Paulo and Comcare
[2008] AATA 955
•27 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 955
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2006/1605 and 2007/3525
GENERAL ADMINISTRATIVE DIVISION Re CECILIA PAULO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M.E.C Thorpe, MemberDate27 October 2008
PlaceSydney
Decision The Decisions under review are set aside and these matters remitted to the Respondent with directions that the Applicant is entitled to the payment of compensation pursuant to Part II of the Safety, Rehabilitation and CompensationAct 1988 in accordance with these reasons.
The Respondent is to pay the Applicants costs unless within 14 days from today’s date the Respondent requests the Tribunal to hear further submissions regarding costs.
...................[sgd] ...........................
M D Allen
Presiding Member
CATCHWORDS
WORKERS COMPENSATION: whether Applicants cervical spondylosis with spinal cord compression was idiopathic or contributed to in a material degree by her employment – interpretation of treating surgeons reports when that specialist medical practitioner not called – decision denying liability set aside
…
LEGISLATION:
Safety, Rehabilitation and Compensation Act 1988: s.4. Part II
…
CASE LAW
Comcare v Canute (2005) 148 FCR 232
Johnston v The Commonwealth (1982) 43 ALR 559
…
REASONS FOR DECISION
Senior Member M D Allen
Dr. M.E.C Thorpe, Member1. In these proceedings there were two matters before the Tribunal. The first (Matter No. 2006/1605) was whether the Applicant was entitled to compensation for the injury described as “displacement of cervical intevertebral disc and / or neck spasm”. The second matter (No 2007/3525) was whether the Applicant was entitled to any payment pursuant to Sections 24 and 27 Safety, Rehabilitation and Compensation Act 1988 for Permanent Impairment due to the claimed Injury.
2. There is no doubt that the Applicant suffered a C5/6 disc herniation resulting in severe spinal cord compression. This was relieved by a surgical intervention being an anterior cervical decompression and fusion at C5/6.
3. As we see it, the issue for this Tribunal was whether the Applicants employment at Air Services Australia made a material contribution to her disc protrusion. At the outset it was agreed between the parties that the Applicants current impairment was at 28% points as per Table 9.15 in the Comcare Guide to the Assessment of the Degree of Permanent Impairment 2nd ed.
4. The Applicant commenced employment with Air Services Australia in 2002 as an Administrative Assistant. Her duties involved a considerable amount of keyboard work and also speaking to other Air Services Australia offices by telephone. Some of these telephone conversations could last up to 1 hour. While speaking on the telephone the Applicant also had to type, therefore she resorted to holding the telephone by positioning it between her shoulder and her neck.
5. The telephone was a normal handset and had no device to assist her to hold it in the manner described.
6. The Applicant began to develop neck and shoulder pain. Originally she thought that this was tension as her job was at times very stressful; for example at times there were conflicting deadlines.
7. She also recalled that cradling the telephone became painful particularly when she wanted to bring her head back up after finishing a conversation on the telephone.
8. She consulted her then General Practitioner, Dr Nicola, and that medical practitioner sent her for x-rays and a CT scan in 2003. She also commenced taking Voltaren and Neurofen but not continuously.
9. Early in 2004 the Applicant and her husband moved to the coast south of Sydney. She therefore consulted a new GP, a Dr Finlay. From August 2003 to February 2004 she could identify her pain as being a pain in the neck plus she recalls waking at night with pains in her arms.
10. Throughout 2004 the Applicant continued to see her GP and take analgesics. The pain became more intense and she had difficulty on more than one occasion bringing her neck to an upright position after cradling the telephone.
11. In late 2004 the Applicant became pregnant and took maternity leave in March 2005. Her son was born in April 2005.
12. In early 2005 after leaving work she had what in evidence she termed a “flare up” of pain and she was referred by her GP to Neurosurgeon Dr. Brennan who diagnosed a large central disc herniation at C5/6 which was producing reasonably significant spinal cord compression. Eventually after a series of consultations she underwent surgery at the hands of Dr. Brennan for an anterior cervical decompression and fusion at C5/6.
13. Although the surgery has been successful in decompressing and stabilising the spinal cord it has not relieved the Applicants neck pain. This is a result Dr. Brennan pointed out to the Applicant was likely although he had hoped it might alleviate pain.
14. The Applicant has not returned to work after maternity leave as she is of the opinion she could not cope. In the interim, Air Services Australia, following a report from Dr. Couch, Occupational Physician, terminated her employment on the grounds that she was medically unfit to return to work and would remain that way for the foreseeable future.
15. Cross examined in these proceedings about her ability to undertake employment the Applicant stated that she had applied for particular jobs but had not taken them up as when the duties had been more particularly explained to her she realised that she would be unable to cope.
16. Originally the Applicant implicated the use of non ergonomic furniture as the cause of her incapacity. For example in her compensation claim of 18 September 2005 she stated in an annexure to that claim document that the chain of events that led to her injury or illness was “working at an ergonomically poor workstation”.
17. That the Applicant was required to use unsuitable equipment is corroborated in the Workplace Assessment Report provided by CRS Australia dated 28 October 2005. In that report its author states:
“ As discussed in the work station description, the current chair is not an ergonomic office chair, and is therefore not suitable for use at a computer work station”
The report also recommended that the Applicant be provided with a headset for telephone calls.
18. In his report of 17 May 2006, Occupational Physician Dr Couch states:
“ the chair ( a non-ergonomic conference style reclining chair with fixed arms) was definitely inappropriate”
19. The Applicant has now implicated the manner in which she held the telephone, namely cradled against her neck and the length of time for which she was required to hold the telephone in this position, as the cause of her injury.
20. We find that the Applicant did not appreciate that the manner in which she held the telephone and the length of time for which she held it whilst performing her duties was cause of the aggravation of her prolapsed disc until this was suggested to her by Dr. Ganora.
21. We find nothing strange or adverse to the Applicant in this conclusion. It is by no means uncommon for a medical practitioner to suggest to a patient that the cause of their injury or disease is some factor which hitherto they had not themselves considered.
22. The Applicants evidence was that she spent lengthy periods on the telephone and at least once a week she spent up to 1 hour continually cradling the telephone in her neck whilst speaking on the telephone and typing.
23. Corroboration is found for the Applicants evidence in the statement of her supervisor Mr. Swain. In that statement he says:
“n) It is fair to say that Cecilia spent a considerable amount of time on the phone, sometimes this could have been up to an hour for one call, Depending on the workload and activity, Cecilia may have been on the phone for a total of half a working day now and then. It is impossible to give a good estimate of the regularity this would have occurred as it varied from day to day.
o) I understand Cecilia told a doctor that she frequently cradled the telephone headset onto her left shoulder against the side of her neck while writing or performing keyboard data entry activities while on the telephone. That is my recall of the situation. It was not a case of her simply chatting away.
p) …(Cecilia also apparently told a doctor that on completion of the call, her neck felt cramped and stuck, causing her to occasionally release her neck cramp with her hands and that she performed this activity from the beginning of her employment and it became a more frequent task by the middle of 2003. While I do not remember seeing Cecilia act this way,) she certainly did mention having a stiff or sore neck at times, for which one of the Sales guys (Nick Yates) used to sometimes give her a short neck massage.”
24. Mr. Swain also added that the Applicant was the type of person who did not make a fuss about things and that she used her flex-time and sick leave on account of her symptoms amounting to 1 to 2 days off every 1 to 2 months on average.
25. In his report of 8 February 2008, Dr. Ganora, a specialist in Musculoskeletal and Rehabilitation medicine stated that a CT scan of 15 August 2003 showed a minor disc bulging at C5/6 whereas a CT scan taken on 29 March 2004 showed a significant posterior disc protrusion at C5/6.
26. At page 4 of his report, Dr. Ganora pointed out that:
“Cervical disc protrusion can also occur as a spontaneous or idiopathic event, not necessarily associated with any particular provocative mechanical force on the neck. However, since your client’s practice of cradling the telephone for prolonged and repeated occasions was clearly associated with her experience of neck symptoms, I feel it must have been a definite contributing and causal factor.”
27. In evidence, Dr. Ganora pointed out that contrary to Dr. Mellick’s opinion that as the operation performed by Neurosurgeon Dr. Brennan had failed to provide “any benefit” this was evidence that the symptoms described by the Applicant were muscular in origin, the operation had not been performed to alleviate pain but to remedy spinal cord narrowing.
28. This point is also made by the treating Neurosurgeon Dr. Brennan. In reports dated 21 April 2006, 28 July 2006 and 12 December 2006 to the Applicants GP, the reason to perform surgery was stated as being to decompress the Applicants spinal cord and not really to treat the pain itself.
29. Dr. Ganora also took issue with Dr. Mellick’s emphasis on the Applicants injury being mere muscle pain pointing out that muscle pain is the most common pathway by which pain is felt.
30. Neurological Surgeon, Professor Fearnside, also took issue with Neurologist Dr. Mellick who opined that the Applicants cradling of the telephone for extended periods would only lead to muscle pain. As Professor Fearnside stated there is evidence that repetitive loading even if at a low level can cause spinal disc injury.
31. As Professor Fearnside stated in his report of 19 March 2007, the Applicants employment contributed to her C5/6 disc protrusion and subsequent requirement for surgery in a material degree.
32. Further, both in his report of 23 August 2007, and in evidence, Professor Fearnside opined that the structural injury (to the C5/6 disc) would continue after cessation of employment.
33. Dr. Matheson is a Neurosurgeon who reported to the Respondents solicitors. In cross examination he conceded that an already damaged disc could conceivably be made worse by activities carried out, such as those carried out by the Applicant, but was not prepared to say that just cradling a telephone would make the condition worse.
34. Although Dr. Matheson, again contrary to Dr. Mellick, opined that the Applicants disc protrusion had become worse between 2003 and 2004 he maintained that the Applicant had suffered a spontaneous disc bulge unrelated to her work, and that such disc bulges were “a disease of young people”.
35. Questioned by the Tribunal, Dr. Matheson stated that if the Applicant had been his patient he would not have carried out the surgery performed by Dr. Brennan. Dr. Matheson was the only medical practitioner in these proceedings to express that opinion.
36. Dr. Mellick sought support for his opinion that the Applicants pain was muscular in origin in the reports of treating surgeon Dr. Brennan, in particular Dr. Brennan’s operation report.
37. Dr. Brennan was not called in these proceedings however his reports are in evidence and are, despite Dr. Mellick’s interpretations, quite clear and we find the best evidence of what Dr. Brennan’s opinions were and what he sought to achieve by operating upon the Applicant are in his own language in the reports authored by him.
38. Thus for Dr. Mellick to state “there was no aetiological connection between the disc bulge and the compression operation” is incorrect.
39. In his report of 21 April 2006, Dr. Brennan states unequivocally:
“ The MRI scan reveals a large central disc herniation which is producing reasonably significant spinal cord compression”
40. Prior to undergoing her cervical decompression and fusion the Applicant sought a second opinion from Neurosurgeon Dr. Bentivoglio at St. Vincents Clinic. In his report of 31 August 2006 Dr. Bentivoglio opined:
“Her MRI scan shows a large central C5 – C6 disc prolapse causing significant cord displacement and cord compression”.
41. Dr. Bentivoglio concluded his report by expressing his agreement with the opinions regarding the necessity for surgery expressed by Dr. Brennan.
42. In his report of 17 May 2006, Occupational Physician Dr Couch states at page 6 thereof:
“CT Scan – Cervical Spine (August 2005) and an MRI Scan (January 2006): Showed a definition protrusion of the C5/6 disc, narrowing of the spinal canal and focally compressing the spinal cord…”.
43. Given the reports of Dr’s Brennan and Bentivoglio and Couch, plus the advantage Dr. Brennan has as the treating surgeon, we find that Dr. Mellick’s opinions regarding aetiology are misconceived.
44. That Dr. Mellick is in error regarding such a fundamental fact as the cause for the Applicants surgery makes us doubt the totality of his evidence.
45. Although the Applicant’s treating surgeon Dr. Brennan had not expressed any opinion regarding causation, stating that he would defer to the experts in occupational medicine.
46. Dr. Couch, a specialist in Occupational medicine, furnished a report dated 17 May 2006 to Air Services Australia regarding the Applicants ability to return to work. Dr. Couch did not offer an opinion regarding the cause of the Applicants disc protrusion but did state that her neck symptoms varied with postural and load factors.
47. After leaving work in May 2005, the Applicant experienced severe neck pain and her then GP performed two spinal manipulations. There is no direct evidence that these manipulations had any effect on the Applicants disc protrusion. In fact she said that following the manipulations her symptoms temporarily improved. As Dr. Ganora pointed out current teaching is to strongly disapprove of spinal manipulation. Nevertheless, it was treatment undergone in good faith and in reliance upon the opinion of a medical practitioner.
48. If it were to be argued that the manipulations in some way were responsible for the Applicant’s experiencing severe neck pain in July 2005 we would require further and better evidence to reach this conclusion.
49. What we do find is that the Applicant began to develop neck pain whilst carrying out her duties at Air Services Australia. Initially she blamed the use of non ergonomic furniture for this but later after consulting Dr. Ganora the cause of her pain was said the be the necessity of her having to hold a telephone between her shoulder and neck whilst typing. At times the telephone was held in this position for extended periods.
50. The actual cause of the Applicants disc bulge at C5/6 is unknown. There are statements by various medical specialists in this matter that bulges can be spontaneous.
51. In the opinion of Professor Fearnside and Dr. Ganora, the loading placed upon the Applicants cervical spine by the manner in which she held the telephone whilst at work and the duration for which she had to hold the telephone at times materially contributed to the severity of the disc prolapse.
52. Whereas the opinions of Dr’s Matheson and Mellick are to the contrary, we reject their opinions. Dr. Matheson conceded the possibility of an already diseased disc being made worse by being placed in certain positions. Although Dr. Matheson regarded cradling a telephone as taking the weight off the neck he did not discuss, as did Professor Fearnside, that holding the neck in the position described would cause extreme lateral flexion. If extreme lateral flexion is caused then consistent with Dr. Matheson’s concession in cross examination, positioning could conceivably make an already damaged disc worse.
53. As for Dr. Mellick, we have stated above our reasons for rejecting his evidence.
54. That the Applicant still experienced symptoms after ceasing work is explained by Professor Fearnside namely that any structural injury would continue.
55. The term “material contribution” was examined by the majority of the Full Court of the Federal Court in Comcare v Canute [2005] 148 FCR 232. At 148 FCR p249, the majority referred to the second reading speech to the Commonwealth Employees, Rehabilitation and Compensation Bill 1988 and stated:
“…the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor…content must be given to the word material…”
56. Given the evidence of Dr. Ganora and Professor Fearnside, we are satisfied that the Applicant sustained a disc prolapse at C5/6 and that this ailment was aggravated in the sense of being made worse then it otherwise would have been cf Johnston v The Commonwealth (1982) 43 ALR 559 at 564. We are further satisfied that because of the aggravation work made a material contribution to the ultimate disease suffered by the Applicant, which disease included spinal cord compression.
57. The decisions under review will be set aside and these matters remitted to the Respondent with directions that the Applicant is entitled to the payment of compensation pursuant to Part II of the SRC Act 1988 in accordance with these reasons.
58. The Respondent is to pay the Applicants costs unless within 14 days from today’s date the Respondent requests the Tribunal to hear further submissions regarding costs.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr. M.E.C Thorpe, Member
Signed: .............[sgd]...................................................................
AssociateDate/s of Hearing 8, 9, 10 October 2008
Date of Decision 27 October 2008
Counsel for the Applicant Mr. de Meyrick
Solicitor for the Applicant Turner Freeman Lawyers
Counsel for the Respondent Mr. B Kelly
Solicitor for the Respondent Sparke Helmore
0
2
0