Dib and Comcare
[2008] AATA 739
•25 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 739
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/3154
GENERAL ADMINISTRATIVE DIVISION )
Re SALIM M DIB Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date25 August 2008
PlaceSydney
Decision The decision under review is affirmed.
....................[Sgd]......................
Dr J D Campbell
Member
CATCHWORDS
WORKERS’ COMPENSATION – work related incident – damage to spine involving cervical and lumbar regions – whether a single injury with two permanent impairments or two separate injuries with each giving rise to a permanent impairment – issue of assessment: Combined versus individual.
Safety, Rehabilitation and Compensation Act 1988 – sections 4 and 24
Comcare v Etheridge and Others (2006) 149 FCR 525
Canute v Comcare (2006) 226 CLR 535
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593
REASONS FOR DECISION
25 August 2008 Dr J D Campbell, Member background
1. Mr Dib was a 55 year old employee of the Department of Defence when he was involved in a motor vehicle accident on his way home from work on 23 June 2003.
2. Mr Dib lodged a claim for compensation on 26 June 2003 together with a medical certificate from Dr Aloe, the treating general practitioner, dated 30 June 2003, which described Mr Dib as suffering from neck pain and back pain.
3. A CT scan of Mr Dib’s cervical spine undertaken on 7 July 2003 was reported as showing:
Interbody spondylosis extended from C2/3 to C7/T1 with perimeter osteophytosis of the interbody margins of marked severity particularly at lower cervical levels where there was anterior interbody bridging indicating disseminated idiopathic skeletal hyperostosis (DISH). Severe degenerative disc disease was also present at several levels, but particularly at C6/7.
4. A CT scan of the lumbar spine undertaken on 7 July 2003 was reported as showing:
Minor interbody spondylosis was present at L3/4 and L4/5 with perimeter osteophytosis of the interbody margins.
5. On 27 August 2003, Comcare, in a determination, accepted liability to pay compensation for injuries pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”), for:
·Neck sprain
·Sprain of unspecified site of shoulder and upper arm (right)
·Contusion of chest wall (left)
·Lumbar sprain.
6. On 2 October 2003, Comcare accepted liability to pay compensation in respect of the nominated injuries for physiotherapy (twice weekly), consultations with his general practitioner and pharmaceuticals.
7. Mr Dib was assessed by Dr Thomson, a consultant orthopaedic surgeon, on 22 January 2004. In a report dated 23 January 2004 (T51), Dr Thomson concluded that as a result of the motor vehicle accident, Mr Dib was continuing to experience pain in his neck and left shoulder and also pain in his lower back with some radiation to his upper legs. Dr Thomson believed that “there have been ligamentous strains of the cervical and lumbar spines, with aggravation of asymptomatic spondylitic changes in [his] cervical spine and early changes in the lumbar spine.” Dr Thomson was particular in stating that Mr Dib’s condition “is now related to the aggravation of his pre-existing conditions, which have become symptomatic” and that “there will be ongoing complaints of neck and lower back pain from Mr Dib.”
8. On 25 February 2004 (T59), Comcare varied the determination of 27 August 2003 by amending the accepted primary compensable condition from “neck sprain” to “aggravation of cervical spondylosis (Left)”.
9. Mr Dib was referred to Dr Mahony, a consultant orthopaedic surgeon. In a report dated 16 March 2005 (T103), and in a further report dated 30 May 2005 (T120) following an MRI scan of the lumbar spine on 16 March 2005 (T104), which was reported as demonstrating age related desiccation of the lumbar intervertebral discs, with early lower lumbar facet joint arthropathy, Dr Mahony concluded that:
Mr Dib does appear to have developed symptoms referable to a cervical strain in association with advanced degenerate changes with multiple discogenic lesions, particularly at the C6/7 level, the occipital headaches being referred from the neck, as well as low lumbar back strain with nerve root irritation affecting the lower limbs.
10. Mr Dib was examined by Dr Wallace, a consultant orthopaedic surgeon, on 6 September 2006. In his report (T151) Dr Wallace stated that Mr Dib suffered multiple injuries as a result of the motor vehicle accident on 23 June 2003. Dr Wallace noted that symptoms persisted in relation to the neck and back, and listed the diagnosis for the various injuries as:
·musculoligamentous strain, cervical spine;
·aggravation of pre-existing cervical spondylosis;
·musculoligamentous strain, lumbar spine;
·aggravation of pre-existing lumbar spondylosis;
·rotator cuff strain, left shoulder – now resolved;
·soft tissue injury, anterior chest wall – now resolved.
11. In a further report of 6 September 2006 (T152), Dr Wallace stated Mr Dib’s condition had stabilised. He concluded that Mr Dib had suffered:
·a whole person impairment of 8 per cent as a result of his cervical spine injury, pursuant to Table 9.15 of the Second Edition of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”); and
·a further whole person impairment of 8 per cent as a result of his lumbar spinal injury according to Table 9.17 of the Guide.
12. Dr Wallace concluded that Mr Dib had suffered a 15 per cent whole person impairment as a result of injuries sustained in the motor vehicle accident on 23 June 2003 – such an outcome was achieved by combining the two separate impairment assessments using the Combined Values Table.
13. Mr Dib lodged a claim for permanent impairment on 7 November 2006 (T156). His claim was denied by Comcare on 5 December 2006, on the grounds that compensation for permanent impairment arises in respect of each injury sustained by an employee, with whole person impairments arising from each injury not being subject to combining using the Combined Values Table.
14. In a further report dated 2 January 2007 (T161), Dr Wallace contended that:
·Mr Dib suffered several impairments as a result of a single incidence of injury in a work related motor vehicle accident on 23 June 2003.
·A single injury may give rise to multiple losses of function, with separate scores allocated to each functional impairment, and the scores combined using the Combined Values Table to determine the whole person impairment arising from that injury.
15. Following a request for reconsideration of the determination of 5 December 2006 on 19 February 2007 (T168), Comcare affirmed the earlier determination, contending that where there are separate injuries, albeit sustained in one incident, they are to be assessed separately in regard to their permanent impairment and cannot therefore be combined. Only when a single “injury” (as defined by the SRC Act) results in multiple impairments, is it permitted to combine such impairment assessments.
Issues
16. The relevant issues in this matter are:
(a)What is the definition of an “injury” pursuant to the Safety Rehabilitation and Compensation Act 1988?
(b)As a consequence, what injury or injuries did Mr Dib suffer as a consequence of the work related motor vehicle accident of 23 June 2003?
(c)Have such injury or injuries given rise to impairments and are such impairments permanent?
(d)What is the whole person impairment for each permanent impairment arising from a nominated injury?
(e)Is Mr Dib entitled to payment of compensation for injuries resulting in permanent impairment?
Relevant Evidence
17. Mr Dib was particular in stating that he had not experienced any symptoms in either his neck and/or his lower back prior to the accident on 23 June 2003. Mr Dib further stated that prior to that date he had been an active soccer referee and soccer coach for many years, with the former activity involving him in running for most of a day, every week of the soccer season.
18. Mr Dib was also particular in describing his onset of symptoms after the accident on 23 June 2003, and the continuing of such symptoms up to this time, albeit with symptoms relating to his chest wall resolving within months of the accident, and some improvement in the neck and back symptoms in 2007 and 2008, as a consequence of his continuing hydrotherapy and physiotherapy treatment.
19. Mr Dib also detailed the circumstances of another motor vehicle accident on 31 March 2004, which involved his attendance at St George Hospital with complaints of sternal pain. The attending registrar noted that Mr Dib was tender over the sternum and the ribs bilaterally, but that there was no head, facial, spinal or limb injury (Exh A2).
Further Medical Evidence
20. In a medical report dated 2 November 2007, (Exh R2), Dr Bornstein, a consultant orthopaedic surgeon, detailed Mr Dib’s clinical history and concluded that his current clinical status is basically static. Dr Bornstein considered that Mr Dib suffered from:
·Diffuse idiopathic skeletal hyperostosis (DISH) in his cervical spine – noting that this is a constitutional condition.
·Significant degenerative changes in the cervical spine between C2/3 and C7/T1.
·Minor degenerative disc disease at L3/4 and L4/5.
21. Dr Bornstein considered that there was no continuing injury to the neck and/or back, with any soft tissue injury and aggravation having ceased within three months of the accident.
22. Dr Bornstein considered that Mr Dib does have a permanent impairment of his cervical spine, as there is an asymmetric loss of range of motion. Dr Bornstein assessed this permanent impairment as equivalent to an 8 per cent whole person impairment, pursuant to Table 9.15 of the Guide. Dr Bornstein was particular in stating that such impairment does not arise from the injury of 23 June 2003, but is a constitutional assessment at this time.
23. Dr Bornstein also considered that Mr Dib has an 8 per cent whole person impairment, when the asymmetric loss of range of motion of the lumbar spine and the non-verifiable radicular complaints are assessed pursuant to Table 9.17 of the Guide. Dr Bornstein concluded that such an impairment is constitutional in origin.
24. In a supplementary report dated 5 May 2008 (Exh R3), Dr Bornstein concluded that as a consequence of the motor vehicle accident of 23 June 2003, Mr Dib suffered from a soft tissue injury, with the normal consequence of such injuries being that they subside with alleviation of symptoms over a three month period. Dr Bornstein also noted that if it were not a soft tissue injury, then clearly it would not subside.
25. In further opinion, Dr Bornstein stated that he was not certain that the degenerative changes became symptomatic at the time of the accident, but rather Mr Dib experienced soft tissue pain in the regions where the degenerative changes existed, with the likelihood that these changes would have become symptomatic about the same time, irrespective of the motor vehicle accident. Dr Bornstein believed the reason underlying the continuance of symptoms was the progression of the underlying disease process.
26. I also note that determinations have been made by Comcare in relation to Mr Dib receiving physiotherapy and/or hydrotherapy for the impairments arising from the injuries for which liability was initially accepted on 27 August 2003. It would appear that approval for payment for such treatments commenced on 2 October 2003, and have continued on a three monthly approval review basis since that time.
27. The issue of whether there was a single injury or multiple injuries, with resultant permanent impairments, was further addressed in oral evidence by Drs Wallace and Bornstein. It would appear that both doctors agree that there was a single incident of injury (trauma) to the spine with both doctors, in general terms, agreeing to the anatomical description and functions of the spine and, in so doing, noting the more extensive range of the normal range of movements of the cervical spine, a lesser range in the lumbar spinal regions as opposed to a limited range of movements of the thoracic spine. The difference between the two doctors was that Dr Wallace considered the spine as a single anatomical entity, with the incident giving rise to trauma which caused an injury to the totality of the spine, which resulted in two permanent impairments, one at the cervical spine level and a second at the lumbar spine level. Dr Bornstein agreed that the incident gave rise to trauma to the whole of the spine, with injuries occurring in the cervical and lumbar spinal regions – these being functionally different regions with both injuries resulting in permanent impairments at the respective levels.
Consideration and Findings
28. The concept of “an injury” is a central and critical component in the structure of the SRC Act. Section 14 of the SRC Act is concerned with liability to pay compensation to an employee for work related injury(ies). Section 24 of the SRC Act is concerned with the liability to pay compensation to an employee for a work related injury, which results in a permanent impairment.
29. Section 4 of the SRC Act defines the word injury as follows:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)the aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
30. Section 4 of the SRC Act also defines the following:
Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or any bodily system or function as part of such system or function.
…
Permanent means likely to continue indefinitely.
31. Section 24(2) of the SRC Act provides for matters to which regard must be paid in determining whether an impairment is permanent. Such matters include:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitation treatment for the impairment; and
(d)any other relevant matters.
32. While the concept of an “injury” is central to the construct of the SRC Act, the common sense meaning of the word injury has not been defined by the SRC Act. Both the Concise Oxford Dictionary and the Macquarie Dictionary 3rd Edition define the word injury in terms of harm, damage, hurt or loss caused or sustained.
I note the following extracts from Comcare v Etheridge and Others (2006) 149 FCR 522:
[The term “injury” in section 4(1) of the SRC Act is used in] its ordinary and common meaning. The question of whether facts as found fall within the meaning of “injury” is a question of fact [and not one] of law. (Hope v Bathurst City Council (1980) 144 CLR 1…).
…
[An “injury” in workers’ compensation context in Australia is generally understood] to be a sudden or identifiable physiological change including a change internal to the body: Kennedy Cleaning Services Pty Ltd v Petkoska [(2000) 200 CLR 286].
33. I also note that the term aggravation includes acceleration or recurrence (section 4), with the term “aggravation” considered to mean “that an existing injury has been made worse, not that it has simply become worse” (Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 573 per Windeyer J). Aggravation of a pre-existing injury is often referred to in terms of a permanent change to the underlying patho-physiology of the pre-existing condition, whether it be an injury or a disease.
34. In addressing the material in evidence in this matter, I find that Mr Dib suffered from two pre-existing conditions at the time of his injury in June 2003, namely degenerative spondylosis of the cervical spine, associated with disseminated idiopathic skeletal hyperostosis (DISH), and degenerative spondylitic changes in the lumbar spine. Evidence for such a finding rests with the radiological findings of July 2003, and the opinions of the four orthopaedic surgeons, namely Drs Thomson, Mahony, Wallace and Bornstein.
35. As a result of the motor vehicle accident of 23 June 2003, I conclude that Mr Dib suffered an episode of trauma, which resulted in harm/damage to his left chest wall (contusions), right shoulder and upper arm (sprain), neck region (sprain and aggravation of pre-existing cervical spondylosis) and lumbar region (sprain and aggravation of pre-existing lumbar spondylosis). The harm/damage described as having been occasioned to each area of the body nominated does, in my view, constitute an injury to that nominated area. In so finding, I am satisfied that a single incident of trauma caused harm/damage and sudden and identifiable physiological change to the nominated areas of the body.
36. Such a finding is consistent with the opinions of Drs Thomson and Bornstein, as regards the concept of “injury”. I am unable to accept Dr Wallace’s opinion that, as regards the spine, there was but a single injury, as clearly the ongoing symptomatology relates, as does the resultant impairments, from two discrete areas of the spine (cervical and lumbar) that have been subject to a single incident involving trauma, which has caused worsening of two separate and discrete pre-existing conditions. This, in my view, constitutes two separate injuries, namely one to the cervical spine area and one to the lumbar spinal region. This view I must say is consistent with what Dr Wallace has written in his earlier report of 6 September 2006. This earlier view by Dr Wallace appears to have changed when faced with an outcome that impairment assessments arising from discrete injuries consequence to a single incident of trauma cannot be combined using the Combined Value Tables.
37. While I have addressed the issue of injury as though there were two separate spinal injuries (aggravation of pre-existing cervical spondylosis and aggravation of pre-existing lumbar spondylosis), I am mindful that I have not made such a finding of fact. I have earlier considered the concept and understanding of the term aggravation. In this matter, I note the history of Mr Dib’s neck and back pain, his continuing symptomatology, the continued review and acceptance by Comcare that continued physiotherapy and/or hydrotherapy is appropriate therapy, and the opinions of Drs Thomson, Mahony and Wallace. In acknowledging such material, I conclude that Mr Dib did suffer both soft tissue injuries to his cervical and lumbar spines, as well as suffering injury in the form of an aggravation to each of the pre-existing conditions in Mr Dib’s cervical and lumbar spines.
38. I do not accept Dr Bornstein’s opinion that the continuing symptomatology experienced by Mr Dib is the consequence of the natural progression of the pre-existing degenerative conditions in each spinal region, with the original injuries, being soft tissue injuries to the cervical and lumbar regions, resolving within a three to six month period. While I acknowledge that such is a possibility, I require more than educated speculation to advance such a possibility to a probability, in the light of Mr Dib’s clinical history and the opinions of Drs Thomson and Wallace.
39. In summary, on the balance of probabilities, I am satisfied that Mr Dib suffered injuries to his spine as a consequence of the trauma on 23 June 2003 in his cervical and lumbar regions. The injury to his cervical region involved both soft tissue damage, which resolved in several months, and an aggravation of pre-existing degenerative cervical spondylosis. The injury to his lumbar region involved both soft tissue damage, which resolved in several months, and an aggravation of pre-existing degenerative lumbar spondylosis. Symptoms from both aggravated injuries continue to this time, with impairments arising from such injuries considered permanent. In so finding, I note the opinions of Drs Bornstein and Wallace, with Dr Bornstein being of the opinion that such permanent impairments do not result from work related injuries – an opinion considered and rejected earlier in this decision.
40. In addressing assessment of the permanent impairments, I acknowledge that both Drs Wallace and Bornstein have assessed the cervical spine permanent impairment at 8 per cent whole person impairment pursuant to Table 9.15 of the Guide. Similarly, both doctors have assessed the lumbar spine permanent impairment at 8 per cent whole person impairment pursuant to Table 9.17 of the same Guide. I accept their assessments and so find that each injury has resulted in a permanent impairment, with each permanent impairment assessed at 8 per cent whole person impairment.
41. The High Court in Canute v Comcare (2006) 226 CLR 535 has determined that the occurrence of an “injury” activates and defines the ambit of duty pursuant to section 24 of the SRC Act. In particular, the whole person assessment approach relates to assessment of permanent impairment arising from each injury.
42. In this matter, the permanent impairment from each injury has been assessed as 8 per cent whole person impairment. Section 24(7)(b) of the SRC Act requires that a ten per cent whole person threshold, arising from each injury, is necessary for compensation to be paid in relation to permanent impairment arising from each injury. In the circumstances of this matter, I conclude that compensation for permanent impairment arising from injuries, covered by his work related accident of 23 June 2003, is not payable.
Decision
43. The decision under review is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: ...............[Sgd].......................
Ms R Prasad, AssociateDates of Hearing 23 and 24 June 2008
Date of Decision 25 August 2008
Counsel for the Applicant Mr Grey
Solicitor for the Applicant Mr Ohm and Mr Mannah, Carroll & O’Dea
Counsel for the Respondent Mr Dubé
Solicitor for the Respondent Ms Mittiga, Dibbs Abott & Stillman
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