Sharon Gibbs and Comcare
[2015] AATA 72
•12 February 2015
[2015] AATA 72
Division General Administrative Division File Number
2014/2072
Re
Sharon Gibbs
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 12 February 2015 Place Perth The decision under review is affirmed.
.............................[sgd]................................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by Australian Taxation Office (ATO) – applicant suffered injury to neck, left shoulder and arm in November 2005 in performance of employment duties at ATO – applicant suffered injury to neck, right shoulder and arm in April 2011 in performance of employment duties at ATO – respondent accepted liability to pay compensation for 2005 injury and 2011 injury – respondent ceased payment of compensation in November 2013 – applicant's pain symptoms in neck, shoulders and arms no longer causally related to compensable injuries – respondent not liable to pay compensation to applicant for compensable injuries since November 2013 – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5, s 5A, s 14, s 16, s 19, s 20, s 21, s 21A and s 29
REASONS FOR DECISION
Deputy President S D Hotop
12 February 2015
Introduction
Sharon Gibbs (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” made on 8 April 2014 by a Review Officer of Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation act 1988 (Cth) (“SRC Act”). That reviewable decision affirmed:
·a determination made under the SRC Act on 18 November 2013 that the applicant had “no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act” in relation to an accepted compensable injury, namely, “neck sprain” and “sprain of shoulder & upper arm (left) sustained on 1 November 2005”; and
·a determination made under the SRC Act on 18 November 2013 that the applicant had:
- “no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act”; “and/or”
- “no present entitlement to compensation for incapacity payments under section 19 of the SRC Act”; “and/or”
- “no present entitlement to compensation for household services and attendant care services under section 29 of the SRC Act”;
in relation to an accepted compensable injury, namely, “aggravation of neck sprain” and “sprain of shoulder & upper arm (right) sustained on 21 April 2011”.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T78, pp 1–309) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1–A2 tendered by the applicant;
·Exhibits R1–R5 tendered by the respondent; and
·the oral evidence of the applicant, Dr Suzanne Ng, Dr Michael Bowles and Dr John Pearce.
The Factual Background
The following background facts are not in dispute and are found by the Tribunal on the basis of the T Documents.
The applicant, who was born in September 1958, commenced employment with the Australian Taxation Office (“ATO”) on 7 May 1997. As at 1 November 2005 she was employed as a Refund Officer (APS3), her main duties comprising “processing client refund requests”, and as at 21 April 2011 she was employed as a Debt Collection Officer, her main duties comprising “clerical and administrative duties”. (T5, p 32; T39, pp 144–145)
On 7 November 2005 the applicant completed an “Accident/Incident Report” form in which she indicated that the relevant incident occurred at work on 1 November 2005 at 2.00 pm when she was “working at [her] desk on the computer” and that she “left work at about 4 pm with excruciating pain in [her] neck and shoulder” and that “when [she] got home [she] could not move [her] left arm and had tingling pain down [her] arm and [her] fingers”. (T3)
The applicant completed a “Claim for Workers’ Compensation” form, dated 10 November 2005, whereby she claimed compensation under the SRC Act in respect of an injury to her “neck, left shoulder and left arm” which she suffered on 1 November 2005 while at her desk using a computer keyboard, and for which she first sought medical treatment on 3 November 2005 from Dr Angela Vincent. She also indicated in that form that she had previously received medical treatment for her neck (cervical spine) for “many years” from Dr Suzanne Ng. (T5, pp 25–31)
On 7 December 2005 a delegate of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “neck sprain” and “sprain of shoulder & upper arm (left)” suffered on 1 November 2005. (T7)
The applicant completed a further “Claim for Workers’ Compensation” form, dated 20 June 2011, whereby she claimed compensation under the SRC Act in respect of an injury to her “neck” and “pain in shoulder and right arm” which she suffered on 19 April 2011 while at her desk as a result of the “screen” having been “adjusted”, and for which she first sought medical treatment on 21 April 2011 from Dr Lindsey Allard. (T39, pp 134–143)
On 18 August 2011 a delegate of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “aggravation of neck sprain” and “sprain of shoulder and upper arm (right)”, the date of injury being determined as 21 April 2011. (T42)
On 13 June 2012 Dr John Pearce, Consultant Occupational Physician, completed a “Medical examination report for invalidity retirement” form, for superannuation purposes, in which he expressed the opinion that invalidity retirement was “an appropriate consideration” for the applicant. (T56)
A report of Dr Pearce, dated 15 June 2012, concluded as follows:
“ …
Ms Gibbs is a 53 year-old woman who has developed a Chronic Pain Disorder/Chronic Pain Syndrome secondary to multilevel degenerative disease in her cervical spine which manifests itself in the form of mechanical neck pain which has proved resistant to invasive pain management and is not amenable to surgical correction.
Her Chronic Pain Disorder/Chronic Pain Syndrome has led to a secondary Depression which whilst perhaps under-treated is not going to change her productivity and employability and is secondary to her chronic pain.
Ms Gibbs’ Chronic Pain Disorder/Chronic Pain Syndrome has led to prolonged sickness absence and limited productivity. Rehabilitation has been repeatedly unsuccessful. Sadly this situation is unlikely to change in the foreseeable future.
It is my opinion that Ms Gibbs is permanently and totally incapacitated for work for which she is suited by way of education, training, skills and experience or retraining.
She therefore meets the criteria for Invalidity Retirement under the Superannuation Act. …
…” (T58)
The applicant ceased her employment with the ATO on 3 December 2012. (T65)
On 18 November 2013 a delegate of the respondent made a determination that the applicant had “no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act” in relation to her compensable injury, namely, “neck sprain and sprain of shoulder & upper arm (left) sustained on 1 November 2005”. (T75)
On 18 November 2013 the delegate also made a determination that the applicant had “no present entitlement to”:
·“compensation in respect of medical expenses under section 16 of the SRC Act, and/or”
·“compensation for incapacity payments under section 19 of the SRC Act, and/or”
·“compensation for household services and attendant care services under section 29 of the SRC Act”
in relation to her compensable injury, namely, “aggravation of neck sprain and sprain of shoulder & upper arm (right) sustained on 21 April 2011”. (T76)
On 8 April 2014 a Review Officer of the respondent made a “reviewable decision” under s 62 of the SRC Act affirming each of the determinations referred to in paragraphs 13 and 14 above. (T78)
On 23 April 2014 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision of 8 April 2014. (T1)
The Applicant’s Evidence
The applicant confirmed that she had written a letter, dated 9 July 2014, to the respondent’s solicitors responding to questions asked of her by those solicitors, and that the contents of that letter are true and correct. The contents of that letter are as follows:
“ I am in recept of your letter dated 3 July I wish to respond to the following questions in regards to my injury (claim 962006/1) neck sprain and sprain of shoulder upper arm (left) on 1/11/2005.
(a)What aspects of your employment do you consider significantly contributed to the onset of this injury?
I am unsure as to what specific aspect of employment contributed to the onset of this injury however prior to my injury I worked long hours to keep up with work place demands and to meet deadlines generally between 7 to 9 hours per day, work demands vary from week to week as we undertake various projects and sometimes given little or no notice. The project/s can extend from Monday to Friday and at times to a Saturday to ensure completion within a timeframe. As these task date back to 2005 I cannot give you specifics however a project/s entail extensive data entry, copious research, printing and folding of letters, and enveloping for mail dead lines, these letters can be extensive as our client base is on a national level.
(b)What duties were you carrying out at the time of your claimed injury?
I would not be able to give you specific duties undertaken however it did involve processing client requests for refunds of credit, balances on accounts, which entailed exuberant keyboard and screen use, printing, filing of documents and general administration duties.
(c)What symptoms did you experience?
I experienced pain which was sharp, radiating down the left side of my neck, shoulder, down my arm and fingers excluding my thumb.
(d) When did you first notice your symptoms?
I first witnessed the pain when at my keyboard working as an Administrative Officer at the ATO.
(e) How did the symptoms affect you carrying out your duties?
I continued working and worked approximately 7 hours on the day of my injury. I carried out my duties in abundant pain, I commenced sick leave on the 2/11/2005 to 04/11/2005. On 03/11/2005 I consulted my then Chiropractor Dr Angela Vincent and was treated with gentle manual adjustments to the affected joints. I returned to work on Monday the 7/11/2005 and found that my symptoms were re-aggravated easily at work.
In respect of your claimed injury (claim 962006/2) for ‘aggravation of neck sprain and sprain of shoulder and upper arm (right)’, said to have been suffered on the 21/4/2011, please provide further detail including:
(f)What aspects of your employment do you consider significantly contributed to the onset of this injury?
In spite of my chronic pain and on going injury since the 1/11/2005, I continued to work on a full time capacity and have had my workplace/work station ‘assessed’ several times, the situation demands desk changes many times over the years due to work place situations ie teams, business lines or just meeting with daily work place demands. On numerous occasions I have requested a desk change, the Occupational Health and Safety Rehab Consultant conducted these work place assessment/s. I have been treated by a number of treatment modalities, including cortisone injections into my neck and a number of root sleeve injections.
Please refer to T37 – pages 123–131 Ergonomic workstation assessment report Conducted by Konekt Consultant.
(g)How long did you continue to work at your workstation before your realised it had been adjusted?
I was working in a fulltime capacity when the incident occurred, I noticed there was a marked change in the height of my chair, and desk and adjustment to my monitor, I was working for approximately 2 full days on the onset of pain.
(g)who did you report this to? When were further changes made to the workstation.
I emailed my team leader Mr [W] and asked if any casual staff had adjusted my chair/desk and other equipment. Mr [W] stated that he ‘hoped not’ as there are specific signs stating ‘do not adjust or sit at this desk’. Mr [W] also informed me that he was unable to get in touch with Team Leader [J] who was in charge of the casual staff and hot desking.
(h) What symptoms did you experience?
(i) When did you first notice your symptoms?
I worked at my desk the whole period and by the end of the day I was in a lot of pain, my symptoms consisted of a burning sensation across my neck, back and accelerated down my right arm, I was in disbelief that I was experiencing the same pain as I had on the left side, I was in tears due to the excruciating pain. I had a chat with Mr [W] prior to leaving the office and he stated that he had chatted with Ms [J] and she assured him that my desk and or equipment was not adjusted due to the signage on my desk however Ms [J] said that she would ask other staff who were monitoring the casual staff and she would get back to Mr [W].
(j) How did the symptoms affect you carrying out your duties?
I continued to work at my desk for the 2nd day I tried to work to the best of my ability but experienced great pain levels and experienced discomfort and pain in my jaw.
Mr [W] requested a work station assessment.
I subsequently received an email from Mr [W] stating that [J] had spoken to her staff and confirmed that my workstation had been adjusted by her causal staff and she apologised with her previous comment that she was not aware of the adjustment.
Due to the intensifying pain I underwent treatment for cortisone injections in my neck both left and right side.
It was several weeks before I met a representative from OH&S who regulated my desk as per previous Ergonomic settings not immediately but by the end of that working week the ergonomic adjustments were major ie The chair height and back rest, the desk height, the distance of the monitor the height of the monitor.
Please refer to T40 page 150–153 report from Team Leader in relation to my work output prior to this injury, work attitude and attendance.
My previous Treating Medical practitioners prior to 1999 who have treated me in regards to my cervical spine condition and or back condition during pregnancy in 1978 and 1981 were:-
Dr Peter Staer Address: – Garden City Medical Centre 125 Riseley Street Booragoon last known address.
I trust I have answered the above adequately which is true and correct, please note adjustments were not minor and my right side has been compensating for the left side for several years.
…” (original emphasis) (Exhibit A1)
The applicant, in her oral evidence, added the following:
·her chronic pain in her neck, shoulder and arms has not resolved;
·the cortisone injections which she had merely “masked” her pain and were a “band-aid measure” to help her to continue working, which she did in a full-time capacity;
·she is still in a lot of pain, as a result of which she cannot work;
·because of her pain she had to give up her job at the ATO which she really loved;
·she did not want to give up her position at the ATO – it was a recommendation of Dr Pearce that she retire;
·it was ultimately decided that she retire on the ground of total and permanent incapacity;
·although she had an underlying cervical spinal condition in 2000, she continued to work from 2000 to 2005 when the first injury happened;
·the pain she suffered from the 2005 injury was different from the “localised” pain she was suffering from the underlying condition – it involved sharp pain radiating down the left side of her neck, through her shoulder and down her left arm to her fingers excluding her thumb – a kind of pain which she had not previously suffered.
In cross-examination the applicant gave evidence to the following effect:
·before her invalidity retirement from the ATO on 3 December 2012, she had participated in several rehabilitation/return to work programs but they had been unsuccessful;
·she first consulted a chiropractor for general spinal “maintenance” in about 1998 to help her continue working;
·she has been seeing her current general practitioner, Dr Ng, since 1999 and, on her referral, she commenced seeing Dr Graziotti in 2000 but has not seen him since she ceased work in 2012;
·when she was at work her symptoms were aggravated by her work activities;
·when she was off-work her symptoms settled down, but “not all the time depending on what was happening at home” – she “did have to function”;
·since she ceased working, her symptoms “are still there” – she still suffers “a lot of radiating pain” which has never been resolved.
Medical Material in the T Documents and Exhibits
Dr Suzanne Ng
Dr Ng, who has been the applicant’s treating general practitioner since 1999, provided a report, dated 28 November 2007, to the respondent as follows:
“ …
1.Relevant history:
Mrs Gibbs has been attending this practice since May 1999 for various minor complaints and appropriate health screening reasons about a dozen times prior to any neck/arm pains.
2000
Our first documentation of any neck problem was on 27 June 2000 when Dr Jeffrey Ng saw her with the complaint of ‘sudden pain back of neck, left upper trapezius’ without preceding trauma. She attended again on 22 July 2000 with similar symptoms accompanied by nausea and was unable to identify a precipitating factor, having been ‘up cooking and it suddenly came on’. She was treated with injections of pethidine and maxolon. On 24 July 2000 when she was referred for plain films and this showed ‘flattening of the normal lordosis. C5/6 moderate disc space narrowing with end plate lipping and right sided neurocentral joint hypertrophy with some foraminal encroachment. Mild scoliosis convex to the right.’ ie, C5/6 degenerative changes with possible foraminal encroachment on the right. She saw Dr Jeffrey Ng on that occasion and on 27 July 2000 was referred by him for physiotherapy.
I saw Mrs Gibbs for the first time relating to neck/arm symptoms on 22 September 2000. She stated then that she was attending a chiropractor twice a week, massage once a week and was still having pain in her neck, shoulder and left arm, and had had her workstation reviewed. She was reviewed on 27 September 2000 and I found a reduced biceps reflex on her left, and she admitted to having occasional fasciculations. I treated her with Celebrex and referred her to a neurologist, Dr Allan Kermode. In this referral letter I wrote that Mrs Gibbs had had ‘neck pains intermittently since age 21. It has become a lot worse after an episode of spasm in the muscles on the left just medial to the scapular which virtually prostrated her and required a home visit back in July this year. She has had pains since then, radiating up the neck to her ear; and she describes fasciculations in the entire arm, shoulder and neck to the ear on the left side since then.’ I have no record that she actually ever acted on this referral. I arranged for her to have a CT scan of the cervical spine.
On 10 October 2000 she attended with an improvement in the reflex and was going to have CT of the cervical spine and be reviewed by a pain specialist. She was treated with Voltaren and referred to Dr Paul Graziotti, Pain Specialist. The CT scan was done on 12 October 2000, for the indication ‘Three months of ongoing neck pain radiating to left arm, intermittently reduced biceps reflex.’ Results were enclosed, and these had shown, at C6/7 a ‘left paracentral disc protrusion which effaces the anterior theca and likely compromises the origins of the C7 and C8 roots.’ I wrote in the referral that Mrs Gibbs had the pain ‘after waking with it one morning a few months ago.’ Dr Graziotti wrote: ‘She woke with it one morning about two months ago. It was severe initially, settled down over a period of about a week, then has continued as a constant, nagging sensation despite treatment…’ and ‘She denies any previous neck pain …’ He treated her with a steroid injection to the left C6/7 facet joint and root sleeve injection, which ‘worked wonders’. Dr Graziotti reviewed her in December and felt that no further specific treatment was warranted.
2001
In February 2001 Mrs Gibbs returned with a migraine. She had had no prior migraines on record. She was given an anti-emetic injection to help her keep down simple analgesics.
On 30 April 2001 Mrs Gibbs attended Dr Jeffrey Ng with the complaint of pain in the back of her neck and upper trapezius greater on the left side than the right. She had been seen by the locum service the previous night. She complained of some tingling in the left hand with pins and needles but had no neurological signs. I reviewed her on 2 May 2001 and treated her with Vioxx, as Voltaren had caused some diarrhoea, and she had previously been diagnosed with Crohn’s disease. She had commenced Glucosamine. On 4 May I reviewed her and added regular Panadol into her regime, with continuation of the Vioxx.
She was reviewed by Dr Jeffrey Ng on 17 May with left neck spasms and pain requiring intramuscular Pethidine and Maxolon. Another CT of the cervical spine was arranged. Dr Jeffrey Ng reviewed her on 18 May and referred her to Dr Paul Graziotti again. The CT results showed ‘a broadbased left sided paracentral and posterolateral disc protrusion’ at C6/7 ‘deforming the theca and possibly affecting the budding C7 left nerve root.’ These results were discussed with her on 21 May 2001. Dr Graziotti repeated the steroid injection and it worked quite well although he reported that she was still having ‘stiffness and soreness at the end of the day and after prolonged periods on the computer’.
She was reviewed on 2 July 2001 with symptoms possibly relating to a flare-up of her colitis.
She was reviewed by Dr Graziotti on 12 September 2001 and her main symptoms were the neck pain and some arm pain was present. Neurosurgical intervention was discussed, as was radiofrequency rhizotomy and root sleeve injection. He commenced Mrs Gibbs on Endep. She was reviewed on 19 October 2001 and prescribed Endep for her pain management.
2002
I reviewed Mrs Gibbs again on 15 February 2002 and prescribed Tramal 50 mgs nocte, reduced her dose of Endep and asked her to do neck core muscle strengthening exercises. She attended again on 18 February 2002 with migraine and treated with injections by Dr Jeffrey Ng.
Mrs Gibbs attended me on 14 March with stiffness in the neck and shoulders, present for the preceding week. She was using Tramal, Endep and Vioxx and was feeling bloated possibly relating to her colitis. I referred her again to Dr Paul Graziotti, but she did not attend him until 7 November 2002. Mrs Gibbs attended again on 6 August 2002 with another migraine. She was reviewed on 21 October 2002 for further prescriptions of Voltaren, Endep and at that time described fasciculations. She had a brisk biceps reflex in her right arm. I reminded her of the previous referral in March and this time she attended him, and Dr Graziotti diagnosed lateral epicondylitis based on her specific tenderness over the lateral epicondyle with ‘pain on extension and supination. Neurologically the arm was completely normal’.
Dr Graziotti reviewed Mrs Gibbs on 5 December 2002 and found she had made ‘slow progress’ and he asked her to resume the Endep which did help when he had seen her with the C6 radiculopathy.
2003
Mrs Gibbs was treated by Dr Jeffrey Ng on 19 August 2003 and again on 31 December 2003 for migraine with injections of Tramal and Maxolon. On the latter occasion she was also prescribed some Vioxx.
Dr Graziotti had ordered an MRI of the common extensor origin and this demonstrated a ‘high grade partial tear and an associated partial tear of the radial collateral ligament origin.’ She was treated with local anaesthetic and steroid injection on 23 January 2003. This settled the pain completely.
2004
No consultations relating to the neck, shoulder or arm.
2005
I saw Mrs Gibbs on 12 December 2005 with her report that she had an exacerbation of her previous neck injury on 1 November 2005 and been to the chiropractor. She had also seen Dr Graziotti who had told her to stop going to the chiropractor, and injected the C7 root sleeve and done a C6/7 radiofrequency rhizotomy. He reviewed her on 24 November 2005 and commenced her on Neurontin. This was the first occasion I was aware that this was a work-related injury. I questioned Mrs Gibbs about the First Medical Certificate and she said this had been provided by another doctor, and I issued a Progress Medical Certificate on this date and advised her to let Dr Graziotti know it was the subject of a Worker’s Compensation claim. Dr Graziotti had ordered an MRI which showed that the previous disc protrusion was reduced in size, although still present. It is likely that prior to the recent exacerbation, had an MRI been done, it would have been yet smaller.
2006
Mrs Gibbs was seen subsequently on 9 January 2006, 6 February 2006, 15 June 2006 and 14 August 2006 and progress certificates issued. The Neurontin was not working very well for her pain and she went on to have epidural injection with Dr Graziotti, which worked quite well but Dr Graziotti felt there was an element of her pain from spasm and advocated massage for a period of ten weeks.
Dr Graziotti reviewed her again on 3 August 2006 and reported that Mrs Gibbs had been reasonable [sic] well on holiday but found prolonged work on the computer had aggravated her pain. He increased the Neurontin dose and was not keen on any further injections at that stage. Dr Graziotti reviewed her again on 16 November 2006 and noted that the increased Neurontin had not made much difference. He was thinking of repeating the MRI.
She was also seen on 23 October 2006 with migraine and treated with Tramal and Maxolon injections. She was reviewed by an eye specialist Dr Goh who postulated that her headaches were cervicogenic in origin in his letter of 27 March 2006. It is for this reason that I have included consultations at which she was treated for migraine in the scope of this report.
2007
Mrs Gibbs was seen on 16 April 2007 and then in a spate of visits on 16, 20, 22 and 26 November 2007. I suggested a change from Neurontin to Lyrica in mid June 2007 because of complaints of tiredness.
She is currently experiencing a flare-up of her neck and arm pain and being treated with various analgesic medications.
She was reviewed by Dr Graziotti on 26 April after another MRI which did not demonstrate any new pathology, and that the C6/7 disc protrusion had not really changed in size.
She is to continue with core muscle strengthening exercises for which I have referred her to the physiotherapist recently. She is to continue with massage and medications when she is having a worse day than usual.
2.Specific diagnosis:
Cervical prolapsed disc at C6/7 causing radiculopathy of C7.
3.Cause and contributing factors:
Prolapsed disc in the neck, degenerative changes in the neck, and muscle spasm secondary to these changes are causing the symptoms suffered by Mrs Gibbs. The prolapsed disc is causing a left sided C7 radiculopathy. Contributing factors are prolonged static postures at work and also muscular tension from stress. Underlying these and perpetuating these, in a vicious cycle, is poor core muscle strength in the neck.
4.Pre-existing underlying condition:
Prolapsed disc and degenerative changes in the cervical spine previously was demonstrated on the left side on CT scan of 12 October 2000. Plain films prior to show age-related degenerative changes. These [sic] was a sudden exacerbation on 27 June 2000 when the prolapse probably first occurred. These symptoms all settled by the end of 2002 for nearly three years. There were no attendances for analgesic prescriptions in this time. There were no complaints in 2003, 2004 and most of 2005 until an incident at work exacerbated the radicular symptoms on 1 November 2005. The prolapse was demonstrated to be smaller than its previous size, on MRI, even after this exacerbation. It is therefore my opinion that the reported incident at work on 1 November 2005 aggravated a largely healed prolapse from 2000 and once again produced radicular symptoms.
5.Diagnostic indicators for present condition:
Recurrence of radicular symptoms from 1 November 2005 and MRI performed then, and repeated in July 2007 show this is consistent with the demonstrated prolapse which has not changed in size from 2005. There is absence of any other pathology and the patient’s history is consistent with her symptoms, which once again necessitate analgesic regime in the form of Tramal rapid and slow-release, Voltaren, Endep and Lyrica.
Dr Graziotti will review Mrs Gibbs on 31 January 2008.
…” (original emphasis) (T16)
Dr Ng provided a report, dated 22 April 2008, to the respondent as follows:
“ …
Specific diagnosis:
MRI demonstrated Cervical prolapsed disc at C6/7 causing radiculopathy of C7.
Mrs Gibbs attended complaining of pains in the forearm at her left elbow on 4 March 2008.
People who have cervical radiculopathy can sometimes develop maladaptive patterns of movement which result in supraspinatus tendinopathy and rotator cuff pathology, and the same applies to the tendons acting on the elbow joint. I was treating Mrs Gibbs with acupuncture as she had only recently had a steroid injection into the left elbow in January and further injections into the C6/7 facet joint in February, and it was felt to be too soon to repeat steroid injections..
In the past she has had good relief from injection for lateral epicondylitis and also at one stage failed to have any relief from injections administered by Dr Paul Graziotti in the right elbow, who then proceeded to an MRI study of her right elbow and found a tear in the radial collateral ligament. When that joint was injected with steroid by him in January 2003, it produced relief of her pain and in fact her right elbow pain has never recurred.
Trial of acupuncture has been undertaken but her pain is not responding as well as we had hoped. I thought to obtain a plain film of both elbows to assess any arthritic changes which might have developed, and to exclude any other spurious pathology. These films have been reported as normal.
When she attends again I am planning to arrange her left elbow tendon ultrasound to assess for tendinopathy but may instead send her back to Dr Graziotti for his assessment and another injection, although this would mean that she will then have had four steroid injections this year and limit [sic] options should her neck play up again in the course of the year.
…” (T23)
Dr Ng provided a report, dated 9 September 2008, to the respondent as follows:
“ …
1. History:
Mrs Gibbs came in on 12 December 2005 complaining that she had suffered an exacerbation on 1 November 2005 of pain relating to the previous injury for which she had had C6/7 radiofrequency rhizotomy and a C7 root sleeve injection. The original C6/7 disc prolapse had been demonstrated in 2001 by Dr Paul Graziotti.
Details of all relevant history was furnished in the report to you dated 28 November 2007. This would answer in detail the question of any pre-existing or underlying conditions. I am unable to furnish any further detail, because that report was extensive and the level of detail commensurate with the letter of request.
Since my report of 22 April 2008 Mrs Gibbs has attended with symptoms of pain in the arm. She had injections of cortisone in January 2008, in the left elbow after which she continued to have arm pain, and it was felt that the residual pain must have been from cervical radiculopathy from the C6/7 prolapsed disc. She has [sic] more cortisone injected into the C6/7 facet joint and AC joint in February.
A cervical origin of the pain was likely as she developed migraines (cervicogenic) as well as the left elbow pain, in March 2008. In view of the many cortisone injections we elected to treat her with a course of acupuncture, as well as some Endep, and other simple analgesics, and I also directed her to avoid long days in her work schedule. This seems to have worked well and her last visit was on 22 May 2008 for the arm and neck pain, although she has attended since then for other reasons.
2. Diagnosis
Prolapsed cervical disc, at C6/7, with radiculopathy AND secondary dysfunction due to altered biomechanics of the shoulder girdle.
3. Causal and contributing factors:
Cause: see 2. Diagnosis.
Contributors: Prolonged static postures, such as caused by long work days in attempting to squeeze five days’ work into four in a flexi-hour regime. I advised Mrs Gibbs to return to a five day week, which she has done. I understand that she has already had a review of the ergonomics of her work-station.
4.Whether the diagnosis is an aggravation of a pre-existing or underlying condition:
Mrs Gibbs has a history of neck problems with degenerative changes and impingement on nerves from 2000, fully documented in my report to you dated 28 November 2007.
The underlying condition is of degenerative change in the cervical spine with disc prolapses and nerve impingement which is exacerbated from time to time, and responds to the various treatments I have described which we have used to control her pain and keep her able to function at work.
In order to reduce the likelihood of exacerbations, which necessitate expensive and/or invasive (inherently risky in themselves), time consuming and even disabling treatments, I have advised that she have regular physiotherapy to strengthen the core muscles of her neck. Without treatment designed to address the segmental muscle control of her neck the underlying problem is likely to progress.
5. Diagnostic indicators for the current condition:
The diagnosis is based on history as outlined, positive stretch test on examination, CT scans of the neck, several MRI radiological studies of the neck, clinical examination, and this patient’s responses to therapeutic manoeuvres tried at every juncture: simple analgesics, invasive injections into her neck, shoulder, arm, medication for neuropathic pain being Neurontin which was initiated by Dr Graziotti anti-inflammatories which must be used in caution in this patient owing to her known inflammatory bowel disease, but which she resorts to on occasion because of the cumulative cortisone doses of the too-often repeated steroid injections, acupuncture which is time-consuming, and re-arrangement of her work-schedule when suggested.
6.Recommended forms of medical treatment for exacerbation of the radicular pain from the work incident of 1 November 2005:
See 5.
I am unaware of any other recommended treatments which it would be appropriate to try. I suppose that she could be referred to a neurosurgeon for consideration of microdiscectomy and/or spinal fusion in the cervical spine. I doubt, however, if this would be acceptable to her. I say this because she is still managing to work full-time most of the time. It might be worthwhile for her to see a neurologist for EMG studies.
She requires physiotherapy and in my opinion this should continue on a regular basis eg 8-10 sessions a year, in order to encourage proper compliance and monitoring of her progress.
Other treatments can be done on an as required basis, eg recent exacerbation settled after six sessions. Steroid injections can be done if there has been an appropriate interval, and/or if that is the patient’s preference. Medications are prescribed and taken as required. When her pain is severe she has massage as well.
I cannot foresee any date by which all treatment would be concluded. There has been a period eg 2003, 2004 where Mrs Gibbs had minimal or no symptoms, but in general she has degenerative changes in her neck and her radicular pain might be exacerbated at any time.
7.Prognosis:
This condition is likely to fluctuate as it has demonstrably done so in the past few years. Exacerbations may be more frequent if her neck muscles are not strong and well coordinated at a segmental level. This is why I highly recommend the physiotherapy, the cost of which is likely to obviate the more expensive costs of invasive CT-guided injections into the neck, procedures, acupuncture, Neurontin etc etc.
…” (original emphasis) (T28)
A report of Dr Ng, dated 6 August 2012, which is addressed to the ATO, states as follows:
“ This report is provided further to your request dated 3 July 2012 with Mrs Gibbs’ consent, for the assessment of her claim for access to invalidity pension from her Superannuation fund.
Mrs Gibbs has a long history chronic [sic] pain in the neck, shoulders, arms and headaches due to soft tissue injury in the neck, probably from cervical disc degeneration and prolapse. She has received constant treatment for this in the form of medication, chiropractic treatment, and invasive interventions such as radio-frequency ablations by Pain Specialist Dr Paul Graziotti, over the past 11 years. The pains have slowly become more severe and more problematic, and because she gets cervicogenic migraines, in terms of her ability to maintain any kind of work schedule. Various manipulations of her work roster were trialled to no avail.
She has been reviewed by a neurosurgeon who has recommended conservative therapy for now, with further investigation and invasive procedures in the event of worsening. Mors recently she had another rhizotomy with Dr Graziotti which did very little to help her symptoms.
I cannot see that she will improve with regard to any of her symptoms given that she has had maximal therapy as described above, short of a major operation on her neck, which, even were she to undertake it, might not improve her chronic pain state. I cannot see that she will ever be able to be formally employed in any work capacity on a full or part-time basis. I hope this report will assist in your assessment of this claim.” (T60)
Dr Ng provided a report, dated 4 October 2013, to the respondent which relevantly states as follows:
“ …
What conditions and regions of the body are being addressed by the massage therapy?
Mrs Gibbs has a long history chronic [sic] pain in the neck, shoulders, arms and headaches due to soft tissue injury in the neck, from cervical disc and facet joint degeneration and prolapse. She has received constant treatment for this in the form of medication, chiropractic treatment, and invasive interventions such as steroid injections, epidural injections, radio-frequency ablations and rhizotomy by Pain Specialist Dr Paul Graziotti, over the past 12 years. The pains have slowly become more severe and more problematic, and because she gets cervicogenic migraines, in terms of her ability to maintain any kind of work schedule. Various manipulations of her work roster were trialled to no avail. She has been reviewed by a neurosurgeon and an orthopaedic surgeon who recommended conservative therapy for now, with further investigation and invasive procedures in the event of worsening.
She has reached maximum medical improvement as she has had maximal therapy as described above, but remains with a significant impairment. While she has not had an operation on her neck, the most recent surgical opinion was to desist from surgical intervention which, even were it undertaken, might not improve her chronic pain state.
Due to her impairment she was in February 2013 approved by Comcare for compensation for household services, up to two hours per week, gardening services, up to two hours per month, and heavy duty cleaning for up to four hours per six months. Her requirement for these services is ongoing as her disability is stable and permanent.
Her medication requirements have been stable for several years and she is on Neurontin 300 mg, four daily, and Endep 25 mg daily. These have been started for her radicular pain and the use of Endep in management of chronic pain is widely published, accepted, and practised by General Practitioners, Pain Management Specialists and the wider medical community. She requires these medications for maintenance. In the event of severe exacerbations, she requires Valium and other analgesics as tolerated.
Mrs Gibbs’ current condition is cervical degenerative disc disease with chronic (pseudoradicular/secondary muscle spasm) pain and cervicogenic headaches. She has documented degeneration at C5/6 and C6/7, and left-sided disc prolapse, and a disc osteophyte at C5/6. The cervicogenic headaches are very incapacitating for her when they arise and she therefore has current and permanent limitations to conduct household tasks due to the condition in 1) above.
Her incapacity relates to her cervical disc condition and the consequent cervicogenic migraines. The cervical condition has already been accepted by Comcare, who have been funding treatments for this same condition since 2005.
Mrs Gibbs’ current ability to complete household tasks does directly relate to her accepted Comcare condition. She has pain and stiffness in her neck and shoulders all the time, and in manages [sic] some of the household tasks as best she can, but she does in addition experience severe cervicogenic migraines that do incapacitate her. She would not have these cervicogenic migraines without have [sic] the cervical degenerative disease, which is the accepted Comcare condition.
She has found that these are less frequent when she has massage therapy directed at the neck and shoulders to reduce muscle cramp and spasm in these regions, which are related the [sic] headaches.
…
What are the functional goals of treatment?
The functional goals of treatment are to keep Mrs Gibbs as stable as possible and doing as much of her activities of daily living as possible with minimum exacerbations despite having some baseline pain.
…
What regard to self management is being given and therefore is there a plan for Ms Gibbs to independently manage her condition?
Self-management strategies have been developed as assist Mrs Gibbs to manage her household services tasks:
(i)Mrs Gibbs paces her activities to manage her pain levels. She maintains her weight and tries to stay physically active and healthy. She tries to get good rest and nutrition and perseveres in maintaining as healthy a lifestyle as she can. She struggles to maintain an emotional equilibrium in the face of the chronic pain and its consequences.
(ii)Mrs Gibbs seeks medical advice and intervention in a sensible, timely manner and follows the advice she receives from all her treating practitioners:
- every intervention in the workplace (and you will recall that she tried working various reduced hours, various combinations of days, and had various manipulations of her work-station overseen by an Occupational Therapist) failed to help her significantly
- every invasive procedure that she has undergone has failed to produce lasting relief and Dr Graziotti is not keen on repeating these procedures. She has been advised ‘that results for axial spinal pain surgery are not ideal and can be quite unpredictable’ and that ‘if she can manage without surgery she would be much better off’ by her orthopaedic surgeon. Therefore she now just does the best she can in order to experience less pain but still manage to take some of the burden of managing the household from her husband.
She requires help for household tasks and she requires her medication. She does become distressed by the possibility that the funding for these is constantly questioned.
Mrs Gibbs is coping as well as she can with a her [sic] high levels of pain and medically certified permanent impairment. I note that she has been given early access to her superannuation based on such certification by two medical practitioners. I do feel that age-related factors are irrelevant in Mrs Gibbs’ disability. A thirty year-old would have the same impairments given her condition. Having said this, even most seventy year-olds with degenerative disc disease do not have the same impairments as she has severe and unpredictable pains from the cervicogenic migraines.
We may pursue discography and another review by her Orthopaedic surgeon, and seek further Neurosurgical opinion, though this is unlikely to improve her functional status. I will also consider review by an Occupational Therapist and Occupational Physician.
…” (T71)
Dr Ng has issued numerous workers’ compensation progress medical certificates in respect of the applicant, the most recent of which in evidence is a certificate issued on 2 October 2014 regarding a condition described as “cervical disc prolapse, radicular pain, migraines”, in which Dr Ng certified that the applicant is totally unfit for work on a permanent basis. (Exhibit A2)
Dr Paul Graziotti
Dr Graziotti, Pain Medicine Specialist, has written numerous letters and reports regarding the applicant in the period from October 2000 to November 2012, copies of which are included in the T Documents and Exhibit R1.
Dr Graziotti’s first letter, dated 18 October 2000, which is addressed to Dr Ng, states as follows:
“ Thank you for asking me to see Sharon who presented with her husband … today regarding her left sided lower cervical spine pain radiating into the left shoulder and through the left arm into the fingers. She woke with it one morning about two months ago. It was severe initially, settled down over a period of about a week, then has continued as a constant, nagging sensation despite treatment with chiropractic therapy, physiotherapy, massage, anti-inflammatories and other conservative treatments. She gets most relief from a hot shower and Voltaren and the pain tends to be worst at the end of the day, particularly after she has been sitting on the computer or phone all day.
She denies any previous neck pain, she doesn’t smoke and is otherwise well apart from ulcerative colitis which she finds the Voltaren does tend to aggravate.
To examination she was well built, not carrying any extra weight. She was tender over the left lower cervical spine, movements to the left were significantly impaired but neurologically her upper limbs were intact.
I note the CT scan findings of a left C6/7 disc protrusion and certainly I think that’s the cause of her pain. I think a left C6/7 facet joint injection combined with a root sleeve injection is the appropriate first step, and if that doesn’t settle things down then on return from her holiday to India I will proceed with a left C6/7 epidural. Ultimately she may come to surgery but the chances I think are low.
I will let you know how we get on, thanks again for referring her.” (part of Exhibit R1)
Dr Graziotti provided a report, dated 29 June 2009, to the respondent in which he summarised his treatment of the applicant to that date and answered questions asked of him by the respondent. That report states as follows:
“ …
Mrs Gibbs was first referred to me by Dr Suzanne Ng on 18th October 2000 when she woke with left-sided lower cervical pain radiating into the left arm. Investigations at that time revealed a large left C6/7 disc protrusion and over the next 12 months she underwent a number of treatments including a left C7 root sleeve injection and a C6/7 facet joint injection on two occasions, and then ultimately a C7 root sleeve injection with a C6/7 radiofrequency rhizotomy on 3rd April 2002 at which point her symptoms improved significantly.
I next saw her on 7th November 2002 when she was referred with pain over the right elbow which I diagnosed as lateral epicondylitis (tennis elbow). I initially treated it conservatively with ESWT and physiotherapy, subsequently arranged an MRI which confirmed lateral epicondylitis and went on to reinject the area which settled down that pain fairly rapidly.
This injury was apparently related to her work keyboarding, although I’m not sure whether there was a workers’ compensation claim made for it.
The next time I saw her was on 6th October 2005 when she presented with a recurrence of her left-sided neck and arm pain. This had occurred spontaneously and was in all ways similar to the previous pain, so I repeated the radiofrequency rhizotomy and C7 root sleeve injection on 12th October 2005. There was no mention at that time of any work-related injury.
A repeat MRI performed on 14th November 2005 confirmed the left C6/7 disc protrusion once again although it had reduced in size.
I saw her on 25th November 2005 after the procedure, and noted that there was some improvement but she was still suffering residual effects of the rhizotomy and I prescribed Gabapentin 300-600mg a day.
The next time I saw here was on 2nd February 2006. It was at this time that she told me that her neck pain had been aggravated by work which essentially involved a lot of keyboarding and an increase in her normal activities at work. As a result of that she’d had pain down the left arm and as a result of that I went on to perform a left C6/7 epidural on 20th February 2006. There was a significant improvement after that procedure. I subsequently saw her in August 2006 at which time she was having reasonable relief of her pain with the Gabapentin 600mg at night, but she did find that keyboarding tended to aggravate the pain.
On 26th April 2007 I saw her again and I organised a further MRI which showed that the left C6/7 disc protrusion had, if anything, further improved and was now not causing any indentation of the cord. I encouraged ongoing conservative treatment and ultimately on 15th February 2008 repeated the left C6/7 facet joint injection on the basis of some neck pain but no arm pain. I also injected her shoulder and these injections were repeated on 17th November 2008 and 26th May 2009.
In summary Mrs Gibbs is a patient who experienced a left C6/7 disc protrusion back in 2000 which was obviously quite a significant event. This was not related to her work but ultimately her symptoms did settle down with appropriate conservative treatment.
The next time I saw her in relation to that particular problem was October 2005 which predates your date of incident as 1st November 2005. I didn’t receive any information about an injury at work at that time, however subsequently she did state that the keyboarding and computer work did tend to aggravate her symptoms and it was on that basis that the claim was made and she has been treated under the Workers’ Compensation system since.
In response to your specific questions then:
1. On the balance of probability, is this condition related to:
(a) the incident dated 1/11/2005? If so, how?
(b) a pre-existing, congenital, constitutionally or underlying condition?
(c) factors unrelated to work, eg hobbies, sports, lifestyle activities? If so, please detail what they are.
(d) the natural progression of an underlying condition?
Her ongoing symptoms relate predominantly to the underlying disc protrusion which occurred back in 2000, however her symptoms are aggravated by her computer work and keyboarding at work, and therefore ongoing symptoms are related also to her work. She does have a pre-existing underlying condition which is C6/7 disc protrusion, however that has remained stable – there’s been no deterioration. But it would result in her being more vulnerable to activities that involve repetitive use of her left arm, and in particular holding her arm in certain positions for prolonged periods of time, which she may do with her computer work and therefore the combination of the underlying problem and particular types of activities may result in symptoms which otherwise wouldn’t occur. The natural history of the underlying condition is that it should ultimately resolve, although one would have to say that it has now been nine years since her disc protrusion and it still has not resolved. Most likely then she will experience intermittent symptoms for the rest of her life from this area which are likely to occur when she does activities such as excessive use of the left arm, holding her neck in certain positions, excessive movement of the neck and possibly heavy lifting. Obviously these activities can occur both within and without the workforce.
2.Would the claimant still have experienced the same symptoms regardless of her employment?
It is possible that she may have experienced the same symptoms regardless of her employment, however in my opinion it is more likely that her current employment is causing an ongoing aggravation of her symptoms.
3.If the condition is related to the employment, has the employment:
(i)caused the condition?
(ii)aggravated or accelerated a pre-existing condition? If so, please provide details of the pre-existing condition?
Her employment has not caused her condition. It has, however, aggravated a pre-existing condition. The pre-existing condition, as I have described before, is a left C6/7 disc protrusion.
4.If the current condition is considered to be a combination of employment factors and non-employment factors, to what extent is the employment contributing to the condition?
In my opinion the current condition is considered to be a combination of employment factors and non-employment factors, and in my opinion the employment factors contribute 40-50% towards her ongoing symptoms.
5.Is this condition causing incapacity or work restrictions? If so, please provide details.
Intermittently her pain does cause work restrictions in that she is unable to perform ongoing keyboarding or computer activities at her normal pace, and of course she requires days off work for injection treatments.
6.Does any need for treatment differ from what would be reasonably required as a result of the underlying condition alone? Please give reasons for your opinion.
Her treatment has not differed from that which would be reasonably required as the result of the underlying condition alone. The fact that the symptoms have been aggravated by the work results in us having to perform procedures, but many patients have these underlying conditions and when they perform certain types of activities it does cause pain, and the treatment that she has had is the treatment that they would have.
…” (T36)
Dr Graziotti’s letters regarding the applicant in the period 2010-2012, addressed to Dr Ng (unless otherwise stated), include the following:
·letter, dated 29 September 2011, which states:
“ I reviewed Sharon today. Her neck pain for which we performed bilateral C6/7 facet joint injections has settled down but today she was complaining of pain in her arms, headaches and jaw pain, all of which she attributes to her work on the computer. She thinks it all relates to the cervical C6/7 disc protrusion which was last documented in 2007 on an MRI.
I have arranged to repeat the MRI to ensure that there has been no progression there but clinically there does not appear to have been. I examined her neurologically in the upper limbs and all was normal. There was no asymmetry, no weakness, no sensory loss or loss of reflexes
…” (T45);
·letter, dated 8 December 2011, which states:
“ I reviewed Sharon today with her MRI. It suggests that the left C6/7 posterolateral disc osteophyte complex has increased very slightly in size. There is no cord compression though and her symptoms have improved a lot since she has been off work. She continues on the gabapentin and amitriptyline. There is a little bit of disc degeneration at C5/6 as well so if she did ever contemplate surgery it would involve two levels, which of course then puts other levels at risk.
We both decided to leave things alone at the moment. She is going to start a graduated return to work program. I will review her in the New Year and if she is still struggling we will do an epidural to that area.” (T48);
·letter, dated 12 January 2012, which states:
“ I reviewed Sharon today. She is gradually doing a return to work program but she does complain of pins and needles down both arms and she is very tentative about doing any computer work because it generally stirs her pain up.
We talked about an epidural but her symptoms are still up and down and therefore we discussed other options. I think it is worth her getting an opinion from Peter Woodland, if only to reassure her that nothing surgical needs to be done. He may of course have a different opinion. I have taken the liberty of referring her to Peter who I am sure will keep us both informed.” (T49);
·letter, dated 12 January 2012, addressed to Mr Peter Woodland (an orthopaedic surgeon), which states:
“ I wonder if you be [sic] so kind as to see this lady and send her an appointment. I have been seeing her since 2000 when she came to see me with a left C6/7 disc protrusion. Over the twelve years since then we have treated her with various injections including facet joint injections and epidurals. She has done reasonably well, maintained her place in the work force and had prolonged periods when her symptoms have not been too bad.
More recently her symptoms have deteriorated. I repeated the MRI which if anything shows a very slight increase in size of the left C6/7 disc osteophyte complex now causing some mild distortion of the ventral surface of the cord. She has some degenerative change at C5/6 also.
We both though it appropriate to get an opinion from you as to what the place of surgery is. I am not one hundred per cent convinced myself that she will do well with surgery but I would be interested in your opinion. If you do not think surgery is appropriate then I can certainly continue on with injections, as at least for the moment she does has [sic] had reasonable relief at times from them.” (T50);
·letter, dated 12 April, 2012, which states:
“ … Sharon is now off work until the end of June, so this would be a good time to perform a rhizotomy which she has had in the past with good relief.
I therefore arranged to perform bilateral C5, 6, 7 radiofrequency rhizotomy in an attempt to settle down her bilateral neck and shoulder pain. I will keep in touch.” (T55);
·letter, dated 14 June 2012, which states:
“ I reviewed Sharon today. She has had quite a flare up to the rhizotomy which is not unexpected. Now her main symptoms are stiffness and pressure in the neck, and the solution to that is exercise and massage. She was quite keen to get on with that.
I noticed that she has now stopped work for good and is living off her super. I have encouraged her to use her free time to go the [sic] gym and improve her overall fitness which will help with her pain.
…” (T57);
·letter, dated 12 September 2012, which states:
“ I reviewed Sharon today. She is actually going reasonably well. Her neck is still stiff but the pain is reduced and there is some pain around the left thoracic spine around T7-8, possible facetal but possibly muscular and it does settle down with massage and stretching.
I would not do anything more there at the moment. I will review her in six months.” (T61);
·letter, dated 28 November 2012, which states:
“ I reviewed Sharon today. Her left thoracic pain is playing up and she would like to have something done there, so I have arranged to do injections at the level that will be identified under image intensifier.
In her neck she is getting some pain also, but is not keen to repeat the rhizotomy we did seven months ago because of the postoperative pain, so I will perform facet joint injections there also.” (part of Exhibit R1)
Dr John Pearce
Dr Pearce, Consultant Occupational Physician, first saw the applicant on 26 October 2011 at the request of the ATO, for the purpose of assessing her fitness to undertake a rehabilitation program. He provided a report, dated 1 November 2011, to the ATO in which he expressed the opinion that (inter alia) the applicant’s compensable condition was presently preventing her from working full-time hours and duties and recommended that she undertake a “monitored Graded Return to Work Rehabilitation Program” as outlined in his report. (T47)
Following an unsuccessful attempt by the applicant to complete a graded rehabilitation return to work program, Dr Pearce, at the request of the ATO, saw her again on 8 February 2012 for the purpose of re-assessing her fitness to undertake a rehabilitation program. He provided a report, dated 13 February 2012, to the ATO in which he expressed the opinion that (inter alia) the applicant’s compensable condition was preventing her from working full-time hours and duties and that she was “unfit for work” and had “no rehabilitation potential at present”. Asked whether invalidity retirement was “an appropriate consideration” for the applicant, he responded:
“ Not yet, however in the event of her condition not being amenable to surgical intervention it may well become a consideration.” (T51)
Dr Pearce provided a supplementary report, dated 12 March 2012, to the ATO which states as follows:
“ Further to previous correspondence (and in particular my memorandum dated 13 February 2012) I have now received a reply from the Spinal Surgeon Dr E McCloskey.
I believe it appropriate to provide you with a supplementary report based on:
· Further file review
· Re-reading my previous reports and
· Dr McCloskey’s contemporary report.
Dr McCloskey has reviewed Ms Gibbs’ neck impairment.
Dr McCloskey confirmed multilevel degenerative disease maximal at the C5/6 and C6/7 levels. Her impairment is not amenable to decompressive surgery.
Ms Gibbs is a less than ideal candidate for fusion and disc replacement. This would be a last resort and whilst it may improve her quality of life is unlikely to improve her productivity and/or employability.
Dr McCloskey has recommended ongoing conservative treatment and pain management.
OPINION
Based on the above I recommend ongoing conservative treatment and pain management for say a further two months followed by review of her rehabilitation potential and capacity.
I regret to report that the prognosis for a successful rehabilitation outcome is guarded if not poor.
I suspect we are probably heading towards Invalidity Retirement. I look forward to further review at an appropriate time in the not too distant future.” (T54)
Dr Pearce next saw the applicant on 13 June 2012, at the request of the ATO, and provided a report, dated 15 June 2012, to the ATO which concluded as follows:
“ …
OPINON
I base my opinion on:
·My contemporary consultation
·File review
·The collateral information provided to me
·The patho-physiology and prognosis of Ms Gibbs’ multilevel degenerative disease.
Ms Gibbs is a 53 year-old woman who has developed a Chronic Pain Disorder/Chronic Pain Syndrome secondary to multilevel degenerative disease in her cervical spine which manifests itself in the form of mechanical neck pain which has proved resistant to invasive pain management and is not amenable to surgical correction.
Her Chronic Pain Disorder/Chronic Pain Syndrome has led to a secondary Depression which whilst perhaps under-treated is not going to change her productivity and employability and is secondary to her chronic pain.
Ms Gibbs’ Chronic Pain Disorder/Chronic Pain Syndrome has led to prolonged sickness absence and limited productivity. Rehabilitation has been repeatedly unsuccessful. Sadly this situation is unlikely to change in the foreseeable future.
It is my opinion that Ms Gibbs is permanently and totally incapacitated for work for which she is suited by way of education, training, skills and experience or retraining.
She therefore meets the criteria for Invalidity Retirement under the Superannuation Act. I herewith enclose a completed SM2 Form.
I trust this report now brings this case to a sad if inevitable and logical conclusion, please do not hesitate to contact me if further clarification, elaboration or extrapolation is deemed necessary.” (T58, pp 213–219)
Dr Pearce also provided his answers to questions asked of him by the ATO as follows:
“ ANSWERS TO YOUR SPECIFIC QUESTIONS IN SEQUENCE
Question 1:Is Ms Gibbs currently fit for duty? If not, when will Ms Gibbs be fit for duty?
Answer:No.
Never.
Question 2:Has Ms Gibbs reached maximum medical improvement?
Answer:Yes.
Question 3:How does Ms Gibbs’ condition currently impact on her capacity to return to work and/or undertake a rehabilitation program?
Answer:Her severe pain related to all physical activity precludes productivity in her designated position or the open workforce.
Question 4:Is medical treatment likely to bring a return to employment? Please explain?
Answer:No.
Even invasive treatment now gives only partial and temporary relief of her pain.
Question 5:Is Ms Gibbs fit to perform the inherent duties of an APS3 officer?
Answer:No.
Question 6:Can you please comment on the suitability of the attached duties?
Answer:They are totally beyond her capacity.
Question 7:Is Ms Gibbs’ compensable condition preventing her from working full-time hours and duties as outlined in the attached workplace assessment report/duty statement?
Answer:Ms Gibbs’ permanent neck impairment precludes her performing the inherent requirements of her designated positon.
Question 8:Is invalidity retirement an appropriate consideration for the employee?
Yes.
Question 9:Should your report be released directly to the employee or should it be released to the employee through her doctor?
Answer:I am happy for it to be released directly to Ms Gibbs.” (T57, pp 220–221)
Dr Pearce provided a report, dated 11 November 2014, to the respondent’s solicitors in response to their letter to him, dated 21 October 2014. In their letter, the respondent’s solicitors requested Dr Pearce to answer the following questions:
“ 3. Schedule of questions
Please review the enclosed documentation and answer the following schedule of questions.
3.1Having regard to the further material provided do you have any cause to change any of the opinions expressed in your previous reports, in particular your report dated 15 June 2012? Please provide reasons for your answers whether your opinions remains [sic] unchanged or otherwise .
3.2In your opinion, was the applicant’s pre-existing cervical spine condition, aggravated or accelerated by the Applicant’s employment? If so, please explain.
3.3As noted above, the Applicant has had two accepted claims for compensation for her cervical spine condition – in 2005 and 2011. In 2007 the SRC Act was amended to require that the requisite degree of contribution made by employment for liability to arise was ‘a significant’ contribution, rather than a ‘material’ contribution. Given that the Applicant’s claims span that legislative amendment, in considering any employment contribution prior to 13 April 2007 you are to consider whether there was a ‘material’ contribution to the claimed condition and post 13 April 2007 you are required to consider whether there was a ‘significant’ contribution.
Please note that for there to be a ‘significant contribution’ you need to be satisfied that there was a contribution that is substantially more than material. For a material contribution you need to be satisfied, on the balance of probabilities (ie that it is more likely than not) that there was a sufficient strong or close connection between the employment and the condition currently suffered.
3.4On the history provided to you in your examinations of the applicant and from your review of the materials, do you consider that the Applicant’s employment material [sic] contributed to an aggravation of the pre-existing condition to the requisite degree? If so, please explain.
3.5If you consider the Applicant has or does suffer from a condition contributed to the requisite degree or by her employment:
(a)Have the effects of the work related condition ceased, and if so, when? In other words, did the Applicant’s employment continue to contribute to her condition and symptomology [sic]? If the extent of that contribution has changed in some way, either to a greater or lesser contribution please also identify when, why and how that change has occurred.
(b)Did any aspect or incident of the applicant’s employment accelerate the natural progression of the Applicant’s condition, such that her condition would not be in its current state if not for the work-related aggravation? In other words, do you consider the Applicant’s condition would be the same today, regardless of any aspect or incident of her employment?
(c)If you do not consider the work related effects of the condition have ceased, when do you consider they will cease?
3.6Are there any non-work related factors which have caused or contributed to the Applicant’s condition, and if so, please indicate what these factors are.
3.7What is your prognosis in relation to the Applicant’s condition?
3.8.Are there any other comments you wish to make relevant to the issues to be clarified in this matter.” (part of Exhibit R5)
Dr Pearce’s report of 11 November 2014 states as follows:
“ Thank you for asking me to review the file of Miss Sharon Gibbs for the purpose of providing an independent medical opinion in addressing your specific questions.
Thank you also for the voluminous portfolio of documentation including multiple specialist reports and associated paramedical records.
I acknowledge the reports (some multiple) from the following:
· The occupational physician Dr Chris Hammersley
· The pain specialist Dr Paul Graziotti
· The orthopaedic surgeon Dr John O’Connor
· The neurosurgeon Dr Soni Narula
· The occupational physician Dr John L Pearce (myself)
· The orthopaedic spinal surgeon Dr Eamonn McCloskey
· The occupational physician Dr Michael Bowles
· The general practitioner Dr Suzanne Ng
· Multiple imaging studies of the cervical spine between 2000-2011 confirming multi-level degenerative disease with both discal and facet joint pathology.
This comprehensive material was carefully reviewed and considered (reading time and associated reading in excess of 3 hours).
RELEVANT FACTS
Relevant facts include:
1.Sharon Gibbs suffers from a permanent impairment of her cervical spine in the form of multi-level degenerative disease dating back to 1998.
2.Miss Gibbs’ impairment manifests itself in the form of mechanical neck pain and non-specific shoulder and upper limb symptomatology.
3.File review confirmed Miss Gibbs first reported neck pain at 21 years of age.
4.Imaging studies confirmed degenerative disease of her cervical spine in 2000.
5.Miss Gibbs worked as an Administration Services Officer with the ATO a call centre type position attending to clients’ needs using a telephone and computer.
6.Miss Gibbs suffered compensable aggravations of her pre-existing neck impairment in 2005 and 2011.
7.Her treatment has been conservative with intermittent invasive pain management.
8.Her neck impairment is not amenable to surgical correction at present.
9.Miss Gibbs cased working on 3 December 2012 when she retired on the grounds of ill health.
10.Miss Gibbs reports ongoing neck pain and non-specific shoulder and arm symptomatology.
ANSWERS TO YOUR SPECIFIC QUESTIONS
Answer 3.1 No
The specialists confirm my diagnosis of multi-level degenerative disease of the cervical spine.
My opinion would only warrant review in the event of surgery, however the spinal surgeons Dr Narula and Dr McCloskey confirm that her cervical spine is not amenable to surgical correction.
Answer 3.2 Yes
File review indicates that the histories and examination findings of the numerous specialists were consistent with a temporary aggravation (as opposed to acceleration) with Miss Gibbs’ work activities of repetitive telephone answering and computer use. She was of course predisposed to temporary aggravation by her pre-existing degenerative disease.
Answer 3.3The reported histories and documented examination findings in file review satisfy me that the employment contribution met the necessary criteria for her two workers compensation claims.
Answer 3.4Yes
The history provided to me and my medical specialist colleagues, my examination findings and the findings of my medical specialist colleagues are consistent with Miss Gibbs’ work activities aggravating her pre-existing condition to the requisite degree.
Answer 3.5a Yes
It is my opinion the temporary aggravation of the symptomology [sic] related to Miss Gibbs’ work activities would have resolved three months after she ceased work. I understand Miss Gibbs last worked on the 3 December 2012, therefore it is reasonable to assume any work related aggravation should have ceased in March 2013.
Any ongoing symptomatology post March 2013 would be related to her age, natural progression of her degenerative disease and current avocational activities.
Answer 3.5b No, the work activities caused a temporary aggravation not an acceleration of her age related degenerative disease.
Yes, the applicant’s condition would be the same today regardless of any aspect or incident of her employment.
Answer 3.5c Not applicable
Answer 3.6 Pre-existing age related degenerative disease of her cervical spine.
Answer 3.7The prognosis is for ongoing symptomatology related to avocational activities that stress Miss Gibbs’ neck.
A natural progression with age can be anticipated.
Answer 3.8Based on the information made available to me, it is my opinion Miss Gibbs’ current medical status and reported symptomology [sic] are unrelated to her past work activities.
…” (part of Exhibit R5)
Dr Michael Bowles
Dr Bowles, Occupational Physician, provided the following report, dated 16 September 2013, to the respondent:
“ Thank you for asking me to review Ms Sharon Gibbs who I saw in the Perth rooms today for the purpose of providing an independent medical examination.
The purpose of examination was to provide updated specialist medical information regarding capacity for work, treatment needs, functional capacity to undertake activities of daily living and, if required, any household assistance requirements.
I note invalidity retirement on 3 December 2012 from the ATO.
I reviewed the forwarded documentation, which included a case summary and in particular, that Ms Gibbs experienced an exacerbation on 19 April 2011.
I reviewed reports as listed on page 7 of your documentation, including:
·Report, Julie Bridson, remedial massage therapist, who detailed Ms Gibbs was unable to do strenuous activity without consequently feeling pain and becoming fatigued easily:
·Report, Dr Susan [sic] Ng, general practitioner, indicating a long history of chronic pain. Dr Ng felt there was little that would improve Ms Gibbs;
·EMG report in July 2012 showed no EMG abnormalities;
·Reports, Dr John Pearce, who described development of neck pain in 1998 which was spontaneous. The pain did not resolve and Ms Gibbs was reviewed by Dr Graziotti and remained under his care. Treatment has included rhizotomies, injections and epidurals;
·Acute exacerbations occurred in 2009 and 2011. There was review by Dr McCloskey in February 2012 with a diagnosis of multi-level degenerative disc disease;
·Dr Pearce diagnosed chronic pain disorder/chronic pain syndrome, secondary to multi-level degenerative disc disease in the cervical spine, which manifests itself as mechanical neck pain;
·MRI scan on 27 October 2011 showed left posterolateral disc/osteophyte complex C6/7 which had increased marginally since previously and advanced left facet joint arthropathy C3/4. There was right posterolateral disc osteophyte complex at C5/6; and
·Ms Gibbs also presented an MRI scan dated 5 January 2009 and a report from Dr Eamonn McCloskey dated 20 February 2012, which forms a part of the forwarded documents from you. Dr McCloskey felt neck pain related to the injury/disruption/degeneration C5/6 and C6/7 and that arm symptoms are probably referred in nature.
History of Presenting Complaint
Ms Gibbs indicated that she has had trouble with her neck for a ‘long, long time’.
Ms Gibbs was a little put out that she had been invalided out of the tax office and was currently accessing ComSuper and this ‘was all official’, and was wondering why she was attending for further review.
Ms Gibbs indicated that she last worked officially on 3 December 2012 but noted that she hadn’t been in the workplace for approximately six months.
Ms Gibbs indicated that she worked as an administration services officer at the ATO in the debt section.
Duties were attending to client needs, using a telephone and a computer.
Ms Gibbs would receive calls and make calls, and had a case load to work through. She had a headset and the computer was set up by the OH&S department.
Ms Gibbs had been with the ATO since 1997.
Ms Gibbs noted that she had had trouble with her neck on the left 2005 [sic] and was having ongoing treatment from Dr Graziotti, who had performed various injections providing relief lasting approximately six weeks to two years.
Ms Gibbs noted a recurrence in 2011. She indicated the problem was that her desk was adjusted and she didn’t know about this matter. Ms Gibbs said she noted increased complaint but was unaware that her desk had been adjusted and only became aware that was the case two days after the onset of her complaint.
Ms Gibbs said this had led to right-sided neck and right arm pain which came on suddenly whilst in the workplace.
Ms Gibbs said she continued on with her already ongoing management including massage and chiropractic care.
Ms Gibbs indicated she underwent injections including rhizotomies in April and November 2012 by Dr Graziotti, which she felt were currently providing some benefit.
Current Complaints
Ms Gibbs noted that she had good days and bad days. She said the neck was always stiff.
Ms Gibbs said she got relief from massage which she would have twice a week and chiropractic once a week. She felt those treatments led to maintenance of her ability to undertake activities of daily living such as making dinner, driving her car and washing her hair.
Current medication included Neurontin and Endep. There was also fish oil, Caltrate and magnesium taken.
Panadol Osteo was used three times a day on most days.
Ms Gibbs did note she is not very happy at present and felt depressed and down due to ‘interference from Comcare’, feeling that every time there was a change in case officer further investigation would occur. She said she has been embarrassed over non-payment of bills in the past.
Ms Gibbs noted otherwise good days and bad days. She said she had a heavy sensation through the neck, shoulders and into the arms. She indicated she got headaches at the back of her head.
Ms Gibbs said she had a constant ‘burning’ sharpness in the neck and a dull constant ache, which she rated as a 10 out of 10 at its worst. The level of complaint varied from day to day depending on activity.
Ms Gibbs indicated that the left side of the neck was worse than the right. She noted stiffness through to the trapezial region and a cramp in between the shoulder blades.
Ms Gibbs noted pins-and-needles on both sides on the ulnar-sided three fingers in the form of a tingling. Ms Gibbs said she would sometimes drop objects. She said she was not able to hang out the washing and that her husband would perform that chore, as well as the ironing.
Ms Gibbs indicated no low back or leg complaints. She said she loved to walk for exercise.
Overall Ms Gibbs felt she was getting worse. She said she certainly wasn’t getting better. She said she would like an operation to get better.
Ms Gibbs said the plan was to return back to Dr Graziotti for more injections. She had seen Dr McCloskey who had suggested no surgery.
Ms Gibbs continues to see her general practitioner.
Ms Gibbs was on income support from Comcare and her super.
Ms Gibbs indicated that she would walk daily but has not done so over the last four months due to viral infections and shingles. Ms Gibbs said she couldn’t swim and didn’t attend the gym.
Ms Gibbs said she liked to read a lot and would use an iPad on her knee. She said she used to enjoy crocheting but this impacted on her neck.
Ms Gibbs lives at home with her husband who works on a full-time basis.
Ms Gibbs would cook on a daily basis. Ms Gibbs said she had a cleaner come in once a week to do the heavy work such as the bathroom, mopping, dusting and vacuuming. Ms Gibbs would sometimes do the shopping. She would drive to appointments.
Ms Gibbs was independent in self care.
When asked about an average day, Ms Gibbs said she didn’t do much. She said she might cook or shop and attend appointments, and this took up most of her time.
Ms Gibbs would also visit her 80 year old mother and take her to appointments.
Ms Gibbs said she would generally get up at around 8.00 am, read, sit at home or go visiting and catch up with friends. She would have a nap in the afternoon.
Ms Gibbs said her sleeping wasn’t great and would use the Endep and generally had trouble getting off to sleep and would wake at 4.00 am in the morning.
Examination
On examination Ms Gibbs presented as a pleasant lady.
Ms Gibbs showed no sign of restriction or impairment to informal examination. She came well groomed and well presented. She looked in good health.
To informal observation there was no apparent restriction. Neck complaints were noted through the base of the skull on the left and right where Ms Gibbs noted extreme pain and radiation down through both trapezial regions, and also an area of discomfort between the shoulder blades.
Range of movement in the cervical spine was quite reasonable although showed restriction at end range to movement to the right, with Ms Gibbs noting discomfort in the left trapezial region.
Upper limb examination showed a full range of shoulder movement, elbow movement, finger and wrist movement.
I couldn’t detect a neurological abnormality.
Tone, power and reflexes were equal and symmetrical and there was no sensory loss noted in the upper limbs.
Investigations
The recent MRI scan is discussed above.
Diagnosis and Opinion
I concur with Dr McCloskey and Dr Pearce.
Ms Gibbs’ problem is age-related degenerate processes in the neck with referred non-specific complaints into the upper limbs.
This appears to be complicated by dysthymia leading to significant activity intolerance.
Pain rewarding matters include the claims process, provision of home help and ongoing receipt of passive treatment in the form of chiropractic and massage.
Specific Questions
Diagnosis and Prognosis
1.Please detail the history of Ms Gibbs’ condition as reported to you.
The history is discussed above.
2.From what specific cervical condition does Ms Gibbs currently suffer? Please provide a short description of the condition, including its known origins and progression. Please include clinical signs and symptoms to support your conclusion. If Ms Gibbs’ condition has already been resolved, please also provide, where possible, details of the condition.
The cervical condition is age-related degeneration as detailed on the MRI scan.
This is a constitutional condition, which is almost universal in the population by Ms Gibbs’ age.
There are hereditary matters in that there are genetic predispositions to early degeneration, however otherwise it is a universal issue for human existence and generally progressive.
MRI supports conclusion [sic]. Other expert opinion supports that conclusion.
This condition will not resolve.
3.What is the prognosis for Ms Gibbs’ current condition?
As Ms Gibbs notes, she is getting worse as is the natural history of age-related processes.
Employment Relationship
1.Is the condition suffered by Ms Gibbs related to:
a) her employment with the Australian Taxation Office
In my opinion, no.
b) a pre-existing, congenital, constitutional or underlying condition
This is the cause of Ms Gibbs’ complaint.
c) the natural progression of a pre-existing, congenital, constitutional or underlying condition
There is a natural progression occurring.
d) an aggravation of a pre-existing, congenital, constitutional or underlying condition
I am not of the view ATO work would have aggravated the degeneration, in terms of added disease burden.
The fact that Ms Gibbs has these processes ongoing in her neck would lend her to spontaneous neck complaints, stiffness, pain and her pain to be exacerbated (temporarily symptomatic increase) undertaking activities such as looking down or repetitive neck bending either at home or in the workplace.
One would also note that spontaneous complaints are a frequent and common occurrence as appears to be exampled by the right sided complaint of more recent origin.
2.Has any aggravation from her former employment with the Australian Taxation Office now resolved? Please explain, and if so, when it is likely to have resolved?
The fact that Ms Gibbs is not at the Taxation Office would lend [sic] that any exacerbation that has occurred within the workplace is no longer relevant as she is not working and not exacerbating her underlying neck complaint with sedentary work activities.
Treatment
1. What is the clinical justification for ongoing chiropractic and massage treatments? Are they reasonable to obtain in the circumstances? If so, please provide the evidence based research which supports ongoing long term treatments.
I can find no clinical justification for ongoing chiropractic and massage treatment. They are passive in nature. They may provide at best short term symptomatic relief and would be viewed as maintenance.
I am unaware of any scientific support for these modalities in degenerative neck conditions.
As such, they are not empowering Ms Gibbs to manage her injury.
There doesn’t appear to be goals implemented to optimise function and participation and return to work, notwithstanding invalidity retirement.
Further more passive treatment tends to reinforce passive illness behaviours and deter self management and active approaches.
2. Do you think Ms Gibbs should be weaned off chiropractic and/or massage treatment? If so, please outline a weaning off period, including frequency breakdown and discharge date.
In my view this is the case.
I suggest that the weaning period is a three month timeframe looking at reducing chiropractic to fortnightly then monthly; and massage to weekly, fortnightly then monthly over that timeframe.
3. List the self management strategies that have been or could be put into place to empower Ms Gibbs to manage her injury.
I am unaware of any self management strategies.
Ms Gibbs could use a heat pack or self massage of the area if she felt this to be of benefit.
Otherwise, pacing and pause and posture breaks are suggested in terms of self management strategies.
Neck strengthening and upper limb girdle strengthening would assist in the longer term and this has some support in the published literature for treatment of neck pain.
Capacity for Work
1.If [sic] Ms Gibbs currently medically fit to engage in any type of suitable employment? If so, please detail the type of duties, hours and restrictions.
Not applicable in that I do not believe that Ms Gibbs’ former employment contributes to her current condition.
2.Are there any other factors or barriers causing inability to work or work restrictions? If so, please provide details.
The same comments apply.
Household Services
In my view Ms Gibbs’ former employment does not continue to contribute to her current condition.
1. Does Ms Gibbs’ functional capacity relating to her accepted condition prevent her from being able to undertake dusting, vacuuming, cleaning tables, bathrooms, kitchen, toilets and gardening tasks?
2. What tasks can Ms Gibbs do?
3. Could Ms Gibbs undertake some or all of the above tasks if she were to do them a bit at a time over the course of a week or two? If not why?
4. Are there any aids or appliances which could assist Ms Gibbs to undertake some or all of the tasks?
5. What tasks does Mr Gibbs currently perform and what additional tasks could he assist with?
6. If assistance is required, what is the reasonable amount of hours per week Ms Gibbs requires?
Questions 1, 2, 3, 4, 5 and 6 are not applicable.
Other
1. Does Ms Gibbs still care for her young grandchildren twice weekly?
Ms Gibbs did not indicate this was the case. She did indicate attending to her mother and taking her mother to appointments.
2. If so, how many hours per week and what are the tasks she performs for their care?
Not applicable.
3. If Ms Gibbs is able to care for her young grandchildren twice weekly, why does Ms Gibbs need assistance with activities of daily living?
In my view Ms Gibbs is able to care for young grandchildren twice weekly.
…” (T70)
By letter dated 21 October 2014, the respondent’s solicitors provided to Dr Bowles voluminous background documentation relating to the applicant and requested him to consider that documentation and provide to them a report addressing the questions stated in their letter (part of Exhibit R4). In response to that letter, Dr Bowles provided a report, dated 24 October 2014, as follows:
“ …
REVIEW OF MEDICAL DOCUMENTATION
I acknowledge receipt of documents and reports as listed on page 2 of your letter dated 21 October 2014.
I have been provided with reports from 2011 onwards in my previous reviews of Ms Gibbs.
I reviewed the forwarded documentation, including:
· Report, Dr Chris Hammersley, Consultant Occupational Physician, dated 31 January 2006. Dr Hammersley reviewed Ms Gibbs on 31 January 2006 for fitness for work and suitable work conditions with respect to left neck pain. A history was given of working with computers from the late 1980s. Dr Hammersley talked about the work duties and that Ms Gibbs would take regular breaks during the day. There had not appeared to be any critical change in the work system or workstation through the third and fourth quarters of 2005, and Ms Gibbs attending gym sessions which she had done since late 2004.
There had been a history of low back pain since the early 1980s leading to avoidance of housework.
Dr Hammersley noted left neck pain in the mid-1990s, indicating that Ms Gibbs had had a disc protrusion in 1993 at C5/6 level. However, there appeared to be an injection in 2001 which was reported to have resolved her complaint.
In mid-2005, lower neck pain increased again for no identifiable reason. A nerve root sleeve injection reduced the pain. There was an increase in neck pain in November 2005, with Ms Gibbs noting she had been working normally at the time of the pain increase. It was noted that Ms Gibbs had been attending a chiropractor monthly or second-monthly over some years. Ms Gibbs appeared to be working in her normal duties and attending the gym at the time of review with Dr Hammersley.
Dr Hammersley assessed left lower neck pain associated with radicular-type symptoms without objective evidence of radiculopathy.
· Dr Paul Graziotti, Pain Medicine Specialist, in his report of 26 April 2007, noted a ‘report of diffuse symptoms through both arms, stiffness, soreness and weakness’. Dr Graziotti organised another MRI scan.
On 12 July 2007, Dr Graziotti discussed that the new MRI was ‘very reassuring’. No new pathology was demonstrated. He felt ‘nothing sinister was going on’. Dr Graziotti reviewed Ms Gibbs on 31 January 2008 with a flare-up in pain since November. Ms Gibbs noted she was not sure what it related to, although it had been very busy at work. Review on 6 March 2008 showed pain in the left side of neck and shoulder had settled.
In a report on 29 June 2009 addressed to Comcare, Dr Graziotti outlined his attendances to Ms Gibbs. Ms Gibbs was seen on 18 October 2000 when she awoke with left-sided lower cervical pain radiating into the left arm. Investigation showed a large left C7 disc protrusion. Various treatments were provided, and by 3 April 2002 symptoms had improved significantly.
There was a presentation for lateral epicondylitis in November 2002, and the next presentation was 6 October 2005 with a recurrence of left-sided neck and arm pain.
This occurred spontaneously and was ‘in all ways similar to the previous pain’. An MRI scan in November 2005 showed a left C6/7 disc protrusion although this had reduced in size.
In February 2006, Ms Gibbs noted neck pain had been aggravated by work and that she had pain down the left arm, and, as a result, an epidural was performed by Dr Graziotti in February 2006, with significant improvement.
In April 2007, a further MRI was performed showing improvement in the C6/7 disc protrusion, although Dr Graziotti performed a facet joint injection in February 2008 for neck pain, but there appeared to be no arm pain at that time.
Dr Graziotti did note that he had seen Ms Gibbs in October 2005, which pre-dates the date of incident of 1 November 2005. It appears that the claim was accepted on the basis that keyboarding and computer work did tend to aggravate her symptoms. Dr Graziotti felt activities involving repetitive use of the left arm, in particular holding her arm in certain positions for long periods of time, which she may do with the computer work, in combination with the underlying problem, and, in particular, types of activities may result in symptoms which otherwise would not occur. Dr Graziotti felt employment had not caused the condition, however it had aggravated a pre-existing condition, being the left C6/7 disc protrusion.
The next review with Dr Graziotti was on 28 January 2010, with neck ‘playing up’. It appeared Dr Graziotti was going to repeat the facet joint injections.
A further presentation occurred in August 2011, with Ms Gibbs indicating ‘someone had changed her workstation’ and this had ‘flared things up for her’. This was slightly different to previous pain as it was more prominent on the right side but still around the neck with some radiation around the right shoulder.
In September 2011, complaints were ‘arms, headaches and jaw pain’, which Ms Gibbs attributed to her work on the computer. Ms Gibbs had been doing a lot of exercise and had lost some weight. A repeat MRI scan showed the ‘C6/7 posterolateral disc osteophyte complex had increased very slightly in size’. There had been development of disc degeneration at C5/6. In September 2012, complaints were noted around the left thoracic spine around T7/8.
· Dr Suzanne Ng, in her report to Comcare, on 28 November 2007, noted a presentation for neck pain in 2000 with an initial presentation on 27 June 2000 without a history of trauma. A CT scan was performed on 12 October 2000 which showed a ‘left paracentral disc protrusion which effaces the anterior theca and compromises the origins of the C7 and C8 roots’.
Ms Gibbs continued to be reviewed with neck complaints along with lateral epicondylitis in 2002, however there were no consultations in relation to those complaints in 2004.
In 2005, there had been exacerbation of a previous neck injury in November. This was the first occasion that Dr Ng was aware it was a work-related injury. Dr Ng diagnosed a ‘prolapsed disc at C6/7 causing radiculopathy of C7’, and she felt contributing factors were ‘prolonged static postures at work and also muscular tension from stress’. Dr Ng noted a prolapsed disc and degenerative change present on a CT scan of 12 October 2000, however these symptoms settled by the end of 2002 for nearly three years.
Dr Ng provided a report to ATO People in August 2012, describing a ‘long history of chronic pain in the neck, shoulders and arms, and headache due to soft tissue injury to neck’. Dr Ng provided a further report on 4 October 2013, with the condition stated as ‘cervical degenerative disc disease with chronic pain and cervicogenic headaches’, which documented ‘degeneration at C5/6 and C6/7’.
· Mr John O’Connor, Consultant Orthopaedic Surgeon, provided a report on 28 March 2008. This made reference that ‘discomfort commenced on 01 November 2005, with a history given that Ms Gibbs was sitting at her work desk using her computer when she developed quite suddenly discomfort over the left side of the neck’.
Comment:
This does not coincide with Dr Graziotti’s report, where he had reviewed Ms Gibbs on 06 October 2005 with recurrence of left-sided neck and arm [sic] which occurred spontaneously. Radiofrequency rhizotomy and C7 nerve root injection were performed on 12 October 2005.
Mr O’Connor diagnosed ‘discogenic pathology in the cervical spine’. Mr O’Connor felt, prior to November 2005, there had been symptomatic pathology which he felt, on balance of probability, was unlikely to have been caused by employment at the Australian Taxation Office. He did note it was probable that aggravations or the exacerbations of her symptoms occurring on 1 November 2005 and subsequently were a consequence of her employment with the Australian Taxation Office. He felt the natural history of an underlying condition was more likely than not to have gradually progressed with the passage of time, but not necessarily have caused her significant disabling symptoms.
Comment:
An MRI scan on 14 November 2005 had shown the left C6/7 disc protrusion had reduced in size.
· Mr Soni Narula, Neurosurgeon, in his report of 31 March 2009, suggested conservative management.
· Report, Kensington Chiropractic for Health. Ms Gibbs first attended on 28 September 1999, however first reported pain in right shoulder and arm on 7 April 2011.
· Report, Dr John Pearce, Occupational Physician. Dr Pearce gave a history of neck impairment dating back to 1998. Dr Pearce, on 1 November 2011, diagnosed ‘acute exacerbation of chronic mechanical neck pain’. Dr Pearce reviewed Ms Gibbs on 13 February 2012, indicating ‘pain had got worse, reportedly being an intensity of 10 out of 10.’ ‘Chronic pain had led to a secondary depressive disorder’.
Dr Pearce made reference to ‘no past medical history of inflammatory bowel disease’.
Comment:
This was not correct. Dr Ng’s letter of 28 November 2007 does detail that Ms Gibbs had been previously diagnosed with Crohn’s disease.
Further comment was made by Dr Pearce on 12 March 2012 commenting on Mr McCloskey’s report, with Mr McCloskey noting ‘multi-level degenerative disease maximal at C5/6 and C6/7 not amenable to decompressive surgery’.
On 15 June 2012 Dr Pearce felt Ms Gibbs had developed a ‘chronic pain disorder/chronic pain syndrome secondary to multi-level degenerative disease with secondary depression’.
· Report, Mr Eamonn McCloskey, Orthopaedic Surgeon, 20 February 2012 with a presentation of ‘neck, bilateral arm pain, paraesthesia and heaviness’. Dr McCloskey felt ‘neck pain related to injury/disruption/degeneration C5/6, C6/7’.
· A copy of my report dated 16 September 2013. The history given to me on that date was trouble in the neck on the left from 2005.
Comment:
Again, this would appear to be factually incorrect.
The next section of reports relate to radiology, which included:
· An MRI scan on 27 August 2001 showing a ‘large left posterolateral disc protrusion and degenerative disc disease at C5/6’;
· A repeat MRI scan in November 2005 suggested the ‘disc protrusion had reduced in size’;
· In 2007 an MRI scan was reported as showing that the disc protrusion had not progressed;
· An MRI in 2009 again noted ‘appearance unaltered at C6/7” and also reiterated the previous findings of ‘degenerative disc appearances at C5/6”;
· In 2011, the protrusion was felt to have increased marginally. There was a moderately advanced left facet joint arthropathy at C3/4.
Also available were:
· Reports from Medibank Health Solutions, with Ms K Sutherland outlining her involvement. Reference was made to a change in the workstation, with complaints in the neck and upper back and referred pain the jaw;
· Reports from Dr Graziotti who, in October 2000, noted Ms Gibbs ‘waking up two weeks prior with left-sided lower cervical pain radiating to the left shoulder and left arm’;
· A referral letter from Dr Ng dated September 2000 indicated Ms Gibbs ‘having neck pain intermittently since aged 21’, and there appeared to be an episode of significant pain necessitating a home visit in July 2000;
· A copy of chiropractic notes, which indicated attendance from at least 28 September 1999;
· I note the Claim for Workers’ Compensation describing ‘when first noticed ill’ [sic] as ‘1 November 2005’.
Comment:
The evidence from Dr Graziotti would suggest otherwise, namely seeing Ms Gibbs on 06 October 2005 and writing a report on the same day.
Ms Gibbs had been referred by Dr Ng on 15 August 2005 to Dr Graziotti. Dr Graziotti had performed a rhizotomy and nerve root sleeve injection, and for two weeks there was no pain, but then a flare-up, which Dr Graziotti felt was often the case after a rhizotomy. These were performed on 12 October 2005.
Ms Gibbs had also seen Dr Angela Vincent on this occasion. Reference to that matter is made by Dr Ng when she became aware of a Workers’ Compensation claim.
· Another claim for compensation was completed on 20 June 2011, with the ‘reason for injury’ put as ‘screen was adjusted’.
Also attached was various correspondence from Comcare to Ms Gibbs.
SCHEDULE OF QUESTIONS
3.1 In your report of 16 September 2013 you concluded that:
(a) the applicant suffered from an age-related degenerative condition of her cervical spine;
It appeared the general medical consensus was that Ms Gibbs does suffer from an age-related degenerative condition of her cervical spine. This has been clearly demonstrated on the serial MRI scans.
(b) her employment with the ATO was not related to that condition;
Employment with the ATO was not related to the degenerative condition of the cervical spine.
My reading of the medical literature … would support that conclusion.
(c) her employment with the ATO did not aggravate the condition; and
Employment with the ATO did not aggravate the age-related degenerative condition in my view.
In terms of aggravation, I would define this as a permanent worsening of a pre-existing condition. In that regard, I believe the work activities have not led to an added disease burden or a permanent worsening of the degenerative condition of the cervical spine.
Due to the underlying nature of the problem, one would accept exacerbations, in terms of temporary worsening of the condition, in that people with degenerate spinal conditions have mechanical symptoms, that is, stiffness and pain with static posturing and with activity. However, I am not of the view that the ATO duties led to a permanent worsening of that condition.
The other confounding issue is that, as noted above, the frequency of neck complaints in general [sic]. Some of Ms Gibbs’ neck complaints may in fact have had nothing to do with her aging processes, but some simple sprain/strain tension-type complaints that one experiences in the course of one’s day-to-day life. This evidenced in 2011, with some right-sided complaint.
However, the majority of symptoms did appear to be left-sided with an element of radicular symptoms, suggesting the majority of symptoms were related to the identified pathology.
(d) having ceased employment at the ATO any exacerbation that occurred in the course of her employment had no ongoing relationship to her underlying condition.
Given the above sentiments, exacerbations, being temporary worsening in the workplace, having left the workplace, those exacerbations have since been superseded by the underlying processes.
3.2Having regard to the further material, particularly the earlier medical reports (noting that you were originally only provided with reports from 2011 onwards), do you have any cause to change any of the opinions expressed in your report dated 16 September 2013? Please provide reasons for your answers whether your opinions remains [sic] unchanged or otherwise.
Review of the earlier medical reports does not lead me to have cause to change opinions expressed.
The enclosed documentation suggests neck pain at least starting in 2000 and if not well before that (1993 – according to Dr Hammersley’s report).
I have also highlighted a few inconsistencies presented in various histories.
…
In my experience, people do get postural muscular aches and pains when sitting. Neck ache and pain may also occur with tension and stress. Neck pain, and indeed musculoskeletal pain anywhere, may occur spontaneously, and this is evidenced with Ms Gibbs’ report of her neck pain and arm pain occurring initially for no specific reason in terms of physical activity or trauma.
However, the ‘reason’ was the underlying disc degeneration which naturally progressed through to a disc protrusion and impingement on the nerve root.
Back pain has been more extensively studied, and surveys of the onset of back pain (and sciatica) would show onset does occur whilst performing a normal day-to-day activity without untoward effect, or pain coming on gradually without any identifiable reason.
Therefore, I have not changed my conclusion.
…”(part of exhibit R4)
The Evidence of the Medical Witnesses
Dr Suzanne Ng
Dr Ng (who was called as a witness by the applicant) said that she has been treating the applicant since July 1999 and that her diagnosis of the applicant’s condition is prolapsed cervical disc and degenerative neck disease. She said that the applicant’s current position is that she gets cervicogenic migraines and pain down her arm and shoulder as a result of her cervical disc prolapse causing chronic pain and disability. She opined that the applicant is totally unfit for any retraining because she “cannot sustain sitting or reading for very long” and she “struggles with the activities of daily living”. She also opined that the applicant continues to require medication for her condition and assistance with household activities as a result of her condition.
In cross-examination Dr Ng gave evidence to the following effect:
·exacerbations of pain may occur as a result of activities and such exacerbations, depending on their severity, may “compromise the muscle tone and then there may be more stress on the ligaments and they are going to have to do all the work and things are going to wear faster”;
·if, as a result of an exacerbation, there is enough compromise of core muscle tone and instability around the joint, and if the muscles, during an exacerbation, “become so weak and disordered that they are no long operating properly any more, then it’s going to lead to some degree of permanent exacerbation” – for example, if somebody badly sprains their ankle, the sprain may heal but, because the tendons are then never the same, they will always be more prone to being sprained more severely the next time;
·some of the applicant’s “baseline pain” is due to her having disordered core muscle function around the neck such that she has not been able to re-attain good core muscle function around the neck to support the joints, and she is going to have episodes of pain as a result, some of which will be due to work activities, and some of which will be due to non-work activities;
·she does not know whether the applicant’s employment caused her condition but her “employment has created an exacerbation and probably accelerated the degeneration” – by way of analogy, a footballer has an injury to their knee and it is “fixed up surgically” and they “might have gotten over it” and they return to playing football but, by the time they are in their fifties, they are “knee cripples” because “the arthritic process has been accelerated by the repeated injuries”.
In response to questions from the Tribunal, Dr Ng expressed the opinion that all the repeated exacerbations of symptoms suffered by the applicant as a result of her work activities “would have led to some permanent aggravation of the degenerative process”, and that “is not going to suddenly disappear after three months or even 12 months”.
Dr Michael Bowles
Dr Bowles (who was called as a witness by the respondent) said that he had reviewed both of his abovementioned reports, dated 16 September 2013 and 24 October 2014 (set out in paragraphs 36 and 37 above), and that he adhered to the opinions expressed by him in those reports. In particular, Dr Bowles reiterated his opinion that the applicant’s work activities at the ATO did not aggravate, or alter the course of, her pre-existing degenerative disease process. He also reiterated his opinion that the exacerbation of neck pain symptoms experienced by the applicant when performing certain activities, including her ATO work activities, would be expected to settle back down again when she ceased performing those activities. As regards symptoms attributable to her ATO work activities, Dr Bowles opined that these would be expected to settle down “within a few days to a few weeks” after the cessation of those activities.
As regards Dr Ng’s opinion that the multiple work-related exacerbations of symptoms suffered by the applicant would have contributed to the acceleration of the degenerative process in her cervical spine, Dr Bowles noted that there is no radiological evidence that the applicant’s degenerative cervical spine condition had changed over time. He also commented that the example of an ankle sprain referred to by Dr Ng was one involving trauma to the joint and the tearing of ligaments rendering them inherently weaker; likewise, in the case of a footballer suffering a knee injury in such a contact sport. Dr Bowles did not regard those examples as apposite to the applicant’s case because, to his knowledge, the exacerbations suffered by the applicant in the course of performing her ATO work activities were not associated with trauma.
In cross-examination, Dr Bowles explained that, in his report of 16 September 2013, he did not answer the questions asked of him by the respondent regarding the applicant’s capacity for work and the necessity for household services because he understood that those questions only arose if he was of the opinion that the applicant’s former ATO employment continued to contribute to her current condition, whereas he was of the contrary opinion. He, nevertheless, expressed the opinion that the applicant had the capacity for “sedentary employment with pause and posture breaks” and “an appropriate ergonomic set-up”. Likewise, in relation to household tasks, Dr Bowles opined that the applicant had the capacity to perform them with “pause and posture breaks”.
Dr John Pearce
Dr Pearce (who was called as a witness by the respondent) confirmed that he had prepared three reports for the ATO regarding the applicant’s capacity for rehabilitation having regard to her neck impairment, dated 1 November 2011, 13 February 2012 and 12 March 2012 (see paragraphs 30–32 above). He confirmed that he subsequently prepared a report, dated 15 June 2012, in which he expressed the opinion that the applicant was totally and permanently incapacitated for work (see paragraph 33 above). He also confirmed that he prepared a report, dated 11 November 2014, addressing the question of the cause of the applicant’s neck impairment, a question which he had not been required to address for the purpose of preparing his previous reports. He said that he adhered to the opinions expressed by him in his report of 11 November 2014 (set out in paragraph 35 above).
Dr Pearce explained that his reference to “temporary aggravation” in his report of 11 November 2014 was a reference only to the applicant’s symptomatology, not to her pre-existing pathology or degenerative disease. As regards the expected duration of the temporary aggravation of symptomatology resulting from the applicant’s work activities, he opined that “it would generally resolve within six weeks” of her ceasing those activities but he added that, in his report, he had given the applicant “the benefit of the doubt” and referred to a period of 12 weeks after the cessation of work activities.
Dr Pearce disagreed with Dr Ng’s opinion that the exacerbation of symptoms suffered by the applicant in the course of performing her ATO work activities had contributed to the acceleration of the process of degeneration of her cervical spine. He said that any increased susceptibility of the applicant to exacerbation of symptoms at the present time is entirely due to the natural progression of degeneration of her cervical spine.
It is unnecessary to refer to Dr Pearce’s evidence in cross-examination.
The Relevant Legislation
The SRC Act relevantly provides as follows:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
attendant care services, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee.
…
household services, in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
medical treatment means:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c)dental treatment by, or under the supervision of, a legally qualified dentist; or
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…”
“5 Employees
(1) In this Act, unless the contrary intention appears:
…
employee means:
(a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b)a person who is employed by a licensed corporation.
…
(9) A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.
…”
“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;
…”
“ 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.
…”
“ 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.
…”
Sections 19, 20, 21 and 21A (in Div 3 of Part II) of the SRC Act provide for the payment of compensation “to an employee who is incapacitated for work as a result of an injury”.
Subsections (1) and (3) of s 29 of the SRC Act provide for the payment of compensation in respect of the cost of, respectively, “household services”, and “attendant care services”, where, “as a result of an injury to an employee”, the employee obtains such of those services that he or she “reasonably requires”.
The Issue
As previously mentioned:
·on 7 December 2005 the respondent accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “neck sprain” and “sprain of shoulder & upper arm (left)” suffered on 1 November 2005 (“the 2005 injury”);
·on 18 August 2011 the respondent accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of “aggravation of neck sprain” and “sprain of shoulder and upper arm (right)”, the accepted date of injury being 21 April 2011 (“the 2011 injury”).
On 18 November 2013, however, the respondent determined that the applicant was not presently entitled to:
·compensation in respect of medical expenses under s 16 of the SRC Act in relation to the 2005 injury;
·compensation in respect of medical expenses under s 16 of the SRC Act, or compensation for incapacity payments under s 19 of the SRC Act, or compensation for household services and attendant care services under s 29 of the SRC Act, in relation to the 2011 injury.
On 8 April 2014 the respondent affirmed each of those determinations.
Accordingly, the issue for the Tribunal’s determination is whether the applicant has, from 18 November 2013 to date, continued to suffer, and is presently suffering, from the effects of the 2005 injury and/or the 2011 injury, such that the respondent has continued to be liable, and is presently liable:
·to pay compensation to her for medical expenses under s 16 of the SRC Act in relation to the 2005 injury; and/or
·to pay compensation to her for medical expenses under s 16 of the SRC Act, or compensation for incapacity payments under Div 3 of Part II of the SRC Act, or compensation for household services and/or attendant care services under s 29 of the SRC Act, in relation to the 2011 injury.
Consideration
The respondent does not dispute, and the Tribunal accepts, that the applicant has, from 18 November 2013, continued to experience pain symptoms in her neck, shoulders and arms. The question whether any of those ongoing pain symptoms are resulting from the 2005 injury and/or the 2011 injury is, however, a medical question and is to be determined by the Tribunal on the basis of the whole of the medical evidence before it.
The medical evidence before the Tribunal which bears directly on the abovementioned question is that of Dr Ng, Dr Bowles and Dr Pearce. Unfortunately, that evidence is not consistent.
Dr Ng, the applicant’s treating general practitioner since July 1999, opined that the 2005 injury and the 2011 injury probably accelerated or aggravated the applicant’s degenerative cervical spine condition and have thereby continued to contribute to her ongoing symptoms of pain in her neck, shoulders and arms to the present day. Dr Bowles and Dr Pearce, on the other hand, have opined that, although the applicant’s work activities at the ATO from time to time caused exacerbations of the pain symptoms in her neck, shoulders and arms resulting from the 2005 injury and the 2011 injury, the effects of those exacerbations of pain symptoms would have ceased within a relatively short time (no longer than three months) of her ceasing to perform such work activities, and that, thereafter, her ongoing pain symptoms in her neck, shoulders and arms have been wholly attributable to other, non-work-related causes, including her degenerative cervical spine condition. The Tribunal notes that it is common ground that, although the applicant’s invalidity retirement from the ATO took effect on 3 December 2012, she had in fact ceased to perform work activities at the ATO in June 2012.
The Tribunal prefers the evidence of Dr Bowles and Dr Pearce – both very experienced and highly qualified specialist occupational physicians – to that of Dr Ng for the following reasons.
Although Dr Ng has been the applicant’s treating general practitioner since July 1999 and throughout the period of her employment by the ATO when she suffered the 2005 injury and the 2011 injury and thereafter to the present time, and therefore has the greatest familiarity with the applicant’s medical status throughout that period, the Tribunal does not regard her evidence regarding the continued existence of a causal relationship between the applicant’s ATO employment activities (in the course of which she suffered the 2005 injury and the 2011 injury), which finally ceased in June 2012, and her subsequent ongoing pain symptoms in her neck, shoulders and arms, as convincing. The Tribunal notes, in the first place, that Dr Ng, in her most recent report of 4 October 2013 (set out in paragraph 24 above), incorrectly described the injury for which the respondent had accepted liability to pay compensation to the applicant as “cervical degenerative disease” and it seems to the Tribunal that the opinions expressed by her in that report regarding the applicant’s ongoing entitlement to compensation for medication, incapacity, and household services were based on that misunderstanding. In cross-examination, when the precise descriptions of the 2005 injury and the 2011 injury were put to Dr Ng, she, in the Tribunal’s opinion, did not provide a satisfactory explanation for her opinion that the 2005 injury and the 2011 injury probably accelerated or aggravated the applicant’s degenerative cervical spine condition and have thereby continued to contribute to the applicant’s ongoing symptoms of pain in her neck, shoulders and arms in the period since she ceased employment with the ATO in 2012 to the present day, having regard, in particular, to the absence of any radiological evidence that the degenerative condition of the applicant’s cervical spine had significantly changed since 2000. The Tribunal agrees with Dr Bowles (see paragraph 42 above) that the examples regarding an ankle sprain and a footballer’s knee injury given by Dr Ng in her evidence (see paragraph 39 above) are not apt to explain and support her opinion that the 2005 injury and the 2011 injury, neither of which was associated with the kind of trauma that would be associated with an ankle sprain or a footballer’s knee injury, have continued to contribute to the applicant’s ongoing symptoms of pain in her neck, shoulders and arms in the period since she ceased her employment with the ATO. The Tribunal observes, furthermore, that, in its opinion, Dr Ng tended to avoid answering directly certain questions put to her in cross-examination and she thereby appeared to the Tribunal to be seeking to advocate the applicant’s cause rather than giving her evidence objectively. That consideration, in the Tribunal’s opinion, detracts from the weight which it might otherwise have attached to Dr Ng’s evidence.
Although Dr Bowles saw the applicant on only one occasion, namely, on 16 September 2013, for the purpose of examining her at the respondent’s request and preparing his report of 16 September 2013 (set out in paragraph 36 above), the Tribunal regards his report of 16 September 2013 and his report of 24 October 2014 (set out in paragraph 37 above) as comprehensive and the opinions expressed therein as objectively presented, soundly reasoned, and persuasive. The Tribunal, accordingly, attaches great weight to the abovementioned reports, and to the oral evidence, of Dr Bowles.
Dr Pearce was very familiar with the relevant circumstances of the applicant’s case, having seen her on three occasions (namely, on 26 October 2011, 8 February 2012 and 13 June 2012), at the request of the ATO, for the purpose of assessing her fitness to undertake a rehabilitation program and preparing reports thereon (see paragraphs 30–31, 33 above). The Tribunal notes that, as at the dates of those reports, namely, 1 November 2011, 13 February 2012 and 15 June 2012, it was accepted by the respondent that the 2005 injury and the 2011 injury were continuing to contribute to the symptoms of pain being experienced by the applicant in her neck, shoulders and arms. Accordingly, Dr Pearce was not requested specifically to address that causation issue and he did not do so in those reports. However, Dr Pearce was requested by the respondent’s solicitors, in their briefing letter to him of 21 October 2014 (part of Exhibit R5 – set out in paragraph 34 above), to answer various questions, including the question:
“ Have the effects of the work related condition ceased, and if so, when?”
and in his report of 11 November 2014 (part of Exhibit R5 – set out in paragraph 35 above), Dr Pearce answered that question as follows:
“ Yes
It is my opinion the temporary aggravation of the symptomology [sic] related to Miss Gibbs’ work activities would have resolved three months after she ceased work. I understand Miss Gibbs last worked on the 3 December 2012, therefore it is reasonable to assume any work related aggravation should have ceased in March 2013.
Any ongoing symptomatology post March 2013 would be related to her age, natural progression of her degenerative disease and current avocational activities.”
The Tribunal notes that, according to the evidence before it, the applicant in fact last undertook work activities at the ATO in or about June 2012, although her employment with the ATO did not cease until 3 December 2012. Having regard to Dr Pearce’s specialist expertise, experience and familiarity with the relevant circumstances of the applicant’s case, the Tribunal attaches great weight to his report of 11 November 2014 and to his oral evidence.
Accordingly, the Tribunal accepts the evidence of Dr Bowles and Dr Pearce, and, on the basis of that evidence, it finds that, in the period from 18 November 2013 to the present date, and as at the present date, the 2005 injury and the 2011 injury had ceased to contribute, and are not contributing, to symptoms of pain experienced by the applicant in her neck, shoulders and arms in that period, and presently. In other words, the Tribunal is satisfied, and finds, that as at, and from, 18 November 2013 to the present date, and as at the present date, pain symptoms experienced by the applicant in her neck, shoulders and arms in that period, and presently, were, and are, not causally related to the 2005 injury and/or the 2011 injury. The Tribunal accepts the opinion of Dr Bowles and Dr Pearce that such symptoms experienced by the applicant in the period from 18 November 2013 are entirely attributable to factors unrelated to the 2005 injury and the 2011 injury and her former employment by the ATO, including the degenerative condition of her cervical spine and the activities of daily living.
Conclusion
In respect of the 2005 injury, the Tribunal concludes that, for the period from 18 November 2013 to date, and as at the present date, the respondent is not liable to pay compensation to the applicant pursuant to s 16 of the SRC Act in relation to that injury.
In respect of the 2011 injury, the Tribunal concludes that, for the period from 18 November 2013 to date, and as at the present date, the respondent is not liable to pay compensation to the applicant pursuant to s 16, Div 3 of Part II, or s 29 of the SRC Act in relation to that injury.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ..................[sgd D Brodie]..............................................
Administrative Assistant
Dated 12 February 2015
Dates of hearing 22, 23 January 2015 Representative of the Applicant Mr S Gibbs Counsel for the Respondent Ms G Walker Solicitors for the Respondent Sparke Helmore
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