Adamthwaite and Comcare (Compensation)

[2018] AATA 5

Adamthwaite and Comcare (Compensation) [2018] AATA 5 (10 January 2018)

Division:GENERAL DIVISION

File Number(s):      2016/2931

Re:Gaylene Adamthwaite

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:10 January 2018

Place:Sydney

The reviewable decision made by Comcare on 5 May 2016 is affirmed.

......................................[sgd]..................................

J W Constance
Deputy President

CATCHWORDS

WORKERS COMPENSATION – compensable injury – aggravation of severe L5/S1 discopathy – whether ceased to suffer effects of injury – entitlement to compensation for medical expenses – entitlement to incapacity payments – entitlement to compensation for household and care services – conflicting medical evidence – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 29

REASONS FOR DECISION

Deputy President J W Constance

10 January 2018

A.   INTRODUCTION

1. Ms Adamthwaite has applied to the Tribunal to review a decision made by Comcare. The decision relates to a back injury suffered by Ms Adamthwaite when she was working as a teller for the Commonwealth Bank of Australia in 1993.

2. On 30 August 1996 this Tribunal decided that Comcare was liable to compensate Ms Adamthwaite under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury, being an “aggravation of severe L5/S1 discopathy” suffered in November 1993.[1]

   [1] Exhibit R1 p.58.

3. On 29 March 2016 Comcare determined that by that date Ms Adamthwaite had ceased to suffer the effects of the injury and stopped paying her compensation in respect of it.[2]  Ms Adamthwaite has applied to the Tribunal to review Comcare’s decision.[3]

   [2] Exhibit R1 p.259.

   [3] The decision of 29 March 2016 was affirmed in a reconsideration decision dated 5 May 2016. The 5 May 2016 decision is the reviewable decision in these proceedings; exhibit R1 p.290.

4. For the reasons which follow the reviewable decision will be affirmed.

5. B.   BACKGROUND

6. Unless stated otherwise findings of fact have been made on the basis of the evidence of Ms Adamthwaite.  She provided a statement dated 27 September 2017[4] and gave evidence.  I am satisfied that Ms Adamthwaite was an honest witness who gave her evidence to the best of her recollection.

   [4] Exhibit A1.

7. Ms Adamthwaite is 62 years old. She started working for the Bank as a general clerk and later was promoted to the position of teller.

8. In her statement Ms Adamthwaite described the circumstances in which she suffered an injury to her back in 1986, seven years prior to the injury for which she was being compensated, as follows:

   9.On or about 6 May 1986 I was working in the Newcastle West branch of the CBA.

   10.I was pushing a trolley full of coins up a ramp from the strongroom.

   11.When I was towards the top the trolley started rolling back towards me. ln order to stop it rolling on top of me, I gave the trolley a hard push to stop it rolling back.

   12.When I gave the trolley a hard push, I felt an instantaneous pain in my back. The pain radiated from my neck down to my tailbone. The pain I felt was a sharp pain.

   13.I continued to suffer the pain in my back for the rest of my shift.

   14.I recall that I tried to go to work the next day, despite my back not feeling any better. I recall that after only a short time at work, I decided to leave due to the pain I was in.

   15.After I left work I immediately went to see my GP at the time, Dr Hoyle at Merewether.

   16.I cannot recall exactly what Dr Hoyle said, but I recall that he recommended rest, painkillers and physiotherapy.

   17.I recall having about 2 weeks off work.

   18.I remember that I had a few physiotherapy sessions while I was off work.

   19.After that time the pain in my back settled down and I was able to return to work.[5]

   I accept Ms Adamthwaite’s evidence in this regard.

   [5] Exhibit A1 paras 9-19.

9. Prior to 6 May 1986 Ms Adamthwaite had not suffered back pain and had not injured her back.

10. Following the injury in 1986 Ms Adamthwaite suffered pain in her lower back from time to time.  This would usually be at the end of a week at work, particularly if she had been standing for lengthy periods or had been engaged in tasks involving bending and/or lifting.  She would use a heat lamp and take analgesics to relieve the pain.

11. The aggravation of Ms Adamthwaite's back condition, being the injury for which compensation has been paid, occurred in the weeks leading up to 3 November 1993. Ms Adamthwaite described the circumstances of this injury as follows:

    25.Sometime in late 1993, I was asked to perform duties as a coin teller. The duties of a coin teller involved quite repetitive work, including lifting containers of coins from the ground or a trolley up above my shoulders to tip the coins into a sorting machine. After the coins were sorted, they would be bagged. I would then be required to lift and move the bags of coins after they had been sorted.

    26.I found that after a day performing this work, my back was sore. The pain got gradually worse in my back over a few weeks of performing this work.

    27.I also started to feel pain radiating down my buttocks, hip and leg. Most of the pain was on my left side.

    28.I found that sitting or standing for too long aggravated the pain I was in, as well as bending and lifting.

    29.Due to the pain getting worse, I consulted with Dr [Hoyle] sometime shortly after reporting the injury to my back. I recall Dr [Hoyle] recommended time off work, painkillers and physiotherapy.

    30.I remember after a few weeks off work I returned to duties.

    31.When I return [sic] to work I found that, similarly to before having time off, my back would become gradually worse over the course of a week at work. I remember having to have time off as a result of the worsening pain in my back.

    32.I cannot recall exactly when but I remember that the pain in my back and left leg became so bad that I had about 5 weeks off work at the went of [sic] towards the end of 1993.[6]

    I accept this evidence.

    [6] Exhibit A1 paras 25-32.

12. Ms Adamthwaite continued to be employed by the Bank until she was retrenched in September 1994.

13. Until March 2016 Comcare paid compensation to Ms Adamthwaite in respect of loss of earnings, medical expenses and household services.

    C.   LEGISLATION

14. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

    (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

15. Subsection 16(1) provides:

    (1)  Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

    Note:  Compensation is not payable under this subsection in relation to certain defence‑related claims (see Division 2A of Part XI).

16. Subsection 19(2) provides in part:

    (2)  Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …. [set out in the subsection].

17. Subsection 29(1) provides:

    (1)  Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
    

    D.   THE ISSUE

18. Section 14 of the Act provides for a determination as to whether Comcare is liable to pay compensation for a claimed injury. Section 16 sets out the circumstances in which compensation is payable for medical expenses obtained in relation to an accepted injury. This section requires Comcare to consider each expense claimed and to make a decision whether or not compensation is payable. Similarly sections 19 and 29 require Comcare to decide upon the compensation payable for each claimed period of incapacity and for household and care services respectively.

19. The Act does not require Comcare to revisit the original decision to accept liability to compensate Ms Adamthwaite (made under section 14) when deciding that compensation is no longer payable under sections 16, 19 and 29.

20. The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it.  I have to decide whether Ms Adamthwaite ceased to suffer the effects of the compensable injury, such that she was no longer entitled to any form of compensation, at any time between 29 March 2016 and the date of my decision.

    E.    EVIDENCE AND FINDINGS OF FACT

    Evidence of Ms Adamthwaite

21. Ms Adamthwaite gave evidence that:

    ·she has continued to receive treatment by way of consultations with her general practitioner and a pain management specialist, physiotherapy, exercises, medication and use of a TENS machine;

    ·since 1993 she has pain in her lower back which is always present as a dull ache and at times becomes a sharp pain;

    ·at times the pain extends down her hips, buttocks and legs;

    ·she suffers muscle spasms extending from the left side of her back through to her rib cage; this occurs once or twice per week on average;

    ·she suffers pain in her neck and shoulders.

    When asked as to the progress of the pain in her lower back Ms Adamthwaite said that it had “kind of levelled off”[7] but that if it got bad she would seek additional physiotherapy treatment.

    [7] Transcript 24/10/17.

22. In a letter to the Bank dated 1 December 1993 Ms Adamthwaite stated:

    I have had a sore back on and off since being put back as a teller. The pain in my hip & leg started approximately 2/3 November & gradually increasing until the pain was so bad over the weekend 6/7 that the DR came to my home on 8/11.

    There was no witness as such because there wasn’t a single incident of lifting coin etc that caused the leg & hip pain to immediately start, it came on gradually.[8]

    [8] Exhibit R1 p.11.

23. I accept Ms Adamthwaite's evidence set out in the preceding two paragraphs.

    Letter from Dr Hoyle, General Practitioner (1994)

24. Dr Hoyle was Ms Adamthwaite's General Practitioner in 1993 and 1994. 

25. In a letter dated 29 January 1994[9]  (addressee unknown), Dr Hoyle referred to the lifting of containers of coins and the 1986 injury and stated that he diagnosed Ms Adamthwaite as suffering from “severe L5/S1 disc degeneration. …… Caused on this occasion by lifting of container of coins.  Related to a similar injury in 1986 the result of pushing a loaded coin tray up a ramp. …… Prognosis: Relief has occurred with this episode but recurrence is a possibility”.

    Radiology  (1993-2006)

    [9] Exhibit R1 p.22.

    X-ray lumbosacral spine 15 November 1993

26. A plain x-ray showed disc space narrowing at L4/S1.[10]

    [10] Exhibit R2 p.4.

    CT scan of lumbar spine and pelvis 26 April 1994

27. This was reported as showing no scan evidence of focal bone or joint pathology.[11]

    [11] Exhibit R1 p.27.

    CT scan of lumbar spine 15 December 1994

28. Dr Lee reported, in part:

    Well marked degenerative L5/S1 disc with associated prominent osteophyte arising from the posterior disc margin causing indentation of the thecal sac on the left, as indicated.

    Central disc protrusion of the L3/4 and L4/5 discs with associated indentation of the thecal sac.

    Osteophyte arising from the left postero-lateral disc margin of the L4/5 disc with associated indentation of the thecal sac.[12]

    [12] Exhibit R5.

    X-ray of the thoracic spine 11 August 1995

29. Dr O’Dell reported, in part:

    Moderate degenerative changes at T10/11.  Fairly mild changes elsewhere.  No evidence of old Scheuermann’s disease.[13]

    [13] Exhibit R6.

    X-rays of the cervical, thoracic and lumbar spines 2 December 2005

30. These images showed osteophyte formation at several levels, with a greater extent at L5/S1. The L5/S1 disc appeared “markedly narrowed”.[14]

    [14] Exhibit R1 p.129.

    CT scan of the dorsal spine 30 January 2006

31. This scan showed spondylotic changes but no evidence of neural compromise.[15]

    [15] Exhibit R1 p. 131.

    Reports of Dr Pacey, Rehabilitation Physician (1994 and 2000)

32. Ms Adamthwaite consulted Dr Pacey in August 1994.  She was referred by Dr Hoyle.

33. In a report dated 16 August 1994 Dr Pacey stated her diagnosis of Ms Adamthwaite’s condition as “subacute L5-S1 disc syndrome with evidence of L5 nerve root compression.”[16] She also reported a history of Ms Adamthwaites’s pain settling after the 1986 incident but that “she continued to have pain on and off over the years that would settle with rest and ray treatment.”[17]

    [16] Exhibit R1 p.31.

    [17] Exhibit R1 p.30.

34. On 10 January 2000 Dr Pacey reported that since Ms Adamthwaite stopped working the symptoms in her neck had improved but her low back continued to be painful and was becoming worse.[18]

    [18] Exhibit R1 p.70.

    Report of Dr Hodgkinson, Orthopaedic Surgeon (1994)

35. Ms Adamthwaite was examined by Dr Hodgkinson on 10 November 1994 at the request of Comcare. He provided a report dated 14 November 1994.[19]

    [19] Exhibit R1 p.39.

36. Dr Hodgkinson reported, in part:

    This patient has a constitutional degenerative change at the L5-S1 vertebral disc space which has been developing over a number of years. It is rather premature in a patient of her age.

    The incident of 8 November 1993 would have been only one of many incidents which could have aggravated her lower back.  It is difficult to say what degree of aggravation arose from this particular incident because she has had a history of numerous strains, dating from 1986. The degenerative change at the lumbosacral level has been taking place over many years and the November incident in 1993 would have been only a minor, isolated incident of stress many of which have been taking place over many years.

    Her current symptoms are associated with a certain degree of embellishment but are related to a pre-existing constitutional degenerative change which, as I said previously, has been taking place over many years.

    I feel that the degenerative aspects of now taken over the picture and will continue to cause relevant symptoms in the lower back.[20]

    [20] Exhibit R1 p.41.

    Report of Professor Ghabrial, Orthopaedic and Spinal Surgeon (1996)

37. Professor Ghabrial examined Ms Adamthwaite on 8 May 1996 at the request of her Solicitors. He provided a report dated 8 May 1996.[21]

    [21] Exhibit R1 p.55.

38. Professor Ghabrial reported, in part:

    She reported that she continued to complain of pain in her lower neck with radiation to the upper limbs since the 1993 incident, although she had some neck pain as a result of the 1986 incident.

    ……

    Ms Adamthwaite sustained injuries to her neck and back in 1986 and 1993 at work. Clinical assessment investigations suggested injuries at the L4/5 and L5/S1 segments as a result of the 1986 injury with the subsequent development of degenerative changes. However the 1993 injury most likely produced an injury to the L3/4 disc with herniation of that disc without compression on the left L4 nerve root.….. It is highly likely that she will continue with her present residual disabilities. She is not fit for any activities involving any lifting over 10kg, excessive bending as well as excessive neck movements.[22]

    [22] Exhibit R1 p.56.

    Report of Dr Sage, Orthopaedic Surgeon (2001)

39. Dr Sage examined Ms Adamthwaite at the request of Comcare. He provided a report dated 7 February 2001.[23]

    [23] Exhibit R1 p.88.

40. Dr Sage reported, in part:

    She has had ongoing lower back pain and left leg pain since then [being the time of the 1986 incident], gradually increasing so that by 1993, it was now quite difficult for her to be comfortable.  At this stage, the left leg started to go numb.

    ……

    I think that the injury in 1986 was possibly moderately significant, but it is likely that she had underlying degenerative changes at that time.

    Spinal degenerative changes, of course, are often what one is pre-disposed to, but I feel that the nature of the work has exaggerated her pre-disposition to degenerative changes, so I am quite happy that the nature of her work has significantly contributed to this problem. ….. I feel that there is a high probability that her work has been a substantial contributor.[24]

    [24] Exhibit R1 pp.89 and 91.

    Report of Dr Ryan, Consultant Occupational Physician (2015)

41. Dr Ryan assessed Ms Adamthwaite on 9 July 2015 and provided a report dated 14 July 2015.[25]  The assessment was at the request of Comcare.

    [25] Exhibit R1 p.208.

42. In the report Dr Ryan stated, in part:

    It is my opinion that Ms Adamthwaite’s current presentation is consistent with the presentation of how her spine would always have presented at 60 years of age on the background of the report in 1994 stating that she had a very uncommon but occasional presentation of a multilevel degenerative spine in a young person who would then have only been less than 40 years of age. Along with a number of work -related factors (which in my view have aggravated her condition but would have ceased) and by the age of 60, someone with such a degenerative spine their late 30s would always, in my opinion, expect to have the presentation has she now presents.[26]

    [26] Exhibit R1 p.216.

    Evidence of Dr Harrington, Orthopaedic Surgeon

43. Dr Harrington provided reports dated 26 September 2016[27] and 6 September 2017[28] and gave evidence.

    [27] Exhibit A2.

    [28] Exhibit A3.

44. Ms Adamthwaite was referred to Dr Harrington in 1994 by Dr Hoyle, following her injury in November 1993.

45. Dr Harrington prepared his report of 26 September 2016 after he re-examined Ms Adamthwaite at the request of her Solicitors. At that time he diagnosed her as suffering “chronic low back pain due to accelerated degenerative changes”. He expressed the following opinion:

    Ms Adamthwaite developed back pain following the original injury in 1986. She then developed chronic back pain following the aggravation injury at work in 1993.

    ……

    It would be highly unlikely for Ms Adamthwaite to have developed chronic back pain in the absence of the original work injury in 1986 and aggravation injury in 1993.  Records from 1994 indicate x-rays showing degenerative disc disease at L5/S1 which is presumably related to the work injury in 1986.” [29]

    [29] Exhibit A2.

46. However in a letter to Dr Hoyle in March 1994 Dr Harrington expressed the following opinion:

    It is hard to explain the changes seen on x-ray on the episode described in 1986. You can certainly argue that there was some aggravation and it is difficult to know exactly what is going on as she did not have an x-ray in 1986, but by way of feeling it would probably have been abnormal, certainly at L5/S1.[30]

    [30] Exhibit R1 p.23.

47. In May 1994 Dr Harrington did not think that Ms Adamthwaite had “a serious problem of a musculo-skeletal nature.”[31]

    [31] Letter to Dr Hoyle exhibit R1 p.28.

48. In his report of 6 September 2017 Dr Harrington noted that Ms Adamthwaite was 31 in 1986 and 38 in 1993 and that it is unusual to see people of that age range with widespread degenerative change.  In his view “[t]he acute episode in 1986 may well have resulted in spinal changes due to altered mechanics on segments above and below.”[32]

    [32] Exhibit A3 p.2.

49. When he gave evidence Dr Harrington said that inflammatory disease had been ruled out as a cause of Ms Adamthwaite’s pain in 1994 when she had a bone scan and saw a rheumatologist.  Further, the early onset of the disease, the severity of the changes and the history of a traumatic incident pointed to a traumatic cause.  He did agree that it was possible Ms Adamthwaite suffered degenerative changes not related to work.

    Evidence of Dr Findeisen, Consultant Rheumatologist

1. Dr Findeisen assessed Ms Adamthwaite on 12 August 2016 at the request of her Solicitors.  He provided reports dated 12 August 2016[33] and 28 September 2017[34] and gave evidence.

   [33] Exhibit A4.

   [34] Exhibit A5.

2. On 12 August 2016 Dr Findeisen reported, in part:

   As she had no history of pain prior to the workplace incident in May 1986, I believe her back pain is due to the events that occurred at work. I presume there was an    initial disc injury to L5/S1, which subsequently became degenerative, leading to the radiological findings in 1993 when she was first x-rayed. Previous medical reports have postulated premature degenerative disc disease, but of note in the first x-ray of 1993 the only degenerative disc is at L5/S1. Ms Adamthwaite was aged 38 at this stage. Taking these factors into account, I believe the disc   pathology at L5/S1 was not part of a generalised premature degenerative process and was a result of a local injury to that level, which presumably occurred in May 1986.  She is now left with the sequelae of that injury with chronic low back pain due to a degenerative lumbosacral disc, together with bulging of the discs at the two levels above.

   …… Ms Adamthwaite has ongoing pain which I believe will be long-term. The pain only started after a workplace incident in May 1986 and became chronic after a further workplace incident in 1993. With the passage of time, some age-related constitutional factors will have also come into play, but I still believe the primary cause of her current symptoms is still the workplace incidents as previously described.

   …..I think it is highly unlikely that Ms Adamthwaite would have her current disability if she had not sustained the original workplace injury in May 1986. I believe this incident probably resulted in a disc injury, which subsequent led to disc degeneration and her current chronic pain. Her first x-rays were in 1993, which showed marked disc degeneration L5/S1 as an isolated problem and not part of generalised degenerative disc disease. I therefore believe this pathology almost certainly arose from a prior injury. The only injury I could elicit from the history occurred in May 1986. As such, I believe this injury led to her disc pathology, which has resulted in her current disability.[35]

   [35] Exhibit A4 pp. 5 and 6.

3. Having considered the reports of Dr Harrington and Associate Professor McGill, Dr Findeisen maintained his opinion that “severe disc degeneration at one level at the age of 38 years is not constitutional age-related and more likely relates to a preceding injury.”[36] 

   [36] Exhibit A5 p.1.

4. He confirmed his opinions when he gave evidence.

   Evidence of Associate Professor McGill, Consultant Rheumatologist

5. Associate Professor McGill interviewed and examined Ms Adamthwaite on 27 July 2017 at the request of Comcare’s solicitors.  He provided a report of 27 July 2017[37] and gave evidence.

   [37] Exhibit R2.

6. Associate Professor McGill reported, in part:

   Her imaging studies have demonstrated widespread degenerative change affecting the cervical, thoracic and lumbar regions. Although the L5/S1 level has the greatest degree of degeneration, that is a common level to be affected by constitutional degenerative change.

   It is very unlikely that the incident in 1986 was responsible for the radiological findings reflecting disc degeneration that were detected in 1993. I note that some specialists have opined differently. My view is that she had degenerative change in the lumbar spine prior to the incident in 1986. I think pushing the trolley up a ramp caused a temporary exacerbation of symptoms. I think the effect of that episode would have settled within one month. I think her subsequent minor and later more significant flares of back pain were a reflection of the underlying degenerative process.

   Physical activities, including the activities she performed at work, could have from time to time caused an increase in pain. It is very unlikely that the work activities caused anything more than a temporary increase in symptoms.

   She does not continue to suffer from the effects of her 1986 injury.

   There was no specific injury in 1993. She does not continue to suffer from the effects of her work in 1993.[38]

   [38] Exhibit R2 pp.6-7.

7. When he gave evidence Associate Professor McGill said that in assessing the likelihood that Ms Adamthwaite’s ongoing symptoms were caused by the incidents at her work it is necessary to consider:

   ·the degree of force involved in the trauma;

   ·the pattern of the symptoms;

   ·the indications of the radiology;

   ·the history of her condition.

8. In his opinion the degree of force was minor and for some years subsequently Ms Adamthwaite experienced “niggles” in her lower back.  This indicates that the trauma was not substantial and was unlikely to cause damage to the spine.  The radiology showed degenerative disease to some extent in other areas.  Research shows that the most important considerations are the nature of the trauma and the subsequent symptoms.

   F.    DISCUSSION

9. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur I have to be satisfied that:

   ·Ms Adamthwaite has not suffered from the effects of the compensable injury, being an “aggravation of severe L5/S1 discopathy” such as to reasonably require medical treatment and/or household and attendant care services;  and

   ·that she has not been incapacitated for work as a result of the injury,

   at any time since 29 March 2016.

10. If I cannot be so satisfied the reviewable decision must be set aside and another decision substituted.

11. As is so often the case in matters such as this, the medical profession is divided in its views as to the likely progress of existing degenerative spinal disease once the spine is exposed to trauma. In Ms Adamthwaite’s case there are also differences of opinion as to the extent of the injury suffered in 1986 and, crucially, the extent of any aggravation in 1993.  It is important to note that the accepted injury which is the subject of these proceedings is the 1993 aggravation of Ms Adamthwaite’s condition.

12. Dr Pacey supports Ms Adamthwaite’s evidence that whilst she suffered pain in her back from time to time after the 1986 incident, her condition worsened after 1993.  However she did not express an opinion as to the continuation or otherwise of the effects of the 1993 injury.

13. In May 1996 Professor Ghabrial expressed the opinion that in 1993 Ms Adamthwaite suffered an injury to the L3/4 disc, being an injury to a different level of the spine than that accepted by Comcare.

14. In September 2016 Dr Harrington reported that Ms Adamthwaite developed “chronic” back pain following the injury suffered by her in 1993. When he gave evidence he said that Ms Adamthwaite’s condition did not fit the pattern of degenerative disease entirely.  This was by reason of its early onset, the severity of the changes, Ms Adamthwaite’s age at the time of onset and the history of the 1993 incident.

15. However in his report of 24 March 1994, following a consultation on 21 March 1994, Dr Harrington expressed the view that:

    I think she is one of these people with widespread disc degeneration involving a lot of her lumbar spine that you see occasionally and it is difficult to explain.

    It is hard to explain the changes seen on x-ray on the episode described in 1986.[39]

    At that time Dr Harrington did not refer to the 1993 work incidents.

    [39] Exhibit R1 p.23.

16. Also, after reviewing Ms Adamthwaite in May 1994, Dr Harrington reported to Dr Hoyle that he did not think that she had a serious problem of a musculo-skeletal nature.[40]

    [40] Exhibit R1 p.28.

17. Dr Findeisen gave evidence on Ms Adamthwaite’s behalf.  He assessed her condition at the request of her Solicitors.  Although he refers to the pain suffered by Ms Adamthwaite having become chronic after the 1993 injury, he is of the opinion that the only injury which led to her disc pathology and her current disability, was that which occurred in 1986.[41] When Dr Findeisen gave evidence he referred to the “marked severity” of Ms Adamthwaite’s disc degeneration at the L5/S1 level. He did not suggest that this was a result of the 1993 aggravation.

    [41] Exhibit A4 p.6.

18. Having considered all of the evidence I prefer the views of those practitioners who are of the opinion that the injury suffered in 1993 had only a short term effect on Ms Adamthwaite.  I have reached this conclusion taking into account the equivocal nature of the medical evidence relied upon by Ms Adamthwaite.  In contrast I found the evidence relied upon by Comcare, particularly the opinion of Associate Professor McGill, to be more persuasive.

19. In July 2015 Dr Ryan was of the opinion that the effect of any aggravation by any work-related factors would have ceased by that time.  Associate Professor McGill expressed a similar view after assessing Ms Adamthwaite in July 2017.[42]

    [42] Exhibit R2 pp.6-7.

20. In 1994 Dr Hodgkinson reported that “the November incident in 1993 would have been only a minor, isolated incident of stress, many of which have been taking place over many years.” [43]  

    [43] Exhibit R1 p.41.

21. In February 2001 Dr Sage reported that he thought the injury in 1986 “was possibly moderately significant”.[44]  He did not refer to the 1993 injury in relation to the correlation between Ms Adamthwaite’s disability and injury.

    [44] Exhibit R1 p.91.

22. For these reasons I am satisfied on the balance of probabilities that, at no time since 29 March 2016, has Ms Adamthwaite suffered the effects of the compensable injury. 

    G.   CONCLUSION

23. The reviewable decision made by Comcare on 5 May 2016 will be affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.....................................[sgd]...................................

Associate

Dated: 10 January 2018

Date(s) of hearing:	24 & 25 October 2017
Counsel for the Applicant:	M Weightman
Solicitors for the Applicant:	S Gray, Cardillo Gray Partners
Counsel for the Respondent:	M Snell
Solicitors for the Respondent:	P Lehmann, Lehmann Snell Lawyers