Narelle Jones and Australian Postal Corporation

[2014] AATA 661

[2014] AATA 661 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5308
Re	Narelle Jones
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	11 September 2014
Place	Sydney

The Decision under review is affirmed.

...................[SGD].....................................................

Senior Member A K Britton

CATCHWORDS

COMPENSATION — Workers’ Compensation — Commonwealth — Whether incapacity for work was a result of the relevant injury — Whether medical treatment was in relation to the relevant injury — Inconsistent evidence — Decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(9); 16; 19

CASES

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

REASONS FOR DECISION

1. Ms Narelle Jones manages a post office in suburban Sydney. She has been employed by the Australian Postal Corporation (Australia Post) for over three decades.

2. In August 2010 while lifting a small parcel, Ms Jones experienced sudden and severe pain in her upper back (the August 2010 incident). Despite taking pain relief medication the pain persisted. and Ms Jones consulted her GP who made a diagnosis of “muscular sprain in the mid and upper back”. The GP certified Ms Jones unfit for work for three days.

3. Australia Post subsequently accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for two discrete injuries sustained during the August 2010 incident – a “central disc protrusion at T7/8 level” (the thoracic spine injury) and “rotator cuff tendonitis” (the shoulder injury). In July 2013, Australia Post decided that any incapacity for work, or need for medical treatment, was no longer the result of the accepted thoracic spine injury (the reviewable decision). Ms Jones challenges that decision and applies to the Administrative Appeals Tribunal for review. Ms Jones continues to receive compensation in respect of the shoulder injury for incapacity (s 19 of the Act) and medical expenses (s 16 of the Act).

4. It is agreed that when the reviewable decision was made, 24 July 2013, Ms Jones was unfit for her pre-injury duties and required medical treatment because of her thoracic spine symptoms. The primary issue to be decided is the cause of those symptoms, specifically whether, at the date of the reviewable decision:

   Ms Jones’ incapacity for work was “a result of” the accepted thoracic spine injury, and

   Any claim for compensation for medical treatment was for medical treatment received by Ms Jones, “in relation to” the thoracic spine injury

5. Australia Post contends that the effects of the thoracic spine injury resolved within 12 months of the August 2010 incident and any subsequent symptoms are attributable to long-standing degenerative change throughout Ms Jones’ spine. Ms Jones, on the other hand, contends that the thoracic spine symptoms she experienced since August 2010 are a result of the aggravation of her spine that occurred during the August 2010 incident.

   STATUTORY FRAMEWORK

6. Australia Post will be liable to pay compensation to Ms Jones if she is incapacitated for work as “a result of” the accepted injury (s 19 of the Act). Section 4(9) of the Act defines “an incapacity for work” to mean an incapacity suffered by an employee as a result of an injury, being:

   an incapacity to engage in any work; or

   an incapacity to engage in work at the same level at which he or she was engaged by … a licensed corporation in that work or any other work immediately before the injury happened.

7. Section 16 of the Act relates to compensation for medical expenses and provides:

   16 Compensation in respect of medical expenses etc.

   (1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

   ACCOUNT OF INJURY

8. In a statement prepared for these proceedings Ms Jones gave this account of the circumstances of injury:

   On 23 August 2010, I sustained an injury to my left shoulder and back whilst performing my usual duties at work. I was holding a small parcel when I turned and bent over to the left side to place it under the counter. As I was doing this, I developed a sudden and severe pain back pain [sic] in the region of the left shoulder. I also felt pain in the lower back and though the left hip down the back of the left knee with a warm sensation extending to the left ankle.

9. As noted on the day of injury, Ms Jones saw by her GP, Dr Haddad. Two days later at the request of Australia Post, Ms Jones attended Dr John Affleck who acted as her “nominated treating doctor” responsible for the management of her accepted injuries, until March 2012.

10. On 26 August 2010 Ms Jones returned to work on limited hours with restrictions. Her hours were progressively increased. At the time of the hearing Ms Jones was working six hours per day, five days per week, with weight restrictions.

    Post injury shoulder symptoms

11. Shortly after the incident Dr Affleck referred Ms Jones for an ultrasound of her left shoulder. It revealed a partial thickness rotator cuff tear and associated acrioclavuicular joint osteoarthritis. Those findings were subsequently confirmed on MRI. 

12. On 30 November 2011, Dr Affleck referred Ms Jones to orthopaedic surgeon Dr Johnathon Herald in respect of “left shoulder impingement and underlying pain (settled to a degree on holiday – now worsening at work again)”. In a report dated 15 December 2010, Dr Herald recommended that Ms Jones receive a cortisone injection in her shoulder joint and indicated he would review her in six weeks. On 17 February 2011 Dr Herald reported to Dr Affleck that Ms Jones was “80 % better following her cortisone injection” and reported “significant improvement”.

13. In a report to Dr Affleck dated 26 May 2011, Dr Herald reported that during his assessment of Ms Jones on that day, she was in tears, reporting “significant shoulder pain”. At Dr Herald’s recommendation, in October 2011 Ms Jones underwent surgery to repair the rotator cuff tear in her left shoulder.

14. The operation was reported to be successful however by January 2012 Ms Jones had developed a “frozen shoulder”, slowing her recovery. Nonetheless after receiving intensive physiotherapy in January 2012 she was able to return work on reduced hours, performing light clerical work.

15. In a report to Dr Affleck dated 19 April 2012, Dr Herald reported that six months since surgery Ms Jones was “doing very well” and he anticipated she would be able to return to full duties over the next month.

    Nature of Ms Jones’ thoracic spine symptoms

16. An issue in dispute in these proceedings is the nature of the thoracic spine symptoms suffered by Ms Jones since August 2010, in particular whether her symptoms have been episodic and/or diffuse. Because of the significance of this issue, I detail below the account of symptoms Ms Jones gave in these proceedings and the histories recorded by those practitioners who assessed Ms Jones her in August 2010.

    Account of symptoms given by Ms Jones in evidence

17. Ms Jones testified that she had never experienced thoracic spine symptoms prior to the August 2010 incident. That claim is consistent with the clinical notes of Ms Jones’ GP. Those notes span the period 2001 to April 2014 and contain reports of thoracic spine symptoms prior to August 2010.

18. In a statement prepared for these proceedings Ms Jones gave this account of her post-August 2010 symptoms:

    During the last two years I have continued to experience significant pain in my back and left shoulder which has stopped me from returning to my pre-injury duties despite receiving various treatment including physiotherapy, multiple analgesia and strong pain medications.

19. Ms Jones testified that at all times since the injury she has experienced pain in the thoracic spine region around the level of her bra strap. She described the pain as like being in “a bear hug”. On her account the pain is “bearable” with medication and, on those days where she also experiences left shoulder pain, “unbearable”.

20. Ms Jones denied that the pain progressively improved throughout 2011 (Transcript of Proceedings, Re Jones and Australian Postal Corporation (AAT, SM Britton, 11 August 2014) p 43 l 28 – 30):

    It only gets better with medication. It's never, ever gone away, it's never got better in itself. It's the medication that makes it feel better.

21. Ms Jones also denied being free of thoracic spine symptoms throughout the first half of 2012 although she conceded on questioning that during that period her symptoms had eased. She attributes this to pain relief medication and being given light duties.  (Ms Jones’ substantive position involves standing for extended periods, sorting parcels and mail, serving customers and managing staff. She was given a clerical position, from January to August 2012 and in October, November 2012).

22. When taken to the entry in her GP’s clinical notes for 22 June 2012 — “pain is moving to the middle to the back” — Ms Jones denied that the site of the pain had changed. She insisted that at all times the pain was at the level of her bra strap.

23. Ms Jones denied experiencing any low back pain during or after the injury. She was unable to explain why the statement she prepared for these proceedings contained the following account of injury:

    I also felt pain in the lower back and though the left hip down the back of the left knee with a warm sensation extending to the left ankle.

24. She also denied reporting low back pain to her GP on 12 February 2013 and claims the entry in his clinical notes made on 12 February 2013 — “pain in low back” — is incorrect. She claims she reported pain in her “backside” not “back”.

25. According to Ms Jones her condition has deteriorated, and by April 2014 the pain was so severe she was forced to take ten weeks off work and given a nerve block in her back. Ms Jones is currently seeing a neurosurgeon who recommended having “the nerve endings burnt”.

    Account of symptoms given to medical practitioners

26. In February 2011, Dr Affleck referred Ms Jones to rheumatologist, Associate Professor Youseff for diagnosis and treatment of her “episodically severe thoracic back pain and peculiar left leg symptoms”. In a letter to Associate Professor Youseff, dated 25 February 2011, Dr Affleck advised:

    ·MsJones has “consistently located the dorsal pain at the level of her bra strap and feels like she is being ‘hugged tightly around the mid chest’”

    ·When he last reviewed Ms Jones her shoulder pain had improved and she was “limited by the pain she experiences across the left back as at initial presentation”.

27. In March 2011, Associate Professor Youseff referred Ms Jones for an MRI of her thoracic spine, noting that the “clinical history is suggestive of a disc prolapse at T8 and T9”. The MRI revealed abnormalities at most levels of Ms Jones’ thoracic spine. On 18 April 2011, Associate Professor Youseff wrote to Dr Affleck advising that the MRI revealed “a left paracentral disc extrusion” and that this would likely explain Ms Jones’ thoracic spine symptoms. The radiologist described the findings revealed on MRI:

    T6/7: A clearly identified left paracentral disc extrusion that extends superiorly approximately half the height of the vertebral body …. Clear indentation of the anterior cord surface. No definitive cord signal abnormality.

28. Australia Post subsequently referred Ms Jones to orthopaedic surgeon, Dr David Maxwell, for assessment of both accepted injuries. In a report dated 13 July 2011, Dr Maxwell recorded being told by Ms Jones:

    ·after injury, the pain in her thoracic spine improved initially but then stabilised

    ·she experiences pain right across her bra strap which radiates to the sides of her chest

    ·if she takes a big breath, the pain is increased

    ·she had been experiencing pain down her left leg which has now settled.

29. In Dr Maxwell’s opinion, Ms Jones’ thoracic spine symptoms were attributable to her central disc protrusion at the T7/8 level. He wrote that those symptoms were not incapacitating and had “improved significantly”. According to Ms Jones when she saw Dr Maxwell she was on annual leave and this accounted for the improvement in her symptoms.

30. The following month, at the request of her GP, Ms Jones was assessed by orthopaedic surgeon Dr Vijay Manian. In a report dated 22 August 2011 Dr Manian wrote “in relation to thoracic spine pain Ms Jones continues to experience episodic symptoms”.

31. In a report addressed to Dr Affleck dated 19 April 2012, Dr Herald wrote that Ms Jones “does not have any pain and is doing well”. Ms Jones denies telling Dr Herald she did not have pain in her upper back.

32. The next significant report of thoracic spine symptoms in the available material appears in an internal email sent by an Australia Post rehabilitation provider in early October 2012: “[Ms Jones’] thoracic spine is giving her grief and affecting the recovery of her shoulder and neck rehab”. In a report dated 18 October 2012, Ms Jones’ treating physiotherapist recorded that while Ms Jones had upgraded her hours, her lifting capacity progress was limited by persisting thoracic spine pain. The physiotherapist recorded Ms Jones’ thoracic symptoms as being intermittent and her subjective pain level as “seven out of ten”. He recorded that her capacity to lift weights was limited by “mid thoracic and lower back pain”.

33. In a report dated 28 November 2012, Dr Herald recorded that Ms Jones “continues to have back pain and pain radiating around her waist like a bear hug” [emphasis added]. He wrote that on examination she had stiffness in her cervical and thoracic spine and “tenderness along her spine in general”. Ms Jones denied telling Dr Herald that the location of her pain was different to that experienced at the time of the injury.

34. When Dr Herald saw Ms Jones in February 2013 she had been referred for an MRI of her cervical spine following reports of neck pain. On examination, Dr Herald noted irritability of Ms Jones’ cervical spine. He also recorded that the results of Spurling’s test, a test for cervical nerve root compression, were positive.

35. In February 2013, Ms Jones was assessed by Associate Professor McGill at the request of Australia Post. In a report dated 25 February 2013 he recorded :

    Until last week [starting, 18 February 2013] she was working six hours per shift, five shifts per week with an 8kg lifting restriction and avoidance of above shoulder height activity. She thought that she was doing well and she today expressed the view that things were “going fine” until she experienced an increase in pain in the upper thoracic area posteriorly.  She could not relate that increase to any activity or event. In the last six to eight months she has experienced a tingling sensation running down both upper limbs. The sensation commences in the trapezius region and extends to the shoulders and then down to the elbows and finally to the hands. She described it as a “dripping water” like sensation. The sensations can occur at any time. They were previously more prominent at night. In the last two weeks she has experienced a numb sensation over the right shoulder but not elsewhere in the upper limbs.

36. In April 2013 Ms Jones was reviewed at the request of her GP, Dr Haddad, by neurosurgeon, Dr Simon McKechnie. In a report to Dr Haddad, Dr McKechnie wrote: “Her main residual pain is in the mid thoracic region. It radiates bilaterally across the chest wall”. He referred Ms Jones for an MRI of her thoracic spine to investigate her “persistent thoracic spine pain”.

37. Ms Jones was assessed by orthopaedic surgeon, Dr James Bodel, on 20 December 2013. In a report of the same date Dr Bodel wrote that Ms Jones reported to Dr Affleck that she was experiencing pain throughout the interscapular region of the thoracic spine and it felt as if she was being bear hugged.

38. In June 2014 Ms Jones reported to occupational physician, Dr Evan Dryson, that she was experiencing pain in the thoracic spine “all the time”.

    Disclosure of past back and shoulder problems

39. The records of Ms Jones’ GP spanning the period 2001 to April 2014 were produced in these proceedings. They reveal a history of:

    (i)Ms Jones reporting lower back pain and radicular symptoms in both legs throughout 2001/2003, resulting in her having time off work, being referred for imaging studies and specialist opinion and receiving physiotherapy treatment

    (ii)Ms Jones reporting shoulder problems from 2006 and ongoing pain, predominately in the left shoulder, between March 2009 and June 2010. Ms Jones was referred for specialist opinion, treatment and imaging studies of her left shoulder. Two months prior to the August 2010 incident she was reviewed by her treating rheumatologist, Dr Harry Patapanian. In a letter to Ms Jones’ GP, Dr Patapanian advised that:

    oan ultrasound of Ms Jones’ left shoulder had revealed a “partial thickness and partial width left supraspinatus tendon tear”

    oMs Jones had decided to commence taking Celebrex (medication used for the treatment of joint pain) as she wished to defer injection therapy

    ohe planned to review Ms Jones in three months, or earlier, if necessary.

40. None of the practitioners who assessed Ms Jones after the August 2010 incident referred in their reports to Ms Jones’ history of low back or left shoulder problems. Dr Maxwell wrote “[Ms Jones] had no previous problems with her back or shoulder”; Associate Professor McGill wrote that Ms Jones “could not recall any problems in relation to her back or upper limbs prior to 23 August 2010”; Dr Bodel made no mention in his reports of pre-existing back or shoulder problems.

41. In a statement prepared for these proceedings, Ms Jones made no mention of pre-injury shoulder or low back problems. In cross-examination she conceded that she had a history of low back problems, dating back to 2001/2002. She claims the reason she told doctors she did not have a history of back problems was because she understood their questions were directed at her upper, not lower, back. On questioning, Associate Professor McGill insisted that he asked Ms Jones about any health problems that pre-dated the injury. Dr Bodel stated it was his practice to ask persons who he assessed about any prior health problem or injuries.

42. In cross-examination, Ms Jones claimed that prior to August 2010 she had pains but “no problems” in her shoulder and further could not recall when she had last sought treatment for her shoulder condition prior to the August 2010 incident. She claimed that she was unaware that the ultrasound taken in June 2010 revealed a supraspinatus tendon tear. She admitted that she did not tell either Associate Professor McGill or Dr Maxwell about her history of pre-injury shoulder problems.

    Medical opinion on the cause of Ms Jones’s thoracic symptoms

    Associate Professor Youseff

43. In a report dated 18 April 2011, Associate Professor Youseff wrote that the likely explanation for Ms Jones’ “acute thoracic pain” experienced during the incident was the disc protrusion revealed on the MRI. In his opinion, the symptoms would probably resolve in 12 months and, during that period, the disc prolapse should get smaller.

    Drs Dryson and Maxwell

44. Drs Dryson and Maxwell are of the opinion that the August 2010 incident is the most likely cause of Ms Jones’ T7/8 disc protrusion. Dr Maxwell stated that the protrusion was the likely cause of Ms Jones’ thoracic spine symptoms. He has not seen Ms Jones since July 2011. In reports dated 13 and 25 June 2014, Dr Dryson did not comment on whether the disc protrusion played a role in Ms Jones’ post-injury thoracic spine symptoms.

    Dr Bodel and Associate Professor McGill

45. Dr Bodel and Associate Professor McGill are the only experts whose opinions are before me, to have addressed the issue of whether the thoracic spine symptoms experienced by Ms Jones since July 2013, were attributable to the August 2010 incident.

1. They agree that:

   ·at the time of the incident Ms Jones had widespread degenerative change throughout the three regions of her spine

   ·the imaging studies taken after the August 2010 incident injury do not disclose  whether the disc abnormalities at most levels of Ms Jones’ thoracic spine, existed prior to the injury

   ·the MRI performed in 2003, which revealed disc protrusions throughout the lumbar spine and at the lower part of the thoracic spine (at T9/10), suggests that the degenerative change throughout Ms Jones’ thoracic spine at the time of injury was long standing

   ·at the time of injury, Ms Jones had a vulnerable spine and it is not implausible that it was aggravated by the “relatively innocuous act” of picking up a small parcel weighing about one kilogram

   ·fluctuating and episodic thoracic spine symptoms are likely to be attributable to underlying spinal degeneration.

2. The central issue between Dr Bodel and Associate Professor McGill is whether the  aggravation caused by the injury ceased: Dr Bodel is of the opinion it does; Associate Professor McGill, on the other hand, is of the opinion that the aggravation ceased within 12 months of injury.

3. In a report dated 20 December 2013, Dr Bodel wrote that the August 2010 incident contributed to Ms Jones’ ongoing complaints by way of “an aggravation of an underlying degenerative process” in the thoracic spine. In his opinion during the incident “some damage”, “something additional” occurred in the general area of Ms Jones’ thoracic spine.

4. Dr Bodel agreed with the proposition that multi-level degeneration of the spine is more likely to be attributable to an age-related process than a specific incident. However in his opinion the August 2010 incident was the likely cause of Ms Jones’ on-going thoracic spine symptoms, for the following reasons:

   ·Her account of experiencing on-going pain throughout the interscapular region of her thoracic spine since the injury

   ·the pathology revealed on imaging

   ·his findings, on clinical examination, of tenderness and guarding in the mid-thoracic region, together with the reduced movement in Ms Jones’ thoracic spine.

5. According to Dr Bodel, even if assumed that Ms Jones’ thoracic symptoms post-August 2010 were episodic, it is possible they are attributable to the August 2010 incident. He explained that if some additional structural damage was caused during the incident, it was possible that the symptoms resolved with treatment but the site of the injury remained vulnerable to a recurrence of symptoms.

6. In contrast, Associate Professor McGill is of the opinion that, by August 2011 and probably earlier, any thoracic spine symptoms experienced by Ms Jones were attributable solely to pre-existing degenerative change. He considered it relevant that in the three years following the work incident, Ms Jones’ thoracic spine symptoms had fluctuated, pointing to her ability to return to work shortly after the injury, and the history she gave that things appeared to be “going fine” until she experienced a recurrence or increase in thoracic spine symptoms, shortly before he assessed her in February 2013. According to Associate Professor McGill this pattern of symptoms was a “very believable history in terms of the natural history of degenerative spinal disease” (Transcript of Proceedings, Re Jones and Australian Postal Corporation (AAT, SM Britton, 11 August 2014) p 96, l 40-42). He stated that the multilevel degenerative changes throughout Ms Jones’ spine made it likely that she would experience intermittent and fluctuating discomfort throughout her spine, including in the thoracic region.

7. Associate Professor McGill also considered it relevant that since the incident, Ms Jones reported symptoms attributable to all parts of her spine, including the lumbar and cervical regions. In addition he stated that her thoracic spine symptoms were neither localised nor reproducible, pointing to the record made by Dr Haddad in July 2013 that “pain is moving to the middle of the back”, and, Dr Youseff’s initial assessment that the site of the pain was at the level of T 8 or T 9. He stated (Transcript of Proceedings, Re Jones and Australian Postal Corporation (AAT, SM Britton, 11 August 2014)  p 93, l 46 – p 94, l 7):

   The symptoms that she’s had since [the incident] can’t be related to a specific left-sided disc protrusion.  So, if you pick one of those disc abnormalities and say, can that explain the pattern of pain or symptoms that she’s experienced, you can’t.  At times it’s been on the left.  At times it’s been on the right.  At times she’s had symptoms radiating down her upper limbs which could only come from the cervical spine, not the thoracic spine.  So, she’s had a pattern of symptoms that can’t be all traced back to a single level and she has pathology which is widespread typical of degenerative disease.   

8. Also of significance in Associate Professor McGill’s opinion is the absence of any discernible difference in the disc pathology revealed by the two MRIs taken in April 2011 and May 2013. According to Associate Professor McGill, had there been a sudden change in a disc during the August 2010 incident, it would be expected that the MRI taken 25 months after the first, would reveal some change, for example, a decrease in the size of the protrusion. He stated that the lack of any discernible change between the two MRIs strengthens the likelihood that the pathology revealed by the first MRI was stable and had been there for an extended period. He conceded that because he had not seen the films of either MRI, he could not exclude the possibility that the second MRI revealed a small change in pathology.

9. According to Associate Professor McGill a person with diffuse degenerative change throughout their spine will commonly experience the spontaneous onset of spinal symptoms which increase, stabilise and then improve. He concluded that while possible that Ms Jones’ experience of acute symptoms were unrelated to the activities she was undertaking, “giving her the benefit of the doubt”, he concluded that the bending and twisting actions she was performing at the time of the incident probably contributed to the development of the T6/7 disc protrusion.

10. On questioning, Associate Professor McGill explained that the reason he identified T6/7, as the level of Ms Jones’ spine likely to have been damaged during the August 2010 incident, was because it was the “most significant pathology”. He said given the evidence of pre-existing pathology in the lumbar and the lower levels of the thoracic spine revealed by the 2003 MRI, which was not available when he prepared his initial opinion, he was now less confident of that opinion.

    Findings and conclusions

11. The weight of medical opinion is that Ms Jones has been unfit for her pre-injury duties since the August 2010 incident, in part, because of thoracic spine problems. The issue between the parties is whether, by July 2013, that incapacity continued to be a result of the injury sustained in August 2010. Ms Jones’ incapacity will be a result of that injury if it was an operative cause of her incapacity, even if there are other unrelated causes (Hart v Comcare (2005) 145 FCR 29 at [22]).

12. While the consensus of medical opinion is that “something happened” involving Ms Jones’ thoracic spine during the August 2010 incident, there is a range of opinion about what happened. Drs Maxwell and Dryson thought the T7/8 level of Ms Jones’ spine was damaged in some way; Associate Professors Youseff and McGill thought some damage was caused at the T6/7 level; Dr Bodel did not nominate any specific area and stated that there had been “an aggravation of an underlying degenerative process”.

13. Associate Professor McGill and Dr Bodel are the only experts to have addressed the question of whether, by July 2013, Ms Jones’ thoracic spine symptoms were related in some way to the August 2010 incident. Central to their respective opinions is whether, as Associate Professor McGill believes, Ms Jones’ post-injury thoracic spine symptoms were episodic and diffuse.

14. Before deciding the evidence on this issue it is necessary to consider the veracity of Ms Jones’ claims, in particular that since the August 2010 incident she has never been free of pain in the thoracic spine and, in addition, the pain has always been in the same area. As the evidence set out above reveals, Ms Jones failed to disclose a significant history of lower back and shoulder symptoms to the doctors who assessed her after the August 2010 incident. In addition, Ms Jones did not disclose that history to the Tribunal until taken in cross-examination to the clinical notes made by her GP. Her explanation for failing to disclose her history of back symptoms — that she understood that she was being questioned by the doctors about her upper back, not her back at large — is implausible and cannot be accepted. It is also inconsistent with Associate Professor McGill’s testimony that in taking a history from Ms Jones, he did not confine his enquiries to her upper back and asked about any previous health problems.

15. Ms Jones’ failure to disclose a significant history of shoulder problems, and the findings of a rotator cuff tear, occurred in circumstances where she challenged, ultimately successfully, Australia Post’s decision to refuse to pay for the costs of surgery to repair the rotator cuff tear. The inescapable conclusion is that Ms Jones failed to give a complete and accurate history in order to bolster her claim for compensation.

16. That Ms Jones gave an incomplete history does not establish that none of the evidence she gave can be accepted. A person who is sometimes untruthful is not necessarily always untruthful. Nonetheless, her failure to provide an accurate history points to the need to exercise caution in the assessment of her evidence, especially where it is unsupported and/or inconsistent with other evidence.

17. The available contemporaneous medical records are plainly relevant to the assessment of the nature of Ms Jones’ post-injury thoracic spine symptoms. In assessing those records, it is necessary to take into account that throughout 2011, Ms Jones was experiencing severe shoulder pain, which ultimately required surgery. Her recovery was prolonged by the development of a frozen shoulder. Given those circumstances it would hardly be surprising if her shoulder problems became the focus of her concerns and those of her treaters.

18. While the available medical records must be considered in that context, nonetheless the fact remains that they contain few records of Ms Jones reporting thoracic symptoms in the period, mid-2011 to October 2012; and no records in the first half of 2012. The available records indicate that throughout 2011, Ms Jones’ symptoms were improving and episodic: Dr Maxwell wrote in mid-2011 that Ms Jones’ thoracic symptoms were not incapacitating and had “improved significantly”; one month later Dr Manian described her symptoms as “episodic”. There is then a gap of some 10 months in the available material until mention is made of thoracic spine symptoms. It is telling that none of the detailed reports prepared by Ms Jones’ physiotherapists on a regular basis in the 12 months following surgery, contain any mention of thoracic spine symptoms.

19. Ms Jones testified that at no time since the August 2010 incident has the pain in her upper back resolved. Her concession made in cross-examination that her symptoms might have eased in the first half of 2012 was made reluctantly. She proffered the following explanation for the absence of any reported symptoms in the available medical records during that period:

    (i)being off work or performing light duties that did not aggravate her thoracic spine

    (ii)being under the care of Dr Herald, Dr Haddad and physiotherapists who were not responsible for the management of her thoracic spine injury.

20. I find it improbable that had Ms Jones been experiencing thoracic spine symptoms of any note, that none of the practitioners who saw her throughout this period would have made a record of those symptoms. The explanation proffered by Ms Jones that Dr Herald and the physiotherapists were only responsible for the management of her shoulder problems, and this accounts for the absence of any record of thoracic spine problems, sits uncomfortably with the extensive references to thoracic spine symptoms, contained in their records from October 2012. With respect to Dr Haddad, Ms Jones is mistaken in the timeline: he took on the role of her nominated treating doctor and became responsible for the management of her thoracic spine injury in March 2012. After taking on that role he saw Ms Jones on 26 occasions throughout 2012. The first mention of thoracic spine symptoms appears in a clinical note made in late July 2012.

21. Ms Jones’ claim that since the August 2010 incident her thoracic spine symptoms have been continuous is not only inconsistent with the available material but unsupported. While the fact that Ms Jones was either not working or performing light duties in the 12 months following shoulder surgery might account for some easing of symptoms, it does not account for the absence of any thoracic symptoms during the period. On the available evidence I think the most probable explanation for the absence of reported thoracic symptoms throughout the first part of 2012 was, as Associate Professor McGill believes, during that period Ms Jones’ symptoms had settled.

22. I accept Ms Jones has consistently identified the level of the bra-strap, as the site of her thoracic spine symptoms. However as Associate Professor McGill points out, within that region, the site of reported symptoms has varied: Ms Jones reported symptoms towards the left, the right and the middle part of her spine. That variation is also reflected in the recorded findings on clinical examination made by the practitioners who assessed Ms Jones since the injury. That evidence is consistent with Associate Professor McGill’s opinion that the symptoms experienced since August 2011 ae the result of spinal disease and not any damage to a particular level of Ms Jones’ spine.

23. The finding that since the August 2010 incident Ms Jones’ thoracic spine symptoms were diffuse and episodic does not rule out the possibility that those symptoms were attributable in some way to the August 2010 injury, if the alternative hypothesis advanced by Dr Bodel — that the structural damage caused during the incident resulted in symptoms which resolved with treatment but left Ms Jones vulnerable to a recurrence — is accepted.

24. Since the reviewable decision Ms Jones has suffered thoracic spine symptoms, which at times have been severe and disabling. Deciding whether those symptoms are attributable in some way to the August 2010 incident is no easy task, especially given the range of medical opinion about what happened during that incident and the conflicting opinions about the likely cause of those symptoms. The absence of evidence of Ms Jones seeking treatment for thoracic spine symptoms prior to injury is a powerful argument supporting her contention that the symptoms she experienced post-injury were not solely the result of a pre-existing degenerative spinal disease. Nonetheless of the competing hypotheses, that advanced by Associate Professor McGill, in my opinion, provides the most plausible explanation for the pattern of symptoms Ms Jones has experienced since August 2010. His assessment is strengthened by the second MRI taken after the injury, which revealed no apparent change in the pathology shown in the MRI taken some 25 months earlier.  As Associate Professor McGill explained, this suggests the abnormalities revealed in the first MRI were stable and long standing. That opinion is consistent with the opinion of Associate Professor Youseff, who stated that the disc prolapse revealed on the first MRI, which he attributed to the incident, was likely to get smaller over time.

25. As Associate Professor McGill concedes, it is possible that Ms Jones’ thoracic spine symptoms reported since August 2010, including those reported since July 2013, were related in some way to the August 2010 incident.  On balance however I am not satisfied that the symptoms suffered at and after July 2013 were a result of the thoracic spine injury and for that reason affirm the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

...................[SGD].....................................................

Associate

Dated 11 September 2014

Date(s) of hearing	11 and 12 August 2014
Counsel for the Applicant	Catherine Spain
Solicitors for the Applicant	Carroll & O'Dea Lawyers
Counsel for the Respondent	Matthew Hawker