Danielle Smith and Telstra Corporation Limited
[2012] AATA 749
•30 October 2012
[2012] AATA 749
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/4390
Re
Danielle Smith
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 October 2012 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
WORKERS COMPENSATION – Claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – compensation paid over a long period – refusal to accept ongoing incapacity – long standing congenital problems – degenerative change – break in causation – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
30 October 2012
Danielle Smith was involved in a car accident on her way home from work as a Telstra employee on 7 May 2001. Her vehicle hit a kangaroo. She says she has experienced ongoing pain and incapacity as a result of an injury to her back and leg sustained in that accident. She applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 after her accident. The respondent, Telstra, accepted liability and paid compensation over a long period. But Telstra says the applicant must have recovered by now. It disputes the extent of any injuries that remain following the accident, and the extent of any incapacity. The applicant asked the Tribunal to reconsider Telstra’s decision to refuse payment of further amounts of compensation for medical treatment and incapacity.
The matter took an unexpected turn at the hearing. After the applicant completed her evidence-in-chief describing the incident and the extent of her incapacity, the respondent introduced video footage taken covertly by a private investigator. The footage shows Ms Smith walking, driving, shopping, carrying loads and sitting about with friends. Telstra says the video footage confirms Ms Smith is exaggerating her symptoms. The respondent also introduced medical evidence that it says suggests Ms Smith is suffering from long-standing congenital problems that account for any incapacity she does experience. All of this new evidence resulted in delays as the applicant scrambled to meet what she says is, in effect, a new case.
The outcome of the case ultimately turns on the view I take of the video footage (Am I persuaded it establishes the applicant has exaggerated her claims?) and the medical evidence.
I am not satisfied the applicant is entitled to succeed in her claim for further compensation under the Act. I explain my reasons below.
THE ONSET OF PAIN FOLLOWING THE ACCIDENT IN 2001
I have already noted the applicant was employed by Telstra in 2001 when she was involved in a car accident on the way home from work. The vehicle could not be driven from the scene. Ms Smith reported the accident to the police but did not suggest to the police anyone was injured. All of this is undisputed.
What occurred in the aftermath of the accident is more controversial. The applicant says she began to experience pain in both legs, but especially the right leg below the knee, the day after the accident. She spoke of pins and needles. She visited Dr Gutauskas, her general practitioner, on 8 May. The applicant referred to experiencing ankle pain but the doctor’s notes from that attendance (exhibit 10) record:
…no LOC, no headache and no real problem. Vague muscular tenderness in right shoulder and back otherwise normal.
The doctor prescribed panadeine forte on that occasion and signed a medical certificate saying she was unfit to work until Friday 11 May 2011. He suggested in his notes the applicant was suffering from shock.
This evidence, coupled with the evidence from the police report, is difficult to square with the applicant’s account of her state in the immediate aftermath of the accident. But the applicant says I should treat the doctor’s records with care. Dr Pridgeon, the applicant’s current treating general practitioner, suggested in his evidence that the doctor who saw Ms Smith following the accident on 8 May 2001 was known for writing brief notes. Ms Smith says in any event (a) her history is consistent with a right L5/S1 disc protrusion compressing the right S1 nerve root that was identified in a CT scan taken of the applicant’s lumbar spine on 20 March 2002, and (b) her account of serious pain (including leg pain) was corroborated by evidence from her husband.
The applicant subsequently attended Grafton Base Hospital on Sunday 13 May 2001 complaining of lower back pain that had worsened that morning. In her evidence, she said she was experiencing pins and needles and a buzzing sensation in her toes and pain was radiating or pulsing through her legs (especially her right leg) that led to a burning sensation in her groin. She compared the sensation to holding onto an electric fence. She said she was “in a world of pain” and her husband had to carry her to the car and get her to the hospital. The notes of her attendance confirm she complained of back and shoulder pain over several days following the accident. The doctor who examined her noted he did not observe numbness or neurological signs. He said Ms Smith’s reflexes were normal and equal. There was no reference to leg pain. He also noted some tenderness over the lower posterior with spasm and swelling. He ordered x-rays that revealed disc space narrowing at L5/S1 but no evidence of an acute injury or trauma. He diagnosed acute muscle spasm. She did not receive a certificate excusing her from work; she went back to her treating general practitioner the following day for that purpose. She was referred to a physiotherapist.
The applicant was off work until the beginning of June 2001. She did not resume full-time work until around 23 July of that year. She continued to work until February 2002 when she became pregnant with her second child.
Ms Smith began to regularly attend a physiotherapist during this period. She occasionally reported recurrences of back pain associated with tenderness in the buttocks and on one occasion (on 9 October 2001) she reported a severe stitch in her ribs to the right of the lumbar spine. The respondent pointed out there is no record of the applicant reporting leg symptoms during the course of these interactions.
Ms Smith says she continues to experience back and leg symptoms, especially on her right side. The pain has never really abated, she says: she agreed in cross-examination that she experiences pain every day. Her leg became unstable, which resulted in falls. She says she must now be conscious of where she is walking and be cautious about terrain as her right leg is liable to give way. She still experiences back spasms and pain although she says she has become better at dealing with the pain now she has learned various pain management techniques. She frequently experiences pins and needles or a buzzing sensation but the pain also flares up on occasions. She uses medication to control the pain on bad days: she said in her evidence that she was lucky to have more than two or three good days in a row before a bad day. On the worst days, she might need assistance to stand and walk. Her activities of daily living have been affected, she says: the pain and lack of mobility make it difficult for her to perform many tasks, including housework and some aspects of personal care, such as shaving her legs. She continues to see a physiotherapist regularly.
The applicant said during the course of her oral evidence that she had trouble bending forward and down. During the hearing, she demonstrated how far she could bend: she moved slowly and indicated she could not get her fingers much past her knee. She also denied that she could twist readily, and said she avoided bending down to pick up her child unless absolutely necessary. She said she also had difficulty getting into and out of cars. That simple task required a slow and cumbersome movement that she demonstrated at the hearing. She said she had to do it every time she got into and out of the car.
The applicant’s story was largely corroborated by her husband. He said in his statement (exhibit 21) that his wife walked with a limp, especially on her frequent bad days. On really bad days, she could not get out of bed but he said she was never entirely pain free. She moved slowly and tended to hold herself up on furniture. The respondent says I should give less weight to Mr Smith’s evidence because it was given after he had sat through his wife’s evidence in the hearing room. (The decision to call him to give evidence was not taken until after the applicant’s evidence had commenced, if not concluded.)
Ms Smith’s claim that she was stiff and had difficulty walking or carrying her son or lifting was also corroborated by evidence from a former work colleague, Mr Simpson, a friend, Mr Pilgrim, and the proprietor of the childcare centre attended by the applicant’s child, Ms Kelly. Mr Pilgrim’s evidence was of limited value: he could not recall clearly which leg the applicant favoured, for example. Mr Simpson and Ms Kelly only saw the applicant occasionally. Dr Pridgeon, the treating general practitioner and Ms Burns, the treating physiotherapist, also describe limitations on activities and pain and discomfort over a long period which they attributed to Ms Smith’s accident in 2001. I note Dr Pridgeon admitted he was acting in the role of advocate for his patient, and Ms Burns’ evidence also had the air of advocacy.
THE VIDEO
The respondent tendered a video during the cross-examination after evidence was elicited from the applicant about the extent of her current incapacity. The video – which was a series of clips filmed covertly by a private investigator over 12 and 13 May 2011 – featured the applicant in a variety of situations. One clip showed her on an outing with friends. She is seen walking up a set of broad stairs, walking on level ground and sitting in a park. She is also seen getting into and out of her vehicle in several shots. There are other shots of her in and around the vehicle. In one shot, she is seen picking up her toddler son and placing him in the back of the vehicle. She is seen getting into the vehicle and twisting. There are other shots of her walking about and one of her bending over in a shop.
The applicant was shown the clips and asked to comment upon the apparent freedom of movement. The applicant agreed she remembered the day or days when the video must have been shot and said her level of pain and discomfort was not as good as some days, but better than others.
I will return to the video evidence in due course to discuss the reactions of the various expert witnesses.
THE APPLICANT’S THEORY OF THE CASE
The applicant says she had no history of serious back-pain that prevented her working prior to the accident. While she conceded there may have been degenerative change in her spine before the accident, she insists that change was asymptomatic and is in any event not a good explanation for her current symptoms. She says she was a fit and able-bodied person up until the car accident. She also denies any post-accident injury that might have broken the chain of causation. She says she suffered a small but significant right L5/S1 disc protrusion in the accident on 7 May 2001, and that protrusion is compressing the right S1 nerve root, which accounts for the ongoing back pain and leg symptoms.
Ms Smith relies on the evidence of Dr Pridgeon and Ms Burns. She also relies on the evidence of Dr Scott Campbell, a consultant neurosurgeon. His report (exhibit 31) says the applicant has an L5/S1 disc protrusion that resulted from the motor vehicle accident in May 2001. In his oral evidence, he said he accepted there was ordinary age-related degeneration in the applicant’s spine. He also noted a history of occasional minor back pain connected to the applicant’s pregnancy and to menstruation, but he says all that does not explain the main symptoms which trouble the applicant. He said little weight should be placed on the observations made at Grafton Base Hospital in May 2001: he said the clinical notes did not disprove the applicant’s claims about her injury. He explained he was untroubled by the absence of abnormal neurological signs at that presentation. He said some of the classical signs – such as pain down the leg to the sole of the foot, numbness and the absence of an ankle jerk – might not be evident in a case of mild compression. He doubted whether the applicant suffered from spina bifida occulta, which the respondent’s medical expert Dr Walker identified as an explanation for any symptoms. Dr Campbell conceded it was possible the disc prolapse could be the product of naturally occurring age-related degeneration, but he remained of the view that the most likely explanation was the motor vehicle accident in question.
THE RESPONDENT’S THEORY OF THE CASE
The respondent says the applicant is a poor historian, and suggests her medical experts have given an opinion based on an incomplete and exaggerated account of her condition. The video evidence confirms Ms Smith is not as debilitated as she claims, the respondent says. The respondent argues the applicant had a pre-existing back condition and her present condition is really nothing more than age-related degeneration of that condition that is not causally linked to her car accident in 2001.
The respondent notes there is evidence the applicant has a long history of backpain that dates back to when she was a girl. Ms Smith’s treating doctor had ordered an x-ray of her spine in August 1985 which showed signs of spina bifida occulta. She had a further x-ray in December 1993. Clinical notes of a visit to the doctor on 9 August 1994 recount complaints of backpain and tenderness at the L5/S1 level. The applicant’s mother confirms a history of backpain which resulted in the applicant having a good deal of time away from school, but says (with the applicant) it was related to menstruation pain, and the applicant says that pain is different and distinguishable from the back pain she experienced following the accident. There may also have been pain associated with the applicant’s pregnancies, but that was essentially transient.
Dr Walker, a consultant neurosurgeon who saw the applicant upon referral from her general practitioner in 2007, was called to give evidence. He had reviewed x-rays showing degenerative change and opined they were unrelated to the motor vehicle accident. At the hearing, he said the applicant suffered from a congenital condition called spina bifida occulta although he suggested he was unable to identify an anatomical explanation for the symptoms the applicant described. (I note neither party sought to introduce expert evidence from a psychologist or psychiatrist that might comment on possible non-organic explanations for the applicant’s symptoms.) Dr Robert Campbell, a neurosurgeon, reached a similar view in his oral evidence: given the new information that had come to light about the applicant’s history of backpain before the accident, he inclined to the view that the current condition, such as it was, could be attributed to degenerative change.
THE VIDEO EVIDENCE
I have already provided a brief description of the video evidence and the circumstances in which it came into being. I have also noted the applicant agreed the video clips were taken on a day or days when she was having a reasonably ordinary experience: not especially good, but not bad.
A number of the applicant’s expert witnesses (including Dr Scott Campbell and Ms Coles, the occupational therapist) reviewed the video evidence and were asked for their comments. Dr Campbell ultimately agreed the applicant moved quite freely in the video although Ms Coles in particular said she saw evidence of the applicant struggling up stairs and managing her gait in ways consistent with a person experiencing the back and leg symptoms of which she complained.
Most of the other experts had a different view. Dr McPhee said he saw no evidence of a significant back condition. He said a person who had the kind of back problems referred to by the applicant would not be able to accomplish many of the things he saw in the video even on a good day. Drs Walker, Olsen and Robert Campbell essentially agreed. Dr Oates, who had earlier expressed a view that the applicant was incapacitated, saw the video evidence and changed his mind.
I had to review the videos on a number of occasions throughout the hearing as they were played for witnesses. I observed the applicant showing some very limited signs of restriction or hesitation at some points in the video. She was seen negotiating a set of stairs carefully, and she was filmed adjusting her posture while sitting on a number of occasions in a way that was consistent with evidence of discomfort. But I am not an expert, and the preponderance of expert evidence suggests there was no convincing evidence of significant incapacity. The evidence to the contrary from Ms Coles in particular was redolent of advocacy.
I am conscious that one must be careful of giving too much weight to evidence of what happened on one or two days. There is always a danger that the evidence might have shown exceptional behaviour. But most of the medical experts who reviewed the video evidence, most obviously the well-credentialed Dr McPhee who has lengthy experience in dealing with back problems of this kind, suggested the applicant did not continue to suffer from any serious residual incapacity or consequences.
CONCLUSION
The evidence led by the applicant and the witnesses she called attesting to her incapacity cannot be reconciled with the objective evidence in the covert video footage which suggests, according to preponderance of medical experts, that the applicant is able to move more or less freely and without meaningful restriction. I prefer the objective evidence. But even if the applicant does continue to experience some incapacity, it is not compensable unless I can be satisfied it is attributable to her motor vehicle accident in May 2001 in accordance with the legislation.
I can only do that if I accept the evidence of Dr Scott Campbell that the applicant’s current condition is attributable to an L5/S1 disc protrusion that was caused by the accident. Dr Campbell stuck to his opinion even in the face of evidence of a pre-existing back condition (including records of pain at the L5/S1 level as early as 1994) and the absence of signs reported in the notes of the treating doctor at the Grafton Base Hospital in May 2001 a few days after the accident.
Dr Campbell might be right, but I think the preponderance of the evidence from well-credentialed experts who referred to objective evidence including clinical notes and x-rays suggests the applicant has a pre-existing congenital back condition that accounts for whatever symptoms she currently experiences. I am not satisfied the applicant’s claim is made out in those circumstances.
I do not doubt – and I do not understand the respondent disputes – the applicant may have been injured in the course of the May 2001 accident. At a minimum, she appears to have suffered from shock and may well have experienced some sort of soft tissue injury. The fact she continues to experience pain that she traces back to the accident raises questions about whether there is a psychological overlay that ought to be investigated, but I have no evidence on that issue before me.
The decision under review must therefore be affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ................................[Sgd.....................................
Associate
Dated 30 October 2012
Dates of hearing 30 April 2012
1 – 2 May 2012
11 May 2012Counsel for the Applicant Mr Cameron Solicitors for the Applicant Trenches McKenzie Cox Solicitors Counsel for the Respondent Ms Ford Solicitors for the Respondent Sparke Helmore Solicitors
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