Marshall and Comcare [2002] AATA 569 (14 June 2002)

Last Updated: 15 July 2002

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/499

GENERAL ADMINISTRATIVE DIVISION )

Re RODNEY DEAN MARSHALL

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date 14 June 2002

Place Adelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

COMPENSATION - accepted claim for "right shoulder strain" - whether applicant has any continuing ongoing entitlement to compensation - whether liability exists for cervical spine condition - whether applicant is incapacitated for work as a result of the work-related incidents

Safety Rehabilitation and Compensation Act 1988

ORAL REASONS FOR DECISION

14 June 2002 Senior Member WJF Purcell

1. This is an application for review of a decision of the respondent (Comcare) of 23 October 2000, which affirmed a determination of 26 June 2000, that liability in respect of the applicant's condition of "right shoulder strain", sustained on 15 September 1993, had ceased, and that liability did not exist for any condition of the cervical spine claimed since the cessation of his employment on 14 June 1995.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant, who was represented by Mr Britton of Counsel, gave oral evidence, and called Dr M DellaMalva, Consultant Physician, and his wife, Mrs M Marshall, as witnesses. Mr McRae appeared as Counsel for Comcare, which called Dr G Champion, Consultant Physician/Rheumatologist, Dr M Awerbuch, Consultant Physician in Musculoskeletal Disorders/Rheumatology, Dr P Teh, General Practitioner, and Mr C Goulding, Psychologist, as witnesses.

3. The applicant, who is 44 years of age, grew up near Tumby Bay. He left school in 1974 to commence a 4-year air-conditioning and refrigeration apprenticeship with BHP at Whyalla. He worked for 2 more years with BHP in Whyalla, until about October/November 1980. He then performed some casual concreting work, and subsequently 2 months were spent with ETSA at Leigh Creek on air-conditioning and refrigeration, before he commenced work with the Australian National Railways Commission (ANR) in Port Augusta on 19 May 1981, initially as a fitter, but after 7-8 months, transferred to the refrigeration area as a mechanic. He was transferred to Adelaide in 1987. He married in 1990.

4. The applicant's work with ANR involved the installation, maintenance and repair of air conditioning plant and equipment, cold rooms, freezer rooms, room air conditioners, domestic split air conditioners, locomotive engine air conditioners, office air conditioners and commercial air conditioners. There was also some work on passenger carriages, locomotives and other rolling stock. His working hours were from 7.30 am until 3.50 pm each day. Air conditioning plant had to be carefully maintained in the summer months. They could not wait for people to call when it had failed, and he and his trade assistant, as members of a 7-man team, would check all air conditioning equipment to make sure it did not fail. Travelling was involved to different ANR locations in Adelaide, and also in the country. The work necessitated the lifting of equipment to be installed and removed for repair and maintenance. Most air conditioning plant and equipment was installed above head height and was, on the applicant's evidence, often in difficult to reach positions.

5. The applicant said in evidence that on 15 September 1993, he was working at the rail passenger terminal at Keswick. He was assisting two others to lift an 80 kg refrigeration compressor, which was being moved from the top of a genie lift onto a ladder well. He said that he was holding the ladder well railing with his left hand and lifting with his right hand, using a rope, which was attached to the compressor. He was pulling the rope with his right hand to lift it approximately one third of a metre. His arm was stretched and he did not recall having strained himself. He continued to work for the rest of the day, and the following day he said his neck was stiff, and he had pain at the right rear side of his neck, radiating down to his shoulder blade. He had difficulty turning his head, and had to hunch his shoulders. He went to work the day following the incident, and said that as he continued to work, it seemed to free up his neck. He completed an accident report, but did not take time off work, nor did he seek medical treatment, or lodge a formal claim for compensation.

6. The applicant gave evidence that on 15 November 1993, whilst he was at the refrigeration workshops in Islington, he experienced stiffness and pain in the right side of his neck, after lifting with his right hand a 15-20 kg vacuum pump, from a motor vehicle onto a platform. He said that he remembers something jarring in his neck, on the right hand side, as he lifted the pump, and felt that he had done some damage to himself. He continued working and does not remember being in any pain subsequently. The following day he had a stiff neck, and had to hunch his shoulders as before, but he went to work. He said that he had sharp pain at the right side of the back of the neck down to the right shoulder blade, and that he could not turn his head, but he went to work and did not report the incident, nor seek medical advice. The pain went away over the next 2 days, as it had previously.

7. The applicant gave evidence that on 15 December 1993, he and a colleague were at the south paint shop at Islington, and lifting a 60 kg 1½ horse power air conditioner above head height to replace it in a "carcass", or a hole in the wall. He was lifting the heavier side of the machine, and had lifted it almost to shoulder height, when he is not sure if he gave way, or whether his colleague lifted the machine too quickly. The applicant said that he took all the weight of the machine in both hands, and brought it down to waist level, as he could not lift it. He and his work mate tried a second time, and lifted it into position. He said that he felt a sharp pain between his neck and shoulder blade at the right hand rear of his neck. The job was the last for the day, and he reported to the casualty sister the next morning. He said that he was in pain and had to hunch his shoulders again. This injury was reported on 20 December 1993. He lodged a claim for compensation on 17 February 1994 and Comcare accepted liability for "right shoulder strain", pursuant to the Safety Rehabilitation and Compensation Act 1988 (the Act), and paid his medical expenses.

8. The applicant said in his statement [Exhibit A3] that since the incident of 15 December 1993, he has always been in various degrees of pain in the right side of his neck and right shoulder and into the chest. He said that he has also developed headaches, which come and go with different degrees of severity, and that he had not experienced headaches before this incident on 15 December 1993. In the course of his oral evidence he stated that the neck pain has remained the same, but the worst of the pain in the right shoulder had resolved by October 1997, and has not troubled him since October 1997. He agreed, in cross-examination, that he had suffered headaches since 1975, and that he has suffered no severe headaches since July 1998, but has had dull headaches.

9. The applicant said in evidence that he continued working over the Christmas period after the incident of 15 December 1993, but avoided any strain to his shoulder. He consulted Dr Teh, his General Practitioner, on 31 December 1993. Dr Teh prescribed Naprosyn, and the applicant said the pain reduced very quickly, but he experienced stomach problems and ceased taking Naprosyn. The pain recurred, so he took Naprosyn again, and the pain resolved.

10. The applicant was on long service leave from 1 January 1994 until August 1994, and on 24 May 1994, whilst at home, he sustained a recurrence of pain in the right shoulder blade and neck, whilst using a hacksaw and multigrips to cut a light switch backing plate. He said he had not been lifting anything and it was the same pain as before, in the same place. He reported to the ANR sister and lodged a claim for compensation, on 1 June 1994, for "recurrence of work-related injury 15.9.93, 15.12.93 strained RH shoulder, neck and upper arm" [T9/20]. A perusal of Dr Teh's notes indicates that the applicant complained of right shoulder pain, but did not complain of neck pain, and this was confirmed by Dr Teh in his oral evidence. He saw the applicant again, in June 1994, in relation to the incident of May 1994, and decided to refer him to Dr Cullum, Occupational Physician. Dr Cullum examined him on 27 June 1994, and provided a Workers Compensation Medical Certificate, and certified him as unfit for work from 27 June 1994 to 27 July 1994.

11. Dr Cullum reported on 24 August 1994 [T16/35] that he saw the applicant for the first time on 27 June 1994, and that in his view, the applicant suffered from myofacial discomfort in the right posterior shoulder, plus a complication of possible entrapment of the suprascapular nerve in the suprascapular notch. He considered that the applicant had also developed some chronic pain features where physical, psychological, environmental and industrial factors were evident, and considered that review by an experienced industrial psychologist would also be of benefit. He did not consider that the applicant had an underlying degenerative condition. He stated that as the applicant's soft tissue injury was at that stage resistant to treatment, he had referred the applicant to an experienced shoulder Orthopaedic Surgeon, Mr Saies. Dr Cullum noted also that he had explained to the applicant that chiropractic treatment was unlikely to be of any real benefit in this type of condition. Dr Cullum reported subsequently on 27 October 1994 [T19/46], that the nerve conduction study results were equivocal; that conservative management was appropriate; and on 3 November 1994 [T20/47], that he had received a report from Mr Saies, indicating that the applicant's shoulder condition had shown improvement following original assessment, he had a full range of movement without impingement signs, and that there was no wasting of the supraspinatus or infraspinatus muscles. There was also normal power.

12. The applicant gave evidence that when he returned to work after his long service leave in August 1994, he was still in pain and taking 8 Panadol a day as prescribed by Dr Cullum.

13. On 29 November 1994, at the request of Dr LePoidevin, the Railway Medical Officer, the applicant was examined by Dr Awerbuch, who reported on the same date, in part, as follows:

"...

At the time of my seeing him he complained of a "dull sensation" under the right shoulder blade which he said was constantly present. He said that after the gym sessions, the pain seemed to get worse and to "travel up slightly to the base of the neck". He denied being troubled by pain in his neck or in his arms. He said that he had returned to work three months previously on light duties with a lifting restriction of no more than 5kgs. He said that Dr Cullum had actually cleared him to return to his normal duties on the 22^nd November but he said that he had not yet commenced these duties and was shortly to be reviewed by you.

In response to the direct enquiry he said that over the previous 6 years he had had intermittent back and chest pain for which he consulted the chiropractor. There was otherwise no relevant history.

The above clinical history was dictated in front of Mr Marshall to give him the opportunity of having me add any omissions or correct any errors which he may have felt were present. He indicated his satisfaction with the above dictation but told me that he had been under a great deal of stress over the previous 12 months. He said that 4 family members had died, his asthma and sinus problems from which he has suffered for several years had deteriorated and he had had work-related injuries. He indicated his satisfaction with the above.

On examination I found him to be a pleasant, somewhat anxious man in whom the general medical examination was normal. He exhibited a full range of painless movement in the cervical spine and in all of the upper limb joints including both shoulders. No pain was localised to any part of the arms on resisted shoulder movements. There was no evidence of muscle wasting or weakness in the upper limbs, there was no sensory deficit and the peripheral tendon reflexes were symmetrically brisk.

At the time of my seeing Mr Marshall, there were no objective clinical signs of any discernible abnormality and in particular no suggestion of a suprascapula nerve lesion. ..." [T24/60]

14. Mr Saies reported on 8 March 1995, in part, as follows:

"[the applicant had] shoulder and neck pain of uncertain aetiology.

...

It would seem that [his] original symptoms came on in September of 1993 due to a work injury and it is my opinion that his subsequent shoulder symptoms are a direct consequence of this original event.

...

It is likely that these will be temporary. I am unable to predict when his condition will settle sufficiently. The patient should be allowed to work within his own pain and endurance restrictions as defined by himself. No further treatment has been recommended.

Prognosis is for reasonable expectation of largely pain free recovery from this injury which should allow most work duties to be performed." [T26/68]

15. In February 1995 the manager of the ANR Depot advised the applicant and other workmates that there were three positions in that area that had to be abolished, and asked them all to decide who should leave. Three senior people decided to leave. Management asked them for three further volunteers for redundancy. The applicant said that there was no real option, as the servicing of 300 air conditioners had been lost, Mile End railway yards had closed, he no longer had to work at Islington, and there was no longer any country work. On 4 May 1995, ANR gave notice to the applicant that he was an excess employee, and was to be retrenched as at 14 June 1995. The applicant said in evidence that at that time he was still taking Panadol for pain, but was doing all the tasks of the job except heavy lifting.

16. The applicant's first child, Victor, who was born in 1991, was 4 years of age at the time and the applicant and his wife decided she would continue in her full-time employment as head social worker at Lyell McEwin Hospital, and the applicant would become a "house husband". He has continued to fulfil this role, and does not maintain that he has actively sought work, except that he said in evidence that he considered joining a friend in a milk round, but after one day of assisting his friend to unload milk cartons, he was so uncomfortable with neck pain the next day, that he abandoned that proposition.

17. The applicant said in evidence that between 1995 and 1999 his neck and shoulder were comfortable. He had been told he was well - he had no need to see a doctor - he had occurrences of symptoms, but not sufficient to seek medical attention. In July 1998 he had symptoms of a dull headache which settled, and in November 1998 he started to become dizzy while walking or lying face up to the ceiling. On 28 January 1999 he developed mild headache with vertigo, vomiting, and pins and needles on the right side of the face. The applicant's wife was concerned as the applicant's treating General Practitioner, Dr Koulos, thought that he might have suffered a stroke and she asked Dr DellaMalva, the Consultant Physician at Lyell McEwin Hospital, to see the applicant.

18. The applicant's second child was due in August 1999, and he said in evidence that after discussions with his wife in early 1999, he had decided to return to work as an air conditioning mechanic, either in the commercial field with a company, such as Butterfields, installing air conditioners in industrial or domestic locations. His solicitor wrote to Comcare on 18 May 1999 requesting advice as to whether weekly payments of compensation would be reinstated, and enclosing a report of Dr DellaMalva of 7 April 1999, which reads in part:

"...

With regard to his cervical spine, he showed evidence of degeneration of C5 and 6 with narrowing and osteophytes both anteriorly and posteriorly, with an associated abnormality of posture with loss of lordosis in the mid cervical spine and, in fact, he had a mild scoliosis concave to the right. There was also early disc degenerative at C4-5; there was some slight narrowing and minor degenerative changes of C6-7 with osteophytes. The remainder of the disc spaces and the vertebral body appeared to be normal.

It is certainly possible that most of these symptoms that he presented with, ie. his dizziness and headaches were related to his cervical spine problems, given that there has been no other evidence of any other disease that could account for these symptoms. I suggested to Rodney that if he has a flare of the headaches and paraesthesia down his arm he could seek physiotherapy for this, but it seems likely that the original injury involving the compressor in 1993 has contributed to some extent to these cervical spine problems. In addition to this, he is also seeing one of the ENT Surgeons, Professor Wormald, with regard to inflammatory sinus disease with evidence of polyps in both ethmoid sinuses.

Given that he will be returning to work in full capacity as a refrigeration mechanic, which obviously requires quite a lot of heavy lifting in July after his wife gives birth to their second child, it is possible that some of these cervical spine problems could actually flare up given any stress of heavy lifting, etc. If he wanted to return to being a refrigeration mechanic, a period of wait-and-see would really clearly illustrate whether or not this condition would flare. If heavy lifting was involved to any great extent I feel certain that this condition would probably flare.

..." [T29/71]

19. On 16 September 1999 the solicitor wrote again advising that the applicant had intended to return to work as a refrigeration mechanic on full duties, but that intention could not be carried out because of the problem with the cervical spine noted in Dr DellaMalva's report. The solicitor stated that Comcare would, of course, note that Dr DellaMalva also noted that the applicant's condition would flare with heavy lifting and the solicitor concluded by saying:

"I am further instructed, that he has been unable to work as a refrigeration mechanic. He therefore looked after the house while his wife went out to work. Until July of this year, he and his wife had no children." [T31/75]

20. The applicant, at the request of Comcare, was examined again by Dr Awerbuch on 19 November 1999. The applicant is recorded as stating that in relation to the right shoulder region most of the pain seemed resolved by October 1997. Dr Awerbuch reported, in part, as follows:

"On examination ... He exhibited a full range of active movement of the cervical spine with no pain localised to the neck even at the extremes of movement, although he did complain of a slight "pulling" across the shoulders at the extremes of lateral rotation bilaterally. He exhibited a full range of painless movement in all of the peripheral joints of the upper and lower limbs including his previously painful right shoulder. There was no muscle wasting or weakness in either the upper or lower limbs, there was no sensory deficit and the deep tendon reflexes were symmetrically brisk. ... In particular there was no evidence of muscle wasting or weakness in the region of the right shoulder or upper arm.

..." [T33/83]

21. Dr Awerbuch reported that, in his view, the severe episode of headache described by the applicant in July 1998, the episodes of dizziness and blurred vision in November 1998, and the vertigo, vomiting and paraesthesia in January 1999, were simply inexplicable in terms of the minor degenerative changes found at the base of the applicant's cervical spine. He said that facial sensation is innervated by the trigeminal nerve (the 5th cranial nerve) and it is therefore anatomically impossible for a degenerative disease of the lower cervical spine to cause facial paraesthesia. The applicant reported ongoing episodes of right side paraesthesia. Dr Awerbuch considered that whatever the cause of this symptom, it had nothing to do with the minimal degenerative change in the applicant's cervical spine.

22. Dr Awerbuch concluded that the applicant had mild degenerative changes at the base of his cervical spine, which, on the balance of probabilities, were independent of his former employment with ANR. He considered that these changes represented the normal aging process and that the applicant's reported symptoms were not the result of an aggravation of an underlying or degenerative condition. The minor degenerative changes at the base of his cervical spine were unassociated with the symptoms, and Dr Awerbuch reiterated that, as indicated in the body of the report, the applicant exhibited a full and apparently painless range of cervical spine movement. Dr Awerbuch concluded that the applicant did not continue to suffer from the effects of any unresolved work-related injury, nor did restrictions need to be imposed on his work capacity.

23. On 26 June 2000 Comcare determined that it was no longer liable for any ongoing compensation in relation to the right shoulder condition, and that it was not liable for any cervical spine condition. At Comcare's request, Dr Champion examined the applicant on 26 April 2001 and reported [T45/143] that the applicant had told him that the right shoulder condition had completely resolved in November 1997. Dr Champion stated that it was difficult to relate the applicant's symptoms of neck pain to cervical spondylosis because the cervical spondylosis was very mild on plain x-ray. He noted that the applicant was in the near future, to have a MRI scan, and he would look at that and provide a supplementary report when he had seen that scan; but he considered on the plain x-ray evidence, there did not appear to be enough arthritis within the spine to lead to headaches, and the disability and impairment of which the applicant complained. Dr Champion stated that he was not in agreement with Dr DellaMalva at that stage, but would reconsider his opinion in the light of the MRI finding.

24. Dr Champion provided a supplementary report on 4 June 2001 [T47/152], which noted that the MRI of the right shoulder was unremarkable, and that with regard to the MRI scan of the cervical spine, it revealed little in the way of convincing degenerative changes that would be responsible for the applicant's self-reported symptoms. In Dr Champion's opinion, a mild protrusion of this degree, and at this age, was to be expected, and he would not, under any circumstances, regard such a radiological appearance as being responsible for the symptoms described by the applicant.

25. Dr DellaMalva reported on 7 September 2001, in part, as follows:

"...

I note with interest the memorandum prepared by Gary Champion on the 1^st August, a copy of which has been forwarded to me. "In summary, the conclusion by Dr. DellaMalva that the current alleged neck symptoms may be attributable to the work incident is based on an erroneous history provided to her by the worker on the 17^th February, where Rodney did quite emphatically state that most of his neck problems commenced around the time that he had his first injury, involving the compressor, in 1993."

I maintain that this is the history that Rodney gave me and it would seem quite unusual to discount what a patient is emphatically stating as relevant to Rodney's current status in terms of his musculo-skeletal system. In terms of the description of the circumstances given to me by Rodney at the time there was a direct load on his cervical spine which would be consistent with a cervical spine load and hence the current complaints which Rodney is consistently reporting at subsequent visits with me.

In terms of his level of impairment, according to the upper extremity percentage whole person impairment, I maintain has a 10% level of impairment, i.e. loss of less than half the normal range of movement of shoulder. He also had evidence of limitation of the right and left lateral rotation of his cervical spine of the order of less than 10%. ..." [T49/154]

26. The applicant contends, in relation to the right shoulder condition, that although there is no medical evidence to support his assertions, he has continued to suffer pain and discomfort since November 1993. I should accept his evidence that he continues to suffer pain; that he is partially incapacitated for work because of the condition, and entitled to ongoing payments of compensation. In relation to the cervical spine problem, he submits that although the main emphasis from the medical treatment and assessment point of view, has been the shoulder condition, he has at all times, since September 1993, maintained that he has suffered neck pain and that he is partially incapacitated for work as a result of the condition and Dr DellaMalva's evidence and opinion should be preferred in this matter.

27. Comcare submits that liability was properly ceased in respect of the right shoulder strain from 14 June 1995, as the applicant had at least by then, recovered from the effects of that injury. It also contends that the applicant did not suffer a cervical injury as a result of incidents arising out of, or in the course of his employment with ANR on 15 September 1993 and 15 December 1993. It is Comcare's contention also that the applicant has not been incapacitated for work either at, or at least since, 14 June 1995.

28. In these brief Reasons for Decision I have set out even more briefly, the parties' submissions, all of which I have taken into account in my deliberations.

29. The applicant presented as a pleasant witness, but he was a vague historian, and at times his evidence was quite evasive, contradictory and unsatisfactory, such as when he demonstrated in the course of the Hearing the limitations on his neck movement. He demonstrated some limitation at about 20 degrees, to the left, and minimal limitation to the right; whereas he had demonstrated to Dr DellaMalva limitation to the right. There were other inconsistencies and contradictions in the history he provided to medical practitioners, as to the onset of headaches and his work practices, which I see no benefit in outlining in these brief Reasons for Decision. This does not mean that I discount the whole of his evidence, but I consider that there are occasions where he was less than frank, and made self-serving statements. I consider that his evidence was not reliable in every respect. I accept that Mrs Marshall did her best to recall accurately her observations of the applicant through these difficult years. I accept the veracity of her evidence of her observations of the applicant's behaviour.

30. The medical practitioners and Mr Goulding, were all suitably qualified and objective, but I prefer the evidence and opinions of Drs Awerbuch, Champion and Teh in any area of dispute in the evidence. Both Drs Awerbuch and Champion expanded in evidence on the views they expressed in their reports. I accept their evidence to the effect that the applicant exhibited no limitation of movement in the neck, or upper limbs, and that the degeneration in the applicant's cervical spine is mild; and their evidence also that unless there is injury/degeneration to the cervical spine, at C1-C2 level, there can be no relationship between degeneration of the cervical spine and the symptoms of which the applicant complained. By necessity therefore, I do not accept Dr DellaMalva's fervently held opinion and evidence, that the applicant's degenerative cervical spine condition is moderate to severe, and more that of a 60-year-old man, than that of a man in his 40s; and that degeneration of C5-C6 level is related to the symptoms the applicant exhibited in early 1999.

31. I am satisfied on the evidence, and find as a fact, that any symptoms of right shoulder pain relating to the work-related incidents in September 1993, and December 1993, had ceased by October/November 1997, and that the applicant does not continue to be incapacitated for work as a result of this condition. I am satisfied on the evidence, and find as a fact, that any cervical spine problems the applicant may suffer, are not related to the incidents of September 1993, or December 1993, nor to his employment with the Commonwealth.

32. For these reasons the Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

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

Associate

Date of Hearing 14 June 2002

Date of Decision 14 June 2002

Counsel for the Applicant Mr G Britton

Solicitor for the Applicant TF Owen & Co

Counsel for the Respondent Mr T McRae

Solicitor for the Respondent Thomson Playford