Scarpello and Australian Postal Corporation (Compensation)
[2017] AATA 1410
•6 September 2017
Scarpello and Australian Postal Corporation (Compensation) [2017] AATA 1410 (6 September 2017)
Division:GENERAL DIVISION
File Number: 2015/0658
Re:Silvana Scarpello
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:6 September 2017
Place:Melbourne
The Tribunal varies the decision under review with respect to the diagnosis of the claimed employment related conditions to reflect the medical evidence and opinion but otherwise affirms the decision under review.
..........................[sgd]..............................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – postal delivery officer – right arm pain and paraesthesia – C6/7 cervical disc prolapse – questionable radiculopathy – questionable right elbow extensor tendonitis – right shoulder pathology – divergent expert opinion – symptomatic improvement with the passage of time – return to work at greater hours than pre-injury – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Postal Corporation v Bessey [2001] FCA 266
Carney v Newton (2006) TASSC 4
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Federal Broom Co Pty Ltd and Semlitch (1964) 110 CLR 626
Kelman and Prosegur Australia Pty Ltd (2014) 145 ALD 692
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468REASONS FOR DECISION
Miss E A Shanahan, Member
6 September 2017
Ms Scarpello has been employed as a postal delivery officer with Australia Post since March 2008. On 25 March 2013 she developed pain and paraesthesia in the right forearm and wrist while sorting and throwing off sequence mail. Liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) while originally denied was accepted for right shoulder sub-acromial bursitis, right trapezius muscle tenderness and mild right lateral epicondylitis on 31 July 2013. Following further investigation and medical opinion, liability as above was ceased and by a reviewable decision dated 17 July 2014, s 14 liability and s 16 and s 19 compensation were accepted in respect of neck and right arm symptoms arising from an aggravation pre‑existing disc prolapse at C6/7 level.
On 12 November 2014 the Australian Postal Corporation (the respondent) ceased liability pursuant to s 16 and s 19 of the SRC Act. This determination was affirmed on 16 December 2014. On 12 February 2015 Ms Scarpello lodged her application for review of the decision by the General Division of the Administrative Appeals Tribunal.
At the hearing conducted over three days, the first being 24 May 2016 and second and third being in late November 2016 Ms Scarpello was represented by Mr Mark Carey of counsel, instructed by Maurice Blackburn, solicitors. The respondent was represented by Mr Peter Woulfe instructed by Ms Leanne Kellett, litigation officer of Australia Post. The Tribunal was provided with the documentation filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and both parties tendered further reports and documents, a list of which is appended to this decision. Ms Scarpello, Mr Michael Khan and Mr Vasudeva Pai gave evidence in person.
BACKGROUND TO THE APPLICATION
Ms Scarpello commenced employment as a postal delivery officer with Australia Post on or about 12 March 2008 and after achieving permanent status worked from the Mount Waverley Delivery Centre.
On 30 December 2009, Ms Scarpello was involved in a minor collision with a motor vehicle. She had been travelling at a speed she considered to be about 15 kilometres per hour, was knocked off the motorbike and suffered a laceration to her right shin. She was seen by Dr Paul Malloy on the same day. She required the application of steri-strips and was given a tetanus booster shot. Workers’ compensation was claimed. She was off work for two days.
In her statement of 28 October 2016, Ms Scarpello said she started having neck pain some weeks after this accident and had first noticed the pain while delivering mail on the motorbike. She has retrospectively provided information that her neck pain became progressively worse in 2011 and 2012. Her incident report of 25 March 2013 did not mention any past neck pain.
On 25 March 2013, Ms Scarpello experienced pain in her right upper limb while sorting mail preparatory to her delivery round. In the incident report completed on that date her symptoms were described as soreness in the right forearm, a feeling of weakness, numbness, tightness, tingling from the shoulders down to my wrist. Ms Scarpello had attributed her symptoms to the repetitive high speed task of sorting mail and also to riding the motorbike to deliver mail without breaks in either activity. She was seen by a facility nominated doctor, Dr Nguyen, who made a diagnosis of musculoskeletal pain and restricted her activities to working below shoulder height, no keyboarding, grasping or lifting more than 10 kilograms. Physiotherapy was recommended and the motorbike riding reduced from five to two hours per day.
Ms Scarpello lodged an application for rehabilitation and compensation on 10 April 2013. She described her symptoms as pain and soreness in the forearm when throwing off but also included pain in the lower back. An appointment was arranged for her to see Dr Sam Soliman, an occupational health physician, who subsequently made a diagnosis of trapezius muscle strain on the right side. He advised avoidance of repetitive movement of the right upper limb and forceful gripping and imposed a lifting restriction of eight kilograms.
In a more detailed report dated 29 April 2013 Dr Soliman described what he referred to as hypersensitivity on superficial palpation of her neck, both trapezius muscles, both shoulders and the right arm. Active movement of the arms were limited in all directions to 50 per cent of normal. Dr Soliman was uncertain of the cause of Ms Scarpello’s pain and assumed that it could be trapezius muscle strain. It was noted that Ms Scarpello attended a gymnasium four times a week and had done so the day before this consultation. Ms Scarpello said she had undertaken an aerobic session, core muscle exercises, some push-ups and sit-ups and exercise for her neck. Dr Soliman did note that Ms Scarpello believed there was something wrong with her neck. Physiotherapy was recommended for another four to six sessions. Ms Scarpello was found fit to continue her fulltime normal hours but with reduced hours of motorcycle delivery.
On 15 May 2013 Ms Scarpello underwent an MRI of her cervical spine. This was reported as showing mild disc signal abnormality throughout the cervical spine, early unco-vertebral change at several levels being greatest at C4/5 and C6/7 but no high grade foraminal stenosis. There was cord contact by disc material at C4/5 and C6/7. These were considered to be early mechanical features.
Ms Scarpello saw Dr Barry Oakes, orthopaedic physician in May 2013. He made a diagnosis of right tennis elbow (lateral epicondylitis), right partial rupture of C4/5 and C6/7 discs and bilateral but predominantly right sided trapezius syndrome which he attributed to repetitive lifting. He opined that it would take two to three months for these symptoms to settle. He recommended that light duties continue.
Dr Li, rheumatologist saw Ms Scarpello early May 2013 and recommended the MRI of Ms Scarpello’s cervical spine. He subsequently made a diagnosis of right sub-acromial bursitis based on the ultrasound findings and mild degenerative changes of the cervical spine. He described muscular pain of the neck, scapula and right upper limb with features of pain amplification and considered her symptomatology to be consistent with and attributable to her work duties.
Ms Scarpello was seen by Dr Ken Muirden, rheumatologist, who provided a report of 23 July 2013. Dr Muirden made a diagnosis of right shoulder sub-acromial bursitis, a right trapezius muscle tenderness problem and mild right lateral epicondylitis. He opined that the repetitive work she had performed had triggered these symptoms. In his opinion the MRI of Ms Scarpello’s cervical spine showed only mild disc signal abnormalities with no evidence of major pathology. It was recommended that the restrictions already in place continue for a further four to six weeks and that simple analgesia and a continuation of her gym work was the only treatment required.
On 25 March 2014, Dr Barry Oakes reported that Ms Scarpello had consulted him with an exacerbation of her bilateral trapezius muscle inflammation which she had attributed to the introduction of new bikes. These required her to lean to the left repetitively to deliver mail. The right epicondylitis had settled and was assessed as being approximately 95 per cent recovered. He recommended that the two hours daily maximum bike work she was undertaking should be reduced to zero. Remedial massage was recommended.
Throughout this period and continuing into April and May 2014, Dr Ignatius Cannizzo, Ms Scarpello’s general practitioner, provided certificates of capacity limiting her time of hours on bike to two hours per day with further reduction depending on her response.
On the request of the respondent Ms Scarpello was assessed by Mr Ronald Haig orthopaedic surgeon who saw her on 23 April 2014. Mr Haig viewed the MRI of Ms Scarpello’s cervical spine and concluded that she had a prolapsed cervical disc to the right of the midline at the C6/7 level which accounted for her pain in and around the right shoulder and the right arm. In his opinion the radiologist had overlooked this prolapse as it was superimposed on a broad-based disc bulge. As a result Mr Haig dismissed the diagnosis of right shoulder sub-acromial bursitis, right trapezius muscle tenderness and mild right lateral epicondylitis as symptoms in these areas were all well accounted for by the prolapsed disc. He advised that a repeat cervical spine MRI be performed, a neurosurgical opinion be obtained and that the cervical spine pathology was unrelated to Ms Scarpello’s work. Mr Haig confirmed his opinion in a later report of 22 May 2014.
Ms Scarpello continued to receive medical certificates restricting her activities, in particular her bike duties, throughout 2014, the last being supplied on 10 November 2014.
Based on Mr Haig’s report a delegate of Australian Postal Corporation reconsidered the decision of 3 July 2014 and denied ongoing liability for the original diagnoses relating to the right shoulder, right trapezius muscle and right elbow. This was based on Mr Haig’s interpretation of the MRI finding of a disc prolapse at C6/7. As a result Ms Scarpello’s compensation payments under s 16 and s 19 of the SRC Act were accepted and reinstated but her previously approved compensation for massage treatments were not.
It would appear that Ms Scarpello took recreational leave for a period of six weeks between mid-July and August 27th.
On 7 November 2014 a repeat MRI of her cervical spine was performed. This revealed a broad based disc bulge at C6/7 with actual disc protrusion in the right paracentral area said to probably compromise the exiting right C7 nerve root. Otherwise the examination was said to be normal.
At the request of the respondent Mr Haig reassessed Ms Scarpello on 17 October 2014. It was noted that her six week holiday in Turkey and Italy had been beneficial as her right upper limb and neck symptoms had improved. However, since returning to work she had again experienced pain in the lower back with spasms in the right shoulder. She considered that her right elbow was inflamed and hurting and her thoracic spine was also inflamed. When seen she was about to return to work, working five days a week on light indoor duties. At the time of this reassessment a repeat MRI of the cervical spine had not been performed. On examination Ms Scarpello exhibited tenderness in the cervical para-spinal and trapezius muscles, tenderness around the acromion of the right shoulder and tenderness over the lateral epicondyle of the right elbow.
Mr Haig reviewed the recent x-rays and an ultrasound of the right shoulder. The x-ray was normal but the ultrasound showed sub-acromial bursal thickening and some impingement. He recommended intra-articular steroid injection to the right shoulder. X-ray of the right elbow was normal. He again urged repeat MRI of the cervical spine and reiterated his previous opinions.
Dr Robert McKenzie, sports physician, provided a report dated 17 November 2014, he having ordered the repeat MRI of Ms Scarpello’s cervical spine. He stated that her neck pain had been aggravated by her work. Dr McKenzie referred Ms Scarpello to Mr Myron Rogers, neurosurgeon, who confirmed the presence of a right paracentral disc prolapse at C6/7 extending into the C7 nerve root foramen. Mr Rogers opined that there were two options open to Ms Scarpello, namely to wait and see if the symptoms resolved or to proceed to surgery. The latter in his opinion was likely to improve her neck pain in the order of 65 to 70 per cent. On examination he did not find any evidence of a radiculopathy. Mr Rogers did not comment on whether the cervical spine lesion was work related.
Based on the contents of Mr Haig’s report of 24 October 2014, the respondent determined to give notice of intention to cease compensation payments. This was confirmed by the reconsideration delegate on 16 December 2014 and the parties were advised on 18 December 2014.
EVIDENCE BEFORE THE TRIBUNAL
In her evidence before the Tribunal Ms Scarpello confirmed that her normal working hours had been 40 hours and 38 minutes per week prior to her injury with 36 hours and 45 minutes being ordinary time and the extra hours reflecting overtime. Since November 2015, she has been working her normal hours of 40 hours and 38 minutes and had in fact exceeded these hours on several occasions. While she could not recall exactly how much she had received in the form of weekly payments for time off work she did not challenge the figures produced by the respondent. She confirmed that her major symptom was pain in her neck to the right of the mid-line and that the pain in her neck and forearm had been aggravated by her work requiring motorcycle riding. The repetitive duties of sequencing mail if undertaken for more than two hours aggravated the pain. In contrast she had not noticed any aggravation of her symptoms arising from her household duties.
Ms Scarpello had a motorbike for her personal use but stopped riding it, other than for very short distances in order to keep the engine in good condition and the battery fully charged. She had found that wearing a helmet increased her neck pain. She sold her motorbike in 2015.
Ms Scarpello said that she had been pain free except for a mild right shoulder ache since March of 2015. She was now capable of doing a full range of sorting at all heights and had no restrictions placed on her activities. She continued to have restrictions on her hours of motorbike deliveries.
In relation to the surveillance video Ms Scarpello agreed that she had performed the actions seen in the footage.
In cross-examination, Mr Woulfe took Ms Scarpello through all of her medical examinations and reports confirming that the various histories given, albeit varying in content, were correct. Ms Scarpello was asked to explain her use of the word inflamed in relation to her thoracic spine and her right elbow. This she said was based on her reading of a book on human anatomy and her study of the muscles of the human body. She denied she had any pain in her upper arm and indicated that all the pain she had experienced had been on the radial aspect of her forearm. Ms Scarpello agreed that she had kept a diary of her symptoms commencing at the time of lodgement of her claim for compensation. Ms Scarpello could not recall all the details of every consultation and in particular those with Dr Li including whether she had asked him to provide only those letters that supported her claim.
Ms Scarpello refuted Mr Woulfe’s suggestion that she had doctor shopped, there being evidence from the summonsed documents that she had endeavoured to see several general practitioners. Ms Scarpello explained that she had tried to consult other general practitioners because her general practitioner, Dr Canizzo, only saw patients in the mornings which meant she would have to take time off from work to see him.
Mr Woulfe also challenged Ms Scarpello as to whether she had had neck pain following the motor vehicle accident of late December 2009. He pointed out there were no entries regarding neck pain in her clinical records until she saw Mr Khan. Despite the lack of entries and the fact there was no traumatic incident on 25 March 2013, Ms Scarpello maintained that she had experienced neck pain while delivering mail on the motorbike prior to that date. However she regarded her major symptom in March 2013 had been pain in her forearm, a new symptom.
Ms Scarpello’s treating doctors, Dr Barry Oakes and Dr McKenzie, were to be called to give evidence. Unfortunately both had been taken ill and were in hospital, one in Melbourne and the other in London. As a result Ms Scarpello’s supporting medical opinions were limited to that of Mr Michael Khan.
Mr Michael Khan orthopaedic surgeon
Mr Khan saw Ms Scarpello on two occasions, the first being 9 June 2015 and the second on 30 June 2016 (Exhibit A3 and A4). On the first occasion Mr Khan obtained a history of the motorbike accident of 30 December 2009, Ms Scarpello giving him more details than previously reported, stating that she sustained a severe jerking injury to her neck and head. He also obtained a detailed history of her work duties and that with an increase in the amount and weight of mail deliveries from April 2012 she had noted discomfort in the form of an ache in her cervical and lumbar regions.
According to the history given by Ms Scarpello, while sorting mail on 23 March 2013, she had developed pain and discomfort in the right forearm and wrist and also low back pain. These symptoms became much worse on 25 March while again sorting mail and in addition to the discomfort she developed pins and needles. An incident report was completed after she notified her team leader of her symptoms.
Mr Khan recorded the subsequent consultations with various doctors, the investigations and their results. On examination he found what he described as a reasonably good range of cervical spine movement, a good range of thoraco-lumbar movement, normal straight leg raising, normal findings on examination of both shoulders and the right elbow except for some mild tenderness over the lateral epicondyle. There was reduced grip strength in the right hand compared to the left.
Mr Khan made a diagnosis of discogenic injury at C6/7 level with musculoskeletal and ligamentous injury to her right shoulder blade and shoulder and referred symptoms of brachial neuralgia in the right forearm. He considered her symptomatology to be due to aggravation of a pre-existing mild disc degeneration and concluded that her employment had been a significant contributing factor to the development of these conditions. He also recorded the presence of non-organic symptoms which he attributed to her frustration in dealing with her employer.
Mr Khan estimated Ms Scarpello’s whole person impairment (WPI) at the time of his examination at eight per cent. At review 12 months later and following the viewing of surveillance material, Mr Khan considered that she had recovered well from her back condition and had no symptoms of lateral epicondylitis of the elbow or any right shoulder problems. The radiculopathy in the right arm had resolved but he considered it possible that this could flare up again with repetitive strenuous activity.
At the time of reassessment he considered her fit for her present duties which then amounted to working full time and involved working at the mail centre, frequently relieving other workers, sorting mail and on occasion delivering mail on foot. She was attending gymnasium three to four times per week. It is noted that on physical examination the strength in her right hand had increased considerably and was now almost exactly the same as that of the left.
In cross-examination considerable questioning relating to dermatomal representation of nerve root injuries ensued without a clear resolution. The Tribunal Member is familiar with the anatomical dermatomal representations in the upper limb.
Mr Khan said he regarded the motor vehicle accident involving Ms Scarpello on her motor cycle delivery vehicle on 30 December 2009 irrelevant to the development of her symptoms in 2013.
On specific questioning Mr Khan agreed that Ms Scarpello would have experienced pain whether at work or not, her pain being activity based. While he maintained that work had aggravated the degenerative process he said it was possible that her symptoms and signs would be the same had she not undertaken any work or employment with Australia Post. Despite these hypothetical issues and the answers given, Mr Khan remained of the opinion that Ms Scarpello’s occupation as a mail delivery officer had made a significant contribution to the development of her C6/7 disc protrusion and C7 radiculopathy.
Mr Khan confirmed his written opinion that Ms Scarpello when he last saw her had been fit to resume full time work. Further treatment would be attracted only if she developed a recurrence of her radiculopathy symptoms. Mr Khan agreed with Mr Woulfe’s proposition that the incapacity following the events of 25 March 2013 would have been expected to last for a period of six months.
In re-examination Mr Carey repeated some of the questions asked by Mr Woulfe in order to clarify Mr Khan’s responses. The Tribunal permitted such questioning as some of Mr Khan’s responses appeared to be conflicting. Mr Khan stated that while Ms Scarpello’s symptoms had resolved in a period of six months, the underlying acceleration of the degenerative process had continued in that it was still present.
In an effort to clarify the issue, the Tribunal asked Mr Khan further questions as to the history of the onset of symptoms on 25 March 2013, these having been given to various doctors as pins and needles (paraesthesia) from the elbow to the wrist with some discomfit in her shoulder and not until some considerable time later did she complain of pain in the neck. I asked Mr Khan to explain how this pain in the right arm related to her neck pathology. He described the initial pain as being a neuralgia which he defined as a poorly localised sensory component of the C7 nerve root that may not be accompanied by coexistent localised neck pain.
Mr Vasuveda Pai, orthopaedic surgeon
Mr Pai provided four reports at the request of the respondent. Three of these were tendered into evidence. The report of 21 August 2015 was the initial and most detailed assessment and the other three reports were responses to specific questions posed by the respondent.
When first seen on 24 June 2015 Ms Scarpello was working six hours a day on light duties. She had not been involved in motorbike riding since September 2013. The history obtained by Mr Pai was that on 25 March 2013 at approximately 6.30am and while sorting sequence mail, Ms Scarpello noted pain, numbness and a tingling sensation from her right shoulder along the postero-lateral aspect of the arm to the forearm and the fingers. She had reported her symptoms to a team leader and an incident report form was completed. Ms Scarpello had said she had difficulty obtaining an appointment with a doctor and did not see her general practitioner until two weeks after the event. No specific diagnosis had then been made.
Mr Pai recorded that Dr Soliman had, in April 2013, made a diagnosis of muscle strain of the right trapezius. Ms Scarpello reported that she was subsequently seen by Dr Li rheumatologist and Dr Barry Oakes orthopaedic physician with Dr Soliman and Dr Oakes making a diagnosis of right lateral epicondylitis and trapezius muscle syndrome and Dr Oakes in addition diagnosing right mid-cervical pain with disc pathology, attributed to repetitive lifting at work. Ms Scarpello informed Mr Pai that she had improved while on light duties precluding motorbike duties with lifting restricted to less than 12 kilograms. She said she was feeling better when she was commenced a gradual return to work programme in September 2013 and had returned to delivering mail by motorbike for one hour per day. In early 2014 this was increased to two and a half hours per day.
Ms Scarpello told Mr Pai that in June 2014 her symptoms had worsened; she was off work for a period of two weeks and then recommenced light duties. She then had six weeks holiday overseas and on return was feeling much better. On resuming her motorbike deliveries and some deliveries on foot, she again started to experience pain. This she had treated with turmeric, fish oil and magnesium, some massage and chiropractic sessions.
Mr Pai summarised the investigations, opinions and treatment undertaken or recommended by Dr Soliman, Dr Oakes, Dr Muirden, Dr Li, Dr McKenzie, Dr Canizzo and Mr Haig. He also reviewed the imaging studies which he believed essentially ruled out a shoulder or elbow cause of the symptoms as the MRI had shown C6/7 disc protrusion with C7 nerve root compromise. At the of time her appointment with Mr Pai, Ms Scarpello estimated her level of pain to be three out of ten on the visual analogue scale. She was exercising on a regular basis at a gymnasium. Her weight lifting restriction had increased to 15 kilograms and as previously stated she was working six hours per day, five days per week, mainly undertaking sequential sorting.
Mr Pai’s physical examination of Ms Scarpello was normal except for a slight decrease in the range of cervical movement, discomfort in the right shoulder on abduction between 170 and 180 degrees and mild discomfort over the extensor origin from the lateral epicondyle of the right elbow. Neurological examination was reported as normal.
Mr Pai had made the diagnosis of C6/7 disc protrusion with compromise of the C7 nerve root giving rise to radicular symptoms. At the time of his examination he found no evidence of nerve root compromise and Ms Scarpello’s shoulder and elbow findings on examination were considered to be minor. He concluded that the radiculopathy had resolved and given the absence of any high velocity injury event or direct trauma to the neck, Ms Scarpello’s disc lesion and radiculopathy fell into that group of individuals for whom no identifiable cause is apparent. This group accounted for 62 per cent of persons with radicular pain according to various articles he had consulted. In addition he found no evidence that activities such as sorting mail or wearing a helmet when riding a motorbike increased the risk. As a result he had concluded that Ms Scarpello’s employment had not made any significant contribution to the disc protrusion. Surgical intervention was not indicated and Mr Pai regarded the long term prognosis to be good. (Exhibit R5)
Mr Pai’s report of 21 October 2016 was in response to his viewing of a surveillance video which did not affect his opinion in any way. His report of 28 October 2016 (Exhibit R6) was to the same effect and in his last report of 22 November 2016 (Exhibit R7) he referred to the use by Dr Oakes of the term trapezius syndrome which he advised was normally grouped under nonspecific pain in accordance with the AMA Guides to the Valuation of Disease and Injury Causation. Mr Pai said he had statistically analysed thousands of patients with regards to chronicity of pain taking into account 26 different variables and had presented the results of his analysis at an international conference in China in 2015.
In his examination-in-chief and cross-examination, Mr Pai had experienced difficulty with some of the questions posed, particularly those framed in legal language as opposed to medical language and a great deal of time was spent discombobulating some of the questions. Overall his evidence was to the effect that cervical disc degeneration and protrusion was multifactorial in origin with 80 per cent of the process being degenerative resulting in loss of liquid content in the nucleus pulposus with disc desiccation and changes in the glycoproteins forming the major chemical component of the disc. Twenty per cent of the changes were attributable, in his opinion, to a combination of other factors, such as micro trauma, sporting activities and direct trauma, all of which could occur whether one was employed or not. To his knowledge there was no medical evidence of a direct correlation between work and the development of disc lesions.
Mr Pai quoted at some length an article entitled Incidents and Epidemiology of Cervical Radiculopathy in the United States Military 2000-2009 published in The Journal of Spinal Disorder Volume 25, No.1, February 2012 (United States Defence Service study). Unfortunately he did not have a copy of this article. He did however at the request of the Tribunal undertake to provide the exact citation and the Tribunal undertook to find the article from a medical library and provide it to both parties. Mr Pai also referred to the Guides to Evaluation Disease and Injury Causation [Edition No 2], published by the American Medical Association, this apparently reports the lack of any association between repeated cervical movement and the development of disc protrusion or degeneration.
Mr Pai was specifically asked about the effect of five years undertaking delivery of post on a motorbike as had been the case with Ms Scarpello between 2007 and 2013 and given she had reportedly done up to 11 hour shifts riding a motorbike on uneven ground, made and unmade footpaths, crossing streets and bumps in roads etc. Mr Pai was of the opinion that this did not contribute, although he himself had not obtained a full history of Ms Scarpello’s work duties in that five year period. He agreed that having developed signs of C7 radiculopathy in the right upper limb, such activities could thereafter produce symptoms in the form of pain and paraesthesia in the right upper limb.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
The reports of Dr Oakes and Dr McKenzie have been referred to under BACKGROUND TO THE APPLICATION. Dr Oakes provided several reports and in all his diagnosis has not changed, it being a repetitive strain right trapezius syndrome which he acknowledged was not a generally accepted medical condition, right sub-acromial bursitis involving the shoulder and the C6/7 intervertebral disc prolapse which he considered to be impacting on the sixth cervical nerve root not the seventh. While Dr Oakes had not detected any sensory loss in this dermatome he reported paraesthesia in the C6 area. On direct palpation of Ms Scarpello’s neck he considered the right upper trunk of the brachial plexus (C5/6) to be very tender.
In addition there was evidence of right lateral epicondylitis. On his most recent clinical examination on 15 June 2016 Dr Oakes considered the right lateral epicondylitis to have completely settled, as had the trapezius syndrome and the right C6 dermatome deficit. All of these conditions he attributed to her work activities, in particular the riding of the motorbike and leaning to one side repeatedly while delivering mail. He believed that the accident of 30 December 2009 was a contributory factor and highly likely to have been the incident that caused Ms Scarpello’s C6/7 disc damage. He forewarned that the symptomatology could recur in the ensuing five to 10 years and require both medical management and perhaps intervention, presumably meaning surgical intervention.
Dr McKenzie’s clinical notes were provided and he was of the same opinion as Dr Oakes. It is noted they work in the same group of sports medicine clinics. However after several attendances by Ms Scarpello and her refusal to take any medication and only use natural products he advised that he had nothing further to offer in the way of treatment.
Prior to the performance of the MRI of the cervical spine several of the doctors who had seen Ms Scarpello and made diagnoses relating to the right shoulder and the right elbow, reversed their opinions once the MRI had revealed the C6/7 disc protrusion.
RELEVANT LEGISLATION
Section 14 of the SRC Act provides for compensation for injuries, it states:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or ...
The provision of medical expenses is outlined at s 16:
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.
Note: Compensation is not payable under this subsection in relation to certain defence related claims (see Division 2A of Part XI).
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair. ...
In relation to incapacity s 19 of the SRC Act states:
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
Section 5A of the SRC Act defines injury as:
5A Definition of injury
(1)In this 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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. ...
Section 5B defines disease:
5B Definition of disease
(1)In this 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.
SUBMISSIONS
Mr Carey identified the issues before the Tribunal as being the injuries suffered, the resulting incapacity and the persistence of this incapacity. It was submitted that Ms Scarpello’s right arm and neck had been injured or pre-existing injuries had been aggravated by the nature of her work, including duties such as sorting of mail, lifting of mail tubs and had led to a lasting incapacity for work at her former level, the principle part of which was motorbike delivery of mail.
Mr Carey contended that the respondent’s approach to the claim had changed from a cessation of liability in November 2014 to two alternative arguments. The first of these was that there had never been an injury related to employment and the second that if there were some signs or symptoms of work related aggravation they had resolved within six months.
Having addressed the symptoms Mr Carey further submitted that the major injury was slowly resolving disc prolapse, persistent disc damage preventing Ms Scarpello from resuming motorbike deliveries.
There was no dispute between the experts that disc degenerative changes commence during teenage years and advance with aging at variable rates. Mr Carey urged the Tribunal to adopt Mr Khan’s opinion, that disc degeneration was multifactorial and in Ms Scarpello’s case had been accelerated in terms of this degenerative process by her employment. In addition Ms Scarpello was fearful of resuming motorbike duties to a pre‑injury level, as a graduated return to work in 2014 had led to an exacerbation of her symptoms.
Having addressed the reports of Dr Li, Dr Oakes and Mr Haig, Mr Carey submitted that Mr Pai was alone in suggesting that work had no role.
Mr Carey addressed the surveillance video showing Ms Scarpello checking her car’s tyre pressure and filling the petrol tank and concluded that these tasks bore no relationship to her postal delivery officer duties, as it was not argued that she was unable to sort mail, pickup bundles or perform a walking mail delivery round.
Given Ms Scarpello’s persisting incapacity to perform her normal duties Mr Carey contended that the decision should be set aside, the compensation payments restored and the matter remitted to the respondent to pay the arears for incapacitation and medical expenses and in accordance with such a decision that the applicant’s costs be paid by the respondent in respect of these proceedings.
Mr Woulfe for the respondent
Mr Woulfe contended that Ms Scarpello had not suffered an injury for which compensation was payable for the purposes of s 14 and while the Tribunal did not have jurisdiction to revisit the s 14 liability claim, it was appropriate to make findings of fact that undercut such a decision.
In support of this contention he cited the High Court decision in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 where the majority said:
... To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
the questions posed had been:
First, does the evidence amount, ... to an “ailment”, ...
and the third question:
... does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of the word)?
It was further submitted that there was agreement amongst the experts that the underlying condition was an ailment as far as the C6/7 disc protrusion was concerned. Therefore, it was necessary to determine whether this ailment was contributed to, to a significant degree by employment or whether an aggravation of the ailment was contributed to a significant degree by Ms Scarpello’s employment.
Mr Woulfe addressed the evidence before the Tribunal which had been summarised in Exhibit R4 and in particular the range of symptoms complained of by Ms Scarpello. She herself had stated she had inflammation in her neck, she had tender musculature in relation to the trapezius muscles and symptoms in both right shoulder and the arm. Based on the expert opinions of Mr Haig and Mr Pai it was contended that the weight of medical opinion supported the conclusion that there was no significant contribution by Ms Scarpello’s employment to her C6/7 disc prolapse, be it causative or aggravating. Mr Woulfe referred to the Federal Court decision in Australian Postal Corporation v Bessey (2001) FCA 266 where Giles J at [6] said:
It has been well settled by a series of decisions ... [and they are taken in] that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
Reference was also made to the decision in Federal Broom Co Pty Ltd and Semlitch (1964) 110 CLR 626 where Windeyer J said at page 641:
... This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all.
Mr Woulfe pointed out that this had essentially been the evidence of Mr Pai, that Ms Scarpello would have developed her symptoms regardless of her employment. Similarly in Casarotto v Australian Postal Commission (1989) 17 ALD 321, Hill J at 331 said:
... As I have already indicated one can imagine cases of acceleration of a pre-existing progressive disease where the course of the disease itself is such that the consequences of the acceleration cease to matter after a time and contribute not at all to a greater incapacity than would have arisen as a result of the normal progression of the disease...
Mr Woulfe contended that there was a gradual build-up in Ms Scarpello’s symptoms over a period of six months which was consistent with the natural progression of the underlying condition and not with a work related aggravation. The contention was further supported by the decision of the AAT in Kelman and Prosegur Australia Pty Ltd [2014] AATA 675 where the Tribunal found that Ms Kelman had not suffered a work related work aggravation and even if she had she would not be entitled to compensation for any aggravation as it did not result in incapacity or impairment.
Mr Woulfe submitted that while Mr Pai’s opinion should be preferred to that of Mr Khan, particularly as Mr Pai had made a literature search and was to provide the Tribunal with the study of the incidence of cervical disc disease with radiculopathy in the American military forces. Mr Pai had been unable to find any literature relating to the incidence of this condition in postal workers. He contended that the decision of the Supreme Court of Tasmania in Carney v Newton (2006) TASSC 4 was an authority in support of Mr Woulfe’s proposition as the Court of Appeal had adopted as correct the primary judge’s finding that in regard to such expert opinion that if they are exactly balanced, well in one respect the plaintiff hasn’t proved her case. We still have to then return a verdict, we find for the defendant.
Mr Woulfe addressed Ms Scarpello’s credibility given the variable histories she had provided to examining doctors, this being described by Dr Mathieson as patient flits around in her history. The suggestion that she had been doctor shopping to obtain support for her claim was also addressed.
Should the Tribunal find there had never been a work related injury, which would in turn lead Australia Post to revoke the s 14 decision, Mr Woulfe advised that the respondent would write off any debt that may arise in connection with a finding of no s 14 liability.
Mr Carey in response
Mr Carey stressed that the only decision before the Tribunal was that to cease liability on a particular date. Mr Carey agreed that the condition of C6/7 disc prolapse was an ailment but stressed that there was a real physiological change that progressed to such a stage where the disc was damaged in a material way and caused incapacitation for work. While degeneration of the disc was acknowledged, it was contended that further weakening and changes in the disc were accelerated and caused a permanent incapacity.
Mr Carey further submitted that Mr Pai had not been unshaken in his opinion. When under cross-examination Mr Pai was asked to look back five years prior to Ms Scarpello’s presentation on 25 March 2013 and consider her work activities, he had agreed that environmental factors had played a part but he was unable to say by how much.
Provision of the Journal Spinal Disorder Report relating to cervical radiculopathy
Mr Pai provided the Tribunal with the reference to this article and the Tribunal undertook to obtain it. Copies of the article were subsequently sent to both parties and further comment was invited. The article reported an analysis of the United States defence forces’ medical epidemiological data base relating to all service members diagnosed with cervical radiculopathy between 2000 and 2009. The demographic data so obtained was analysed in accordance with age, sex, race, rank and branch of service. Between 2000 and 2009, 24,742 individuals were diagnosed with cervical radiculopathy, giving an incidence of 1.79 per 1000 person years. Statistically significant differences were identified for those aged 40 and above who had the greatest risk of developing cervical radiculopathy. However other significant risk factors also identified were the female sex, white race, senior positions within rank structure and service in the army or air force.
This study was the largest of any reported in the literature but did not involve examination of the patients or a longitudinal study to determine the progress of the disease. For example, it was noted that the previous biggest study at the Mayo Clinic had been of 70,000 persons with 561 cases of cervical radiculopathy. The authors stated that their findings were in keeping with several previous publications all of which had documented the effect of age on the incidence of cervical radiculopathy. Previous studies by Kelsey et el had shown that individuals aged 30 to 39 were at the greatest risk of radiculopathy symptomatology and this study provided very similar results. The authors pointed out the defects in their study in that the follow-up period was not lengthy nor had they been in a position to estimate the cervical radiculopathy incidence in persons in their 50s to 60s.
Other reported studies had noted peaking of the incidence between 50 to 54 years and in another series, 50 to 59 years of age. The authors also pointed out that as they were reliant on the data base they did not have knowledge of other factors such as body habitus, medical comorbidities or specific occupation within the military which may have impacted on the development of the disorder.
Submissions were received after a considerable delay.
Mr Carey in his submissions pointed out that the United States Defence Service study was a population study and submitted that it was of limited assistance to the Tribunal as it did not address the causative elements of radiculopathy. While he criticised the incidence quoted in terms of race, this is to the Tribunal’s own knowledge a feature of all American scientific articles, given the large Afro-American population.
Mr Woulfe addressed the American Medical Association Guides to the Evaluation of Diseases and Injury Causation, to which Mr Pai had referred. In his submission he relied on the conclusions reached in the formulation of the guides; that there was insufficient evidence that heavy physical work was a risk factor for neck pain; insufficient evidence for neck posture being a factor for neck pain; some evidence for an association between age and the onset of neck pain and strong data for an association between female gender and neck pain. The AMA Guideline authors addressed other risk factors which are not relevant in this matter and determined there was no apparent relationship between exercise and neck pain.
Mr Woulfe referred to earlier studies quoted in the Journal of Spinal Disorder, United States Military Report. While the Tribunal notes these results they are not relevant to this matter. The study of Kelsey had shown that there was a relatively strong association with the lifting of heavy objects and a modest association with playing golf. With reference to the article entitled the Incidence, Epidemiology of Cervical Radiculopathy in the United States Military, Mr Woulfe noted the conclusions that age was the greatest risk factor as was female sex, white race and senior military positions. It was reported that army and air force services had a higher incidence of radiculopathy in contrast to the navy and marines who had a low incidence. Mr Woulfe concluded that these scientific articles supported Mr Pai’s opinion but not that of Mr Khan.
TRIBUNAL’S DELIBERATIONS AND DECISION
The parties have identified the issues before the Tribunal as being:
·what is the appropriate diagnosis of the claimed condition;
·should this condition be characterised as an ailment or an injury (other than a disease); and
·as a result of those determinations if it is an injury and not a disease, did it arise out of or in the course of employment;
·if it is an aggravation of a pre-existing condition was employment a significant contributing factor or was the pre-existing condition aggravated to a significant degree by the applicant’s employment.
The Tribunal agrees that these are the essential issues, particularly in relation to characterisation of the condition as an ailment or injury as defined in the SRC Act. All other considerations are dependent upon this determination including the compensability or otherwise of the claimed injuries and the duration of such compensation.
What is the appropriate diagnosis of the claimed conditions and are they an Injury or an Ailment as defined in the Act?
In determining the character of the claimed condition, the Tribunal is reliant on the medical assessments and reports of both the treating doctors and the independent medical experts. In Ms Scarpello’s case these have been provided over a period of three and a half years during which time her signs and symptoms have changed or fluctuated as has the interpretation of the relevant radiological imaging.
The Tribunal decides that the initial presentation of 25 March 2013 with right forearm pain and paraesthesia, minor lower back pain and the subsequent recording of right shoulder and neck pain was an injury (other than a disease). This conclusion is based on the diagnosis by Australia Post’s occupational health physician, Dr Solomon, of trapezius muscle strain and after further investigation with ultrasounds of the right elbow and the right shoulder and opinions from Dr Li, rheumatologist, Dr Oakes, orthopaedic physician, and Dr Muirden, rheumatologist, all of which took place between March and July 2013 the diagnoses of right lateral epicondylitis, right sub-acromial bursitis and right trapezius muscle tenderness problem, while poorly worded in medical terminology, meet the criteria of s 5A(1)(b) being an injury arising out of, or in the course of, employment.
The MRI of Ms Scarpello’s neck was recommended by the rheumatologist Dr Li and ordered by Dr McKenzie, a sports physician. The interpretation and report of the MRI of 16 May 2013 by the radiologist at Monash Medical Centre, two months after the reported injury, was that the study revealed postural change with early mechanical features.
Ms Scarpello’s symptoms improved rapidly with restriction of her duties involving lifting and repetitive action as well as the cessation of delivering mail on a motorbike. The day before she reported her injury, she had attended the gymnasium and had done what she described as neck exercises. She was able to continue her gymnasium attendance up to four times per week after the onset of her symptoms.
Australia Post accepted liability under s 14 of the SRC Act for these conditions, paid her medical costs (s 16) and maintained her salary level (s 19). She rapidly returned to full time hours although the work she performed was different to her pre-injury employment. She resumed riding the motorbike to deliver mail limited to a maximum of two hours per day and appeared to cope with this between September 2013 and June 2014.
In July and August 2014, Ms Scarpello spent six weeks overseas visiting Turkey and Italy. Her symptoms were much improved. When she resumed work her symptoms flared and postal delivery by motor-bike ceased. For some months she delivered mail on foot but for limited hours.
There has been a gap in medical assessment between June 2013, apart from the provision of certificates by her general practitioner, and late April 2014 when Mr Haig saw Ms Scarpello for the first time. He considered that her shoulder and elbow symptoms had resolved as both joints showed normal function although he recorded local tenderness and persistent pain at both sites. His interpretation of the 2013 MRI scan was quite different to that of the radiologist. Mr Haig opined that there was a significant disc prolapse at C6/7 and that all Ms Scarpello’s symptoms were accounted for by this disc prolapse causing a C7 radiculopathy.
The initial decision denying liability for musculoskeletal pain, soreness in the forearm when throwing off sequence mail and delivery of mail had been reversed after Australia Post obtained the opinion of Dr Muirden. Liability was accepted. Following Mr Haig’s report of 29 April 2014 and his supplementary report of 22 May 2014, Australia Post ceased liability for compensation under sections 16 and 19 of the Act for the revised conditions of right shoulder sub-acromial bursitis, right trapezius muscle tendons problem and a mild right lateral epicondylitis made initially on 31 July 2013.
Following reconsideration this decision was revoked on 17 July 2014 and liability for neck and right arm symptoms arising from an aggravation of pre-existing disc prolapse at C6/7 level was made.
Following Mr Haig’s further report on 24 October 2014 and subsequent repeat MRI of the cervical spine, liability in relation to the disc prolapse was reconsidered. It was determined that Australia Post was no longer liable to pay compensation for medical treatment and incapacity relating to aggravation of a pre‑existing disc prolapse at C6/7 level.
Do these conditions arise out of or in the course of employment? Alternatively if an aggravation of a pre-existing condition was the aggravation significantly contributed to by employment?
The further opinions of Mr Haig, Mr Pai and to a lesser extent Mr Khan, reflect the intuitive reasoning based on the MRI findings of November 2014 and these experts agreed that the symptoms Ms Scarpello reported could be explained in terms of a C7 radiculopathy secondary to a C6-7 disc prolapse, the latter being pre-existing and due to age-related degenerative changes. Mr Khan continued to maintain his opinion that there were multiple pathologies present including separate and distinct right shoulder and right elbow injuries.
The Tribunal finds that given the 2014 MRI findings and the opinions of the majority of independent medical experts and to a lesser extent Mr Khan, there is support for a diagnosis of a C7 radiculopathy accounting for the right upper limb symptomatology. However, Dr Barry Oakes opined that the pain and paraesthesia experienced by Ms Scarpello is in a C6 distribution and having consulted Gray’s Textbook of Anatomy (Ed. 41), the Tribunal agrees that the dermatomal distribution of Ms Scarpello’s pain could only be accounted for by a C6 radiculopathy. The Tribunal is aware that Dr Oakes was an Associate Professor of Anatomy at Monash University for several decades.
These opinions reflect the more probable diagnosis of a degenerative condition of the cervical spine causally unrelated to work, exacerbated symptomatically by work but without any evidence of underlying pathophysiological change.
However the Tribunal considers that there is insufficient evidence before it to exclude the co-existence of right elbow and right shoulder injury arising in the course of Ms Scarpello’s employment as localised shoulder pain and tenderness persisted at least until 18 June 2014 when Dr Herath (Exhibit R4) recorded restriction of IR, abduction and ER in an ultrasound request that he wrote. The Tribunal is familiar with the abbreviations used, IR being internal rotation and ER external rotation.
Throughout the course of Ms Scarpello’s incapacity for normal duties the diagnoses were made essentially on symptoms and radiological imaging findings. At no time is there a description by any reporting, treating or independent doctor of signs of a radiculopathy.
The Tribunal cannot identify any episode of injury or trauma which may have resulted in damage or a change in the pathophysiology of Ms Scarpello’s cervical spine. While she has some four years after the event stated she injured her neck in the motor vehicle collision in 2009, there is no contemporaneous medical evidence to support that claim.
Mr Pai referred the Tribunal to an article in The Journal of Spinal Disorders published in February 2012. This related to the incidence of cervical radiculopathy within the population of the United States military between 2000 and 2009. This was not a longitudinal study and the authors did not examine or take a history from any of the affected individuals but accessed all data from the United States military’s Defence Medical Epidemiological Database (DMED). While there are many defects in this report its strength lies in the fact that the analysed population numbered 13,813,333 individuals of whom 24,742 were diagnosed with cervical radiculopathy, giving an overall incidence of 1.79 per 1,000 person years.
The incidence of cervical radiculopathy increased with age being 3.95 in the 35 to 39 year age group, compared to 0.12 at age 20 and 6.16 at the age of 40 plus. These figures were all statistically significant. The Tribunal did look at the other reports referred to by Mr Pai but as these related predominately to the lumbo-sacral spine and were abstracts of articles downloaded from Google, the Tribunal does not consider them to be of assistance.
Mr Woulfe argued that the prolapse of the C6/7 disc demonstrated in Ms Scarpello’s case would have occurred whether she worked for the respondent or did not work at all and that the onset of symptoms would be at the same stage of life. He urged the Tribunal to make a decision in accordance with Telstra Corporation Limited v Hannaford and determine that there was never a liability to accept this condition as being work caused.
The Tribunal accepts that the epidemiological survey referred to above is of assistance despite its limitations as it involved such a huge data base. It would however carry similar weight to the epidemiological reports of Sir Richard Doll in 1954 and 1957 relating to cigarette smoking and the development of cancer of the lung.
Dr Oakes, Mr Haig, Mr Pai and Mr Khan have all opined that Ms Scarpello’s cervical spondylosis and disc degeneration is age-related and not work caused although symptomatically aggravated by her work duties. Similarly they and later Mr Myron Rogers reported resolution of any radiculopathy by December 2014. Thus the Tribunal decides that the cervical spondylitic changes suffered by Ms Scarpello are an ailment as defined in s 4 attracting the criteria of s 5B(1)(b) that any contribution by employment must be to a significant degree to be compensible.
In her evidence before the Tribunal Ms Scarpello stated all her symptoms had resolved some twenty months before the hearing i.e. by mid-March 2015. The Surveillance video obtained in April 2016 is therefore of no relevance. She is working full-time and undertakes more over-time work than she did pre-injury albeit at a reduced level of deliveries by motor-bike. There was a temporary symptomatic aggravation or exacerbation of this ailment but no evidence or opinion in support of an underlying lasting pathophysiological change attributable to Ms Scarpello’s employment.
In summary the Tribunal decides that:
(a)the initial diagnosis of right lateral epicondylitis, right sub-acromial bursitis and trapezius muscle problems were an injury arising in the course of employment. Section 14 liability was accepted as was payment of medical expenses and loss of wages (s 16 and s 19) and should, on the evidence before the Tribunal, have continued until December 2014. The Tribunal notes that Ms Scarpello states all her symptoms had resolved by mid-March 2015. The resolution of her symptoms has been confirmed by Dr Oakes and Mr Kahn in 2016 and 2015 respectively.
(b)the C6/7 disc prolapse is a pre-existing ailment, degenerative in nature, aggravated by employment in that it rendered the condition symptomatic for a limited period of time. There is no evidence of any underlying pathophysiological change significantly contributed to by employment. The interpretation of the MRI’s appear to have led to a degree of confusion as to the presence or not of a disc prolapse before the suggestion of nerve root compression was raised and which nerve root might be involved.
Subject to the above the Tribunal otherwise affirms the decision under review.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
.........................[sgd]...............................................
Associate
Dated: 6 September 2017
Date(s) of hearing: 24 May; 29, 30 November 2017 Date final submissions received: 2 August 2017 Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: MAURICE BLACKBURN Counsel for the Respondent: Mr Peter Woulfe
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