Dutton and Comcare
[2000] AATA 973
•8 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 973
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1997/152
GENERAL ADMINISTRATIVE DIVISION )
Re PHILLIP JOHN DUTTON
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr C P Webster (Senior Member) A/Prof. B W Davis AM (Part-time Member)
Date8 November 2000
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
Compensation – whether worker still suffering the effects of the compensable injury.
REASONS FOR DECISION
8 November 2000 Mr C P Webster (Senior Member) A/Prof. B W Davis AM (Part-time Member)
Issues
The applicant Phillip John Dutton ("the applicant") seeks a review of a decision of Comcare ("the respondent") of 13 October 1997 which affirmed a determination of 13 June 1997 to cease liability to pay compensation to the applicant in respect of a lower back injury sustained on 8 December 1994.
The issue to be determined is whether the applicant is incapacitated as a result, wholly or in part, of the injury sustained by the applicant on 8 December 1994.
The EvidenceThe applicant, who represented himself, gave oral evidence.
The evidence of the applicant was that:-
(a)The applicant suffered an injury in December 1994 when he was employed as a locomotive driver and he slipped when getting off a train falling on his buttocks and injuring his left side.
(b)Prior to this incident he was in good health although he had shortly before the accident been examined by a neurologist, Dr. Vidor.
(c)Subsequent to the accident of 8 December 1994, he experienced pain in his left side in the hip area with shooting pains down his leg.
(d)As a result of the accident he was incapacitated for work until February 1995 when he return to work on light duties.
(e)He was made redundant in 1997 when his employer was privatised and shortly after his redundancy his entitlement to compensation was terminated.
(f)He suffered pain constantly from 8 December 1994 and six months after that accident he began to suffer constant headaches and numbness in his left side. He said these symptoms were more severe than the symptoms he had experienced following the accident, in that he was now numb down one side of his body and he was experiencing problems with his balance.
(g)The pain he is now suffering is on the left hand side of his back approximately 4 cm above his belt.
(h)The pain which he suffered immediately after the accident was 4 cm lower than the site of the source of his present pain (although he later claimed the site of the source of his pain had not changed since the accident).
The applicant described in detail, difficulties he presently experienced performing work on his 100 acre property.
The respondent tendered the 'T' documents.
Evidence was given by three specialist medical practitioners and a number of medical reports tendered in evidence.
Dr. Peter Stevenson, a consultant physician, gave oral evidence (by telephone). He had examined the applicant on two occasions namely March 1997 and May 1999.
Dr. Stevenson's opinion was that the applicant suffered some muscular bruising and soft tissue injury to his buttock as a result of the fall on 8 December 1994, but that injury was only of temporary effect and had ceased to have any effect by the time of the first examination of March 1997. His opinion was that the applicant also had a congenital abnormality of the cords of the nerves from the lower spine which was causing wasting of the applicant's left leg. In Dr. Stevenson's view the congenital abnormality was not related to the fall in any way and in fact the congenital abnormality had been diagnosed prior to the fall.
Dr. Stevenson considered that the applicant's ongoing medical complaints were solely attributable to his congenital condition which caused a wasted leg and placed extra pressure on the muscle of that leg.
Dr. Tim Stewart, a specialist occupational physician, gave oral evidence.
His evidence was that he had examined the applicant on three occasions namely, August 1996, May 1997 and December 1998. As a result of that examination he produced three medical reports including a report dated 22 December 1998 which was tendered in evidence.
Dr. Stewart considered that the applicant may have suffered a soft tissue injury following the fall at work in December 1994 as such falls often cause soft tissue injuries. His view was that soft tissue injuries are generally temporary and would normally heal.
Dr. Stewart's opinion was that problems now suffered by the applicant to his back would not be related to a fall in December 1994.
Mr. John Batten, an orthopaedic surgeon, gave oral evidence.
Mr. Batten's report of 26 October 1999 was tendered into evidence.
Mr. Batten first saw the applicant on 25 January 1995. His diagnosis of the applicant's condition was that the applicant suffered a soft tissue as a result of the fall in December 1994.
He agreed with other medical practitioners that the applicant had a progressive neurological abnormality which was unrelated to the fall of December 1994.
Mr. Batten agreed that the neurological abnormality was responsible for the applicant's symptoms on his left side, the feeling of numbness and tingling.
Mr. Batten considered that on the history given by the applicant his present complaint of back ache and leg pain related to the fall of December 1994.
It was Mr. Batten's view that the applicant's medical complaints would prevent him from working in heavy manual work including employment as a locomotive driver.
In the 'T' documents was a report of Dr. I. Vidor, a consultant physician, dated 9 November 1994 (predating the fall of 8 December 1994). In that report Dr. Vidor reported as to abnormal findings in the applicant's left leg, including absent left ankle jerk; slight wasting of the left calf muscle; and weakness of the ankle and foot. Dr. Vidor concluded his report:-
"The findings require further investigation to clarify the underlying problem, as it seems likely progressive changes may occur.
At present his neurological problem is causing no handicap, but the likely rate of progression, if any is not clear.
At the present I consider he is fit to continue work as an engine driver, but he needs full investigation to establish the cause of his problems.
His fitness to continue as an engine driver will need to be assessed in one year in the light shed by investigations."
A medical report of Dr. J. Hopkins, a consultant orthopaedic surgeon, was tendered in evidence by the respondent.
Dr. Hopkins assessed Mr. Dutton on 30 January 1998. He considered that Mr. Dutton was deliberately exaggerating the extent of his symptoms. Dr. Hopkins diagnosed changes of scheuermann's disease in the applicant's thoraco lumbrar spine. He also considered the applicant had a congenital shortening of his limb with muscle wasting which had been documented prior to the accident on 8 December 1994.
In Dr. Hopkins opinion the applicant had no other pathology.
Dr. Hopkins considered that the applicant's level of disability was minimal and that he was capable of undertaking a variety of work.
Discussion of Evidence and DecisionThe applicant was a poor historian and when giving evidence contradicted himself several times. He also appeared to tailor his evidence to what he thought the Tribunal might want to hear.
Counsel for the respondent in his closing address referred the Tribunal to these aspects of the applicant's evidence and the Tribunal accepts counsel's submissions on those matters.
The prevailing opinions of medical evidence, namely the evidence of Dr. Peter Stevenson; Dr. Tim Stewart; and Dr. J. Hopkins is that the applicant suffers muscle bruising and soft tissue injury to his buttock as a result of a fall on 8 December 1994 but the effect of that injury had ceased by 1997 by which time all the applicant's medical problems were related to matters other than the fall on 8 December 1994. The principal problem being the worsening of the neurological problems which had been diagnosed by Dr. I. Vidor as early as 9 November 1994.
The Tribunal notes that Mr. Batten, the treating specialist of the applicant, had examined the applicant on only three occasions and there was not a history of frequent reviews by Mr. Batten. So far as the frequency of reviews by Mr. Batten were concerned, Mr. Batten was in no better position than the other medical practitioners to offer an opinion as to the cause of medical problems from which the applicant was presently suffering.
The Tribunal accepts the opinions of Dr. Peter Stevenson; Dr. Tim Stewart and Dr. J. Hopkins that if the applicant is suffering from any incapacity to work it is not due to any injury which he suffered as a result of a fall on 8 December 1994 and that any incapacity to work is a result of other medical conditions most notably the neurological problems which the applicant first experienced prior to 8 December 1994.
The opinions of these doctors is consistent with the applicant's own evidence given at the hearing when he advised the Tribunal that following the incident of 8 December 1994 he was totally incapacitated for work until February 1995 when his condition improved to the extent that he was able to return to work on light duties and that the nature of his medical complaint and the source of his pain changed
This version is consistent with the view that the effects of the accident had worn off and that the neurological problems had become symptomatic.
Mr. Batten's opinion was based on a different history to that which was provided to the Tribunal in that his opinion was based on a history of constant pain suffered by the applicant which was of a similar nature and at the same site as the pain suffered by the applicant immediately following the fall in December 1994.
That version of the history was not accepted by the Tribunal.
The Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
A/Prof. B W Davis AM (Part-time Member)Signed: .....................................................................................
Personal AssistantDate/s of Hearing 11 May 2000, 18 September 2000
Date of Decision 8 November 2000
Solicitor for the Applicant Applicant appeared for himself
Solicitor for the Respondent Mr D Wilson - AGS
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