Darren Greaves and Comcare

[2015] AATA 177

[2015] AATA  177

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6026
Re	Darren Greaves
APPLICANT
And	Comcare
RESPONDENT

Decision

Tribunal	Deputy President K Bean
Date	26 March 2015
Place	Canberra

The decision under review is affirmed.

..............................[sgd]..........................................

Deputy President K Bean

Catchwords

COMPENSATION - Commonwealth employees - Whether Applicant continues to suffer effects of injury - Nature of injury suffered - Whether symptoms result from pre-existing degenerative condition - Decision under review affirmed.

Legislation

Safety, Compensation and Rehabilitation Act 1988 ss 16 and 19

CASES

Commonwealth v Borg (1994) 20 AAR 299 at 307

REASONS FOR DECISION

Deputy President K Bean

26 March 2015

1. In June 2009, the applicant, Mr Greaves, was employed as a cook at Canberra Hospital where his brother also worked as a cook. On 29 June 2009, he was working with his brother in the kitchen at the hospital when the two of them lifted a relatively heavy mixing bowl which had “meatloaf mixture in it”.[1] Unfortunately, this resulted in Mr Greaves suffering back pain, for which he was treated later that day.

   [1]     Exhibit 1, T7/36.

2. The day after suffering this injury, Mr Greaves lodged a claim for workers’ compensation in respect of “low back pain”,[2] and on 31 July 2009, the respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the conditions of “lumbar sprain”, “sprain of ribs (right)”, and “specified sites of sprains and strains (left) (inguinal strain)”.[3]

   [2]     Exhibit 1, T4/19.

   [3]     Exhibit 1, T10/39.

3. Mr Greaves subsequently attempted to return to work in September 2009, but unfortunately this attempt was not successful. He ultimately ceased employment with the hospital on 28 February 2010.[4] He claims that he has continued to experience back pain since suffering the injury, albeit the level of that pain has fluctuated. Accordingly, he contends that he remains entitled to receive compensation in respect of his injury.

   [4]     Exhibit 1, T36/153.

4. However, in light of the then current medical evidence, on 26 July 2013, the respondent determined that Mr Greaves no longer suffered from the effects of his accepted conditions, and accordingly had no ongoing entitlement to payment of compensation in respect of incapacity or medical treatment.[5]

   [5]     Exhibit 1, T41.

5. That determination was affirmed on reconsideration on 9 September 2013,[6] and on 25 November 2013, Mr Greaves applied to this Tribunal for review of the reconsideration decision, giving rise to these proceedings.

   [6]     Exhibit 1, T43.

   the statutory framework

6. In this context, the most relevant provisions are ss 16 and 19 of the SRC Act which govern an employee’s entitlement to the payment of medical expenses and incapacity payments respectively. The most relevant terms of ss 16 and 19 are set out below:

   16  Compensation in respect of medical expenses etc.

   (1)  Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

   Note:Compensation is not payable under this subsection in relation to certain defence-related claims (see Division 2A of Part XI).

   …

   19  Compensation for injuries resulting in incapacity

   (1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

   (2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

   where:

   AE is the greater of the following amounts:

   (a)the amount per week (if any) that the employee is able to earn in suitable employment;

   (b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

   NWE is the amount of the employee’s normal weekly earnings.

   …

   issues

7. It follows that in legal terms, the issues for my determination are:

   (a)Whether, as at and from 27 July 2013, Mr Greaves has continued to suffer from the effects of his accepted conditions; and

   (b)If so, whether he is entitled to ongoing compensation under ss 16 and/or 19 of the SRC Act for medical treatment and/or incapacity.

8. I propose to address each of these issues in turn, insofar as it is necessary for me to do so.

   does mr Greaves continue to suffer from the effects of his accepted conditions?

9. As there is no dispute on the evidence that Mr Greaves continues to suffer from a degree of ongoing back pain and incapacity, the first relevant question for me to address in this context is the precise nature of the injury suffered by Mr Greaves on 29 June 2009. In addressing that question, I will first discuss the salient aspects of the documentary evidence, before turning to the oral evidence given at the hearing.

   The documentary evidence

10. On the day of the accident, Mr Greaves was apparently examined by a doctor at Canberra Hospital who indicated that he was suffering from ‘back pain’ and would be unfit to return to work until 3 July 2009 and potentially until 10 July 2009.[7] The doctor prescribed physiotherapy and review by his general practitioner before Mr Greaves returned to work. The doctor also noted as a pre-existing or contributing factor “back pain for one month”.[8] For completeness, also before me is a note apparently written by a physiotherapist at the Canberra Hospital on the date of the injury, 29 June 2009, stating “Reports similar pain in past – no treatment sought”.[9]

    [7]     The Tribunal notes that on completing the Medical Certificate for Workers Compensation the author has written that the applicant “is unfit to work from 29/6/09 to 3/6/09 and may not be fit until 10/6/09”.

    [8]     Exhibit 1, T3/15.

    [9]     Exhibit 4, Tab 28.

11. In a form subsequently provided to Comcare, Mr Greaves’ General Practitioner, Dr Bradfield, indicated that Mr Greaves had suffered a right rib strain and left inguinal strain as well as other muscular damage.[10] Mr Greaves was subsequently examined by Dr Ian Low, Specialist in Occupational Medicine, on 21 October 2009. Dr Low concluded that Mr Greaves had “strained his torso” and was not suffering from significant lower back pathology.[11] Dr Bradfield nevertheless ordered a CT scan of Mr Greaves’ lumbar spine in November 2009 which showed a “broadbased disc bulge” at L4/5 as well as “degenerative change” and “a small broadbased disc bulge” at L5/S1.[12]

    [10]    Exhibit 1, T9/38.

    [11]    Exhibit 1, T13/47.

    [12]    Exhibit 1, T14/48.

12. Mr Greaves was later examined at the respondent’s request by Dr William Coyle, Orthopaedic Surgeon, in March 2010. Dr Coyle concluded that Mr Greaves “may have sustained a soft tissue injury to his left loin or low back and even aggravated pre-existing lumbosacral disc pathology”[13] in the injury. He noted that Mr Greaves had “some symptoms and signs consistent with lower lumbar disc injury … but his presentation is unusual and suggests a functional or non-organic component in his present condition”.[14] Further imaging in the form of an MRI scan of Mr Greaves’ lumbar spine undertaken in May 2010 showed a small annular tear associated with a small broad-based disc bulge at L3/4, and a central annular tear with a small central disc bulge at L4/5, together with a further small broad-based disc bulge at L5/S1.[15]

    [13]    Exhibit 1, T16/58.

    [14]    Exhibit 1, T16/59.

    [15]    Exhibit 1, T17/60.

13. Also before me are reports of Dr Pik, Neurosurgeon, to Dr Bradfield dated 31 August 2010 and 18 October 2010. These reports confirm that Mr Greaves gave a history of having developed “severe left-sided thoracic back pain and chest wall pain some 12 months ago” and that, since that time, Mr Greaves had “been experiencing ongoing left sided low back pain with radiation down the left leg.”[16] Dr Pik reported that he thought Mr Greaves’ symptoms represented “mechanical back pain with referred leg pain”[17] related to his three “desiccated lumbar discs from L3/4 down to L5/S1.”[18] However, Dr Pik has not given any opinion as to the relationship between Mr Greaves’ condition and his injury of 29 June 2009.

    [16]    Report of Dr Pik to Dr Bradfield dated 31 August 2010.

    [17]    Report of Dr Pik to Dr Bradfield dated 31 August 2010.

    [18]    Report of Dr Pik to Dr Bradfield dated 18 October 2010.

14. Mr Greaves was subsequently examined at the request of the respondent by Dr Nicholas Burke, Consultant Occupational Physician, who provided a report dated 23 November 2010.[19] Dr Burke concluded that Mr Greaves was suffering from a low back strain “with aggravation of pre-existing degenerative change in the lumbar spine”.[20] He also considered that this had resulted in Mr Greaves suffering an 8% permanent impairment as a result of his work injury.[21] In a subsequent report, he indicated, “… [i]n my opinion it would be reasonable to assess 75% of his impairment as related to the work-related injury and 25% to pre-existing factors.”[22]

    [19]    Exhibit 1, T25/109.

    [20]    Exhibit 1, T25/114.

    [21]    Exhibit 1, T25/116.

    [22]    Exhibit 1, T28/130.

15. Some years later, in 2013, Mr Greaves was examined at the request of the respondent by Dr Loretta Reiter, Consultant Rheumatologist, who provided a report dated 18 March 2013.[23] Her conclusion was that:

    Mr Greaves sustained a soft tissue injury to his lumbar spine and left anterior chest wall when working as a cook lifting a large tub of meat on 29 June 2009. He has recovered from this injury and now his ongoing symptoms are due to lumbar spondylosis and degenerative disease of his facet joints … with referred pain into his left leg.[24]

    [23]    Exhibit 1, T36/152.

    [24]    Exhibit 1, T36/155.

16. A further CT scan of the lumbar spine performed in 2013 also showed:

    There is mild broad based disc protrusion at L4/5 and L5/S1, more severe at L5/S1. There is also severe spondylosis at L5/S1. There is no evidence of nerve root impingement at any level.[25]

    [25]    Exhibit 1, T40/165.

17. The respondent subsequently also sought an opinion from a Consultant Orthopaedic Surgeon, Dr Anthony Cairns, who examined Mr Greaves on 21 March 2014. Dr Cairns’ opinion was that:

    … Mr Greaves is not currently suffering from the effects of his compensable conditions. In my opinion, Mr Greaves’ ongoing impairment derives from age-related, constitutional multi-segmental lumbar intervertebral disc degeneration, lumbar spondylosis, and early onset bilateral hip osteoarthrosis.[26]

    [26]    Exhibits 2 and 3.

    The oral evidence

18. Mr Greaves gave evidence at the hearing that he did not have back problems prior to the injury but had had back pain consistently since then, although it went “up and down”. He said he thought the original diagnosis was wrong and that he had suffered “nerve damage” as a result of the injury.

19. Mr Greaves’ General Practitioner, Dr Bradfield, also gave oral evidence at the hearing. Dr Bradfield indicated in his evidence that he agreed with Dr Burke’s opinion that in the incident of 29 June 2009, Mr Greaves had suffered a low back strain with aggravation of pre-existing degenerative changes of his lower spine. He said he thought that the degenerative changes were “asymptomatic” before the injury. Dr Bradfield also indicated that he thought it was possible that Mr Greaves may have torn the annulus of one or more discs at the time of the injury, which may in turn have contributed to his back pain and led to left-sided sciatica, although he acknowledged that the “radiology” did not confirm this. He also acknowledged that problems such as disc bulges and annular tears can occur spontaneously and are not always the result of injury. He also thought it likely that the depression from which Mr Greaves was also suffering had inflated his pain perception.

20. Dr Cairns also gave oral evidence in the course of which he confirmed that it remained his view that Mr Greaves had long-standing degenerative changes in his spine unrelated to the injury. As to why he considered that the injury was not causing any of Mr Greaves’ current symptoms, he explained that he held that opinion on the basis of what he understood to be the mechanism of the original injury, which he considered would only have caused a soft tissue injury from which Mr Greaves should have recovered within four to six weeks. He further indicated that his examination of Mr Greaves revealed no nerve involvement. Dr Cairns was then asked about Dr Coyle’s opinion that Mr Greaves’ injury had aggravated his pre-existing pathology. Dr Cairns stated that, taken as a whole, he read Dr Coyle’s report as indicating that Mr Greaves had suffered a symptomatic aggravation, rather than an aggravation which had an impact on the underlying pathology. He also pointed out that on examining the applicant, Dr Coyle indicated that he “could detect no objective signs of pathological deficit in his lower limbs”.

21. Dr Reiter, who also gave oral evidence, also confirmed that she still held a similar opinion. She did not consider that the imaging showed any evidence of disc protrusion or extrusion. She further indicated that even if that had occurred as a result of the injury, it would not have had ongoing consequences for more than six to eight weeks.

    Analysis

22. I consider the evidence bearing upon this issue to be relatively finely balanced. There is some evidence to suggest that the pre-existing degenerative changes in Mr Greaves’ lumbar spine were aggravated by the injury, in such a way as to cause long-term consequences. The reports of Dr Coyle and Dr Burke both tend to support that view, and the reports of Dr Pik also lend some support to that view, albeit they do not directly address the issue of the relationship between Mr Greaves’ back condition and his compensable injury. Some aspects of Dr Bradfield’s evidence also support the proposition that Mr Greaves’ degenerative changes were rendered symptomatic by the injury of 29 June 2009.

23. Weighing against that evidence, however, is the written and oral evidence of two of the specialist doctors, Doctors Cairns and Reiter. They both gave evidence that there was no objective evidence that Mr Greaves’ back condition was causing nerve related symptoms in any event, regardless of the cause of those symptoms. Further, they each indicated that based on the history and what they understood to be the mechanism of injury, they considered that Mr Greaves had only suffered a soft-tissue injury which they expected would have fully resolved within a relatively short time. In addition, there is some evidence to suggest that Mr Greaves had similar back pain prior to the injury of 29 June 2009.

24. In these circumstances, it would have been helpful to receive oral evidence from some of the doctors who assessed Mr Greaves at an earlier point in time, in particular Dr Coyle and Dr Burke. Their evidence may have weighed in favour of Mr Greaves by explaining in more detail why they considered there to be a connection, or possible connection, between the injury of 29 June 2009 and at least some of Mr Greaves’ ongoing back symptoms.

25. On the basis of the evidence before me however, I am persuaded on balance that there is insufficient objective evidence to support the proposition that Mr Greaves suffered anything other than a soft-tissue injury in the lifting incident of 29 June 2009. To the extent the medical opinions are inconsistent, I prefer the opinions of Doctors Cairns and Reiter, who each gave evidence that the effects of that injury would have lasted for only a relatively short time and that the injury would have entirely resolved long before 26 July 2013, when the respondent ceased liability. Accordingly, I am satisfied that after 26 July 2013 Mr Greaves has not continued to suffer from the effects of his accepted conditions, or any other condition related to or contributed to by the incident of 29 June 2009. Rather, I consider that his ongoing symptoms and incapacity are attributable to his underlying degenerative condition, which was not aggravated or affected in any ongoing way by the injury. In other words, I am satisfied that from 27 July 2013, Mr Greaves’ back-related symptoms, and his level of incapacity, have been the same as they would have been if the injury of 29 June 2009 had not occurred, and have not been the “result” of his compensable injury.

26. For completeness, I note that the respondent bears a practical onus in these circumstances of demonstrating that the effects of the compensable injury have ceased.[27] For the reasons I have given, I consider that onus to have been discharged.

    [27]    See Commonwealth v Borg (1994) 20 AAR 299 at 307.

    is mr greaves entitled to ongoing compensation for medical treatment and incapacity?

27. It also follows that as I am satisfied that the effects of Mr Greaves’ compensable injury had ceased by 26 July 2013, he has no entitlement to ongoing compensation under ss 16 or 19 after that date.

28. Accordingly, I have decided to affirm the decision under review.

    decision

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

................................[sgd]........................................

Associate

Dated 26 March 2015

Date(s) of hearing	19 December 2014
Applicant	In person
Counsel for the Respondent	Ms S Wright
Solicitors for the Respondent	Australian Government Solicitor