Yanku and Comcare (Compensation)
[2017] AATA 1454
•13 September 2017
Yanku and Comcare (Compensation) [2017] AATA 1454 (13 September 2017)
Division:GENERAL DIVISION
File Number(s): 2015/0829
Re:Helen Yanku
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms S Taglieri, Member
Date:13 September 2017
Place:Hobart
The decision under review is affirmed.
................................[sgd].................................
Ms S Taglieri, Member
CATCHWORDS
COMPENSATION – Workers’ compensation – Disease – Aggravation of ailment – Liability for previously accepted injury – Whether continuing contribution from employment – Cervical spondylosis – Nociceptive and non-nociceptive contribution – Decision under review affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14 & 16
CASES
Australian Postal Corporation v Bessey [2001] FCA 266
Australian Telecommunications Commission v Barker [1990] FCA 489
Briginshaw v Briginshaw (1938) 60 CLR 336
Cakir and Comcare [2007] AATA 2015
Commonwealth of Australia v Muratore (1978) 141 CLR 296
Commonwealth of Australia v Beattie (1981) 53 FLR 191
Gallway and Australian Postal Corporation [2015] AATA 259
Isley v Wattyl Australia Pty Ltd [1997] FCA 427
Manns and Comcare [2012] AATA 462
McDonald v Director-General of Social Security [1984] FCA 57
Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40Tran and Comcare [2010] AATA 719
REASONS FOR DECISION
Ms S Taglieri, Member
13 September 2017
Ms Helen Yanku is a longstanding employee of the Australian Taxation Office (the ATO). She made a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of muscular spasms and neck pain. Her claim form, which was in evidence before the Tribunal, identified the parts of her body affected by the injury claimed to have been suffered at work and included neck, upper back, arms and hands.[1] The injury was attributed to intensive computer duties over a six day period.
[1] T4, p 5, T documents.
The Respondent accepted liability for Ms Yanku’s claim for compensation and notified her accordingly by letter of 11 July 2011.[2]
[2] T7, p 21, T documents.
After mid-2011, Ms Yanku continued to work at the ATO and undertook various Return to Work plans and rehabilitation. She also received treatment in respect of the injury for which compensation had been accepted.
Between 2011 and 2014, Ms Yanku’s claim was treated as accepted and various payments of compensation were made under the Act.
It was common ground that as a consequence of the injury to the neck and upper limbs Ms Yanku experienced symptoms of depression. The Respondent had also accepted liability for the consequential depressive symptoms.
On 4 September 2014, the Respondent determined to cease payment of compensation to Ms Yanku in respect of the previously accepted injuries and conditions. It notified her accordingly in writing and the notice of determination given to her was in evidence before the Tribunal.[3]
[3] T32, p 159, T documents.
It is evident from the materials received by the Tribunal during the hearing that the reason for the determination to cease payments of compensation was predominantly the opinion received from Dr David Ruttenberg, a consultant occupational physician.
On 23 December 2014 the Respondent affirmed its earlier determination of 4 September 2014.
Ms Yanku made an application to this Tribunal on 19 February 2015 seeking a review of the Respondent’s determination of 23 December 2014.
The application for review was heard by the Tribunal from 10 April 2017 to 14 April 2017 and both Ms Yanku and the Respondent were represented by counsel.
ISSUES ARISING
The ultimate issue in this case is whether the determination by the Respondent in September 2014 to cease payments of compensation to Ms Yanku was the correct or preferable decision. This in turn requires findings to be made about:
(a)what injury liability to pay compensation was accepted for;
(b)whether Ms Yanku continued to suffer from that injury on and after 4 September 2014; and
(c)if so, whether the injury caused incapacity such that weekly compensation and/or medical treatment expenses continued to be payable to her.
The entirety of the T documents were received in evidence and many medical reports attest to the existence of an injury to the neck affecting the upper back and the upper limbs and the same being the subject of the accepted claim for compensation.[4] The specific characterisation of the injuries for which liability to pay compensation was accepted under the Act was not agreed.
[4] See T3, T8, T10, T11, T12 & T13.
CONTENTIONS OF THE PARTIES
The Applicant contended that notwithstanding the determination by the Respondent in September 2014 to no longer pay compensation under the Act, she continued to suffer from the injuries for which the Respondent had accepted liability to pay compensation. Despite this, there was no specific submission made by the Applicant about what the compensable injuries were for the purposes of sections 5A, 5B and 14 of the Act.
Further, the Applicant contended that because she continued to suffer from the effects of the compensable injuries, the Respondent remained liable to make payments for weekly compensation and medical treatment pursuant to sections 14 and 16 of the Act.
In response, the Respondent contended that the decision to cease payments of compensation was correct as the Applicant no longer suffered from the injuries it had initially accepted liability for. Its case was that the compensable injuries were diseases, namely temporary aggravations of pre-existing cervical spondylosis and pre-existing depression.
RELEVANT EVIDENCE BEFORE THE TRIBUNAL
In addition to the evidence contained in the T documents, each of the parties adduced expert opinion and lay evidence.
The Tribunal received a written statement of evidence from Ms Yanku.[5] Ms Yanku gave oral evidence before the Tribunal and was cross-examined. The reliability of Ms Yanku’s evidence became a critical factor influencing the determination to be made by the Tribunal, as the Respondent contended that her evidence was unreliable. It argued that Ms Yanku had failed to disclose to any of the examining doctors who saw her in respect of her claim the fact that she had experienced a prior injury to her neck in a motor vehicle accident in 1991.
[5] Exhibit A2.
A report of Dr Frederick Binns dated 28 June 1993 conveys that there were significant forces at play in the accident and that Ms Yanku suffered a significant whiplash injury to her neck as a result.[6] Important to the findings that follow, this injury involved the C6/7 of the spine.[7]
[6] Exhibit R8.
[7] Exhibit R8, p 2 at [3].
The Respondent tendered into evidence various documents from the Motor Accidents Insurance Board obtained under subpoena. Those documents, including the report of Dr Binns referred to earlier, clearly demonstrate that Ms Yanku suffered significantly from the accident and was experiencing a degree of incapacity for work. Her symptoms involved the neck and upper limbs and persisted for a period of at least three years after the motor vehicle accident, even on Ms Yanku’s own evidence.
Ms Yanku gave evidence about the motor vehicle accident and a description of the mechanism involved in the accident. In oral evidence, she stated that she had fully recovered from the symptoms caused by the 1991 motor vehicle accident after she received a settlement of a damages claim from the Motor Accidents Insurance Board in 1994.
A consultant occupational physician, Dr James Rowe, was called by Ms Yanku. The Respondent called a consultant occupational physician, Dr David Ruttenberg. Two psychiatrists were called by the parties: Dr Albert Kaplan by Ms Yanku and Dr Ian Sale by the Respondent. Oral evidence was received by the Tribunal from all expert witnesses and their reports were received into evidence.[8]
[8] Exhibits A3 (Report of Dr Rowe, 9 August 2014), A4 (Report of Dr Rowe, 10 August 2016), A5 (Report of Dr Kaplan, 20 May 2015), A6 (Report of Dr Kaplan, 10 April 2017), R19 (Report of Dr Ruttenberg, 23 December 2015) & R20 (Report of Dr Sale, 24 November 2015).
The Respondent also tendered into evidence historical medical records relating to Ms Yanku. Of particular relevance is a report of Dr Anna Chilcott dated 8 February 2005.[9] The report of Dr Chilcott documented that Ms Yanku had ‘a very stressful time recently at work and as a result has problems currently with neck/left shoulder and lumbosacral pain/muscle spasms’ and further stated that ‘she has a history of MVA resulting in whiplash about ten years ago. She also has some residual aches and pains from a fall before Christmas last year.’
[9] Exhibit R11.
The Respondent tendered records it had summonsed from Psychology Works. Within those, there was a letter from Dr Hilton Francis dated 27 June 2012 reporting to Dr Mojca Winani, Ms Yanku’s GP. By June 2012, the opinion of Dr Francis relevantly was that:
The predominant problem now relates to her C6-7. She gets the pain radiating down the right scapula. She has a feeling of weakness in her right forearm.
She has the neck discomfort.
She is miles better than she was but I think we need to optimise the final outcome.[10]
[10] Exhibit R16.
Extracts from Ms Yanku’s records at Bayfield Medical Centre were also tendered by the Respondent.[11] These documents demonstrated that at various times during 2005, 2006 and 2009 Ms Yanku had presented with symptoms involving her neck and upper limbs, as well as depression and anxiety. The medical records and the history contained in them as noted above all related to the period prior to the 2011 workplace injuries and claims. Ms Yanku gave evidence of experiencing neck pain while at work at the ATO in 2008 also. There is no evidence before the Tribunal of a claim for compensation being made for injury at this time.
[11] Exhibits R12, R13, R14 & R15.
The Respondent’s counsel cross-examined Ms Yanku regarding records in evidence from the Clarence Super Clinic.[12] Ms Yanku admitted that she had completed various questionnaires stating she had not had any head injury or spinal injury prior to the time of completing the questionnaire in 2013. When challenged as to her answers being inaccurate Ms Yanku’s explanation was that she did not specifically recall why she had completed the questionnaire incorrectly and assumed that it was simply a wrong tick of the box. Similarly her explanation for not stating that she suffered from depression was that she had accidentally answered incorrectly. The Tribunal observes that regardless of why she gave an incorrect history, it is apparent that Ms Yanku’s statements are not always correct and reliable.
[12] Exhibit R10.
Regarding the report of Dr Chilcott of 8 February 2005, Ms Yanku claimed that she could not recall seeing Dr Chilcott in 2005 and consistently refuted an understanding that her symptoms from 2005 onwards pertaining to the neck and upper limbs may have had some relationship to the motor vehicle accident in 1991, or a degenerative condition of the cervical spine.
It was put directly to Ms Yanku that leading up to her 2011 workplace injury, she had always had intermittent neck pain and that it had never gone away after the 1991 motor vehicle accident. Ms Yanku stated that she did not agree. Further it was directly put to Ms Yanku that her workplace duties at the ATO did not involve constant mouse-work and keying but Ms Yanku stated that she did not agree.
Ms Yanku also gave evidence about her depressive symptoms before and after the 2011 work injuries. The effect of the evidence was that her depressive symptoms were worse after it and that the pre-existing personal causes (eg sexual abuse, institutionalisation, death of a cat, pre-existing neck pain) were not relevant enduring contributors. When cross-examined about her pre-existing psychiatric state by reference to the records of Dr Exarhakos and the Clarence Super Clinic, Ms Yanku frankly admitted that she had pre-existing symptoms of depression before the 2011 workplace injury claim. Despite this, she maintained that as a result of the 2011 workplace injury her symptoms of depression have become permanently worse.
Dr Kaplan and Dr Sale agreed that Ms Yanku had suffered depression prior to the workplace injury in 2011. Both agreed that the experience of chronic pain was recognised to lead to depressive symptoms and that such symptoms also amplified the perception of pain that was experienced.
The two psychiatrists disagreed about Ms Yanku’s psychiatric diagnosis and whether the need for treatment of the depressive symptoms was the result of work-caused injury in 2011. Dr Kaplan diagnosed an adjustment disorder with symptoms of anxiety and depression.[13] Dr Sale diagnosed major depression.[14] Dr Kaplan considered that treatment was required for work-caused depressive symptoms. Dr Sale’s views were that the most significant contributor to the depressive symptoms after 2014 were pre-existing constitutional factors involving institutionalised care and sexual victimisation. Dr Sale did not consider that Ms Yanku was incapacitated for work at the ATO by depression or that work was the most significant contributing factor causing her depression. Dr Kaplan considered that the depressive symptoms were affecting concentration but that the physical condition of the neck/upper limbs was causative of incapacity.
[13] Exhibit A5, report of 20 May 2015, p 12 at [4].
[14] Exhibit R20, report of 24 November 2015, p 10.
The Respondent called Ms Helen Morgan to give evidence. Ms Morgan is a Manager in the Superannuation area at the ATO where Ms Yanku has worked in the relevant period. She gave evidence about the nature of the work required of Ms Yanku. A statement of her evidence was tendered,[15] and she was cross-examined about the work Ms Yanku was doing in 2013 when she had a ‘relapse’. She denied that Ms Yanku was subject to formal performance management but agreed that there was concern about accumulation of flex hours and time away from work, which Ms Morgan understood was not always connected with her neck pain but also other things in her life. She was unaware of, and could not comment on, whether Ms Yanku had been told that she could not take any additional leave without pay.
[15] Exhibit R21.
Evaluation of the expert opinions
Dr Rowe, who was called on behalf of the Applicant, gave evidence that Ms Yanku suffered from occupational overuse involving her cervical spine and right shoulder. He opined that this was in part due to an aggravation of degeneration in the cervical spine, particularly in the lower levels C5/6 and C6/7. Dr Rowe was of the view that the nature of Ms Yanku’s work at the ATO aggravated the cervical degeneration. In particular he considered that the repetitive nature of her work (such as keying and using her arms and hands in a repetitive fashion) aggravated degeneration in the cervical spine. He was of the view that had Ms Yanku not been performing the repetitive and intensive computer work for a period of approximately six days in 2011, she would not have developed the symptoms that she did.
It was Dr Rowe’s opinion that Ms Yanku continued to experience symptoms relating to occupational overuse in the cervical spine and right shoulder after September 2014. He considered these still related to an aggravation of pre-existing degenerative changes which caused acute neck sprain and acute symptoms of pain which subsequently became chronic. Dr Rowe considered that Ms Yanku’s work at the ATO has been a contributing factor to continuing symptoms. Further he opined that she continues to require ongoing treatment, needs assistance at home with home help and gardening, and that she would benefit from the use of medication, massage and active exercises. Dr Rowe considered that Ms Yanku was not fit for fulltime, unencumbered, unmodified work duties at the ATO.[16] Despite this, the effect of his evidence was that Ms Yanku had a partial capacity for work.
[16] T31, see especially p 158, T documents.
Noting that Dr Rowe accepted there were factors other than work at the ATO contributing to what he diagnosed as occupational overuse syndrome, his views lacked required detail and reasoning about the degree to which various factors were contributing to Ms Yanku’s ongoing symptoms. When Dr Rowe’s views were tested in cross-examination by counsel for the Respondent, particularly in the context of the significant cervical spine injury suffered in the 1991 motor vehicle accident and the degenerative nature of cervical spondylosis, Dr Rowe did not alter his opinion because he continued to assume there were no symptoms in the cervical spine before 2008 and 2011.
Dr Rowe stated that it was entirely plausible for Ms Yanku to have fully recovered from the acute injury to her cervical spine in 1991 and that he remained of the view that the ongoing symptoms in the cervical spine after 2014 were the result of the 2011 workplace injury. He refuted the proposition that the more likely significant contributing factors to her symptoms since 2014 were the whiplash injury in 1991 and cervical spondylosis. He maintained that it would be necessary to know whether there were problems in the interim after 1994 and before 2011.
It was apparent from the evidence given by Dr Rowe that he was unaware that Ms Yanku experienced symptoms of pain and restriction of movement in the neck and right upper limb in 2005 and 2008 and that she had had treatment at those times. His opinion was wholly based on the assumption that Ms Yanku had no further symptoms relating to her neck after 1994. This assumption is not valid or accurate given all the evidence before the Tribunal. It certainly damages the validity and merit of Dr Rowe’s opinions.
The opinion of Dr Ruttenberg ultimately was to the effect that he accepted that Ms Yanku did suffer an exacerbation of symptoms emanating from the cervical spine, the major cause of which was her employment in 2011.
Dr Ruttenberg accepted that there had been an exacerbation of symptoms, particularly neck and upper limb pain which resulted in restriction of movement and disability. He opined that Ms Yanku had continued to present with chronic pain with non-nociceptive contribution. In addition, his view was that underlying the chronic pain state there was a significant nociceptive contribution from the C6/7 cervical spondylosis. He accepted Ms Yanku had developed increased symptoms of depression which affected her perception of the severity and nature of her pain.
Dr Rowe and Dr Ruttenberg accepted that the workplace duties in May 2011 caused increased symptoms in the cervical spine. The point of difference was that Dr Rowe regarded the symptoms which manifested to be new symptoms contributed to in part by the workplace activities, whereas Dr Ruttenberg considered the symptoms to be a worsening of pain constituting an exacerbation of the pre-existing degenerative changes in the cervical spine. Both doctors accepted some part of Ms Yanku’s chronic pain experience from 2011 onwards was because of her workplace duties.
Dr Ruttenberg was questioned by the Tribunal. He was asked how it were possible, if it were assumed Ms Yanku had pre-existing symptoms of cervical spondylosis which intermittently waxed and waned and which were exacerbated by the computer work in 2011, to say when the exacerbation caused by the workplace duties ended and Ms Yanku returned to her pre-exacerbation symptoms status. The response from Dr Ruttenberg was that it depended on the driver of the pain, the cervical spondylosis or the background non-nociceptive pain that she already had (meaning the nociceptive pain pre-May 2011 exacerbation).[17] Dr Ruttenberg then clarified that in Ms Yanku’s case it was probably a combination of both and it was not possible to disentangle the contribution to non-nociceptive pain from prior to May 2011 and after that date.
[17] Transcript of evidence of Dr Ruttenberg, 11 April 2017, pp 17-18.
The Respondent relied heavily on a report of Dr Bernadette Trifiletti dated 1 October 2013 which was part of the T documents.[18] Ms Yanku was cross-examined about the contents of the report. Ms Yanku did not seriously dispute that she had provided the history and responses recorded in Dr Trifiletti’s report at the time of assessment on 1 October 2013.[19] However, there was dispute about the meaning of what she reported. The reports given were that by January 2013, Ms Yanku had returned to full-time, pre-injury tasks and hours of work and had been working as such until a ‘flare-up’ of symptoms in the upper limb and neck/shoulder girdle in early August 2013, for which there had been no precipitant.[20] Ms Yanku had been at home doing tasks alone that she and her partner would usually do together because he was away. In conjunction with this flare-up of usual neck/upper limb symptoms from the compensable injury, Ms Yanku gave a history of low back pain. There was an eight day period off work in August 2013 and then she had taken pre-planned personal leave. Ms Yanku un-categorically stated to Dr Trifiletti at the assessment that she had returned to where she was before the flare-up described above.
[18] T25, pp 116-127.
[19] T25, pp 120 & 125, T documents.
[20] T25, p 121 at [4]-[5], T documents.
The Tribunal directed the Respondent to file and serve additional T documents consisting of medical certificates and Return to Work plans. These were filed after the close of evidence and have been received and considered for the purpose of the review by the Tribunal.
In the period before the flare-up described above, Ms Yanku was certified by Dr Alice Frampton of the Clarence Super Clinic as requiring further treatment but being otherwise fit for pre-injury duties. No restrictions were placed on the activities to be undertaken at work.[21] This corroborates the accuracy of the history recorded by Dr Trifiletti in her report.
[21] Additional T documents entitled ‘Medical Certificates’, certificate of 11 April 2013, p 4.
The additional T documents demonstrate that Dr Frampton then saw Ms Yanku on 28 August 2013 and certified her as totally unfit between 7 August and 16 August 2013,[22] apparently this is the eight day period recorded in the history given to Dr Trifiletti. Confusingly, there is an almost identical certificate for the same period of total incapacity from Dr Sexton but the Tribunal doubts that anything turns on this.[23]
[22] Additional T documents entitled ‘Medical Certificates’, pp 5-6.
[23] Additional T documents entitled ‘Medical Certificates’, pp 7-8.
No further medical certificates were in evidence except for those at pages 9 to 13 of the additional T documents comprising of medical certificates. All these certified continuing capacity for modified duties for full-time hours. The only restrictions on pre-injury duties apparently being to limit lifting to 5kg and sitting and keying to 20 minutes at one time.[24] These minor restrictions had not applied prior to the ‘flare-up’.
[24] Additional T documents entitled ‘Medical Certificates’, p 11.
The additional T documents in the bundle entitled ‘Return to Work Schedules’ have also been considered. Return to Work Schedule No.17 documents that in March and April 2013, Ms Yanku was performing pre-injury hours and tasks.[25] A Rehabilitation Program Closure Report was signed by Ms Yanku, her employer and the Rehabilitation provider consistent with return to pre-injury work.
[25] Additional T documents entitled ‘Return to Work Schedules’, pp 5-7.
The next copy in the bundle of Return to Work Schedules is of poor quality but relates to the period after 2 October 2013 and after the flare-up in late August 2013. Reliant upon Dr Trifiletti’s assessment it records fitness for full-time work. Despite this, there are recommendations about the duration of breaks and limiting accumulation of flex time.[26] These appear to have been recommended to minimise the risk of relapse of symptoms.
[26] Additional T documents entitled ‘Return to Work Schedules’ p 19.
The above documents contemporaneously record events from the GP examinations/certifications and Return to Work Schedules and are consistent with the recorded history given to Dr Trifiletti at the assessment in October 2013. That is, before the flare-up Ms Yanku was performing pre-injury duties without any modifications but requiring some continuing treatment. After the flare-up, she was performing full-time pre-injury duties and was certified with very minor recommendations.[27] The recommendations were all accommodated and allowed for by her employer given the evidence before the Tribunal, but it was the accumulation and then later the use of leave without pay and/or flex-time that was problematic for the employer.[28]
[27] See Additional T documents entitled ‘Medical Certificates’ certificate of Dr Payne of 18 June 2014, p 11; and Additional T documents entitled ‘Return to Work Schedules’, pp 19-20.
[28] Oral evidence of Ms Yanku, Ms Morgan; Report of Dr Trifiletti, T25, p 117.
Evaluation of evidence of condition after September 2014
By the time the Respondent determined in September 2014 to cease payments of compensation, Ms Yanku had returned to working full-time, pre-injury hours between January and August 2013. Then following a ‘flare-up’ in late August 2013 she has continued to be certified fit for full-time work with minor limitations.[29]
[29] See paragraph 45 above.
Exhibit A1 was tendered by Ms Yanku to identify the total hours said to be the result of absences from employment due to incapacity from the compensable injury for the period 18 October 2014 to 5 September 2016. The Respondent contended that the absences from work were not due to the compensable injury.
The only expert evidence relied upon by Ms Yanku about her capacity for work was that of Dr Rowe. The effects of Dr Rowe’s views are that Ms Yanku is not able to undertake full-time hours in her pre-injury duties but can work 30 hours per week in such duties.[30]
[30] Exhibit A4, report of Dr Rowe dated 10 August 2016.
Dr Hilton Francis, a specialist rheumatologist, had treated Ms Yanku in the past with respect to her condition. Two reports from Dr Francis were tendered in evidence by the Respondent,[31] but Dr Francis was not called by either party. The content of Dr Francis’ report of 16 March 2012 identifies multifactorial contributions to her presentation with a ‘diffuse neurological problem’ at that time, but later in June 2012 that was not the case. Very regrettably the Tribunal did not have the benefit of hearing oral evidence from Dr Francis and exploring his highly relevant, qualified and specialist views.
[31] See Exhibit R17, report of Dr Francis dated 16 March 2012; and Exhibit R16, report of Dr Francis dated 27 June 2012.
Counsel for Ms Yanku elected not to call Dr Francis. Counsel submitted that this was a forensic decision once Dr Ruttenberg made concessions about the nature and effect of non-nociceptive pain and its potential involvement in Ms Yanku’s presentation. Counsel for Ms Yanku also referred to additional cost that would be incurred should Dr Francis be called. The concession referred to is not material to the conclusion reached for reasons expressed below.
At the time Dr Francis wrote his report in March 2012, he considered that the major contributing factor at the time was postural and that Ms Yanku’s whole nerve supply was wound up. This was likely to be a reference to the effect of the intensive computer based duties in May 2011. However, significant to the conclusions of the Tribunal, in the later report of 27 June 2012, Dr Francis identified the predominant problem being at C6/7.[32] This opinion tends to accord with the views of Dr Ruttenberg that the significant factor for the chronic pain later on was the cervical spondylosis.
[32] See paragraph 23 above.
FINDINGS AND CONCLUSIONS ABOUT ISSUES
In arriving at the correct or preferable decision, the Tribunal must apply the civil standard of proof in its deliberations and there is no onus of proof as that concept is understood at common law. The status quo of liability ought to remain unless the evidence establishes otherwise. Nevertheless, the Tribunal needs to have an acceptable level of satisfaction of the case put by the Applicant to allow the application for review.[33]
[33] See Briginshaw v Briginshaw (1938) 60 CLR 336 which has been followed in many Tribunal cases including: McDonald v Director-General of Social Security (1984) 1 FCR 354; Commonwealth of Australia v Muratore (1978) 141 CLR 296, both of which were followed in Australian Telecommunications Commission v Barker [1990] FCA 489; (1990) 12 AAR 490at [8]; Tran and Comcare [2010] AATA 719; and Manns and Comcare [2012] AATA 462.
The evidence received by the Tribunal establishes that Ms Yanku failed to give a history of the 1991 motor vehicle accident to the consultant doctors who had examined her in respect of the workplace injury after 2011. In addition it is reasonable to infer, and the Tribunal does so, that the history was not given to any of the doctors who treated her after the 2011 claim. For example it is not referenced in any of the GP summonsed material for the period after May 2011 or in the reports of Dr Francis. This failure was a consistent failure in that she did not selectively provide the history to some and not others.
When cross-examined in respect of the effects of the motor vehicle accident in 1991 and about settlement of her damages claim for it, Ms Yanku maintained at all times that she had no symptoms affecting her neck and arms after 1994, until 2008 and later in 2011 as a result of some intensive computer activity during her work.
Ms Yanku’s evidence is not accepted as it is inconsistent with contemporaneous reports made at relevant times to her general practitioners,[34] reports which are more likely to be reliable. The Tribunal does not consider that Ms Yanku deliberately or intentionally mislead it. Instead, it is possible Ms Yanku did not appreciate the relevance of past history or had not recalled it, even when her doctors discussed the degenerative condition of her cervical spine.
[34] See paragraphs 23, 25, 26 and 27 above.
Counsel for Ms Yanku contended that there was no evidence connecting the 1991 motor vehicle injuries to the condition of cervical spondylosis. As the expert witnesses and treating doctors after 2011 were not given the relevant history, they did not address the issue until oral evidence. Despite this, Dr Ruttenberg and Dr Rowe accepted that such accident and whiplash injury were quite capable of causing degenerative conditions of the cervical spine such as spondylosis,[35] and the comment of Dr Binns of ‘having to put up with the consequences of the whiplash’[36] are all, in the Tribunal’s view, evidence which provides the required connection.
[35] See, eg, transcript of evidence of Dr Ruttenberg, 11 April 2017, p 8 lines 11-16.
[36] Exhibit R8, report of Dr Binns dated 28 June 1993, p 2.
The unreliability of Ms Yanku’s evidence and Dr Rowe’s evidence,[37] are problematic for Ms Yanku’s case, given that the Tribunal is required to weigh up the competing views of the experts and have an acceptable level of satisfaction of Ms Yanku’s case overall, if it is to find in her favour.
[37] See paragraph 36 above.
What injury/injuries were suffered and constituted the compensable conditions
The Tribunal finds that Ms Yanku had previously suffered a reasonably serious neck injury in a motor vehicle accident in 1991. Although Ms Yanku maintained that she fully recovered from that injury, the Tribunal is not satisfied that she experienced no symptoms at all in her neck after about 1994 and prior to her claim for injury in 2011. Her medical records in 2005, 2006 and 2008 demonstrate that Ms Yanku was probably suffering the effects of cervical spondylosis for some years prior to 2011. The cervical spondylosis was not caused by her work at the ATO and probably developed from the 1991 accident and the cumulative effect of it, aging and ‘wear and tear’ factors over the years. These were described by Dr Ruttenberg as idiopathic, personal and constitutional factors, even before he was aware of the history of injury in 1991.
The Tribunal finds that prior to May 2011, Ms Yanku probably had intermittent symptoms of neck pain and upper limb pain from the effects of cervical spondylosis. Despite this, the Tribunal also finds that the intensive computer based work duties in May 2011 probably caused some increase of pain from the pre-existing cervical spondylosis, which in turn led to some increase in symptoms of depression.
Preferring the opinions of Dr Ruttenberg and Dr Sale, the Tribunal finds that the exacerbation of pain and consequently increased depressive symptoms were temporary and constitute diseases, being aggravations of ailments within the meaning of sections 4, 5A and 5B of the Act. The Tribunal rejects the view of Dr Rowe that there was a completely new injury, being an occupational overuse syndrome.
Whether the effects of the compensable condition continued
The medical evidence received by the Tribunal created an element of doubt in relation to the cause of Ms Yanku’s ongoing neck and upper limb symptoms by September 2014. This is principally because of the overlap of symptoms from pre-existing cervical spondylosis and the neural sensitisation effects of the work-related ailment aggravation of pre-existing cervical spondylosis. The difficulty was apparent from the various opinions of Dr Ruttenberg and Dr Francis referred to earlier and, to a lesser degree, even Dr Rowe.
The Tribunal was not impressed with the evidence of Dr Rowe as a whole. His demeanour was somewhat flippant in response to questioning by counsel and the Tribunal. More importantly, his opinion was based wholly upon acceptance that Ms Yanku had not had any prior symptoms of pain in her neck and upper limb until 2008 and then 2011, symptoms which Ms Yanku related to her work duties. Acceptance of prior history given by Ms Yanku was unsound given all the evidence the Tribunal received. When asked to take into account the history of the motor vehicle accident and subsequent history in the GP records, other potential non-ATO employment contribution,[38] and contribution from work in May 2011 at the ATO, his answers were vague, generalised and not particularly helpful.[39] The views of Dr Rowe regarding whether Ms Yanku continued to suffer symptoms and incapacity as a result of a compensable condition were not persuasive. To the extent Dr Rowe’s opinions conflicted with those of Dr Ruttenberg, the Tribunal preferred the opinions of Dr Ruttenberg.
[38] Other employment before the ATO which involved computer keying and mouse-work.
[39] Transcript of evidence of Dr Rowe, 10 April 2017, p 18 at lines 22-27, p 21 at lines 5-25 & pp 22-23.
Dr Ruttenberg properly accepted that the intensive computer activities in the workplace in 2011 probably caused an exacerbation of pain from pre-existing cervical spondylosis. However, he did not accept that her work generally, continuously and/or permanently caused pain to be worse.[40] He also fairly accepted that the exacerbation of pain from the pre-existing cervical spondylosis may contribute to further neural sensitisation and continued presence of non-nociceptive pain.[41] The non-nociceptive pain consequently being affected by psychological factors which prolonged the perception and experience of pain.
[40] Transcript of evidence of Dr Ruttenberg, 11 April 2017, p 17 at lines 1-5 & 41-48.
[41] Transcript of evidence of Dr Ruttenberg, 11 April 2017, pp 17-18.
The Tribunal asked Dr Ruttenberg whether it was possible to disentangle the symptom effects from the pre-existing cervical spondylosis on the one hand and the exacerbated pain and non-nociceptive experience of pain from May 2011 on the other. He endeavoured to assist and his answer requires careful evaluation in the context of his overall opinion. It was his view that the pre-existing condition of cervical spondylosis itself had both nociceptive and non-nociceptive elements.[42] That being so, he stated that it depended on the ‘driver of that pain’.[43]
[42] Transcript of evidence of Dr Ruttenberg, 11 April 2017, p 19 at line 10.
[43] Transcript of evidence of Dr Ruttenberg, 11 April 2017, p 19 at lines 1-4.
Dr Ruttenberg distinguished between an aggravation of degenerative pathology and an exacerbation of pain symptoms from the pre-existing cervical spondylosis. He opined that he would have expected the exacerbation of pain caused by the intensive computer work in 2011 to have resolved within a period of a month or so because the forces involved in use of the computer were not great.[44] He rejected the notion that computer duties were capable of aggravating pathology involved in cervical spondylosis. Despite this, he accepted that in the period after the exacerbation of pain, there was a potential pain syndrome involving nociceptive and non-nociceptive pain elements and neural sensitisation. The Tribunal’s interpretation of this evidence is that the potential pain syndrome referred to (which may exist in the longer term) involves multiple contributing factors and was distinguishable from a short term worsening of pain. He did not resile from the position that Ms Yanku’s overall presentation after 2014 resulted significantly from the pre-existing cervical spondylosis itself, particularly involving C6/7 of the spine and which itself had non-nociceptive elements of pain.
[44] Transcript of evidence of Dr Ruttenberg, 11 April 2017, p 18 at lines 25-35.
The ‘concessions’ to which Counsel for Ms Yanku made submissions about as referred to in paragraph 53 above, do not assist in persuading the Tribunal that the determination under review was incorrect when Dr Ruttenberg’s evidence is interpreted overall and in proper context.
Similar issues arose in Australian Postal Corporation v Bessey.[45]In his reasons for decision Gyles J stated at paragraph 6:
It has been well settled by a series of decisions ... (including reference to Asioty v Canberra Abattoir Pty Ltd) ... that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
[45] [2001] FCA 266.
The question ultimately became whether the aggravation of the pre-existing ailment, being worsened or exacerbated pain from intensive computer duties and involving the pre-existing cervical spondylosis, was permanent or that it had ceased by September 2014. That is whether the worsened symptoms remained and if so, why.
As to this ultimate question, it is instructive to consider what the Full Court of the Federal Court held in Commonwealth of Australia v Beattie:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. [46]
[46] (1981) 53 FLR 191, 201 per Evatt & Sheppard JJ.
In Commonwealth of Australia v Beattie, the Court emphasised that while worsening of pain from a pre-existing condition brought about by work activities could constitute an aggravation of an injury/disease, whether it did or not depended on the facts of each case. Whether the compensable injury or the underlying pre-existing cervical spondylosis continued to cause Ms Yanku’s neck and upper limb pain after September 2014 is likewise dependant on the facts found and the above legal principles.
In Tippett v Australian Postal Corporation, the Federal Court addressed this question in the context of initial liability and stated:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.[47]
[47] [1998] FCA 335 per Finkelstein J.
Although Ms Yanku continued to suffer from chronic pain affecting her neck and upper limbs after September 2014, the Tribunal is not comfortably satisfied that either the work duties in May 2011 or after at the ATO caused her pain to be permanently worse for the following combination of reasons:
·The Tribunal was not satisfied that it could accept Ms Yanku’s evidence as reliable;
·The Tribunal preferred the opinion of Dr Ruttenberg to the effect that the worsening of pain caused by the work duties at the ATO was likely to be temporary;
·That the views of Dr Ruttenberg therefore closely accord with what Dr Francis found on the assessments conducted between March and June 2012 and what he then opined in June 2012, namely that Ms Yanku’s predominant problem at that time was to her C6/7, a likely reference to cervical spondylosis;[48]
·That Ms Yanku had suffered significant injury to her spine in the 1991 motor accident involving whiplash and her symptoms over the years were likely consistent with cervical spondylosis and/or a whiplash associated disorder;
·The fact that Ms Yanku had returned to full pre-injury duties by January 2013 and that she again returned to full-time, substantially pre-injury duties after the 2013 ‘flare-up’ (which she did not consistently attribute to work duties);[49]
·The GP records in evidence document a number of incidents where symptoms of pain were worse with or without a particular precipitant and that they then improved. This is entirely consistent with the nature of a degenerative spinal condition such as cervical spondylosis;
·That although Dr Ruttenberg stated it was difficult or impossible to disentangle the pre and post-May 2011 contributing causes of the non-nociceptive pain component Ms Yanku had, his evidence overall fairly interpreted was that the significant contributing factor to her presentation when he saw her in 2014 was the nociceptive pain element, which was probably solely caused by the pre-existing cervical spondylosis;
·That by early 2013, Ms Yanku had begun working longer hours at the ATO and had accumulated flex-time. It is unlikely she would have done this if her work duties at that time were responsible for exacerbating pain in her neck and upper limbs;
·That Ms Yanku was certified by her treating doctors as fit for full-time hours at all times after she returned to work in October 2013 following the flare-up and period of pre-planned leave; and
·To the extent Ms Yanku stated that her neck and upper limb pain was worse when she performed duties at the ATO, this was her perception but it is unlikely to be reliable.
[48] See paragraph 23 above.
[49] Cf the history of the Applicant given to Dr Trifiletti and the history given to a GP at a visit on 28 August 2012.
By September 2014 Ms Yanku was no longer suffering the effects of the temporary increased pain caused by the intensive computer duties in May 2011. Instead she was more likely suffering the effects of her pre-existing cervical spondylosis or whiplash disorder, either of which likely caused chronic pain with both nociceptive and non-nociceptive elements.
The increased depressive symptoms after 2014 are found to result from pre-existing depression from which Ms Yanku already suffered prior to 2011 and the effects of the continuing chronic pain which by September 2014 did not result from the compensable condition.
The facts of this case are distinguishable from the facts in cases that the Applicant’s counsel referred the Tribunal to by reference to his citation of the passages from Tippett v Australian Postal Corporation[50] and Cakir and Comcare.[51] On the facts of Ms Yanku’s case, the Tribunal was satisfied that the more plausible explanation for continuing chronic pain was the pre-existing cervical spondylosis/whiplash disorder.
[50] [1998] FCA 335.
[51] [2007] AATA 2015.
Even if Ms Yanku continued to suffer from compensable aggravated ailments after September 2014, it does not follow that the decision under review ought to be set aside. In order to set it aside, the Tribunal would have to be persuaded that there was an incapacity for work after September 2014. It appears Ms Yanku has not always worked full-time hours since at least October 2014.[52] This fact alone does not establish incapacity for work. The applicable legal principles are those the Tribunal referred the parties to during the hearing and are summarised in Gallway and Australian Postal Corporation.[53]
[52] By inference from the content of Exhibit A1.
[53] [2015] AATA 259 at [34].
The evidence from Ms Yanku, Ms Morgan and the various records and reports in evidence demonstrate that after September 2014 Ms Yanku has always undertaken her pre-injury position of APS 3 and later APS 4.[54] Her duties have always been undertaken in the Superannuation area of the ATO. There is no credible evidence that she has been unable to do these duties. To the contrary, all the medical certificates from early 2013 onwards attest to capacity for full-time pre-injury duties with very minor modifications which are accommodated by her employer.
[54] See statement of Helen Yanku dated 22 September 2015 at p 1; and Closing Submissions of Mr Craig Hobbs, Counsel for the Respondent, p 2 at [4].
The opinion of Dr Ruttenberg, whose views are preferred, was that there was no reason Ms Yanku could not continue to work full-time pre-injury duties.[55] Dr Frampton and Dr Payne considered Ms Yanku fit for full-time pre-injury duties before and after the brief ‘flare-up’ in August 2013.[56]
[55] Exhibit R19, report of Dr Ruttenberg of 23 December 2015, p 11.
[56] Exhibit R10, Clarence Super Clinic progress notes.
Ms Yanku did not dispute telling Dr Trifiletti ‘I am now back to where I was’.[57] Regardless of the exact meaning of this statement, the contemporaneous records from GPs, medical certificates and the content of the Return to Work Schedules establish that before and after the flare-up in August 2013, Ms Yanku could not be regarded as incapacitated for work according to established legal principles.[58]
[57] T25, p 121, T Documents.
[58] See paragraph 79 above.
LIABILITY FOR MEDICAL EXPENSES AFTER SEPTEMBER 2014
It follows from the Tribunal’s findings that the compensable conditions are diseases which comprised of temporary aggravation of pain symptoms and temporary increased depressive symptoms, that there is no liability in the Respondent to pay for treatment directed to chronic pain and depressive symptoms after September 2014.
The Tribunal has arrived at the conclusion that the decision under review is the preferable one because it does not have an acceptable level of satisfaction of Ms Yanku’s case overall. The reviewable decision is affirmed.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member
...............................[sgd]...................................
Administrative Assistant - Legal
Dated: 13 September 2017
Date(s) of hearing: 10-14 April 2017 Date final submissions received: 11 May 2017 Counsel for the Applicant: Mr Brian Hilliard Solicitors for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent: Mr Craig Hobbs Solicitors for the Respondent: Australian Government Solicitor
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