STEVEN GREENE and COMCARE
[2013] AATA 61
[2013] AATA 61
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0424
Re
STEVEN GREENE
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
DR ION ALEXANDER, MEMBERDate 5 February 2013 Place Canberra The decisions under review are affirmed
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PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION – Commonwealth employees – Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14 – applicant suffered from vertigo, fibromyalgia and a chronic cervical condition – whether incident in 2010 classified as vertigo – whether vertigo arose out or contributed to by employment – whether contributed to by employment to a significant degree – whether aggravated by employment
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) ss 4, 5A, 5B, 14
Cases
Re Cahill and Comcare [2011] AATA 734
Comcare v Mooi (1996) 69 FCR 436
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Ogden Industries Pty ltd v Lucas (1967) 116 CLR 537
Zickar v MGH Plastics Ltd (1996) 187 CLR 310
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER, DR ION ALEXANDER, MEMBER
5 February 2013
Introduction
In 2010 Mr Steven Greene (formerly Mr Steven Dukic) had been employed part-time for 25 hours a week as an Administrative Service Officer (ASO) Level 5, at the Department of Health and Ageing (agency). On 12 February 2010 when lifting a heavy box, Mr Greene felt shoulder and neck pain, followed by an episode of dizziness, and was hospitalised for nearly a fortnight.
He sought compensation from Comcare. On 1 October 2010, Comcare accepted liability for ‘aggravation of vertigo – benign positional’, for the period 12 February 2010 to 5 March 2010, but rejected, for lack of evidence, the claim for aggravation of cervical spondylosis.
On 6 January 2011, Comcare revoked the decision in relation to the vertigo condition and affirmed the decision in relation to the cervical spine condition. Mr Greene sought review of both decisions by the Tribunal on 8 February 2011.
Background
There is confusion in the various reports as to the date of injury; some refer to 11 February 2010, as did Mr Greene in his workers’ compensation claim. However, the First Aid report, the Incident Report, and The Canberra Hospital (TCH) Discharge Summary, record him being hospitalised from 12 February 2010. The Tribunal, throughout these reasons, has referred to 12 February 2010 as the date of injury.
On 12 February 2010, Mr Greene was helping a colleague at work lift a heavy box of books. He said they moved the books two to three metres ‘and when he placed the tub down he felt a sharp pain in his neck. After that he experienced an episode of dizziness which caused him to fall on the floor’. He said he went to the bathroom and while there he ‘felt dizzy and fell towards the ground and was caught by a colleague’. He believed he lost consciousness for a period. He was taken by ambulance to TCH which listed presenting issues as sudden onset vertigo, followed by nausea, vomiting, and gait disturbance.
He remained in hospital for 13 days and was discharged on 25 February 2010, the discharge diagnosis being ‘functional neurological symptoms’. The discharge summary also referred to a background history of depression, chronic back pain and headaches, vertigo and Meniere’s disease, hypertension and fibromyalgia. For the next four months he used a walking frame and then resorted to a walking stick. Mr Greene attempted a graduated return to work on 24 May 2010, but he lasted only 2-3 weeks. He has since returned to work for about nine hours a week.
Subsequently Mr Greene claimed he suffered ‘ongoing psychological effects’ and has had ‘persistent balance disorder’. Mr Greene dated his vertigo problem to a chiropractic manipulation around 1981. He claims that since then he has had a balance problem which he describes as a floating feeling and a tendency to veer to one side. He experiences these sensations all the time. They are mostly in the background, but on occasions he has had more severe episodes of vertigo.
Mr Greene said he had experienced previous vertiginous episodes resulting in an admission to hospital. He was seen by Dr Danta, neurologist, Royal Canberra Hospital, in 1981, 1982 and 1987. On 22 October 1995 he was admitted to TCH and was diagnosed with ‘vertigo –without obvious cause’. He left hospital that day. A fall at home had preceded the episode.
On 14 January 1998 he was admitted to TCH with vertigo and was seen by Dr Tuck. On this occasion Mr Greene said he had been on the computer surfing the net and when he got up his vertigo got worse. He was brought in to hospital by ambulance but was discharged that day.
He had also attended the Emergency Department on 22 September 2002. The CT scan of his brain was normal. He was diagnosed with ‘vertigo of unknown cause’. The notes refer to: ‘Vertigo has been persistent over recent years: of variable severity. … Also worsened by exertion’. His vertigo was said to be ‘associated with neck pain and nausea and blurred vision and feeling of heaviness in his arms’. On this occasion, the condition emerged following a severe headache which started when Mr Greene was at Floriade the previous day. Mr Greene was in hospital for three weeks.
Evidence of Mr Greene
Mr Greene said since 1981 when his neck was manipulated by a chiropractor, he has experienced dizziness and problems with his balance, and vision and has had chronic neck pain. He said the dizziness is a problem ‘on and off’, but is always there although to a manageable degree.
About six years ago he said he was diagnosed with fibromyalgia which means he has widespread pain mostly in his torso, moving into his shoulder, but also at times in the legs and buttocks. In his statement he said that since 2000 he had been able to manage his medical conditions and undertake work with little or no restriction. Since the incident on 12 February 2010, he said his vertigo has improved but is still worse than it was previously as is his muscular pain. He said he is more anxious about the continuation of the vertigo and the pain, and is constantly aware of health problems now whereas before they were simply in the background.
On 12 February 2010 Mr Greene said he experienced a sharp pain on the right side of his neck, following his moving of the tub of books. Mr Greene said in his estimate the tub weighed about 50kg, an estimate of which he was confident having been involved in delivery work. He said the pain was ‘completely different’ from his familiar fibromyalgia pain. The intensity of his neck pain was something new. At the same time he said the symptoms were similar to when he had collapsed ‘years and years beforehand’.
Mr Greene said he usually has a warning sign prior to a severe vertigo incident but he did not recall saying to the social worker at TCH in February 2010 that he had been to his GP, Dr Glenn Dillon, just before the incident because he was not feeling well and that was his ‘prior warning’. He accepted that his medical conditions were at least part of the reason he had been working part-time for a period prior to 2010, but could not recall telling the social worker at TCH that he was doing so on the advice of the general practitioner.
Mr Greene also could not recall telling Dr Dillon on 5 January 2007 that he had ‘Trialled new job but didn’t manage for long. General spasm and some balance issues’ or that he had given information to Dr Dillon on 7 February 2007 which led the doctor to record ‘Things in status quo, managed a few two-to-three-hour shifts’. He also said he had no recollection of the history recorded in her clinical notes by Dr Brenda Masters, Kingston Clinic, on 12 December 2007 ‘Struggling to keep up at current work four hours every morning. Feeling stressed and pressured, anxious, worried that won’t be able to maintain it’.
He also could not explain why the resident medical officer, TCH, who recorded a history on his admission on 12 February 2010 specifically noted ‘No headache or other neck stiffness’. This was contrary to Mr Greene’s evidence that at the time of the incident he suffered a sharp neck pain, different to his fibromyalgia pain. In cross-examination he maintained that he had told the Emergency Department and medical staff on the ward about his neck condition, and had requested an MRI of his neck, and they had refused to accept his story telling him instead that he had a neurological problem. His only explanation was that his neck problem was submerged because at that stage the focus was on helping him relearn to walk. He did, however, agree that his history to Mr Gordon Stuart, consultant neurosurgeon, whom he saw on 6 September 2010, did not mention any sharp pain in his neck on 12 February 2010.
Mr Greene said in re-examination that documents completed at his workplace, a First Aid report which referred to him being dazed, when Mr Greene is recorded as complaining only ‘of soreness in his body/back and… of nausea and being hot’, and an Incident report, which quoted Mr Greene as saying only ‘I felt ill & weakness in my shoulders & arms‘ and ‘felt faint’ and in which the ambulance officer had noted ‘shoulder & arm strain; presented stroke like symptoms; ongoing psychological effects; persistent balance disorder’, were not completed by him, even if he signed the Incident Report. However, his workers’ compensation claim, which was filled out by him on 29 June 2010, referred to ‘sharp pain in shoulder and neck’ and ‘felt shoulder and neck pain with vertigo minutes after’.
Mr Greene said the absence of reference to neck pain in the report of the Emergency Department at TCH or in the admission notes, and the fact the resident medical officer’s report notes state ‘no headache or other neck stiffness’, did not mean he had not mentioned it. He said that the staff must not have recorded it. He maintained he had informed them and the response from hospital staff was that he had a neurological problem, not a neck problem.
In relation to the absence of any reference to neck problems in Dr Dillon’s clinical notes on the first occasion he saw him after leaving hospital, Mr Greene’s explanation was that his neck problem was secondary at that time to his learning to walk and to function. He also denied that in 2005 he had had suicidal thoughts because of his neck pain and depression.
Although vague about his employment history, it appears that since leaving school Mr Greene has had periods, some lengthy, of unemployment. Mr Greene said that about two years after the manipulation in 1981 his dizziness had settled down and he had modified his life to manage his conditions to the extent that he could find employment. For a time before Mr Greene joined the agency he was doing occasional machinery repair work, working mostly from home. Between 2006 and 2010, Mr Greene was working for the agency doing data entry and by 2010 he was managing 25 hours a week and had successfully been appointed to a part-time permanent position and been promoted. His evidence was that at this time his medical conditions were stable, he was functioning well and did not need to take time off. However, he acknowledged that clinical notes in 2007 and 2008 from his general practice indicated at the time his balance and dizziness conditions meant he was having difficulty managing. Currently he is working nine hours a week.
Mr Greene said his non-work activities had suffered since the incident in February 2010. He no longer played the guitar, or did drumming, nor does he go fishing. He now has difficulty with vacuuming, and hanging up the washing; and he can no longer split wood for the fire. However, in cross-examination it was noted that he had told Dr Speldewinde in 2005 that he had stopped playing guitar, which Mr Greene accepted was the case.
At the moment he said his medication involved use of Fentanyl patches (pain relief) 75 mg; Noten (for blood pressure) 50mg twice a day; Ativan on occasion (for anxiety); Celebrex, an anti-inflammatory. He had gone off Oxycontin about twelve months earlier because he was becoming tolerant to it. He also takes Panadeine Forte for pain relief, including for his headaches, when needed. It helps with his headaches but not with his blurred vision.
He said before the incident he might have a migraine once a month and he had not had another significant vertigo attack since 2002, that is, for about eight years. Mr Greene said that doing things quickly can cause a vertigo attack, or going round corners. Mr Greene said he suffers neck pain every couple of days. Prior to the accident he had a problem with his neck but ‘it wasn’t prominent’. However, he conceded that he had chronic neck pain prior to the incident, commencing in 1981. He also said that since the chiropractic treatment in 1981 he has had dizzy spells ‘on and off’ which affects his balance and prevents him driving. At the moment he said his dizziness was ‘only occasionally debilitating’.
Mr Greene agreed in cross-examination that he had suffered more frequently from dizziness prior to February 2010 than he had expressed in his statement. Nonetheless, he denied that he had had a chronic, significant vertigo condition since 1981.
Medical and allied health evidence
Dr Danta
In 1981 Dr Gytis Danta, neurologist, TCH, described Mr Greene as having:
… peculiar sensations in his head including electric shocks but the main symptom appears to be dizziness … markedly aggravated by movement of the head in any direction and also by movement of the body. He may then get brief episodes of loss of balance, and whilst he has never fallen, he has been close to it. He also describes the flickering in the eyes in the periphery of vision. The other symptom he mentioned was some heaviness and numbness in the left arm.
In 1982, in a report dated 21 April, Dr Danta noted Mr Greene’s continuing ‘giddiness and imbalance, the peculiar sensations in the head and the sleeplessness’ and that he had booked him into relaxation sessions and was trialling Stemetil for his giddiness. A report on 17 September 1987 to Mr Greene’s then general practitioner, Dr Tom Govranic, from Dr Danta referred to symptoms of ‘floating and lightheadedness … acute pain and tightness at the back of the neck with palpitations and increased dizziness and visual disturbance’. He noted that ‘[s]ome of the symptoms are likely to be due to anxiety and tension’, and again recommended Mr Greene do relaxation exercises.
Dr Halmagyi
Dr GM Halmagyi, neurologist/neuro-otologist, Royal Prince Alfred Hospital, Sydney, NSW, provided a report to Dr Roger Tuck, neurologist, TCH, dated 8 August 1994. He concluded that he ‘could detect no abnormalities [including in relation to his hearing] on neurological examination’ and noted that Mr Greene had seen six medical practitioners or specialists since 1981, none of whom had provided a diagnosis. His conclusion was that Mr Greene ‘could well have had a vertebral dissection leading to a small cerebellar infarct; he could even have a craniocervical malformation’ but in his opinion, neither was responsible for his symptoms. As his report went on: ‘It seems to me that his affect and behaviour are driven by fear and he is really not able to express clearly this fear’.
Dr Clubb
Dr Bryce Clubb, pain management expert, reported on 21 November 2001 to Mr Greene’s then general practitioner that Mr Greene had said since the chiropractic manipulation in 1981 ‘his vertigo has been associated with pain in his neck which has been gradually worsening over the last few years. He noted the history of vertigo, pain in the neck, and low back pain, with vertigo being the ‘main problem’. His report also noted that Mr Greene had ‘severe depression’ and had even contemplated suicide because of the ‘20 year history of neck and back pain’. Dr Clubb reported Mr Greene as saying that his ‘vertigo, and thus his pain, is aggravated by long periods of standing or sitting and by most physical activity, particularly bending forward and picking things up’. Dr Clubb found that ‘He scored 30/50 on a Neck Disability Index, placing him in the severely disabled range’.
Dr Brennan
In the documents chronicling the admission of Mr Greene to TCH on 12 February 2010, Dr Brennan recorded sudden onset of vertigo followed by nausea and vomiting that occurred while lifting heavy boxes. In addition he records diaphoresis (sweating) and vertigo as occurring prior to vomiting. There is no mention in the documents of problems with Mr Greene’s neck.
Dr Lueck
Dr Christian Lueck, Department of Neurology, TCH in a letter to Dr Dillon on 13 December 2010, had concluded that Mr Greene had functional neurological disorder; depression; chronic pain – neck and shoulders, lower back; chronic headache; hypertension; and fibromyalgia. He noted that Mr Greene had symptoms of sudden dizziness, vertigo and ataxia. He reported that the ‘differential diagnosis was vertebral dissection and stroke’.[1] However, he said his ‘MRI brain was normal, CT brain and CT angiogram and carotid Doplers were all normal. No evidence of stroke or carotid or vertebral dissection was found’. He reported that his condition of dizziness and vertigo ‘seems to be precipitated by tension or pain in the neck and shoulder muscles’. In response to Mr Greene’s question he had given the diagnosis of ‘medically unexplained symptoms’, explaining ‘this is seen in 30% of neurology patients’. He noted Mr Greene was resistant to seeing a neuropsychiatrist because ‘he did not want the stigma of being labelled as a “psychiatric case”’.
[1] The ‘differential diagnosis’ is the initial diagnosis weighing up the probability of one disease or another being the cause of a patient’s illness.
Social Work Assessment report
In a Social Work Assessment report, TCH, dated 18 February 2010, Mr Greene is reported to have said in relation to the ‘lifting incident’ that:
… he has had similar incidents such as this current medical issue in the past, dating back to early 1980s. Steven reports that this has occurred on four occasions. Steven was able to reflect that there has often been a pattern, explaining that he usually experiences a level of stress before this occurs. Steven explained that prior to this current incident, Steven sought support from his GP and reported that he was not feeling well, Steven explained that he had difficulty explaining this to the GP, however Steven reports that his admission to hospital occurred not long after this GP appointment.
Dr Leung
Dr David Leung, anaesthetic Registrar, Pain Management Unit, TCH, in a report dated 9 November 2011, referred to Mr Greene’s ‘complex chronic pain condition that is due to chronic lumbar back pain and recently cervicogenic vertigo’ and left sided sciatica. At the same time, he noted reflexes in both upper and lower limbs were intact and their power and tone were normal. However, he reported ‘significant hyperalgesia/allodynia in both upper and lower limbs with soft touch’. He recommended ‘high priority for psychology review’ and ‘neuropathic pain medication’.
Dr Dillon
Dr Glenn Dillon, Mr Greene’s treating general practitioner since the early 2000s, reported on 27 July 2010 that Mr Greene sustained injuries on 12 February 2010 he described as ‘exacerbation of cervical spondylosis, chronic pain syndrome with associated somatoform disorder and fibromyalgia’. At the hearing he acknowledged that these were diagnoses by others, but he would adopt them, except for somatoform disorder. He qualified his diagnosis noting that his reference to cervical spondylosis did not refer to ‘mechanical spondylosis’ but to ‘fibromyalgia’. His clinical notes for 13 July 2010 noted ‘CT scan – widespread low grade spondylosis changes’ but Dr Dillon conceded that the CT had only indicated minor changes at different levels of the spine and he was not indicating ‘significant severe spondylosis’. His report noted that Mr Greene had previously sustained injuries resulting in ‘persisting multi-level spinal pain, upper cervical dysfunction symptoms, including referred headaches, vertiginous migraines, vertigo and cranio-cervical-scapular neuropathic pain’ which he had treated with osteopathy and massage.
It was his view that the lifting incident on 12 February 2010 exacerbated Mr Greene’s existing conditions of vertigo and vertiginous migraines because Mr Greene’s ‘neck symptoms were relatively stable prior to the accident and there was a rapid and significant symptomatic deterioration immediately after’. In cross-examination, he said that although not recorded in his clinical notes Mr Greene had told him about his neck pain in a consultation soon after the 2010 hospitalisation. At the hearing he confirmed that Mr Greene had ‘an underlying anxiety – anxious type personality’. His clinical notes for 1 February 2010, the last consultation prior to the incident, do not refer to any discussion about stress and were solely for the purpose of a repeat prescription. However, his notes for 1 March 2010, the first entry after the incident were: ‘? Related to a stress abreaction [sic]; Feels “too much” being asked of him; Sensory overload’. He said since February 2010, Mr Greene had made significant improvements but he was not ‘quite yet up to a pre-injury or premorbid state’. As he said his ‘pain condition is actually still quite bad. And does still very much complain of the dizziness’. However, in cross-examination he conceded that Mr Greene’s psychological condition fluctuated as it had prior to the incident; and that his problems with dizziness and fibromyalgia were stable and there was no significant change.
In evidence he had said that Mr Greene’s state between 2007 and 2010 was ‘very much status quo’ in relation to his dizziness and his fibromyalgia. However, in cross-examination he conceded that due to ‘general spasm and some balance issues’ Mr Greene was unable to work in the first half of 2007, and that he had increased his dosage of opioid medication in 2008 either because Mr Greene was complaining about an increase in his pain or because Mr Greene had become tolerant of his opioid medication. He also accepted that Mr Greene’s s pain medication was increased from a moderate to a more than moderate level in 2008 and 2009.
Dr Dillon’s evidence as to Mr Greene’s description of what happened on 12 February 2010 was that he ‘suddenly got quite dizzy and blacked out’. He also conceded that Mr Greene had always suffered some form of headaches although, prior to 19 March 2010, there had been no reference in his clinical notes to cervicogenic or other form of headache. He explained that his reference to headaches in March 2010 was probably because they had become worse.
Mr Stuart
Mr Gordon Stuart, consultant neurosurgeon, provided a report for Comcare, dated 10 September 2010. In summary, Mr Stuart’s opinion was ‘Mr Greene suffers vertigo of unknown cause. It is consistent with a diagnosis of benign positional vertigo. Accordingly it is not consistent with symptoms produced by a work injury’. However, he conceded on the facts that there was a connection between the incident on 12 February 2010 and Mr Greene’s subsequent inability to work but went on to say that Mr Greene’s condition was constitutional, that the events in February 2010 may have been a fainting attack or a recurrence of his episodic benign positional vertigo. In other words, any connection between the incident and his condition was temporal only. He noted that both benign positional vertigo and vertigo of unknown cause occur randomly.
He also reported that he ‘found no evidence of clinical disease of the cervical spine to account for his symptoms’ and that imaging did not show any organic pathology to account for Mr Greene’s vertigo condition. In his opinion, the effects of Mr Greene’s pre-existing conditions had ceased, and his condition was ‘not consistent with [Mr Greene’s] stated cause of lifting a heavy box’. He said ‘I consider that Mr Greene would have sustained these injuries regardless of his employment’. He also confirmed at the hearing that Mr Greene had not referred to neck pain in the history he gave Mr Stuart.
In a supplementary report dated 8 March 2012, Mr Stuart deferred to the opinion of the consultant neurologist and the ear, nose and throat specialist that the diagnosis of benign positional vertigo had [not] been established and concluded that the ‘diagnosis remains vertigo of unknown cause’. He also rejected the theory that the condition arises as a result of otoliths in the semi-circular canals in the ear becoming dislodged and ending up in the wrong place which, as he said, had been disproved by the ear, nose and throat specialist. As he said, that theory relates more specifically to benign positional vertigo.
He agreed with Dr Champion that Mr Greene’s symptoms were probably worse after the lifting incident, but not with his view that Mr Greene ‘had aggravated his cervical and thoracolumbar spinal pain components’, given the absence of any organic basis for his condition and of any record that Mr Greene had complained of symptoms in the neck. He also noted that, unlike Mr Greene, the subjects of the Yahia research relied on by Dr Champion had documented disease in their cervical spines and hence the outcomes of that research did not necessarily apply to him.
Dr Lark
Dr Andrew Lark, occupational physician, provided a fitness for duty report dated 18 October 2010, a medical report dated 18 April 2011, and another on 24 June 2011 in which he said Mr Greene could attempt a steady and gentle return to work with restricted hours. In his October 2010 report Dr Lark said Mr Greene was affected by a number of conditions, but his capacity to work was most affected by his chronic vertigo, and his cervical spine problems. In his April 2011 report he recorded, that Mr Greene’s vertigo ‘fluctuates in severity’, and was worse with ‘too much movement’ and ‘strong exertion, moving ahead too quickly, looking at the horizon, or going around corners too quickly in the car’. He said Mr Greene also reported constant posterior and lateral cervical pain, which can be sharp, that he has to be careful with lifting, and that the pain is worse on the day prior to rain, and in cold and rainy weather.
Dr Champion
Dr David Champion, Conjoint Associate Professor, University of New South Wales, rheumatologist and pain management specialist, provided a report dated 9 May 2011. He diagnosed an aggravation of a chronic cervical spinal pain syndrome, cervicogenic dizziness, and pre-existing fibromyalgia syndrome, caused by the lifting of the tub of books. He recorded considerable pain and restriction of movement in Mr Greene’s cervical spine and that on 12 February 2010, Mr Greene experienced a sharp pain in Mr Greene’s neck, a cold feeling that went up behind his right ear, and dizziness to a severe degree.
In evidence he said that the cause was ‘an interference with proprioception’, as he described it ‘a disturbance … of the sensory position inputs from the upper cervical spine into the brain, into the central nervous system’. In layperson’s language, he said humans have ‘a very acute sense of awareness of the position of our head and neck’ and disorders of the kind suffered by Mr Greene occur because of ‘a minor mechanical disturbance’ of the upper cervical spine, or pain inputs, that is, impaired cervical proprioception, from that region. He said there was no hard evidence either way as to whether it was the pain rather than any verifiable injury which causes the nociceptive change. In his opinion, the research paper by Yahia et al attached to his statement which suggested that in 62 per cent of the cases studied for that paper the proprioceptive effect was due to structural damage, was not ‘common experience’. He agreed that Mr Greene did not suffer from benign positional vertigo.
During the hearing he confirmed that the neck pain and the fibromyalgia, were, in his opinion, different conditions but ‘integrally related’. As he said Mr Greene ‘has both the widespread pain disorder referred to [as] fibromyalgia, and a particular focus of pain – primary pain – related to his cervical spine’. He believed the fibromyalgia was ‘primarily provoked by the chiropractic injury to his cervical spine’.
Dr Whittaker
Dr Ross Whittaker, consultant rheumatologist, provided a report for Comcare dated 13 June 2011. In summary his report noted the ‘long history of vertigo, low back pain, neck pain and, more recently, fibromyalgia’ and that Mr Greene’s ‘current rheumatological presentations included chronic widespread pain syndrome with some features of fibromyalgia, associated with depressive illness’ and that vertiginous events in the past had been associated with other symptoms including heaviness in the arms. These were absent from the incident on 12 February 2010. His report also noted that there were no investigations of Mr Greene's cervical spine while he was in hospital.
He noted that radiological investigations of the cervical spine dating back to 1998 had shown only ‘mild degenerative change in the mid to lower cervical segments’ and that Mr Greene’s neck restriction was out of keeping with those minor degenerative changes. In his view his problems were more consistent with his ‘fibromyalgia syndrome/chronic widespread pain, hypervigilance and possible anxiety/concern that he may develop vertigo if moving his neck too quickly’ than with any degenerative change.
In his opinion, Mr Greene’s condition was not caused, contributed to, or aggravated to a significant degree by his employment and his neck symptoms were unrelated to the incident in February 2010. Rather the incident related predominantly to vertigo and associated problems.
Mr Matison
Mr David Matison, consultant ear, nose and throat surgeon, provided a report to Comcare dated 8 July 2011. He diagnosed cervical vertigo, his prognosis being affected by his chronic pain syndrome and his fibromyalgia. He said there was no evidence of benign positional vertigo, but said further studies were needed to confirm this. In his opinion, on 12 February 2010, Mr Greene suffered a vasovagal attack with no direct connection to his cervical spine condition. In those circumstances he said ‘the condition does not appear to have been directly caused by [Mr Greene’s] employment’. In his view the non-Commonwealth employment factors that affected Mr Greene’s capacity for employment were his chronic pain syndrome and his fibromyalgia.
Dr Lethlean
Dr A Keith Lethlean, consultant neurologist, provided a report to Comcare dated 20 October 2011. He diagnosed fibromyalgia, and somatoform disorder, and found ‘no evidence for a medical/organic basis for his condition, particularly vertigo and balance difficulties … [and] no evidence for spinal cord, nerve root or cerebrovascular abnormality’. He said ‘the diagnosed condition was not caused, contributed to, to a significant degree, or aggravated to a significant degree, by Mr Greene’s employment, including the incident of 11 [sic] February 2010’. In his view, the condition was caused by non-employment factors, particularly his fibromyalgia. As he concluded ‘the causation of fibromyalgia is unknown’. He noted that Dr Halmagyi’s report in 1994 had found no abnormalities on neurological examination, confirmed on electronystagmography.
In evidence he said he did not think the incident in February 2010 was precipitated by carrying the tub of books in that nothing had deteriorated in Mr Greene’s neck or in his balance system following the incident. He said the pain Mr Green experienced may have been muscular, but he did not sustain any cervical damage to his balance system. In his view, Mr Greene’s dizziness was not due to his neck abnormalities or injury, nor to his fibromyalgia. The absence of complaint by Mr Greene about his neck at the time of the incident, in Dr Lethlean’s view, confirmed the absence of a link between his cervical condition and his dizziness. As he said ‘without severe pain, I would be very hesitant to attribute dizziness to the neck’. In his view, the hypothesis that the dizziness was due to dislodgement of the proprioceptors in the neck was a ‘postulate, not an established fact’. He also denied that the Yahia study had relevance for Mr Greene who had a different kind of dizziness and imbalance.
He noted that each time Mr Green was admitted to hospital for a vertigo incident, ‘no significant precipitating factors were identified’. On the 12 February 2010 occasion Dr Lethlean said he ‘thought it most likely he had hurt his neck and fainted’. As he said ‘without…structural or medical or neurological injury’ in his view ‘any problem that arose on that date or afterwards was purely a coincidental result of his fibromyalgia without any contribution being made by that incident itself. A remarkable sequence,’ as he conceded.
Dr George
Dr Graham George, consultant psychiatrist, provided a report for Comcare dated 29 March 2012. He found no evidence of any functional psychiatric disorder, but evidence of anxiety and depression associated with a pain disorder in the past and possible mild organic mental disorder. He noted that CT scans had identified no abnormalities. In his view, the incident on 12 February 2010 could not have related to any anxiety, depression or fibromyalgia.
Dr Kennedy
Dr Michael Kennedy, a clinical pharmacologist, reported on 29 May 2012 and on 8 June 2012. He had been asked to consider whether Mr Greene’s cocktail of medications could have contributed to his vertigo attack. His reports discounted that possibility.
Canberra Body Clinic
The clinical notes of the Canberra Body Clinic which Mr Greene attended for massage therapy between 2003 and 2010 noted neck pain in 2003, that the masseur should not touch his neck in 2004, and from July 2006, the notes record a general warning ‘No neck massage’. There was no special mention of neck pain in consultations in 2010.
Neurospace Physiotherapy
Mr Greene has been attending Neurospace Neurological & Vestibular Rehabilitation for physiotherapy since January 2011. In January 2011 he accepted ‘gentle neck mobilization of facet joints and passive ROM [Range of Movement] neck’. The clinical notes record his history: Every 7-10 years, since 1981, has had ‘blowouts’ gets ‘too confident and over does things’ which leads to collapsing/fainting response and takes several years to recover to get confident again. … Came to neurospace because dizziness and muscle pain has increased and has lost confidence.
Move Happy Osteopathy
Mr Greene attended Move Happy Osteopathy from April to June 2010. The summonsed notes recorded on 22 April 2010 noted ‘shoulder/neck pain’ and that he ‘doesn’t like the neck being handled too much’, a comment recorded in May and June as well.
X-ray and other examinations
Imaging reports of Mr Greene’s brain, cervical spine between 29 June 1995 and 13 October 2011 generally reported results within normal limits and found only minor facet joint degenerative change at C7/T1, and no abnormalities in his ears and eyes.
Issues
What is the diagnosis of the condition or conditions from which Mr Greene suffers?
Is the condition or are the conditions classified as an injury or a disease for the purposes of the Act?
Is that condition or are those conditions either caused by his employment or aggravated by his employment?
Is that causal relationship to a significant degree?
Consideration
The first issue is the nature of the condition for which Mr Greene is seeking compensation and whether his condition amounted to an ‘injury’ for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).[2] ‘Injury’ for this purpose includes an ‘aggravation’ of the ‘injury’.[3]
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) ss 4(1), 5A, 14.
[3] Act s 5A(1)(c).
Initially Comcare accepted liability for ‘aggravation of vertigo – benign positional’ for the period 12 February 2010 to 5 March 2010. A claim for aggravation of cervical spondylosis was rejected. On review, Comcare upheld the decision in relation to cervical spondylosis and set aside the decision in relation to benign positional vertigo.
Counsel for Mr Greene submitted that as a result of the lifting incident at work Mr Greene suffered an aggravation of one or more of his pre-existing conditions of cervical vertigo, chronic cervical spinal pain syndrome, and fibromyalgia. He said although the claim was for aggravation of three conditions, he had not focused on the fibromyalgia since it was difficult to identify whether the fibromyalgia is a distinct condition or simply an interaction of his vertigo and his cervical spinal pain condition. He submitted that Mr Greene has never suffered from benign positional vertigo.[4]
[4] The condition was described in some detail in Re Cahill and Comcare [2011] AATA 734.
What is the diagnosis of the condition or conditions from which Mr Greene suffers?
Counsel for both parties conceded that Mr Greene was suffering from vertigo, a chronic cervical spine pain syndrome and fibromyalgia. Despite these concessions, the Tribunal has made its own findings on these issues.
Reports since 12 February 2010
The medical reports establish that since a chiropractic manipulation in 1981, Mr Greene has been suffering a form of vertigo. An issue is how that condition should be classified.
Dr Brennan in the Emergency Department of TCH recorded ‘vertigo’ as the presenting condition at Mr Greene’s admission on 12 February 2010 discounted the possibility that Mr Greene had suffered a ‘stroke’. On discharge, Dr Lueck, neurologist, TCH recorded his conditions only as ‘functional neurological symptoms’ without nominating any form of vertigo. In his letter to Dr Dillon of 13 December 2010, Dr Lueck again diagnosed only ‘medically unexplained symptoms’. Dr Leung, anaesthetic Registrar, Pain Management Unit, TCH, in a report dated 9 November 2011, however, referred to Mr Greene’s cervicogenic vertigo, complex chronic pain condition due to chronic lumbar back pain and left sided sciatica.
Dr Dillon, Mr Greene’s treating general practitioner, in a report of 27 July 2010, listed the diagnoses as ‘cervical spondylosis, chronic pain syndrome with associated somatoform disorder and fibromyalgia’. However, in evidence he said he did not consider Mr Greene had a somatoform disorder and that these were the diagnoses of other specialists. He said he had treated Mr Greene for ‘persisting multi-level spinal pain and upper cervical dysfunction symptoms including referred headaches, vertiginous migraines, vertigo and cranio-cervical-scapular neuropathic pain’. In a letter on 4 October 2011, he referred to ‘cervical spine injury and secondary vertiginous symptoms’, but said this was not a reference to ‘mechanical spondylosis’ but to fibromyalgia. In summary his view appears to be that Mr Greene suffered from a cervical spinal pain condition, vertigo, and fibromyalgia.
Mr Stuart, consultant neurosurgeon, initially diagnosed benign positional vertigo, but in his supplementary report of 8 March 2012, in deference to the views of Dr Lethlean, the consultant neurologist and Dr Matison, the ear, nose and throat specialist, made a diagnosis of ‘vertigo of unknown cause’. He also assumed Mr Greene suffered from cervical pain disorder and a spine condition. Dr Lethlean, in a report dated 20 October 2011, diagnosed fibromyalgia, and somatoform disorder. Dr Matison, in his report of 8 July 2011 diagnosed cervical vertigo, caused by cervical spondylosis, but said that the prognosis for Mr Greene’s recovery from his condition was affected by his chronic pain syndrome, and his fibromyalgia.
Dr Champion, pain specialist and rheumatologist, in his report of 9 May 2011 diagnosed exacerbation of a chronic cervical spinal pain syndrome, cervicogenic dizziness, and fibromyalgia. Dr Whittaker, rheumatologist, in his report of 13 June 2011 said Mr Greene suffers from vertigo, low back pain, chronic widespread pain syndrome with some features of fibromyalgia, associated with depressive illness. Dr Lark, occupational physician, noted chronic vertigo as the condition most affecting Mr Greene’s capacity for work, but referred also to his cervical pain problem and that he suffered from chronic pain.
Reports prior to 12 February 2010
Dr Halmagyi, neurologist/neuro-otologist, in a letter dated 8 August 1994 confirmed that he could identify no neurological problems. He said Mr Greene may have had a small stroke and there may be some ‘craniocervical malformation’, but he did not believe these were responsible for his then symptoms. Dr Clubb of the Pain Management Unit, TCH, in his report of 21 November 2001, noted a history of vertigo, pain in the neck and low back pain.
In summary, the Tribunal is satisfied on the medical evidence, particularly of the neurologists and the ear, nose and throat specialists, that Mr Greene is not suffering from vertigo, benign positional. In addition, the radiological evidence and the evidence of the medical specialists confirm that Mr Greene’s neck only exhibited ‘minor facet joint degenerative change at C7/T1’. These findings confirm, to the Tribunal’s satisfaction, the absence of evidence of pathological cervical spondylosis. Only Dr Matison refers to cervical spondylosis and given the general view, his diagnosis can be discounted. The Tribunal accordingly affirms both elements of the reviewable decision, namely, that Mr Greene does not suffer from vertigo, benign positional, nor from cervical spondylosis.
That does not conclude the issues concerning diagnosis. The preponderance of the medical evidence, coupled with Mr Greene’s medical history, establishes to the Tribunal’s satisfaction that he does have vertigo, and that he also suffers from cervical pain, which may be an element of a more widespread pain syndrome described as fibromyalgia. The vertigo, on the evidence, is best described as ‘of unknown origin’.
The findings concerning vertigo are supported by the opinion of Dr Clubb in 2001, who accepted that he had vertigo, of Dr Leung who referred to his ‘cervicogenic vertigo’, and of Dr Lark, who said he had vertigo. The views of specialists at TCH are of particular weight in this matter given the extensive examinations and treatment Mr Greene has received from the Hospital since 1987. Mr Greene has presented at the Hospital on at least four occasions, including at least two quite lengthy hospitalisations. In addition, this finding is supported by the views of the rheumatologists (Dr Champion and Dr Whittaker), the neurologists and the neurosurgeon (Dr Lueck, Mr Stuart and Dr Lethlean), the ear, nose and throat specialist (Dr Matison), and Mr Greene’s long-standing general practitioner, Dr Dillon.
Doctors Champion, Whittaker, Lethlean, Dillon, and Matison have all diagnosed fibromyalgia. Doctors Lark, Leung, Matison, Whittaker, Champion, Dillon and Mr Stuart agreed that he suffered from chronic pain, specifically including cervical pain according to Mr Stuart, Doctors Champion, Matison, Lark and Dillon. In summary, the Tribunal is satisfied of the concessions made by both counsel that in February 2010, and on the evidence of the nominated medical experts that Mr Greene suffered from three conditions: vertigo of unknown origin; cervical spinal pain syndrome; and fibromyalgia.
Depressive disorder
At various times Mr Greene has also been found by medical experts to have a depressive disorder, associated with his chronic pain disorders. If such a condition is to be compensable as a ‘disease’ and hence an ‘injury’,[5] the employee must be ‘mentally ill or mentally disturbed or suffering from any psychological disorder’.[6] And a psychological condition will not be a ‘disease’ unless the condition ‘is outside the boundaries of normal mental functioning and behaviour’.[7]
[5] Act s 5A.
[6] Comcare v Mooi (1996) 69 FCR 436 at [447].
[7] Id at [444].
TCH records contain references to depression. Dr Danta’s report of 3 August 1981 refers to Mr Greene feeling ‘depressed bythe whole business’ and Dr Lueck noted that Mr Greene was resistant to seeing a neuropsychiatrist. Dr Lueck did not pursue the suggestion indicating that his depressive symptoms were not of marked concern. Dr Clubb, in his report of 21 November 2001, noted that Mr Greene had ‘severe depression’ and had even contemplated suicide, a step he said was supported by a psychologist at the Pain Management Unit, Mr Johann Sheehan. At the hearing, Mr Greene denied ever having any such intention.
Dr George, consultant psychiatrist, in his report of 29 March 2012 concluded that Mr Greene did not have any ‘functional psychiatric disorder’ although he had anxiety and depression associated with his pain disorder. Dr Whittaker also noted that his conditions were ‘associated with depressive illness’, but he said this was outside his area of expertise.
In summary, the Tribunal finds that Mr Greene may have suffered from some depressive disorder, but it was of insufficient moment to be classified as a psychiatric disorder. On that basis, the Tribunal finds that any depressive condition would not have been classified as a ‘disease’ and even if work-related would not have been compensable.
Are Mr Greene’s conditions an ‘injury’ or a ‘disease’ for the purposes of the Act?
The Act provides that compensation is only payable under the Act ‘in respect of an injury suffered by an employee’.[8] An ‘injury’ is defined to include either a ‘disease’ or ‘an injury … that is a physical or mental injury’, including an ‘aggravation of a physical or mental injury (other than a disease)’.[9] ‘Disease’ is defined to mean ‘an ailment … or an aggravation of … an ailment’.[10] An ‘ailment’ is broadly defined to mean ‘any physical or mental ailment, disorder, defect of morbid condition (whether of sudden onset or gradual development’.[11]
[8] Act s 14.
[9] Act ss 4(1), 5A(1)
[10] Act s 5B(1).
[11] Act s 4(1).
The parties in their submissions conceded that a claim for an aggravation of a condition does not alter the nature of the condition. Mr Greene’s counsel said that although the lifting incident may have led to a sudden physiological change,[12] since the claim was based on an aggravation of any one of three conditions which would be classified as a ‘disease’[13] the claim related to a ‘disease’. Counsel for Comcare submitted that Mr Greene was suffering from an aggravation of his pre-existing vertigo and of his chronic cervical spinal pain syndrome, and that he had fibromyalgia, those conditions being classifiable as a ‘disease’.
[12] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; Zickar v MGH Plastics Ltd (1996) 187 CLR 310.
[13] Act ss 5A, 5B.
In this instance, all three conditions have been investigated thoroughly over many years by multiple tests and assessments by multiple specialists. No organic pathology has been identified to explain their origin. Dr Dillon confirmed that his report did not refer to ‘mechanical spondylosis’. Dr Lueck had diagnosed a neurological, not an organic condition. Mr Stuart ‘found no evidence of clinical disease of the cervical spine to account for his symptoms’ and at the hearing he confirmed there was no organic pathology to account for his vertigo condition. Dr Whittaker noted the minor degenerative changes, but said these were more consistent with fibromyalgia and chronic widespread pain. Dr Lethlean found ‘no evidence for a medical/organic basis’ for Mr Greene’s condition. Dr Leung noted left sided sciatica, but the focus of his report was on Mr Greene’s pain conditions and his ‘high priority’ recommendation was for ‘psychology review’.
Dr Champion accepted that Mr Greene suffered from chronic cervical spinal pain syndrome, cervicogenic dizziness, and fibromyalgia. His view was that his pain was due to a ‘minor mechanical disturbance’, of the upper cervical spine. The disturbance took the form of ‘an interference with proprioception, that is, neurological inputs into the central nervous system’. While describing the disturbance as ‘mechanical’, the Tribunal notes that Dr Champion conceded at the hearing that there was no hard evidence as to whether it was the pain rather than any verifiable injury which causes the nociceptive change.
Even prior to February 2010, the findings had been the same. Dr Halmagyi postulated that Mr Greene may have a ‘vertebral dissection leading to a small cerebellar infarct’, that is, a stroke, but said even if that had happened it was not the cause of his symptoms. Dr Clubb reported his 20 year history of vertigo which no expert had been able to treat successfully and increasing pain symptoms, but no mention of organic symptoms. Dr Danta, in his report of 3 August 1981 following Mr Greene’s admission to hospital with vertigo after the chiropractic manipulation, said ‘I am fairly certain this is … due to slight damage done to soft tissues, particularly joints in the neck’. However, in his follow up consultation in 1987, Dr Danta appeared to agree with the view that Mr Greene’s symptoms were ‘non-organic’ and he recommended that he attend occupational therapy for relaxation exercises as ‘[s]ome of the symptoms are likely to be due to anxiety and tension’.
The imaging results in the period 1995 to 2011 universally found that images of the brain or neck showed no relevant abnormalities. A CT scan on 7 July 2010 identified some ‘minor facet joint degenerative change at C7/T1’ but the majority of medical experts did not consider this could be the cause of Mr Greene’s conditions. The tests of Mr Greene’s ears were also within normal limits. On balance, the Tribunal finds that whatever caused Mr Greene’s cervical spine vertigo of unknown origin, cervical spinal pain syndrome and fibromyalgia, these conditions were predominantly psychological and were, accordingly, diseases, not frank injuries, for the purposes of the Act. The Tribunal is satisfied, accordingly that a claim for aggravation of Mr Greene’s conditions, being classified as ‘diseases’, should itself be classified as a claim for a ‘disease’, and so finds.
Are Mr Green’s conditions either caused by his employment or aggravated by his employment?
In light of the Tribunal’s findings that the conditions at issue arose many years prior to 2006 and Mr Greene’s employment by the agency, the focus of the discussion is on whether his conditions were aggravated, not caused by, his employment. An ‘aggravation’ is defined to include an ‘acceleration or recurrence’ of the condition.[14] Liability for an aggravation of a pre-existing condition arises when the condition has been ‘made worse, not that it has simply become worse’.[15]
[14] Act s 4(1).
[15] Ogden Industries Pty ltd v Lucas (1967) 116 CLR 537 at 593 per Windeyer J.
If Mr Greene’s symptoms in 2010 was due to aggravation, liability was dependent on Mr Greene establishing that his employment contributed to the aggravation to ‘a significant degree’, that is, ‘to a degree that is substantially more than material’.[16]
[16] Act s 5B.
Mr Greene’s claim is that the physical effort involved in moving the tub of books aggravated his vertigo and his cervical spine pain syndrome/fibromyalgia. Comcare argued that any connection between the episode and the development of Mr Greene’s conditions was temporal only. It was a coincidence that the February incident happened at the time Mr Greene helped move the tub of books.
There are contradictory opinions as to the cause of Mr Greene’s vertigo. Dr Danta in his 1987 report said ‘[s]ome of [his] symptoms are likely to be due to anxiety and tension’ and recommended relaxation exercises. The TCH records note admissions by Mr Greene for vertigo in 1995 and 1998. In 1995 the record states that Mr Greene had suffered a fall at home prior to his vertigo attack. In 1998, Mr Greene had reported that at the time he had been on the computer, surfing the net. He got up and his vertigo became worse and his neck was in spasm.
Dr Clubb in his report on 21 November 2001 recorded Mr Greene as saying that his ‘vertigo and thus his pain, is aggravated by long periods of standing or sitting and by most physical activity, particularly bending forward and picking things up’. Dr Halmagyi attributed his problems to ‘his affect and behaviour [being] driven by fear’, that is, his anxiety.
In September 2002, Mr Greene reported an increasing occipital headache from the previous day whilst at Floriade, followed by vertigo and dry retching, which he described as worse than usual. TCH clinical notes for 22 September 2002 noted that his vertigo was ‘associated with … feeling of heaviness in his arms’, a symptom also referred to by Dr Danta in his report in 1981. The TCH clinical notes state ‘Last few days dizziness and back pain increased. Dizziness before headache’. There is also a reference to hypertension being an issue and to vertigo on lateral movement.
TCH notes on admission in February 2010 state: ‘Last few days dizziness and back pain increased. Dizziness increased before the headache’. The notes also record Mr Greene’s blood pressure as being above normal. However, Mr Greene said he had been receiving treatment for his blood pressure for some 5 years, and he had remained on the same medication throughout and that any increase was due solely to his weight and age. That suggests his elevated blood pressure was transient and not of sufficient concern to warrant a change of medication. TCH discharge notes in 2010 state ‘There was no overt anxiety or depression at this time’.
The Social Work Assessment on 18 February 2010 at TCH recorded Mr Greene as saying ‘he usually experiences a level of stress before this occurs’, referring to a pattern to his more severe vertigo episodes. At the hearing Mr Greene denied he had made these statements He was also recorded in this report as saying that prior to the February incident he had ‘sought support from his GP and reported that he was not feeling well’. Dr Dillon’s clinical notes for 1 February 2010, the last consultation prior to the incident, do not refer to any discussion about Mr Greene experiencing stress or feeling ill and record only a repeat prescription for his vertigo medication.
Dr Lueck’s report on 13 December 2010 records Mr Greene saying his conditions of dizziness and vertigo ‘seem to be precipitated by tension or pain in the neck and shoulder muscles’. Mr Greene denied he had said anything to Dr Lueck which corresponded with this record.
Dr Dillon’s notes for 1 March 2010, the first entry after the incident, were: ‘? Related to a stress abreaction [sic]; Feels “too much” being asked of him; Sensory overload’, suggesting that on that occasion Mr Greene had discussed with him that stress might have caused his vertigo incident in February. At the hearing Dr Dillon also confirmed that Mr Greene had ‘an underlying anxiety – anxious type personality’. In his statement, Dr Dillon attributed the incident in February 2010 to lifting the tub. As he said Mr Greene’s ‘neck symptoms were relatively stable prior to the accident and there was a rapid and significant symptom deterioration immediately after’.
Mr Stuart in his report of 10 September 2010 attributed Mr Greene’s symptoms to either a fainting attack or an occurrence of his periodic vertigo incident which coincidentally happened when he was moving a tub of books at work. In his view, vertigo of unknown cause presents randomly and the symptoms were not due to lifting the tub. He accepted that a manipulation of the neck in 1981 may have initiated the problem, but said it was unlikely that this continued for 20 years. He also did not accept Dr Champion’s view that the lifting had exacerbated Mr Green’s underlying cervical neck pain since Mr Greene had not mentioned neck pain during their consultation.
The clinical notes of his physiotherapist at Neurospace Physiotherapy, dated January 2011, record Mr Greene as saying that ‘Every 7-10 years, since 1981, has had “blowouts” gets “too confident and overdoes things” which leads to collapsing/fainting response and takes several years to recover and get confident again’.
Dr Lark in his fitness for duty report of 18 October 2010 recorded Mr Greene as saying he condition was worse with ‘too much movement’ and with ‘strong exertion, moving ahead too quickly, looking at the horizon or going round corners too quickly in the car’.
Dr Champion said Mr Greene’s symptoms on 12 February 2010 - the sharp pain, the cold feeling and then dizziness - was caused by lifting the tub of books. The mechanism was minor disturbance of the proprioceptors, that is, the sensory inputs which indicate the position of the head and neck. He said it was not clear whether the initiator was pain rather than an organic injury.
Dr Whittaker noted that Mr Greene’s vertiginous episodes in the past had been associated with other symptoms, including heaviness in the arms, and this was absent in 2010. He also said that Mr Greene’s claimed neck pain and restriction was out of keeping with the minor degenerative changes identified by imaging. He denied any contribution from employment to Mr Greene’s symptoms, suggesting these were more consistent with his fibromyalgia/chronic pain, hypervigilance and possible anxiety that he might develop vertigo if moving his neck too quickly or too far. Dr Matison agreed with Dr Whittaker that Mr Greene was affected by his chronic pain syndrome and his fibromalgia, neither being related to his employment. He also agreed with Mr Stuart that the incident on 12 February 2010 may have been a vasovagal attack, rather than vertigo, which in his view would also not be connected with employment.
Dr Lethlean found no connection with employment in the absence of any complaint of significant neck pain by Mr Greene on 12 February 2010 or in the weeks following, and in the absence of any evidence of neck or balance disturbance following the incident. As he said he ‘thought Mr Greene might have hurt his neck and fainted’. He also noted that ‘no significant precipitating factors were identified’ on any of Mr Greene’s previous admissions to hospital for a vertiginous episode. In his view ‘any problem that arose on that date or afterwards was purely a coincidental result of his fibromyalgia without any contribution being made by that incident itself’, as he conceded ‘a remarkable sequence’. Dr George denied that the incident on 12 February 2010 related to any of the anxiety, depression or possibly fibromyalgia suffered by Mr Greene.
In summary the Tribunal finds that various factors have been said to precipitate Mr Greene’s episodes of vertigo. These include a fall, stress, anxiety, exertion including overdoing things, rapid movement such as going round corners too quickly in the car, looking at the horizon, bending forward and picking things up, prolonged standing or sitting, increasing headache and disturbance to proprioceptors. In addition, there is some evidence of associated physical sensations prior to an episode. In 1981, 1998 and 2002 there was reference to heaviness in Mr Greene’s arms, in 2002 Mr Greene complained of an occipital headache and heaviness in his arms, and in 2010 the Incident Report noted ‘weakness in arms and shoulders’.
However, there is no pattern to the precipitating events on the occasions prior to 2010. In 1995 his vertigo was preceded by a fall, in 1998 Mr Greene was simply ‘surfing the net’. He would have been seated, but there is no indication that he had been sitting for an excessive time, and there was no question of exertion, physical movement, nor of any of the other indicators or associated symptoms. In 2002 Mr Greene was at Floriade the day previous, presumably walking to view the display of spring flowers. There was no suggestion he had been standing for too long. However, he did experience an occipital headache that day and there is a reference to heaviness in his arms prior to the episode.
In 2010, stress and/or anxiety is identified as being a factor but was denied by Mr Greene in evidence, and there is no reference to stress in Mr Greene’s consultation with Dr Dillon on 1 February 2010, although it appears to have been raised with him at his consultation with Dr Dillon on 1 March 2010. There was no evidence of stress at work at that time. Mr Greene was working 25 hours a week, had secured a part-time position and a promotion suggesting he was happy to continue being employed by the agency.
Dr Whittaker did not identify stress, except possibly an anxiety on Mr Greene’s part that he might develop vertigo if he moved his neck too quickly or too far. Dr George considered the incident on 12 February 2010 did not relate to any anxiety or depression. The TCH discharge summary expressly noted no overt anxiety. No other medical expert referred to stress in reports in 2010 or thereafter. Mr Greene’s blood pressure was high on admission to hospital, but Dr Dillon did not change his medication after Mr Greene’s discharge from TCH, nor did the hospital records indicate any such need. Nor, apart from his level of hypertension, was there evidence of hypertension or stress at the time of the earlier episodes. On balance, the Tribunal is satisfied that the occurrence of Mr Greene’s vertiginous episode in February 2010 was not precipitated by his hypertension, stress or anxiety at the time.
That leaves for consideration the precipitating factors relating to physical exertion or associated symptoms. Dr Dillon attributed Mr Greene’s vertigo on 12 February to the lifting event because it was only after the vertigo episode that Mr Greene’s health deteriorated. Dr Champion considered that the physical effort involved in moving the bag of books had disturbed the proprioceptors in Mr Greene’s neck. His postulate is, however, not accepted by medical experts such as Mr Stuart and Dr Lethlean because the nature of his injury was not akin to those documented disease of their cervical spines, unlike those in the Yahia study on which Dr Champion relied.
In 2010, Mr Greene was involved in exertion and bending forward when lifting the tub of books. In particular, there is reference to neck pain. However, there is little evidence that Mr Greene complained of neck problems in February 2010. The Emergency Department records at TCH on his admission made no reference to neck pain. Nor did the Incident Report, although completed by someone else, but signed by Mr Greene. Even granted that the focus on Mr Greene’s admission was whether he had suffered a stroke, the absence of any such reference is significant.
Nor were there references to neck pain during Mr Greene’s 13 day hospitalisation after the incident, despite comprehensive testing at the time, including an angiogram on his neck. There were daily records while he was hospitalised and Mr Greene was regularly asked whether he had any other problems and there is no mention of his neck. The Tribunal also notes that there were Emergency Department records of earlier admissions referring to neck problems, namely in 1981 by Dr Danta, and in his 1998 and 2002 admissions. These would have been available to staff to alert them to earlier neck problems.
Mr Greene said he had told hospital staff about his neck but they would not listen. However, the Tribunal notes that he is not a good historian and prefers not to rely on his recollection. Dr Dillon’s records too make no mention of any neck problems in his notes after the incident. So despite Dr Dillon’s oral evidence that at one of his early consultations after February 2010 Mr Greene had mentioned his neck, the Tribunal finds that the reference, if it occurred, was not sufficiently significant to be noted, suggesting it had not been prominent in the discussions. It is not until the worker’s compensation claim in June 2010 that there are references to neck problems.
Mr Greene in evidence described the sequence of events on 12 February 2010 in the Incident Report as ‘weakness in shoulders and arms, went to bathroom, felt faint and dizzy and fell’. However, in evidence he noted pain in his neck, felt dizzy and faint and fell. In Dr Champion’s history of Mr Greene’s account, there is reference to ‘the sharp pain, the cold feeling and then dizziness’. In other words, there appears to be little consistency in Mr Greene’s accounts.
On balance the Tribunal finds that the information about neck pain in 12 February 2010 is a reconstruction of the event and that in light of all the evidence, Mr Greene did not experience specific neck pain although he did have generalised pain/weakness in shoulders and arms at the time. The Tribunal also notes that despite Mr Greene saying that before the accident any problem with his neck ‘wasn’t prominent’, there is sufficient evidence of him being sensitive to any touching of his neck, for example, in the records of the Canberra Body Clinic, and the medical evidence for example of Dr Clubb that ‘pain in his neck has been gradually worsening over the last few years’, of Mr Greene’s limited capacity for work due in part to his neck condition, his dizziness and vertigo, and his fibromyalgia, to discount his evidence on this issue.
That leaves for consideration the other possible precipitators which are physical in nature. In 2010 Mr Greene was not involved in a fall, prolonged standing or sitting, rapid movement, going round corners too quickly, looking at the horizon, or escalating headache. However, his actions in moving the tub of books did involve exertion, bending forward and picking things up. The possibility of organic damage to Mr Greene’s neck or disturbance to proprioceptors is discounted on the evidence considered earlier.
The issue is whether any of these actions could have aggravated his vertigo, or his fibromyalgia/cervical condition. The evidence can be summarised as follows:
·Dr Lueck said Mr Greene’s dizziness and vertigo were ‘precipitated by tension or pain in the neck and shoulder muscles’. There would have been tension in his neck and shoulder from lifting and Mr Greene had referred in the Incident Report to ‘weakness in my shoulders and arms’.
·Dr Dillon’s view was that the exertion from lifting the tub of books exacerbated Mr Greene’s conditions of vertigo and vertiginous migraines;
·Mr Stuart said his condition ‘was not consistent with [the] stated cause of lifting a heavy box’ and noted that vertigo of unknown cause more commonly occurs randomly;
·Dr Lark noted that Mr Greene’s vertigo could be caused by ‘strong exertion’ and that Mr Greene has to be careful with lifting;
·Dr Champion considered that the exertion of lifting the tub had exacerbated Mr Greene’s conditions;
·Dr Whittaker considered Mr Greene’s reluctance to move his neck may have been because of ‘his concern about vertigo if moving his neck too quickly or too far’;
·Dr Matison said Mr Greene may have suffered a vasovagal attack and that this had no direct connection to his cervical spine condition;
·Dr Lethlean said his condition was probably due to Mr Greene fainting and may have been due to his fibromyalgia, the causes of which were unknown, and it was only coincidental that his vertigo incident occurred on that occasion. The incident was not due to carrying the tub of books, since neither his neck nor his balance had deteriorated after February 2010. By implication that meant his employment had no causative impact;
·Dr George denied that any psychological condition was causative of the incident in February. At the same time he said the symptoms were not typical of a simple vasovagal faint, nor were the symptoms consistent with an adverse reaction to medication, a view supported by Dr Kennedy.
In summary, Dr Lueck, Dr Lark, Dr Dillon and Dr Champion considered that the exertion involved in lifting the tub of books may have precipitated the incident in February 2010. Dr Dillon is the treating doctor, and Dr Champion could not confirm whether it was pain or an organic disturbance of the proprioceptors was the cause. Dr Champion’s theory about proprioceptors in a case like Mr Greene’s with no documented disease of the cervical spine has not been accepted by the Tribunal.
Against these views, Mr Stuart, Dr Whittaker, Dr Matison, Dr Lethlean and Dr George, denied that activities of Mr Greene had any connection to the occurrence that led to his hospitalisation. All are medical specialists. The view of Dr Lethlean and Mr Stuart was that vertigo of unknown cause occurs randomly and it was a coincidence that Mr Greene had a vertigo attack when he did. Dr George, Dr Lethlean, Mr Stuart and Dr Matison considered that Mr Greene had simply fainted, but attributed no cause, although Dr George doubted the symptoms were those of a simple vasovagal faint. Dr Lethlean considered the faint may have been due to his fibromyalgia, itself a condition of unknown cause. On balance the Tribunal is not satisfied, despite the coincidence of Mr Greene having a vertigo episode immediately following the lifting incident, that Mr Greene’s subsequent hospitalisation and continuing disability was due to that event.
In Mr Greene’s lengthy history of vertigo attacks, there is no pattern to the occurrences. That is consistent with the views of Dr Lethlean and Mr Stuart that vertigo of unknown cause occurs randomly. If Mr Greene simply fainted, there is no indication on the medical evidence that this reaction was due to the exertion on lifting. If the incident was provoked by his fibromyalgia, that too is a condition of unknown cause and there is no evidence that his fibromyalgia was attributable to Mr Greene’s employment. His employment was not implicated in any of Mr Greene’s previous vertigo incidents which all occurred while he was at home or away from the workplace. So on balance, the Tribunal is satisfied that Mr Greene’s vertigo incident was not aggravated, much less to a significant, that is, more than material degree, by his employment.
In any event, the Tribunal is not satisfied that Mr Greene’s condition was aggravated by the incident in February 2010. Mr Greene has had a lengthy period away from work since the incident. However, prior to the incident, Mr Greene’s history indicates other, lengthy periods when not working including a period of some ten years when he was on the disability support pension. Mr Greene’s evidence was that his condition has worsened since the February 2010 incident. However, in cross-examination, he agreed that his current medication was at about the same intensity as it was prior to the attack and that he had had chronic neck pain prior to the manipulation in 1981. He also said his long-standing dizziness was presently only occasionally debilitating, and that he had suffered more frequently from dizziness prior to February 2010 than he had indicated in his statement. He conceded too that his long-standing part-time employment situation was at least in part because of his medical conditions.
Dr Dillon also acknowledged in evidence that prior to the incident, Mr Greene had multi-level spinal pain, upper cervical dysfunction symptoms, including referred headaches, vertiginous migraines, vertigo and cranio-cervical-scapular neuropathic pain. He conceded in cross-examination that Mr Greene’s psychological condition since 2010 has fluctuated as it had prior to the incident, and that his problems with dizziness and fibromyalgia were stable and there was no significant change. Dr Dillon has treated Mr Greene for some considerable time and the Tribunal relies on his assessment. This evidence does not satisfy the Tribunal that Mr Greene’s conditions had been ‘made worse’ by the vertigo incident in 2010.
On balance, the Tribunal is not satisfied that Mr Greene’s conditions have worsened since his February 2010 incident. Accordingly, the decisions under review are affirmed.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr Ion Alexander, Member ..................................[sgd].........................................
Associate
Dated 5 February 2013
Dates of hearing 16 and 17 July, 29 October 2012 Date final submissions received 7 December 2012 Counsel for the Applicant Leo Grey Solicitors for the Applicant Pappas J Attorney Counsel for the Respondent Jane Godtschalk Solicitors for the Respondent Dibbs Barker
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