Ashley and Comcare

[2012] AATA 4

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1268

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEONIE ASHLEY

Applicant

And  COMCARE

Respondent

DECISION

TribunalProfessor RM Creyke, Senior Member

Miss EA Shanahan, Member

Date5 January 2012

PlaceCanberra

Decision The decision under review is affirmed.

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

Professor RM Creyke, Senior Member 

CATCHWORDS

COMPENSATION – Commonwealth employees – permanent impairment -  L5 facet joint strain – aggravation of intervertebral disc disorder -  degenerative spondyloarthopathy – radiculopathy - sciatica – pain in  dermatomal distribution – sensory loss – difference between signs and symptoms -  whether suffered in course of employment – whether effects of accepted injury continued to be suffered – degree of whole person impairment according to  American Medical Association’s Guides to the Evaluation of Permanent Impairment (5^th edition)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 24, 27

Comcare v Broadhurst [2011] FCAFC 39

Thurling v Comcare [2008] AATA 270

REASONS FOR DECISION

5 January 2012   Professor RM Creyke, Senior Member

1.      Ms Leonie Ashley had been employed as a senior sonographer by The Canberra Hospital since 1990.

2.      She had an accepted claim for aggravation of intervertebral disc disorder, lumbar region, with a date of injury of 21 May 2001.

3.      On 19 October 2009, Comcare made a determination denying liability for compensation for permanent impairment for the condition under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), a decision affirmed on review on 1 March 2010.

4.      On 1 April 2010, Ms Ashley sought a review of that decision by the Tribunal.

History

5.      Ms Ashley was born in 1960.  She commenced employment with ACT Health in approximately 1976.  She worked as a senior sonographer at The Canberra Hospital from 1990 until her voluntary redundancy in 2007.  Her duties involved her bending from the waist and applying downward pressure on a patient’s body in order to perform ultrasounds.

6.      Ms Ashley said she first noticed problems with her lower back in 1996.  Initially the problems settled with rest and physiotherapy.  However, the pain returned after a busy period at work.

7.      In her workers’ compensation claim dated 1 November 1996, she claimed she suffered an L5 facet joint strain, which developed from May 1996 to October 1996.  She noticed pain in the right hip, some tingling down the right leg to her right foot, and in her lower back when bending and stretching in the ultrasound rooms, the nursing bay and when moving ultrasound equipment. She had X-rays at the time but no further treatment. Prior to 2001, Ms Ashley said she consulted an osteopath, Ms Belinda Livis, and the pain would again settle with massage, rest, and anti-inflammatory and analgesic tablets.

8.      However, in an accident report dated 21 March 2001, Ms Ashley said she had experienced increasingly severe lower back, hip and neck pain in the previous few weeks. She claimed that the factors contributing to her condition were continual…