Morrison and Australian Postal Corporation
[2004] AATA 24
•16 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 24
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/987
GENERAL ADMINISTRATIVE DIVISION ) Re KAREN MORRISON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date16 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – incapacity payments – injury to neck - whether applicant suffering from a work related injury or degenerative changes - whether the respondent is liable to continue to pay compensation to the applicant for incapacity or impairment
WORKERS’ COMPENSATION – permanent impairment – injury to neck – whether the respondent is liable to pay compensation for permanent impairment – assessment of level of impairment
Safety Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 16, 19, 24, 27, 28
Australian Postal Corporation v Oudyn [2003] FCA 318
Re Carson and Telstra Corporation (2001) 33 AAR 351Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
16 January 2004 Mr R G Kenny, Member BACKGROUND
1. In 1996, Karen Morrison, formerly Karen Ryland (the applicant), was employed by Australian Postal Corporation (the respondent) as a postal delivery officer and, on 28 March 1996 when she was based at the Acacia Ridge Delivery Centre, she lodged a claim for rehabilitation and compensation in respect of an injury to the left shoulder and left side of her neck, alleging that it occurred in an incident while performing her duties on 22 March 1996 (T6). On 3 April 1996, the respondent accepted liability in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a strained left trapezius muscle (T12) and compensation for incapacity was paid under sections 16 and 19 of the Act, accordingly.
2. On 24 September 1998 (T205), the respondent determined that liability under section 14 of the Act would cease on the basis that the applicant had returned to full duty on 18 September 1998. That decision was affirmed on 23 December 1999 (T227) although, on 14 August 2000, the decision was revoked and liability was continued in respect of the condition but with an amended diagnosis of aggravation of a degenerative neck condition at the C4/5 level (T240). On 27 February 2002, a claim was lodged on the applicant's behalf for permanent impairment.
3. On 16 July 2002, the respondent determined that liability to the applicant under section 14 of the Act to pay compensation for incapacity would cease from that date and it also rejected the applicant's claim for permanent impairment. In a reviewable decision, dated 5 November 2002, the respondent affirmed those determinations. On 13 November 2002, the applicant sought review of the decision by the Administrative Appeals Tribunal (the Tribunal).
HEARING
4. The applicant was represented by Mr D Rangiah of counsel and the respondent was represented by Ms K Downes of counsel.
5. Statements prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were taken into evidence as Exhibit 1 (T1–T389). In addition, the following material was taken into evidence:
§Exhibit 2 - a medical report, dated 5 August 2003, by Dr Allison Reid, neurologist;
§Exhibit 3 - a medical report, dated 7 August 2003, by Dr Peter Boys, orthopaedic surgeon;
§Exhibit 4 - medical reports dated 28 June 2001, 22 February 2001, 7 July 1999, 4 March 1998, 23 April 1997, 3 May 1996, 19 April 1996, and 10 April 1996 by Dr Steven Goode, specialist in occupational medicine;
§Exhibit 5 - a medical report, dated 22 May 2002, by Dr Michael Coroneos, neurosurgeon;
§Exhibit 6 - a video recording and report, dated 29 April 2002, by Gary Cox Investigations Pty Ltd;
§Exhibit 7 - a statement, dated 21 January 2003, by the applicant;
§Exhibit 8 - a medical report, dated 15 May 2003, by Dr Greg Hales;
§Exhibit 9 - a further medical report, dated 31 January 2000, by Dr Hales; and
§Exhibit 10 - an addendum to the T documents T355/526A.
ISSUES AND LEGISLATION
6. The issues for the Tribunal to determine are whether the respondent is liable, under section 14 of the Act, to continue to pay compensation to the applicant for incapacity or impairment, in accordance with sections 16 and 19 of the Act, on or after 16 July 2002; and whether the respondent is liable, under section 24 of the Act, to pay compensation to the applicant for permanent impairment. Relevant to the determination of those matters are the following provisions of the Act:
“4 - Interpretation
(1) In this Act, unless the contrary intention appears: …
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
permanent means likely to continue indefinitely.
…
6 - Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)…; or
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment…;
…
14 - Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
24 - Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
…
27 - Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
28 - Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the ‘Guide to the Assessment of the Degree of Permanent Impairment’, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
(8) Comcare shall make copies of the "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section.”
EVIDENCE AT THE HEARING
The Applicant
7. The applicant gave the following account of the event which led to her injury on Friday 22 March 1996 when she was employed by Australia Post and with whom she had worked since 1990. She said that she was delivering mail and had parked her utility vehicle in an Australian Post parking bay. A leather mail bag, which weighed approximately 40 kg, was on the front passenger's seat and she moved from the driver's side of the vehicle to the passenger’s door to remove the bag from the vehicle. She could not fully open the door because of an obstruction and reached in to remove the bag but it caught on the door handle. She placed a strap from the bag on her left arm and tried to pull it out. The bag came quickly and she put up her arm to stop it from falling as she did not want it to go under the vehicle. She took the full weight of the bag and experienced a pulling sensation and a burning pain in her left arm and shoulder, felt the muscle give way and heard her neck “pop”.
8. The applicant said that she had loaded the bag herself before going on the delivery round and had placed more in it and than she should have because she was under a time-limit for delivery and it was easier if she did it all at the one time. She said that, at the time, she was very fit and was easily able to lift a weight of 40 kg.
9. The applicant said that she was able to continue with the mail round, which involved delivery to one street and to a hospital, even though she felt pain in her upper arm. She said that she went home that evening and felt stiffness in her arm and that, next morning, her neck and arm were very sore. She said that, on the following day, she was not able to get out of bed because of the pain and a doctor was called.
10. The applicant said that the condition would be constantly aggravated by activity that she undertook at work such as sorting mail, delivering mail or lifting weights. She said that she attempted to undertake normal duties but was prevented from doing them because of the pain. She said that she had a particular experience in July 2000 when she aggravated the upper arm and neck and has not worked since although she is still officially employed by Australia Post.
11. The applicant said that the symptoms which she now experiences are the same as those that she had at the time of the injury and that there was no length of time when she was completely free of symptoms. She said that these included a stiff neck, pins and needles in the left arm and fingers, soreness between the shoulder blades, arm swelling, and a change in colour and coldness in her left hand. She said that she was left-hand dominant and that she noted weakness in the left arm since the incident and that she had a feeling “like her arm will drop off”.. She said that she attempts to write but that it is very untidy as she experiences the sensation of pins and needles after about 10 minutes. She said that she had no difficult picking up objects although she said that, sometimes, her hand shakes and she must put down anything that she is carrying such as, for example, a cup of coffee. She said that she was able to drive a vehicle but that she has problems with changing gears because of the left arm and with reversing and merging in traffic because of her neck, and that, therefore, she does not drive very far.
12. The applicant said that she had done no retraining with Australia Post but that she had undertaken two computer courses on her own account. She said that she went back to Australia Post who wanted her to carry out work such as sorting brochures, answering telephones and redirecting mail but she found that she couldn't do this because she was required to bend down at a table. She said that she was currently in receipt of a social security benefit.
13. In relation to medication, the applicant said that she takes Panadeine Forte and paracetamol tablets and that she also wears herbal patches. She said that she had been diagnosed as being depressed but said that she believed that this was not the case and that, rather, she suffered from feelings of frustration.
14. In cross-examination, the applicant was referred to the various reports which had been prepared by Dr Goode. In his report of 10 April 1996 (Exhibit 4), he described the mail bag as weighing 16 to 25 kg but the applicant denied that this had been what she had told him and said that she had told him it weighed 40 kg. Dr Goode also stated that the applicant had “jarred the left side of her neck” but, again, she denied that she had told him this and said that she had told him that she experienced a “sharp burning sensation” and that her neck had “popped like a domino effect”.. She denied that she had told Dr Goode that she had hurt her neck subsequently. She said that, initially, she felt a burning sensation and had experienced the pain on Friday night rather than when the incident happened, that the initial pain was in the shoulder rather than the neck and that she felt pain on Saturday in the shoulder, arm and neck. She said that it was sufficiently bad on the Sunday for her to call a doctor whose name she was unable to recall. She said that, since she began to experience the pain in the shoulder and the arm, it had never really gone away.
15. The applicant was also referred to a further two estimates that she had made of the weight of the bag as being 50 kg. The first was the report, dated 15 May 2003 (Exhibit 4), of her treating doctor, Dr Hales, and the second was a letter, dated 14 October 2002, written by her solicitor to the respondent (T386) where, in each case, reference is made to the mail bag weighing 50 kg. The applicant said that she had not provided that information to Dr Hales or to her solicitor.
16. The applicant was also referred to the report of Dr Goode which he prepared on 19 April 1996 (Exhibit 4). She agreed that she had told him that the condition had significantly improved by that time but she denied that she had told him that she was able to drive a car at that time without any trouble.
17. In relation to Dr Goode's report, dated 3 May 1996 (Exhibit 4), the applicant agreed that she was back at work by that time and she agreed that she had told Dr Goode that she had improved. However, she said that she meant that her shoulder and arm were feeling better but not her neck because it was just as bad as it had been when she initially injured it. She said that she believed that she had told Dr Goode that she had felt better in herself rather than that all of her symptoms were better.
18. The applicant was referred to the report of Dr Goode prepared on 10 May 1996 (T21) and, once again, she agreed that she had told him that the condition had improved and she said that, this time, she was referring to her neck and she also said that, while her shoulder was feeling “freer” at that time, she was still feeling constant pain at the top of her arm. She said that she had not had any pain in her hand, at that time, and that she had only experienced pins and needles and coldness as well as colour change in her hand.
19. The applicant was asked whether she had experienced pain in the left elbow and she said that she had although she said that, because the pain was “all over”, she was unable to say which part of the elbow was sore. She said that she was unable to say when the pain in her left elbow began although she thought that it may have been two weeks or so after the initial injury. She said that she believed that she had told Dr Goode about her elbow pain.
20. The applicant was referred to the report of Dr Goode, dated 23 May 1996 (T24), and the absence of reference to the fingers, elbow and arm but, nevertheless, she maintained that she had advised him of the problem she was having with them.
21. The applicant said that she had also experienced some difficulties with her neck on the right side and that this followed another incident at work when she had been lifting a crate. She described a pulling sensation in the neck and said that she still gets symptoms on the right side of the neck but that this is not as noticeable as those on the left side of the neck. She said that she had received cortisone treatment for this condition and she also had tingling in the right hand which had since stopped. She also described twinges in the back from another injury after sorting mail but she said that this was no longer troubling her.
22. The applicant said that the pain in her left upper arm and left shoulder had not gone away since the incident. She was referred to the report of Dr Goode, dated 7 June 1996 (T29), where reference is made to there being “no upper limb symptoms” but she denied she had given this description to Dr Goode. She was also referred to the report of Dr Goode, dated 29 August 1996 (T35), and said that she could not recall telling him that her symptoms were slowly settling at that time.
23. The applicant was seen by neurosurgeon Dr Michael Weidmann who prepared a report on 5 September 1996 (T37) where reference is made to a back injury and to the applicant as having “since suffered pain in the neck radiating into the left shoulder and down the arm”. The applicant said that she had told Dr Weidmann that she had those symptoms at the time of the incident with the mail bag.
24. The applicant was referred to a further report of Dr Goode, dated 15 October 1996 (T45), where he noted that “some neck pain persists” and the applicant agreed that there had been some improvement at that time although she was unable to say how much. She also agreed that she had told Dr Goode that she was keen to return to her normal duties.
25. The applicant was referred to a report by rehabilitation counsellor, Chrisdel McClaren, dated 24 June 1998 (T166), where the applicant described twinges in her shoulder and neck which she attributed to the cold weather. The applicant said that the pain she described was not the same as that which came from the accident as it had improved by then. She said that the feeling fluctuates and that she can have days without feeling a problem. She said that she thought that cold weather had an effect on the condition and she said that, for example, when she goes into a shopping centre which is air-conditioned, her neck muscles start to go into spasm. The applicant also said that she could not recall a time when her symptoms had ceased and, in that regard, she was referred to another report of Ms McLaren, dated 21 August 1998 (T186), where she described herself as having significantly improved following upon chiropractic treatment. She said that the chiropractor had reduced her neck pain and had relieved some of the pain but not all of it.
26. The applicant was referred to her statement (Exhibit 7) and it was put to her that she had not made any reference therein to a problem with her arm. The applicant agreed that the statement made reference only to the neck and shoulder but she said that she had always maintained that she had experienced problems with her arm and hand commencing from the time of the incident with the mail bag. The applicant denied she had exaggerated her symptoms or that these had improved by 1997.
27. The applicant was shown the video recording which was taken on 19 and 21 March 2002 and 15, 17 and 23 April 2002. She agreed that it depicted her, in the company of her daughter, in various activities including the driving of her car, in attending a Centrelink office and in utilising shopping centres. She said that her daughter has a driving licence and that, in one of the scenes on the video, she was taking her daughter to work because her daughter's car was not operating.
28. The applicant said she was not able to recall when she began having headaches but thought that it might have been a couple of months after the accident with the mail bag. She also said that she could not recall the first time that she told Dr Goode about the headaches.
Leslie Stephenson, Occupational Therapist
29. The applicant was seen by Leslie Stephenson who provided a report, dated 14 August (T374). In her evidence, Ms Stephenson said that the report she completed was not a full medico-legal report but, rather, one which was concerned with describing the presenting problems that the applicant suffered and she said that there had been no discussion of the initial incident in 1996. Ms Stephenson described the background to the applicant's symptoms and recorded information provided by her about these in medical reports. She described the applicant as reporting pain at the base of her neck and spasms down her left shoulder and left upper arm with interscapular pain. She said that the applicant referred to constant pain which was made worse with colder temperatures, a frequent occurrence of headaches and the use of medication in the form of one to two tablets of Panamax and the occasional Panadiene Forte. She referred to restriction of neck movement: moderate on right rotation, severe on left rotation, severe on extension, moderate on flexion and severe on left lateral flexion. She also described certain problems that the applicant had with activities of daily living such as with personal-care items including shaving her legs, difficulty with lifting grocery bags and pushing a shopping trolley and with cleaning activities. In relation to driving of a vehicle, Ms Stephenson stated that the applicant reported difficulty because of her decreased ability to rotate her neck and check traffic and also with changing gears due to spasms in her left hand.
Dr Francis Tomlinson, Neurosurgeon
30. Dr Tomlinson completed reports on 15 December 2001 (T326) and 29 December 2001 (T329). In his evidence, he said that he had seen the applicant in October 2000 and three times in 2001. He said that he had also seen the results of a CT scan conducted in 1996 (T33) and said that this was consistent with the applicant's complaints and a soft tissue neck injury that she sustained. He said that he had seen the results of an MRI test conducted in 2000 (T270) and, again, he said that the results were consistent with the applicant's presentation of symptoms. Dr Tomlinson said that there was a readily explainable connection between a cervical disc injury and complaints of symptoms in the arms and fingers which could be bilateral or unilateral and which may be due to the pressing of a nerve root or referred pain which can, at times, be difficult to identify. He also said that it can result in spasms or muscular contraction in an affected muscle.
31. In his first report, Dr Tomlinson described the applicant as experiencing discomfort in the left shoulder and left hand and said that, even though she was right-handed, she wrote with her left hand because she had difficulty holding the pen and she felt that her dexterity was reduced.
32. Dr Tomlinson said that he had observed the video recording taken of the applicant and said that that this had not led him to change any of his opinions about the presentation of the applicant's symptoms. He said that he had referred to the Approved Guide and was of the opinion that the applicant suffered a 10% impairment in relation to headaches under Table 13.1; a 20% impairment in respect of the cervical spine condition under Table 9.4 and a 10% impairment for her left upper extremity under Table 9.4.
33. In cross-examination, Dr Tomlinson was referred to the various reports completed by Dr Goode and said that none of these changed his opinion concerning the diagnosis or effect of the condition on the applicant. He said that, even if there had been suggestions of improvement early in her treatment, this had not been sustained and the problem had persisted. He said that, while some cases improve, that was not the applicant's situation and the condition had remained with her even years later. He said that he had relied on the history of symptoms provided by the applicant and considered that these were consistent with the test results that he had seen. In relation to C5 nerve root irritation, Dr Tomlinson denied that there was no clinical evidence of this and he said that he had been advised by the applicant that the condition was present and had noted this on the imaging test results. He also said that it was not necessary in the case of C5 nerve root irritation that there be any disc prolapse. However, he said that the testing showed that there was a disc bulge and that it was in the position where the nerve is located. Dr Tomlinson also expressed the opinion that there was no evidence to suggest that the applicant had a degenerative disc problem prior to the incident occurred in 1996. He said that he was not of the opinion that the applicant currently suffered from a degenerative disc problem and he noted that he had made no reference in his report to any magnified illness behavior.
Dr Michael Weidmann, Neurosurgeon
34. Dr Weidmann has seen the applicant on several occasions since September 1996 and provided several reports in relation to her ongoing presentation of symptoms. In his most recent report, dated 22 August 2002 (T376), he referred to degenerative changes in the cervical spine, mainly at C4/5 as demonstrated in the MRI scan. He also expressed the opinion that the applicant's current disability is greater than one might normally expect with her pathology and that he considered that there was some elabortion of the symptoms. Dr Weidmann reported that test results showed degenerative disc bulging which was not causing any apparent nerve root or spinal cord compression.
35. In his previous report, dated 3 June 2000 (T230), Dr Weideman described the applicant as having a 20% partial permanent impairment of the cervical spine and a 10% partial permanent impairment of function of the left upper limb. However, he attributed three quarters of this to pre-existing and ongoing degenerative change with only one quarter of it being related to the injury that he was considering. In his evidence, he expressed the opinion that the allocation of 20% may be too high but conceded that he should have provided an additional allocation in respect of the presentation of headache symptoms in the applicant under Table 13.1 of the Guide. He also said that she suffers from some problems with digital dexterity in relation to carrying out duties around the house and, on that basis, he considered that a 10% impairment was appropriate under Table 9.4 of the Guide.
36. In cross-examination, Dr Weidmann said that, on his understanding of the application of the Guide, as long as there was some problem, an allocation of 10% had to be made. He confirmed that three-quarters of the applicant’s difficulties were associated with degenerative change and considered that an appropriate reduction should be made.
37. In relation to the video recording of the applicant, Dr Weidmann said that it indicated that any impairment that the applicant suffered was not very disabling but he also said that it should not mean that she suffered from no impairment.
Dr Greg Hales
38. Dr Hales has been the applicant's treating doctor since April 1997 and he provided reports dated 11 June 1999 (T222), 31 January 2000 (Exhibit 9) and 15 May 2003 (Exhibit 8). He said that the first visit by the applicant was for a second opinion as, at that time, she had a different general practitioner. He said that he saw the applicant again in December 1997 for an unrelated problem and that he next saw her in August 1998. He said that she had initially told him that the problem occurred after the lifting a 50 kg mail bag. He said that the applicant had experienced some benefit from chiropractic treatment in 1998 but that the problem had not completely settled. He said he did not believe the condition was entirely degenerative in the applicant and he thought that the presence of C4/5 disc lesion was not consistent with degenerative change. However, he conceded that there was some element of degeneration in the applicant's condition. He said that the complaints made by the applicant had related to the left side of the body although he could recall that she saw him for low back pain in January 2002.
Dr Michael Coroneos, Neurosurgeon
39. Dr Coroneos saw the applicant on 29 April 2002 and provided reports dated 7 May 2002 (T346) and 22 May 2002 (Exhibit 5). Dr Coroneos said that he was currently under suspension from practice by the Medical Assessment Tribunal but that this had not been the situation when he had prepared his reports.
40. In the first of his reports, he said that he obtained a history of the symptoms claimed by the applicant and expressed the opinion, after looking at the various test results that had been accumulated, that he was unable to identify any impairment, pathology or incapacity that could be related to the 1996 incident described by the applicant. He was also concerned that no medical diagnosis of an underlying condition had been made by any of the medical practitioners she had seen. He considered that a full capacity to utilize her left arm had been demonstrated by the applicant and that there was a full and free cervical and shoulder range of movement. He also said that a CT scan was not particularly reliable in respect of an analysis of the pathology in the cervical spine and that, in that situation, an MRI analysis was preferable. He submitted that there was no evidence of any neurological signs in the applicant’s spine.
41. Dr Coroneos was referred to his first report where it said that the applicant experienced pain in the shoulder after the incident with a mail bag which had settled after 18 months. In his evidence, he said that, when he wrote the word “settled”, he meant that there was a complete resolution of symptoms. He also said that it was not unusual for a person of the applicant’s age to be experiencing some degenerative symptoms in the spine.
42. Dr Coroneos indicated that he had seen the video recordings of the applicant and expressed the opinion that these provided no evidence of any restriction in relation to the applicant's ability to utilize the upper limbs.
Dr Peter Boys, Orthopaedic Surgeon
43. Dr Boys examined the applicant on 4 April 2000 and provided reports dated 4 April 2000 (T228), 19 June 2000 (T231) and 7 August 2003 (Exhibit 3). Dr Boys said that the applicant had described the unusual symptom of significant twitching of the anterior musculature of the neck spreading to the face on occasions. He said that this was not a recognized sign of any condition that he was aware of. He also described the applicant as having advised him that she was taking what he considered to be a huge level of codeine consumption in the form of Panadeine Forte. She had told him that, at that time, she was taking six tablets along with other codeine-based medication and that, in the past, she had taken up to 20 tablets per day.
44. Dr Boys described the applicant as having a chronic regional pain syndrome but also said that she developed a secondary functional overlay and that the inappropriate responses she gave were suggestive of magnified illness behavior. He also referred to the difficulty in assessing the applicant because of her resistance to examination. In his evidence, he said that her reactions indicated that she was reacting in a controlled fashion during the examination. Dr Boys was referred to the report prepared by orthopaedic surgeon Dr David White on 16 August 1999 (T223) where he described a level of forward flexion such that the applicant could place her chin within 6 cm of the chest wall and with all other movements reduced by about one-third. Dr Boys said that, under Table 9.6 of the Guide, this would result in the loss of less than half the normal range of movement and an impairment of 5%.
45. Dr Boys was referred to a reference in his report to some general weakness of the left upper arm particularly with regards to grasp but he denied that this meant that there was a loss of digital dexterity in the applicant's hand because the reference to grasp was to the applicant’s grip strength whereas dexterity involves finger movement. Dr Boys also considered that there would be no difficulty in writing or typing by the applicant.
46. Dr Boys was asked whether muscle spasm can be related to cervical problems and he agreed that this can be the case where it is at an acute stage. He also said that it can occur from time to time and that it can be faked by a patient.
47. Dr Boys said that he had seen the video recordings of the applicant and said that any apparent restrictions that he noted durring his medical examination were not apparent on the video recordings. He said that in his opinion, the video demonstrated no loss of movement.
Dr Allison Reid, Neurologist
48. Dr Reid saw the applicant in June 2002 and prepared reports dated 11 June 2002 (T355), 27 June 2002 (T359) and 5 August 2003 (Exhibit 2). In listing the applicant's current symptoms, Dr Reid wrote:
“1.Mrs Morrison reports frequent aching crushing headaches which start at the base of her skull and radiate up over the vortex of her forehead;
2.She states her neck has never improved. She experiences muscle spasms if she turns to the side or is in air-conditioning. She say she is constantly in pain and has a burning sensation at the root of the neck.
3.Mrs Morrison has no pain in the left upper limb but states if she uses it, it goes blue and white, and is icy cold. She states she experiences pins and needles in the middle three fingers of the left hand and has a stocking-like constricting sensation in the forearm.
4.Mrs Morrison has no complaints pertaining to the right upper limb.”
Dr Reid went on to stay:
“Subsequent investigations of the cervical spine have revealed that this lady has a chronic pre-existing degenerative cervical spondylosis. The discs at at least two levels have been shown to be dehydrated and degenerative. There has never been any evidence of disc protrusion. It is just conceivable that in addition to hiersoft tissue strain Mrs Morrison might have had subsequent neck pain due to an aggravation of her chronic pre-existing degenerative cervical condition, but I would have anticipated any exacerbation of pain to be entirely temporary with any pain directly attributable to the work related incident to have settled within a short period of time.”
49. Dr Reid indicated that she could find no explanation, in an organic sense, for the gross limitation of cervical movement or left shoulder movement which the applicant demonstrated. In her second report, Dr Reid advised that she had taken the opportunity to view the MRI scans in relation to the applicant and said that her analysis of these left her original report unchanged. In her third report, Dr Reid made reference to the video recording of the applicant and she said that her comments were strengthened by what she had seen because it demonstrated that she had normal neck and limb function. She also expressed the opinion that the level of movement that the applicant demonstrated would not be capable of leading to an impairment rating under the tables of the Guide
50. In cross-examination, Dr Reid confirmed that the MRI testing procedure was more appropriate for the cervical spine than other forms of testing and she said that, while there was a demonstrated disc bulge, she believed that this was age-related.
51. Dr Reid said that any headaches that the applicant suffered from would be incidental to any underlying problem because 80% of the patients that she sees have such a problem and she believed that they were not particularly relevant to the incident that the applicant had at work.
Dr Michael Redmond, Neurosurgeon
52. Dr Redmond saw the applicant on 15 September 1998 and prepared a report, dated 16 September 1998 (T201). There, Dr Redmond referred to his analysis of the MRI scan and he said that the applicant was suffering from chronic degenerative disc disease of the cervical spine and a left C4/5 disc protrusion. He also described the conditions as having resolved spontaneously and completely at that stage. He went on to state that the effects of the original injury had ceased.
53. In cross-examination, Dr Redmond said that he had obtained information about the presentation of symptoms from the applicant who said that she had virtually cured her problem. He said that, in the event that there was a subsequent return of symptoms, this could mean that the condition had not been cured but he also said that another cause of this might be underlying degenerative disease which was responsible for persisting symptoms.
Dr Steven Goode, Specialist in Occupational Medicine
54. Dr Goode has seen the applicant on several occasions and provided various reports, the first of which was dated 10 April 1996 (Exhibit 4). There, he detailed the applicant's account of the incident in which she was injured including her reference to the weight of the mail bag being 16 to 25 kg. He recorded that she jarred the left side of her neck and felt something “give”.. She was able to complete her mail round but noticed some niggling pain in her neck later that day. On the next day, Saturday, she felt significant pain which worsened on the following day, Sunday, which caused her to contact an emergency doctor who treated her with Valium. Then, subsequently, she developed left arm pain.
55. In his second report, dated 19 April 1996 (Exhibit 4), Dr Goode described the applicant as feeling significantly improved with less cervical pain and free movement of the spine. Left shoulder discomfort was described and the applicant was recorded as stating that she was having no trouble driving a car at that time though there were still some limitations on household duties such as gardening and hanging out clothes. Dr Goode noted that the applicant had started back at work on 17 April 1996 on restricted duties. He described a good objective and subject improvement since his previous review.
56. In a report dated 3 May 1996 (Exhibit 4), further improvement is noted with no headaches and intermittent paraesthesiae and the applicant is described as stating that her cervical pain was settling. In a report, dated 23 April 1997 (Exhibit 4), Dr Goode noted a recurrence of left sided cervical pain, radiating to the left hand including the left third finger. Upper thoracic pain is also described as well as left trapezius pain and the applicant is attributed with the comment that these occurred on 17 April 1997 when she fell at work. Left-sided cervical pain is described as having worsened over the previous weekend and a marked reduction in the range of movement of the cervical spine was noted. On 4 March 1998 (Exhibit 4), symptoms were described as being about the same but it was noted that she felt the symptoms if she was ironing for long periods or hanging large loads of washing. Otherwise, she was able to carry out the activities of daily living. In that report, Dr Goode expressed the view that the applicant's ongoing symptoms at that stage were probably due to underlying degeneration. He also said that paraesthesiae in the palm of of the hand can be related to the C5/6 joint, as can the sensation in the thumb and index finger, but not the little finger.
57. In a report, dated 7 June 1996 (T29), Dr Goode recorded a statement by the applicant that she was feeling much better and had virtually no cervical pain with no upper limb symptoms. In his evidence, he confirmed the accuracy of those comments by consulting his clinical notes.
58. In a report, dated 23 August 1996 (T34), Dr Goode noted a recurrence of left sided cervical pain and stiffness, some paraesthesiae to the left middle finger, pain over the left shoulder and her left elbow. Dr Goode said that the elbow condition was not related to her neck problem. On 29 August 1996 (T35), Dr Goode recorded that the applicant told him that her upper left arm felt globally weak and that she was still getting paraesthesiae in the left middle finger on a daily basis. He also described her as saying that her upper left limb symptoms were slowly settling. He was able to observe the results of a CT scan and he noted that this revealed a central and left lateral disc prolapse at C4/5 with a slight bulge at the C5/6 disc space. Dr Goode expressed the opinion that the disc prolapse was probably five to six months old and should ultimately resorb and he expressed concern at the persisting global weakness in the left upper limb.
59. On 21 November 1996 (T47), Dr Goode reported that the applicant was still improving, getting only very occasional milld paraesthesiae, which could last for minutes on a daily basis, and with some cervical stiffness but not much pain. He described the cervical disc prolapse as settling and the prolapsed disc as probably resorbed. On 20 December 1996 (T50), Dr Goode reported that there was a mild reduction in the range of movement in the cervical spine but that there was good power in the left upper limb. He also described thoracic pain which he attributed to postural causes rather than the cervical disc prolapse. He noted that the applicant had complained of recent left shoulder pain but said that this was unrelated to the cervical problem.
60. On 9 May 1997 (T68), Dr Goode reported continuing improvement in the cervical disc prolapse and, on 29 May 1997 (T71), he referred to continued conservative improvement and, in his evidence, said that this appeared to be the third occasion when the condition had settled down. On 25 September 1997 (T81), Dr Goode described the applicant as being virtually back to normal and, in evidence, he said that the applicant had told him this and that it was recorded in his clinical notes.
61. On 17 October 1997 (T91), Dr Goode noted a deterioration of the applicant’s symptoms with an acute episode of muscle spasm in the paracervical spine and he noted a reduced range of movement in the cervical spine in all directions. In a report, dated 20 November 1997 (T113), Dr Goode referred to the results of an MRI scan and noted minor posterior protrusion of the C3/4 and C5/6 intervertebral discs and he said that there was also a C4/5 disc protrusion which was probably related to the initial injury in 1996. He said that, at best, there had only been mild resorption of the disc protrusion and that there were also continuing nerve root symptoms. On 5 December 1997 (T115), Dr Goode was unable to make a favorable prognosis, stating that there were some minor symptoms suggestive of nerve root impingement but no clinical signs of this.
62. On 4 February 1998 (T119), Dr Goode described the cervical disc prolapse as being slow to settle with the usual case taking about 18 months and with the applicant's condition taking longer than that. On 1 April 1998 (T129), Dr Goode described minimal cervical degeneration but also left hand paraesthesiae which he thought was probably more schlerotomal than radicular in origin. In his evidence, he said that, at that stage, he was struggling to find a diagnosis with the applicant's hand because there was no nerve root impingement and the description he gave meant that it was mechanical and therefore referred.
63. On 8 May 1998 (T144), Dr Goode reported that the applicant had described a “clunk” in her left shoulder and some swelling in her left arm. This was again referred to in his report, dated 15 May 1998 (T145), in which he also said that the paraesthesiae in the left hand had completely resolved. The applicant is also referred to as describing her cervical symptoms as being worse because of the recent rain. A further recurrence of paraesthesiae was noted by Dr Goode in his report of 29 May 1998 (T152).
64. On 18 June 1998 (T162), Dr Goode described the applicant as reporting significant symptoms but without there being any objectively identified pathology. In his evidence, he said that this meant that there were no clinical findings except for the MRI disc bulges. On 31 July 1998 (T179), Dr Goode again referred to continuing cervical and left shoulder symptoms as reported by the applicant and also that these were worse in the cold and rainy weather. He described a mild reduction in the range of movement in the left shoulder and expressed the opinion that, given the chronicity of the symptoms, the condition was simply due to degeneration in the cervical spine and Dr Goode confirmed this in his evidence.
65. The next report, dated 7 July 1999 (Exhibit 4), by Dr Goode described a further incident in which the applicant was injured due to the use of a trolley at work which she was required to operate because the delivery vehicle was not available. She had a period of time off work because of this but then was able to return to normal duties including the driving of her vehicle. Dr Goode described ongoing cervical and left shoulder symptoms which were worse in the cold and rainy weather. However, he again expressed the opinion that the symptoms were probably due to underlying degeneration. In that report, Dr Goode indicated that the applicant also stated that she had mild persisting symptoms since he had seen her almost a year earlier. In his evidence, he said that the symptoms should have been ameliorated by then and he confirmed his opinion that the symptoms were being perpetuated by underlying degeneration.
66. Dr Goode did not see the applicant again until December 2000 and he prepared a report, dated 20 December 2000 (T284), where he described the applicant as saying that she continued to experience neck and upper limb pain, perceived temperature changes, swelling and paraesthesiae to the fingers of the left hand and an increase in those symptoms in September 2000. He referred to difficulty the applicant experienced in performing household tasks and with driving her car. Dr Goode gave the opinion that she had cervical degeneration with disc bulges at two levels and he expressed surprise that symptoms were so easily provoked in the applicant. In his oral evidence, he said that, even with severe degeneration of the spine, such symptoms would not be easily provoked..
67. On 22 February 2001 (Exhibit 4), Dr Goode described a recent recurrence of the applicant's symptoms which were attributed by her to effects on her of her posture whilst taking a computer course that she had commenced some two weeks earlier. She said that she was taking Panadein Forte. On 28 June 2001 (Exhibit 4), Panadein Forte is noted to be taken once a week for pain control with Panamax and aspirin being used as necessary. Continuing cervical pain is noted with left upper arm symptoms and, in his evidence, Dr Goode said that he was not able to understand why the applicant's symptoms were as acute and pervasive as she reported.
68. Dr Goode said that he had seen the video recording of the applicant and expressed the opinion that it revealed no major impairment or disability in the applicant in the carrying out of daily activities or in the driving of the vehicle.
69. In cross-examination, Dr Goode agreed that not all of the symptoms that the applicant demonstrated could be described as related to a degenerative condition. However, he said that approximately 75% of the symptoms were due to degenerative change with perhaps 25% being related to the initial injury to her spine.
Other Medical Evidence
70. The applicant was seen by Dr Gregory Nutting, orthopaedic surgeon, who prepared a report, dated 29 May 1998 (T153). Having noted the history of neck and shoulder problems for more than two years, he arranged to have an MRI carried out and, in a further report dated 15 June 1998 (T159), he noted that the investigation revealed results which were essentially normal. He stated that the weakness that was described by the applicant could not be explained by any significant shoulder pathology.
71. Dr Robert Anderson provided a report in relation to MRI scans which were conducted on the applicant on 16 October 2000 (T269/270). There, in relation to the cervical spine, he described disc herniations at the C3/4 and C4/5 levels and, in relation to the left shoulder, described no significant abnormality. A report was then prepared by Dr Peter Silburn, consultant neurologist, on 18 October 2000 (T272), who set out a history of the applicant's complaints and said that he conducted median and ulnar studies proximally and distally on the left upper limb which were normal. Dr Silburn referred to possible irritation of the brachial plexus or the nerve roots but he said that this had significantly settled and would not result in permanent neurological damage which would impact on the hand’s function. He also noted that the MRI scans revealed a central disc bulging as noted above but concluded that there was no evidence of any irritation of the C5 nerve root. On 5 Apr 2001, an MRI was conducted on the left brachial plexus and, in a further report by Dr Anderson (T299), he noted that there was no significant structural abnormality demonstrated.
72. Dr David White, orthopaedic surgeon, prepared a report on 16 August 1999 (T223). There, he described the incident relating to the mailbag and said that the applicant had experienced sudden pain radiating to the top of the left shoulder and a clicking sensation which she described as “like dominoes” in her neck. Dr White continued:
“Her arm subsequently became sore and her neck worsened later in the same day. She nevertheless finished her shift.
The following morning the neck was stiff and worsened over the ensuing weekend. She also had pins and needles down the left arm.”
73. Dr White said that the condition that the applicant suffered from appeared to be a significant disc prolapse at C4/5 with minor protrusions at the immediately more proximal and distal intervertebral disc levels. Without making reference to the tables on which he was relying, Dr White referred to a 20% impairment of the cervical spine and 10% impairment in relation to the left limb. However, he also made reference to his observations of the applicant and described a level of forward flexion such that the applicant could place her chin within 6 cm of the chest wall and with all other movements reduced by about one-third. For the shoulder, he described a slight limitation on abduction and internal rotation.
74. In a report, dated 24 June 1998 (T166), by Chrisdell McLaren, rehabilitation counsellor, the applicant is described as having twinges in her left shoulder and as having experienced a twinge around her jaw bone and in her face as well as swelling in her arm and a change of colour in her arm to pink. In a further report, dated 21 August 1998 (T186), Ms McLaren wrote that the applicant had described herself as having had four chiropractic treatments and as feeling the best that she had for years, without headaches, with no pain down her arm or side and with better movement of the neck.
SUBMISSIONS
Mr Rangiah, for the Applicant
75. Mr Rangiah submitted that the applicant has an ongoing injury which has been materially contributed to by her employment, in particular the accident of 22 March 1996, and that she has suffered permanent impairment from the compensable injury as a result.
76. In relation to the decision to cease liability, Mr Rangiah submitted that the medical evidence was broadly divisible into two categories: the first was that of Drs Coroneos and Reid which suggested that there was nothing wrong with the applicant and that there is no basis for her symptoms; the second was that of Drs Tomlinson, Weidmann, Boys, White, Goode and Hales that her symptoms are explicable by an injury to her disc at the C4/5 level.
77. Mr Rangiah conceded that much depended upon the Tribunal's view of the credibility of the applicant but submitted that her evidence should be accepted that she has had symptoms of at least neck pain and restricted movement since the accident and that, even if the applicant was thought to be, consciously or unconsciously, overstating her symptoms, the issue was still whether she was completely fabricating her symptoms.
78. Mr Rangiah submitted that the Tribunal should not accept that the applicant is fabricating her symptoms. One reason for this was that she had continually endeavoured to get back to work; another was that she did reveal, from time to time, to medical practitioners that the medical condition had improved; another is that there is no compensation history to suggest the applicant was prone to making compensation claims. He also referred to the frequency of visits that the applicant had with various practitioners and submitted that, to attend so many appointments and to keep up the pretence that she was suffering an injury when she was not, would be extraordinary.
79. Mr Rangiah submitted that the varied accounts that the applicant gave to doctors were readily explainable on the basis of a long period of time over which she has had treatment and because her symptoms fluctuated from time to time. He referred to the evidence of Drs Tomlinson, Hales, Boys and Coroneos as supporting his contention that the symptoms she experienced could be expected to fluctuate. Moreover, he submitted that the applicant had consistently complained of neck pain and restriction of movement of her neck and had also reported headaches and paraesthesiae from an early time. He contended that Drs Tomlinson and Boys supported his submission that paraesthesiae in the fingers was consistent with her injury. Mr Rangiah referred to the applicant's complaint of muscle spasms and submitted that the evidence of Dr Boys confirmed that this was consistent with pathology to her C4/5 disc and he also submitted that muscle spasms have been seen on x-ray.
80. In relation to the video recording, Mr Rangiah submitted that it did not show the applicant doing anything that she claimed she could not do. He contended that it only showed her getting into her car and driving, walking and shopping. It did not show her lifting anything heavy with her left hand and he noted that she carried her handbag on her right arm. He conceded that the video showed the applicant reaching overhead with her left arm on a couple of occasions and also squatting, but submitted that she had not claimed that she could not do those things. Also, Mr Rangiah said that the applicant had not claimed that she cannot drive and he submitted that the video does not show her turning her head to look behind her while reversing and that, rather, it showed her using the mirrors to reverse. He submitted that, contrary to a suggestion put to the applicant in cross-examination, that she was looking over her shoulder at one stage outside her house, the video merely shows her turning to the right at an angle which is not clear because of the two dimensional nature of the videotape. Mr Rangiah also submitted that, even if the applicant exhibited a greater range of neck movement than shown in some medical examinations, this may be due to the fluctuating nature of her symptoms.
81. Mr Rangiah submitted that the Tribunal should accept the evidence of Drs Tomlinson, Weidmann, Boys, White and Hales to the effect that the applicant is suffering from a C4/5 disc injury and that this provides and explanation for her main symptoms, including neck pain, restriction of movement, weakness of her left upper limb, paraesthesia in her fingers and headaches. He referred to the evidence of Dr Tomlinson in relation to how "non-dermatomal" pain can occur and how this can explain the paraesthesia in the fingers of her left hand.
82. Mr Rangiah submitted that the evidence of Drs Coroneos and Reid should be rejected on the basis that it lacked objectivity. He also submitted that the Tribunal should be mindful of the involvement of Dr Coroneos with the Medical Assessment Tribunal.
83. In relation to the evidence of Dr Redmond, Mr Rangiah submitted that, after his examination of the applicant on 15 September 1998, her symptoms had worsened although he conceded that, prior to seeing Dr Redmond, there had been evidence of improvement. Nevertheless, he submitted that Dr Redmond's report should be considered in light of the information he had at the time of his examination.
84. Mr Rangiah submitted that the applicant has not worked since compensation was ceased on 15 July 2002 and he referred to the evidence that she was not capable of ever returning to work as a postal delivery officer. In that situation, he contended that she had lost earnings and was entitled to compensation pursuant to section 19 of the Act. He submitted that the applicant had incurred medical expenses since her compensation was ceased and was entitled to compensation for such expenses pursuant to section 16 of the Act.
85. In relation to permanent impairment pursuant to section 24 of the Act, Mr Rangiah conceded that the applicant was required to obtain a threshold of 10% whole person impairment assessed under the Comcare Guide. He submitted that this requirement was satisfied. He referred to the evidence of Dr Tomlinson who assessed her as having a 10% impairment under Table 13.1, 10% under Table 9.4 and 10% under Table 9.6 and submitted that, when the Combined Values Tables in Table 14.1 was used, this amounted to a total impairment of 27%.
86. He also referred to the evidence of Dr Weidmann and his assessment that the applicant has a 10% impairment under Table 13.1, with three-quarters of this due to a pre-existing degenerative condition and with only one-quarter due to the effects of the compensable condition. He referred to the evidence of Dr Weidmann that she would have a minor restriction of neck movements, or 5% under Table 13.6 solely from the effects of the work accident. He also referred to Dr Weidmann's assessment of 10% impairment under Table 9.4 and 10% impairment under Table 13.1 and submitted that, in accordance with the Combined Values Chart, this results in a total of 23%.
87. Mr Rangiah submitted that the assessment by Dr Boys of 5% under Table 9.6 should not be relied upon and also noted that Dr Boys did not take into account the applicant's headaches under Table 13.1.
Ms K Downes, for the Respondent
88. Ms Downes provided the Tribunal with a general chronology of events in this matter since 22 March 1996, a chronology of symptoms described by the applicant at various times and a chronology of the descriptions that the applicant has given of the accident at different times. Additionally, Ms Downes provided the Tribunal with observations of the video recording.
89. Ms Downes submitted that the applicant's evidence was completely unreliable and that this was demonstrated by the inconsistencies in the accounts that she has given of what occurred to her on 22 March 1996 and of the nature of the symptoms that she experienced thereafter. She referred to occasions when the applicant said that the symptoms had never abated and other occasions when she has indicated very significant improvement in the symptoms. She also submitted that the applicant has not provided a full history of other incidents which have occurred to her and which have caused physical problems for her and that this meant that not all practitioners were fully conversant with her history.. Additionally, she referred to the evidence of Dr Boys to the effect that she was resistant to examination and submitted that this also made an evaluation of the applicant difficult.
90. Ms Downes referred to the video recording and submitted that this demonstrated that the applicant was able to undertake many of the tasks which he had claimed she could not do. In particular, she referred to driving a vehicle and the raising of her arm above her shoulder while undertaking activities in the supermarket and other shops. She submitted that it was not possible to rely upon the evidence of the applicant in relation to the presentation of symptoms and that, consistent with the medical evidence that was before the Tribunal and which demonstrated a lack of pathology, the decision to cease liability should be affirmed.
91. Ms Downes also submitted that there was no evidence that the threshold of 10% as required before a decision in respect to permanent impairment can be made had been reached in this case and that, therefore, the decision in respect of that matter should also be affirmed.
CONSIDERATION
92. This matter involves two reviewable decisions, both dated 5 November 2002. The first of those brought compensation payments to an end by ceasing liability under sections 14 of the Act with effect from 16 July 2002; the second decision is in relation to section 24 of the Act and it denied liability for compensation for permanent impairment.
93. The respondent’s determination that it was liable under section 14 of the Act to pay compensation for aggravation of a degenerative neck condition involved findings that an appropriate notice of injury had been given; that a claim for compensation had been made as required; that the applicant was an "employee" at the relevant time; that she suffered an injury; and that the injury resulted in incapacity for work or impairment: see Lees v Comcare (1999) 56 ALD 84 at 92. Having accepted liability under section 14 of the Act, the respondent made a series of further determinations whereby it reimbursed the applicant for various medical expenses in accordance with section 16 of the Act and paid compensation to her in accordance with section 19 of the Act.
94. In relation to the first reviewable decision, there is a distinction between a decision which revokes a determination under section 14 of the Act and one which merely brings liability to an end because the condition no longer attracts payments for medical expenses or for incapacity. In Re Carson and Telstra Corporation (2001) 33 AAR 351, the Tribunal observed that a revocation decision under section 14 of the Act would be rare as it would involve revisiting the five matters listed above in Lees v Comcare: see also Australian Postal Corporation v Oudyn [2003] FCA 318 at para [32]. The Tribunal pointed out that a cessation of liability decision may frequently arise in reconsidering matters under sections 16 or 19 of the Act. In this matter, the thrust of much of the cross-examination of the applicant by Ms Downes was in respect of the incidents surrounding the applicant's injury in 1996. In one sense, this may suggest that the initial decision to accept liability is under consideration. However, I am satisfied that that is not the case, that the first of the decisions under review merely ceased liability with effect from 16 July 2002 and did not purport to revoke the original decision and that the cross-examination of the applicant in relation to the events in March 1996 was undertaken for the purposes of demonstrating that inconsistent accounts had been given by her and that she was an unreliable witness.
95. In her initial claim, the applicant described a “pulling sensation” to the left side of her shoulder and neck. Dr Goode, in his report of 10 April 1996, said that the applicant described a feeling of jarring to the left side of her neck when she pulled the bag from the car. In his report of 11 June 1999, Dr Hales described the applicant as experiencing pain in the side of the neck when she lifted the mail bag and that the pain was referred down the left arm and hand. Dr White, in his report dated 16 August 1999, described a clicking sensation “like dominoes” in the neck and pain radiating to the top of the left shoulder. Dr Boys, in his report dated 4 April 2000, said that the applicant described pain over the outer aspect of the left upper arm and that she was conscious of a clicking sensation of the neck at that time, and that she had persistent neck and upper limb pain but managed to complete her day's work. Dr Weidmann, in his report of 3 June 2000, described the applicant as developing pain in her left shoulder and neck when she took the full weight of the bag. Dr Silburn, on 18 October 2000, described the applicant as immediately developing severe pain in the neck which radiated to the left shoulder and which settled after 20 minutes. In a report dated 11 October 2001, clinical psychologist, Francis Allyn, took a history of the applicant's injury and wrote that she felt a tearing in her shoulder and arm and that her neck “popped” but that the applicant did not believe that she had hurt herself until a few days later when she had muscle spasms and pins and needles. Dr Tomlinson, in his report of 15 December 2001, described the applicant, when the incident occurred, as feeling pain in the left side of the neck, a burning feeling in her left hand and clicking in the neck and middle back. He also wrote that her neck and arm continued to ache although she continued with her deliveries. The report of Dr Coroneos, dated 7 May 2002, referred to the applicant as experiencing a pulling episode to the left side of the neck, as feeling a “click, click, pop” but no immediate pain in the neck, arm or extremities. In her report of 11 June 2002, Dr Reid described a wrenching of the left upper limb and a clicking like dominoes in the neck down to the middle of her “shoulder blades where it popped”. Dr Reid also referred to the applicant as having a “very sore” left upper limb when she returned to the depot.
96. Dr Goode, on 10 April 1996, described the mail bag as weighing 16 to 25 kg. Dr Hales, in his report of 29 August 2000, described a 50 kg bag and that description was also given in his report of 15 May 2003 and in the letter written by her solicitors on 14 October 2002. In her evidence, the applicant maintained that the weight of the bag was 40 kg and she also made reference to additional bundles of mail which were sitting on top of the bag and said that one of the reasons for her wanting to catch the bag was so that the bundles would not fall to the ground. Earlier, she said that she did not want the bag to make contact with the ground. Also, in her evidence, she said that she had used her left foot in order to help remove the bag from the vehicle. As I read the many medical and other reports relating to the incident with the mail bag, there was no previous reference to additional bundles of mail or to the use by the applicant of her foot to assist in the removal of the bag from the vehicle.
97. I accept as correct the submission of Ms Downes that the applicant has given varying accounts of the incident that occurred on 22 March 1996, in relation to the weight of the bag, the description of the material that she was removing from the vehicle and the means that she adopted to remove it. That evidence was also varied in the way that she described the immediate effects upon her. She variously described pain in the side of the neck, radiating to the left arm and hand; pain in the neck radiating to the top of the left shoulder; pain in the left upper arm; a burning feeling in the left hand; and a very sore left upper limb. In her evidence, the applicant said that the pain began on Friday night, the evening of the incident, and not when the incident happened. She also said that, when the pain first occurred, it was in the shoulder and arm and not the neck. She said that the neck became sore on Saturday morning.
98. The applicant has also given inconsistent accounts of the effects of the condition since 1996. In evidence, she said that the pain has never really gone away but that is not consistent with various reports which indicate that there were significant improvements in the condition from time to time. On 19 April 1996, Dr Goode reported that the applicant was feeling significantly improved although there was still a reference to some cervical pain. On 3 May 1996, he described the applicant as believing that her cervical spine was settling and that improvement is also noted in his reports of 10 May 1996 and 23 May 1996. On 7 June 1996, Dr Goode reported that she had virtually no cervical pain at that time and no upper limb symptoms. On 9 May 1997 and 29 May 1997, Dr Goode referred to continued conservative improvement and, in his evidence, said that this appeared to be the third occasion when the condition had settled down. On 25 September 1997, he described the applicant as being virtually back to normal and he confirmed this, in evidence, by consultng his clinical notes.
99. In her evidence, the applicant said that many of the references that were contained in the medical reports did not accurately reflect what she had told particular examining doctors. However, generally, the accuracy of the entries in the respective reports was confirmed and I am satisfied that they are to be accepted on that basis.
100. The MRI test results conducted in 2000 demonstrates that the applicant has a degenerative disc condition at the C4/5 level of the spine. Dr Tomlinson's evidence was that the full array of symptoms which the applicant has described in her left hand, arm and shoulder are consistent with that condition and he referred to C5 nerve root irritation as a result of the condition, referring to the applicant's evidence of her symptoms and to the imaging test results as providing an objective basis for the presence of this. Dr Tomlinson also denied the presence of degenerative disc disease in the applicant. I am satisfied that Dr Tomlinson's opinion is not consistent with the other medical evidence before the Tribunal. Dr Weidmann referred to degenerative disc bulging but without apparent nerve root or spinal cord compression and he also expressed the opinion that the applicant's disability was greater than what one might normally expected with her pathology. Dr Reid referred to the MRI testing procedure and noted the disc bulge but said that this did not change her opinion that there was no organic explanation for the symptoms described by the applicant and she also expressed the belief that the applicant's spinal condition was age-related. Dr Redmond was of the opinion that the applicant had a chronic degenerative disc disease. The report of Dr Silburn was that there was no evidence of any irritation of the C5 nerve root in the applicant’s spine but he considered that there might be irritation of the brachial plexus or the nerve roots. However, Dr Anderson, referring to the MRI investigation of 5 April 2001, stated that there was no significant structural abnormality demonstrated in that area.
101. On the basis of that evidence, I am satisfied that the applicant does not suffer from nerve root irritation as a result of the C4/5 disc lesion. I am also satisfied that the applicant suffers from age-related or degenerative disc disease. Indeed, it was the aggravation of that condition which was accepted for liability purposes. Dr Goode has had the advantage of seeing the applicant on many occasions over several years. On 18 June 1998, Dr Goode described the applicant as reporting significant symptoms but without there being any objectively identified pathology and, in his evidence, said that this meant that there were no clinical findings except for the MRI disc bulges. He noted that the applicant complained that her symptoms were worse in the cold and rainy weather and expressed the opinion that, given the chronicity of the symptoms, the condition was simply due to degeneration in the cervical spine. Dr Weidmann referred to degenerative disc bulging; Dr Hales conceded that there were elements of degeneration in the applicant’s spine; Dr Boys, in his report of 4 April 2000, described the applicant as having multilevel disc degeneration in the neck; Dr Reid described her as having chronic degenerative cervical spondylosis; and Dr Redmond referred to chronic degenerative disc disease of the cervical spine. On the basis that the initial incident occurred in 1996 and Dr Goode's evidence that the condition had settled down on three occasions by late 1997 or 1998, I am satisfied that the effects of the initial aggravation of the degenerative condition as a result of 1996 incident had settled and any subsequent symptomatology that the applicant suffered is related to the generalised degenerative changes in her spine.
102. The applicant has continued to make complaint of symptoms in her neck, shoulder and left arm. However, on the basis of inconsistent accounts that she has given of events and the presentation of symptoms, I am satisfied that her evidence cannot be relied upon in that regard. In particular, I make that finding on the basis of the medical evidence about the inconsistency of the presentation of symptoms in the applicant and also the actions of the applicant in the video recording. Dr Weidmann expressed the opinion that the applicant's presentation of symptoms was greater than one might normally expect with her pathology and he considered that there was elaboration of her symptoms. Dr Boys, in his report dated 4 April 2000, described the applicant's symptoms and he said his physical findings indicated a number of inappropriate responses which were suggestive of magnified illness behavior. Dr Boys also referred to the difficulty in assessing the applicant because of her resistance to examination and said that she reacted in a controlled fashion during the examination. Dr Reid said that she could find no explanation for the gross limitations of movement that the applicant demonstrated. Dr Goode said that he was not able to understand why the applicant's symptoms were so acute and pervasive and was surprised that symptoms were so easily provoked in the applicant. Whilst Dr Tomlinson would seem to have accepted the applicant's account in relation to her symptoms, on the basis of the opinions expressed by Dr Weidmann, Dr Boys, Dr Reid and Dr Goode, I am satisfied that she has exaggerated her explanation of them in a significant manner. I have noted the comments by Dr Coroneos to the effect that he also saw evidence of an exaggerated, nonorganic presentation of symptoms in his report of 7 May 2002.
103. The video recording of the applicant comprised segments which were filmed on five separate days: 19 and 21 March 2002 and 15, 17 and 23 April 2002. I am unable to accept the submission that the recording was done when the applicant was simply having a good day. The recording was commented upon by several of the medical practitioners in this matter. Dr Tomlinson and Dr Weidmann had expressed the opinion that the applicant suffered from a range of movement loss in her neck and left arm. After his viewing of the recording, Dr Tomlinson said that it did not alter his opinion. However, Dr Weidmann conceded that the recording revealed that any impairment that the applicant suffered was not very disabling. Dr Boys, Dr Reid and Dr Goode were of the opinion that the recording did not indicate any impairment or disability in the applicant in carrying out the activities depicted therein. I note that this was also the opinion of Dr Coroneos. I am also satisfied that the video recording gave no indication that the applicant suffered from any limitations in respect of the use of her left arm or in the movements of her neck. In particular, she demonstrated the capacity to drive a vehicle with no apparent difficulty. The applicant had given evidence that she had problems with driving particularly with reversing and changing gears. The video recording demonstrates not only the capacity of the applicant to drive but also her willingness to do so because, on each occasion, she was accompanied by her daughter who, in the applicant's evidence, was described as also having a driver's licence.
104. On the evidence in this case, I am satisfied that, for the purposes of sections 14, 16 and 19 of the Act, the effects of the condition for which liability to the applicant was accepted by the respondent, namely aggravation of a degenerative neck condition at the C4/5 level, had ceased by 16 July 2002.
105. The definitions of impairment and permanent in sub-section 4(1) of the Act are set out above and any impairment in the applicant will be permanent if it is likely to continue indefinitely. Regard must be had to the factors in sub-section 24(2) of the Act when determining whether an impairment is permanent. On the basis of my findings that the applicant no longer experiences a work-related aggravation of a degenerative neck condition at the C4/5 level, I am also satisfied that, for the purposes of section 24 of the Act, she does not suffer from any permanent impairment in relation to the condition.
106. Even if it were the case that the applicant suffered a permanent impairment, I would be satisfied that any such impairment would be of such a degree that it would be less than the 10% threshold as provided for in sub-section 24(7) of the Act and that, therefore, no amount of compensation would be payable to her under the Act. The Tables and their relevant components that have been raised by evidence in this case are:
TABLE 9.4
% WPI
limb function - upper limb
10
Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
TABLE 9.6
% WPI
cervical spine
0 X-ray changes only 5 Minor restrictions of movement 10 Loss of half normal range of movement 15 Loss of more than half normal range of movement 20 Complete loss of movement TABLE 13.1
% WPI
Intermittent conditions: for use in the assessment of disorders of the haemopoetic system such as … tension headache etc
0
Attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment
10
Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR Attacks occur less frequently AND cause interference with all activities of daily living other than self care
107. Dr. Tomlinson suggested ratings of 20% and 10% for cervical spondylosis and the applicant’s left arm, respectively, in each case under Table 9.4, and 10% for headaches under Table 13.1 of the Guide. I note that the Table appropriate to cervical spondylosis is Table 9.6 and that the description at the 20% level is complete loss of movement. I have not accepted his evidence in respect of the extent to which the applicant suffers from the effects of the original condition and, therefore, could not rely upon the allocation of ratings that he has made.
108. Dr. Weidmann resiled from his initial position that the applicant’s cervical spondylosis rated 20% but he maintained that an impairment rating of 10% was applicable to her left arm. In his evidence, he referred to the prospect of some allocation in respect of headaches but gave no indication of what this might be under Table 13.1 of the Guide. Dr Weidmann also said that his understanding of the application of the Guide was that, as long as there was some problem, an allocation of 10% had to be made. I am satisfied that this is not the appropriate methodology involved in applying a Table in the Guide.. In the Principles of Assessment listed at the start of the Guide, under the heading of Impairment Tables, it is stated that a “percentage value can be assigned to an employee's impairment by reference to the relevant description in this Guide”. As I understand it, it is necessary to consider the description given in the appropriate column of any Table to determine whether it matches the presentation of a person’s symptoms and then to allocate the relevant impairment rating. Additionally, in the case of Table 9.6, there is an entry level impairment of 5% rather than 10%. However, one point that arose clearly from Dr Weidmann’s assessment of the applicant was that only 25% of the overall impairment that she suffered could be attributed to the condition that was accepted by the respondent.
109. Because of their consistency in describing the applicant’s activities, I prefer the evidence of Dr Boys, Dr Reid, Dr Redman and Dr Goode in relation to the level of impairment. Dr Boys was of the opinion that the ratings allocated by Dr Tomlinson and Dr Weidmann were excessive and he suggested a rating of 5% under Table 9.6 with only 50% of that being referable to the condition accepted by the respondent. The evidence of Dr Goode was also that only 25% of any impairment could be referable to that condition. As I understand the evidence of Dr Reid and Dr Redmond, the applicant's condition would rate no impairment under any of the relevant tables.
110. As noted above, on all the evidence, I am satisfied that the applicant does not suffer from permanent impairment as required by the terms of section 24 of the Act and that an amount of compensation is not payable to her under that provision.
DECISION
111. The Tribunal affirms the decisions under review.
I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Oliver
Associate
Dates of Hearing 24, 25, 26 and 27 November 2003
Date of Decision 16 January 2004Counsel for the Applicant Mr D Rangiah
Solicitor for the Applicant Maurice Blackman Cashman
Counsel for the Respondent Mr K Downes
Solicitor for the Respondent Clarke and Kann
0
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