Botfield and Comcare
[2006] AATA 426
•17 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 426
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2005/134
) No N2005/588
GENERAL ADMINISTRATIVE DIVISION ) No N2006/438 Re DAVID BOTFIELD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member MD Allen
Dr J D Campbell, MemberDate17 May 2006
PlaceSydney
Decision The decisions under review are affirmed.
(Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant sustained injuries in a motor vehicle accident while on his way to work – liability not in dispute – whether on-going incapacities from injuries have resulted in permanent impairment - lack of objective evidence in support of Applicant’s claims of pain and incapacity – Tribunal finds Applicant’s injuries were of a musculo-ligamentous nature and any impairment presently suffered by Applicant cannot be attributed to his motor vehicle accident.
Safety, Rehabilitation and Compensation Act 1988; ss 14, 16, 19, 24, 27
REASONS FOR DECISION
Senior Member M D Allen
Dr J D Campbell, Member1. The hearing in this matter originally concerned four applications for review namely:
N2003/571 seeking review of a decision made 26 November 2002 that allowed for payment of five only physiotherapy sessions until 3 January 2003;
N2005/134 seeking review of a decision made 13 December 2004 affirming a prior determination that the Respondent was not liable to pay compensation for permanent impairment pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”);
N2005/588 seeking review of a decision made 21 April 2005 denying liability for the effects of an “aggravation of degeneration of the cervical intervertebral disc (sic) and disc degeneration L4-5/L5-S1” and denying payment of compensation pursuant to ss 16 and 19 of the Act;
N2006/438 seeking review of a decision made 5 April 2006 affirming a prior determination that the applicant was not entitled to payment for permanent impairment of the lower limbs pursuant to ss 24 and 27 of the Act.
2. During the course of the proceedings the parties reached an agreement pursuant to s 42(C) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) regarding matter N2003/571, therefore we do not deal with that decision in these reasons but the documents prepared in that matter pursuant to s 37 of the AAT Act remain relevant to the other decisions subject to review.
3. There is no dispute that the Respondent is liable pursuant to s 14 of the Act to the Applicant for injuries sustained in a motor vehicle accident on 30 January 2002 whilst the Applicant was on his way to work.
4. In these proceedings the Applicant claimed that he had on-going incapacity as a result of the injuries sustained in that motor vehicle accident and that those injuries had led to permanent impairment.
5. The Applicant’s evidence was that after the motor vehicle accident he had proceeded to his place of work but that evening had attended his general practitioner at the Maroubra Medical Centre who ordered an X-ray and CT scan of his neck and provided a medical certificate authorising his return to work and prescribing physiotherapy.
6. A CT scan of the Applicant’s neck was undertaken on 6 February 2002 and the report of that scan reads:
“No significant disc protrusion was demonstrated at C3/4, C4/5, C5/6 or C6/7. Although visualisation was suboptimal at C7/T1, no disc protrusion could be identified at this level.
The vertebral bodies and posterior elements appear intact. No fracture was identified. In particular, the C5 vertebral body appears intact. There is no bony encroachment from the central canal. Bony dimensions of the central canal were within normal limits. The facet joints and uncovertebral joints define normally.
…
CONCLUSION
No fracture or bony abnormality noted. No soft tissue disc protrusion has been demonstrated.”
7. The Applicant’s initial claim for compensation lodged on 7 February 2002 refers to “bruising, contusions, back and neck pain, possible neck fracture”.
8. The Applicant undertook physiotherapy but this did not assist and neck pain continued. The Applicant also began to experience pain in his right shoulder radiating down his right arm, in his lower right back and hip and buttock radiating down his right leg.
9. The Applicant continued to have physiotherapy treatment but a file memorandum of 10 May 2002 indicates that he felt that that treatment had reached its useful point. On 12 June 2002 he attended Dr Billett, Consultant Orthopaedic Surgeon, at the request of the Respondent for assessment and a report.
10. In his report to the Respondent dated 18 June 2002, Dr Billett states inter alia:
“…
Current status
The pain in his neck occurs on an intermittent basis, only when he rotates his neck. There is no radiating pain or paraesthesia in his arms. The pain to the right of his lower lumbar region remains on a constant daily basis. He initially experienced pain down his right let to his calf, with paraesthesia, but these symptoms have been absent over the past few weeks.
…
Cervical Spine:
There was no abnormal spinal curvature or muscle spasm noted. There was no complaint of tenderness during palpation or spinal percussion. He displayed a full active range of neck movements and he complained of discomfort during lateral flexion and rotation.
…
Lumbo-Sacral Spine:
… During palpation he complained of tenderness to the right of the L5/S1 level. There was no complaint of tenderness during spinal percussion.
Mr Botfield displayed a full active range of spinal movements and he complained of discomfort at extremes of rotation, lateral flexion and on regaining the erect posture after flexion.
Lower Limbs:
…
Straight leg raising and seated straight leg raising reached 90°, with the complaint of mild discomfort. Femoral nerve stretch testing was negative. Muscle powers were normal, sensation was intact and reflexes were present bilaterally and equal.
INVESTIGATIONS:
The following X-rays have been viewed:
Pelvis (AP) & Right Hip (lateral) (dated 9 February 2002): No abnormality is noted.
Lumbar Spine (dated 19 February 2002): The disc spaces are well maintained. There are minor degenerative changes at the facet joints at the L5/S1 level.
Cervical Spine (flexion and extension views) (dated 6 February 2002): There is no definite fracture noted. The disc spaces are well maintained. There are minor degenerative changes in the facet joints and uncovertebral joints from the C5 to C7 levels.
CT Scan – Cervical Spine (dated 6 February 2002): No fracture is noted and there is no disc protrusion. There are minor degenerative changes at the facet joints from the C5 to C7 levels.
SUMMARY AND ASSESSMENT:
Following the incident on 30 January 2002, Mr Botfield experienced pain in his neck and lumbar region.
…
As a result of the incident of 30 January 2002, Mr Botfield sustained a soft tissue injury to his neck and lumbar region, with probable aggravation of the minor degenerative changes that exist in the facet joints in both areas.
Mr Botfield still has the minor effects of the aggravation. I consider that the soft tissue injury has now resolved.
…
Mr Botfield has some minor degenerative changes in the facet joints of his lumbar region and in his cervical region. These changes did not occur during the course of his employment or as a result of the accident.
However, the motor vehicle accident has resulted in these changes becoming symptomatic. …
…
His symptoms are still attributable to the aggravation that made the degenerative changes symptomatic and, thus, are still referable to the motor vehicle accident.
…
I would expect the effects of the aggravation that made the degenerative changes symptomatic in relation to his neck and back to resolve and thereafter, the restrictions should be lifted.”
11. The Applicant’s evidence is that the effects of the aggravation have not resolved. His evidence was that currently, he has pain in his lower back which radiates down his right leg and he also experiences constant cramping in the leg. If he sits or stands for long periods he gets a shooting pain down the leg to the heel and up his back which will take one to two days to settle. His neck is still stiff although he has a special pillow which makes it easier to sleep. If he moves his neck suddenly he experiences pain. He has a pain in his leg continually, and a dull ache in his back which is always there.
12. In particular, the Applicant stated that he has difficulty with stairs as he has to use his leg to push upwards. If he has to use stairs often he aggravates the leg pain which then lasts for a few days.
13. Cross-examined, the Applicant conceded that now he rarely attends upon medical practitioners. However we accept his explanation that as at present, he feels there is little they can do for his condition, there is no point in such attendances. Likewise we accept ailments do wax and wain and that the non-reporting of some symptoms to some examining medical practitioners is a genuine oversight by the Applicant on the day in question.
14. The major difficulty in accepting the Applicant’s case is that there is no objective evidence by way of imaging to support his claims of pain and incapacity. This fact has however not deterred some medical practitioners, in particular Dr Marnie, from diagnosing continuing incapacity.
15. Given the lack of objective signs, it is therefore important to have regard to the various specialist medical reports in particular, those reports obtained shortly after the motor vehicle accident or for the purposes of treatment rather than medico-legal purposes.
16. The Applicant was referred to Dr Stanford, Orthopaedic Surgeon, by his then general practitioner Dr Ng. In his report of 19 June 2002 Dr Stanford records, “he denies any symptoms in his legs”. Dr Stanford went on to state in his report:
“…
Assessment
Chronic low back pain following a motor vehicle accident with no demonstrable pathology. Probable non specific soft tissue injury, lower back
Management
David will benefit most from continuing physiotherapy directed at strengthening his abdominal and extensor musculature. … I have encouraged him to take up walking again and he should do this on a daily basis for at least half an hour. He could alternate this with some swimming. I do not believe that there is any missed major diagnosis and David does not need any interventional treatment such as surgery.
…”
17. On 11 July 2002 Dr Billett in a supplementary report to the Respondent stated:
“…
The incident resulted in a soft tissue injury to his neck and lumbar region, with probable aggravation of underlying pre-existing degenerative changes. At the time of my assessment in June 2002 Mr Botfield still had some of the effects of the aggravation that made the degenerative changes in his neck and lumbar region symptomatic.
…
I would expect the aggravation to resolve over the next ten weeks.
…”
18. Dr Ng referred the Applicant to Dr Best a specialist sports physician with regard to the Applicant’s right hip and buttock pain. Dr Best requested an MRI examination and the report of that imaging reads:
“….
The right hip demonstrates a normal appearance. There is no evidence of an abnormal volume of fluid within the right hip and the acetabular labrum is intact. The femoral head demonstrates normal signal.
The gluteal muscles and common hamstring attachment demonstrate a normal appearance.
There is no evidence of an inflamed ischial tuberosity bursa.
…
CONCLUSION – No abnormality of the right hip identified. No evidence of tendonitis of the gluteal or proximal hamstring region. The ischial tuberosity bursa is not inflamed currently.
….”
19. Following the MRI scan Dr Best reported:
“…
The MRI excludes a major structural deficit but his clinical signs and history strongly supports a combination of gluteal dysfunction with previous ischial tuberosity bursitis
…
I believe that David’s problems require the guidance of a physiotherapist and I suggest that he see Mark Kenna at Bondi Junction who has expertise with these disorders. He would not require any lengthy treatment as such, but rather he will require the guidance and prescription of an exercise regime. …
…”
20. On 20 December 2002, Dr Best reported an improvement in the Applicant’s clinical condition but postulated that if pain continued an injection of a local anaesthetic and a corticosteroid. Apparently these procedures were carried out as on 17 March 2003 Dr Best reported:
“As we discussed today, David continues to have right pelvic and hip girdle pain. Most of his pain today is localised to the low lumbar and sacroiliac regions. His buttock pain is less severe. …
From today’s examination, the previous sites of the cortisone injection have indicated that the inflammation is less severe in the gluteal region. Having said this, I am extremely disappointed that he has had no further physiotherapy.
At this point, I believe we should continue work towards a diagnosis of mechanical lumbar pain with secondary gluteal dysfunction. I believe that he should have an intensive course of lumbar and sacroiliac joint mobilisation treatment and upgrade his pelvic strengthening exercises.”
…
21. At the request of his solicitors, the Applicant was examined by Dr Marnie, Orthopaedic Surgeon, on 18 June 2003. In his report of 20 June 2003, Dr Marnie details the Applicant’s then complaints, namely:
“PRESENT COMPLAINTS
Mr Botfield has continued to have pain in his low back and in his neck, this being more marked in his low back region. He describes the pain as being in the right hip but, on closer questioning, it arises on the right side of his low back and radiates around his buttock and also to the region of the insertion of the hamstrings into the right ischial tuberosity.
Pain radiates on down his leg and can go as far as the ankle. He also has some slight sensation of pins and needles in his toes and also pins and needles on the lateral side of the right thigh.
…”
and after viewing imaging, Dr Marnie stated at page 4 of his report:
“Mr Botfield has had a sprain of the posterior intervertebral joints of the cervical spine and their associated muscular and ligamentous structures. There is no evidence to suggest any pre-existing degenerative changes and in my opinion, the torticollis was not contributing to his symptoms and has not produced any degree of his impairment. Symptoms are consistent with his road traffic accident on 3 January 2002.
He has also had a chronic sprain of the posterior intervertebral joints of his lower lumbar spine and may have an underlying lumbar disc lesion, probably at the L4/5 level. An MRI could show the presence of any disc degeneration or dehydration of a disc but it has to be remembered that these abnormal appearances on MRI can be found in members of the community without back pain. They are a guide in the management of these patients and do not necessarily establish the diagnosis from an absolute point of view but are merely confirmatory evidence taken together with the clinical picture and history. Mr Botfield also has a probable hamstring tendinitis. The MRI failed to show this but a normal MRI does not exclude this condition.
His symptoms were all consistent with his road traffic accident and there is no evidence to suggest any pre-existing degenerative changes in either his cervical spine, his lumbar spine or pelvis which would be adding to his disability.
…”
22. In particular, we note Dr Marnie’s opinion that there was no evidence to suggest any pre-existing degenerative changes in the cervical spine. This can be contrasted with the opinion of Dr Billett.
23. An MRI of the Applicant’s cervical and lumbar spine and right shoulder was carried out on 22 April 2004. That report noted:
“MRI CERVICAL SPINE
…
Comment: No significant abnormality demonstrated in the cervical spine.
MRI LUMBAR SPINE
…
Report: The alignment of the lumbar spine is anatomic. The vertebral bodies are normal in height and the marrow signal throughout the lumbar spine is normal.
…
There is no evidence of nerve root compression at any level. There is no evidence of canal stenosis.
…
Comment: Minimal disc bulging at the level of L4/5, with no associated neural compression.
No other abnormality demonstrated.
…
MRI RIGHT SHOULDER
…
Comment: Normal study.
…”
24. A further report by Dr Marnie dated 7 April 2005 took issue with the report by Dr O’Malley of 27 April 2004 to the Respondent. Dr Marnie was reduced to saying, “If I were cynical I might say that Dr O’Malley may have seen Mr Botfield’s twin brother”. A remark that does not address why Dr Marnie came to such a diametrically opposed opinion as to incapacity to Dr O’Malley.
25. In the report referred to by Mr Marnie, Dr O’Malley, after taking a full history from the Applicant, viewing the imaging and conducting a comprehensive examination, came to the opinion that the Applicant had suffered a musculo-ligamentous strain to his cervical and low lumbar spine which had resolved.
26. In the course of his examination Dr O’Malley noted at page 3:
“Examination Cervical Spine
Neck posture was normal.
Range of flexion and extension was full.
Range of lateral flexion and rotation to both sides was full with no complaint of discomfort.
There was no tenderness over the lower cervical spinous processes.
Examination Upper Limbs
There was no weakness or wasting of any of the muscle groups of the arms. …
…
There was no sensory disturbance in any of the upper limb dermatomes. The deep reflexes were normal.
…
Examination Lumbar Spine
Upright spinal posture was normal. There was no scoliosis.
The range of flexion and extension was full. His extended fingertips reached to the floor.
Range of lateral flexion and rotation was full without evidence of discomfort.
There was no tenderness over the lower lumbar spinous processes or laterally.
…”
27. We note that Dr O’Malley does not refer to the Applicant’s right shoulder and he explained this by stating it had not been referred to him as a source of pain.
28. Dr O’Malley conducted a further examination of the Applicant on 18 October 2005. In his report of that day he notes at page 2:
“…
Examination of cervical spine – Neck posture was normal. Range of flexion and extension was full. Range of lateral flexion and rotation to both sides was hesitant but full movement was obtainable. There was no tenderness over the lower cervical spinous processes.
…
Examination Lumbar Spine – Upright spinal posture was normal. There was no scoliosis.
Range of flexion and extension was full. His extended fingertips reached to his mid tibia level. I did not think he was trying maximally, particularly as the Schoenberg’s test was normal.
Range of lateral flexion and rotation was full without evidence of discomfort.
There was no tenderness over the lower lumbar sinuous processes.”
29. Under the heading “Diagnosis and Opinion”, Dr O’Malley stated:
“…
Physical examination revealed no abnormality in the neck or back.
I thought he embellished his clinical presentation.
…
The diagnoses are:
1. minor musculoligamentous strain cervical spine: Resolved.
2. minor musculoligamentous strain low lumbar spine: Resolved.
I do not believe this man has an ongoing disability.”
…
and concluded that on the Comcare Tables there was zero impairment of the neck or back.
30. In evidence, Dr O’Malley agreed that the Applicant’s injuries were consistent with a motor vehicle accident and stated that Dr Marnie’s diagnosis was essentially the same as his. His opinion was based on his finding no clinical abnormality upon examination and no abnormality reported as being shown on the radiology performed.
31. The Applicant was also referred to a rehabilitation provider, Balmain Rehabilitation Services. A report dated 30 September 2003 from that provider noted inter alia that the Applicant stated his main area of pain was now the right lower back and hip area with increased cramping and numbness in his right leg. The author of the report did state, “Mr Botfield reports no problems with activities of daily living and continues to swim and walk his dog for exercise”.
32. The rehabilitation provider referred the Applicant to Ms Chan, physiotherapist. In a report dated 10 October 2003 Ms Chan noted at page 3:
“…
Active movement of his neck appeared full in the directions of flexion, extension and right lateral flexion. However reduced left lateral flexion and rotation of neck (to approximately ¾ range) by reported tightness and pain over the right side of his neck was noted.
Active ranges of movement of his back also seemed full in the directions of flexion and right lateral flexion. However reported aggravation of right buttock and posterior thigh pain was noted when his fingers reached ¾ down his shin in forward bending. In addition minor restriction in extension and left lateral flexion of back (reduced to about ¾ range) by reported low back pain and apparent stiffness was evident.
…
Mr Botfield demonstrated an ability to ascend and descend two flights of stairs unaided. However minor stiffness in his right hip region was apparent in particular during the descent.
…”
and recommended further physical therapy including pilates. We note that Ms Chan’s comments on the Applicant’s ability to ascend and descend stairs unaided.
33. Dr Davis, a consultant in occupational medicine examined the Applicant at the request of his solicitors on 16 August 2005. He opined:
“…
COMMENT:
As a result of the motor vehicle accident sustained on 30 January 2002 Mr Botfield presents with signs of injury to the cervical facet joints particularly at C2/3 and [sic] well as injuries in the lower spine at the L4/5 level. He has possibly also suffered injury to the disc endplates or even the discs themselves by way of internal disc derangement.
There is also some reduction in range of movement of the right scapula which I believe results from a capsular injury rather than injury to the cuff mechanism.”
and assessed impairment as being 10 percent to the right lower limb, 10 percent to the thoraco lumbar spine and five percent to the cervical spine.
34. On 22 June 2005, the Applicant was examined by Dr McGill, consultant rheumatologist, for the Respondent. During his examination Dr McGill noted that there was substantial variability in the Applicant’s neck movements. He concluded his report by stating at page 6:
“… Careful imaging studies have not revealed any significant pathology. On examination today there was inconsistency in his neck movements when comparing the formal examination of his neck and his movements at other times. There was also an unusual pattern of give way weakness.
…
I think it is likely that he experienced some musculoligamentous strain of the neck and low back as a result of the motor vehicle accident in January 2002. I think any genuine effects of that accident would have ceased within three months.
…
There is no indication for treatment.
With respect to permanent impairment in accordance with the Comcare Guide, there is no permanent impairment with respect to the thoracolumbar spine (Schober’s test indicated a full range of lumbar spine movement and sensitive imaging has been normal).
Assessment of whether he has any restriction of movement of the cervical spine is difficult because of the variability in movement between when he was being formally assessed and his movements at other times. He may have minor restrictions of cervical spine movement related to his torticollis but I think it is unlikely that he has any genuine restriction of neck movement as a consequence of the motor vehicle accident.
…”
35. In a later report dated 15 October 2005, Dr McGill pointed out that there was no radiological support for the diagnosis postulated by Dr Davis in his report of 29 August 2005. In evidence, Dr McGill stated the musculoligamentous strains get better, that in the thoracolumbar spine the Applicant had a full range of movement with normal imaging and that imaging of the upper and lower limbs was normal. In answer to questions by tribunal member Dr Campbell, Dr McGill stated that he did not think that the Applicant had any ongoing condition but that an introspective personality had taken over and converted a small problem into a large one.
36. We agree with the Applicant’s counsel that there is no basis upon which the credit of the Applicant can be impugned. That is not to say however that there is a physical explanation for his complaints, and there is evidence that he did not fully co-operate with the examinations carried out by some medical practitioners.
37. As pointed out by Dr McGill, the diagnosis postulated by Dr Davis is unsupported by the available radiology. Dr Marnie in his report of 18 June 2003 refers to a sprain of the posterior intervertebral joints of the cervical spine and their associated muscular and ligamentous structures together with a chronic sprain of the posterior intervertebral joints of the low lumbar spine plus a possible hamstring tendinitis. Dr O’Malley, in evidence stated that this diagnosis is essentially the same as his diagnosis of musculo-ligamentous strain. The difference is the Dr Marnie accepts the Applicant’s history of continuing symptoms and attributes them to an ongoing unresolved condition whereas both Drs O’Malley and McGill opine that musculoligamentous strains resolve.
38. The first specialist to examine the Applicant for treatment purposes was Dr Stanford. He opined that the Applicant suffered a soft tissue injury. In his second report Dr Billett who first saw the Applicant in June 2002 diagnosed a soft tissue injury to the neck and back which he opined would resolve within the next 10 weeks following his report. Dr Best in November 2002 with the benefit of an MRI scan also referred to soft tissue injuries.
39. Given the lack of objective signs of bony injury, including aggravation of degeneration which in any event is minimal, we are more persuaded that the Applicant’s injuries were that of a musculoligamentous nature. As the early medical reports suggest and the evidence of Drs O’Malley and McGill state, such injuries should have resolved by now and therefore any impairment or symptoms suffered by the Applicant cannot now be attributed to the motor vehicle accident to 30 January 2002.
40. The reviewable decisions in matters N2005/134, N2005/588 and N2006/438 are therefore affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J D Campbell, Member
Signed: E.Pope .....................................................................................
AssociateDates of Hearing 26 and 27 April 2006
Date of Decision 17 May 2006
Counsel for the Applicant Ms E Beilby
Solicitor for the Applicant Beilby Poulden Costello
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Dibbs Abbott Stillman
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