Campbell and Comcare

[2006] AATA 20

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 20

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2003/1874 and   N2005/307

GENERAL ADMINISTRATIVE DIVISION		)
Re		DOROTHY CAMPBELL

Applicant

And COMCARE

Respondent

DECISION

Tribunal R Hunt, Senior Member
Dr I Alexander, Member

Date13 January 2006

PlaceSydney

Decision The decisions before the Tribunal are affirmed.

[Sgd] Ms R Hunt, Senior Member

CATCHWORDS

WORKERS COMPENSATION – Falls to and from work - Effect of falls - Condition not arising out of or in the course of employment – No compensable injury – No permanent impairment

Safety, Rehabilitation and Compensation Act 1988, ss 24, 27

REASONS FOR DECISION

13 January 2006

summary

1.      The applicant, Mrs Dorothy Campbell, suffered some falls which she claims have left her with back pain. She made two claims against Comcare for which it denied any current liability. The first decision of which Mrs Campbell sought review was the denial of her claim for treatment costs. The second claim was in relation to the refusal of permanent impairment benefits. The tribunal has decided that Mrs Campbell does not suffer from any condition that is work related and does not suffer a permanent impairment which is compensable. The reasons for the tribunal’s decision are set out below.

Background

2.      In matter number N2003/1874, pursuant to s.16 of the Act, Mrs Campbell lodged her claim for compensation in March 2002 for medical treatment costs incurred in 2000 to 2002 in respect of injuries suffered in 1995.. In matter number N2005/307, pursuant to s.24 and s.27 of the Act, Mrs Campbell lodged her claim for compensation in October 2004 for 17% whole person permanent impairment.

3.      Mrs Campbell told the tribunal she was travelling to work on one occasion in 1992 when she suffered a fall. As well, she was returning home from work on another occasion in 1995 when she fell. She complains of a history of unremitting backache since. Mrs Campbell suffered another fall at home, in 1994, but believes the work related falls were the main cause of her problems. Comcare submits that Mrs Campbell’s current problems are a consequence of degenerative change consistent with her age. After leaving her Commonwealth employment, Mrs Campbell acquired an Australia Post business. She claims she had to give up the business as a result of the damage to her back caused by her compensable falls.

issues

4.      In order to succeed in her claim, Mrs Campbell must establish precisely what her injuries are and how they were sustained. Then the issue is whether Comcare is liable for treatment costs and permanent impairment, in relation to a series of accidents. The first accident occurred on 22 June 1992 on the way to work and was a fall at Chatswood Station going up the stairs. Mrs Campbell informed the tribunal that she took 3 days of work from 23 June 1992 to 26 June 1992 after the first accident but made no claim at that time. In 1999 Comcare received a claim for compensation for injuries sustained following a fall at home in May 1994. The claim was that the injuries were an aggravation of the injury suffered in 1992.Comcare did not accept liability. The further fall for which Mrs Campbell claimed compensation occurred on 18 December 1995 when she fell onto a gutter on her way home.  The decisions being reviewed were those made on 20 November 2003, in relation to a treatment costs application, and on 28 February 2005, in relation to the denial of permanent impairment benefits.

analysis of the evidence and findings:

Summary of the medical evidence

5.      Mrs Campbell has abnormalities of the lumbosacral spine that she claims give rise to the symptoms of which she complains. The evidence of abnormalities before the tribunal includes:

i)CT scan done in June 2000 showing bulging of the L3/L4, L4/L5 and L5/S1 discs with some narrowing of the spinal canal. Also some bony narrowing of the neural exit foramen on the left at L5/S1.

ii)CT scan in May 2002 showing a small posterior central disc protrusion at L4/L5 with associated mild narrowing of the lateral recesses.

iii)MRI scan done in April 2003 showing small posterior annular tears in the L3L/L4 and L4/L5 discs. There is a moderate sized posterior annular bulge at L4/L5 and a smaller bulge at L5/S1.

6.      Mrs Campbell claims that these abnormalities, particularly the annular tears, are causally related to the injury she sustained at the time of her first fall in 1992. She claims that she has never fully recovered and has had continuing pain and disability since that incident.

7.      The tribunal notes that the diagnosis of annular tears requires an MRI scan and that the first evidence of this before the tribunal was obtained well after the falls in 1992 and 1995 and with the intervening fall in 1994.  Annular tears can only be diagnosed radiologically with an MRI scan: see Dr Jones written report at page 6.

8.      In support of her claim, Mrs Campbell relies on the evidence of Dr Jones, Consultant Orthopaedic Surgeon, who examined her in March 2004 and who provided a written report. In his report, he refers to the 1992 incident and opines as follows:

“She developed pain in her low back at that time and it is my opinion that she would have developed at least one, if not both, of the posterior circumferential annular tears as a result of falling in a hyperextension posture which has been responsible for ongoing back symptoms from that time”

9.      In our view, Dr Jones does not provide a coherent explanation as to why he thinks that the injury occurred in 1992 and not at other times in the following 10 or 12 years since. He has not queried Mrs Campbell’s account that “she experienced ongoing symptomatic back pain which eventually led to her resignation from work in 1997”. As well, Dr Jones provides no comparative analysis of the various incidents that occurred in 1992, 1994 and 1995 and merely goes on to say that the “Injuries in 1994 and again in 1995 have been factors which have aggravated the original injury”.

10.     Mrs Campbell also relies on the evidence of Dr Dixon, Consultant Orthopaedic Surgeon, who examined her in September 2004 and provided a written report. We note that Dr Dixon’s report contained a number of factual errors. For example, in conclusion he stated that, at the time of her fall in 1992, Mrs Campbell “sustained disc lesions in her lower spine which she aggravated on two occasions since that time. She has residual low back pain with sciatica, more marked on the left.” Dr Dixon gave no explanation as to why he reached his conclusion. We have before us no supporting evidence that Mrs Campbell did sustain disc lesions in her lower spine in 1992.

11.     When questioned on this issue during cross-examination, Dr Dixon was asked whether he had based his opinion on the history given by Mrs Campbell. Dr Dixon’s responses eventually conceded that his opinion was based on the history given to him by Mrs Campbell. He also speculated that in 1992 the fall had caused “internal disc disruption” on the basis that Mrs Campbell had told him that she had suffered significant pain and sciatica. There was before us no corroborating evidence that she suffered from sciatica at the time of her fall 1992 whereas there was some evidence that, following her fall at home in 1994, she suffered back and bilateral leg pain. See Dr Little’s report referred to below. Dr Dixon conceded that he had attributed the sciatica to the fall in 1992 yet in his written report he appeared to confuse the 1992 fall with the 1994 fall.

12.     The respondent relied on the opinion of Professor Oakeshott, a Surgeon with qualifications in Rehabilitation Medicine. Professor Oakeshott examined Mrs Campbell in April 2005 and provided a written report. In his report he reviewed the various radiological investigations carried out and concluded that the “investigations reveal constitutional degenerative changes”. In his opinion “these changes do not represent an injury.” He went on to say that the annular tears noted on the MRI scan “are degenerative in nature and not injury caused.”

13.     In oral evidence, Professor Oakeshott affirmed his opinion that the MRI abnormalities were degenerative in nature. He conceded that annular tears can occur as an acute injury following an event such as a fall. However, in his experience, this situation would have resulted in persisting pain and, with appropriate treatment, recovery over about a three month period. He also indicated that annular tears can occur without symptoms. He indicated that that an acute tear is usually associated with pain that persists and diminishes with treatment over time, up to 3 months

14.     When questioned on why, in his opinion, the annular tears were not due to the fall in 1992 he responded that Mrs Campbell had given a history of intermittent symptoms, she had not had treatment, and she went back to her normal duties almost immediately. In his opinion, the history given was not consistent with a tear having occurred in 1992 and persisting until 2003. Professor Oakeshott, at page 5 of his report, recorded that he thought the applicant was evasive in the answers that she gave to him when he was asking her questions about her medical history.

15.     We also had before us a report by Dr Burke, General Practitioner, dated 13th February 2003. Dr Burke recorded that he saw Mrs Campbell three days after her fall in December 1995. On examination he noted limitation of flexion and some bruising around the area of T12.  He referred Mrs Campbell to Ms Laycock, physiotherapist, for treatment. In his report, he stated that that Mrs Campbell continued physiotherapy until about May 1996 and he assumed that she returned to work sometime shortly after this. He further stated that he had “no record of her being seen with regard to this pain until June 2000 when she presented to my assistant with pain over the right hip.”

16.     We also had before us a copy of a letter from Ms Laycock to Dr Burke, dated 17 July 1996, stating “Dorothy rang to cancel her one month follow up appointment stating she has been pain free over the past month and has resumed all her normal activities. She has therefore been discharged from treatment”.

17.     Dr Little, Neurosurgeon, saw Mrs Campbell in May 2003. His report does not add anything as to issue of causation but he elicited a history of bilateral leg pain following the fall at home in 1994.

18.     In November 2002, Mrs Campbell was examined by Dr Chapman, Consultant Orthopaedic Surgeon. He noted in his medical history that she had sold her post office franchise “because she felt the lifting involved was becoming too much”. His opinion was that her condition was the result of the degenerative changes to her lumbar spine and was not work related. We noted that Dr Chapman did not have the benefit of the MRI scan result from 2003. His opinion was based on the medical history he took and physical examination.

19.     Dr Hayes recorded that the reason Mrs Campbell gave up work was because of illness on the part of her daughter.  Dr Hayes' records, which are before the Tribunal, make no reference to back problems.  Moreover the health summary recorded by Dr Hayes on the first visit to him notes that, at that stage, Mrs Campbell was on nil medication.

20.     Before the tribunal was a record obtained from the Health Insurance Commission (HIC), showing the doctors Mrs Campbell had consulted over the period she required attention for her back and other complaints. Mrs Campbell gave oral evidence she saw Dr Bourke about her back.  She also gave oral evidence that she saw “Mohammen” in 1998, 1991 and 2001.if one goes to the HIC document (A3), the closest approximation to that name is “Mohammed”.  Further, if one goes carefully through that document, one sees that the only practitioners whom Mrs Campbell had ticked as attendances for her back in the period between May of 1996 and June of 2000 are Dr Mohammed, on 22 April '98, 24 April '98, 10 June '99, and 22 July '99, and Dr Bourke on 28 May '97, 21 August '97, 28 August '97, and 29 November '97.  However, there is nothing from Dr Mohammed to show why he treated her on those dates. In reply to questions about seeing doctors at Chatswood following the first fall, Mrs Campbell conceded that she hadn't ticked any of those doctors on the HIC record produced to the tribunal.  Mrs Campbell also told the tribunal “I think I shouldn't have actually ticked them at all.  I shouldn't have put any of them there, because that was just a copy to verify what I had already agreed to there.”

21.     Based on the medical evidence before us and the evidence of Mrs Campbell, we reached the following conclusions:

·The applicant has proven spinal abnormalities

·On balance, these are likely to be degenerative

·If the annular tears are the result of trauma, the evidence of Professor Oakeshott  suggests that the trauma is likely to have been more recent

·On balance, the history shown by the medical evidence and records is that of intermittent  back pain but Drs Dixon and Jones based their  conclusions on a history of continuing pain since 1992

·The evidence points to intermittent problems with a period of recovery and subsequent relative freedom from symptoms

·On balance, the 1992 episode was relatively trivial in that the applicant took only a few days off work, had no real treatment and had only one visit to the GP that could confidently be assigned to the alleged back problems. Also the applicant made no claim from her employer at the time.

·The concurrent medical records concerning the1994 fall at home and the 1995 fall after leaving work suggest more severe symptoms occurred than in 1992 and required more treatment. Nevertheless, the evidence suggests that the applicant made a full recovery from these episodes.

·The credibility of the applicant’s evidence is questionable. We did not find her a truthful witness. She did not always provide confident answers to questions. She changed her evidence several times and admitted that she may have mistakenly ticked some of the HIC records of visits to doctors as being related to her falls in 1992 and 1995. This admission occurred when it was pointed out that the doctors’ records did not indicate this was the reason for the consultations. In addition, Dr Hayes recorded that the reason the applicant gave up that work was because of illness on the part of her daughter.  Before the tribunal, she blamed her back problems. We also note the false declarations given by the applicant in the employment application she made with Future Personnel, which was demonstrated in exhibit R3. In oral evidence, the applicant maintained that she told Dr Hayes about her back problems whereas Dr Hayes' records make no mention about those back problems.  Moreover the health summary recorded by Dr Hayes on the first visit to him records that the applicant at that stage was on nil medication. 

·Dr Jones did not provide reasons for his conclusion and placed undue reliance on the applicant’s alleged history of continuing pain

·Dr Dixon has written a report that had a number of factual errors and his oral evidence was not convincing. He conceded that his opinion was based on the applicant’s history.

·Although Dr Chapman did not have the benefit of the radiological investigation, his opinion relied on physical examination and a different interpretation of the applicant’s history.

·We preferred Professor Oakeshott’s evidence. The history he obtained from the applicant was more detailed and his interpretation of the sequence of events was more convincing. He continued to hold his opinion under questioning and we could discern no reason to doubt its accuracy when compared to the evidence before us taken from Mrs Campbell and indicated in medical records from other practitioners. In view of the doubtful history relied on by the doctors on whom Mrs Campbell relied, we preferred the conclusion reached by Professor Oakeshott that Mrs Campbell has constitutional degenerative changes in her back and does not suffer from permanent impairment that is related to the incidents in 1992 or 1995.

findings

22.     Whether or not Mrs Campbell has had ongoing symptoms on a continuous basis since either the fall in 1992 or that in 1995, we consider the fall in 1994 which was non-compensable was a more serious fall with more serious consequences.  It happened at home when she tripped over a toy.  Whereas the 1992 injury resulted in about four days off work, the dates being the 23rd to 26 June 1992, the injury in 1994, which followed it, was far more significant and resulted in two weeks off work, and a great deal more treatment. There is a four year gap in the treatment history between May of 1996 and June of 2000, which was put to Mrs Campbell. She disagreed, but was unable to point to evidence that she saw several doctors about her back over this period as she claimed.

23.     We are not persuaded that Mrs Campbell’s symptoms have been continuous.  Although the accident in 1995 in similar circumstances to the 1992 injury was accepted as compensable, Mrs Campbell showed improvement in December 1995. She had a flare-up in 1996 but there is evidence of her improvement shortly after treatment. Ms Laycock, of Woy Woy Physiotherapy, wrote to Mrs Campbell’s GP reporting that Mrs Campbell had ceased treatment.  Again, any claim that symptoms have been continuous is inconsistent with the clinical notes of Dr Hayes. As well, Professor Oakeshott's evidence was that annular tears are routinely seen on scanning of even asymptomatic individuals and can occur with or without injury, and as a degenerative condition. Dr Dixon also conceded that annular tears may be asymptomatic.

24.     For all of those reasons, on balance, we are not satisfied that Mrs Campbell suffered disc lesions in any of the falls. We consider that each of those falls resulted in a temporary transient aggravation of the underlying degenerative change only. Therefore, the reviewable decision of 20 November 2003 denying treatment costs after 1996 should be affirmed. 

25.     Mrs Campbell further claimed permanent impairment. As to permanent impairment, we have already indicated that we prefer the assessment of Professor Oakeshott to that of Dr Dixon. Professor Oakeshott reported that he found a full range of movement.  His examination of Mrs Campbell took place later than that of Dr Dixon.  Dr Dixon thought she might have had a good day when Professor Oakeshott examined her but that is not consistent with the evidence, because Professor Oakeshott recorded in his report that on the day he examined her she was in some pain from the travel to see him on that day.  Moreover, he recorded that she was having a medium day.  In any event, it might equally be said that she was having a particularly bad day when she was examined by Dr Dixon.  Dr Dixon also conceded the possibility of improvement in the intervening period between when he saw her, and when she was examined by Professor Oakeshott.  We also note that Dr Dixon recorded in his report that the applicant's age was 52, when in fact it was 62, which is a not insignificant error when one is assessing a person's range of movement, as against what you would ordinarily expect from someone of a particular age.  There is also of course the possibility that the applicant has obtained some further improvement since attending the ADAPT course at the Royal North Shore Hospital. 

26.     Her counsel conceded before us that we would be entitled to find that the work Mrs Campbell did with her subsequent employers, both in her own business and the post office, and from some evidence about some process work in a factory, was in fact heavier than the work she was doing with the respondent.  So, essentially, Mrs Campbell suffered no incapacity. Moreover, Mrs Campbell conceded that she left her Commonwealth employment by way of a voluntary redundancy. Having regard to section 19(4), Mrs Campbell has not established that her condition has deteriorated since, and that it has deteriorated as a result of injury whilst with the respondent, rather than injury arising out of any of the subsequent employment. It follows that we make no finding that Mrs Campbell is suffering compensable incapacity.

27.     The parties agreed the only matters before the tribunal were medical costs, treatment, travel and permanent impairment. We therefore affirm the reviewable decision made to disallow compensation for permanent impairment pursuant to sections 24 and 27 of the Act.

Decision

28.The decisions before the Tribunal are affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         Associate

Date/s of Hearing  24 August 2005, 15 November 2005
Date of Decision  13 January 2006
Counsel for the Applicant         Mr Foster
Solicitor for the Applicant          CMC Lawyers
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Mr C Hutchins