Mylne and Comcare

[2008] AATA 304

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

No: Q 200600175

General Administrative Division

Re: DAVID MYLNE
Applicant

And: COMCARE
Respondent

CORRIGENDUM [2008] AATA 304

TRIBUNAL:             Dr P McDermott RFD Senior Member
  Dr M Denovan, Member

DATE:                      17 April 2008

PLACE:                   Brisbane

I DIRECT THAT paragraph 20 of the Tribunal’s Reasons for Decision should read:

He did not get any relief from acupuncture and so Mr Mylne consulted a chiropractor.  Still experiencing no relief from his symptoms for some weeks, Mr Mylne consulted osteopath Dr Kelly in December 2004, on the recommendation of one of his co-workers.  Dr Kelly diagnosed a prolapsed disc and treated him after the diagnosis was confirmed by radiology.  Dr Kelly was not able to order a CT scan and so Mr Mylne attended Dr Robyn Coulson at the Coorparoo Medical Centre.

[Sgd]

SENIOR MEMBER

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No Q 2006/175

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID MYLNE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr P McDermott RFD Senior Member
Dr M Denovan, Member

Date15 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

COMPENSATION – Injury – whether left C.5/6 prolapse with C6 nerve root compression was contributed to a significant degree by employment – employment using a large suction hose to evacuate and clean a sludge pit – whether entitled to compensation – injury not contributed to work performed – not entitled to compensation – decision under review affirmed.

Safety Rehabilitation and Compensation Act 1988 s14

REASONS FOR DECISION

15 April 2008 Dr P McDermott RFD Senior Member
Dr M Denovan, Member    

INTRODUCTION

1.      Mr Mylne is a technical officer with Airservices Australia. He has a left sided C5/6 disc protrusion and C6 nerve root compression in the cervical spine in his neck, which he claims is the result of an injury he sustained in a workplace incident on 18 August 2004.

BACKGROUND

2.      On 18 August 2004 Mr Mylne was required to evacuate and clean a sludge pit at the drill ground at the Brisbane Airport, using a large suction hose.

3.      An incident report was completed by Mr Mylne on 6 December 2004[1]. In that report Mr Mylne claims to have suffered painful left shoulder, arm and neck on 18 August 2004 after cleaning the sludge pit.

[1] Exhibit A, T9, Folio 24-26

4.      In December 2004 Mr Mylne was diagnosed with left disc protrusion at C5/6 with left C6 nerve root impingement, by osteopath Dr Kelly. This diagnosis was confirmed by a CT scan performed in the same month. That CT scan noted disc degeneration from C4 to C7.

5. Mr Mylne completed a claim for compensation on 20 December 2004 for “left paracentral disc protrusion at C5/6 with left nerve root impingement” [2].

[2] Exhibit A, T4, Folio 8-14.

6. On 16 March 2005 the Respondent issued a determination denying liability for “aggravation of degeneration of cervical intervertebral disc”. The delegate did not consider that Mr Mylne had suffered injury to his cervical spine in the manner alleged, and further, was not satisfied that the medical evidence supported a finding that his cervical spine condition resulted from the claimed incident [3].

[3] Exhibit A; T3 and T13, Folio 7 & Folio 33-36.

7. Mr Mylne requested a reconsideration of the determination in a letter dated 15 April 2005 [4].

[4] Exhibit A, T14, Folio 37

8.      Mr Mylne was assessed by neurosurgeon Dr M Redmond on 6 May 2005. Dr Redmond provided a diagnosis of left C5/6 disc prolapse with C6 nerve root compression. Dr Redmond opined that this condition was not related to Mr Mylne’s employment.

9.      On 23 December 2005 the decision under review was issued affirming the determination dated 16 March 2005[5].

[5] Exhibit A, T21, Folio 47-50

10.     Mr Mylne applied to this Tribunal for review on 14 March 2006[6].

[6] Exhibit A, T2, Folio 3-6

ISSUE

11.     We have to decide whether Mr Mylne’s left C5/6 prolapse with C6 nerve root compression was contributed to a significant degree by his employment.

RELEVANT LAW

12.     Section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) provides that Comcare is liable to pay compensation in relation to an injury suffered by an employee.

13.     Pursuant to section 5A of the Act “injury" means:

“(a) a disease suffered by an employee; or

(b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment. “

14.     Pursuant to section 5B of the Act “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.

(2)       In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)  the duration of the employment;
  (b)  the nature of, and particular tasks involved in, the employment;
                      (c)  any predisposition of the employee to the ailment or aggravation;
  (d)  any activities of the employee not related to the employment;
  (e)  any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

(3)  In this Act:

"significant degree" means a degree that is substantially more than material.

EVIDENCE OF MR MYLNE

15.     Mr Mylne has provided a statement dated 7 June 2006[7], and a supplementary statement dated 30 January 2007[8]. Mr Mylne also provided details about the work place incident and the history of his symptoms in correspondence to the Respondent [9]. Mr Mylne gave evidence in person at the hearing.

[7] Exhibit H

[8] Exhibit I

[9] Exhibit A; T17, Folio 40-43

16.     In summary, it is Mr Mylne's evidence that very soon after completing cleaning of the sludge pit on 18 August 2004, he felt sore down the left side of his body. His neck, left shoulder and left forearm were particularly tender. Mr Mylne stated that over the next few days he still had pain down the left hand side of his body and the pain seemed to increase as the days went on. He took anti-inflammatory drugs to treat the pain.

17.     At the hearing Mr Mylne said that the act of bending down to pick up the dog manure on Saturday 21 August 2004, resulted in him experiencing a worsening of his pain, and at that point he realised that using a shovel to clean dog manure was the same type of movement that he had been performing with the hose when cleaning out the sludge pit. He realised that was what must have caused his injury on 18 August 2004.

18.     Mr Mylne said that he did not report his injury to any of his supervisors, and he did not seek help from either a doctor or other practitioner initially because he thought that his symptoms would subside. He also did not want to overburden Comcare. When his condition did not improve Mr Mylne consulted an acupuncturist. That was on the 31 August 2004.

19.     Mr Mylne stated in his claim form that he first sought therapy for his claimed condition on 4 August 2004[10]. He explained at the hearing that this was because he could not recall the date that he consulted acupuncturist Debra Anderson and so he referred to his health insurance claim records. At the time he completed the claim form, he forgot that he had consulted Debra Anderson some two weeks prior to the work place incident.

[10] Exhibit A, T 4; Folio 9

20.     He did not get any relief from acupuncture and so Mr Mylne consulted a chiropractor. Still experiencing no relief from his symptoms for some weeks, Mr Mylne consulted osteopath Dr Kelly in December 2004, on the recommendation of one of his co-workers. Dr Kelly diagnosed a prolapsed disc and treated him after the diagnosis was confirmed by radiology. Dr Kelly was not able to order a CT scan and so Mr Kelly attended Dr Robyn Coulson at the Coorparoo Medical Centre.

21.     Mr Mylne said that he had problems communicating with Dr Redmond, the neurosurgeon Comcare sent him to. Mr Mylne believes Dr Redmond did not understand what he said. Mr Mylne said that as he left Dr Redmond’s surgery he felt that things had not gone well during the consultation.

22.     Mr Mylne’s evidence about the onset of his symptoms was supported by his wife, who gave evidence in person at the hearing and provided a written statement[11]. She recalled that her husband had pain after the workplace incident on 18 August 2008 and used anti-inflammatory medication to treat the injury. She also testified that her husband had pain prior to cleaning up the dog manure on the Saturday following the incident, and that his pain was exacerbated by the cleaning of the dog manure.

MEDICAL EVIDENCE

[11] Exhibit I

Notes from Coorparoo medical centre

23.     On 18 December 2004 Mr Mylne presented to general practitioner, Dr Robyn Coulson at the Coorparoo Medical Centre. The clinical notes from the medical centre indicate that Mr Mylne presented with “left shoulder and neck pain, muscular pain”. It was noted at that time that Mr Mylne had seen osteopath Mark Kelly, who suspected a bulged disc at C5/6, and that Mr Mylne was reporting pins and needles/shooting pains down his left arm. It was also noted that Mr Mylne reported holding a suction pipe in pump for more than an hour in late July, and that he does not normally do this, and that he has needed pain killers, used acupuncture and chiropractic treatment and was applying to Comcare for assistance.

CT Scan report

24.     A radiological report dated 21 December 2004, indicated that a CT scan of Mr Mylne’s spine demonstrated a left disc protrusion at C5/6 with left C6 nerve root impingement. Disc degeneration was seen from C4 to C7[12].

[12] T6

25.     That report[13] stated:

“History: Injury in July 2000 strained left side. Now has shooting pain down left shoulder and arm and paresthesia on radial side”.

[13] Exhibit A, T6, folio 21

Evidence of Dr Redmond

26.     Comcare asked neurosurgeon Dr Michael Redmond to review Mr Mylne. Dr Redmond saw Mr Mylne on 6 May 2005 and has provided reports dated 9 May 2005[14], and 24 October 2006[15]. Additionally, Dr Redmond’s clinical notes that he made on the day Mr Mylne consulted him are included in the evidence before the Tribunal[16]. Dr Redmond gave evidence by telephone at the hearing.

[14] T7

[15] Exhibit E

[16] Exhibit E  

27.     Dr Redmond provided a diagnosis of cervical spondylosis with a left C5-6 disc protrusion and C6 nerve root compression. Dr Redmond opined that there is no significant association between Mr Mylne’s work and his condition[17].

[17] T7

28.     Dr Redmond came to this conclusion on the basis of the history he recorded from Mr Mylne. Of particular significance to Dr Redmond was the fact that Mr Mylne told him that he had no noticeable problem at the time of the workplace incident. In his report dated 24 October 2006[18] Dr Redmond wrote:

“3 days later – Saturday picking up dog poo he noticed arm + shoulder was painful.  He did not relate it to work duties.  Did not know what caused it.”

[18] Exhibit E

29.     In his oral evidence, Dr Redmond told the Tribunal that his clinical notes taken at the time of the consultation recorded Mr Mylne’s words verbatim. 

30.     Dr Redmond told the Tribunal that a disc protrusion could be caused by any activity. He said that it often occurs during sleep, and can occur as the result of a sneeze or simple movement. Dr Redmond said that to develop a disc prolapse there was no need for major trauma, a disc protrusion could be the result of either light or heavy duty.

31.     In a report dated 24 October 2006, Dr Redmond said that he disagreed with the history of the injury stated and conclusions reached by Dr Campbell.

32.     According to Dr Redmond, the fact that Mr Mylne’s pain commenced some three days after the work place incident, ruled out the possibility of that incident being causally related to his prolapsed disc and nerve compression.

Evidence of Dr Campbell

33.     Mr Mylne obtained a referral for a second opinion and saw neurosurgeon Dr Scott Campbell on 6 June 2005.  Dr Campbell has provided reports dated 6 June 2005[19], 29 September 2005[20], 16 May 2006[21] and 11 December 2006[22]. Dr Campbell gave evidence by telephone at the hearing.

[19] Exhibit L

[20] Exhibit A, T8, Folio 23

[21] Exhibit L

[22] Exhibit C

34.     In his report dated 29 September 2005 neurosurgeon Dr S Campbell noted that MRI investigation confirmed that Mr Mylne has a left sided C5/6 disc protrusion.

35.     In his report dated 10 August 2006[23], Dr Campbell opined that Mr Mylne suffered a left C5/6 disc protrusion as a result of the work accident dated 18 August 2004.

[23] Exhibit B

36.     In a report dated 11 December 2006, Dr Campbell said that he agreed with Dr Redmond that if Mr Mylne’s symptoms did present whilst performing a task three days after the work place incident, then it was unlikely that his symptoms were work related. At the hearing Dr Campbell said that if Mr Mylne did not experience symptoms until three days after the work place incident, then he would estimate that the likelihood of that incident being causally related to Mr Mylne’s prolapse and nerve compression to be 15-20%.

37.     At the hearing Dr Campbell stated that the nature of the duties Mr Mylne described performing at work on 18 August 2004 could have caused the type of injury that was sustained.

Evidence of acupuncturist Debra Anderson

38.     The clinical notes of acupuncturist Ms Anderson are in evidence[24]. Additionally Ms Anderson provided two brief reports, dated 7 May 2007[25] and 19 May 2007[26], indicate that Mr Mylne was treated for a painful shoulder on the 4 August 2004 and 31 August 2004.

[24] Exhibit M

[25] Exhibit M

[26] Exhibit N

TRIBUNAL’S CONSIDERATION

39.     Neither Dr Campbell nor Dr Redmond dispute the fact that a disc prolapse could have occurred as a result of the activity Mr Mylne says he performed at work on 18 August 2004 when he used a hose to empty a pit.

40.     Both doctors also agree that in deciding whether Mr Mylne’ s C5/6 disc protrusion and nerve compression are related to the work duties he performed at work on the 18 August 2004, it is essential to determine when he first suffered symptoms. Essentially both doctors agree that if Mr Mylne sustained a prolapsed disc at C5/6 and nerve compression due to the work incident on 18 August 2004, it is more likely than not he would have experienced symptoms from that time. According to both doctors, onset of symptoms three days after the incident would indicate on balance, that Mr Mylne’s cervical disc prolapse and nerve compression are not likely related to the incident.

When did Mr Mylne first develop symptoms of left C5/6 prolapse disc with C6 nerve root compression?

41.     Cervical disc prolapse with nerve root compression causes pain in the neck, shoulder and arm, as well as pins and needles and loss of sensation in the arm. The question for us is when did Mr Mylne first experience these symptoms. We find that Mr Mylne first experienced such symptoms in 2004, prior to the incident on 18 August 2004. Our reasons are as follows.

42.     Mr Mylne stated many times that he had no history of neck pain prior to the work place incident. Mr Clarke for the respondent found some references to Mr Mylne having presented with neck pain, many years prior to the work place incident in 2004. There was no suggestion that Mr Mylne had a prolapsed disc and nerve compression prior to 2004 in any of this material, and neither Dr Campbell nor Dr Redman suggested that was the case. We accept that from time to time most people suffer from short term neck and or back pain significant enough to cause them to seek medical assistance, but not significant enough to be remembered years later.

43.     The CT report made reference to a history of strain in 2000. Mr Mylne denies having a strain in 2000, and claims that is a likely error on behalf of the radiologist. Even if the history of a strain in 2000 is accurate, there is no indication that Mr Mylne developed symptoms of C5/6 disc prolapse with C6 nerve compression at that time, and the expert medical evidence before us highlighted the need for symptoms to be closely associated with an incident for the two to be causally related.

44.     We accept that Mr Mylne may have had neck pain and or strain from time to time in his life, however we find that he did not develop a prolapsed C5/6 disc with C6 nerve compression until some time in 2004.

45.     There is an absence of contemporaneous evidence around the time of the work place incident on 18 August 2004 to support Mr Mylne’s claim that he experienced pain and symptoms from that date but not before. Mr Mylne identified a witness in the claim form who was unable to support Mr Mylne’s claim that he complained of pain on the day of the incident. Mr Mylne has explained that he nominated the witness as proof he performed the work. Mr Mylne agrees that he did not complain of pain to anyone at work at the time.

46.     The earliest indication Mr Mylne suffered neck and shoulder symptoms that might be associated with the workplace incident is in the notes of the Coorparoo Medical Clinic dated 18 December 2004, some three months after the alleged causal event. Mr Mylne attended the surgery at this time not for treatment but to obtain a request for a CT scan that was required by osteopath Dr Kelly.  The doctor’s notes are limited and brief and provide no information as to how much time elapsed after the incident before Mr Mylne developed symptoms. Further, those notes indicate that Mr Mylne has been suffering symptoms since July 2004.

47.     In his claim form Mr Mylne stated that he first sought therapy for his condition on 4 August 2004, when he consulted acupuncturist Debra Anderson.

48.     Mr Mylne now claims that he first consulted acupuncturist Debra Anderson on 31 August 2004 for symptoms related to the same symptoms that were later diagnosed as being the result of left C5/6 prolapsed disc with C6 nerve compression. There is no mention of a work place incident by Debra Anderson in either her clinical notes or her reports. Ms Anderson’s reports indicate that Mr Mylne had neck pain that was treated on 4 August 2004 and 31 August 2004. As the first of these dates is two weeks prior to the work place incident it suggests that Mr Mylne’s symptoms commenced prior.

49.     We considered whether the presentation on 4 August 2004 could have been for the treatment of a separate condition unrelated to the C5/6 prolapse and C6 nerve compression. We decided that on balance it was not. It was significant to us that firstly Mr Mylne has does not recall having neck pain other than that which he associates with the work place incident, and secondly, when Mr Mylne filled in the claim form in December 2004 having consulted his medical records and reminded that he consulted Ms Anderson twice in August 2004, did not recall seeing Ms Anderson for any other condition.

50.     All of this suggests to us that Mr Mylne likely experienced symptoms of prolapsed disc and nerve compression prior to the work place incident on 18 August 2004.

51.     Dr Redmond saw Mr Mylne on 6 May 2005. Dr Redmond’s clinical notes[27] from that consultation indicate that Mr Mylne provided a history that on 18 August 2004, he went into a pit filed with waste, that there was nothing noticeable for 3 days. Later on Saturday whilst he was picking up dog manure he noticed his left arm and shoulder were painful. That Mr Mylne told Dr Redmond that he did not relate it to work duties, and that he did not know what caused it is in direct conflict to the evidence Mr Mylne has provided since that time.

[27] T7, Folio 22

52.     Mr Mylne claimed that the picking up of dog manure exacerbated the symptoms he was already suffering and that he had difficulty communicating with Dr Redmond. We understand patients often experience high anxiety when consulting medical specialists however this does not explain how Dr Redmond could have incorrectly recorded that Mr Mylne had no pain after the work place incident and only developed pain some three days later when cleaning up after the dog.

53.      It was Dr Redmond’s evidence that he wrote down verbatim the information provided by Mr Mylne. That Dr Redmond made notes at the consultation, and as the history was clearly an essential component of determining causation we do not accept that Dr Redmond had any misunderstanding of what Mr Mylne said at the consultation. Had Dr Redmond not understood information necessary to come to a conclusion about diagnosis, he would have presumably questioned Mr Mylne further. We place much weight on the evidence of Dr Redmond, as his contemporaneous records support his account of the history provided by Mr Mylne.

54. Mr Mylne first saw Dr Campbell on 6 June 2005. Mr Mylne consulted Dr Campbell of his own accord, in an attempt to gain medical evidence that would support his claim. At that time, by his own admission, Mr Mylne was aware that Dr Redmond was not going to support his claim [28]. Mr Mylne provided Dr Campbell with a history different to that recorded by Dr Redmond. We do not accept the history provided to Dr Campbell accurately reflected the timing of Mr Mylne’s symptoms.

[28] Exhibit A, T17, Folio 40-43.

55.     In his report dated 20 February 2008[29] osteopath Dr M Kelly said Mr Mylne present to the clinic in December 2004. Dr Kelly states that Mr Mylne developed symptoms approximately four months ago after cleaning a pit with a suction pipe. Dr Kelly’s report is not sufficiently detailed with regard to the exact onset of symptoms, to assist the Tribunal.  Dr Kelly was not called as a witness and so the Tribunal was not provided with an opportunity to discuss his report with him. We gave no weight to this report.

[29] Exhibit D

56.     For these reasons we find that Mr Mylne’s cervical disc prolapse C5/6 and nerve root compression was not contributed to a significant degree by the work he performed on 18 August 2004. He is therefore not entitled to compensation pursuant to section 14 of the Act. We affirm the decision under review.

Decision

56.      The decision under review is affirmed.

I certify that the preceding 56 paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member and Dr M Denovan, Member

Signed:         ............................................................

E. Young, Research Associate

Date/s of Hearing  28 February 2008
Date of Decision  15 April 2008
The Applicant appeared in person  

Representatives for the Respondent                    Dibbs Abbott Stillman Lawyers