Munguia and Comcare [2000] AATA 62 (3 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/55

GENERAL ADMINISTRATIVE DIVISION )

Re Norma MUNGUIA

Applicant

And COMCARE AUSTRALIA

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J Vallentine, Member

Date 3 February 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

M T Lewis,

Presiding Member

CATCHWORDS

COMPENSATION - cessation of liability - pre-existing condition in neck and left forearm - whether disc rupture - whether permanent or temporary aggravation of cervical spondylosis - whether these conditions were work-related

Safety Rehabilitation and Compensation Act 1988 - s4

Health Insurance Commisssion v Van Reesch (1996) 45 ALD 302

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

3 February 2000 Mrs M T Lewis, Senior Member Dr J Vallentine, Member

1. This is an application for review lodged by Norma Munguia ("the Applicant') in respect of a reconsideration decision made by a delegate of Comcare Australia ("the Respondent") dated 12 May 1997. That decision affirmed an earlier determination of the Respondent dated 13 March 1997 ceasing liability to pay compensation in respect of cervical disc lesion and overuse injury to the left forearm, on and from 1 March 1997. Subsequently the Applicant lodged a claim in respect of permanent impairment, but as she was not ready to proceed with that claim at the time of the hearing it was agreed that she would pursue that separately.

2. The issue before the Tribunal in these proceedings is whether on and from 1 March 1997 the Applicant continues to suffer from a work-related condition in her neck and left forearm, and if so whether that condition incapacitated her for work for specified periods since 1 March 1997. The Tribunal was advised that the Applicant had the following days or periods off work due to neck, shoulder and arm pain, for which she claimed incapacity payments -

4 March 1997

23 October 1997

29 June 1998

21 June 1998 to 22 July 1998

11 August 1998

7 September 1998

5 November 1998 to 11 November 1998

17 November 1998 to 4 December 1998

10 December 1998 to 14 December 1998

Also at issue was whether the Applicant needed ongoing medical treatment for the claimed condition.

3. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant -

* Reports of Dr M. Giblin, orthopaedic surgeon, dated 9 November 1998 and 30 June 1998 (exhibit A);

* Report of Dr T. Steel, neurological and spinal surgeon, dated 2 June 1998 (exhibit B);

* Report of Dr N.W.C Dorsch, neurosurgeon, dated 31 January 1991 (exhibit C);

* Report of Dr J. Williams, general practitioner, dated 4 February 1999 (exhibit D);

* Report of Dr A. Sacks, radiologist, dated 18 November 1998 (exhibit E).

The following documents were tendered on behalf of the Respondent -

* Report of Dr A. Innes-Brown, orthopaedic surgeon, dated 15 June 1998 (exhibit 1);

* Report of Dr J. Chen, occupational health specialist, dated 18 June 1998 (exhibit 2);

* Clinical notes produced by Dr Williams in response to a summons (exhibit 3).

4. The Applicant gave oral evidence at the hearing. Ms Joan O'Neill was called by the Applicant to give oral evidence. Dr Innes-Brown gave oral evidence called by the Respondent.

evidence

Applicant

5. The Applicant was born on 3 March 1950 and immigrated to Australia from Peru in September 1979. Prior to coming to Australia she completed a Diploma of Business Administration which included a qualification in accountancy. She has two children, now aged 23 and 24 years respectively. When she first came to Australia she stayed at home to care for her children. Later she obtained work on the production line in a distillery or liquor manufacturing company. She said the work was repetitive. In about 1980 she began to experience pain in her right wrist. She sought medical treatment and was off work for about two years because she understood the pain arose from her work. She claimed and received a compensation settlement for repetitive strain injury to her right arm and ceased work at the distillery.

6. The Applicant said she then stayed home to look after her children and recover from the injury. During that period she undertook house duties and a three month English language course. She said acupuncture relieved her condition and the pain resolved in some two or three years.

7. In the mid 1980's the Applicant obtained clerical employment for six months and then part-time kitchen work for three or four months. She did not have any recurrence of her right arm pain during either period of employment.

8. In 1988 the Applicant obtained employment with the Department of Defence doing clerical work. She transferred to the Finance Section about September 1989. She was required to use a numbering machine to stamp more than one thousand claims each day. She said she sorted and stamped for about two and a half hours each day. After the lunch break she was required to input the data from the claims to the computer.

9. Approximately one month before the Applicant lodged a claim for compensation (4 May 1990), she said she began to suffer heaviness in her right arm and pain in her neck as a result of that work. However, after sustained cross-examination she finally admitted that she had "a clear recollection" of pain in her arm in 1989. Her symptoms gradually worsened at the end of the week.

10. The Applicant said the pain she felt at the distillery was pain in her wrist, whereas the pain she experienced while working with the Department of Defence was in her neck and shoulder. At the instigation of her supervisor, the Applicant sought treatment from Dr J. Williams. She said that the pain was in her neck, shoulder and radiating to her right arm. She said she did not tell her treating doctor, or any other doctor whom she consulted for medico-legal purposes, about her previous symptoms because she may have been "intimidated or nervous".

11. In cross-examination the Applicant agreed that she also had pain radiating to her shoulders and into her arm and fingers in the 1970's or 1980's. She said she did not deliberately withhold that information from doctors who had examined her in respect of these proceedings. She said that since May 1990 she has been suffering continually from neck and arm pain and that it has been getting worse. She could not recall having told the Commonwealth Medical Officer when she was examined on 23 May 1990 that she first noticed pain in her right wrist and forearm in 1989. The Tribunal notes the Commonwealth Medical Officer recorded the following history (T3, p2) -

First noticed pain in right wrist and forearm last year, more recently involving right side of neck also. Pain resolves during vacation, but recurred in April 1990.

However, in her oral evidence the Applicant insisted that she experienced a different pain in 1989. She recalled the pain then to be a burning sensation in her arm and her neck that she had at the end of the day after work. At another point in her evidence she referred to heaviness in her right arm and pain in her neck.

12. The Applicant said she did not have the pain in her right upper limb before she moved to the Finance Department of the Department of Defence. She did not recall ever having time off work for muscular problems or problems of a similar kind in 1989. The Tribunal notes from the Applicant's sick leave records (exhibit 3) that she had an occasional day off in April, May, July and August 1989 for conditions described as "muscular pain", "muscle pain", "painful legs", and "painful leg and calf". However, there is no clear indication that these complaints refer to the Applicant's neck and right upper limb.

15. Dr J. Williams, the Applicant's general practitioner at the time, imposed restrictions on the Applicant's use of the keyboard (T4) in September 1990. In October 1990 the Applicant obtained a transfer to become a travel clerk in another section because she did not consider that she could continue to do the stamping. She said she did mainly writing, keyboard work and calculator tasks. She agreed in September 1990 Dr Williams requested that she had breaks during her data entry work. She said her supervisor told her to return to her desk when she attempted to take a break, but she agreed that she was never told that she could not take breaks. At another point in her evidence she said she had breaks when she had time to do so. Apart from the breaks her duties were the same. However she agreed that no more than 25 percent of her work was keyboard work. She also agreed that there was no difficulty at work having adjustments made to ease her condition.

16. The Applicant also agreed that in 1989 when she did certain activities at home she felt pain.

17. In November 1990 an Occupational Therapist examined the Applicant's work area and a number of postural adjustments were made (T7). The Applicant then commenced physiotherapy which she continued until 1997, but it appears not to have been regularly monitored either by Dr Williams or Dr Giblin. She ceased physiotherapy treatment only when the Respondent ceased liability for her condition.

18. The Applicant's evidence was that over the following few years from late 1990 she continued to have pain but she was still able to continue performing her clerical duties. She continued to have physiotherapy, but she saw her doctors rarely about these symptoms and she rarely required time off work.

19. Her oral evidence, however, was that she was continually getting worse. She agreed that in 1992 she had a change of supervisor. From that time she said that her supervisor, Ms O'Neill, was sympathetic and she was told by her supervisor to take a break. She said that by 1994 the pain was radiating to her left shoulder and she had numbness in her hands and fingers. In February 1994 an Occupational Therapist's report notes the Applicant rated her pain at eight out of ten (T30, p40). In April 1994, after attending a 3 day self-care course she reported her pain level was two out of ten, experienced only at night and in the mornings (T32, p45). However in her oral evidence, she said that in April 1994 she estimated her pain to be at a level of nine out of ten. She also said the pain at that time was worse than in 1990 when she estimated that it would have been at eight or nine out of ten.

20. There is no evidence that from February 1995 until the end of 1995 the Applicant had time off work because of neck, shoulder or arm problems. Nor is there evidence of her having visited her doctors between 31 October 1994 and 4 March 1996. When the Applicant's attention was drawn to the fact that she did not consult her doctor for any condition related to her neck, shoulder or arms between 31 October 1994 and 4 March 1996 (a period when she said that her pain was at a level of eight out of ten and getting worse and when she was not taking any time off from work), she admitted that she could not remember that period specifically. However she also said that she had constant pain throughout that period.

21. The Applicant admitted that in early 1996 she was performing a variety of clerical work and was required to do more keyboard work, writing and calculating as well as sending faxes and attending telephones. She was not required to do one task for the whole day. She said "it was a variation of hard tasks". She said her neck, back and arm became heavy and painful, and she felt her condition was getting worse. She sought further physiotherapy treatment and was required to lodge a further claim for compensation, which she did on 19 March 1996 (T43) and it was accepted (T44). As with her earlier claim there was no frank injury reported. Rather, she alleged aggravation due to the work tasks that she was required to do.

22. The Applicant attended Dr Williams about March 1996. She said in her evidence that she still had the pain in her neck and arms at that time, and that it was worse in 1996 than in 1990. By 1996 it was affecting her left shoulder and arm. She said that in 1996 the pain came on gradually.

23. A further CT scan taken on 6 January 1997 showed degenerative spondylitic lipping at C5-6 and C6-7, but there was no other significant bone or joint abnormality (T56). A further CT scan in November 1998 noted bulges at C3-4 and C5-6, and osteophytes at C6-7. There was no significant encroachment of the nerve roots.

24. On 1 March 1997 the Respondent ceased paying compensation to the Applicant. She said she continued to attend physiotherapy thereafter from a friend, but less often. She said the pain in her neck, shoulders and arm, and numbness, continued through 1997. In 1998 she considered the pain was getting worse. It was "... in all my back and neck and shoulders".

25. The Applicant continued to work throughout 1997. She agreed she had taken very little time off work at least until about August 1998. She admitted that although there was an increase in her workload at that time she did not raise it with her supervisor. From November/December 1998 the Applicant had several weeks off work. There was no evidence of any particular increase in the workload at this time. However she said that when she was away from work her condition was "not that bad". There was an increase in workload due to processing some additional Army Reserve material well before that time, but at that time Ms O'Neill emphasised that she took steps to ensure that the Applicant did not do more than she indicated she was able to do. At the time of the hearing the Applicant was performing her normal duties, apparently satisfactorily, and she was not having physiotherapy.

26. It was suggested to the Applicant in cross-examination that she commenced taking a large amount of time off from work because of neck and arm pain on and from August 1998 because of the impending hearing of her compensation matter. The Applicant's response was that after the Respondent ceased liability she was not able to attend physiotherapy, and it was that which caused a deterioration in her condition.

27. The Applicant admitted that when she came to Australia in 1979 she had difficulties adjusting because of language, inability to have her tertiary qualifications accepted, and financial problems. She said she had hoped to work in business administration when she came to Australia. She admitted that she returned to Peru early in 1990 at the time of the death of her sister, and again in 1996 when her father had a stroke. The Applicant also admitted to difficulty in sleeping, but she considered this occurred because of pain in her neck and numbness in her arm. She admitted to some difficulties in her marriage commencing in 1990 because her husband expected her to do all the housework but she has been unable to do that since she has had pain.

28. In cross-examination the Applicant agreed that she had advised her solicitor that she did not have a treating doctor before Dr Williams, whereas in fact she had recalled having a doctor and she recalled his name, but she said she did not know how to spell his surname.

Ms Jean O'Neill

29. Ms O'Neill was called by the Applicant to give evidence. She has been the Applicant's supervisor at the Department of Defence since 1992. Ms O'Neill said the Applicant did not have difficulty with her work except when there had been "an abundance of work flow", at which time she had to stop for breaks and take time off when she was not able to have physiotherapy to help "relieve the tension". She recalled the Applicant required time off for physiotherapy during 1993 because of the increased amount of work to be done. Even though an occupational health and safety assessment was done of the Applicant's work station which helped her to manage, there was still a lot of writing to be done, and Ms O'Neill could "see on [the Applicant's] face that sometimes she was having discomfort". She noted the Applicant was not the sort of person who "whinges".

30. Ms O'Neill noted that as the workload increased, the Applicant's complaints about her discomfort increased and she took more time off from work. In mid 1998 the work increased significantly. Ms O'Neill noted that after resting for a weekend the Applicant had less difficulty for the next few days but as the week progressed she became increasingly "physically tense". She considered the Applicant had a strong "work ethic" and appeared to enjoy coming to work. She agreed there was no sudden increase in workload in November 1998 when the Applicant took two and a half weeks off work.

31. Ms O'Neill said she had not been formally advised that the Applicant had work restrictions, but since 1992 she was aware that she had restrictions on performing repetitive work. She had advised the Applicant to inform her when she had any problems, and as far as she was aware the Applicant did so. She has tried not to overload the Applicant with work, but she considered it was "almost impossible in our area not to overwork people to a certain level, but we give sufficient breaks and I do keep an eye on the people to make sure that they're coping". She considered that she had a duty of care to the Applicant to ensure the work she was doing did not cause an injury. She said she insisted that the Applicant stop her work to take breaks as required.

medical evidence

Dr J. Williams

32. The Tribunal notes that in his report dated 4 February 1999 (exhibit D) Dr Williams stated -

.... I have been her treating doctor since April 1989. On 4 May 1990 Mrs Munguia consulted me stating that she worked as a clerk performing data entry duties on a computer keyboard and that for the preceding week whilst performing her duties she began suffering right shoulder pain radiating down into her right forearm. On examination she was tender to palpation over the right shoulder muscles. She was referred for a chest x-ray and a cervical spine x-ray. These were reported as normal. She was diagnosed to be suffering an acute muscle strain due to an overuse muscle injury of the right shoulder and forearm. This injury was consistent with the cause stated. She was treated with a course of Voltaren. Her employer was advised that she would require lighter duties with avoidance of excessive repetitive movements of her right shoulder.

33. The clinical notes of Dr Williams (exhibit 3) also indicate that the Applicant attended on 25 May 1990, 28 May 1990, 30 May 1990, 27 June 1990, 9 July 1990 and 6 August 1990, when no reference was made to these symptoms and the consultations were for other reasons. Nor did the Applicant take time off from work due to that condition between April and August 1990 (exhibit 3).

34. Dr Williams' letter (exhibit D) continued -

Mrs Munguia again consulted me on 11 September 1990, 5 October 1990 and 23 October 1990. She was suffering pain across the base of her neck and down her right forearm with pain in her left forearm. She had been in to (sic) much pain to remain working. She was again diagnosed to be suffering an overuse injury with cervical pain. She was referred to Dr Matthew Giblin, orthopaedic surgeon and commenced on a course of Feldene. Her cervical spine CT scan showed a small central protrusion of C5/6 disc with anterior thecal indentation and small posterior bulging of the C4/5 disc. She was reviewed on 17 November 1990 and was still symptomatic of her injury. She informed me that she was being transferred to travel officer duties with the Department of Defence and as a consequence she was doing more hand writing. She was referred for a course of physiotherapy and commenced on Di-Gesic and Orudis SR 200.

Mrs Munguia was reviewed on 8 January 1991 and she had developed numbness in her right index finger. It was Dr Giblin's suggestion that she see Professor Dorsch, neurosurgeon, at Westmead Hospital. It was Professor Dorsch's opinion that she continue conservative treatment with courses of physiotherapy as he did not consider her injury warranted surgery.

I again reviewed Mrs Munguia on 24 June 1991. She was still suffering cervical pains which she suffered during her work. She was advised to continue physiotherapy in line with Professor Dorsch's advice. She was again reviewed on 26 August 1991. She was attending physiotherapy once a week. She had developed cervical paraesthesia in the proceeding 3 weeks and a constant cervical ache. She had been working at a sloping desk involved in writing and calculating. She was advised to commence Tryptanol 10 mg three times a day and Panadeine Forte.

When reviewed on 18 November 1991 she was suffering cervical pains radiating across the lower neck and into her shoulders and upper forearms with occasional paraesthesia. She was receiving relief from physiotherapy. On 2 March 1992 she was experiencing pain across the right side of her cervical spine and into her right shoulder with a pulling feeling in her right hand. She was attending weekly physiotherapy and taking Panadeine Forte for pain relief.

Mrs Munguia was reviewed on 7 July 1992. She was suffering an occipital headache and associated dizziness. She suffered these symptoms after excessive writing and keying into her calculator. She was advised she required lighter duties to avoid excessive stress on her cervical spine and upper limbs. She was advised to have a 10 minute break every one hour and that she continue on this light duty program until 24 July 1992.

......

Mrs Munguia consulted me on 31 January 1994. She had resumed work on 17 January 1994 after the Christmas break. She had resumed using a keyboard and a calculator. Since resuming work she again developed cervical pains, mid thoracic pains and right shoulder pains. On 25 January 1994 Mrs Munguia's cervical pains were severe enough to necessitate her restarting physiotherapy. On examination she was tender over the C4 to C7 spinous processes with tenderness to palpation over her trapezius muscles and the mid thoracic spine. ...

On 31 October 1994 Mrs Munguia consulted me suffering headaches and an ache across her neck radiating into her shoulders. She also attended on 4 March 1996 and 5 March 1996 and 26 June 1996 with cervical pains. She was advised to restart a course of physiotherapy which eased her symptoms and allowed her to continue working.

Mrs Munguia consulted me on 23 December 1996 suffering from right elbow pains and an ache moving he (sic) right hand, left shoulder pains and left sided cervical pains. She had pains lifting her arm to comb her hair .... She was deemed unfit to work from 20 January 1997 to 2 February 1997.

I consulted Mrs Munguia on 4 March 1997 and 1 April 1997. She was experiencing right arm and forearm pains which was worse after writing at work. She was experiencing cervical and thoracic spine pain and left sided anterior chest wall pain..... She was unable to continue physiotherapy as liability for her treatment was declined by Comcare. Mrs Munguia continued working despite her symptoms. She stated that the family was dependent upon her income and that time off due to her injury would be declined payment and she had limited sick leave. She sought massage from a family friend at minimal cost which she undertook to pay. She sought treatment in her own time.

On 10 August 1998 Mrs Munguia was suffering aching pains across her cervical spine and into both shoulders. She was treated with Panadeine Forte and was off work one and half days as of 10 August 1998. She resumed work on 12 August 1998.

Mrs Munguia was unable to persevere with her symptoms. Despite her stoic constitution and dedication to her job she consulted me on 5 November 1998. She was almost in tears and suffering severe cervical pains across the base of her neck and upper arms. She was advised that the severity of her symptoms was best managed by complete rest from any aggravating factors and that she should take time off work for her exacerbation of symptoms to settle. She was also advised that further assessment of her cervical spine was warranted under these circumstances. She was unfit to work from 5 November 1998 to 11 November 1998. When reviewed on 11 November 1998 she was reviewed and cleared for light duties from12 November 1998 to 10 December 1998. She was off work from 11 December 1998 to 15 December 1998 and restarted light duties as of 16 December 1998.

....

Mrs Munguia has, as chronicled above, been consistently consistent in her history and temporal relationship of her work place to her symptoms. Her early symptoms and investigations established that she suffered a work related injury. Subsequent investigations established a gradual deterioration in her cervical spondylosis. Such degenerative conditions are mechanical in origin and consistent with the constant repetitive forces exerted upon Mrs Munguia's cervical spine in the process of her work. Mrs Munguia has attended my surgery regularly over the last nine and half years with identical symptoms. There is no doubt, in my medical opinion, that Mrs Munguia's work is directly related to the original development of and, more importantly, the ongoing progression of her cervical spondylosis. She also suffers a chronic overuse injury to her right shoulder and right arm.

Her shoulder symptoms and headaches are a radiation of her cervical spondylotic pain into both trapezius muscles and into the occiput area. The most recent cervical x-rays and CT scan document a marked deterioration has taken place over the last nine and half years in the C 5/6 and C 6/7 discs. I would attribute this to her persisting in her job. I would expect that she would have suffered significant pain and discomfort as she carried out her duties. I (sic) my medical opinion I find that these symptoms are genuine and warrant treatment. There is no indication for surgical intervention and Dr Matthew Giblin agrees with this. Treatment modalities available to Mrs Munguia are analgesia, non steroidal anti inflammatory agents, physiotherapy, anti depressants, and the use of TENS machine. I strongly support the re-implementation of physiotherapy and the allocation of a rehabilitation provider to this case.

It is unfortunate that liability was declined. I would expect that Mrs Munguia's symptoms will deteriorate markedly without treatment and without the implementation of lighter duties and work place modification. I also find that she has developed a permanent disability of her cervical spine in the course of her work.

Dr T.Steel

35. Dr Steel, neurological and spinal surgeon, examined the Applicant on 7 April 1998 and reported on 2 June 1998 (exhibit B). He obtained a history from the Applicant and opined that -

On 4 May 1990 she was sorting documents in batches and stamping them with consecutive numbers using a hand-held numbering stamp machine. As she pushed down with stamp machine she experienced a sudden onset of severe pain in her right arm and neck. At the time, she heard a click and then the pain became very severe. She described the pain as going from a dull aching that she had previously been 1/10 up to 8-10/10 instantly.

.....

It seems Mrs Mungula (sic) has suffered an injury in the course of employment. The severe pain shooting down her right arm dates from an action that she performed at work back on the 04/05/1990. Therefore the symptoms that she still suffers would appear to be causally connected to her employment. The fact that the CT scan of the cervical spine in December of 1990 showed the disc bulge that was larger than that of 1994, suggesting some improvement has occurred over time, would indicate that the acute disc prolapse occurred at the time of the injury in 1994. Due to there being some heaviness and abnormal feelings prior to this injury we can state that it was a pre-existing problem that has been aggravated by her employment.

Cervical spondylotic disease is a chronic degenerative disease that is punctuated by exacerbations which can be work related. I would not say that this actually represents an occupational overuse type injury, as in the form of RSI but more represents an injury that has been exacerbated by this work. Subsequent to this, I think that the majority of her problems relate to muscle spasm. She appears to have very little in the way of hard neurological signs but seems to have a lot of severe muscle spasm around the trapezius and cervical musculature. After six years of this problem, it would be unrealistic to expect physiotherapy would help in any form. Her position would appear to incapacitate her at least partially for work. She should not be working in a situation that causes her to tense her shoulder musculature and she certainly should not be a situation requiring her to lift. I would suggest that she stay on permanent light duties with the absence of lifting of any material over 2 kgs and not to perform any repetitive tasks. Mrs Mungula (sic) seemed to indicate that this was not possible in her work place.

.....

36. In her evidence the Applicant said she did not understand the propositions put to her by Dr Steel in respect of the history he recorded of the sudden onset of pain on 4 May 1990, namely that in fact the pain had occurred prior to that date. She also said that she "probably" mentioned to Dr Steel that she had a "click" in her neck when she bent or twisted.

37. The Applicant agreed in cross-examination that although she had a burning sensation when she was doing the stamping, she did not recall experiencing any sudden click in her neck, shoulder or arm. She said in May 1990 the pain was limited to her right arm and neck, and that it occurred when she was doing data entry and stamping. She agreed it did not involve her left arm until around November 1990.

Dr M.Giblin

38. Dr Giblin, orthopaedic surgeon, initially saw the Applicant on 16 November 1990, at the request of Dr Williams. He recorded the following history in his report dated 30 June 1998 (exhibit A) -

She was a forty year old Clerk with a six month history of right neck and arm pain which she alleges she developed from her work. At that time her work involved a lot of stamping by hand, and a lot of data entry etc. She was complaining of pins and needles in the arm, but only in the morning and it lasted for some three to four weeks.

Examination showed a good range of movement of the cervical spine, normal reflexes and no sensation. She had a full range of movement of the shoulder.

39. Dr Giblin noted a CT scan of the cervical spine showed a central C5/6 disc protrusion with extension of extruded disc material behind the superior end plate of C6. He saw the Applicant again on 9 October 1992, after she had seen a neurosurgeon who recommenced conservative treatment. She had had weekly physiotherapy, but despite that, the pain had become more severe.

40. Dr Giblin saw the Applicant again on 1 March 1993 when she complained of pain in her left arm and headaches. He saw her again in February 1994 with a discogram that showed C5/6 pathology with moderate to severe pain. However with further physiotherapy she had improved by 7 March 1994, although she still had intermittent problems. On 6 May 1994 she consulted Dr Giblin again requesting three weeks off work, but he suggested that she stay at work.

41. On 18 March 1996 Dr Giblin noted the Applicant was still complaining of neck pain, she was still at work "but only just coping". She reported a recent exacerbation of pain at Christmas 1995. When seen again on 8 November 1996 she was back at work on normal duties and she was reported to be coping satisfactorily but still had discomfort. She complained that she still had some intermittent pain. Dr Giblin considered there was nothing more that he could do for the Applicant (T49). By January and again in April 1997 the Applicant still had ongoing neck discomfort with radiation into both upper limbs and quite a deal of disability associated with that.

42. The Applicant was not seen by Dr Giblin again until 30 June 1998, and then at the request of her solicitor. She still complained of neck pain with radiation into both upper limbs and she also complained of low back pain. She said her neck was worse than in her back and arms. The symptoms in her arms were constant.

43. The Applicant told Dr Giblin she could only do housework in a piecemeal fashion, and she had difficulty vacuuming, ironing, hanging the washing on the line and reaching up into high cupboards. She could not sit for long periods of time as her neck ached. She was unable to play volleyball or walk for exercise as she did before. She had trouble with quick movements of her neck and reading. Her neck ached at work and with changes in the weather. It also interfered with her sexual activity and her sleeping patterns. Pain prevented her from lifting heavy weights but she could manage light to medium weights, and she could walk about one kilometre. Standing for more than ten minutes hurt her neck.

44. On examination she had 80 percent normal range of movement with no significant peripheral neurological signs. She had full range of movement of her shoulders, and no evidence of rotator cuff disease. Dr Giblin opined that the Applicant had a soft tissue injury to her cervical spine, consequent upon her work activities, and he said that she appeared to have genuine C5/6 neck pathology. He said she remained fit for work that did not involve excessive, repetitive forward flexion of the cervical spine, heavy lifting or work above the level of her shoulder. He noted she had some arthritis in the neck that was an "antecedent cause of some of her symptomatology".

Dr N.W.C Dorsch

45. Dr Dorsch is the neurosurgeon the Applicant consulted in January 1991 at the suggestion of Dr Giblin, and who recommended conservative treatment. He recorded the following history in a letter to Dr Williams dated 31 January 1991 (exhibit C) -

She has as you say had a problem with pain in the neck radiating down the right arm since May 1990, exacerbated by her work situation. There was a couple of months of a feeling of numbness in the right index finger, presumably the C6 distribution, but this got better after she started the physiotherapy. The arm feels weak because of the pain. She also has difficulty sleeping, and feels tense generally, because of her pain.

Dr A. Innes-Brown

46. The Applicant consulted Dr Innes-Brown, orthopaedic surgeon, on 9 June 1998 at the request of the Respondent. Dr Innes-Brown recorded the following history (exhibit 1) -

She said in 1990 she was experiencing aching and discomfort in the whole of her right arm, right shoulder and the right side of her neck, towards the end of each day's work. She said that she consulted Dr John Williams, her GP. She said that Dr Williams sent her for x-rays and put her off work and then told her that she was suffering with "repetitive injury". She said that she was off work for just a few days and on returning to work she still had the same problem. She said that Dr Williams referred her to Dr Matthew Giblin, the orthopaedic surgeon, who sent her for a scan which showed "a lesion" in the C5/6 disc. She said that Dr Giblin put her off work for a month and she had physiotherapy after which she resumed work. She said however, her pain persisted and became worse. She said that she was also experiencing pins and needles in the back of her right hand.

47. Dr Innes-Brown opined that the Applicant suffered from cervical spondylosis. He said that to the extent that her claimed ongoing symptoms in the neck and upper limbs are significant, they would be related to her slowly progressive cervical spondylosis. He found no evidence of any work-related disability. He considered she was fit to carry out all work to be expected of a woman of her age and physique including all of her duties as a clerk. In his opinion she did not require any special ongoing treatment. He opined that there would be slow progression of her spondylosis but not at such a rate that it would interfere with her ability to work until the normal retiring age.

48. In his oral evidence Dr Innes-Brown said the Applicant's condition was caused by age-related degenerative changes. He said the disc protrusions to which reference was made in the CT scan findings were evidence of the slowly progressive degenerative process in the Applicant's neck, which commonly are symptomatic. He considered the symptoms in the Applicant's right hand and forearm could be due to her cervical spondylosis but it could also be due to fibromyalgia, which he considered to be a dubious diagnosis. He considered the latter condition was within the expertise of a rheumatologist rather than an orthopaedic surgeon. Dr Innes-Brown did not consider the Applicant's work since 1990 led to any ongoing effects in her cervical and upper limb region. Rather, her symptoms were explicable in terms of slowly progressive spondylosis. He did not consider from the Applicant's history that there was any exacerbation of her condition in 1996 from her employment. She had been experiencing discomfort in her right arm, right shoulder and the right side of her neck towards the end of each day's work, from 1990. She made no mention to him of any incident in 1996. She made no mention of any clicking sensation in her neck.

49. Dr Innes-Brown was referred to the Applicant's history where she said she was unable to lift more than one to three kilos. He considered she would be capable of lifting at least 10 kilos. He also considered that with her condition of cervical spondylosis she would be fit to perform the work that she was undertaking at the Department of Defence. He did not consider that she was in need of ongoing physiotherapy, except for a short period of physiotherapy for torticollis or acute exacerbations of pain. He did not consider that her condition required continuous physiotherapy treatment over the previous seven years.

50. Dr Innes-Brown was referred to a report of a cervical discogram dated 7 February 1994 (T28) on which Dr David Ho, radiologist, reported as follows -

The C5/6 disc is abnormal and ruptured. There is contrast extravasation. At this level, the patient experienced moderate to severe pain localised to the back of the neck, there was radiation into the left shoulder.

51. Dr Innes-Brown noted the CT scan of 3 February 1994 reported by Dr Gale, radiologist, did not support any statement that the C5/6 disc was ruptured and abnormal. Dr Gale reported the C5/6 disc and neural structure was normal in appearance. He considered the appearances reported on the discogram were due to longstanding degenerative changes. He also said that one would not rely entirely on the results of a discogram to determine whether there had been a disc rupture. However he agreed that if there was a rupture of the disc it was possible that she would have experienced an increase in symptoms. From the history she gave, which was not one of sudden onset of severe pain in the area of distribution of the relevant nerve, he concluded her pain was more likely to have arisen because of the degenerative cervical spondylosis than from a disc rupture. He did not consider there was any radiological indication that the acute pathology that was identified in 1990 at the C5/6 level continues. He considered the CT scan of 3 February 1994 [that showed osteophytes at C6-7 and normal discs and neural structures at C4-5 and C5-6 (T27)], the discogram of 7 February 1994 [that recorded a rupture at C5-6 (T28)], and the CT scan on 3 November 1994 (which failed to reveal any abnormality at C4-5 or C5-6), should be considered as a whole to aid understanding of the Applicant's entire clinical picture.

52. Dr Leung, radiologist, reported on a CT scan of the cervical spine dated 17 December 1990 (T8) that there was a small central posterior protrusion of the C5/6 disc with anterior thecal sac indentation.

53. Dr Innes-Brown said the Applicant did not give him a history of having performed repetitive duties to do with stamping documents. He considered that spondylosis could be affected in its progress by incidents of significant trauma but not by repeated minor trauma. He doubted that the task of repetitively stamping documents would have affected the condition because he said that muscle fatigue and pain would stop her from undertaking the task long before any aggravation of cervical spondylosis occurred. Likewise he did not consider that keyboard activities for two hours a day would aggravate the condition.

54. Dr Innes-Brown considered the Applicant's increase in neck pain while performing work resulted from holding her neck and fatiguing the muscles, which unmasked the underlying cervical spondylosis. However, as she would stop what she was doing when she got the pain, the effect was only temporary. Eventually one would have to stop the activity because of pain. He agreed that in such circumstances physiotherapy could provide some relief. Dr Innes-Brown also said that the pins and needles and arm pain which the Applicant reports could well be the effect of the inflammatory process in her cervical spine.

Dr N.W McGill

55. Dr McGill provided a medico-legal report for the Respondent dated 25 February 1997 (T66) that underpinned the Respondent's decision to cease liability. He opined that she had clear radiological evidence of cervical spondylosis that may be contributing to some degree to her symptoms. However her current symptoms and physical examination findings were those of fibromyalgia, a condition of widespread musculo-skeletal pain associated with sleep disturbance and depression. He noted that she demonstrated widespread tenderness typical of fibromyalgia. Her neck movements were 80 percent of normal without any suggestion of cervical nerve root irritation or dysfunction.

56. Dr McGill considered that at the time of his examination, fibromyalgia appeared to be accounting for the majority of the Applicant's symptoms. He said that neither fibromyalgia nor cervical spondylosis was related to her work activities. He said -

The natural history of cervical spondylosis is to produce intermittent flares of neck and referred arm pain and those flares usually occur in the absence of any precipitant. It is possible that her work activities could have been responsible for flares of neck and referred arm pain but I think there is no possibility that her work activities could have led to any permanent aggravation. There was also no suggestion from her history that her current work activities are aggravating her symptoms.

57. Dr McGill added -

... I think her widespread symptoms are genuine but are primarily a reflection of her unhappiness/depression and associated sleep disturbance. Alteration of her work activities is unlikely to improve those symptoms.

Dr J. Chen

58. Dr Joan Chen, occupational health physician, examined the Applicant on 18 June 1998 at the request of the Respondent. Dr Chen recorded the following history:

Ms Munguia informed me that her symptoms began circa 1991 when she was working in the Finance Section. Her job involved the receipt and processing of claim vouchers. Apparently, each claim had to be manually stamped. Around that time, she noticed soreness in the entire right arm, radiating to the neck. Two weeks later, her supervisor noticed that she was in discomfort and advised her to see her GP.

Her GP diagnosed a work- related problem and advised two days off work and complete rest. Ms Munguia found some benefit with this. When she returned to work, apparently, "the problem was still the same". She consulted her GP and had more time off work. She estimated that she would have had three days off and then, another one week off work.

Thereafter, she was referred to an orthopaedic specialist, Dr Matthew Giblin. She latter recommended physiotherapy treatment which she received for several months. Ms Munguia reported that physiotherapy treatment was of some benefit. She stated that throughout this period, she continued performing her usual duties, albeit with few days off here and there. The pain in her right arm and shoulder girdle persisted.

She was seen by Dr Giblin circa 1992/1993 and was referred for a CT scan of the cervical spine. This apparently showed C5/6 disc pathology. She had a month off work. Thereafter, her GP referred her for physiotherapy treatment. She was then referred to Dr Dorsch, (? Neurosurgeon) who concurred with physiotherapy treatment. By then, she had been transferred to the Recruiting Section, where her work involved the processing of travel allowances for Department of Defence personnel and checking of applicants to obtain police clearance. Specifically, the work involved typing into the computer based work, writing and calculating. In addition, she maintained the stock inventory, which also involved handling of stock items.

Apparently, the pain in her right arm, neck and upper back persisted. A few months later, she developed pain in the left shoulder girdle and pins and needles in her upper back and headaches. She noticed weakness in both hands in the mornings. She continued attending physiotherapy treatment. Eventually, the pain also involved her low back area. She stated that nevertheless, she continued with her usual clerical duties in the Recruiting Section. (I note from the documents you enclosed, that she performed selected duties at some stage.)

....

59. Dr Chen considered the Applicant suffered from lower cervical degenerative disc disease at C5/6 and C6/7 and constitutional fibromyalgia. She considered the Applicant was physically capable of performing full normal duties as a clerical and administrative officer and noted that she was currently performing those tasks. Dr Chen recommended that the Applicant's work station be ergonomically assessed and adjusted to ensure good working posture, and she should avoid prolonged and repetitive neck flexion and extension. She did not consider the Applicant suffers from any ongoing injuries as a result of her employment with the Department of Defence. She also noted that her reduced tolerance for prolonged typing might be attributed to her constitutional fibromyalgia.

submissions

Applicant

60. It was submitted for the Applicant that none of the medical specialists who provided evidence diagnosed her injury as a repetitive strain injury. She experienced pain in the area of the right wrist and forearm. It was submitted that since approximately May 1990 the Applicant has suffered from a completely different injury from that which she suffered in about 1980. While the history she gave to doctors did not include the 1980 injury, it was submitted that she was honest about that injury in her evidence to the Tribunal. It was the Applicant's evidence that she had no physical difficulty in performing her work with the Department of Defence, prior to her transfer to the Finance Section in about September 1989.

61. The Applicant's claim in respect of this application relates to a disc rupture at C5/6, or an aggravation of cervical spondylosis. To the extent that she claims symptoms in her arms, it is submitted that these symptoms are secondary to the injury to her neck. The Applicant does not claim that she now suffers from a repetitive strain injury. It was her evidence that in the weeks prior to 4 May 1990 she began to suffer pain in her neck, right shoulder and right arm, while performing her duties. She had not suffered pain of this type previously.

62. The Applicant relied on the decision of the Federal Court in Health Insurance Commission v Van Reesch (1996) 45 ALD 302. It was submitted the Tribunal should find that the Applicant suffered an injury pursuant to s. 4 of the Act, being a disc rupture that occurred in the weeks prior to May 1990 in the course of the Applicant's employment.

63. Alternatively, it was submitted the Tribunal should find the Applicant suffers from a disease, cervical spondylosis, and that the duties which she performed in her employment in the Finance Section of the Department of Defence, including the stamping and keyboard duties, performed over a long period of time each day, aggravated her condition. It was submitted that in the weeks prior to May 1990 the Applicant did not suffer from neck pain.

64. The Applicant also relied on the decision of the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 to submit the Applicant's work materially contributed to the disease, in that it changed from being asymptomatic to being symptomatic. Moreover, this aggravation of the disease has persisted from May 1990 to the present. It was submitted that as the onset of neck pain occurred in the performance of the Applicant's duties, the duties were causally connected to the aggravation, being the onset of pain. Even if the underlying disease was prone to become symptomatic without external aggravation, the fact that the aggravation occurred while the Applicant performed her duties made it highly probable that the performance of the duties was causally connected, even if in a small way, to the aggravation. The Applicant has continued to suffer pain in her neck, right shoulder and right arm since the onset of symptoms in about May 1990, and therefore to say that any aggravation caused by her work was temporary is not borne out by the facts. It was submitted that the duties performed by the Applicant in the Finance Section of the Department of Defence materially contributed to an aggravation of cervical spondylosis.

65. It was also submitted in the alternative, that if the Tribunal finds the Applicant has not suffered a physical injury and has not suffered a permanent and ongoing aggravation of her cervical spondylosis, then her underlying disease has been aggravated on a number of occasions by her work duties. It was submitted that the following evidence supports that contention:

* Dr Innes-Brown accepted that the condition can be aggravated temporarily, causing pain, by the type of duties she performed. His evidence was that certain postures for prolonged periods can cause temporary aggravation of spondylosis which would cause muscle tension and pain. It was submitted that the Applicant's work involved prolonged periods of postures that would effect her neck.

* Dr Steel stated cervical spondylotic disease is punctuated by exacerbations which can be work related.

* Dr Dorsch noted the Applicant had pain in the neck radiating down the right arm since May 1990, which was exacerbated by her work situation.

* Dr Giblin implied that the Applicant's work could aggravate her condition when he said "she remains fit for work that doesn't involve excessive repetitive forward flexion of the cervical spine, heavy lifting or work above the level of the shoulder". Dr McGill noted it was possible that her work activities could have been responsible for flares of neck and referred arm pain (T66, p97).

* Dr Chen recommended the Applicant's work station be ergonomically assessed and adjusted to ensure good working posture and avoidance of prolonged and repetitive neck flexion and extension. It was submitted that it was implicit in this statement that the Applicant's duties may well cause at least a temporary aggravation of her neck condition.

* Similarly Dr Liddell, a Commonwealth Medical Officer, suggested a workplace assessment with the aim to vary her work pattern every half hour. It was submitted that implicit in that recommendation was that the duties which the Applicant performed in her employment may well have aggravated her neck condition.

* Ms Fiona Arneil, physiotherapist, noted normal workload or high workload greatly exacerbates the Applicant's symptoms.

66. It was submitted that numerous attempts have been made to modify the Applicant's work station so that her condition would not be aggravated. It was also submitted that the abovementioned opinions of various experts were highly indicative of the fact that the Applicant's condition would or could be aggravated by the performance of her duties. It was submitted that it was most likely, given the nature of the Applicant's underlying disease, that her work duties which involved long periods of clerical processing with neck flexed, would at least contribute to a temporary aggravation of her neck condition, causing pain. Even if the contribution to her condition caused by work was small, as long as it was real it was compensable: Treloar (supra).

67. It was submitted that the performance by the Applicant of her normal duties, including periods of neck flexion while writing and using a keyboard, was sufficient to aggravate her disease, causing incapacity for work on occasions. However, additionally, she has been required to increase her workload from approximately June 1998. It was submitted the evidence of Ms O'Neill should be accepted as corroboration of the fact that the Applicant had an increase in her workload from about June 1998.

68. It was submitted the Applicant's limited time off work since 1990 should be accepted by the Tribunal as indicative of her willingness to apply her best efforts to continue in the performance of her work in spite of her physical problems. This also is corroborated by Ms Neill.

Respondent

69. It was submitted for the Respondent that the Applicant did not suffer from a compensable injury or disease after 1 March 1997, nor did the evidence establish that she was incapacitated for work or needed ongoing physiotherapy.

70. It was submitted that until an outline of evidence from the Applicant's husband was served in these proceedings, the Applicant had consistently denied or failed to reveal any problems with her right upper limb that had preceded her employment with the Department of Defence. In particular, she failed to tell doctors, including her treating doctor, about the pain she suffered when working in the distillery. It was submitted the Applicant intentionally withheld this aspect of her history from the doctors even though she appreciated that it was relevant.

71. It was submitted that the unreliability of the Applicant's evidence also extended to her account of the problems that she related to her employment at the Department of Defence. The Respondent rejects the Applicant's submission that the contradictory evidence she gave about her history of pain in 1989 can simply be discounted as inconsistent because she was a relatively unsophisticated person who was prone to agree with propositions that were put to her when she did not have a clear recollection of the date of events. Indeed, she had been educated to tertiary level and obtained a Diploma in Business Administration in Peru. It was submitted the Applicant's evidence indicated that either she had a poor memory of events in 1990 and particularly in 1989, or she was being less than frank in her answers. In either case it was necessary to look to the entirety of the surrounding material to ascertain the correct state of affairs.

72. On the basis of Dr Liddell's report (T3) the Applicant first noticed pain in her right wrist and forearm in 1989, contrary to her evidence-in-chief. Those symptoms were similar to those she experienced when she worked at the distillery. Sick leave records show that she took days off for muscular pain in July and August 1989 (exhibit 3). The Applicant also admitted that these could relate to muscular pain in her arms, neck or shoulder area. She agreed the notation of Dr Liddell about pain in 1989 and the sick leave records for absences for muscular pain "probably" related to the same events.

73. The Applicant attributed the onset of her symptoms to the nature of her work, particularly stamping, yet she had only been in the finance section where she was undertaking stamping since about September 1989. At best the Applicant had been performing that task for only a very short time. In all the locations where she worked between 1988 and 1990 she was required to do a variety of clerical tasks. It is highly unlikely that there was any material contribution to or aggravation of any degenerative spinal disease caused by these clerical duties, as opposed to possible episodes of fatigue from her work.

74. It was submitted that it was unlikely that the symptoms about which the Applicant complained in May 1990 related to any spinal injury or disease from her work. She was probably not at work for several months early in 1990 as she returned to Peru for two months early in 1990 when her sister died. This further reduced the Applicant's exposure to stamping and sorting tasks which, on her evidence, were completed in about two and a half hours per day. The Respondent notes the Applicant's symptoms came on gradually.

75. It was submitted that the evidence in the clinical notes of Dr Williams was not consistent with her sustaining a discal injury in the cervical spine in May 1990. There was no specific sudden painful event leading to the onset of symptoms, and the following months were not characterised by regular visits to the doctor or absenteeism. The Applicant's complaint to Dr Williams was in the right shoulder and forearm.

76. It was submitted that the CT of the cervical spine on 17 December 1990 did not reveal a site of a particular frank injury and based on the evidence of Dr Innes-Brown, the findings were consistent with longstanding degenerative changes.

77. It was submitted on the evidence of Ms O'Neill that the Applicant was treated extremely sympathetically in the workplace in relation to her alleged restrictions.

78. It was submitted that if the Applicant actually experienced pain at the level of eight out of ten in February 1994 it was highly unlikely that she would have persisted at work without significant time off from work. Moreover, it was submitted that the dramatic variation over a period of a few months suggests real doubt about the level of her symptoms and particularly that the condition had been constantly getting worse.

79. It was submitted that Dr Dorsch, neurosurgeon, reported on 31 January 1991 (exhibit C) that the Applicant complained of pain down her right arm since May 1990. However, the Respondent noted there was no disclosure to Dr Dorsch of the Applicant's complaints in the early 1980's and in 1989. Dr Dorsch noted cervical spondylosis and a mild prolapse of the C5/6 disc, which he considered did not appear to be near enough to the exit foramen to be causing any significant compression of the C6 nerve root. He did not provide an opinion as to the cause of the Applicant's neck pathology, her capacity for work or her use of physiotherapy.

consideration of evidence and findings of fact

80. The Applicant, at the age of 49 years, suffers from cervical spondylosis, which the Tribunal finds to be a degenerative condition that has been in existence at least from the time of an X-ray on 17 December 1990 (T8). There is no history of trauma to the cervical spine, and on the evidence of Dr Innes-Brown the Tribunal finds the Applicant's cervical spondylosis has arisen as a result of a constitutional degenerative process without any permanent contribution from her employment. However, on the evidence of Dr McGill, which the Tribunal prefers, we find that the Applicant's pain derives from fibromyalgia. The report of Dr McGill provides an holistic opinion about the wide range of the Applicant's symptoms, including their anatomical and non-anatomical origins. The Tribunal finds that while the Applicant has cervical spondylosis, the referred pain is not of an anatomical distribution and the cervical spondylosis is not the cause of most of her pain. While it is possible that work has contributed to her pain, on the evidence of Dr McGill the Tribunal is not satisfied on the balance of probabilities that this is so.

81. The Tribunal rejects the Applicant's submission that the Applicant suffered a rupture to her C5/6 disc in 1990 arising from her employment. On the basis of the contemporaneous evidence in Dr Williams' clinical notes, the Tribunal is reasonably satisfied that the Applicant did not suffer a disc rupture during the course of her work, or indeed at all. There was a gradual rather than sudden onset of her symptoms at that time, which was not consistent with a disc rupture. The Tribunal notes Dr Innes-Brown's evidence that the radiology as a whole needs to be considered, and overall the radiology does not support the existence of a disc rupture.

82. The Tribunal is concerned about the Applicant's failure to disclose the history of her previous compensable repetitive strain injury to the doctors examining her in relation to these proceedings, and of her failure to provide information either to her own solicitor or to the Respondent about her previous treating doctors. The Tribunal does not accept that she withheld that history because she was "intimidated or nervous". The Tribunal is also concerned about inconsistencies in the Applicant's evidence. The Tribunal finds that much of her evidence is a reconstruction of the facts, whether consciously or unconsciously, to aid her case. Notwithstanding the fact that the Applicant apparently withheld the evidence about the 1980 episode of repetitive strain injury, the Tribunal finds she had recovered from that condition by the time she commenced employment with the Department of Defence. Her evidence on this point, that her symptoms in 1990 were different from those in 1980, is accepted by the Tribunal.

83. On the basis of her oral evidence, the Tribunal finds that while the Applicant was insistent about the continuous nature of her symptoms since 1990 and the relationship of them to her employment with the Department of Defence, there was little support for that proposition in any corroborative evidence. The Applicant did not seek medical treatment for long periods of time, nor did she take sick leave for that condition. Although Ms O'Neill would have the Tribunal believe the exacerbations of the Applicant's condition in the last few years were consistent with increases in workload, the Tribunal finds on the evidence that there was not a simultaneous relationship. Moreover, when the workload increased and the Applicant became symptomatic Ms O'Neill insisted on her taking breaks from her work at regular intervals.

84. The Tribunal finds there was some exaggeration in the Applicant's evidence generally, and especially in respect of the degree of pain she experienced, the weights she could carry, the constancy of her pain and its relationship with her work.

85. The Applicant has been a conscientious employee, and the Tribunal finds she has persisted with her employment while experiencing some discomfort arising from her cervical spondylosis and fibromyalgia. In considering the medical evidence and that of the Applicant, the Tribunal finds that over the years her work probably did cause her to experience discomfort or pain from her cervical spondylosis and fibromyalgia from time to time. However, the Tribunal prefers the evidence that she had pain at the end of the day and that it was relieved by resting overnight.

86. The Tribunal notes the longstanding attention given by the Applicant's supervisor to her occupational health and safety. The Tribunal finds that at least since Ms O'Neill became her supervisor, her employer has properly discharged its duty of care to her. Notwithstanding this, her cervical spondylosis has worsened over the period of her employment, consistent with the nature of this degenerative condition.

87. The Tribunal finds that the Applicant is an unhappy and frustrated woman who has significant and genuine invalidity needs. While she has a caring work environment, work is probably not self-fulfilling for the Applicant.

88. The Tribunal also finds, on the evidence of Dr Innes-Brown, that the physiotherapy the Applicant had from time to time relieved her symptoms, and that when she ceased physiotherapy she did not continue to be so relieved. By the time the Respondent ceased payment of physiotherapy the Applicant's condition had slowly deteriorated from its previous level and one would expect, therefore, that her symptoms would increase. That is not to say, however, that the exacerbation of her symptoms were work related. Had the Applicant's supervisor not been as careful as she had been in her duty of care it may have been likely that the Applicant had suffered from work-related exacerbations of her condition. However, given the attention placed by the employer on the Applicant to observe proper breaks from work and the proper ergonomic design of her workplace over many years, the Tribunal is reasonably satisfied that at least since 1 March 1997, when the Respondent ceased liability to pay compensation, there has been neither permanent nor temporary work-related aggravation of the Applicant's condition.

89. Therefore, the Tribunal affirms the decision under review.

I certify that the 120 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 15 March 1999

Date of Decision 3 February 2000

Counsel for the Applicant N/A

Solicitor for Applicant Martin Carrick, Geoffrey Edwards & Co

Counsel for the Respondent G Elliott

Solicitor for the Respondent Ms. L. Bishkov, Sparke Helmore