Nasiopoulou and Comcare

[2006] AATA 1029

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2006] AATA 1029

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2006/20

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HELEN NASIOPOULOU

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date1 December 2006

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

Senior Member

COMPENSATION – age related cervical and lumbar spondylosis pre-existed Commonwealth employment – pain relieved by changes in posture – whether any injury or disease arising out of the employment – whether pain a consequence of the degeneration – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) s4

REASONS FOR DECISION

1 December 2006   Mr John Handley, Senior Member

1.      Mrs Nasiopoulou, the applicant in these proceedings, is challenging a decision made by Comcare to deny liability with respect to cervical and lumbar spondylosis, left sciatica and thoracic sprain.

2.      This review mainly concerned an examination of the medical evidence.  This aspect will be discussed later but it was the case of the applicant that she suffered an aggravation of an underlying injury by the employment.  The case for the respondent was the symptoms of pain suffered by the applicant from time to time were the manifestation of a pre-existing degenerative condition which was not an injury or disease that arose out of or in the course of the employment, nor was it aggravated by the employment.

3.      Mrs Nasiopoulou, who appeared without representation, acknowledged that she did make a claim upon a previous employer in September 1983 with a claim related to a neck injury.  She continued to work until March 1985 but then ceased employment and was paid weekly compensation under the Victorian Workcover scheme.  Common law proceedings were instituted against the employer which were settled – thereby ending workers’ compensation rights – in May 1998 by payment of a lump sum award of damages.

4.      Thereafter, Mrs Nasiopoulou was engaged in a period of self employment in a manchester retailing shop in Box Hill.  Later she was also self employed retailing children’s’ clothing.  On another occasion she obtained salaried employment as a shop assistant with a jeweller.

5.      In approximately March 2000, Mrs Nasiopoulou successfully applied to join the Australian Taxation Office (ATO) where she continues to remain employed.  Initially she was employed as a call centre operator but more recently has been engaged as a compliance officer.

6.      In May 2000, Mrs Nasiopoulou was examined by a Commonwealth Medical Officer (CMO).  She disclosed her previous employment and her previous injuries.  At that time she had been employed by the ATO for approximately two months.  Within that time she had been engaged in extensive training which had involved lengthy periods of remaining seated.  The examining doctor recorded that there was a history suffered of “back or neck pain or injury” and “arm or shoulder pain”.  On examination he recorded that the cervical and thoraco lumbar spine together with the upper and lower limbs were “normal”.  He also recorded that there was “full movements of neck and shoulder.  No tenderness in muscles.  Normal mental state.  No evidence of anxiety or depression.”  The examining doctor also recorded that Mrs Nasiopoulou was capable of performing all duties as described in the job description.  However, he did note that “she should change her sitting posture periodically” (refer T‑documents, p79 – 84).

7.      To her credit, Mrs Nasiopoulou has largely remained in employment but has worked in the presence of neck pain.  On occasions she has also had low back pain with referred pain into her left leg.  There was a period of time when she suffered from shoulder discomfort which she understood to be “bursitis” but that condition has apparently resolved.  She has been reluctant to take time off.  I accept that she has worked in the presence of back and neck pain.  I also accept and find as a fact, that the ATO has changed her work station to relieve discomfort.  Despite this, there has been a continuing presence of pain.  It would appear from the evidence that the pain is worse towards the end of the week than at the beginning of the week.  It would also appear that the pain has been considerably lessened or non-existent during weekends and when on leave.

8.      It was Mrs Nasiopoulou’s case that the frequency and severity of pain suffered by her was dependent on the location of her work stations, the physical layout of the work stations, the extent of workload, whether it involved repetition and whether she was exposed to cold draught from overhead air conditioning vents.

dr chiew

9.      Dr Chiew practises at the Total Wellbeing Medical and Counselling Centre in East Doncaster.  She provided a report of 25 October 2005 and gave evidence in these proceedings.

10.     Dr Chiew said that an examination of the records indicated that Mrs Nasiopoulou has first attended the clinic in August 2000.  Apart from an entry on 5 February 2002 of pain across the “trapeziums”, there was no other entry until October 2003 with respect to Mrs Nasiopoulou’s neck, low back or shoulders.

11.     Dr Chiew acknowledged that an entry in the records of the clinic of 30 October 2003 (completed by Dr Asaf) recorded “Pain, neck, first apparent, diagnosed 30 Oct 2003, active with tingling down the right arm”.  The “physical findings” were recorded as “tender facet J of the right side of the neck painful movements ? carpal tunnel syndrome as well”.

12.     Apparently Dr Asaf referred Mrs Nasiopoulou for X-ray and CT scan of her cervical spine which was undertaken on the same day at the radiology department of the Austin Hospital.  The CT report recorded a “broad based small mid line disc bulge” at C4 without “significant neural canal compression”.  Osteophyte formation was also noted at C5 - 6 and C6 – 7.  The radiologist concluded “uncovertebral osteophyte formation causes minor neural canal narrowing at the right C5 – 6 and C6 ‑ 7 as well as the left C5 – 6 levels”.  Dr Chiew said that in her opinion those findings were consistent with a diagnosis of cervical spondylosis.  Additionally, she said that there was no evidence from those reports of Mrs Nasiopoulou having been diagnosed with cervical disc prolapse which in fact was recorded by Dr Asaf in the notes of 31 October 2003.  It would appear that Dr Asaf then had the radiologist’s report and the entry in the notes of that day appear also to relate to the opinion then expressed by Dr Asaf to Mrs Nasiopoulou.

13.     Dr Chiew was then taken to an X-ray report of 23 May 2005 of Mrs Nasiopoulou’s cervical, thoracic and lumbar spine.  The radiologist recorded that there was alignment within normal limits, disc spaces were preserved without significant degenerative change and there was no evidence of any focal bone destruction or vertebral collapse.  Dr Chiew said that in her experience, radiologists might differ in their interpretation of X-ray films but in her opinion the report would indicate that there was “probably not very severe” degenerative changes.  Additionally, she said that there was nothing apparent from the radiologist’s report or from her clinical examinations of evidence of left sided sciatica.

14.     The radiologist reported that the cervical spine demonstrated localised degenerative change in the mid / lower spine with narrowing at C5 – 6 and C6 – 7 disc spaces, early marginal osteophyte formation was present with osteophytic encroachment on the bony foramina.  When asked to comment upon those findings – specifically whether the cervical spine was consistent with a person of Mrs Nasiopoulou’s age ‑ Dr Chiew said that while she was not “trained in reading X‑rays” it was her understanding that the pain and tingling in Mrs Nasiopoulou’s arm might be consistent with cervical spondylosis only, as opposed to cervical disc prolapse.

15.     Dr Chiew said that in her opinion she would recommend to Mrs Nasiopoulou that there are certain activities that she should avoid, including remaining seated at a desk.  She gave that opinion because that type of activity – indeed inactivity – is likely to cause her symptoms to be worse.

mr michael shannon

16.     Mr Shannon is an orthopaedic surgeon who provided reports dated 18 October 2005 and 25 September 2006.  In his opinion, a CT scan was not a reliable mechanism for investigating whether there was any cervical disc prolapse.  Nonetheless it was his opinion that Mrs Nasiopoulou suffered from age related degenerative spondylosis.  In his experience persons who suffer such a condition may, or may not, suffer from symptoms and persons “in the 50 degree age bracket . . . 90 per cent would have at least some evidence of degenerative change if not 100 per cent”.  He said that disc degeneration was a normal part of ageing and certain types of activities are more likely than others to cause pain.  In his experience, persons with degenerative change in their neck or back who maintain a steady posture for prolonged periods are more likely to suffer the symptoms, consequent upon degenerative change.  Mr Shannon said that he would advise such persons to be mobile, regularly take breaks from activity and if possible, undertake exercising.  That advice would be given because muscles that support the cervical and lumbar spine become “tired” after being kept in one position, thereby causing stress upon the bony degenerate joints.

17.     In his opinion, the employment of Mrs Nasiopoulou with the ATO did not aggravate the underlying disease process.  He acknowledged that symptoms of the degenerative process did occur in the workplace, but those symptoms were associated with the degenerate process as opposed to the underlying injury or disease itself being aggravated.

18.     Mr Shannon said that the extent of the degenerative changes in Mrs Nasiopoulou’s neck was greater than he would normally expect for a person of her age.  Nonetheless, he remained of the opinion that the employment did not materially or significantly contribute to “the condition”.  That language as appeared in his reports was the subject of some examination.  Mr Shannon said that the word “condition” as appeared in his reports was referrable to the “degenerative condition” of which it was his opinion that the employment did not materially or significantly contribute.  It was his opinion that the symptoms suffered by Mrs Nasiopoulou were a manifestation of the underlying condition only and the symptoms themselves were not an injury or the aggravation of an injury.

dr elizabeth lewis

19.     Dr Lewis is a neurosurgeon who provided a report of 19 May 2006 but was not called to give evidence.  She understood the applicant had “prolapsed discs” in her neck but the language of the report suggests she did not observe films.  (As referred to earlier, there was no radiological evidence of a cervical prolapse).

20.     Dr Lewis noted pain was relieved away from the workplace.  She acknowledged a “degenerative component to this lady’s pain” but thought there was an “aggravation of the degenerative problem when she is put in particular situations such as return to work . . .”.  On balance, she was of the opinion that there had been an aggravation of cervical and lumbar spondylosis contributed to in a material degree by the employment.

conclusion and reasons for decision

21.     Prior to commencing employment with the ATO, Mrs Nasiopoulou had not worked in an office environment since 1985.  She had been engaged in activities associated with self employment retailing manchester and children’s clothing and on another occasion as a shop assistant with a jeweller.  She had not been engaged in activity where she was required to sit and work at a desk in a relatively stationary position for lengthy periods of time.  It is therefore not difficult to understand that shortly after commencing employment with the ATO, she suffered symptoms of neck and low back pain which she then associated with the employment.

22.     The evidence heard in these proceedings point to those symptoms being associated with remaining in a relatively stationary position for lengthy periods of time, causing weakness in the cervical (particularly) muscles thereby causing the degenerative process to manifest itself by symptoms of pain and discomfort.

23.     Dr Lewis expressed opinions without reference to the CT scans or X‑rays.  Her information concerning the radiological findings was incorrect.  The language of her report suggests a confusion between the aggravation of an injury and the manifestation of symptoms of an underlying injury or disease process, the latter not being compensable.

24.     I prefer the evidence of Mr Shannon and Dr Chiew but that in no way is to discount the integrity or the honesty of Mrs Nasiopoulou who I found to be an able and conscientious person who was dedicated to her employment with the ATO.  I accept that she has suffered pain from time to time which she did not exaggerate or embellish in her descriptions during evidence.

25.     The evidence – from the doctors and her own evidence –points to the symptoms having an association with the underlying degenerative condition in her spine, particularly in the neck.  That those symptoms are not as severe, or exist at all, during weekends or when on holidays, is a pointer to the symptoms manifesting when working in a seated prone position for lengthy periods of time – consistent with the evidence of Mr Shannon.

26. Compensation is payable for an injury or disease – or the aggravation of an injury or disease – that arose out of or in the course of the employment. In the case of a disease, there must be a material contribution to it by the employment (refer s4 Safety, Rehabilitation and Compensation Act 1988).

27.     The “injury” or the “disease” in this case is cervical and lumbar spondylosis.  It pre‑existed the commencement of employment with the ATO.  It manifests in episodes of pain by some work activity.  But it was not caused or aggravated by the employment and there was no material contribution to the pre‑existing condition, by the employment, it being age related degeneration.  The pain occurs by workplace posture and the opinion expressed by the CMO in May 2000 of the need for periodical changes in posture was prophetic and consistent with the opinion of Mr Shannon expressed six years later, in these proceedings.

28.     Mr Moulds who appeared on behalf of the respondent provided comprehensive written submissions at the conclusion of the hearing.  The submissions also included reference to a number of leading authorities of both the Federal and High Courts.  Those submissions need not be reproduced here save that I agree with his analysis of the applicable law.

29.     In all of the circumstances the decision under review will be affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member  

Signed:         .....................................................................................
  Personal Assistant

Date of Hearing  27 September 2006
Date of Decision  1 December 2006
Solicitor for the Applicant          Self Represented
Counsel for the Respondent     Mr A Moulds
Solicitor for the Respondent     Sparke Helmore