Sollazzo and Comcare [2000] AATA 65 (4 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1997/189

GENERAL ADMINISTRATIVE DIVISION )

Re ANTOINETTA SOLLAZZO

Applicant

And COMCARE

Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member

Date 4 February 2000

Place Canberra

Decision The tribunal affirms the reviewable decision of 12 May 1997. The tribunal varies the reviewable decision of 25 August 1998, and decides that the applicant has an ability to earn at a rate of 12 hours per week in relation to "aggravation of cervical spondylosis" on and from 27 March 1996, but that from 1 September 1998 to date it was reasonable for her to fail to engage in or to continue to engage in suitable work. The respondent is to pay the applicant's reasonable costs to be agreed or taxed.

....................(Sgd.).....................

Pamela Burton Senior Member

CATCHWORDS

COMPENSATION - aggravation injury at work - pre-existing cervical spondylosis - whether neck pain contributed to hypertension - capacity to work - whether reasonable to fail to return to work when acting on doctor's advice.

Legislation

Safety Rehabilitation and Compensation Act 1988 s19

REASONS FOR DECISION

4 February 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member

1. This is an application for review of the decisions of the respondent dated 12 May 1997 and 25 August 1998. The first decision affirmed the determination made on 11 October 1996 that the respondent was not liable to pay the applicant incapacity payments for the periods 16 June 1996 to 31 August 1996 and 1 September 1996 to 31 October 1996 when she was off work suffering from arterial hypertension. The second decision accepted continuing liability in respect of the applicant's neck injury, which arose in the course of her employment on 16 September 1988, (incorrectly stated in the decision as 19 September). It decided that the nature of that injury was an "aggravation of cervical spondylosis" and that the ongoing effects of that injury incapacitate the applicant for all but 20 hours of work a week on and from 27 March 1996. It also affirmed the determination of 13 May 1997 ceasing liability to pay compensation in respect of a further "aggravation of cervical spondylosis" deemed to have occurred on 3 April 1994.

2. The decision of 25 August 1998 is not the subject of a formal request for review. However, it is agreed that a review of that decision is properly before the tribunal, as the applicant's request for review of the earlier decision and later determination assert that she is totally unfit for work because of neck pain, and/or hypertension arising from neck pain, since 27 March 1996. Thus, the tribunal is to consider whether the applicant's elevated blood pressure is compensable and the extent of her incapacity since 27 March 1996 caused by her neck and/or hypertension conditions.

3. Mr G. Lunney appeared on behalf of the applicant, and Mr M. Rhodda appeared on behalf of the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various documents including many medical reports tendered by the parties. The tribunal heard evidence over a period of 4 days. Written submissions were then later filed and lodged with the tribunal.

The Factual Background

4. The applicant was born on 9 July 1944. She commenced work as a diet maid with the Royal Canberra Hospital in 1973. In 1974, she received an electric shock from a refrigerator. The shock jolted her backward and she fell, injuring her neck, shoulders, arms and back. She suffered pain for a while, but her injuries appeared to have resolved. She was promoted to dietary aide Level 5 in 1980. She was made permanent and worked on higher duties until 1988.

5. During 1985 the applicant suffered a work-related injury when a door swung into her left arm as she was passing by a cooler room. She suffered pain and bruising but did not require any time off. In 1987, the applicant was first diagnosed with hypertension. At this time the applicant was concerned about staff members smoking cigarettes in the work place. She felt she was unsupported in her request to work in a smoke free environment.

6. On 16 September 1988 the applicant sustained a fall at work in which she injured her neck, left shoulder and right leg (T4 and see also T99 and T104). Her evidence is that when she was walking through the kitchen she slipped on a greasy floor. Her neck went backwards then forwards as she lost her balance and she landed on her left shoulder and right leg. In giving her evidence she said that as she was falling the back of her neck struck the stainless steel kitchen bench. She experienced severe pain immediately. Her evidence is that prior to September 1988 she had no pain in her neck.

7. In the course of being cross-examined the applicant revealed that she didn't mention that she had hit her head on the bench to some of the examining doctors. We don't think anything turns on this omission. As it has transpired, the fall or the hit on the head caused an aggravation of an asymptomatic cervical spondylosis. Both parties now accept that that is the case. The fall precipitated pain symptoms.

8. The applicant was off work as a result of the injuries she received from the fall until February 1989. At the time liability was accepted in respect of "neck muscle strain, bruised right leg, pain in shoulders" (T113) for the period 16 September 1988 to 31 January 1989. The applicant had periods of time off work during 1989 due to her neck pain.

9. On her return to work the applicant was promoted to the level 6 position of food supervisor and given supervisory administration duties. She was not required to do any manual work and experienced no significant problems. The Canberra and Woden Hospitals were amalgamated in 1990. During the restructure process, the applicant continued in the position as food supervisor but was given more responsibility. In October 1991 her duties involved both manual and administrative work. She was required, for example, to prepare approximately 30 food trolleys, to load and unload the dishwasher, and to push trolleys that weighed over 70 kgs. Her neck gave her trouble. When she was transferred to the hospital at Woden, she was given an acting level 7 position which involved administrative duties only. She was able to perform the duties of that position.

10. While acting in the level 7 position the applicant's previous level 6 position was abolished. She applied for the level 7 position but was unsuccessful. When she was returned to her substantive position the reclassification left her with level 5 duties. The applicant's injury history is complicated by the fact that she lodged a grievance about the selection process, and the reclassification of her previous job to level 5. In the course of the grievance procedure the applicant made no mention of her manual duties causing her neck pain. This, she explained, was not relevant to her claim that she had been discriminated against.

11. In 1992, the applicant made a claim for compensation for a work-related stress injury, claiming that it was caused by the workplace discrimination. These events upset her. She was off work suffering from stress from July 1992 to May 1993. She returned in May 1993 to her level 5 position. The applicant's stress claim was heard by the Administrative Appeals Tribunal and was dismissed on 29 July 1994. This caused her further upset.

12. The applicant's evidence is that in her level 5 position she sometimes performed level 7 duties when the person filling that position was away. Otherwise her level 5 position involved pushing trolleys and physical work which caused neck pain.

13. On 29 November 1994, having experienced an aggravation of neck pain, the applicant lodged another claim for compensation for her neck and back injury (T9). There was no specific incident attributable to this. The respondent accepted liability for "aggravation of cervical spondylosis" with the deemed date of injury being 3 April 1994. The applicant was off work for a while, and then again from 31 July 1995 to 26 February 1996, being certified unfit and receiving compensation for only the periods 31 July 1995 to 22 September 1995 and 11 December 1995 to 26 February 1996.

14. The applicant began a graduated return to work program on 26 February 1996 (T55) working 4 hours per day, 5 days a week. She says that the duties she returned to were not supervisory, and she had difficulty doing them. She experienced pain in the neck, numbness in the arms, headaches and blurred vision. However, she wanted to work and tried to continue. Under cross-examination, the applicant stated firmly that her claim that she had been discriminated against was not a factor in this illness, and that by this time she was not suffering distress as a consequence of the events surrounding her discrimination claim.

15. The applicant described the manual duties that caused her physical difficulty. In carrying out the duties of "menu monitor" she was required to delete names from the menus and collect them from the patients. The menus were stored in the kitchen at a place, above her shoulder height, higher than the applicant was directed to lift. Her other duties were to check with the kitchen to ensure the proper diets for the patients were being maintained, and answering telephone calls. While answering the telephone, the applicant's neck was bent forward. She had no time to rest. All these duties, she said, gave her pain in the neck.

16. On 13 March 1996 the applicant's return to work plan was reviewed and it was suggested that work days be reduced from five to three, to be worked on non-consecutive days. This meant that she was to work 12 hours rather than 20 a week. Some assistance was given to her in respect of her telephone duties. Whether or not she had the capacity to sustain this work plan was not given any real trial. The applicant had since February 1996 been self-monitoring her blood pressure, and at about this time her superiors were made aware that she was recording elevated readings while at work.

17. In March 1996 as a consequence of the applicant's general practitioner, Dr Rosendahl, reporting to her supervisor the applicant's blood pressure readings, her employer told her that, as it was unsafe for her to work, she was to cease work until her doctor certified her fit to return. The applicant claims that the blood pressure problem for which she had to cease work is a consequence of her neck pain. She sought compensation for the time she was off work for this condition. Her doctor certified her unfit to work as a consequence of this condition and her neck pain for various periods between 27 March 1996 and the present.

18. After the applicant stopped work, she claimed her neck felt a bit better, but that the pain never went away. She takes hot baths, uses medication and ointment rubs, has massages and rests. She says that she feels better when at home than she does when she works. However, she said that there was no change in her neck condition after she ceased work. She continued to see Dr Rosendahl regularly for her neck pain and blood pressure problem.

19. The applicant, her husband and their daughter were each questioned about the applicant's capacity to undertake domestic and other tasks. The applicant said that she does a little of all her chores, but with pain. She hangs out washing for up to 10 minutes and then lies down. The only gardening she does is watering the flowers. She finds she is in pain after only driving her vehicle for a short drive. She said that she was not able to drive the half-hour to Woden required to attend work, and that the pain from her neck alone prevents her from working at all.

20. The applicant's daughter, Maria Sollazzo, was an impressive witness. She was not cross-examined. She said as to her mother's neck pain that "she still does get neck pain if she is doing any tasks or walking around after a while". She said that her mother does not do much housework and that her father helps her. She said her mother does a little sweeping, mopping and dusting, and a little but not much cooking. She drives when it is necessary. The applicant's husband did not add much to the evidence before us. He verified that the applicant's activities around the home were limited. He emphasised that his activities, too, were limited. Their daughter works full-time and most of the help she gives her parents is on the weekend.

Hypertension

21. The applicant was first diagnosed with high blood pressure in 1987. In evidence, the applicant stated that this was noted again in 1991 and that by 1996 she was taking medication and was monitoring her blood pressure at work. She claims that the "work related aggravation of hypertension" contributes to her ongoing disability.

22. The applicant maintained that a smoke-filled work place contributed to the onset of hypertension in 1987 and its recurrence in 1991. This was refuted by the respondent's decision of 29 April 1996. She said in evidence that in 1994 she suffered headache, nausea and increased blood pressure from working in an area heavily polluted by cigarette smoke. This claim is inconsistent with the claim she made to the tribunal in previous proceedings. In her written statement dated 20 September 1993 (Exhibit 6, at p.5) she attributes the development of her high blood pressure to the upset she suffered when she perceived that she was discriminated against in the course of the hospital restructure. At para. 7 of the decision in relation to that claim the tribunal said:

It was the applicant's contention that her stress, anxiety state and hypertension were caused by acts of discrimination by the respondent during the amalgamation of the Royal Canberra Hospital and Woden Valley Hospital and the reclassification of jobs within the ACT Health system.

23. Dr Rosendahl, the applicant's treating general practitioner since 23 September 1994, supports the proposition that passive smoking could lead to hypertension. Dr French, cardiologist, in his report of 23 October 1996 (T83 at p.169) also supports the proposition. Professor O'Rourke, specialist in cardiovascular medicine and hypertension, in his report of 9 January 1997 (T91, p.181) states there is no known association between passive smoking and hypertension, and concludes that there is "no association between Mrs Sollazzo's elevated arterial pressure and passive smoking at the Royal Canberra or Woden Valley Hospitals."

24. Even if we were to accept the medical hypothesis that passive smoking could contribute to hypertension, it is unlikely to have contributed to the onset of the applicant's hypertension. The applicant's only evidence was that she worked in an area where staff members were allowed to smoke. She said that the kitchens were smoke free, but that the staff was permitted to smoke in the non-food preparation area. No other evidence was offered as to this.

25. The applicant's counsel, in written submissions of 27 August 1999, specifically abandons the claim that passive smoking in the workplace contributed to the onset of the applicant's hypertension. We accept that stand as appropriate in the circumstances and consistent with our findings.

26. The applicant's primary contention is that the pain resulting from her work-related compensable neck condition led to an aggravation of her underlying hypertension condition in 1991, 1994 and 1996. She contends that the neck pain she suffered in the course of her manual duties at work in 1996 caused her blood pressure levels to elevate to dangerous levels. This, she asserts, is supported by the high blood pressure readings she obtained when monitoring her condition at work.

27. From the readings available, July 1992 to March 1993 (Exhibit 7) it seems the applicant's blood pressure was consistently elevated. In 1995 she attended Dr Rosendahl in relation to her neck pain and her concerns about her elevated blood pressure. The applicant was off work from 31 July 1995 until her return to light duties on 26 February 1996, during which time her systolic blood pressure readings increased to 160 or above, according to Dr Rosendahl's notations (T66). In evidence he said that the last reading he took before she returned to work was 170 over 100 on 29 January 1996. He said that a normal reading he'd expect to see in a person in the applicant's age group with her body weight was 145 over 95. It had been on his suggestion that the applicant purchase the monitor.

28. The applicant purchased an automatic sphygmomanometer on 15 February 1996. At the hearing she produced the date and the time of the blood pressure recordings at work and at home on a continuous paper roll (Exhibit D). These records contained no readings of her blood pressure before she commenced work in the morning. They recorded high levels at work and a reduction to a better baseline level in the evening. She said that she rested appropriately before taking each of the readings and followed the instructions.

29. On reviewing her readings Dr Rosendahl wrote to the applicant's supervisor because he thought the readings were so elevated that they were hazardous. He considered there was a connection between the applicant's experience of pain at the work place and the elevated readings. He concluded that the elevated readings resulted from an increase in physical activity, stress, working in an environment that was not congenial, and her level of pain. The applicant ceased work as a result of the concern about her elevated blood pressure.

30. In June 1996, after the applicant had been off work for about 3 months, Dr Rosendahl recorded a systolic reading of 190. The problem was ongoing. In 1998 Dr Rosendahl referred the applicant to Dr Wilson, consultant endocrinologist, who diagnosed her as having a variety of Conn's syndrome. He put her on medication, which brought down the blood pressure levels for a short time. The applicant ceased the medication a few months later, on 27 February 1998, and for a while the reduced blood pressure levels remained.

31. The applicant correlates the high blood pressure readings at work with the increase in her pain levels as the day progressed. She did not record her pain levels or the particular type of work in which she was involved before each reading and, contrary to her assertion, the records on most days indicate a reduction in the blood pressure level as the day progressed. However, the readings taken at home at night after a rest and a hot bath were lower than those taken at work.

32. Dr Rosendahl viewed the readings as significant. He took them as indicating that her blood pressure went up dramatically and to unsafe levels in the workplace between 26 February and 25 March 1996. He reported (T21):

The variation of blood pressure appears to be quite consistent with whether she is at work or whether she is on days off, and it is my suspicion that the increase in blood pressure relates largely to the increased pain she describes when she is at work, which I relate to the requirement that she turn her head frequently to observe and monitor the food line she manages.

He said in oral evidence that while she was at work she had blood pressure problems, and since being away from work her hypertension had improved. He referred to the fact that at one point when she was off work she needed no medication at all, whereas prior to that she was on 4 separate medications. This was a reference to the occasion when the applicant ceased the medication prescribed by Dr Wilson, after her blood pressure levels were brought under control.

33. Dr Rosendahl had no explanation for the applicant's elevated readings in 1995 and the consistently high readings through to January 1996 in which period the applicant was not at work. It is noted that his last reading on 29 January 1996 before she returned to work was higher than the first reading the applicant took mid-morning on the first day she returned to work on 26 February 1996. His only explanation for this is what he calls "the white coat effect", that is, the procedure of having the blood pressure measured by the doctor leads to apprehension which leads to elevation of the blood pressure. The first reading the applicant took after she purchased the machine on 15 February 1996 was also higher than the reading taken by Dr Rosendahl on 29 January 1996. Dr Rosendahl said he had considered that his manual readings were consistent with her automatic machine readings. He did not check the accuracy of her machine against his manual readings.

34. That pain can cause elevation of blood pressure is an accepted medical hypothesis. Dr Darryl McGill, consultant cardiologist, in his report dated 18 March 1999 (Exhibit B) states that it is possible in the applicant's case that the pain from her neck could aggravate her high blood pressure. He accepts the proposition that a person who has a predisposition to hypertension will get high blood pressure levels as a result of pain. Professor O'Rourke, cardiac specialist and specialist in hypertension, accepts that acute pain or an acute painful experience could elevate blood pressure at the time it is felt. He stated in oral evidence that chronic pain is not a factor over a period of time. He explained that a sudden emotional or painful experience or exertion, could elevate blood pressure, but that chronic osteoarthritis or cancer does not cause blood pressure elevation by reason of pain. Even if pain levels remain high, he said that the elevated blood pressure comes down after perhaps some minutes of the onset of acute pain.

35. Professor O'Rourke examined the applicant on 21 January 1997 and diagnosed hypertension. He thought her blood pressure levels were high in view of the fact she was on medication, and required better control whether she was at work or not (and see his medical reports of 9 January 1997 at T91 and 24 January 1997 at T93).

36. Dr Rosendahl's tests, notes and graphs were examined by Professor O'Rourke. He noted that the readings did not make reference to pain levels felt at the time. He saw the readings the applicant took as showing the sort of variability in someone about their normal activities, but that some of the recordings were "utterly inexplicable" in the 24 hour period of the readings. He rejected those as spurious stating that highly unusual readings can happen with automated instruments. Further, he said that the applicant resting for 5 minutes before taking readings did not allow enough time to settle to the basal level, and some 20 minutes were needed, which was not possible to arrange in a work situation. In his view it was a somewhat meaningless record.

37. Professor O'Rourke also noted that the applicant had not suffered hypertensive end organ damage, as one would expect from constantly elevated readings while the person was at rest. He agreed that the applicant had hypertension, but thought that the degree of hypertension may be overestimated (T91). He viewed the applicant's blood pressure as being within the normal range up until 1987, and agreed there was evidence that it has been elevated in most recordings taken after this time. He explained that blood pressure increases with age, and that such increase is more marked in persons with familial predisposition to hypertension. He added that a rise with age is also increased in persons who become obese. He did not regard the elevated blood pressure readings taken at work as significant and opined that there was no need to restrict a person's employment activities because of such elevations of pressure during activity (T93, p.187).

38. In discounting the significance of the applicant's blood pressure readings taken at work, Professor O'Rourke relied on his definition of hypertension as "persistent elevation of arterial pressure under basal circumstances when pressure is measured with an appropriate sized cuff for the person's size and weight" (T91). Dr Rosendahl asserted that this definition was simplistic. Dr Darryl McGill thought that it was somewhat rigid, in the sense that blood pressure fluctuates significantly in a period of 24 hours. However, he deferred to Professor O'Rourke's superior expertise in the area. Dr McGill said in his report of 18 March 1999 (Exhibit B) in relation to the applicant's neck pain at work, that:

I do not feel this is a major aspect of her hypertension. I do not feel that Mrs Sollazzo's hypertension should prevent her from working particularly if it is adequately controlled medically as it should be in normal circumstances.

39. Dr McGill, in his report of 30 December 1998 (Exhibit B) said that one could not assume from the blood pressure readings taken at work that the applicant had good control of her blood pressure when not at work. He said that absolute compliance with her medication and absolute accuracy of the measurements taken at work had to be assumed before he could say that she had good control of her blood pressure when not at work, and poor control while at work.

40. On an analysis of the blood pressure readings available and the evidence as a whole, we are not satisfied that the applicant's blood pressure was elevated by her work, or by the pain she experienced at work. To the extent that her blood pressure might have peaks at work, we are not satisfied that those peaks were attributable to increased pain levels. Professor O'Rourke's evidence is persuasive. Dr Rosendahl's assumptions about the readings taken are flawed, and his conclusions are not justified. We accept Professor O'Rouke's and Dr McGill's opinion that it was not medically necessary for the applicant to go off work by reason of her elevated blood pressure readings taken at work. Professor O'Rourke is the specialist who can speak most authoritatively on hypertension and its causes. We prefer his evidence to that of Dr Rosendahl. Professor O'Rourke has superior qualifications, experience and expertise in this area of medicine. We accept his evidence in preference to the evidence of the other specialists where they conflict. It seems that there is medical consensus that a person with hypertension is advised to avoid a sedentary life style and that, in the applicant's case, attending to suitable duties at work would be good for her condition.

Medical evidence in relation to the neck injury

41. According to Dr Rosendahl, in his report of 29 November 1996 (T142, p165), the mechanism of the significant injury he believes she suffered in the fall at work in 1988:

would impose on an already weakened neck a further major degree of instant disruption - and that it is not reasonable to suppose that such a major additional injury could ever be recovered from.

He sees her clinical course of continuing complaint of major pain and disability following this injury as consistent with this picture.

42. Dr Champion, specialist in pain management, saw the applicant at the request of her solicitors on 1 October 1997 and 17 May 1999. The tribunal had the benefit of his reports dated 9 January 1998 and 17 May 1999 (Exhibit C). It is his view that an injury of the type suffered by the applicant at work in 1988 was frequently followed by a pain disorder without radiological changes. He accepts that the reason for the production of pain is not sufficiently understood. He theorises that the injury induces a change in the sensory function in the region of the spine that is mechanically stressed. The pain nerve endings undergo a change in function such that they no longer require stimuli to provoke a response. In that way a minor mechanical stimulus can provoke a pain response and pain can occur without a stimulus. The altered pain phenomena can be widespread, being the accumulated effect of multiple minor injuries. Movements can lead to pain greater than would otherwise be expected, which is described by Dr Champion as the "wind-up" effect. Changes in sensory function produce tenderness in soft tissue remote from the spine and this response is called secondary allodynia. Dr Champion explained that psycho-social factors are of fundamental importance in pain behaviour. These factors can be present in the cultural and medico-legal context. He indicated that the applicant had a low pain threshold leading to a fear of pain and avoidance of pain. This caused her to be guarded in her movements in anticipation of pain, leading in itself to other pain and stiffness. In the course of giving telephone evidence he conceded that the applicant working in a hostile environment, or working in circumstances where she felt aggrieved about her level of work and lack of opportunity to obtain promotion, might be a factor in her pain syndrome. He also agreed that the more guarded the applicant is about her neck, the more stiffness she is likely to suffer. Exercise and appropriate movements would assist her. Going to work, and avoiding lifting and other activities which cause her pain, would be good for her neck problem.

43. Dr Brook, specialist in rheumatology, is the applicant's treating rheumatologist, she having been referred to him by Dr Rosendahl. As well as reports he provided as contained in the T-documents, his report of 19 November 1998 was tendered (Exhibit A). Dr Brook accepted that the applicant had a modest injury to her neck, and he diagnosed regional pain syndrome, arising out of cervical spondylosis. This, he explained, develops from a disturbance of the pain perception mechanism. In his view, the injury of 1988 did not produce the regional pain syndrome, but the cervical spondylosis contributed to it. He assumes that the spondylosis was pre-existing in 1988, as the injury was not sufficient, in his view, to have caused the regional pain syndrome. He accepted that regional pain syndrome could be precipitated by an injury, such as that which the applicant suffered at work in the fall in 1988, given her already bad neck. However, he thought that in her case the long gap between that injury and the onset of regional pain syndrome was against this.

44. Dr Neil McGill, consultant rheumatologist, saw the applicant on 8 July 1999. He provided a report of the same date (Exhibit 1). In it he concludes that her problems are attributable to her cervical spondylosis. He did not believe that her ongoing pain was a result of secondary allodynia. He found a markedly different range of movement than that observed by Dr Champion. Dr McGill found inconsistencies in the applicant's presentation. He thought that she failed to co-operate and maintained much more restricted neck movements than he could account for.

45. Dr Hopkins, orthopaedic specialist, saw the applicant on 20 January 1999. He provided a report dated 8 February 1999 and a supplementary report of 2 June 1999 (Exhibit 3). He concluded that the applicant was suffering from cervical spondylosis, and that the incident of 1988 contributed in some way to her ongoing symptoms (report of 2 June 1999, Exhibit 3).

46. The applicant is, as suggested by Dr Whittaker in his report of 18 July 1996 (T77), a vague historian. It seems that her perception of pain is so entrenched that when she describes her pain and disability, it sounds like an exaggeration. The applicant was firm in her recall of some events and matters relating to her complaints, some of which were proved by documents to be inaccurate. She had little recall of the times and periods she was off work as a result of her neck or hypertension problems. She was accepting of the documentary evidence put to her as likely to be more accurate than her recall. We have no reason to doubt her integrity and that she attempted to give evidence to the best of her ability. We are satisfied on the evidence that the applicant is still experiencing pain and disability from her neck condition.

47. On the whole of the evidence we find that the applicant's ongoing and current neck pain is a consequence of a work-related aggravation to her pre-existing cervical spondylosis. The work-related aggravation first occurred in 1988, and she has had work-related exacerbations from time to time since that date. Whether the extent of her pain can be accounted for by the aggravation alone or the allodynia effect is difficult to determine. Dr Champion's explanation of the mechanism of ongoing pain and the allodynia effect is persuasive. Whether or not this is correct, the applicant's ongoing neck pain and symptoms are, nevertheless, work-related.

Capacity to work

48. The next issue for our consideration is the extent to which the applicant's neck pain impacts on her capacity to work. The applicant contends that she has been and is totally incapacitated for employment. Her evidence is that the longer she is at work, the more pain she is in. She points to her previous attempts to return to work having been unsuccessful.

49. Dr Rosendahl recommended some modifications to the applicant's work duties in 1996. She had returned to work on the basis of 20 hours a week. That had been reduced to 12 hours following her complaints of pain, and Dr Rosendahl's suggestion that some modifications be made to the way in which she performed her duties was being implemented (see letter from Lisa Castle & Associates of 13 March 1996 and letter from Dr Rosendahl of 3 April 1996, Exhibit 10). Dr Rosendahl thought that the applicant had difficulty performing 20 hours a week at work because of neck pain. He hoped she could manage 12 hours. However, her elevated blood pressure intervened and she was put off work before the reduced work hours were given a sufficient trial. The applicant had no real opportunity of trying the changed methods of work. Her evidence was that in the few days before she went off work she received assistance with the telephone calls, and there were some other changes, but others were not put into effect in that short space of time. It would appear therefore, that the applicant could probably have managed to work at least 12 hours a week on modified duties with her neck condition, had she not gone off work because of her elevated blood pressure.

50. Dr Rosendahl has been treating the applicant since November 1994. While he sees her incapable of duties that require lifting, constant head rotation, pushing heavy trolleys and reaching, he suggests she is capable of the supervisory duties she was doing before she left work. He believes there is work that she can do, subject to suitable duties being available.

51. Dr Champion, in his report dated 17 May 1999 (Exhibit C) stated that:

I note that Comcare had decided that she was able to earn at a rate of 20 hours/week on and from 26.3.96, but I do not agree that that is a realistic assessment. I noted the type of duties Comcare would expect Mrs Sollazzo to perform, but do not believe that she would have been able to sustain such work.

He said:

It would be very difficult for [the applicant] to return effectively to the workforce with this type of disorder. Such a chronic pain syndrome in other people in a different kind of work context, may well enable some very light work probably on a part time basis, but in her case she has limited transferable skills and clearly in the foreseeable future, would not be able to return to her original type of work.

52. Dr Champion in oral evidence suggested that the applicant had some capacity to work part time on light duties in a non-hostile environment. He thought that a return to work program should be assessed by an occupational therapist or a rehabilitation specialist. He suggested that she commence, say part time, for 2 to 3 hours once or twice a week and that the type of activities she did be supervised and gradually upgraded. He stated that "work itself is therapeutic".

53. Dr Neil McGill, in his report dated 8 July 1999 (Exhibit 1), stated his opinion that the applicant is fit to perform her previous duties and that she was fit on and from 27 March 1996. He stated that she was fit to work:

At least 20 hours per week performing administrative and light duties in the dietary area, excluding activities requiring frequent neck rotation or awkward neck posturing. I think she has been and remains fit for the type of duties she was performing in the years prior to 1996.

Dr Hopkins, orthopaedic surgeon, also thought the applicant was capable of carrying out the sort of duties given to her in March 1996, according to the assessment he made of her in January 1999.

54. The applicant seeks compensation for her total incapacity on the alternative ground that the employer told her she was not fit for work while she was suffering hypertension, and that it directed her not to work. As to this, we note that the employer put the applicant off work on the applicant's treating practitioner's medical advice. The respondent did not accept liability for this condition, and we have found that it was a condition that probably did not warrant her ceasing work. The respondent accordingly assumed liability for compensation for the applicant's loss of earnings from her incapacity arising by reason only of her neck condition; that is for all but the 20 hours it deemed her capable of earning from 27 March 1996 onwards.

55. We have found that the hypertension was not contributed to by the applicant's employment. It was thought necessary at the time by the applicant's doctor and the employer to cease work. It was appropriate for the employer to have regard to the applicant's information and her doctor's opinion about her problem and to be sent home. The applicant was in the medical hands of her treating doctor. The fact the employer directed her to go off work does not make the respondent liable for compensation. Sick leave, if available, is the applicant's appropriate entitlement. We find therefore, that the respondent is not liable to compensate the applicant for the reduction in her capacity to work caused by her hypertension.

56. Dr Rosendahl indicated on 30 April 1998 that the applicant's hypertension was under control (T158). However, on 3 August 1998 he indicated that her blood pressure was elevated again and that she was still unfit for work (T163). It seems that it was not until 1 September 1998 that he no longer saw her hypertension as preventing her from returning to work. At this time it was his concern about her neck pain and the duties that she might be expected to perform at work that caused him to certify the applicant unfit for work (T167).

57. On the evidence, it seems that the applicant had a demonstrated ability to work at least 12 hours a week on and from 27 March 1996 when she went off work because of hypertension. The work she was doing with the modifications being introduced was suitable. The preponderance of medical evidence is that the applicant still has a capacity to work with her present neck pain, at least 12 hours a week, and possibly up to 20 hours a week. We note that the applicant maintains that she is unable to drive the distance to work. However, she drove herself to and from work when she returned to work on light duties on 26 February 1996, and we do not consider that her mobility is so restricted that she would not be able to get herself to work by private or public transport. An exercise program might be a necessary part of her rehabilitation program to make travelling easier for her.

58. The applicant may well have capacity to work up to and in excess of 20 hours if her return to work program is appropriate and successful, as suggested by Dr Neil McGill. However, in view of the long period the applicant has been off work and the sedentary life she has been living, it is realistic and reasonable that she return to work initially for 12 hours a week. We find that the applicant has a present capacity to work 12 hours a week, noting the likelihood that this could be increased as and when rehabilitation providers and treating practitioners see fit. We agree with Dr Rosendahl's comment, in his report dated 22 October 1998 (T171), that "the hours Mrs Sollazzo can work - at least in part - are contingent on the work she is asked to perform".

59. As the tribunal has found that the applicant was partially incapacitated for work by reason of her work-related neck problem, and that, but for her hypertension, she had the capacity to work only 12 hours a week at the time she last worked, we find that the respondent is liable to pay the applicant incapacity payments for an additional 8 hours a week in the period to 1 September 1998 in which she was off work by reason of her hypertension in which the respondent deemed her capable of working 20 hours.

60. In respect of the period since 1 September 1998, the applicant argues that once she was fit to return to work in relation to her hypertension, no suitable duties were offered her in respect of her compensable neck condition. We turn now to consider this matter.

Was suitable work available?

61. The relevant parts of the Act, relating to Comcare's liability to make weekly payments of compensation to an employee who is incapacitated for work, read as follows:-

19(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:

NWE - AE

where:

NWE is the amount of the employee's normal weekly earnings; and

AE is the amount per week (if any) that the employee is able to earn in suitable employment.

19(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:

(a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment.

(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;

(c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;

(d) ....

19(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a) where the employee is in employment-the amount per week that the employee is earning in that employment;

(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment- the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f) where paragraph (b), (c), (d) or (e) applies to the employee- whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and

(g) any other matter that Comcare considers relevant.

"Suitable employment" is defined in subsection 4(1) of the Act as follows:-

´suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under the Act, means:

(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

the employee's age, experience, training, language and other skills;

the employee's suitability for rehabilitation or vocational training;

where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and

any other relevant matter; and

in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv).

62. We have found that the duties the applicant was performing at the time she went off work in March 1996 were suitable duties, modified in accordance with advice her employer received from her treating practitioner. The issue arises as to whether suitable work was offered or available to the applicant after her hypertension problem was managed sufficiently to allow her doctor to regard her fit to return to work in relation to that condition.

63. On the evidence it is clear to the tribunal that the employer was willing to provide the applicant with a suitable return to work program. For one reason or another the applicant did not return because of her medical practitioner's opinion that it was not appropriate for her to do so. Dr Rosendahl says that no suitable program was put in place. The respondent argues that it relied on Dr Rosendahl to provide details of the restrictions on her duties that he advised. Only then could a suitable program be devised. Dr Rosendahl did not answer the respondent's request because he saw its approach as inappropriate. In giving evidence he said that, had he provided a list of her various restrictions, no work would have been available.

64. We find Dr Rosendahl's explanation lacking in the light of his evidence that he saw the listed duties of a supervisor as being suited to the applicant's condition. Had he provided a list of the applicant's restrictions, the employer would have been in a position to either offer suitable employment, or advise that none was available. The applicant's unavailability for work thwarted the employer's opportunity of considering whether or not any suitable employment was available. The employer indicated that it was ready and willing to have the applicant back, and the evidence is that her previous duties were available on the basis of her doing 12 hours a week of suitably modified duties.

65. In those circumstances, the applicant failed to accept suitable employment, or failed to engage in or to continue to engage in suitable employment and must be deemed capable of earning at the rate of 12 hours a week, pursuant to subsection 19(4)(b) or (c) of the Act. The question arises, however, of whether or not her refusal to accept suitable employment was reasonable pursuant to subsection 19(4)(f) of the Act.

Was the applicant's failure to accept suitable employment reasonable?

66. In refusing to return to her previous employment or make herself available for suitable employment once her hypertension was under control, the applicant was acting on medical advice throughout the relevant period. However, this case is somewhat unusual in that her treating practitioner was in effect, acting as her advocate. The applicant asserted that she was totally incapacitated for work. Dr Rosendahl did not certify her as totally incapacitated by reasons of her neck condition, but rather supported her claim by entering into argument with the respondent and the employer as to whose obligation it was to devise a satisfactory return to work program.

67. Nevertheless, Dr Rosendahl was the applicant's treating medical practitioner, upon whose advice she relied. In our opinion, it is reasonable for a patient to be guided by his or her medical practitioner as to an injury or illness condition and fitness to work. The applicant had genuine reasons to believe that she was not fit to return to work because of her neck pain, given the advice she received from Dr Rosendahl.

Conclusions

68. The applicant has a work-related aggravation of cervical spondylosis. We find that up to 27 March 1996 the applicant was capable of performing and was performing suitable duties of 12 hours a week. We find that she ceased work on 27 March 1996 for the non work-related reason of suffering hypertension, and that, in relation to her compensable condition, she remained capable of working 12 hours a week on modified duties. We find, however that, from 1 September 1998 - when the applicant was regarded by her doctor as being fit to work in respect of her hypertension, that doctor nevertheless certified her as being unfit to return to work because of her neck pain and his concern about the duties she might be expected to do. We consider that it was reasonable for the applicant to act on that opinion.

69. Thus, from 27 March 1996 to 1 September 1998, the applicant was unable to perform her duties for 12 hours a week because of her non-work related hypertensive condition. In this period compensation continues to be payable to her on the basis of her ability to earn at a rate of 12 hours per week in relation to her neck condition.

70. From 1 September 1998 we find that the applicant's employer was willing to provide suitable duties, and that the applicant was fit to work 12 hours a week at the modified duties that were previously planned for her, or at some other suitable duties. However, we find that it was reasonable for the applicant to decline to return to work or to engage in suitable employment, on the medical advice of her treating practitioner; though, in our opinion his advice was wanting. The respondent is therefore liable to pay incapacity payments to the applicant in respect of her compensable neck condition on the basis of her NWE without regard to her ability to earn, from 1 September 1998 until suitable work is again found for her.

Decision

71. The tribunal affirms the reviewable decision of 12 May 1997. The tribunal varies the reviewable decision of 25 August 1998, and decides that the applicant has an ability to earn at a rate of 12 hours per week in relation to "aggravation of cervical spondylosis" on and from 27 March 1996, but that from 1 September 1998 to date it was reasonable for her to fail to engage in or to continue to engage in suitable work. The respondent is to pay the applicant's reasonable costs to be agreed or taxed.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member, Dr Michael Miller, AO, Member and Air Marshal IB Gration, AO, AFC, Member

Signed: Eva Dimopoulos .....................................................................................

Associate

Dates of Hearing 9-13 August 1999

Date of Decision 4 February 2000

Counsel for the Applicant Mr Michael Rhodda

Solicitor for Applicant Sparke Helmore

Counsel for the Respondent Mr Graeme Lunney

Solicitor for the Respondent Colquhoun Murphy