Bear and Comcare

[2007] AATA 1230

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1230

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/188

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN BEAR

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M. Miller AO, Member

Date13 April 2007

PlaceCanberra

Decision The decision under review is affirmed.

............(Signed)......................

Mr S. Webb, Presiding Member

CATCHWORDS

COMPENSATION - medical treatment - chiropractic treatment and massage therapy - symptoms being treated not related to compensable injury - decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 124

REASONS FOR DECISION

13 April 2007 Mr S. Webb, Member
Dr M. Miller AO, Member   

1.      John Bear injured his neck on 1 December 1983 while pressing weights in a gym at the place of his employment.  Comcare accepted liability to compensate Mr Bear for that injury.  Subsequently Mr Bear was paid compensation for medical treatment, principally in the form of chiropractic treatment and massage therapy he obtained in relation to the injury until 23 February 2006.  Mr Bear is unhappy with the decision to cease payment of compensation for medical treatment in relation to his injury, as affirmed on reconsideration.

2.      There are two issues for determination by the Tribunal:

(a)Is Mr Bear entitled to compensation for medical treatment in relation to his 1983 neck injury from 23 February 2006 to the present?  And if so

(b)Is the treatment he obtained in this period reasonable medical treatment in relation to the injury?

Is Mr Bear entitled to compensation for medical treatment in relation to his 1983 neck injury from 23 February 2006 to the present? 

3.      Mr Bear asserts that his neck injury has not entirely resolved at any time from the date of injury to the present.  He says that he has experienced “unchanging signs and symptoms in [his] cervical spine since the injury”[1].  The symptoms, he asserts, include fluctuating levels of pain (from mild discomfort to severe pain at or about the C5/6 level), stiffness, muscle tightness and episodes in which his neck “goes out” and his symptoms flare-up, especially after periods in which his neck is in one position for a long period, during sleep or at the cinema, for example.  Mr Bear maintains that the regular chiropractic treatment and massage therapy alleviates these symptoms and reduces the frequency of episodes in which his symptoms flare-up.  In Mr Bear’s submission the symptoms in his neck have not changed over time, at least to the extent that it could reasonably be found that the effects of his injury have ceased.  On that basis he says that he is entitled to payment of compensation for medical treatment in relation to his injury.

[1] Exhibit A1

4.      We do not agree.

5.      Under the Safety, Rehabilitation and Compensation Act 1988 (the Act) Comcare is liable to pay compensation in respect of an injury that was compensable under legislation in force prior to the commencing day on 1 December 1988 (s.124).  Thus, in respect of a compensable injury before the commencing day, Comcare is liable to pay compensation to an injured employee for reasonable medical treatment obtained in relation to an injury (s.16).  ‘Injury’ is defined to include a physical injury in the course of employment or a disease that was contributed to in a material degree by the employment (s.4).

6.      We are satisfied that Mr Bear’s neck symptoms from 23 February 2006 to the present are not related to the injury he suffered on 1 December 1983. 

7.      We make the following findings:

(a)Mr Bear has been involved in Jujitsu training for many years, including from 1983 to the present.

(b)Mr Bear consulted Mr Badham, his treating chiropractor, “for maintenance” approximately twice per year prior to 1983.

(c)On 30 April 1981 Mr Bear was a passenger in a vehicle with no head rest that was involved in a rear impact motor vehicle accident.  Dr Voon noted “mid dorsal spinal tenderness.  No L.O.C.  Stay home yesterday”[2].

[2] Exhibit R2, clinical note

(d)On 25 November 1983 Mr Bear obtained treatment from Mr Badham in relation to “neck trouble”[3].

[3] Mr Badham – oral evidence; Exhibit R2, clinical note

(e)On 1 December 1983 Mr Bear sustained a soft tissue injury to his neck in the manner he described.  We accept that he experienced pain initially on the left side at or about the C5/6 level.

(f)He consulted Dr Voon, his general practitioner, on 5 December 1983 and was referred for physiotherapy and acupuncture treatment.

(g)On 13 December 1983 an X-ray of Mr Bear’s cervical spine was taken.  Neither the radiologist’s report nor the X-ray film is in evidence.  However, we accept Professor Barnsley’s evidence that the X-ray, which he viewed, demonstrate degenerative changes at the C2/3 and possibly the C3/4 levels in Mr Bear’s spine at that time[4].

(h)On 27 March 1984 Dr Voon reported that Mr Bear’s neck symptoms had not responded to physiotherapy, but intensive acupuncture therapy from 21 to 24 February 1984 “relieved his symptoms greatly with normal neck movements”[5].

(i)On or about 6 March 1984 Mr Bear experienced further neck symptoms “after a twist in bed” and he responded to acupressure therapy with a few days off work[6].

(j)Mr Bear gave evidence, which we accept, that thereafter he experienced periods of up to six months in which he was relatively symptom-free, with only mild discomfort in his neck.  His evidence was that he would experience episodes in which his neck symptoms (pain and hypomobility) would flare-up.  By his own account those episodes would commonly occur during sleep, especially in hotels, aircraft, on trains or in cars, or if his head was held in one position for a long period, for example at the cinema, or watching television.  Mr Bear accepted that such episodes occurred following eleven long-haul over seas flights and a car trip to Ballina.

(k)In 1986 an X-ray was taken of Mr Bear’s cervical spine.  Neither the radiologist’s report nor the film is in evidence.  We accept Professor Barnsley’s report that this X-ray, which he viewed, demonstrated narrowing of the C5/6 disc space[7].

(l)Mr Bear’s neck symptoms were exacerbated on or about 23 April 1987 when Mr Bear obtained treatment from Mr Badham, who noted “neck trouble after push from behind” during Jujitsu training[8].

(m)On 27 June 1988 further X-rays of Mr Bear’s cervical spine were taken. Neither the radiologist’s report nor the films are in evidence.  Professor Barnsley viewed the films of this X-ray and reported that the films demonstrated “some subluxation of C4 on 5 and further narrowing of the disc space at C5/6”[9].

(n)On 19 July 1993 further X-rays were taken of Mr Bear’s cervical spine. Neither the radiologist’s report nor the film is in evidence.  Mr Badham reported “early degenerative developments at the C4/5 and C5/6 levels, which were not noticeable on the 1988 X-rays”[10].  Professor Barnsley viewed these X-rays and reported that they showed “definite narrowing at the C5/6 joint spaces and some osteoarthritis of several of the zygapophyseal joints”[11].

(o)Mr Bear’s neck symptoms were exacerbated on or about 3 February 1998 when he obtained treatment from Mr Badham for neck symptoms relating to a ‘hold’ during Jujitsu training[12].

[4] Exhibit R1, p2 refers

[5] T11 folio 23

[6] Dr Voon – T11 folio 23

[7] Exhibit R1, p2

[8] Exhibit R2, clinical note

[9] Exhibit R1, p3

[10] Exhibit R2, letter dated 1 September 1993

[11] Exhibit R1, p3

[12] Exhibit R2, clinical note

8.      We note the evidence of Mr Badham, Dr Howse and Dr Voon:  Mr Bear’s treating practitioners.  However, we prefer the evidence of Professor Barnsley concerning the interpretation of radiological investigations and X-ray films of Mr Bear’s cervical spine.  Professor Barnsley is an appropriately qualified specialist with particular expertise concerning cervical spine injury.  Dr Howse gave evidence that, in his opinion, Mr Bear sustained an annular tear to his C5/6 disc as a result of the injury on 1 December 1983.  However that opinion is not supported by any objective evidence.  We note and accept Professor Barnsley’s evidence that it is not possible to identify an annular tear by reference to X-ray films as such soft tissue damage does not appear in an X-ray (an MRI scan is required). 

9.      Professor Barnsley’s evidence was that an underlying degenerative osteoarthritic condition was apparent on X-ray of Mr Bear’s cervical spine in December 1983 and that the underlying condition is not attributable to his injury on 1 December 1983.  Dr Howse accepted that degenerative changes at the C5/6 level may be apparent on the X-rays from December 1983.  On that basis we are reasonably satisfied that Mr Bear had a degenerative condition in his cervical spine prior to 1 December 1983, and so find.

10.     From the evidence of Mr Badham it appears more likely than not that Mr Bear experienced symptoms in his neck at various times prior to 1 December 1983, including on 25 November 1983.  We are reasonably satisfied that these periodic symptoms may be related to the degenerative condition in Mr Bear’s neck prior to 1 December 1983.  It cannot be said, therefore, that his degenerative neck condition was asymptomatic prior to 1 December 1983.

11.     Nevertheless, we are satisfied that Mr Bear aggravated his degenerative neck condition on 1 December 1983.  The contemporaneous evidence of Dr Voon is that Mr Bear’s symptoms largely resolved with intensive acupuncture treatment by 24 February 1984.  We accept that evidence and so find.  Dr Voon reported that Mr Bear was seen on 6 March 1984 in relation to a “further neck problem after a twist in bed”[13].  It is unclear precisely what occurred to Mr Bear’s neck while he was in bed on or about 5 March 1984.  By his own account it was likely that whatever occurred happened while he was asleep and he awoke with a sore neck, but he could not clearly recall.  After the passage of so many years that is not surprising.  However, it appears more likely than not that Mr Bear re-aggravated his degenerative neck condition in his sleep at that time.  Dr Voon’s contemporaneous evidence reveals that he obtained and responded to acupressure treatment with a few days off work.

[13] T11 folio 23

12.     We are reasonably satisfied and find that since the injury on 1 December 1983 there have been a number of incidents in which Mr Bear has re-aggravated his degenerative neck condition.  These include incidents related to sleeping (including that described above), travel (on aeroplanes and in cars), Jujitsu training and other circumstances which Mr Bear was able to describe in his evidence.  We are satisfied that these incidents and the increased neck symptoms in relation to which Mr Bear obtained treatment are not related to the injury on 1 December 1983.  Each constitutes a fresh aggravation of his degenerative neck condition.  Each is in effect a novus actus interveniens or a fresh occurrence that distinguishes his subsequent symptoms from the earlier injury in December 1983.

13.     Thus it follows that we are reasonably satisfied that the medical treatment Mr Bear obtained from 23 February 2006 was not medical treatment in relation to the injury he suffered on 1 December 1983.  Mr Bear’s strong assertion that he has experienced continuing but fluctuating symptoms from 1 December 1983 to the present day does not upset that finding.  Simply put, it may be true that Mr Bear has experienced fluctuating symptoms since his injury in December 1983, but those symptoms, progressively, relate to the subsequent aggravating incidents that have occurred to the extent that it cannot now be said that the aggravation injury he sustained in December 1983 was materially contributing to his symptoms or required medical treatment on 23 February 2006, or thereafter to the present.  We are satisfied that it was not and so find.

14.     That being so, it is not necessary to proceed further to determine whether the chiropractic treatment and massage therapy Mr Bear obtained after 23 February 2006 was medical treatment that it was reasonable for him to obtain in the circumstances.

decision

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member and Dr Miller, Member.

Signed:       ...........(Peter Strauch)...............................
  Associate

Date of Hearing  3-4 April 2007
Date of Decision  13 April 2007
Applicant  Self
Representative for the Respondent        Peter Woulfe
  Dibbs Abbott Stillman