Edward Scerri and Comcare
[2013] AATA 302
[2013] AATA 302
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1984
Re
Edward Scerri
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Dr B. Hughson, MemberDate 14 May 2013 Place Canberra The decision under review is affirmed.
.......................[sgd].................................................
Mr S. Webb, Member
COMPENSATION – neck injury claim – claim not barred due to lack of notice – migrainous vertigo arising from defence service – not established that claimed neck injury is related to defence service – fall in the course of employment on a return to work program – liability accepted for a left shoulder injury – subsequent onset of neck symptoms – not established that the neck symptoms are causally attributable to the fall – cervical spondylosis – not established that cervical spondylosis was caused or aggravated by the fall – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 53, 156
Frosch v Comcare [2004] FCA 1642
Joye v Beach Petroleum NL & Anor [1996] FCA 1552
Lang v Comcare [2007] FCA 47
PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Mr S. Webb, Member
Dr B. Hughson, Member14 May 2013
Edward Scerri served in the Royal Australian Air Force and worked on the F111 aircraft Deseal Reseal Program. Subsequently, he was employed by the Department of Defence (Defence) as an auditor. He has successfully claimed compensation in respect of a number of injuries, including migrainous vertigo. He has a history of falls and related injuries. His present claim relates to an alleged neck injury in the course of his employment by Defence. Comcare rejected the claim by primary determination and on reconsideration.
The brief background is that in 2006, Mr Scerri underwent hip replacement surgery following a fall in compensable circumstances. In the course of his recovery he returned to work on a graduated basis under a rehabilitation plan. He was permitted to work from his home for two days each week. 27 November 2006 was one such day. On that day, during a short break from his work, he ventured to his rear porch and descended some steps to his rear garden. On his return, he fell while ascending the steps, falling backwards and injuring his left shoulder. He informed his rehabilitation case manager, who called an ambulance. Mr Scerri did not require hospitalisation. He obtained medical treatment the same day from his treating general practitioner, Dr Gow, with whom he had a pre-existing appointment. Subsequently, he obtained physiotherapy treatment from Angela Fearon, who says that she provided “some treatment to [his] neck” when treating his left shoulder on 4, 11, 16 and 18 January and 6 March 2007[1]. We were informed that these physiotherapy treatments were paid for by the Commonwealth under arrangements determined following the Study of Health Outcomes for Aircraft Maintenance Personnel in respect of personnel involved in the F111 Deseal Reseal program.
[1] Exhibit R1.
Mr Scerri was referred to Dr McNicol, an orthopaedic surgeon, for assessment of his left shoulder. On 24 January 2007, Dr McNicol reported a painful left shoulder with reduced function, and “some symptoms of tingling in the hands and difficulty with grasp”[2]. The Doctor recommended acromioplasty and rotator cuff repair. Mr Scerri went to surgery with Dr McNicol on 30 January 2007. Acromioplasty was completed but Dr McNicol reported that cuff repair was not possible[3].
[2] Exhibit R2.
[3] T10 folio 18.
Two weeks later, on 14 February 2007, it appears that Mr Scerri had another fall.
On 2 April 2007 Dr Gow noted that Mr Scerri’s neck was very stiff and painful[4].
[4] Exhibit A6.
In June 2007, Mr Scerri fell over in a David Jones store and injured his right leg, fracturing his right femur below the hip replacement prosthesis. He was treated in hospital.
On 19 August 2007, Mr Scerri claimed compensation for the injury to his left shoulder, stating that the parts of his body that were affected included “left shoulder, ‘neck’, left arm…”[5]. On 15 December 2007, Comcare accepted liability for “rotator cuff (capsule) strain (right) [sic – left] (torn rotator cuff)”[6].
[5] T19 folio 33.
[6] T23 folio 54.
In an undated document, Mr Scerri provided the following description –
The Rotator Cuff tear has additional pain factors associated with it. These are:
- Neck pain particularly associated with the muscles around the neck.
- Forearm pain, and pain and a tingling sensation in my left hand.
In discussion with my Physiotherapist this was attributed to the Rotator Cuff injury.[7]
[7] T20 folio 48; T21 folio 50.
On 4 May 2008, Mr Scerri lodged a compensation claim for permanent impairment as a result of his left shoulder injury, setting out the following injuries or impairments - “Rotator cuff left shoulder and associated injury of muscles neck left and left forearm and hand pain”[8]. Following assessment, report[9] and completion of a non-economic loss questionnaire[10] by Dr Billett, a consultant orthopaedic surgeon, on 24 October 2008, Comcare determined that Mr Scerri was entitled to compensation for a 13 per cent whole person impairment in respect of his left shoulder injury and he was paid an amount of compensation.
[8] T28.
[9] T32.
[10] T36.
On 14 May 2008, the Military Rehabilitation and Compensation Commission (the Commission) determined injury claims Mr Scerri lodged in 2002 in respect of several conditions he attributed to chemical exposure during the F111 Deseal Reseal Program in 1988, including dizziness. The Commission extended liability previously accepted in respect of headaches, with the date of injury being 18 January 1988, to include migrainous vertigo[11]. On 5 July 2010, the Commission reconsidered the matter and decided that the date of Mr Scerri’s the migrainous vertigo injury is 18 December 2006 “as this is the date of first medical treatment for the condition”[12]. In this decision, the Commission cited evidence before it that Mr Scerri had a history of headaches and poor balance. This included Dr Craven’s opinion in 2002 that Mr Scerri may have been suffering from benign postural vertigo as a result of a lesion of one of the organs of balance at that time. Even though this evidence suggests the possibility of an earlier date of injury for the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on the basis of impairment, it appears that Mr Scerri did not seek review of the Commission’s decision. Nevertheless, he says that he was unhappy with the decision as he understood it to exclude him from obtaining compensation from the Commission in respect of injuries he sustained as a result of vertigo-related falls prior to 18 December 2006, including the fall on 27 November 2006.
[11] Exhibit A5, document ES6.
[12] Exhibit A5, document ES13.
On 19 July 2010, Mr Scerri lodged a further compensation claim with Comcare in respect of a neck injury allegedly arising from the 27 November 2006 fall[13]. In the claim form, Mr Scerri set out the following information[14] –
[13] T62.
[14] T62 folio 190.
10. … Diagnosed condition: Multiple disc profusions [sic] and foramen narrowings resulting in a stiff and sore neck.
11. … Part(s) of body injured: Neck, upper back and shoulders, forearm (L) and hand (L) last three fingers loss of strength and tingling.
12. When were you injured or when did you first notice you were ill?
Date:04/01/2007
13. When and where did you first seek medical treatment for your injury or illness?
Date:04/01/2007
Name of doctor… Angie Fearon
Corinna Physio Centre
…
On 13 January 2012, Comcare decided to reject the claim[15]. It reconsidered and affirmed this decision on 21 March 2012[16].
[15] T96.
[16] T101.
Mr Scerri applied for review of this decision on 17 May 2012[17].
[17] T1.
The issue to be decided is whether Mr Scerri’s neck injury claim is made out. Two ancillary issues were ventilated during the hearing concerning notice and subject liability. We will deal with the ancillary issues first.
Notice
At the outset, Comcare asserted prejudice as Mr Scerri did not provide sufficient notice of the neck injury he claims to have suffered in the fall on 27 November 2006 and that he did not have a reasonable excuse for failing to do so, thereby raising a bar to his claim under s 53. In closing submissions, Comcare conceded this issue in the light of the oral evidence.
Having carefully considered the matter, we are satisfied that Comcare’s concession is well made and correct – there is no bar to Mr Scerri’s claim arising under s 53.
In short, there are four things to say in respect of s 53. Firstly, the requirement for provision of written notice of an injury should not be construed narrowly, with regard to a specific diagnosis for example. The information required in a notice under s 53, in respect of the nature of the injury and its connection with the employment[18], should not be confused with the details to be included in a claim form for compensation under s 54.
[18] Frosch v Comcare [2004] FCA 1642 at [8].
Secondly, Mr Scerri provided Comcare with information about a possible injury to his neck in the claim form he lodged on 19 August 2007 in respect of his left shoulder[19]. Even though he provided little detail of the precise nature of the alleged neck injury, whether it involved the cervical spine for example, the circumstances of the alleged injury could readily be understood. Albeit brief, the information he set out in the compensation claim form describes the effect of an incident in the course of his employment on his left shoulder, neck and left arm. This is consistent with the definition of an injury[20] and it is sufficient to constitute notice for the purposes of s 53. Notice of an alleged injury does not require proof of the existence of the injury, or a specific diagnosis.
[19] T19 folio 33.
[20] Lang v Comcare [2007] FCA 47 at [46]-[47].
Thirdly, there is no compelling evidence that Comcare, being the relevant authority, suffered prejudice as a result of delay in Mr Scerri providing notice of the alleged neck injury on 19 August 2007 – no such issue was taken in respect of the left shoulder injury he claimed on the same day, for which liability was accepted.
And lastly, the requirement under s 53 is simply that notice is to be provided ‘as soon as practicable after the employee becomes aware of the injury’. Despite Mr Scerri’s inconsistent accounts of when he first experienced symptoms in his neck, it is difficult to determine when he first became aware of an injury to his neck as distinct from the injury to his left shoulder. On or about 4 January 2007, Ms Fearon provided some treatment in the area of his neck when treating his left shoulder injury and, at some point, apparently told him that neck symptoms may commonly be associated with a shoulder injury. As Ms Fearon was not called to give evidence, we are not able to determine when she informed Ms Scerri that neck symptoms may be associated with his left shoulder injury or whether she identified any symptoms in or an injury to his neck in January 2007. We simply note that Ms Fearon’s clinical notes are quite detailed and the absence of any reference to a neck injury suggests that she did not identify any such neck symptoms or injury. On 2 April 2007, Mr Scerri consulted Dr Gow and complained of neck symptoms, but it is not clear whether the Doctor identified a distinct neck injury at that time. Dr Gow was not called to give evidence so this point could not be clarified or tested.
In oral evidence, Dr Cairns, a consultant orthopaedic surgeon, explained that it is difficult to differentiate pain in the musculature of the neck from pain associated with cervical spondylosis. We accept this evidence. We are not able to determine when Mr Scerri became aware of the alleged neck injury he referred to in the claim he lodged on 19 August 2007. In this context, Mr Scerri’s action of informing Comcare that his neck had been affected by the circumstances of his left shoulder injury can be understood and accepted as notice for the purposes of s 53.
On 19 July 2010 Mr Scerri lodged a fresh compensation claim in respect of a neck injury arising from the fall on 27 November 2006. It is quite clear that the claim was informed by an MRI scan on 30 June 2010[21], in which the cervical pathology he cited in the claim form was first identified. It does not follow that this is a different injury to the neck injury about which he notified Comcare in his August 2007 claim. The circumstances of the claimed injury are the same. The representation of cervical spine pathology following investigations subsequent to notice, albeit in a claim after a lengthy delay, does not mean that the neck injury claimed is different to the neck injury previously notified.
[21] T54 folio 172.
Furthermore, in light of Dr Cairns’ evidence, it is conceivable that Mr Scerri did not become aware of a separate injury to his neck until radiological investigations had been undertaken. The specific pathological basis of the neck injury he claimed in July 2010 was identified in the MRI scan that was conducted in June 2010 – only days before he lodged the fresh compensation claim.
The delay in investigating the alleged injury to Mr Scerri’s neck in the context of the shoulder injury he claimed in August 2007 is troubling. It appears that Comcare did not treat Mr Scerri’s August 2007 compensation claim as a claim in respect of a neck injury. Comcare determined to accept liability for a left shoulder injury[22] pursuant to the claim, but in so doing it made no reference to Mr Scerri’s alleged neck injury. Furthermore, it is apparent from the matters agitated in these proceedings that Comcare did not treat the information Mr Scerri set out in that claim and in related documents as notice of a neck injury. Why this occurred is not clear.
[22] T23.
The purpose of requiring an injured employee to given the relevant authority notice of an injury under s 53 is to place the authority on notice of the injury and thereby permit it to undertake relevant investigations or to initiate action to mitigate any potential effects of the injury or related liabilities, subject to any subsequent claim.
Comcare obtained expert reports from Dr Billett and from Dr Wilkins, a consultant occupational physician, in August and September 2008, respectively, in which both doctors set out clinical findings of reduced range of motion in Mr Scerri’s cervical spine and associated complaints of pain[23]. Despite these reports and the notice Mr Scerri had given Comcare in August 2007, this aspect of his 2007 compensation claim, albeit it somewhat ambiguous in respect of his neck, was not squarely determined or addressed until Mr Scerri lodged a fresh compensation claim in July 2010.
[23] T32 folio 91 and T33 folio103.
No issue of notice was taken when determining the 2010 claim at the primary and reconsideration stages. The issue of notice only arose late in the Tribunal proceedings, necessitating an adjournment of the hearing at first instance. The issue was conceded by Comcare during closing submissions addressing the point.
The manner in which the issue of notice has been raised and dealt with in these proceedings raises issues for Comcare to reflect upon.
Subject liability
The second ancillary issue concerning subject liability arises in relation to s 156 of the SRC Act. This was raised for the first time at the hearing, without notice.
Invoking this section, Comcare asserts that it cannot be found liable for an injury to Mr Scerri’s neck that is related to defence service.
We agree, but there are a number of difficulties with this submission in the circumstances.
The words of s 156 must be carefully considered and must be construed in a manner that is consistent with the context and purposes of Part XI of the SRC Act. The section provides that –
156Liabilities of Comcare and the Commission with respect to defence service
Neither Comcare nor the Commission has any liability under this Act in respect of an injury, loss, damage or death that relates to defence service (whenever it occurred).
The expression ‘relates to’ is wide and imprecise. It simply describes a relationship or connection between two subjects. In order to determine the extent or closeness of the relationship required it is necessary to consider the purpose and context of the legislation in which the words are used[24] –
… it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice. [references omitted][25]
The section operates to render the Commonwealth liable under the SRC Act for an injury that relates to defence service in place of Comcare or the Commission.
[24] PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36 at [26].
[25] Joye v Beach Petroleum NL & Anor [1996] FCA 1552, per Beaumont and Lehane JJ at [39].
The purpose of this provision can be understood in the context of Part XI. This Part was inserted by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) as part of the reform of military rehabilitation and compensation legislation. It is quite clear that the purposes of Part XI include the transfer of functions from Comcare to the Commission in respect of defence-related claims that were made before the Military, Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act) commenced, making provision for related transitional arrangements, and to transfer liability to pay compensation (or other amounts) under the SRC Act from Comcare (and the Commission) to the Commonwealth, making provision for the appropriation of funds for that purpose and for the determination of regulatory contributions to be paid by Defence.
These provisions and arrangements are largely mechanistic, and they do not bear upon the central conception of an injury in the operation of the SRC Act. Compensation under Part II is payable ‘as a result of’ or ‘in relation to’ ‘an injury’ within the meaning of s 5A. In Canute v Comcare[26], the High Court said –
…First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to "disease" or "physical or mental" injuries and, at least to that extent, it assumes that an employee may sustain more than one "injury".[27]
[26] [2006] HCA 47.
[27] Ibid. at [10].
The reference to ‘an injury’ in s 156 may be understood in this way. Thus, the section requires a relationship between an injury, construed in this manner, and the person’s defence service, on which liability may be founded under the SRC Act. Even though the words ‘relates to’ in this context should not be construed in a narrow or pedantic manner, they describe a real relationship between an injury and defence service, whether direct or indirect, that is sufficient to address the subject liability to which the section is directed.
Mr Scerri’s claim relates to an alleged neck injury that occurred in the fall on 27 November 2006 in the course of his employment by Defence. That employment is not within the meaning of ‘defence service’ under s 141, applying the definition at s 6(d) of the MRC Act. Thus, the claimed neck injury is not an injury that occurred in the course of defence service.
The proposition that Mr Scerri’s claimed neck injury relates to his defence service because it resulted from a fall that was caused by a defence-related injury in the form of migrainous vertigo is not made out for two key reasons. Firstly and most importantly, there is no reliable evidence that Mr Scerri fell on the steps at the rear of his house on that day because of migrainous vertigo. The contemporaneous clinical note of Dr Gow suggests that he “missed a step on back stair and fell…”[28]. Secondly, the Commission determined that the date of the migrainous vertigo injury is 18 December 2006, a number of weeks after Mr Scerri’s fall on 27 November 2006. Mr Scerri has not challenged this decision, which stands. Even though we are not bound by the decision and contrary findings of fact could be made, the date of that injury is not before us and the issue of contrary fact was not pressed.
[28] Exhibit R1.
No sufficient relationship between Mr Scerri’s claimed neck injury and any defence service he may have given is established for the purposes of s 156. For this reason, his claimed neck injury is not an injury that relates to his defence service for the purposes of s 156. Comcare’s submission that it cannot be held liable for Mr Scerri’s claimed neck injury by operation of s 156 is rejected.
The claimed neck injury
This is the substantive issue we must decide.
Mr Scerri says that he injured his neck and his left shoulder in the 27 November 2006 fall. He staunchly asserts that he immediately experienced pain in his upper torso, including his shoulders and his neck, and that he has continued to experience worsening neck symptoms from that day forward. His evidence is that he complained about symptoms of pain and stiffness in his neck repeatedly in consultations with his treating doctors and with his treating physiotherapist following the fall. He asserts that he also complained of headaches that may be attributable to an injury to his neck. He says that the failure of his treaters to record his complaints of neck pain is inexplicable and mystifying. He relies on the evidence of Ms Fearon that she treated his neck on 4 January 2007, and on several dates thereafter, as proof that he did complain of neck symptoms resulting from the fall.
Furthermore, Mr Scerri says that he should not be denied compensation because his treaters failed to correctly and accurately record the neck symptoms he was complaining of at the time. He relies on the evidence of Dr Griffith, a consultant orthopaedic surgeon, that the forces involved in the fall were sufficient to render his previously asymptomatic cervical spondylosis symptomatic and that the symptoms he subsequently described are consistent with that occurrence.
In Mr Scerri’s submission it is simply inconceivable that the onset of neck pain and stiffness following the fall on 27 November 2006 was merely a coincidence. He staunchly maintains that he did not experience any symptoms in his neck prior to the fall. He maintains that whether he expressly complained of ‘neck’ symptoms on the day of the fall, or in the following weeks, is beside the point, as, in his submission, he complained of pain in his upper torso, including in his shoulders and neck. He says that the primary locus of his symptoms was his left shoulder and that is what those treating him addressed.
Mr Scerri points out that he is not a doctor and it is not for him to differentiate between symptoms associated with his left shoulder injury and those associated with an injury to his neck. Furthermore, he says that the analgesic medications he was prescribed after the fall masked the symptoms in his neck and this may explain why the contemporaneous medical notes do not expressly refer to symptoms in his neck or to a neck injury. He makes similar arguments in respect of the analgesic medications prescribed in the course of treating the leg injury he sustained in June 2007.
Mr Scerri asserts that, despite the effects of analgesic medications, he experienced continuing pain and stiffness in his neck and it was for this reason he included his neck in the compensation claim he lodged with Comcare in August 2007. Mr Scerri relies on the clinical findings of Dr Wilkins on 5 September 2008[29] and of Dr Le Leu, another consultant occupational physician, on 3 December 2008[30] in respect of the reduced range of motion in his cervical spine that, he says, commenced and progressively worsened following the fall in November 2006.
[29] T33 folio 103.
[30] T40 folio 145-146.
In Mr Scerri’s submission there is sufficient evidence for us to be reasonably satisfied, on the balance of probabilities, that he suffered an injury to his neck in the fall on 27 November 2006 for which Comcare is liable.
We do not agree – Mr Scerri’s case is not made out.
For Comcare to be found liable for a neck injury, it must be established by evidence that Mr Scerri suffered an ‘injury’ as defined under s 5A of the SRC Act. As can be seen, under that section an injury includes a frank physical injury or a ‘disease’ as defined by s 5B. A ‘disease’ is an ailment to which the employment has contributed to a significant degree.
There is no evidence that Mr Scerri sustained a frank physical injury to his neck on 27 November 2006.
The evidence of Dr Cairns and Dr Griffith establishes that, in all likelihood, Mr Scerri’s cervical spine was affected by asymptomatic spondylotic changes when he fell on 27 November 2006. Cervical spondylosis is a constitutional degenerative condition and, on their evidence, the cervical spondylosis in Mr Scerri’s neck was not caused by the fall on 27 November 2006.
The central issue is whether Mr Scerri’s cervical spondylosis was aggravated or rendered symptomatic by the fall.
To a substantial degree, Mr Scerri’s case relies upon his own evidence in respect of the effects of the fall on 27 November 2006 on his neck. We have carefully listened to Mr Scerri’s oral evidence and we have carefully reviewed the various accounts he has given about relevant matters over the period since 27 November 2006. There are substantial and troubling inconsistencies in respect of the onset of symptoms in his neck. We note, for example, accounts he has given that his neck symptoms commenced on the day of the fall; or two to three, or three to four weeks later; or on 4 January 2007; or early in 2007; or in August 2007. These and other inconsistencies raise serious questions about the reliability of Mr Scerri’s evidence.
We note that Mr Scerri stated several times that he has difficulty with his memory. We accept that he does. And we note that the index incident occurred more than six years ago.
These factors may explain some of the inconsistencies in the various accounts Mr Scerri has provided, in retrospect and over time, regarding the onset of symptoms in his neck. It may be that when he gave each account he truly believed it to be true, we cannot say. But each account cannot be true. It appears to us that his faulty memory has affected the reliability of his evidence. For this reason, even though Mr Scerri may well believe what he has said from time to time about the manifestation of neck symptoms, we are not prepared to accept his evidence about controversial points without independent corroboration.
Mr Scerri’s evidence before us is that he suffered neck pain as an immediate consequence of the fall on 27 November 2006. There is no contemporaneous evidence to support this proposition. Dr Gow’s clinical note on that day records no mention of neck pain or neck symptoms. Dr Gow first recorded a complaint of neck pain and stiffness on 2 April 2007.
Ms Fearon’s clinical notes of her consultations with Mr Scerri on 30 December 2006, and on 2, 4, 11, 16 and 24 January 2007 do not record any complaint of neck pain, even though other areas of pain are noted[31]. Her report to Dr Gow on 7 January 2008 makes no reference to neck pain or to neck symptoms[32]. On or about 18 May 2010, Ms Fearon sent an email to Mr Scerri setting out dates – “4 Jan 07, 11 Jan 07, 16 Jan 07, 18 Jan 07, 6 Mar 07, 31 July 09” – on which treatment was provided in the area of his neck[33]. Ms Fearon observed that these neck treatments were provided “as part of the rehabilitation for his shoulder injury, with the exception of the 31 July 09 appointment”[34]. Ms Fearon observed in retrospect that she “probably” told Mr Scerri that neck pain is not an uncommon problem associated with a shoulder injury. When and in what circumstances she did so is not clear. Ms Fearon was not called to give evidence, so this aspect of her evidence could not be clarified or tested. It is not established that this occurred in January 2007 in the context of treatment of his shoulder injury, although that possibility lies open. It is also possible that it occurred on 31 July 2009, when Mr Scerri’s complaints of neck symptoms following him lifting a garage door with his left arm are clearly noted[35].
[31] Exhibit R1.
[32] T24 folio 59.
[33] T57 folio 176; Exhibit A6, clinical note dated 18 May 2010 refers.
[34] T57 folio 176.
[35] Exhibit R1, clinical note dated 31 July 2009.
As we have said, on the evidence of Dr Griffith and Dr Cairns it is probable that pathology relating to cervical spondylosis would have been present when Mr Scerri fell on 27 November 2006, although the extent of the degenerative changes in his cervical spine at that time is simply not known. Dr Griffith and Dr Cairns agree that cervical spondylosis may be rendered symptomatic spontaneously, or by any number of minor activities, such as getting out of bed, or by a trauma such as the fall Mr Scerri experienced on 27 November 2006, and that the symptoms of cervical spondylosis, once triggered, include pain and restricted motion of varying intensity that may be associated with muscle spasm or headaches. On their evidence, we accept that the left shoulder injury Mr Scerri suffered may have caused pain extending into his left arm to the elbow and to the angle of his neck. We accept that it is common for a shoulder injury to be associated with pain in the area of the neck and that pain of this kind would be difficult to differentiate from pain arising from cervical spondylosis.
Dr Griffith concluded that the 27 November 2006 fall aggravated Mr Scerri’s cervical spondylosis, rendering it symptomatic[36]. In his oral evidence, Dr Griffith contended that the mechanics and forces involved in the fall would have been sufficient to render Mr Scerri’s cervical spondylosis immediately symptomatic in a manner that is consistent with his purported complaints of neck symptoms thereafter. This evidence, however, is not consistent with the history Dr Griffith set out in his medico-legal report –
In early 2007 he [Mr Scerri] noted progressively intrusive cervical pain, initially in the suboccipital region, with painful restrictions of flexion particularly, rotation in each direction, and he was aware of marked crepitus in the head and neck with movement.[37]
[36] Exhibit A4, page 9.
[37] Ibid., page 3.
Dr Griffith explained away the apparent temporal disconnection between the fall and the reported onset of neck symptoms in early 2007 by stating that those treating Mr Scerri, and perhaps Mr Scerri himself, did not take notice of his complaints of neck pain, as it was secondary to the main injury to his left shoulder. Under cross-examination, Dr Griffith adhered to this opinion, and he gave a number of explanations supporting it that strayed outside his area of expertise. When questioned on this point by the Tribunal, the Doctor agreed that he was making assumptions – if the fall rendered Mr Scerri’s cervical spondylosis symptomatic, he would expect him to experience immediate symptoms of neck pain and, as Mr Scerri now says that he did complain of such symptoms (even though this is not what Dr Griffith reported in his medico-legal report), he assumed that the complaints were not acted upon or noted by Mr Scerri’s treating doctors or by his treating physiotherapist.
We would expect that an expert medical witness would clearly identify an assumption of this kind in the formulation of his or her opinion, and would also entertain other, perhaps contrary, assumptions. Where an expert witness adheres to one assumption of fact as correct, and strays outside his or her area of expertise to explain away other fact scenarios that are equally if not more plausible when the available evidence is properly considered, the impartiality of the expert’s evidence may be questioned, and the weight it will be given may be reduced.
Dr Griffith is an experienced and respected surgeon who practised for many years. He is an experienced medico-legal witness with much experience in the compensation jurisdiction of the Tribunal. Nonetheless, we give but little weight to his evidence on this point, noting the assumptions he has made.
Without supporting evidence, it is untenable to assume that Dr Gow, Ms Fearon and Dr McNicol failed to record or to act upon a complaint of neck pain in the circumstances presently alleged by Mr Scerri. Extensive clinical notes of Dr Gow and Ms Fearon have been produced. The notes are detailed and surprisingly legible, with Mr Scerri’s symptoms and related matters being clearly recorded. Some of the notes refer to neck symptoms and others do not. Ms Fearon’s diagrammatic notes are quite clear as to the location of pain symptoms in Mr Scerri’s body. The diagram she made in January 2007 clearly indicates pain across the shoulders. There is no suggestion of pain extending to Mr Scerri’s neck at the time. To our minds, if Mr Scerri had complained of neck symptoms as he now contends, this would be reflected in the contemporaneous clinical notes of Dr Gow and Ms Fearon. We do not accept that Dr Gow or Ms Fearon failed to record or effectively ignored any such complaint. The absence of any such record weighs heavily against Mr Scerri’s uncorroborated account.
Furthermore, Dr Cairns informed us that it is usual for a surgeon to take a detailed history from a patient complaining of a shoulder injury and to examine his or her neck in order to identify the symptoms experienced and to exclude cervical pathology as a cause of the symptoms. Dr McNicol recorded that Mr Scerri “has some symptoms of tingling in the hands and difficulty with grasp” and noted a history of migraine headaches[38]. There is no firm basis to conclude that he did not examine Mr Scerri’s neck. On the contrary, there is sufficient firm evidence to support the drawing of an inference that he did. The proposition that the Doctor simply failed to record or to act upon a complaint of neck symptoms in those circumstances is baseless and untenable.
[38] Exhibit R2.
A complaint of neck pain following a fall of the kind Mr Scerri experienced on 27 November 2006 could indicate a potentially serious spinal injury. It is almost inconceivable that Dr Gow, Ms Fearon and Dr McNicol would fail to record and fail to act upon such a complaint. We are not persuaded that they did. It is more probable that the contemporaneous materials truly reflect the scope and nature of Mr Scerri’s symptoms at the time. Considering the sequence of events and the progression that clearly arises from the clinical notes, it cannot be inferred or assumed that Mr Scerri complained of neck symptoms consistent with a neck injury in consultations with Dr Gow, Ms Fearon or Dr McNicol where no such complaint or symptom is recorded.
The present evidence does not establish that the hand symptoms reported by Dr McNicol are causally related to a neck injury or to an aggravation of cervical spondylosis; nor can any such inference be drawn without sufficient supporting evidence. The extent to which these symptoms resulted from the fall on 27 November 2006 or to the left shoulder injury Mr Scerri sustained as a result of that fall, if at all, we cannot determine on the present materials – no such causal relationship is presently established on the balance of probabilities.
Mr Scerri says that he suffered headaches after the 27 November 2006 fall that are consistent with and may be attributable to a neck injury. We simply observe that Mr Scerri has a well-documented history of headaches and an accepted injury in the form of migrainous vertigo. The evidence before us does not establish that Mr Scerri’s headaches after the fall are in any degree attributable to or contributed by to a neck injury. Counsel for Mr Scerri conceded that much in the course of the hearing.
Dr Cairns agreed with Dr Griffith that Mr Scerri would have experienced immediate neck pain and stiffness if the 27 November 2006 fall rendered his previously asymptomatic cervical spondylosis symptomatic. In his opinion, the delay of weeks or months in any reliable complaint of such symptoms indicates that this did not occur. We accept and prefer Dr Cairn’s evidence to that of Dr Griffith on this point, and we note that Dr Cairns’ opinion is consistent with the opinions expressed by Dr Talbot, a consultant orthopaedic surgeon[39].
[39] T76 folio 254.
The proposition that Mr Scerri’s alleged neck symptoms were masked by analgesic medication he took on or after 27 November 2006 and that this affected his comprehension or his complaints in respect of neck symptomatology is not persuasive. It can readily be accepted that analgesic medication might mask such symptoms. But Mr Scerri’s evidence is that he complained repeatedly about such symptoms in the days, weeks and months following the fall on 27 November 2006. Ms Fearon’s notes on 20 December 2006 clearly indicate that Mr Scerri was taking analgesic medications when he consulted her and obtained treatment in respect of his left shoulder injury[40]. Further, Dr Cairns gave evidence that while such medication may mask pain it would not be diminished to the point of not being locatable or noticeable.
[40] Exhibit R1.
On the one hand, Mr Scerri says that he complained repeatedly about neck pain and stiffness after the fall, although when challenged on this point he resorted to the suggestion that his neck symptoms were part of a suite of symptoms in his upper torso that he did not alienate to his neck at the time, and, on the other, he says that his neck symptoms were masked by analgesic medications. To our minds, these accounts are not reliable and they smack of convenience.
It is reliably established and we find that Mr Scerri complained of neck symptoms to Dr Gow on 2 April 2007. It appears that he did not make further complaints for a substantial period of time until 31 July 2009, when Ms Fearon recorded a complaint of neck pain[41]. When examined by Dr Billett, Dr Wilkins and Dr Le Leu in 2008, Mr Scerri did not refer to neck pain in relation to his shoulder injury even though Dr Wilkins and Dr Le Leu recorded reduced range of motion in his cervical spine. On the evidence of Dr Cairns and Dr Griffith, once cervical spondylosis is rendered symptomatic, symptoms would be expected to persist thereafter, albeit with varying degrees of intensity.
[41] Ibid., clinical notes dated 31 July 2009.
Mr Scerri’s account of suffering from ongoing and increasing pain and stiffness in his neck after the fall on 27 November 2006 is possible, but it is not consistent with or supported by contemporaneous medical evidence. It appears to us that the contemporaneous medical evidence is consistent with the evidence of Dr Cairns and Dr Talbot, and this weighs heavily against Mr Scerri’s claim that the fall on 27 November 2006 aggravated and rendered symptomatic his cervical spondylosis.
We prefer the evidence of Dr Cairns and Dr Talbot over that of Dr Griffith and the recent opinion evidence of Dr Gow. Dr Gow is a treating general practitioner and not an expert witness. His contemporaneous clinical notes serve to establish relevant matters of contemporaneous fact. And those facts are not consistent with Mr Scerri’s subsequent compensation claim in respect of a neck injury arising from the fall on 27 November 2006.
On balance, we are not persuaded that a causal link between the 27 November 2006 fall and the onset of symptoms of cervical spondylosis is established on the balance of probabilities. We find that it is not. Moreover, the present evidence does not establish that the fall Mr Scerri experienced on 27 November 2006 contributed to cause or aggravate, to a significant degree, his already existing cervical spondylosis. The evidence does not establish that Mr Scerri experienced symptoms relating to his cervical spondylosis or to a neck injury of any kind as a result of the fall on 27 November 2006.
That said, it is conceivable that Mr Scerri experienced some symptoms of a temporary nature in the musculature associated with his neck in the period after the fall. It does not follow, and it is not established, that any such symptoms are indicative of an injury to his cervical spine or neck, particularly in the form of an aggravation of cervical spondylosis, as claimed. On the present evidence, particularly that of Dr Cairns and Dr Griffith, it is possible, even likely, that Mr Scerri may have experienced pain extending to the angle of his neck in association with his left shoulder injury. Pain in the area of his neck that is attributable to his left shoulder injury does not, itself, constitute a separate injury to his neck.
Unless severable by a new cause in the context of employment, such as an aggravation or worsening of symptoms in compensable circumstances, the symptoms of an injury are part of the injury[42]. So, too, the symptoms of an ailment, such as cervical spondylosis, are a part of the ailment unless they are attributable to a cause in employment that contributed, to a significant degree, to their onset or progress. The balance of the present evidence does not establish that any neck pain Mr Scerri claims to have experienced following the fall in November 2006, if he suffered any neck pain at all (which is not presently established), is severable from the frank shoulder injury he sustained.
[42] Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44.
Conclusion
On the evidence before us, it is not established that Mr Scerri sustained a separate injury to his neck as a result of the fall he suffered on 27 November 2006. Furthermore, on balance, the present evidence does not establish that the fall contributed in any degree, let alone a significant degree, to cause, aggravate or render symptomatic his existing cervical spondylosis – we are reasonably satisfied that it did not.
To the extent that Mr Scerri says that he experienced symptoms of pain in the area of his neck in the days and weeks after the fall he suffered on 27 November 2006, and we make no such finding, it is possible that he did so as a result of the left shoulder injury he sustained in that fall.
It is also not established that the neck symptoms about which he complained later in April 2007, or in July 2009 are attributable to an injury to his neck that was contributed to in any degree by the fall on 27 November 2006. It can be accepted that presently Mr Scerri suffers from symptomatic cervical spondylosis, but it is not established that this ailment was significantly contributed to by the fall in the context of his employment in November 2006.
It follows that the decision under review must be affirmed.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member, Dr B. Hughson, Member ..........................[sgd]..............................................
Associate
Dated 14 May 2013
Dates of hearing 29 and 30 April 2013 Counsel for the Applicant Mr S. Whybrow Solicitors for the Applicant Mr J. Moffett, Snedden Hall & Gallop Counsel for the Respondent Ms J. Godtschalk Solicitors for the Respondent Mr B. Dean, Australian Government Solicitor
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