Baxter and Comcare
[2003] AATA 1147
•14 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1147
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1569, N2002/816, N2003/62
GENERAL ADMINISTRATIVE DIVISION ) Re PAMELA BAXTER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date14 November 2003
PlaceSydney
Decision The three decisions under review are affirmed.
[Sgd] Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION - pre-existing degenerative spondylosis of lumbar and cervical spine - two work-related injuries to cervical and lumbar spine - settlement of claim relating to second injury - compensation claim as regards first injury - liability - issue of compensation not payable where damages recovered
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 14, 16, 19, 24, 27.
CASE LAW
Telstra Corporation Limited v Barrow (1994) 35 ALD 461
Slattery v Comcare (1996) 70 FCR 131
McIntyre v Comcare (1998) 50 ALD 416
REASONS FOR DECISION
14 November 2003 Dr J D Campbell, Member 1. In this matter, Mrs Pamela Baxter ("the Applicant") seeks a review of the following reviewable decisions:
(a) In application N2001/1569, the Applicant seeks a review of the decision made by Comcare ("the Respondent") dated 25 September 2001, which affirmed the earlier determination dated 9 August 2001, which ceased liability by the Respondent to pay compensation to the Applicant in respect of "probable mild cervical T1-lumbar soft tissue injury” on and from 10 May 2001; and
(b) In application N2002/816, the Applicant seeks a review of the decision by the Respondent dated 14 May 2002 which affirmed an earlier determination by the Respondent dated 5 April 2001 to disallow the Applicant's claim for permanent impairment and non-economic loss; and
(c) in application N2003/62, the Applicant seeks a review of the decision by the Respondent dated 9 December 2002 which affirmed the earlier determination by the Respondent dated 28 August 2002 to disallow the Applicant's claim for medical treatment expenses and incapacity payments for "acute emotional distress and probable mild cervical and lumbar soft tissue injury".
2. A hearing was held before the Tribunal on 17 and 18 September 2003 at which the Applicant was represented by Mr Graham of Counsel. The Respondent was represented by Mr Kelly of Counsel. The Applicant presented oral evidence to the Tribunal.
3. Documents were lodged, for all three applications, by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”):
· in application N2001/1569 T1-214 pp1-383
· in application N2002/816 2T1-10 pp1-17
· in application N2003/62 3T1-6 pp1-12
Written material tendered on behalf of the parties was received in evidence and marked accordingly namely:
Exhibit No
Description
Date
A1
Applicant's Statement of Facts and Contentions
29 October 2002
A2
Medical Reports of Dr D Dixon as per attached schedule
A3
Schedule of treatment, travel and household expenses for Mrs Baxter
R1
Respondent's Statement of Facts and Contentions
10 September 2003
R2
Medical report of Dr Bookallil
14 March 2002
R3
Medical report of Dr Bookallil
10 May 2002
R4
Medical report of Dr Innes-Brown and annexures
31 July 2003
R5
Medical report of Dr Innes-Brown
31 July 2003
R6
Medical report of Dr Bookallil
14 March 2002
R7
Radiological report of Dr P Ross
24 February 1994
R8
Physiotherapist report of Mr Jansen
21 March 1994
R9
Radiological report of Dr Wong
15 August 1995
R10
Medical reports (4) of Dr Learoyd
20 September 1996 1 December 1996 27 February 1997 21 April 1998
R11
Ambulance Service clinical report
15 September 1995
R12
Medical reports (2) of Dr Tey
8 December 1995 18 September 1997
R13
Clinical report of Ms Ross
23 February 1996
R14
Medical report of Dr Goldstein
16 April 1999
R15
Medical reports (2) of Dr Bryan
4 August 1999
R16
Medical report of Dr Sim
3 August 1995
R17
Clinical report of Mr Chiang
12 July 1995
R18
Clinical report of Ms Reed
30 July 1995
R19
Medical report of Dr Wilson
24 May 1995
R20
Medical report of Dr Berry
5 December 1999
R21
Form filled out by Mrs Baxter (8 pages) relating to second motor vehicle accident
26 October 1995
R22
Motor accident claim form (13 pages) plus annexure (1 page) for second motor vehicle accident
R23
Section 50A Statement concerning second motor vehicle accident (2 pages)
4 July 1996
R24
Letter from Applicant to her solicitor, Mr Morgan
13 January 1997
R25
Letter from Mr Stephen Firth, solicitor to Applicant
3 December 1999
R26
Statement of Claim in matter No 01582/99 in the District Court of NSW.
4 March 1999
R27
Statement of Particulars for matter No 001582/99 with annexure.
4 March 1999
R28
Terms of Settlement
9 June 2000
R29
Letter from, McInnes Wilson, Lawyers to Messrs Johnson & Co, Solicitors
12 July 1999
R30
Statement of Loss and Damage in matter No 11647/1997 in the Supreme Court of QLD
6 July 1999
R31
Statement of Claim in proceedings matter No 11647/1997
R32
Letter from Applicant to solicitors
2 January 1998
R33
Medical reports (2) of Dr Vickery
20 August 2001
19 November 2001
R34
Medical report of Dr Giles
21 November 2001
R35
Medical report of Dr Wilson
23 March 1999
R36
Medical report of Dr Warneford
19 October 1997
R37
Offer of Compromise from Abbott Tout, Solicitors to Firths, Solicitors
1 December 1999
issues
4. The relevant issue in this matter is whether the Applicant is entitled to compensation pursuant to sections 14, 16, 19, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988, beyond 10 May 2001 for injuries sustained on 6 January 1995, including mild cervical and lumbar soft tissue injury, cervical spondylosis, right brachialgia, lumbar pain and stiffness, and acute emotional distress.
legislation
5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 14, 16, 19, 24, 27 and 48.
background
6. On 6 January 1995, the Applicant lodged a claim for compensation for acute emotional distress and probable mild cervical and lumbar soft tissue injury as a consequence of a motor vehicle accident, which occurred while travelling to work on 6 January 1995 (T4). A medical certificate detailed that the Applicant was suffering from acute emotional distress and probable mild cervical and lumbar soft tissue injury and that the Applicant was unfit for work for 6 January 1995 (T6). On 31 January 1995, the Respondent advised the Applicant of the Compensation Recovery procedures for pursuing legal action to recover damages pursuant to section 46 of the Act (T8).
7. On 15 February 1995, Dr Sim, a general practitioner, provided a medical certificate in which she stated the Applicant was fit to return to modified duties at work, which involved reducing periods of prolonged sitting for the period 23 January 1995 to 15 February 1995 (T9). Dr Sim also referred the Applicant for physiotherapy, stating the Applicant complained of neck pain giving her headaches, right wrist pain and low back pain radiating to her left buttock (T10).
8. Ms Reed, a physiotherapist to whom the Applicant had been referred, detailed the Applicant's symptoms on 27 February 1995 in a report (T11) dated 30 July 1995 as:
· severe headaches – the Applicant suffered intermittent headaches since 1989 when she fell and hit her head on a concrete wall. Since January 1995 the headaches have been worse in that they are more frequent and more intense;
· neck pain at examination;
· sharp pain in the right wrist with pins and needles in the middle and ring finger together with diminished strength in the right hand; and
· low back and left buttock pain.
9. The Respondent wrote to the Applicant on 9 August 1995 reminding the Applicant of the Respondent's interest should she recover damages from the accepted compensation claim arising out of the motor vehicle accident on 6 January 1995 (T13).
10. On 20 September 1995 the Applicant informed the Respondent of a further motor vehicle accident in which she was involved when driving home from Hornsby Physiotherapy, where she had been treated for a compensation injury (T15).
11. On 26 October 1996, the Applicant completed a compensation claim form relating to the second accident. (Exhibit R21), as she was advised to do in a letter from the Respondent dated 27 November 1995 (T16). In this claim form the Applicant detailed her injuries as lower back pain, leg pain, left sciatica and headaches.
12. The Applicant completed a motor accident personal injury claim form (Exhibit R22) in which she detailed the nature of the motor vehicle accident that occurred on 15 September 1995. The Applicant detailed her injuries as “aggravate injury to accident in 6/1/95 neck, back, shoulders, lower back.” (Exhibit R22, p.6)
13. In a letter to the Respondent dated 8 March 1996 (T21), Dr Knowles, a general practitioner, detailed that the Applicant was continuing to have cervical spine problems (neck pain and headaches) since her accident on 6 January 1995 and recommended the provision of a neck support pillow. The Respondent wrote to Dr Knowles on 1 April 1996 seeking clarification as to whether the Applicant's symptoms were arising from either the first or second accident (T23).
14. In a medical report dated 7 June 1996 (T29), Dr Dowda, a consultant occupational physician, concluded, after detailing a clinical history and examination of the Applicant, that the Applicant presents a history consistent with recurrent migraine, and does not present as having objective findings consistent with pathology in the neck, shoulders or upper limbs. Dr Dowda did not believe the Applicant's current condition to be related to either of the two motor vehicle accidents, but more to the events of the 1989 injury when she fell at the Powerhouse Museum, hitting her head against a concrete wall. Dr Dowda was unable to elicit any history, which indicated a change in the quality or character of migrainous headaches in association with either of the motor vehicle accidents.
15. As a consequence of Dr Dowda's report, the Respondent ceased liability for injuries arising out of both vehicle accidents on 13 August 1996 (T34).
16. Dr Sewell, a consultant radiologist, in his report of 8 July 1996 (T31) reviewed the earlier plain x-ray of the lumbo-sacral spine taken on 21 May 1996 and considered that there was minor degenerative lipping of the anterior margins of the vertebral bodies from the thoraco-lumbar junction down to L5, but none of the lumbar disc spaces are narrowed. He also noted degenerative changes in the apohyseal joints. The Tribunal also observes the report of Dr Ingle, a consultant radiologist, dated 21 May 1996 (T28) on the same film, which in effect show similar findings.
17. Dr Sewell also detailed a report on 8 July 1996 of a CT scan of the lower lumbar spine (T31):
“The CT scan of the lower lumbar spine shows no evidence of focal disc protrusion or nerve root entrapment. A broadbased disc bulge posteriorly particularly on the right side is noted at L4-L5 and there is a mild degree of degenerative central spinal stenosis at L3-L4 and L4-L5 levels."
18. Dr Houang, a consultant radiologist, reported on an MRI scan of the Applicant's cervical spine on 30 July 1996 in the following terms (T32):
"There are disc protrusions at the C5/6 and C6/7 levels indenting the thecal sac. However there also appears to be some tonsillar ectopia particularly on the right side."
19. Dr Houang also reported on an MRI scan of the Applicant's lumbar spine on 30 July 1996 in the following terms (T33):
“There is a moderate protrusion at the L4/5 level indenting the thecal sac. Degenerative changes with bulgings are seen at the L2/3 level also. The thecal sac is indented at these two levels."
20. Following receipt of a report from Dr Dixon, a consultant orthopaedic surgeon on 26 September 1996, who in turn had organised and reviewed the radiology investigations nominated in the previous four paragraphs, the Respondent revoked the earlier determination of 25 June 1996 (T42).
21. Dr Kos, a consultant radiologist, performed a lumbar discogram/CT at L3/L4, L4/L5 and L5/S1 on 4 December 1996 and reported that the L3/L4 disc was ruptured anteriorly, with mid-line posterior ruptures at the lower two levels (T45).
22. In a medical report dated 4 March 1997 (T48) Dr Ghabrial, a consultant orthopaedic surgeon, considered it likely that the Applicant's present clinical features and residual disabilities relate to her injuries sustained in two separate car accidents in 1995, in which she sustained neck and back injuries.
23. On 18 June 1997, Dr Barratt, a consultant radiologist, in a report of a CT scan of the lumbar spine, concluded that "there is central and right postero-lateral bulging of the disc at L4-5" (T54).
24. In a report dated 30 June 1997 (T55), Dr Ghabrial concluded that the first motor vehicle accident (6 January 1995) resulted in an injury to the Applicant’s neck. Clinical assessment and investigations suggested C5/6 and C6/7 prolapsed inter-vertebral discs, while clinical features were considered not to be severe enough to warrant surgical intervention. Dr Ghabrial considered it likely that the Applicant will continue with residual disabilities regarding the injury of 6 January 1995 involving her neck. Dr Ghabrial also considered that the Applicant sustained an injury to her lower back on 15 September 1995. Clinical assessment and investigations suggested L4/5 moderate disc prolapse. Dr Ghabrial considered that the Applicant's clinical features were not severe enough to warrant surgical intervention (T55).
25. Dr Kos, a consultant radiologist, performed a cervical discogram/CT on 22 October 1997 and reported that the C3/4 and C4/5 discs are ruptured posteriorly, and that the C5/6 and C6/7 discs are degenerate and disruptive. Left upper limb pain radiation was experienced with testing at C5/6 (T57).
26. In a report dated 30 January 1998 (T61), Dr Bernotas, a senior medical officer with Health Services Australia, concluded that the Applicant would be fit to carry out her full range of duties from 27 February 1998 on a graduated program of increasing hours over a two month period.
27. Dr Melville, a consultant radiologist, performed a CT scan of the Applicant's lumbo-sacral spine on 2 June 1998. In his report (T69) Dr Melville concluded:'
"Broadbased bulge of the L4/5 disc slightly compressed in the thecal sac without evidence of significant nerve root compression."
28. Dr Chung, a consultant radiologist, in his report dated 5 August 1999 of an MRI examination of the Applicant's cervical spine (T79), concluded:
"Disc osteophyte bars at C5/6 and C6/7 which indents the cord but do not cause any neural compression."
29. On 22 September 1999, Dr Harden, a consultant occupational physician, assessed the Applicant and detailed her symptomatology and apparent causation in the following terms (T81):
· chronic neck and lower back pain, which was either precipitated or exacerbated by the motor vehicle accidents. Has undergone cervical and lumbar spine surgery in order to try and reduce the pain;
· pain symptoms radiating to the upper limbs primarily on the right;
· impingement syndrome of the right shoulder (not necessarily a consequence of the two injuries);
· pain radiating into left lower limb that appears to be radicular in nature;
· recurrent headaches that appear to pre-date the motor vehicle accidents, but appear to have been made worse as a result of the injury; and
· temporomandibular joint pain, which appears to have developed subsequent to the two injuries.
30. Dr Harden considered that the Applicant could return to work on a part-time basis commencing with two four-hour periods of work increasing to a minimum of five four-hour periods of work per week. Dr Harden did not consider it likely that the Applicant would return to full-time work in the foreseeable future.
31. On 2 February 2000, the Applicant lodged a compensation claim for permanent impairment. On 20 December 1999, Dr Dixon completed the medical aspects and listed the diagnosis of the current condition with the following impairment assessments as (T93, p151):
· Cervical Spondylosis 15 per cent
· Right Brachialgia (right shoulder) 15 per cent
· Lumbar pain and stiffness (lumbar spine) 20 per cent.
32. Dr Dixon also commented that the impairments would continue to deteriorate and stabilise in greater than five years.
33. In a medical report dated 16 August 2000 (T146) following a review assessment of the Applicant, Dr Harden, a consultant occupational physician, concluded that the Applicant's condition overall had not changed significantly since the last review on 23 September 1999. Dr Harden listed the Applicant's symptoms as:
· disabling levels of pain in her neck radiating to her left jaw and eye;
· pain in the shoulders, particularly in her left shoulder with certain movements;
· pain in her low back;
· pain in her legs, not specific to any activity;
· frustrated and upset to a variable degree as a result of her pain experience, which is unpredictable.
Dr Harden considered that the Applicant was fit to perform her normal range of tasks on a part-time basis.
34. In two letters to the Applicant on 5 April 2001, the Respondent:
(a)determined that the Applicant's claim for permanent impairment be denied, as assessment by Dr Innes-Brown indicated that the Applicant suffered a whole person impairment of less than ten per cent (T185); and
(b)advised the Applicant that it proposed to cease all liability for the claim sustained on 6 January 1995 on and from 10 May 2001 (T186).
35. The Respondent ceased liability on and from 10 May 2001 on 9 August 2001 and advised the solicitor acting for the Applicant of their determination (T208).
36. The Applicant requested reconsideration of this decision on 16 August 2001 (T209). The Independent Review Officer affirmed the decision to cease liability on 25 September 2001 (T212).
37. The Applicant, through her solicitors, on 18 March 2002 (2T6) requested a reconsideration of the determination of 5 April 2001, which denied the Applicant's claim for compensation for permanent impairment. On 14 May 2002 the Respondent affirmed the determination of 5 April 2001 (2T9).
38. The Applicant had lodged a claim for incapacity payments and medical treatment expenses on 26 June 2002. This claim was denied by the Respondent on 28 August 2002 (3T4) and affirmed by the Independent Review Officer on 9 December 2002 (3T6).
Applicant's evidence
39. The Applicant told the Tribunal that she was born in 1950 and had been employed by Centrelink and that she was currently separated. The Applicant stated that she had left school at age 16 with a school certificate and was first married in 1969. During her first marriage she had two children and worked for various periods. In 1981 the Applicant completed an arts degree as a mature age student after which she returned to work in retail activities. In 1987 the Applicant commenced work at the Powerhouse Museum and in 1988 she married for the second time.
40. The Applicant told the Tribunal about an accident in 1989 when, while working as a shop supervisor at the Power House Museum, she tripped over a taped-over cord on a black carpet and hit her head on the left side and her shoulder on a concrete wall. The Applicant indicated that she suffered headaches subsequent to this accident; was off work for a few weeks; was treated with analgesic medication and received physiotherapy; saw Dr Dixon on three or four occasions and lodged a claim for workers compensation which was settled. The Applicant stated that she had no problems after returning to work over a two-month period, before she left to travel to Queensland with her husband to develop a block of land.
41. The Applicant told the Tribunal that in Queensland she worked in retail, before commencing employment with the Department of Social Security in July 1990, which continues to this day in Centrelink. The Applicant indicated that she worked in reception, did not experience any problems at work and cannot remember any health problems in the period up to January 1995.
42. The Applicant described how, on 6 January 1995, while driving to work she was involved in an accident in which her car, which had stopped at a roundabout, was rear-ended, with damage to the car estimated at $2000. After the accident, the Applicant stated, she proceeded to work in the car, and on arrival reported the accident before proceeding to visit the medical centre adjacent to her workplace.
43. The Applicant stated that she attended Dr Sim's partner at the medical centre at about 10.30 on the day of the accident and complained of a sore neck, a sore back below the waist line, some rib and wrist soreness and a bruise on her leg, as well as being shaken up by the event. The neck soreness was said by the Applicant to be the most significant. She was treated with pain medication and went home. The Applicant stated that she was unable to remember what date she returned to work and that she had time off intermittently because of continuing problems until 1997. The Applicant told the Tribunal that she had physiotherapy treatment for her neck and back for one to two weeks which provided some relief, as well as seeing further doctors in Queensland. The Applicant indicated that liability was accepted for her injury prior to her returning to Hornsby, NSW, in July 1995, where she was involved in similar employment with Centrelink.
44. Between July and September 1995 the Applicant believes that she may have had a few days off work, but has difficulty in actually remembering. The Applicant stated that at that time she remembers having continuing soreness in the neck but little memory as to her back condition. She also saw Dr Knowles and Dr Tey during this period and was referred for physiotherapy.
45. The Applicant described a further car accident, which occurred on 15 September 1995 as she was returning home from the physiotherapist at Asquith. The Applicant, while stopped in her car at a pedestrian crossing, was rear-ended by a car, which in turn had been rear-ended by a third car. On this occasion her car was written off, as was the middle car. The Applicant stated that an ambulance conveyed her to Hornsby Hospital, and that in this accident her back was injured and her neck re-injured. The Applicant stated that at Hornsby Hospital she was assessed and after a few hours was allowed to go home. The Applicant further stated that she notified her employer of the accident and returned to work on either the following Monday or Tuesday.
46. The Applicant indicated that she had no immediate medical treatment (apart from the assessment at Hornsby Hospital) and that symptoms did not commence significantly until some two to three weeks after the accident, at which time she consulted her general practitioner, who later referred her to Dr Dixon. The Applicant noted that she was having increasing time off as the symptoms (pain) increased. She said she saw Dr Dixon on a number of occasions during 1996 and 1997, with Dr Dixon undertaking a laminectomy on the lower back in August 1997 and an anterior fusion of the cervical spine in November 1997.
47. The Applicant indicated that she had seen Dr Goldstein at Umina who had referred her to Dr Ghabrial in Newcastle before the first operation. In relation to the first operation, the Applicant indicated that she was hospitalised for ten days, as she was for the second operation (cervical fusion). Further the Applicant indicated that she believed that the low back injury and subsequent operation (laminectomy) was a result of the second motor vehicle accident, while the neck injury and subsequent operation (cervical fusion) was the result of the first motor vehicle accident.
48. The Applicant told the Tribunal that she commenced a graduated return to work program in February 1998, which lasted six to eight weeks. Subsequent to this she stated that she attempted several similar programs but without success, the main issue being that she was never sure how she was going to feel in the morning as regards to neck and back pain.
49. The Applicant described that during 1998, her neck symptoms were aggravated when travelling and that moving her neck at work caused a grating feeling. Further, she experienced increased difficulties in her back with sitting and walking. The Applicant stated that despite having assistance from an occupational therapist in setting up her desk at work, she was only able to work two or three days a week as the symptoms were getting worse.
50. The Applicant told the Tribunal that she stopped work in 2000 because of pain in the neck and back and felt stressed because of her unreliability in attending work. The Applicant stated that she consulted a psychiatrist on six occasions and was prescribed anti-depressant medication. Similarly the Applicant stated that she consulted Dr Dixon from time to time, Dr Kuru, once or twice and Dr Kelly, a general practitioner.
51. The Applicant informed the Tribunal that she had initiated a third party action in relation to the second motor vehicle accident (September 1995) and that this was settled in July 2000. In relation to the first motor vehicle accident, the Applicant stated that she had been advised not to proceed with a third party claim, which she had initiated. The Applicant stated that she understood that she had no further claim on Comcare in relation to the second motor vehicle accident as a consequence of the settlement received in July 2000.
52. The Applicant described her current difficulties in undertaking activities outside work in the following terms:
· she is unable to do things she would like to do, for example she is unable to manage her grandchildren;
· she is unable to vacuum, start the lawn mower or hang washing out; receives help from her daughter and pays for cleaning/lawn mowing; and
· has difficulty with travel; is still able to drive a car, but has difficulties (neck) with long distances.
53. The Applicant also described to the Tribunal her symptomatology over time and her capacity to work in the following terms:
· During the period January to September 1995, while movement in the neck was better, neck soreness never improved. In terms of neck pain, the anterior fusion helped for six to eight months. Pain radiating down the arms together with pins and needles was assisted by radio frequency treatment in October 2002 and neck remedial massage for six weeks. The neck pain continues with pain radiating to middle of back and to both shoulders, although there are no problems with grasping, gripping or cutting.
· The back pain has progressed over time, with a dull ache being present in the lower back at the waistline level with pain in the left leg whilst walking. The back pain does respond to Panadeine Forte medication.
· She would be able to do part-time work at Centrelink, for approximately six hours a day twice a week.
54. In response to questions in cross-examination, the Applicant detailed the following responses:
· she settled the claim in relation to the second motor vehicle accident because she was advised to do so;
· the Applicant did not settle the claim in relation to the first motor vehicle accident because she wanted on-going medical expenses and incapacity payments;
· the claim in relation to the second motor vehicle accident involved a consideration of the following injuries and disabilities:
§rupture of discs in cervical spine requiring anterior cervical fusion;
§severe injury to the back requiring laminectomy and discectomy;
§right and left sided sciatica;
§inability to work more than two days per week;
§incapacity payments for time lost;
§loss of earnings up to age 65;
§medical treatment expenses (past);
§domestic assistance (past and future); and
§home handyman and gardening assistance (past and future).
· the offer of compromise and settlement involved a payment of $350,000, made up of
§$101,000 - non-economic loss
§$35,000 - past medical expenses
§$34,000 - past loss of earning capacity
§$130,000 - future loss of earning capacity
§$50,000 - past and future domestic assistance.
Of this total amount $80,000 (approximately) was to be reimbursed to Comcare.
· Dr Ghabrial in his report of March 1997 and Dr Dowda in his report of 7 June 1996 had correctly reported the Applicant's history of neck problems since the accident at the Powerhouse Museum in 1989.
· despite the records at pages 205 and 206 of the T-documents not showing the Applicant having a week off work around the time of the second motor vehicle accident in September 1995, the Applicant believes she did have the nominated week off work;
· the pain is in the neck, left arm, lower back, left shoulder and right leg with a shifting pain in the left leg;
· in relation to the left arm pain there was no injury to either shoulder in the first motor vehicle accident, nor was there any problem prior to the second motor vehicle accident, with the shoulder problems occurring after the operative interventions;
· the sciatic pain was episodic with pain to the left buttock after the first motor vehicle accident and that she did experience some emotional distress as a consequence of this accident. Believes she had some sciatica after the first motor vehicle accident, but may not have told the doctors;
· when she saw Dr Dowda on 4 June 1996, she told him what was there on the day, namely intermittent headaches, blurred vision, sensitivity to light, vomiting, that she had no problems with sciatica, and that the problems with sciatica became much worse prior to surgery;
· when she saw Dr Harden in September 1999 she did tell him that there were no changes in duties after the first motor vehicle accident and that this accident did not involve injury to her shoulders or legs. Further, that after the second motor vehicle accident there was increased leg pain with prolonged walking and the back pain radiated to the left buttock through the thigh to the foot and that the right leg pain also worsened;
· when she saw Ms Ross on 8 August 1995 she did complain of headaches associated with dizziness and nausea, severe neck pain and a constant sharp pain between the shoulder blades;
· the neck symptoms got worse some three to four weeks after the first motor vehicle accident and that she had experienced some migraines prior to the first motor vehicle accident;
· the symptoms did not change until a couple of weeks after the second motor vehicle accident and that she experienced pain in both buttocks when sitting for 15 - 20 minutes by October 1995;
· she does not recall seeing Dr King in September 1998 and is unable to recall telling him that the first motor vehicle accident caused pain in the upper back, namely progressive neck and upper thoracic pain. Further, she is unable to recall telling Dr King that the second motor vehicle accident caused evolving lower back pain and right-sided sciatic pain;
· when she first saw Dr Innes-Brown in March 2001, she did tell him that she was on and off work for three years following the fall at the Powerhouse Museum in 1989 and over this time the symptoms in her neck and her headaches settled down;
· she did not tell Dr Innes-Brown that following the first motor vehicle accident she suffered no pain but only a few aches, but she did tell him the pain in her neck commenced some ten or so days later and that after a few weeks she recommenced experiencing headaches;
· in relation to the second motor vehicle accident she did tell Dr Innes-Brown that she did not experience severe low back pain until some two or three weeks after the accident;
· the Applicant was referred to Dr Dixon in 1996;
· she did tell Dr Bookallil that she was symptom-free for a period of months prior to the first motor vehicle accident;
· she did tell Dr Tey in October 1995 that her left sciatic pain developed following the second motor vehicle accident and that severe right-sided headaches occurred following a fall in March 1996;
· she did not tell Dr Bryan of any problems with her legs following the first motor vehicle accident;
· she did inform Dr Warneford that the low back pain commenced after the second motor vehicle accident;
· she only vaguely remembers seeing Dr Wilson on 23 March 1999, but disagrees that she would have said that she did not have any significant disability following the first motor vehicle accident;
· when she saw Dr Bodel in May 1996, she did not state that the first motor vehicle accident aggravated pre-existing head and neck conditions. She did however agree that the second motor vehicle accident aggravated neck and back pain, with the development of left-sided sciatica;
· the Applicant was aware that Dr Goldstein in his report of 16 April 1999 did state the need for future treatment, her inability to work more than two days a week was mainly a consequence of the second motor vehicle accident;
· in a letter to Mr Firth, the Applicant agreed she indicated that she had never had sciatica before the second motor vehicle accident;
· the common law claim in relation to the second motor vehicle accident was settled partly because Dr Dixon said the Applicant’s ongoing disabilities were the result of the first motor vehicle accident;
· she had seen Dr Rodney, a psychiatrist in 1995 for an unrelated matter;
· she had seen Dr Learoyd, a psychiatrist, in 1996 during which it was noted that she had been suffering depressive symptoms for ten years, and that these were unrelated to her motor vehicle accidents;
· she had seen Dr Vickery, a psychiatrist, in December 2001 in which a history of 18 months of depressive symptoms were noted relating to her husbands illness, and difficulties within the family, all of which had been compounded by the two car accidents;
· she had seen Dr Berry, a surgeon, in December 1999, and did tell him of developing a left-sided sciatica after the second motor vehicle accident and that she had right-sided sciatica at times; and
· she is unable to remember whether she had any problems with her neck prior to the Powerhouse Museum accident in 1989, but she did have headaches, neck pain and low back pain prior to the first motor vehicle accident in January 1995. She noted that prior to this time the neck and back problems were episodic.
55. In response to questions in re-examination the Applicant stated that:
· the pain was debilitating and affected every aspect of her life, causing her to be stressed and depressed;
· the headaches commenced after the Powerhouse Museum accident in 1989;
· she had difficulty remembering when the low back pain commenced;
· she first experienced depressive symptoms in 1968 when her father died and they have been on and off since the late eighties; and
· she believed she had an episode of left-sided sciatica after the first motor vehicle accident.
medical evidence
further radiology investigations
56. Following a plain x-ray examination of the lumbar-sacral spine on 24 February 1994, Dr Ross, a consultant radiologist, reported widespread early spondylitis. Similarly, following a lumbar spine CT examination Dr Ross reported that apart from a small posterior annulus bulge at L4/5, no disc lesions have been identified and no cause for nerve root compression has been identified (Exhibit R7).
57. In a further plain x-ray examination of the cervical spine, right wrist and lumbo-sacral spine on 15 February 1995 Dr Ross noted that the C4-5 and C5-6 discs are slightly narrowed and minimal spondylitic changes in the cervical spine and widespread early spondylitic changes in the lumbo-sacral spine (Exhibit R4).
58. In a CT scan of the cervical spine dated 15 August 1995, Dr Wong, a consultant radiologist reported that the C2/3 disc was normal, and the study to the C3 level was normal (T14).
59. Dr North, a consultant radiologist, concluded that a plain x-ray examination of the cervical and lumbo-sacral spine on 19 June 2001 (Exhibit R4) demonstrated an anterior fusion of the cervical spine at C5, C6 and C7, with normal alignment and minor degenerative changes in the apophyseal joints in the mid and lower cervical region with minor sclerosis. In the lumbo-sacral spine there is mild disc degeneration in the thoraco-lumbar region, anterior marginal osteophytic lipping and changes consistent with previous Scheurmann's disease.
60. Following a plain x-ray of the lumbo-sacral spine on 15 July 2002 (Exhibit R4) Dr O'dell reported lumbo-sacral interfacet arthritis, more prominent on the left side.
61. A CT of the upper dorsal spine performed on 1 April 2003 (Exhibit R4) was reported upon by Dr Wood, a consulting radiologist, as demonstrating osteoarthrosis of several right-sided zygapophyseal joints, although this does not appear to correlate with symptoms and therefore may be an incidental finding.
Mr jansen, physiotherapist
62. Mr Jansen reported seeing the Applicant for the first time on 28 February 1994 in his report of 21 March 1994 (Exhibit R8), at which time she complained of an eight-week history of low back pains, which had recently exacerbated.
Mr wilson, consultant orthopaedic surgeon
63. In his report of 24 May 1995 (Exhibit R19) Mr Wilson stated that the Applicant complained of immediate pain in her left buttock region following the motor vehicle accident of 6 January 1995 and a whiplash type injury to the cervical spine. Mr Wilson commented that there were some prior existing degenerative changes in the cervical spine, and some spondylitic changes in the lumbar spine after reviewing the available radiology. Mr Wilson also commented on the Applicant's occipital headaches, which he believed to have resulted from aggravation of the pre-existing cervical degenerative changes, but overall thought she had not had a serious injury.
Mr chiang - physiotherapist
64. In a report dated 12 July 1995 (Exhibit R17), Mr Chiang indicated that he had first seen the Applicant on 16 May 1995, at which time she complained of immediate neck pain and right hand pain after the accident. Mr Chiang found restricted range of movements of the cervical spine, and a loss of lumbar extension range of movement as well as tenderness over the right sacroiliac joint on examination.
dr heather sim - general practitioner
65. In a summary report dated 3 August 1995 (Exhibit R16), Dr Sim detailed the history presented to her partner, Dr Phillips on 6 January 1995, which included the Applicant's complaints of a painful neck, back and right calf and a headache. On examination recorded tenderness at C2/3 spinous processes but a full range of movement of the cervical and lumbo-sacral spine. By 10 January 1995, the Applicant is reported as having a painful left shoulder, headache, a sore back and a pain in her left hip/leg. Examination revealed a bruise on the right calf, tenderness over her lumbar para-vertebral extensors, left sacroiliac joint and right and left hip joint line. She also had tenderness over the left superior rhomboid and the left supraspinatus tendon.
66. Dr Sim reported that on 23 January 1995, the Applicant complained of pain radiating down her left leg and finger pain, both of which were absent when Dr Sim saw her, as she had taken some pain killers. The Applicant was seen again on 15 February 1995 and referred for physiotherapy. The Applicant was seen again on 20 and 27 February 1995, and improvement was noted, although no physiotherapy treatment had been sought during the second week.
67. Dr Sims reported that she saw the Applicant on 29 March 1995, at which time the Applicant complained of pervasive tiredness and detailed a history of depression prior to the first motor vehicle accident. By 15 May 1995, Dr Sim reported the Applicant as being quite upset and complaining of severe headaches. Dr Sim reported her examination as revealing tenderness over the cervical spine and pain to her left scapular area. Dr Sim referred the Applicant to a psychiatrist, another physiotherapist and Mr Wilson.
nsw ambulance report
68. On 15 September 1995 the NSW Ambulance attended a road accident at Asquith at 1802 hours (Exhibit R11) and detailed a history of the Applicant complaining of pain in the neck, left hand, discomfort above left knee and right buttock.
dr tey - general practitioner
69. In a report dated 8 December 1995 (Exhibit R12), Dr Tey stated that he first saw the Applicant on 24 October 1995 during which she informed him of her accident on 15 September 1995 and her first accident in January 1995, and that she had developed left sciatic pain following the second motor vehicle accident.
Ms Ross - physiotherapist
70. On 23 February 1996 (Exhibit R13) Ms Ross described the Applicant as detailing a history of slight neck pain after the first motor vehicle accident which gradually increased over a four week period. When she presented on 8 August 1995 the Applicant was noted to have an acutely sensitive area of pain over left C2, general neck pain, headaches and burning pain in the thoracic spine. Ms Ross also commented that the second motor vehicle accident involved her neck and lumbar regions and that the Applicant also complained of increasing severity of headaches.
dr david wilson - consultant oral and maxillo-facial surgeon
71. In his report dated 23 March 1999 (Exhibit R35), Dr Wilson recorded a history of the three accidents, the headaches following the Powerhouse Museum accident in 1989, the first motor vehicle accident in 1995, after which she had no significant disability and the second motor vehicle accident after which she had a lot of head and neck aches, and of pain around her left lower jaw. Dr Wilson concluded that the two motor vehicle accidents might well have resulted in injury to the temporomandibular joints.
dr goldstein - general practitioner
72. In his report dated 16 April 1999 (Exhibit R14) Dr Goldstein detailed the Applicant's presenting history as at 26 August 1996. It is noted that the Applicant had been involved in two motor vehicle accidents in 1995 and that she was complained of lower back pain with radiation to both buttocks and legs and numbness in her left foot. Dr Goldstein concluded that her problems were related to the second motor vehicle accident; that she would only be able to return to work for two days a week; that her residual disabilities are permanent; that the majority of her incapacity for work is related to injuries sustained in the second motor vehicle accident, as is the requirement for assistance with domestic duties and gardening.
dr tey - general practitioner
73. In a report dated 18 September 1997 (Exhibit R12), Dr Tey stated that he had seen the Applicant twice in late November 1995 and on 23 January 1996 and had prescribed Deseril for headaches which appeared to be due to migraine. Dr Tey also recorded that his partner Dr Knowles had seen the Applicant in March 1996 after a fall at Central Railway at which time she was complaining of severe headaches. Dr Knowles referred her to a neurologist and to Dr Dixon for assessment of her neck pain, with her last attendance at the practice being 28 June 1996.
dr warneford - general practitioner
74. In a report dated 19 October 1997 (Exhibit R36) Dr Warneford noted that the Applicant first attended on 8 May 1996 and detailed a history of low back pain developing after the second motor vehicle accident, with pain radiating to left buttock and leg. Further, the Applicant related a history of headaches since the Powerhouse Museum accident in 1989. Dr Warneford considered that the Applicant's symptoms were due partly to the accident and partly to the existing degenerative change.
dr bryan - consultan orthopaed surgeon
75. In his two reports dated 4 August 1999 (Exhibit R 15), Dr Bryan detailed that the Applicant suffered injury to her low back, and some injury to the neck and left thumb as a consequence of the first motor vehicle accident and these symptoms were on-going at the time of the second motor vehicle accident. Dr Bryan recorded that, as a consequence of the second accident, the Applicant suffered increased symptoms to her neck and back, which resulted in her undergoing a lower lumbar laminectomy in August 1997 and anterior spinal fusion in November 1997. Dr Bryan recorded that the Applicant still had neck pain and pain in the right and left arm with the latter extending to the fingers with intermittent numbness and tingling of the fingers.
76. Dr Bryan concluded that there were pre-existing degenerative changes in the neck and back prior to the first motor vehicle accident, and that that accident may have caused some injury and aggravation of the degenerative changes. Dr Bryan further stated that there were increased problems with the neck and back after the second motor vehicle accident, which in his view was the more significant injury- causing event. Dr Bryan also reflected his opinion in the assessment of permanent impairment arising from the two motor vehicle accidents.
dr berry - consultant general surgeon
77. In his report dated 5 December 1999 (Exhibit R20), Dr Berry records that the Applicant suffered injury in a motor vehicle accident in January 1995 and that following a period off work she had resumed normal duties, although she had persistent soreness in her neck and back. Dr Berry records a history of a second motor vehicle accident in September 1995 and that after a period of two to three weeks the Applicant suffered increased pain which was worse in the back, developing left sciatica. Dr Berry records that the Applicant described continuing symptoms of dull aching neck pain, which radiated to the right shoulder and occasionally to the right elbow. Further, Dr Berry records continuing symptoms of low back pain with right sciatica.
78. Dr Berry, in noting that the Applicant had been able to return and cope with full-time work despite persisting neck and back pain following the first motor vehicle accident, , suggested that the second motor vehicle accident was more major and after this her symptoms were more severe. Dr Berry concluded that the Powerhouse Museum accident was not playing any part in her on-going problems and that he did not believe that her motor vehicle accident in January 1995 is playing a significant part in her on-going problems.
dr learoyd - consultant psychiatrist
79. In a report dated 20 September 1996 (Exhibit R10), Dr Learoyd detailed the Applicant's long-term history of depressive illness associated with a number of personal and family issues for which she had been treated with Nardil and Prozac.. In follow-up reports on 1 December 1996, 27 February 1997 and 21 April 1998, Dr Learoyd detailed symptoms of continuing depressive illness, and noted the effect of the Applicant's chronic neck and back pain in the last report.
dr vickery - consultant psychiatrist
80. In a report dated 20 August 2001 (Exhibit R33), Dr Vickery detailed an 18 month history of depression associated with ongoing disabilities, but more so to her husband's behaviour. In a further report dated 19 November 2001, Dr Vickery detailed the Applicant's concern regarding the care of her grandchildren, and cessation of liability by Comcare in relation to her claim arising out of her first motor vehicle accident.
dr giles - pain management
81. In a report dated 21 November 2001 (Exhibit R34), Dr Giles detailed how the Applicant's first motor vehicle accident in January 1995 caused immediate headache and over the week neck pain and some low back pain, these symptoms persisting. Following the second motor vehicle accident on 15 September 1995 the Applicant’s neck and back pain became much worse. Dr Giles recorded the Applicant as suffering from severe headaches, neck pain radiating across the left shoulder and down between the scapular, and intermittent numb sensations in the hand, specifically the second, third and fourth fingertips.
dr dixon, consultant orthopaedic surgeon
82. In a report dated 26 September 1996 (Exhibit A2), Dr Dixon detailed the two motor vehicle accidents of 1995 and the Applicant's present symptoms of 13 June 1996. At that time Dr Dixon recorded the Applicant as suffering from residual occipital headaches and soreness on the right at the upper facet joint levels, but the major symptoms related to the lumbo-sacral area.
83. Following a clinical examination and review of CT and MRI studies of the lumbar and cervical spine, Dr Dixon concluded that the Applicant had aggravated degenerative changes in her cervical and lumbar spine as a consequence of the two motor vehicle accidents. Dr Dixon was of the opinion that the accident of January 1995 resulted in injury principally to her neck, with the accident of 15 September 1995 resulting in lower back strain. Dr Dixon also considered the impairments to the cervical spine and lumbar spine to be permanent.
84. In a review of 11 July 1997 Dr Dixon decided that in light of persisting low back pain and sciatica the Applicant was to have a L4/5 discectomy on 14 August 1997. Dr Dixon was firmly of the opinion that the disc rupture with sciatica was directly related to the motor vehicle accident of September 1995. On 4 November 1997 Dr Dixon, in noting residual pain in the Applicant's lower back and cervical spine and symptomatic disc ruptures at C5/6 and C6/7, stated that the Applicant was to have an anterior spinal fusion at C5/6 and C6/7 on 27 November 1997.
85. In a report dated 12 August 1998, Dr Dixon detailed the Applicant having residual low back pain and stiffness and as fit for part-time work, two days a week. Dr Dixon concluded that the injury resulted from the motor vehicle accident of 15 September 1995.
86. In a report dated 18 March 1999 Dr Dixon repeated his comments in relation to the low back injury as detailed in his report of 12 August 1998. In relation to the cervical spine, in his review of 4 December 1998Dr Dixon reported residual neck ache with radiation to the shoulders and continued residual low back pain with intermittent sciatica. He also stated that the Applicant's current condition was caused by the accident of January 1995.
87. In a further report dated 25 October 2000 (T152), Dr Dixon stated that:
· it is reasonable to conclude that the accident of 6 January 1995 aggravated a pre-existing condition with a pre-disposition to headaches and migraine;
· it is reasonable to conclude that the accident of 15 September 1995 was responsible for the aggravation of her injuries sustained in the first accident;
· the latter accident was the more severe of the two;
· the injuries that arose from the second accident were more serious than that of the first accident'
· the annular tear in the lumbar disc may relate to either of the accidents; and
· he was unaware of any specific family or personal issue that may contribute to her current anxiety levels.
88. In a summary report dated 21 June 2001 (T198), Dr Dixon provided an overview of his various reviews during the previous nine months, and noted that at 19 June 2001 the Applicant had residual neck pain with shoulder brachialgia and residual low back pain with intermittent sciatica. In a further report dated 26 February 2002, Dr Dixon detailed further deterioration in the Applicant's symptomatology.
dr kuru - consultant spinal and orthopaedic surgeon
89. In his report dated 31 October 2000 (T154), Dr Kuru, having been requested to assess the Applicant's interscapular pain concluded that, in the absence of any significant neurological symptoms in the limbs, the interscapular problems were arising from ongoing minor degenerative change.
dr innes-brown - consultant orthopaedic surgeon
90. In a report dated 13 March 2001 (T179), Dr Innes-Brown detailed the history and examination, and investigations and treatments of the Applicant. Dr Innes-Brown concluded that:
· the Applicant was suffering from long standing cervical and lumbar spondylosis and that it was not related to any trauma;
· the symptoms in the Applicant's right shoulder were and remain in part due to the degenerative condition in her cervical spine and in part to rotator cuff tendinopathy, a degenerative condition due to constitutional factors;
· the wrenching trauma that the Applicant may have sustained in the motor vehicle accidents in January and September 1995 could have produced transient aggravation of her slowly progressive spondylosis, with resolution of the transient effects within days or at the most a few weeks; and
· the Applicant is not totally incapacitated for work.
91. In two further reports dated 31 July 2003 (Exhibits R4 and R5), Dr Innes-Brown having confirmed the Applicant's history and current complaints and reviewed the various diagnostic radiology examinations annexed to his report, affirmed his opinion that the long-standing cervical and lumbar spondylosis predated the Powerhouse Museum injury in 1989. Further, the radiology clearly delineates that both the cervical and lumbar spondylosis predated the two motor vehicle accidents. Dr Innes-Brown also considered that the Applicant had not suffered from an injury caused or materially contributed to by the first motor vehicle accident, as the degenerative spondylosis was longstanding at the time of the accident. He determined that the accident was clearly not severe, as the car could still be driven, and subsequent symptoms did not occur until some ten days later. Dr Innes-Brown also concluded that while the Applicant does have permanent impairments it is a result of factors unrelated to the first motor vehicle accident.
dr bookallil - consultant neurosurgeon
92. In his two reports dated 14 March 2003 (Exhibit R2), Dr Bookallil detailed the Applicant's clinical history, his findings at examination, the details of the various radiological investigations and concluded that:
· there was a background history of back symptoms prior to either of the motor vehicle accidents, as evidenced by the 1994 CT scan of the lumbar-spine;
· the Powerhouse Museum incident in 1989 involved only soft tissue injuries and that she became asymptomatic after the incident;
· she has degenerative disease in both the cervical and lumbar spines, and this was probably pre-existing prior to either of the two motor vehicle accidents;
· both motor vehicle accidents contributed to a major event to a severe exacerbation of the symptomatology;
· she is fit for the employment that she was doing at Centrelink;
· the effects of the medical condition have ceased, and the effects of the incident are permanent; and
· she does have five per cent permanent impairment of both her cervical spine and her thoraco lumbar spine, and that the 10 per cent whole person impairment of her neck and back are attributable to the January 1995 incident.
93. In a further expert report dated 10 May 2002 (Exhibit R3), Dr Bookallil made the following comments:
· both motor vehicle accidents contributed equally to her ongoing symptomatology;
· both motor vehicle accidents contributed equally to the development of the bulges found in the cervical MRI of 30 July 1996;
· the lumbar pain had been caused equally by the two motor vehicle accidents; and
· impairment of cervical and the thoraco lumbar spines are to be apportioned equally between the two motor vehicle accidents.
other evidence
94. On 4 July 1996 the Applicant issued a Section 50A Statement in relation to the second motor vehicle accident to the claims officer at NRMA Ltd (Exhibit R23).
95. The Applicant in a letter to Mr Morgan (NRMA) dated 13 January 1997 (Exhibit R24) detailed a series of responses to particular questions, and in so doing stated:
· her continuing injuries/disabilities were headaches, neck pain and back pain, which limit her abilities to undertake activities at home and in the work place;
· that walking causes sciatic pain;
· pain continued from the first motor vehicle accident in January 1995, with headaches, which pre-existed prior to the accident in January 1995 being stirred up by the accident;
· neck pain which radiates to shoulder and arms;
· the second motor vehicle accident in September 1995 caused low back pain and sciatica, which she never had before; and
· that before the second accident she was able to do some things around the home, but after the second motor vehicle accident, her husband has to do most things around the house.
96. In a letter from Firths Solicitors to the Applicant dated 3 December 1999 (Exhibit R25), it is noted:
· that the Powerhouse Museum accident in 1989 was the genesis of the Applicant’s headache problems;
· that the first motor vehicle accident caused injury to her neck and back, and there had been pre-existing problems with her back prior to the accident;
· that Dr Dixon in his first report got the whole thing wrong and stated that all the Applicant’s problems were due to injuries sustained in the first motor vehicle accident; and
· confirmation of what the Applicant had told him, namely the injuries sustained in the second motor vehicle accident were the most significant and were the cause of her incapacity for work and need for other assistance.
97. On 4 March 1999 the Applicant filed a Statement of Claim in respect of the motor vehicle accident of 15 September 1995 (Exhibit R26). In this claim the Applicant nominated the particulars of injuries to include:
· severe injury to the lower back requiring laminectomy and discectomy;
· aggravation of pre-existing injury to the neck,
· injury to the jaw,
· L4/5 disc rupture,
· nerve root canal stenosis,
· C3/4, C4/5, C5/6 disc rupture,
· C6/7 disc ruptures requiring anterior cervical fusion, and
· rupture of the lower three lumbar discs.
The Applicant also nominated the following disabilities:
· pain, stiffness and loss of movement in the back,
· pain, stiffness and loss of movement in the neck,
· right and left-sided sciatica,
· headaches, migraine headaches,
· cervical and lumbar scars,
· difficulty standing, sitting for long periods,
· inability to work more than two days a week,
· difficulty performing many of the domestic duties,
· difficulty sleeping,
· pain and stiffness in jaw,
· interference with sexual relations,
· damage to vocal cords and change in speech.
98. In this claim the Applicant sought the following:
· loss of earnings
· loss of future earnings
· loss of superannuation
· future medical expenses
· domestic assistance
· home/handyman/gardening services
· future home/handyman/gardening services.
99. On 1 December 1999, Abbott Tout Solicitors served an Offer of Compromise on the Applicant's solicitors (Exhibit R37), which was calculated as follows:
Non economic loss (37 per cent) $101,010
Past Medical and OP $ 35,000
Past loss of earning capacity $ 34,000
Future loss of earning capacity $130.000
Past and future domestic assistance $ 50,000
Total $350,010
100. Terms of settlement, by consent and without admissions to the above amount were issued by the District court of New South Wales on 9 June 2000 (Exhibit R28).
101. In a Statement of Claim lodged in the Supreme Court of Queensland (N011647 of 1997) (Exhibit R31), the Applicant detailed the particulars of injuries sustained as a consequence of the first motor vehicle accident to include:
· direct contusion to the lower back
· whiplash injury to the cervical spine
· strain of pelvic girdle soft tissue structures
· bruise to right calf
· multiple soft tissue injuries to the left shoulder, hip, left leg, lumbo-sacral spine and right wrist.
102. In the same claim the Applicant listed her disabilities to include:
· pain, suffering and inconvenience
· suffers and will continue to suffer neck pain and restriction of range of movement in the neck
· occipital headaches
· pain in the right wrist with pins and needles in the middle and ring fingers, lower back and left buttock
· torsional dysfunction of the pelvic girdle
· tenderness of the lumbo paravertabral extensors left sacroiliac joint
· has suffered left sciatic pain
· has required medical and physiotherapy treatment
· has required medication and will continue to do so
· has suffered economic loss and is likely to suffer economic loss in the future
· has lost some of the amenities of life.
103. In a ’Statement of Loss and Damage’ filed in the same matter (Exhibit R30) the Applicant detailed particulars of her disabilities from the first motor vehicle accident to include, in addition to what was listed in the previous paragraph:
· temporal pain
· para-vertebral pain
· minor disc bulging C2/3, C3/4, C4/5
· disc protrusions at C5/6, C6/7
· thecal sac indented at C5/6, C6.7.
104. The Applicant also claimed damages for:
· future economic loss
· pain and suffering arising from:
(a) injuries - including a subsequent anterior fusion which damaged a vocal cord
(b) physiotherapy
(c) psychological/psychiatric - continued pain, depression and affected marital relations
(d) residual disability
· loss of amenities of life:
(a) physical
(b) social
(c) recreational
· future household assistance
· future medication and treatment
· future operation expenses.
submissions
the Applicant
105. Counsel submitted that the Applicant was entitled to compensation for weekly incapacity payments pursuant to section 19 of the Act, treatment expenses pursuant to section 16 of the Act since 10 May 2001 and compensation for permanent impairment pursuant to sections 24 and 27 of the Act. In so stating counsel contended that compensation for the incapacities arising from the Applicant's injuries as a consequence of the motor vehicle accident of 6 January 1995 has not been resolved, despite the $350,000 settlement in relation to the second motor vehicle accident on 15 September 1995.
106. Counsel contended that both accidents played a significant role in the Applicant's ongoing disabilities, with the first accident on 6 January 1995 having a major effect on the Applicant's neck, with symptoms and disability from that neck injury continuing. Regarding the second accident on 15 September 1995, Counsel contended that the Applicant suffered aggravation to an existing neck injury and a major injury to the lower back.
107. Counsel contended that while there may be some overlapping of disabilities arising from the two motor vehicle accidents, and the settlement of the second accident related to partial incapacity (past and future) and did not address total incapacity. Future medical expenses as indicated as being necessary by Drs Dixon and Bookallil were not addressed, particularly in the light of Dr Bookallil's opinion that both accidents contributed equally to the Applicant's ongoing symptomatology. Counsel also contended that the Applicant's depressive state had been aggravated by the two accidents as noted by Drs Learoyd and Vickery.
108. Counsel submitted that in relation to permanent impairment, Dr Dixon opined that the Applicant's whole person impairment was greater than ten per cent in relation to the neck injury, with emphasis on causation being the first motor vehicle accident, while Dr Bookallil considered a ten per cent whole person impairment, derived from a five per cent impairment to each of the neck and back permanent impairments.
respondent
109. Counsel for the Respondent submitted that a close examination of all the material before the Tribunal in the matter would indicate that the settlement in July 2000 in relation to the second motor vehicle accident puts an end to any further compensation being paid to the Applicant. In so stating, Counsel contended that pursuant to section 48(4) of the Act, the matter of further compensation was at an end, as the offer of compromise and settlement of July 2000 took into account any injuries and disabilities that may have arisen as a consequence of the first motor vehicle accident. Indeed such injuries and disabilities were incorporated in the Applicant's Statement of Claim leading to the settlement in July 2000.
110. In so stating Counsel was particular in dealing with each of the many relevant medical opinions and further noted that any issue of a left shoulder disability arose much later after the second motor vehicle accident.
consideration and findings
111. The Tribunal has been particular in detailing the chronology of events and issues in this matter and has paid particular attention to the clinical history presented by the Applicant to the Tribunal and to the many clinicians over time. In so doing the Tribunal has been impressed by the Applicant's relative consistency in history presentation. While noting some variance, eg. the onset of left-sided sciatica, in symptomatology, the Tribunal over all concludes that the Applicant has presented the history of events and outcomes in an appropriate fashion given the continuing clinical circumstances with which she has to deal with on a daily basis.
112. The Tribunal, having reviewed all the material and in particular the many medical opinions in this matter, makes the following finding of facts:
(a)The Applicant suffered an injury at work at the Powerhouse Museum in 1989 and suffered neck symptoms and headaches for a period of three years after which the symptoms settled prior to the first motor vehicle accident, with the headaches less frequent and intense.
(b)The Applicant suffered degenerative changes to both her cervical spine and lumbar spine prior to the motor vehicle accident of 6 January 1995 (radiology of 1 February 1994, February 1995 and opinions of Drs Wilson, Dixon, Innes-Brown, Bryan, Bookallil, and the treatment report of Mr Jansen).
(c)The Applicant suffered depression for many years prior to the motor vehicle accident of 6 January 1995 (Applicant, Dr Learoyd, Dr Sim).
(d)The Applicant was involved in a motor vehicle accident on 6 January 1995 and suffered an injury (aggravation pre-existing cervical and lumbar spondylosis) which involved symptoms associated with neck (pain), lower back (pain), right calf (pain), head (ache), left shoulder (pain), left hip/leg (pain), pain radiating down left leg (Dr Sim), left buttock pain (Dr Wilson), Ms Reed), right wrist (Ms Reed, Mr Chiang) and some symptoms appearing after a ten day delay (Applicant).
(e)The Applicant continued to experience symptoms of neck pain, low back pain and headaches prior to the second motor vehicle accident on 15 September 1995 (Drs Bryan, Berry).
(f)The first motor vehicle accident seemed to be of less intensity than the second motor vehicle accident (amount of damage, car durability, Applicant's response, opinion of Drs Dixon, Innes-Brown, Bryan, Berry).
(g)The Applicant had not suffered a serious injury from the first motor vehicle accident (Dr Innes-Brown. Mr Wilson, Dr Berry, Dr Goldstein), but each accident contributed to subsequent injuries, disabilities and impairments (Drs Bookallil, Ghabrial, Dixon).
(h)The Applicant was involved in a second motor vehicle accident on 15 September 1995, suffering injuries (aggravation of existing cervical and lumbar spondylosis) with immediate symptoms of pain in her neck left hand, right buttock (Ambulance report) and later symptoms of left sciatic pain (Dr Tey) and of increased low back pain, neck pain and headaches (all opinions).
(i)The Applicant's disabilities have continued to evolve over time. Lumbar laminectomy and discectomy was undertaken at the L4/5 level in August 1997 and an anterior cervical fusion was undertaken at the level of C5/6 and C6/7 in November 1997.
(j)The Applicant continues to experience symptoms relating to the neck and lumbar spine pain, interscapular pain, depression and headaches, sciatica.
113. The Tribunal also notes that there is a difference of specialist opinion as to causation, namely:
· The two motor vehicle accidents aggravated pre-existing conditions, namely cervical and lumbar spondylosis (constitutional degenerative changes) and a pre-existing headache condition (Drs Dixon, Bryan, Bookallil) with the second motor vehicle accident aggravating the injuries caused by the first (Dr Dixon). Alternatively each accident contributed equally to the continuing disabilities (Dr Bookallil), or each accident contributed to a particular injury or a subsequent on-going disability (Dr Ghabrial) or the second accident being the causative event (Dr Goldstein) or was more significant (Dr Berry).
· The contrary view was that the two accidents had no relationship to the on-going symptomatology (Dr Dowda) or the two motor vehicle accidents caused a temporary aggravation of pre-existing lumbar and cervical spondylosis, with the Applicant not suffering an injury, caused or materially contributed by the first motor vehicle accident (Dr Innes-Brown).
114. The Tribunal also notes the legislative framework nominated in section 48(4) of the Act:
"(4)Compensation is not payable under this Act to the employee in respect of the `injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be."
115. The Tribunal is mindful that the injury from which the employee receives damages must be the same injury as that for which compensation is payable (Telstra Corporation Limited v Barrow (1994) 35 ALD 461). Further, that there is a separate entitlement to compensation for incapacity in respect of each of the injuries which caused or materially contributed to the incapacity (Slattery v Comcare (1996) 70 FCR 131), The Tribunal also notes the passage from McIntyre v Comcare (1998) 50 ALD 416 were Madgwick J states:
"Section 48 did not ask whether an employee had previously recovered damages in respect of incapacity now asserted to have been due to the injury in respect of which it was sought to obtain compensation. It did not need to: only incapacity resulting from a qualifying injury may be compensated. If the incapacity was attributable to another injury (whether or not damages have been had in respect of it) and not to that in respect of which the claim is made, it will not be compensated as the result of that injury."
116. The Tribunal, in noting that the Applicant had suffered three injuries, one arising from the Powerhouse Museum fall in 1989 and the other two from motor vehicle accidents in 1995, notes that any incapacity arising from the 1989 injuries was minimal prior to the accident on 6 January 1995. The Tribunal, on medical, radiological and psychiatric opinion concludes that the Applicant had pre-existing conditions of cervical and lumbar degenerative spondylosis and depression prior to the accident of 6 January 1995. The Tribunal further concludes that on the evidence before it the Applicant had no incapacity prior to the accident of 6 January 1995, and that she had minimal symptomatology at that time.
117. As a consequence of the accident of 6 January 1995, the Tribunal concludes that the Applicant suffered an aggravation of the pre-existing conditions of cervical and lumbar spondylosis, resulting in symptoms of headache, cervical pain, low back pain extending into the left buttock and intermittent pain in other areas, with symptoms of neck pain, low back pain and headache continuing up to the time of the second accident on 15 September 1995.
118. In relation to the accident of 6 January 1995, the Tribunal notes that the first motor vehicle accident seemed to be of less intensity than the second, and that the incapacities arising from the injuries caused by the first accident related to pain arising from the cervical and lumbar regions and headache. In so stating the Tribunal relies on the opinions of Drs Dixon, Innes-Brown, Bryan and Berry. The Tribunal further notes the Applicant's ability to continue working during that period, with occasional days off work and intermittent periods of physiotherapy. This, in the Tribunal's view, is consistent with the Applicant having not suffered a severe injury at that time, a view in turn held by Drs Innes-Brown, Wilson, Berry and Goldstein.
119. The Tribunal in noting the nature and extent of the accident of 15 September 1995 concludes that the injuries received on this occasion were an aggravation of the pre-existing cervical and lumbar spondylosis, which had been subject to the original aggravation some months earlier, with evidence that symptomatology arising from that aggravation was still continuing as evidenced by pain in the cervical and lumbar regions as well as headache. In essence the Tribunal concludes that there was an aggravation upon an existing aggravation, with the subsequent aggravation causing an increase in intensity of symptoms of pain in the cervical and lumbar regions, headache and the development over time of left and right sciatica and left shoulder pain. Further, the Tribunal concludes that any incapacity remaining from the first motor vehicle accident was subsumed into the incapacities arising as a result of the second motor vehicle accident and that to draw a dividing line as to which consequences and which incapacity arose from each injury would be a speculative activity.
120. The Tribunal, in noting the subsequent history of deterioration, operative intervention and continuing symptomatology, and the incapacities arising from such, concludes that such incapacities are a consequence of injuries sustained within the context of the second motor vehicle accident. In so far as depressive symptomatology and associated incapacity, the Tribunal concludes that the pain associated with continuing disability arising from the second motor vehicle accident and operative interventions contribute to depressive symptomatology. However, the depressive illness has been longstanding and there were other significant factors giving rise to causation and continuance of depressive symptomatology.
121. In noting that apart from the opinion of Dr Ghabrial, and an earlier but no longer held position of Dr Dixon that the first motor vehicle accident caused injury primarily to the cervical spine, and the opinion of Dr Bookallil that each motor vehicle accident contributed equally to the development of the cervical bulges, the lumbar pain and the cervical and thoraco-lumbar impairments, the Tribunal concludes that incapacities arising from injuries from the first motor vehicle accident were minimal and such continuing minimal incapacities were subsumed within the ambit of the second motor vehicle accident. In so stating it is evident to the Tribunal that the second motor vehicle accident was a significant accident and while Drs Dixon, Bryan and Bookallil were of the opinion that each accident aggravated pre-existing conditions, the Tribunal is unable to identify any material which would allow the Tribunal to define on the balance of probabilities, incapacities that arose solely as a consequence of or were attributable to the first motor vehicle accident. Further, the Tribunal, while noting the injury and incapacities arising from the first motor vehicle accident, concludes that the incapacities arising from the second motor vehicle accident subsume and incorporate any incapacities arising from the first motor vehicle accident.
122. The Tribunal, having noted the injuries, disabilities and incapacities that have arisen as a consequence of the second motor vehicle accident is satisfied that such injuries, disabilities and incapacity represents the merged resulting incapacities arising from both motor vehicle injuries.
123. Further, the Tribunal having examined all the material leading to the settlement of July 2000, is satisfied that the settlement dealt with the recovery of damages for the incapacity arising from the injuries occasioned during the second motor vehicle accident, and that in essence the latter incapacities arising from these injuries incorporated the earlier incapacities arising from the first motor vehicle accident injury. The Tribunal would also note that the similarity of injury and subsequent incapacities which arise from the two motor vehicle accidents is a qualitative as opposed to a quantitative assessment, and any division of incapacity between the two injuries, would, as the Tribunal has already indicated, be a speculative exercise. Further, the Tribunal would indicate that such an exercise would not negate the settlement deed that resulted from a process in which the Applicant claimed the totality of her incapacities, no matter upon which motor vehicle injury such foundations were placed. Further, the Tribunal would indicate that incapacities arising from injuries received during the first motor vehicle accident had not, on the weight of the medical evidence, established a distinct and sufficient identity to the satisfaction of the Tribunal by the time of the second motor vehicle accident. Accordingly, the Tribunal concludes that whatever, if any, incapacities arose as a consequence of injuries received as a result of the first motor vehicle accident, such incapacities were overtaken, merged or subsumed by the incapacities arising from injuries received in the second motor vehicle accident.
124. The Tribunal concludes that all of the Applicant's identified incapacities have been subsumed or incorporated within the incapacities attributable to injuries received as a result of the second motor vehicle accident, for which the Applicant has recovered damages.
125. Accordingly, pursuant to section 48(4) of the Act, no further compensation is payable to the Applicant for incapacities arising from injuries resulting from either motor vehicle accident.
126. The Tribunal determines that the three decisions under review be affirmed.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: A. Krilis
AssociateDate/s of Hearing 17 and 18 September 2003
Date of Decision 14 November 2003
Counsel for the Applicant Mr J Graham
Solicitor for the Applicant Mr S McCarthy
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms M Taplin
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