matter is not before us but as is clear from what we have said, that we do no accept that argument.

32.For the above reasons, we do not consider that recurrent symptoms Mr Millard had in 2004 or thereafter were relevantly caused by his physical activities at work. 

33.Mr Millard’s case was that his physical duties at work had caused or aggravated his cervical spondylosis and disc protrusion.  However, as Comcare’s case was prepared on the basis of its narrow construction of the claim, that is that Mr Millard’s psychiatric condition aggravated the cervical spondylosis or disc protrusion, and Dr McGill’s first report was directed to that question, we should also address it.  We accept Dr McGill’s evidence that anxiety and depression do not aggravate cervical spondylosis or disc protrusion, or their symptoms.  

Decision

34.For the above reasons, we affirm both decisions under review in Proceedings N2006/454 and N2007/591.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr John Campbell

Signed: Ms P Nimmagadda

Associate

Date of Hearing  21 March 2007  
Date of Decision  26 April 2007
Representative for Applicant   Self-represented
Solicitors for the Respondent  Dibbs Abbott Stillman
Counsel for the Respondent  Mr Brendan Kelly