O'Neill and Telstra Corporation

[2006] AATA 83

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No Q2000/784, Q2002/254,

)Q2002/558, Q2003/953,

)Q2004/701

GENERAL ADMINISTRATIVE DIVISION		)
Re		JODIE O’NEILL

Applicant

And TELSTRA CORPORATION

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr G J Maynard, Member

Date3 February 2006

PlaceBrisbane

Decision The decisions under review are affirmed.

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

SENIOR MEMBER

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – applicant claims a number of injuries caused by employment – injury to neck and shoulder - adjustment condition - contradictory medical evidence – currents ailments not related to employment – decision affirmed

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

3 February 2006

Senior Member B J McCabe

Dr G J Maynard, Member

introduction

1.      Ms Jodie O’Neill says she was injured while working for NDC, a Telstra subsidiary, in 1998. She described two workplace injuries that occurred during the course of the year: one on 10 March and another on 5 August. She says she continues to suffer from a number of conditions that can be traced back to those accidents. She says the respondent must accept responsibility for her present conditions under the provisions of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).

2.      Telstra accepted liability for a musculoskeletal injury to the right side of the neck/shoulder/upper thoracic area for the closed period from 5 August 1998 to 8 May 2000. The applicant wants Telstra to accept liability on an ongoing basis for that injury (Q2004/784), and she seeks lump sum compensation in respect of permanent impairment (Q2003/953). She also wants Telstra to accept liability for anxiety and depression which is connected with her physical injuries (Q2002/254), and for a right elbow, forearm and wrist condition (Q2002/873). She has also asked Telstra to accept liability in respect of thoracic outlet syndrome (Q2004/701).

3.      The dispute turns on the medical evidence. After reviewing that evidence, we are satisfied the decisions under review should be affirmed. We explain our reasons below.

the material before the tribunal

4.      The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal 1975 in relation to each application. An additional 37 documents were also put into evidence and considered by the Tribunal.

5.      The applicant gave evidence at the hearing. The Tribunal also heard from Mr Barry O’Reilly and a number of medical practitioners:

·Dr T Coyne;

·Dr A Bettess;

·Dr Hew;

·Dr Johns;

·Mr John de Laurence, Psychologist;

·Dr Grosser;

·Dr Cameron;

·Dr Millroy;

·Dr Reddan;

·Dr Devereaux.

6.      The applicant was represented by Mr Kent. The respondent was represented by Mr Clark.

factual background

7.      Ms O’Neill was born on 7 February 1968. She commenced employment with Telstra in 1992. In 1995, she transferred to NDC, a company controlled by Telstra. She was employed to work on cabling. On 10 March 1998, she was removing redundant cables from an exchange when she injured her right shoulder. She reported her injury to her supervisor, Mr O’Reilly, but did not file a written report. She said she anticipated it would heal quickly. She sought treatment on the same day from Dr Lois Clark. Dr Clark is a chiropractor.

8.      The records summonsed from Dr Clark show the applicant had sought treatment from Dr Clark and a Dr Purkiss (another chiropractor) in respect of other musculo-skeletal problems on a number of occasions before the accident. The applicant agreed during cross-examination that she suffered neck and shoulder pain prior to the injuries at work in 1998.

9.      Mr Clark pointed to minor discrepancies in the applicant’s account of her accidents: in her original statement, for example, she did not include details about having both of her hands on the right side of her body when she was injured the first time on 10 March 1998.

10.     The applicant subsequently saw her general practitioner, Dr Bettess, on 28 March 1998. Dr Bettess’s notes were produced in response to a summons. There is no reference to the shoulder injury in the notes. Ms O’Neill gave evidence in cross-examination that her shoulder had healed by that point, although at another point she said it was “not 100%”. She also suggested Dr Bettess and other doctors did not accurately record the details of their conversations with her.

11.     Ms O’Neill sustained the second injury to her right shoulder at work on 4 August 1998. She was working on cabling in a confined space. In her claim form, she explained she felt a sharp pain while she was manipulating equipment located above her head. She reacted to the pain by attempting to remove herself from the position she was in. She pushed a stool away with her foot in order to clear the way. She said she felt pain in her right shoulder and arm.

12.     The applicant consulted Dr Bettess on 7 August 1998 when she returned home. The applicant complained of pain in the right arm, right side of the neck and right scapula region. Ms O’Neill was treated with physiotherapy and pain relief. She also saw a chiropractor. She was given certificates for time off work.

13.     The applicant lodged a claim for rehabilitation and compensation on 13 August 1998 under the SRC Act in respect of “ligament muscle and nerve damage in right shoulder”. Telstra accepted liability in respect of “musculoskeletal injury to the right side of neck/shoulder/upper thoracic area” on 24 August 1998.

14.     Ms O’Neill worked intermittently on restricted duties after the accident in August 1998 until she accepted a redundancy package and left the employ of Telstra in October 2000. Dr Redden, a psychiatrist, saw the applicant for the purpose of preparing a report for Telstra in connection with these proceedings. Dr Reddan says the applicant reported she had a “break down” in mid-2000 while working in Alstonville. Dr Redden also reports Ms O’Neill said she accepted the redundancy because she was being harassed at work. Dr Reddan recalls the applicant saying she came to regret accepting the redundancy.

15.     The applicant also gave evidence of a number of other stressors. She recounted difficulties in relationships, although she insisted there was nothing out of the ordinary. She added that in any event the stress caused by these issues paled in comparison with the pain from her shoulder.

16.     There is one other matter we should mention before discussing the medical evidence. The applicant acknowledged she was involved in a motor vehicle accident in early 2001. Her car was stationary when it was struck from behind. She sustained some injuries in the accident, although she says they were not significant. She did not mention that accident to all of the doctors whom she subsequently consulted. One of the doctors, Dr Coyne, was consulted days after the motor vehicle accident but his notes do not record any reference to an accident or any injuries. That is surprising.

the medical evidence

17.     We do not propose to recount all of the medical evidence here. Much of it is contradictory. Various experts engaged by both sides in this dispute have offered different diagnoses.

18.     Some of the experts favored a diagnosis of thoracic outlet syndrome. The diagnosis was originally suggested by a physiotherapist. Dr Cameron explained the condition is caused by an aberrant cervical rib or band of tissue. He described the typical vascular and neurological signs. Those signs were not present in this case, he said. He also pointed out that nerves passing through the thoracic outlet did not supply the areas of the body where the applicant said she felt pain. Thoracic outlet syndrome could not explain her symptoms in those circumstances. Dr Millroy agreed. Drs Millroy and Cameron both have experience in dealing with the condition. Dr Grosser, called on behalf of the applicant, is a vascular surgeon, not a neuro-surgeon. He agreed in cross-examination that some of his views were speculative.

19.     We prefer the evidence of Drs Cameron and Millroy. They have more expertise in dealing with thoracic outlet syndrome. Their explanation of why the condition cannot be diagnosed in this case was compelling. We accept the applicant does not suffer from thoracic outlet syndrome.

20.     Myofascial pain syndrome was also proffered as a diagnosis. Dr Hew, a general practitioner with an interest in physical medicine, made this diagnosis after finding “knots” in the muscles. None of the other experts referred to “knots”. We do not think this diagnosis can stand in light of the rest of the specialist medical evidence. We note some of the experts doubted whether myofascial pain syndrome was a diagnosable condition in any event. The same criticism can be made of the diagnosis of regional pain syndrome. That diagnosis was suggested by Mr Sprogis, the physiotherapist. It did not attract any support from any of the specialists.

21.     Dr Devereaux suggested the applicant suffered from fibromyalgia, a constitutional condition that affects approximately 10% of the female population. This diagnosis was not favored by the orthopaedic surgeons and neurologists.

22.     We acknowledge some of the doctors found evidence of constitutional or age-related neck, back and shoulder problems, and the notes summonsed from the applicant’s chiropractors refer to a history of back pain that predates the accidents. But none of those symptoms is explained by accidents in the work-place. The clinical picture is complicated by the fact the applicant is a poor historian. The symptoms she described, which are subjective, appear to vary from time to time. She was also selective in what she told the doctors: a number of the specialists were adamant the applicant did not mention she had been involved in a motor-vehicle accident not long before she was examined, for example.

23.     It is difficult to ignore the absence of objective evidence that the applicant has anything wrong with her back and shoulder that could be attributed to her workplace injury on an ongoing basis. All the X-rays, CT scans, MRI and nerve conduction studies failed to reveal any abnormalities. Those findings are consistent with the opinions of Drs Cameron and Millroy in particular. We are satisfied those individuals offered the most rigorous and obviously independent assessments of the applicant’s condition, and they are eminent experts in their respective fields.

24.     If we accept the applicant does suffer pain in her neck and shoulders, the only plausible diagnosis – apart from a psychiatric condition - is fibromyalgia. The other diagnoses suggested by the applicant have been excluded for reasons we have already explained. But fibromyalgia is not a compensable condition in these circumstances.

25.     We turn now to psychiatric diagnoses. The applicant says she suffers from an adjustment disorder. We disagree. We are persuaded by the evidence of Dr Reddan in particular that Ms O’Neill suffered from an adjustment disorder but that had ceased in 2001. Dr Reddan said the applicant’s lifestyle in particular indicated she was not depressed, albeit that she may have been unhappy. We prefer Dr Reddan’s evidence over that of Mr de Laurence in particular in light of her superior knowledge of DSM-IV. She was also more obviously disinterested in her approach to the applicant. Mr de Laurence appeared to act as an advocate for his patient.

26.     Dr Reddan also rejected a diagnosis of chronic pain syndrome. She said the diagnostic criteria were not satisfied. After hearing her explanation of the diagnostic criteria and considering all of the evidence, we accept her view. Dr Reddan also speculated about whether the applicant suffered from a somatiform disorder. Dr Reddan was not prepared to make a diagnosis, but added that if a diagnosis were to be made it would have commenced some time ago. That means the condition could not be related to the applicant’s workplace accident in any event. Dr Reddan suggests the applicant is able to return to work.

conclusion

27.     The applicant can only succeed in her various claims if the Tribunal can be satisfied her conditions are attributable to her work: s 14 SRC Act. While we accept the applicant sustained an injury to her shoulder at work in 1998, the evidence does not support a finding that she continues to suffer from the effects of that injury, or from any sequellae. It is not clear what ails her now, but the evidence suggests her ailments are not related to her employment. It follows her employer is not liable under the SRC Act. The decisions under review are therefore affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Dates of Hearing  22-23 November 2005
Date of Decision  3 February 2006
The applicant was represented by Mr Kent of counsel.
The respondent was represented by Mr Clark of counsel.