Kim v Workcover/Allianz Australia

1 By Determination dated 7 February 2001 the respondent WorkCover Corporation, through its claims agent, gave the applicant worker, Ra Kim, notice of intention to discontinue her weekly payments on the ground that she was no longer incapacitated for work by a neck strain which she suffered on 15 February 1999.

2 The notice was supported by the medical certificate of Dr Gary Champion, rheumatologist, dated 8 January 2001 who, in summary, expressed the view that the worker suffered no musculo-skeletal injury, that he could not identify a compensable disability and that the worker was fit to resume normal duties forthwith.

3 The worker lodged a Notice of Dispute dated 20 February 2001 asserting that she remained incapacitated for work.

4 At the judicial determination of that dispute the issue identified by the parties was :-

"As at 7 February 2001 whether the worker has ceased to be incapacitated for work by the compensable disability namely injuries to her neck, back and both shoulders".

5 At the hearing it was common ground that, although the determination of 7 February 2001 referred only to "neck strain", the worker's accepted compensation claim, which commenced in early 1999, related to an asserted disability to her neck, with associated symptoms in the right and left shoulders, right arm and upper back.

6 A Trial Book containing the relevant documentary material was tendered at the hearing (Exhibit A1). It contained the worker's statement, relevant claims documentation, prescribed medical certificates, relevant Rehabilitation and Return to Work Plans, Functional Capacity Evaluations and numerous medical reports of the various treating and examining doctors. A number of those doctors gave evidence including two general practitioners Drs Doan and Le Cong, the worker's treating rheumatologist Dr Litwin, her treating occupational physicians Drs Kelly and Mills, a neurosurgeon to whom she was referred Dr Molloy, and Dr Champion who provided the certificate which accompanied the s 36 notice. There was a medical report of Dr Awerbach in the Trial Book but he was not called to give evidence.

7 The evidence of Drs Doan and Le Cong was limited to the history provided by the worker at various times. They both deferred to the opinions of the medical specialists on the other relevant issues which included diagnosis, treatment, causation and fitness for work.

8 The medical evidence must be considered together with the worker's evidence which, as her ability to speak and comprehend English is limited, was given with the assistance of a Cambodian interpreter.

9 The following facts are uncontentious. The worker is now 36 years of age. She left Cambodia as a refugee in 1979. Following 6 or 7 years in a refugee camp in Thailand she migrated to New Zealand in 1987 and then to Australia in 1989.

10 She commenced employment with the employer, Evans Deakin Ltd, in 1990 on the production line undertaking process work associated with the manufacture of air conditioning filters.

11 During 1997 and 1998 she consulted her general practitioner, Dr Doan, about right shoulder, arm and neck pain which she attributed to the use of a glue gun and other repetitive duties at work. This was diagnosed as a musculo-ligamentous strain and she had some time off work for these problems but made no claim for compensation on those occasions

12 Then in March 1999 she consulted Dr Doan again complaining of pain in both shoulders but particularly the right. Again she attributed this to her work duties. Dr Doan referred her to Dr Litwin, and when he saw her on 21 April 1999 she complained of soreness in the neck, over the trapezii, thoraco-lumbar spine and arms and legs. (TB 67) At about the same time she was also referred to Dr Kelly by a Dr Suszko, arranged through her employer. Her presentation to Dr Kelly was of discomfort in the right neck and shoulder girdle region (TB 53).

13 A claim for compensation lodged by the worker on 4 March 1999 asserting an injury to her "Right arm, shoulder and back and neck, hand and wrist" attributable to lifting a heavy guard on the crimping machine was accepted for medical expenses only. The worker underwent physiotherapy, acupuncture, injection into trigger points around C7, and was prescribed medication.

14 Consistent with medical certificates provided by Drs Doan, Suszko and Kelly, the worker was provided with modified duties commencing in about March 1999 and that situation continued until the end of that year (TB 111 - 138).

15 In addition, a Functional Capacity Evaluation was conducted by physiotherapist, Richard Fuller, on 1 October 1999 (TB 151) which included a worksite assessment conducted on 22 September 1999 (TB 159), and the worker's modified duties were set out in a Rehabilitation and Return to Work Plan providing for "75% normal duties as before" with the restrictions "Avoid lifting in excess of 7 kg on occasional basis (1 Lift every ½ hr); avoid constant bending and reaching" for the period 15 September 1999 to 16 December 1999 (TB 148).

16 Following a period of annual leave in January 2000, a further Rehabilitation and Return to Work Plan providing "modified duties full hours" with the restrictions "Avoid lifting weights in excess of 7kgs. Avoid prolonged bending or repetitive bending avoid use of scraper" was commenced on 20 January 2000 to 20 April 2000 (TB 163).

17 Shortly after the expiration of that plan the worker consulted Dr Le Cong complaining of a worsening of symptoms in her neck, both shoulders and upper back. He certified her totally incapacitated for work from 27 April 2000 to 1 May 2000 and thereafter for restricted hours.

18 The worker lodged a further claim for compensation in relation to this period of incapacity which was eventually accepted by the compensating authority.

19 She continued to perform restricted duties from early May 2000. A further Rehabilitation and Return to Work Plan was agreed upon from 25 August 2000 providing for "5 hours per day 4 days per week as PMC reduced hours initially while work hardening" with the restrictions "avoid heavier lifting; overhead reaching" (TB 168). The date of completion of that Plan was 25 November 2000, however before it had expired, the worker was informed by the employer that it could no longer make restricted duties available to her. She ceased work in October 2000 and has not returned. In February 2001 she was served with the s 36 notice, the subject of these proceedings.

20 It is against that background that the issue of the worker's fitness for work as at 7 February 2001 arises.

21 It was the worker's evidence that since February 1999 and up to the present time she has continued to experience pain in the neck, both shoulders and the upper back. In 1999, at the time of making the claim, she noticed pain in her right shoulder but then it developed in both shoulders. Since 1999 she has also had pain in both arms, and initially she had pain in her legs and her right hip but that pain has now subsided. She thinks that a medication called Salozopyrin prescribed by Dr Litwin on two occasions eased pain in her knees and elbows. Zoloft which was also prescribed by Dr Litwin also helped alleviate pain. An injection given by Dr Kelly in May 1999 was "a little bit of help", and a second injection arranged by Dr Litwin in early February 2001 made the pain more uncomfortable and then after some weeks produced a little improvement in the right shoulder (TB 51). About two weeks after that injection she was able to undertake some housework.

22 She said that she experienced pain in her shoulders, neck and upper back when performing her restricted duties prior to October 2000, and that the pain continues to be brought on by movement, bending forward and sitting for a long time (tr 9). She said she would not now be able to do the full time normal duties that she performed in 1999 because it would hurt her neck to bend down and because "the right arm movement has to be really fast" (tr 10). She said that she had pain in the areas described all the time when she was working, but since ceasing work the pain comes and goes but is not as bad as when she was working. It comes "by itself along the neck both arms and the back" (tr 11).

23 She said that the pain in her right arm is worse than the left, the pain in the right shoulder is worse than the left shoulder, and the pain in the left neck and upper back is worse than the right neck and upper back (tr 25 - 26).

24 At the time of giving evidence she said that she could do very light duties but not her normal duties, and that she was having trouble with her restricted duties as at October 2000 because the work still required bending down and required a lot of fast right arm movement (tr 31). That work caused pain in her neck, shoulder and arm (tr 34).

25 Thus from the worker's perspective, over time, a number of her symptoms have virtually resolved. I refer to pain in her knees and elbows. She is no longer troubled by right hip pain. Other symptoms such as pain in the neck, shoulders and upper back have been more enduring with some improvement since she ceased her restricted duties in October 2000, and following the injection arranged by Dr Litwin in January 2001, but she has not recovered sufficiently to return to her normal duties, and would only be capable of returning to very light duties, as even the most recent restricted duties caused pain and restriction of movement particularly in her right shoulder, right arm, left neck and left upper back.

26 Having summarised the worker's account of the progress of her condition and noted her belief that she remains incapacitated for all but the lightest of work, it is necessary to turn to the medical evidence which was divided about diagnosis, the relationship of her ongoing symptoms to her employment duties, and the level of any capacity for work.

27 Before turning to the differences between the medical witnesses it is fair to say that the doctors were in agreement that a MRI scan taken of the worker's cervical and upper thoracic spine on 14 December 2000 demonstrated degenerative changes, particularly at C6/7 where there was a postero-central disc bulge moderately impinging the thecal sac (TB 105). A subsequent MRI taken on 7 February 2002 reported a small central disc herniation at C6/7 and a minimal disc bulge centrally at C5/6 was consistent (Exhibit A3).

28 The preponderance of the medical evidence was that such a degenerative condition was probably not caused by the worker's employment and that it is part of the normal aging process. I accept that evidence and to the extent that Drs Mills and Molloy might have expressed different opinions I reject their evidence. (Mills tr 49; Molloy tr 103).

29 Certain of the doctors expressed the alternative view that the degenerative condition was aggravated by the worker's employment. Dr Mills who saw the worker on 4 December 2000 and 24 September 2001, and Dr Molloy who saw the worker on 2 April 2001, held that view and attributed the worker's ongoing symptoms and continuing incapacity for normal duties to the continuing effects of such an aggravation. Dr Litwin who treated the worker on about 12 occasions between April 2000 and February 2001, and Dr Kelly who treated the worker on several occasions between 1999 and 2000 and examined her again on 4 February 2002, both held the view that it was possible that the worker's employment aggravated her degenerative condition producing symptoms, but did not accept that such symptoms could be ongoing and still incapacitating her for work by February 2001. Dr Champion who examined the worker on 8 January 2001 rejected the proposition that the work could have aggravated her degenerative condition and held the view that there was no objective evidence to support the worker's claim of ongoing symptoms or incapacity.

30 The worker has consistently told the treating and examining doctors that she has had pain in the neck, arms, upper back and posterior shoulder areas. However she has also complained, particularly to Dr Litwin, of aches and pain in other body parts. In April 1999, Dr Litwin recorded that she complained of soreness in the neck, trapezii, thoraco-lumbar spine and down the arms and legs. (TB 67). At that first consultation he notes that she was "somewhat tender about C6/7 just lateral to the spinous processes". (TB 67)

31 In January 2000 she presented to Dr Litwin with very similar symptoms to those reported the previous year with some degree of discomfort about the knees, ankles, elbows, and right shoulder. He diagnosed inflammatory spondylitis. In May 2000 he noted some improvement in these peripheral symptoms following treatment with Zoloft which he prescribed because he thought the worker was depressed (TB 68). He noted further improvement in June 2000 after prescribing Salazopyrin, a slow acting anti-inflammatory medication, but this was limited to the lower back. She continued to complain of "very prominent aching particularly about the upper trunk, the base of the neck and into the trapezii" (TB 75). This was also the situation when he saw her in December 2000.

32 At about that time Dr Litwin wrote to Dr Le Cong saying that the medication Salazopyrin and Brufen was only of "mild benefit". And expressing the view that the cause of her symptoms may be some distress at work, and that he was uncertain about the provision of further certificates for work incapacity (TB 73).

33 He then saw her again in December 2000 when her complaint was soreness about the right scapula and down the right arm. At that time he observed tenderness about the right scapula. He arranged a MRI scan of the cervico-thoracic spine which showed a broadbased disc protrusion at the level of C6/7 and he ordered a CT guided Celestone injection into the region of the C6 nerve root sheath. When he saw her in February 2001 she complained of an exacerbation of trapezial and parascapular discomfort for several weeks after the injection but subsequently noted "a little improvement" compared to the situation prior to the injection.

34 On examination on that occasion, being the last occasion when she saw Dr Litwin, she had a full range of neck movements, was tender about the parascapular and lower paracervical vetebral area, and had mild tenderness in the left trapezial area.

35 It seems that although the worker was seeing Dr Kelly over the same period as Dr Litwin, her symptom description to Dr Kelly was confined to the junction of the cervical and thoracic spine with referral to the left and right shoulder girdles (TB 58). He did however arrange a bone scan in December 1999 which detected mildly increased isotopic activity in the lower right sacroiliac joint and the patello femoral joints as well as the right AC joint and the sterno-clavicular joints.

36 The worker's complaints of pain in the knees and right hip receive some objective support from the bone scan. In addition, there is a general consistency in the evidence of the worker and Dr Litwin about the progress of the pain in the knees, elbows and hip area.

37 I accept the worker's evidence that she did experience pain in those areas and I find, on the basis of her evidence and that of Dr Litwin, that the pain in those areas improved such that by the time that the worker received the s 36 notice in February 2001 they were not significant in her presentation.

38 In any event I find that those problems were not related in any way to her employment but were co-incidental findings attributable to mild degenerative changes in those areas.

39 I then turn to the worker's neck, arm and upper back symptoms which are central to the issue of her incapacity for work from February 2001. I accept the evidence of the worker that she experienced neck pain and pain in the upper back when undertaking process work in February 1999. She made a contemporaneous complaint of such pain to Dr Doan and this was the main aspect of her complaint to Dr Litwin in April 1999. It was also the focus of her complaints to Dr Kelly. At about that time both Drs Litwin and Kelly noted that she was tender at C7 (Kelly TB 54; Litwin TB 67). A similar notation of tenderness in this area was made by Richard Fuller in his Functional Capacity Evaluation conducted on 25 August 1999 (TB 142).

40 I find that the nature of the process work she was required to perform involved forward flexion and working at a fast pace, and that this posture caused the onset of the symptoms in the upper back and neck with some soreness in the arms. It was for this reason that the various certifying doctors recommended modified duties from time to time during 1999 and 2000.

41 I accept the evidence of Drs Mills (tr 49), Molloy (tr 103) and Litwin (tr 70) that the movements required of her in her process work probably aggravated the degenerative condition of her neck. Dr Kelly expressed a not inconsistent view that her low grade degenerative arthritis of the neck may possibly be aggravated when she tries to undertake repetitive activities. I reject the contrary evidence of Dr Champion.

42 However, certain of the doctors expressed scepticism about the worker's ongoing complaints of neck, right arm and upper back pain. Dr Kelly thought that her failure to respond to various forms of treatment suggested that that there was no specific pathology and that the continuation of complaints of pain, a significant period of time after she ceased work, suggested that those symptoms were not linked with the kind of activities required of her in her working environment. He would have expected that once she ceased work the pain would subside. (tr 118 - 119).

43 A similar view was expressed by Dr Litwin who also expected improvement in her symptoms when she was away from the work place (tr 72, 74) and as a result of the injection which he ordered in January 2001 (tr 75).

44 Dr Champion rejected the suggestion that the C6/7 disc prolapse was productive of any symptoms and said there was no organic musculo-skeletal injury or disease (tr 88 - 89). In that regard he thought it significant that she said she experienced an onset of pain immediately after ceasing the anti-inflammatory medication Salazopyrin which he said is inconsistent with the long half life effect of that medication (tr 89), and that her complaint of global right arm pain was inconsistent with the neurology emanating from C6/7 (tr 89) level of the spine.

45 Drs Molloy and Mills did not share this scepticism. Dr Mills relied upon the ongoing subjective complaints of the worker together with the MRI evidence of a disc bulge at C6/7 to conclude that the effects of the aggravation of her neck pain are ongoing. He was not dissuaded from this view by the absence of radiating pain down the right arm. He found the worker to have a dysfunctional neck and said that the disc bulge continues to cause diffuse pain at the back of the scapula (tr 51). To some extent he based his opinion of a dysfunctional disc upon her reported response to the injection, viz an improvement of symptoms, ordered by Dr Litwin in January 2001 (tr 54 - 55).

46 He explained that she is suffering the effects of the degeneration at C6/7 and when she does certain activities she experiences a flare-up of her symptoms (tr 55). It was for this reason that he said that she requires care and attention on a return to work, which should be to appropriate modified duties (tr 46, 49).

47 Dr Molloy said that the worker's condition could be causing pain other than a right C7 radiculopathy and thus she was not concerned that the worker complained to her of diffuse right arm symptoms (tr 106). She relied upon the worker's subjective presentation and history and said that pain in both shoulders, neck and upper back is very consistent with a discogenic injury or musculo-ligamentous injuries, or a combination of both. This, she said, could be the explanation for the worker's complaints of continuing pain (tr 107). She thought the worker's arm pain or tiredness was explicable as cervical paraspinal muscle spasm irritating the brachial plexus as it leaves the neck (tr 108). She did not regard the worker's alternating right and left side symptoms to be inconsistent with her diagnosis (tr 108). She did not think that the foraminal injection undertaken in January 2001 would necessarily have addressed the symptoms which she understood the worker complained of, and similarly she was not concerned by the worker's lack of response to anti-inflammatory medication as she did not believe that the condition was wholly inflammatory (tr 109) .

48 Dr Molloy did not explicitly express an opinion as to whether the worker was fit to return to her normal duties from February 2001 but it can be inferred from her evidence that a flexed and twisted posture of the neck would definitely aggravate discogenic pain (tr 103) and her acceptance of the worker's history of ongoing pain, that it was her view that the worker remains incapacitated for her normal process duties.

49 I am unable to accept the evidence of Drs Molloy and Mills that the aggravation of the worker's degenerative neck condition is continuing to produce symptoms which prevent her from returning to her normal duties. In my view their opinions were based on an uncritical acceptance of history and symptom description which the worker gave them on the occasions of their medical examinations. The worker's symptom description was accepted notwithstanding the examination results of normal cervical spine movements and absence of sensory deficit (Mills tr 48; Molloy TB 108). Furthermore, in relation to Dr Mills, his opinion was, in part, based on her history of lessening symptoms following foraminal injection, yet one would have to say that her evidence on that topic and the history she gave to other doctors was not consistent with that history.

50 Whether the condition of which the worker complained in 1999 is described as a dysfunctional disc, as suggested by Dr Mills, or is discogenic or musculo-ligamentous in nature or a combination of both as commented upon by Dr Molloy, I have already said I accept that it was aggravated by twisting and flexion of the neck at work. However, the worker was away from the work place from October 2000 and was not thereafter required to engage in such activities as part of her daily program. I accept the evidence of Drs Litwin and Kelly that one would expect that removal from such activities would cause the painful symptoms attributable to her work duties to settle.

51 I am unable to accept that the worker's complaints of persisting pain are attributable to the injury at work in February 1999. The chronicity of her symptoms despite the lengthy time away from work after October 2000, the long-term unsuccessful treatment by way of conventional and slow-release anti-inflammatory medication, and the varying reported responses to that medication and the effects of the foraminal injection in February 2001, suggest to me that there may be other issues impacting upon her presentation. Dr Litwin mentioned this in his reports and evidence and noted that at an earlier time the worker responded favourably to antidepressant medication. There is nothing in the evidence to suggest that any depression which might be influencing her symptom description is attributable to the compensable disability or her employment more generally.

52 I conclude that the worker was no longer incapacitated for work as a result of the compensable disability from the date of the determination of 7 February 2001. The worker remains fit to resume her normal process duties however, as a note of caution, she may require a suitable period of work-hardening to accommodate the lengthy period she has been out of the workforce.

53 The determination of the claims agent dated 7 February 2001 is confirmed.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.