Christoffel and Military Rehabilitation and Compensation Commission

[2006] AATA 1033

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1033

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/289

VETERANS’ APPEALS DIVISION		)
Re		EILEEN CHRISTOFFEL

Applicant

And MILITIARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr Morley, Member

Date1 December 2006

PlaceBrisbane

Decision  The decision under review is affirmed.

............[Sgd]................

BJ McCabe

SENIOR MEMBER

CATCHWORDS

WORKERS’ COMPENSATION – applicant says she was injured at work – entitlement to compensation under SRCA – contradictory medical evidence – decision affirmed

Safety, Rehabilitation and Compensation Act 1988

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

1 December 2006

Senior Member McCabe

Dr Morley, Member

introduction

1.      Ms Eileen Christoffel says she injured her back when she fell down a set of stairs while at work in 1970. She submitted a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRCA) in 1995 in respect of that injury. The respondent accepted liability for aggravation of a pre-existing back condition on 4 June 1996. Ms Christoffel subsequently ceased work and sought ongoing incapacity benefits. The earlier determination as to liability was varied on 18 March 2005 so that the respondent accepted liability in respect of a lower back strain. That determination also concluded there was no ongoing liability to compensate the applicant because of medical evidence suggesting the effects of that injury should have ceased within five years.

2.      We have decided to affirm the decision under review. After considering all the medical evidence below, we conclude the applicant’s injury in 1970 could best be described as a lower back strain. We are not satisfied there is a causal connection between that condition and the applicant’s current problems. In those circumstances, there can be no liability to pay ongoing compensation under the SRCA.

the material before the tribunal

3. The Tribunal was provided with the documents required pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with a range of medical reports which we discuss in due course. It heard from a number of witnesses, including the applicant. The applicant was represented by Mr King. The respondent was represented by Mr Clark of counsel.

the factual background

4.      The applicant was born on 2 August 1950. She enlisted in the Army on 10 October 1968 and was discharged on 4 December 1970. She attained the rank of corporal while she was a soldier.

5.      Ms Christoffel worked in an office while she was posted to Townsville. She said she was walking down the stairs from one of the offices in 1970 when she tripped. Apparently one of her heels became lodged in a crack in the concrete slabs of the landing. She toppled forward. She says she hurt her back.

6.      The applicant says she was helped to a room in the complex where she rested. Her account of how the incident unfolded was confirmed by another soldier who gave evidence, Ms DeHass.

7.      We accept the applicant did have a fall, and that the fall occurred at work. It was unclear to us precisely when it occurred in 1970. A note prepared on 23 June 1971 in connection with a claim for compensation (exhibit 9) on page 000139 say the applicant's injury was reported on 17 July 1970. The contemporaneous medical records set out below suggest the fall occurred earlier – perhaps in April 1970. Although we do not think anything turns on the issue, we prefer the contemporaneous medical records and find the accident occurred between April and July 1970.

the medical evidence

8.      The applicant’s outpatient record of 10 July 1970 (exhibit 1 folio 64) notes:

(She has had) low back pain (on the left for) 2-3 months... (she) initially jerked (her) back when she slipped going down steps at Lavarack. On examination: tender erector spinae (muscles) at left loin level - tender just above iliac crest...

9.      An entry in her medical records dated 12 August 1970 (exhibit 1 folios 75-76) reads:

(She) complains of sore back - left renal angle - posteriorly. Some sensation of pain through to anterior as well. Saw AMO six weeks ago - diagnosed as muscular and given BTZ tablets and cream with no response. Gets some variation of pain with posture but is inconsistent. Also says (she) has had some urinary frequency past few weeks but attributes this to colder weather. No other significant symptoms. On examination: muscular tenderness over kidney beds. Possibly is tender over kidney as well. For m/u/c/s (microscopic examination and bacteriological culture of urine specimen.

10.     The next entry on 19 August 1970 (folio 76) records:

Nil (no abnormal findings) in m/u (microscopic examination of urine). Hurt herself again two days ago and pain worse now. Is definitely muscular and (with) anxiety and overlay. Treatment: Valium 2 mg one tablet three times daily, local heat etc.

11.     On 29 September 1970, after recording complaints of a gastrointestinal illness, an entry was made that says (folio 77):

Also has back trouble. Refer to physiotherapist for back exercises (to) left erector spinae (muscles).

12.     For 2 November 1970 the entry records (folio 78):

Had one week at physiotherapy for back. Some pain during the course but now for two days back pain has become worse - pain over the left loin, no buttock pain, some ache (in) left popliteal fossa (behind the knee) and calf. Pain is sharp. Difficulty now bending over and also pain worse when sitting. On examination: tender over left loin - over muscles and lateral processes of (vertebrae) T12, L1,2. Muscle tone poor (in) buttocks and back. (Back) movements full (in range) - some pain on (illegible). Reflexes - weak but present... Diagnosis: muscle strain. (For) 1)X-ray of back 2)Urine microscopy and culture...."

13.     On that same day the applicant’s Outpatient Radiologist Referral Request (folio 66) records:

Recurrent pain (in) left loin over last year. Worse on sitting down or bending forward. No radiation. No urinary symptoms. On examination: tender over the left erector spinae muscles and transverse processes over (vertebrae) T12, L1,2. Back examination NAD (nothing abnormal detected). For x-rays (of) thoracic and lumbar vertebrae. Diagnosis: muscle strain.

14.     The x-ray report (folio 66) of the applicant's thoracolumbar spine was completed on the following day. It reads:

None of the disc spaces are narrowed. No bony lesion seen.

15.     For 13 November 1970 (folio 79) the records say:

No change in left loin pain. No radiation to legs. Recent admission to hospital for vomiting... Urine test - occasional pus cells only... Seems to be only muscular pain".

16.     For 2 December 1970 the entry reads (folio 80):

Has produced (Form) D11 claiming backache as due to fall in July 1970. Currently being treated by chiropractor - 'the only person who can do her any good'. No appointment apparently been made to see orthopaedist - for discharge 3 December 1970.

17.     The applicant's Medical Examination Record on Discharge (folio 83) was completed on 4 December 1970. The document shows her medical fitness ('Pulheems - Pes') status on discharge had been downgraded to 'C.Z.E.', compared to her 'F.E.' status on recruitment.

18.     There is a significant gap in the medical evidence between the end of 1970 and 1988 when the applicant saw Dr Tibor Pietzsch. Dr Pietzsch is a general practitioner. In his telephone evidence he told the Tribunal he had first seen the applicant in August 1988 for a different complaint. He began to treat her for back pain in the following January. This included some "microwave" treatment, and two epidural injections. He thought he had seen her on several other occasions between August 1988 and January 1989. He also provided a certificate for the applicant on 17 August 1995 (exhibit 1 folio 85). In this he recorded the applicant's report of her left-sided back pain "ever since" her fall in July 1970. His examination of the applicant on that day revealed tenderness over her left sacroiliac joint, piriformis muscle and L2-S1 interspinous ligaments, with left paravertebral muscle spasm. He also said x-rays had shown lumbosacral intervertebral disc degenerative changes. He opined in the certificate that it was "quite possible" the applicant's pain and x-ray changes had been precipitated by her 1970 fall. He ceased treating her in 2001.

19.     Dr David Lewis of Pimlico is an orthopaedic surgeon. He compiled his report (exhibit 1 folios 87-89) following his examination of the applicant on 2 March 1996. He also had regard to x-rays of her lumbosacral spine performed that day (exhibit 1 folio 86). He said she suffered "internal disc derangements of the lumbar spine L4-5 and L5-S1" with "facet joint arthritis". He attributed this to "the aggravation of a pre-existing condition" derived from her "fall on 1 July 1970".

20.     Dr Roger Watson is a consultant in rehabilitation medicine. His letter to Dr Pietzsch of 20 October 1998 (exhibit 1 folio 92) refers to the applicant's central low back pain with recent bilateral severe leg cramping "without frank sciatica". He requested an MRI scan of her lumbar spine. That was performed on 10 November 1998. The report of this procedure (exhibit 1 folio 94) describes disc degeneration at the L5/S1 and L4/5 levels which was worse in the former without "significant canal stenosis or nerve root impingement".

21.     Dr Patane arranged for the MRI scan to be repeated on 13 September 2002. His request stated the applicant had "chronic pain radiating to [her] right buttock". As well as the previously noted changes at the L5-S1 and L4-5 levels, a left sided L3-4 intervertebral disc protrusion was described (exhibit 1 folio 100). Two days later Dr Watson wrote to Dr Patane (exhibit 1 folios 103 to 104) recording worsening back pain, to the extent she now required medication with Fiorinal, Panadeine forte, and MS Contin. This was despite receiving epidural steroid injections from Dr Pietzsch in the past, and more recent “facet joint blockade" at the Townsville Hospital Pain Clinic. Dr Watson suggested the applicant’s complaints were "a direct consequence of the claimed injury to her back in 1970 when she fell down stairs while in the Army".

22.     On 3 October 2002 Dr James Price, having seen the applicant by referral from Dr Patane, reported (exhibit 1 folio 101):

...she is now getting ongoing pain mainly in the lower back, but also in the mid-thoracic spine.  In the lower lumbar back it radiates out to both flanks and also down the right buttock into the upper hamstrings.  There is no pain in the left leg.  This pain is present all the time and it is much worse after a day at work.  The pain in the mid-thoracic spine is not as bad and it is not there all the time, but it is made worse by her work.  The treatment that she has at the moment is a massage once a week and she is on MS Contin, Celebrex and a muscle relaxant.

23.     On examining the applicant, Dr Price – an orthopaedic surgeon - observed the applicant could flex her back to bring her "fingertips" to her knees, with normal extension and lateral flexion; she was tender over the L5 and T10 spinous processes; and straight leg raising was limited to 70° on the right and 80° on the left. Her neurological examination was normal. He opined the applicant was suffering "gradual worsening of her ongoing lumbar back pain". He advised that she continue massage therapy and "being sensible about what she does". He concluded: "operations on the back are unlikely to help". He made no comment about the relationship of her complaints to the 1970 fall.

24.     On 10 March 2004 the applicant, while touring Australia, was seen by Dr Peter Anderson, a rehabilitation physician in Western Australia. He reported to Dr Hannay. His report appears in exhibit 1 under two dates, ie 15 March 2004 (folios 114-115) and 17 March 2004 (folios 118-119). He estimated the dorsal (thoracic) component of the applicant's disability at 5% impairment, and the "lumbar condition" at 10%. He declined to provide any opinion. Ms Christoffel was then seen on 1 April 2004 by Dr John Bell, an orthopaedic surgeon. Dr Bell first reported to the Military Compensation and Rehabilitation Service on 19 April 2004 (exhibit 1 folios 123-132, reduplicated folios 140-149). He recorded the applicant's account of her 1970 injury. He noted she had been taking MS Contin since 1996, with Celebrex, supplemented by Panadeine forte and Fiorinal for "some years". She had been helped with hot packs, "resting up", physiotherapy manipulations, chiropractic, and massages. He recorded her description of her low back pain:

Low back pain continues with a continual ache all the time. She is never without it. It is mostly in the centre of the low back and goes into the left thigh as far as the knee and just below the left knee. There is also a coldness that goes down both legs and that is just about equally as bad on the left as the right with sciatic problems in the legs feeling freezing cold although the leg is not actually cold. She gets a cramping in the legs and feet. It is sore coughing and sneezing in the low back. They are sharp pains in the low back and it is continually there. It gets to be a sharp jabbing pain if she walks. It wakes her up at 3.00am and aches a lot. The low backaches are getting worse over the months.

25.     On examination he found the range of her lumbosacral spine movement to be about 70% of normal, with more discomfort on extension. She was diffusely tender over her upper buttocks and the sacroiliac joints, and over spinous processes from L3 to S1. He found no abnormal signs, including neurological signs, in her lower limbs, although she reported discomfort even with minor and slow movements. In summary, his answers of interest to the Tribunal to the MCRS Schedule of Questions (folios 128-130, 145-147) were:

·The applicant suffered: "Mechanical low back pain with facet joint inflammation of the lowest three mobile segments, also probable L5/S1 disc inflammation. No radiculopathy".

·Her Commonwealth employment was "probably not the principal cause" of her condition.

·She probably would have contracted her condition if it had not been for her employment.

·Her employment contributed to the contraction of her disease by "less than 10%".

·The extent of the contribution by her employment to the contraction of her disease was "minor and incidental".

·The employment related aspects of her condition probably would not continue indefinitely.

·The employment effects ceased to exist "probably within five years of the fall”.

26.     Dr Bell provided a supplementary report on 18 November 2004 (exhibit 1 folios 138-139), in which he stated the 1970 injury was "well described as a 'soft tissue back injury'", classification ICD-10 AM Diseases 2004 as M54.5 " Low back strain".

27.     Dr Tibor Pietzsch reported on the applicant's condition on 21 July 2005 to the RSL Pension and Advocacy Section. He had just reviewed her for the purpose of providing this report after previously seeing her in June 2001 when he closed another surgery. The applicant had provided him with her old notes. He referred to radiological changes of "disc dessication, disc space narrowing, end plate spondylotic change and anterior plus posterior disc protrusion at L5/S1 level with some similar damage to a lesser extent at L4/L5 level". He suggested these changes had been present since June 2001. He stated his opinion that her condition was caused by her July 1970 fall.

28.     On 25 July 2005 Dr Watson also reported to the RSL Pension and Advocacy Section, (exhibit 3) confirming his opinion that the applicant's complaints were directly related to her fall in 1970. He confirmed his disagreement with the opinion of Dr Bell. He stated that, in her fall, the applicant suffered "significant injury to the skeletal aspect of her lower motion segments in the lumbar spine leading to progressive and premature degenerative change as now currently manifest". On page 3 of this report he stated "... that a sprained back if present resolves more rapidly than five years, usually within days to weeks".

29.     On 5 November 2005 Dr Bell reported to the respondent’s lawyers (exhibit 7). He had been requested to study "the very thick file which you have sent me (which) measures somewhat 45 millimetres in depth" in the course of preparing his report. He noted:

Certainly there are medical reports at variance to mine. The injury which Ms Christoffel sustained in July 1970 required some treatment and she has had low back pain ongoing ever since then.

It appears that there was a considerable worsening of the low back pain some 26 years later when she started to take opiate medication, MS Contin,... I find it very difficult to accept the reasons given in the other medical reports that her ongoing low back pain at this stage should be significantly related to the previous injury, which is now some 35 years ago.

I can find no evidence in these other medical reports to change any of the views which I have expressed in my two medical reports to the 19 April 2004 and 18 November 2004.

...There is nothing which persuades me... that there is any greatly significant component of her low back pain problems now which relates specifically to that original injury.

30.     Dr Bell, in his telephone evidence to the Tribunal, confirmed his opinion that there is no causal link between the applicant's fall in July 1970 and her present complaints. During cross examination he stated the applicant's degree of lumbar spinal degenerative disease is "relatively normal for her age". He agreed to a question from the Tribunal that the amount of her opiate medication is "unusual for her pain".

31.     On 19 April 2006 Associate Professor Bruce McPhee (a spinal orthopaedic surgeon) held a consultation with the applicant at the request of the respondent’s lawyers. He also had available an "extensive brief of fifty-three documents", noting on page 3 of his report of 21 April 2006 (exhibit 8) that most of the documents dated from 1995 onwards. Having taken her history, examined her, reviewed the various investigative reports, and reviewed her file, he concluded: (page 4):

...Mrs Christoffel currently suffers from low back pain and non-verifiable radicular leg pain due to degenerative disease of the L4/5 and L5/S1 disc spaces without neural compromise. For an individual over 50 year of age the complaint of low back pain and radiological evidence of disc degeneration in the lower to lumbar discs may be entirely normal....

...contemporary documentation casts some doubt as to whether the injury was to the lower lumbar spine or the left loin. Little reliance can be placed on the radiology reports at the time. This refers to x-rays of the thoracolumbar spine with a referring history of left loin pain (T12 /L2). It is quite conceivable that the x-rays involved only the thoracolumbar spine and may well have excluded the lumbosacral junction....

...Suffice to say that evidence that the claimant actually sustained the injury as described, that she sustained an injury to her lumbosacral spine as against her left loin and had ongoing symptoms for which she required treatment (although there is no documentation to support this statement) is scant and somewhat contradictory.... I would conclude that the evidence to causally relate to the claimant's current low back condition to the fall in 1970 is at best possible as against probable in the absence of supporting evidence....

32.     Having had the opportunity to review the applicant's Service Medical Records (exhibit 1 folios 17-84, and exhibit 9), Dr Watson confirmed in telephone evidence the opinions expressed in his report of 25 July 2005 (exhibit 3). In his evidence-in-chief he said the "soft tissue injury" diagnosed by Dr Bell, also known as "lumbar strain", is benign, and ordinarily resolves within "weeks or a couple of months" after the injury. He opined that the x-ray changes demonstrated on the 2 March 1996 (exhibit 1 folio 86) were possibly "natural", but at her then age (46 years) this was unlikely. He stated he had little doubt that these were "traumatically induced". He added that natural degenerative changes in the applicant's lumbar spine were inevitable at her present age, but that her pain is not. He said her injury was "100% responsible for her pain, but not for her degeneration". He confirmed he had seen Associate Professor McPhee's report of 21 April 2006 (exhibit 8) and disagreed with his view that the applicant’s fall in 1970 possibly contributed to her present pain. In cross examination Dr Watson acknowledged he had no orthopaedic specialist qualifications, but added he has worked in rehabilitation, including spinal pain problems, for over 30 years. He noted he often works with orthopaedic surgeons. He said he was satisfied after reading the contemporaneous Service Medical Records that the applicant had suffered "low back pain" from the time of her stated injury which continued until the time of her discharge.

33.     Associate Professor McPhee, in his evidence-in-chief, pointed to three different references in the contemporaneously recorded entries in the applicant's medical records describing pain and tenderness in her left loin. He repeated his statement in his report (exhibit 8) that there is a substantial difference between the left loin, between the lower rib cage and the top of the pelvis, and the lumbosacral junction. He said the fall described by the applicant could have initiated a process of lumbosacral degeneration, but the pain of this should have been felt immediately in the lumbosacral region, with associated disability. During cross examination he confirmed his opinion (exhibit 8 page 4) that the MRI lumber scan changes were "within normal limits" for a 50 year old person.

evaluating the medical evidence

34.     In considering the medical evidence, we have taken into account a number of matters. We note firstly the applicant's Service Medical Records for 1970, of 10 July (exhibit 1 folio 64), 12 and 19 August (folios 75-76), 29 September (folio 77), and 2 and 13 November (folios 78-79). All refer to the applicant's reports of left loin pain; on 2 November (folio 78) she was found to be tender in her left loin muscles and over the lateral processes of the vertebrae T 12 to L2. There is no record of the applicant having complained of pain lower down, in her lumbosacral region, before her discharge from the Army on 4 December 1970.

35.     We also note there is a gap of 18 years in the medical evidence between the date of her discharge from the Army in 1970 and her early medical attendances on Dr Pietzsch in 1988.

36.     Of all of the subsequent medical evidence, only Dr Tibor Pietzsch, in his certificate of 17 August 1995 (exhibit 1 folio 85) has referred to the applicant having left-sided complaints, stating: "ever since the initial injury she has been complaining of pain on the left side of her back and sometimes also pain radiating into her left side". He found the applicant was tender over her left sacroiliac joint, pyriformis muscle and L2-S1 interspinous ligaments, and with "some spasm of her paravertebral muscle on the left side". Yet, as Associate Professor McPhee has indicated, the region of injury recorded in the applicant's Service Medical Records lies between the left lower rib cage and the top of the pelvis. All other medical practitioners have addressed the applicant's degenerative changes in her lower lumbar spinal (ie lumbosacral) region.

37.     There is conflicting medical opinion over the relationship between the applicant’s fall in 1970 and her persistent back pain. General practitioner Dr Pietzsch, orthopaedic surgeon Dr Lewis, and consultant physician in rehabilitation medicine Dr Watson all say there is a causal connection. Orthopaedic surgeon Dr Bell and spinal orthopaedic surgeon Associate Professor McPhee deny there is a connection. Orthopaedic surgeon Dr Price and rehabilitation physician Dr Anderson have provided no opinion on this issue.

38.     We are satisfied the contemporaneously recorded medical information has established the applicant's original pain was located in her left loin area, and not in her lower lumbar (lumbosacral) region. Apart from Dr Pietzsch's passing reference in August 1995 (ie nearly 15 years later) to the applicant suffering left sided back pain, all of the clinical records since have referred to the applicant's lower lumbar pain. We note this has been the focus of attention of the applicant's various MRI scans.

39.     Both Dr Bell and Associate Professor McPhee say the applicant's lower lumbar spinal degenerative changes are "within normal limits" for the applicant's age. After studying the applicant's Service Medical Records, Associate Professor McPhee, whose expertise in spinal orthopaedic surgery is superior to any of the witnesses called by the applicant, goes further. We are persuaded by his evidence that, although the applicant's fall could have initiated her lumbosacral degeneration, she would have felt pain in this region immediately if that had been the case. There is no record of that occurring in her Service Medical Records. We acknowledge the applicant has since given evidence that she did experience pain, but that evidence comes some 35 years after the event. We prefer the contemporaneous records.

conclusion

40.     Given the views we have formed in relation to the medical evidence, we are unable to accept there is a causal connection between the injury sustained in the fall in 1970 – which is best described as a lower back strain – and the persistent pain the applicant says she experiences today in a different region of her back. Mr Clark relied on the decision of the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 to argue that the respondent cannot be held liable to compensate Ms Christoffel for her ongoing condition under the terms of the SRCA in the circumstances. We agree. The evidence does not establish the applicant’s accident at work made a contribution to the onset of her present condition or to its aggravation. The reviewable decision under review is therefore affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe and Dr Morley, Member.

Signed:         Associate      Adam Ryan

Dates of Hearing  23-24 August 2006
Date of Decision  1 December 2006
The applicant was represented by Mr King, an RSL advocate.
The respondent was represented by Mr Clark, of Counsel.