Monique Altemuhl and Comcare

[2015] AATA 452

[2015] AATA 452

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/7090
Re	Monique Altemuhl
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	26 June 2015
Place	Brisbane

The Tribunal affirms the reviewable decision.

.....................[Sgd]...................................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

COMPENSATION – whether applicant suffered an injury - whether aggravation of degenerative condition contributed to, to a significant degree by employment – decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16

CASES

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

26 June 2015

INTRODUCTION

1. The applicant has made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). She seeks review of a reviewable decision made by the respondent on 13 September 2013 which affirmed a determination made on 27 June 2013 denying liability for aggravation of degeneration of cervical intervertebral discs.

   BACKGROUND

2. The applicant stated she had developed headaches and dizziness after being at work for a few hours. In 2012 there had been some changes in the workplace which involved new computer systems (Single User and Customer First) requiring more mouse work with limited training. The applicant stated she had a stressful job because she had to deal with difficult clients in her work, which concerned integrity measures. The applicant stated she received medical advice that she had vertigo or that her headaches were posture related. It was only after she saw Dr Richards that there was an investigation which confirmed bulging discs in her cervical spine. As well as having neck pain the applicant had experienced some left shoulder muscle tension.  The applicant stated that she has been back at work and her neck is a “lot better now”; at work she has regular breaks and receives support and training where she is given assistance.

   MEDICAL EVIDENCE

   Dr Richards

3. Dr Richards, general practitioner, in his 9 May 2013 report stated that on 7 March 2013 the applicant first presented to him and complained that since May 2012 she had experienced numbness in her left arm. The applicant stated her symptoms seemed more pronounced with some increased feeling of stress in her work environment. Dr Richards reported on 9 May 2013 that the applicant had no history of previous head or neck injuries. He opined the current condition could be an aggravation of an underlying problem and the aggravation of this condition could be related to her work station and the amount of time that she was sitting and performing computer work. Enclosed with his opinion were reports from a radiologist of a CT and MRI of her cervical spine on 8 March 2013 and 28 March 2013 respectively. These radiological reports show evidence of a minor disc bulging of the intervertebral disc at C2/3 through to C4/5 levels, a small central disc protrusion of 4.2mm at C5/6 and spondylotic change from C3 to C6.

4. On 22 July 2013, Dr Richards further reported that he had been treating the applicant since March 2013 and in his opinion the only precipitating factors would appear to relate to her work situation, in particular her work station and the repetitive duties that are necessary at times. Dr Richards stated the applicant’s symptoms have fluctuated in relation to hours worked and are typically at their most intense by the end of the work week.

   Dr Bookless

5. At the request of the respondent the applicant was referred to Dr Bookless, consultant orthopaedic surgeon, for a medical assessment and report. On 28 March 2014 Dr Bookless interviewed and examined the applicant as well as reviewing the records and file data. On 7 May 2014 Dr Bookless provided a report in which he expressed the following opinion:

   The diagnosis of her current condition is cervical spondylosis. This is a constitutional condition and is likely to be producing the current symptomatology. This condition is permanent and slowly progressive. There are no objective clinical signs on examination. There are radiological findings supporting this diagnosis.

6. Dr Bookless in his report concluded that the condition is constitutional and has not been contributed to by her working activities. That report also contained the observation that there is no history of a significant injury.

7. In giving evidence Dr Bookless confirmed the findings in his report and pointed out cervical spondylosis is common in our society. He stated it was his opinion the spondylosis condition of the applicant was part of the ageing process and mentioned there was evidence of such change at the C3/4, C4/5 and C 5/6 levels. Dr Bookless thought these were not severe changes at all.

8. The report of Dr Bookless also contained the observation that there is no history of a specific incident. Dr Bookless stated in evidence that degeneration of the spine could be caused by a trauma but there is no evidence of this having occurred.

9. Dr Bookless was questioned by the respondent about his research of the medical literature that was conducted after he wrote his report. Dr Bookless stated the literature suggested there was no link between office work and spondylosis. I informed the parties that this literature had not been referred to in the report of Dr Bookless. The literature (from chapter 8 of the American Medical Association Guides to Disease and Injury Causation) had not been made available to the unrepresented applicant or filed in the Tribunal.  I informed the respondent that if they sought to rely upon this material it would be necessary to have an adjournment to accord fairness to the unrepresented applicant. The respondent then stated it would not rely on this medical literature.

10. In cross-examination the applicant contended Dr Bookless had not asked her about her work conditions during the consultation but Dr Bookless stated he had done so. Dr Bookless also reiterated in cross-examination that sedentary work at a desk could not aggravate the spondylosis condition.

    Dr Coyne

11. Dr Richards requested that Dr Coyne, neurologist, examine the applicant. In his report dated 29 August 2014 Dr Coyne remarked that the MRI scan of the cervical spine demonstrated age-related degenerative change. He stated that no significant acute disc prolapse or other cause of neurological compromise was present. Dr Coyne stated that the history of the applicant suggested a background of cervical spondylosis, which conceivably was initially aggravated by work-related factors but had become compounded by psychological factors. Dr Coyne reported that from a neurosurgical aspect there was no significant structural neurological concern, and there was no role for surgery. Dr Coyne considered that one would normally expect the physical component of her presentation to ultimately resolve and that it seemed likely that the main prognostic factor was whether her stressful work environment could be ameliorated. 

12. On 10 February 2015 Dr Coyne provided a further report after he reviewed the applicant who sought an update of her status. The applicant then advised Dr Coyne her symptoms were such that she had to cease work on 16 September 2014 due to a combination of neck pain, left shoulder symptoms and anxiety/stress. The applicant also advised Dr Coyne her symptoms had improved significantly. The applicant had also provided Dr Coyne with a report (but no imaging) of a CT scan of her spine that was taken on 24 September 2014: the report noted mild degenerative narrowing of the left C4 and C5 nerve root exit canals. Dr Coyne opined it continued to appear likely that the nature of the applicant’s work and her work environment was a significant contributing factor to her presentation in August 2014.

13. Dr Coyne considered the applicant would remain minimally symptomatic in the future if she adopted his recommendations which included for her to remain conscientious with her fitness and to have a core spinal muscle strengthening program. 

    LEGISLATION

14. Section 14 of the Act provides the respondent is liable to pay the applicant compensation in respect of an injury suffered by her if it results in death, incapacity or impairment.

15. Section 5A of the Act defines an injury as:

    (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;

16. Section 5B(1) of the Act provides that 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.

17. The term “significant degree” is defined to mean a degree that is substantially more than material.

    CONSIDERATION

18. The applicant identifies in her claim form as the relevant injury or illness the condition of “Bulging disc - C2/3 through to C4/5. Also Protrusion on the C5/6 of 4.2 mm”.[1] The applicant also stated that the parts of the body that are most affected are the “upper body, neck and shoulders”.[2]

    [1] Exhibit A T 11.

    [2] Ibid.

19. The applicant has made a complaint of numbness in her arm but the claim form makes no reference to this condition.

20. Dr Christian, consultant occupational physician, identified the applicant’s condition in his 26 November 2014 as “chronic mechanical neck pain, and left shoulder girdle muscle tension”. I am satisfied on the basis of radiological evidence that the applicant has minor disc bulging of the intervertebral disc at C2/3 through to C4/5 levels and a small central disc protrusion of 4.2mm at C5/6. While the claim form does not refer to spondylotic change from C3 to C6, it is fair to consider her claim as also referring to the spondylotic change in the region of the body identified by the applicant. 

21. I have reviewed the evidence to consider whether the applicant had ever received a trauma to the region of the neck at the workplace. In his report of 22 July 2013 Dr Richards stated there had never been any suggestion of trauma to her neck. The report of Dr Bookless also contained the observation that there is no history of a specific incident. As the applicant was unrepresented I asked her whether she had received an injury at work. I asked that question because in a report dated 8 July 2013 Ms Collins, physiotherapist, mentioned the applicant had a “work-related neck injury”. The applicant confirmed she had not received any injury at work. The issue of whether there was any trauma to the neck region is important because Dr Bookless in giving evidence mentioned that spondylosis can be caused by trauma. However, there is no evidence of the applicant ever having received a trauma to her neck at the workplace.

22. I find that the claimed condition of the applicant, which I have earlier outlined, is not related to her employment but is a degenerative constitutional condition. I rely on the evidence of both Dr Coyne and Dr Bookless who have given their opinions that the condition is of a degenerative nature.

23. Having found that the applicant’s claimed condition is of a degenerative nature and unrelated to her employment, I am required to determine whether the applicant is entitled to compensation for aggravation of an underlying condition of degeneration of cervical intervertebral discs. This depends upon whether the applicant’s claimed condition was contributed to, to a significant degree, by her employment. The applicant stated her claim was for medical expenses. Where an employee suffers an injury, Comcare is certainly liable under s 16 of the Act to pay compensation in respect of the cost of reasonable medical treatment obtained in relation to the injury.

24. This is a case where there is a difference of medical opinion. The treating doctors consider that the condition of the applicant has been aggravated by her workplace. However, it is fair to say that the opinion of Dr Richards is of a tentative nature as he reported on 9 May 2013 that “the aggravation of her condition could be related to her work station and the amount of time that she is sitting and performing computer work” [emphasis added]. On 29 August 2014 Dr Coyne advised Dr Richards “her history suggests a background of cervical spondylosis which conceivably was aggravated by work-related factors” [emphasis added]. However the treating doctors give no reasons for their conclusions. On the other hand Dr Bookless, a consultant orthopaedic surgeon, in giving evidence before this Tribunal concluded that sedentary work in the workplace had not contributed to an aggravation of the applicant’s condition. Dr Bookless was challenged on what may or may not have been said when he interviewed the applicant. However, his opinion that the condition of the applicant had not been aggravated by sedentary work was not challenged by the applicant. I rely upon the considered opinion of Dr Bookless, who is a surgeon of some seniority, to find that the applicant’s condition was not aggravated by her employment.

25. I also reach my conclusion that the applicant’s condition was not aggravated by her employment after my review of the relevant contemporaneous medical records. In those records there is no indication any aggravation of the applicant’s claimed condition was contributed to in any respect by her employment. The applicant stated in her claim form dated 26 March 2013 that it was 7:30am on 10 May 2012 when she was injured or first noticed that she was ill. However, the notes of the general practitioner she consulted on that day at 8:29am indicate the consultation related to issues of frequency: the notes do not indicate the applicant had pain in the neck or headaches and do not refer to her employment.[3]

    [3] Exhibit J p 5.

26. I appreciate the claim form was lodged sometime after the event and in those circumstances it would not be reasonable to expect a worker to state with absolute precision when any injury occurred. It is for that reason I have examined the medical records about that time. However, I have not found any such records which relate to cervical spine pain or her work. On 28 June 2012 there is a record of the applicant having “muscle aches and pains”;[4] this was at a time when the applicant was diagnosed as having a viral illness. There is a record dated 12 July 2012 of the applicant having nearly fainted at work when she had had the “flu” two weeks earlier. The applicant attended her general practitioner on 16 July 2012 to complain of headaches which were then stated as being associated with dizziness: the record of that visit does not contain any reference to the applicant having any neck pain at all.

    [4] Exhibit J p 4.

27. Dr Simpson in his letter dated 30 April 2013 reported that the applicant saw

    
    

    Dr Hanna on 3 February 2010 regarding daily headaches in the neck and occipital region. I therefore conclude the headache condition of the applicant preceded the changes in the workplace in 2012. The record of the visit of the applicant to Dr Hanna on 3 February 2010 confirms her complaint was in relation to her daily headaches of 8-9 month duration; no triggers for the headaches were then identified.[5]  This record indicates that the applicant has suffered from headaches in the neck region since 2009.

    [5] Exhibit A p 90.

28. The applicant contended her work station had contributed to and aggravated her ongoing debilitating pain. I have already mentioned Dr Richards had reported that one precipitating factor could appear to be her work station. Dr Christian, in his report dated 26 November 2014, had certainly recommended the applicant be able to utilise a sit/stand work station: he had discussed this recommendation with Dr Richards.[6] The applicant has stated that her neck is now much better at work.  I asked the applicant whether a new work station has been installed and she responded that she was about to receive it. The fact that she is better before a work station has been installed may well indicate the work station has not been the source of her difficulty. I consider it is appropriate to have regard to this current information in forming this conclusion.[7]

    [6] Exhibit J p 11.

    [7] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 [41] per Kirby J.

29. I am not satisfied that stress with the applicant’s employment contributed to and aggravated her ongoing debilitating pain. The unchallenged report of the team leader, Mr Daly, stated there were different computer scripts and processes.  However, he stated the work practices of reviewing eligibility were essentially the same.

30. There is no evidence of the applicant having any permanent or partial incapacity. Dr Christian has indicated in his 26 November 2014 report that the applicant was not totally and permanently incapacitated and that there was only temporary partial incapacity. Dr Curtis Gray, consultant psychiatrist, has stated in his report dated 26 November 2014 that he does not consider the applicant to be permanently incapacitated for work. Dr Gray has also reported that he would not consider her to be partially incapacitated.

    DECISION

31. I affirm the reviewable decision of 13 September 2013.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

........................[Sgd]................................................

Associate

Dated 26 June 2015

Date(s) of hearing	27 April 2015
Applicant	In person
Counsel for the Respondent	Mr A Dillon
Solicitors for the Respondent	Australian Government Solicitor