Ezekiel and Comcare

[2007] AATA 1418

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1418

ADMINISTRATIVE APPEALS TRIBUNAL      )     Nos:  N2005/0090, N2005/1098,

N2006/0181, N20061518-1519

GENERAL ADMINISTRATIVE DIVISION		)
Re		CLARA EZEKIEL

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen

Date8 June 2007

PlaceSydney

Decision The decisions under review are affirmed.

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

M D Allen
  Senior Member

CATCHWORDS

COMPENSATION – application for review of five decisions for claims for permanent impairment and non-economic loss, for loss of earnings, for right upper extremity and cervical spine injury – injuries caused by the nature and conditions of employment – when can impairment resulting from a work related injury be said to have become permanent – connection between applicants neck pain, right arm pain and her fall – decisions under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act (1988) sections 14, 19, 24, 27 and 127.

CASE LAW

Brennan v Comcare (1994) 50 FCR 555

REASONS FOR DECISION

June 2007  Senior Member M D Allen

1.These proceedings before the Tribunal concerned five Applications for Review.  They were:

(i)N2005/90:     A claim for payment for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act (1988), together with a claim for loss of earnings pursuant to section 19 of that Act, following a fall suffered by the Applicant on 11 April 1983.

(ii)N2005/1098: A claim for compensation pursuant to s14 SRC Act for an aggravation of cervical spondylosis following a fall on 11 April 1983.

(iii)N2006/181:     A claim for compensation for permanent impairment of the lower limbs following a fall on 11 April 1983.

(iv)N2006/1518:   A claim for “right upper extremity and cervical spine injury” occasioned by the nature and conditions of her employment between 1969 and 1995.

(v)N2006/1519: A claim for permanent impairment and non-economic loss pursuant to ss 24 and 27 SRC Act as a result of “right upper extremity and cervical spine injury”.

2.      

There is no dispute that the Applicant suffered injury whilst on her way to work on 11 April 1983.  On that day she fell down stairs at Bondi Junction railway station and landed heavily on her buttocks.  Initially liability was accepted by the Respondent, but on 9 February 1988 a determination was made ceasing liability.  That decision was set aside by the Administrative Appeals Tribunal (Deputy President McMahon) on

30 January 1990 and the Respondent has continued to accept liability for the injury described as “injury to lower back and buttocks”.

N 2005/90

3.      No 2005/90 refers to a claim for permanent impairment in respect of the injury to the Applicant’s lower back.  Pursuant to s124 of the SRC Act 1988 liability for permanent impairment for the Applicant’s back injury will exist only if impairment became permanent subsequent to 1 December 1988, the date the SRC Act came into operation.

4.      In Brennan v Comcare (1994) 50 FCR 555 the Full Court of the Federal Court addressed the concept of when impairment resulting from a work related injury can be said to have become “permanent”.

At P571 Gummow J said:

“As I have indicated, the AAT accepted for the submission that

‘compensation for loss’ is assessed at the time when the injury or condition has stabilised to such an extent that it can be classified and quantified with reasonable accuracy.  That submission was never understood as directed to the assessment of the degree of permanent impairment as an element in the determination of the amount of compensation payable.  The primary judge pointed out that the proposition did not supply a proper criterion for the determination of the anterior issues as to whether there had been injury within the meaning of s4, whether that injury resulted in an impairment, and whether that impairment was permanent in the sense of being likely to continue indefinitely.”

5.      A history of the Applicant’s treatment following her fall is contained in the report of Dr Waks, Occupational Physician, of 10 May 1990.  He states inter alia:

“In September 1983 she still had pain in her lower back and an occasional cramp in both legs so she was referred to Dr M Johnson (orthopaedic surgeon).  Xrays were performed and showed a prolapsed disc.  She was admitted to Baulkham Hills hospital and spent 10 days on lumbar traction.  She then returned to work.  However she continued to have recurrent pain in her back and in 1984 was again admitted to hospital for spinal manipulation.  This gave some short term relief, but the pain slowly increased again.  In 1986 a mylogramme was performed which also showed the prolapsed disc…”

6.      In cross-examination the Applicant stated that she had suffered pain going down her legs ever since the fall in April 1983.  Similarly she has had low back pain and stiffness, particularly when rising in the morning.  She has not been able to bend forward normally since that time.

7.      Dr Bleasel, Neurosurgeon, in a report to the Applicant’s solicitors dated 14 July 2003 stated :

“There was certainly an impairment to her back prior to December 1988.”

8.      In cross-examination he agreed that the “malfunction” of the Applicant’s back was likely to continue on post 1988 and probably forever.

9.      Dr McGill, Rheumatologist, in a report dated 8 August 2005 stated :

“Any current impairment arising as a result of the injury on 11 April 1983 was permanent within six months of that injury and thus clearly permanent prior to 1 December 1988.”

Dr McGill was not directly challenged regarding this opinion.

10.     In a report dated 1 June 1984, her treating specialist Dr Johnson, Orthopaedic Surgeon, stated that the effects of the Applicant’s L4/5 disc protrusion suffered as a result of her fall were “permanent”. 

11.     Given the evidence above I am in no doubt that any impairment occasioned by the Applicant’s back injury following her fall in April 1983 was permanent prior to 1 December 1988.  As pointed out in Brennan (supra), the degree of impairment is a totally different question.

N 2005/1089

12.     The clinical notes of the General Practice attended by the Applicant show that a diagnosis of cervical spondylitis was noted on 23 July 1976.  A following entry dated 14 September 1976 reads “cervical spondylitis again”.

13.     Subsequent to the fall on 11 April 1983 no complaint was made by the Applicant of neck pain.  Her initial claim for compensation dated 9 May 1983 refers only to back and leg pain.  A claim in respect of pain in the upper back and right shoulder was not made until 3 April 1985.

14.     Dr Johnson in his report of 1 June 1984 only implicated the L4/5 disc protrusion as being caused by the fall.  No mention is made in that report of any neck condition.  In a later report dated 8 March 1989 Dr Johnson stated:

“The relationship of her neck symptoms going to the shoulder girdle to that original fall in 1983 is uncertain to me as the symptoms commenced some many months later.”

15.     More recently Dr Bleasal in his report of 6 February 2002 stated:

“In the cervical region there was pre-existing cervical disc degeneration… I cannot directly attach her neck problem to her fall…”

16.     In his latest report dated 21 March 2006 Dr Bleasal was even more definite stating:

“My opinion is that the fall in April 1983 is responsible for her constant back and leg pain, but not the cause of her neck and right shoulder pain.”

17.     Dr Bleasal confirmed his opinion as to the lack of any connection between the Applicant’s neck pain and her fall during the course of his evidence.

18.     In his report of 10 May 1990 Dr Waks opined that the Applicant’s neck and right arm pain was not work related.  Dr Mendelsohn, Surgeon, in his report of 6 October 1988 was of a similar opinion.

19.     Drs Taylor Dixon and Professor Pheils are of a contrary opinion and consider that the Applicant’s fall did contribute to her neck and right arm pain.

20.     Dr Croker, Consultant Physician in Rehabilitation Medicine in a report dated 3 April 1991 obtained a history of neck discomfort and arm pain present since approximately 1987.  The Applicant’s evidence was that she first experienced neck and arm pain 18 months to two years after her fall.

21.     

Given the period of time between the fall and the onset of neck and arm pain, particularly as the Applicant did have a pre-existing cervical spondylosis I am more convinced by those specialists, including the Applicant’s treating specialist,

Dr Johnson, who opined that her neck and arm pain were not related to the fall in April 1983.  I am satisfied therefore that there is no connection between any neck and arm pain suffered by the Applicant and the incident of 11 April 1983. 

N 2006/0181 

22.     As pointed out with regard to the Applicant’s back injury, if any impairment to her lower limbs was permanent as at 1 December 1988 the Respondent is not liable for any permanent impairment pursuant to s24 SRC Act. 

23.     In cross-examination the Applicant stated that she had suffered from pain going down both her legs from the time of the fall in April 1983 onwards.

24.     On 20 November 1992 Dr Spira, Neurologist, in a report to the Applicant’s General Practitioner, noted a history of right lower limb radiation a week after the fall of 11 April 1983.  He went on to record that at times since then the lower limb radiation has involved the left side but mainly the right thigh and calf are affected.  He opined that the Applicant’s history was consistent with sciatica.

25.     Dr Johnson the Applicant’s treating specialist in a report dated 8 March 1989 stated inter alia that the Applicant had a history of low back pain and sciatica following her fall in April 1983.  In October 1983 she had traction with initial improvement after discharge from hospital but symptoms persisted with low back pain and sciatica bilaterally.  Further traction was carried out in January 1984 and again the Applicant improved initially but still had pain, and by July had relapsed.  Physiotherapy then resulted in improvement but in January 1985 symptoms were relapsing again.  In April 1985 she was getting intermittent symptoms with cramps in the right leg.

26.     

Dr Johnson’s history continued stating that the Applicant had had manipulation of the cervical and lumbar spine in August 1985 and was readmitted to hospital for continuous traction in December 1985 and manipulation of the lumbar spine in

January 1986.  Further traction following increased sciatica was carried out in August 1986. The history continued:

“Symptoms have continued since a mylogramme in November 1986 and further traction was required in November 1987, and manipulations in March 1988, and when last seen in December 1988 low back symptoms to the leg were persisting.”

27.     More recently Dr Bleasal opined on 6 February 2002 that as a result of her fall on 11 April 1983 the Applicant suffered disc damage to the lumbar spine, particularly L4/5 and nerve root irritation affecting the right leg and that it had never cleared completely.  He went on to state:

“In the cervical region there was pre-existing cervical disc degeneration and fusion has been carried … I cannot directly attach her neck problem to her fall so I cannot include that in the whole person assessment.”

28.     When cross-examined Dr Bleasal agreed that the Applicant’s back pain and pins and needles down the right leg was a malfunction that prior to 1988 was likely to have continued indefinitely.

29.     Given the above history by the treating surgeon and the other medical practitioners who have examined the Applicant, the only conclusion open is that the Applicant’s sciatica which led to impairment of the lower limbs was permanent by 1 December 1988.

N 20061518

30.     Notwithstanding the claim in matter N 2005/1098 that her cervical spondylosis was aggravated by the fall on 11 April 1983 the Applicant claimed in these proceedings that her right arm and neck injuries were caused by the nature and conditions of her employment by the Australian Taxation Office.

31.     The Applicant commenced work with the Australian Taxation Office in its Perth office in 1969.  From 1970 her duties involved full time data entry.  Originally this involved keying data onto magnetic tapes, but later in the 1980s computers were used.  The work involved sitting at a desk with a pile of tax returns and entering the data.  This involved collecting piles of tax returns, entering the data which in turn meant turning her head to the left to read the documents then back to the computer (or tape machine originally) to enter the data.  After entering the data from a bundle of returns, each bundle containing approximately 40 to 50 returns, each return was stamped to show its data had been entered.  The Applicant used her right hand to stamp the returns and claimed that the stamp was heavy.  She estimated she completed between 400 to 500 returns a day when working full time.  After stamping a bundle of tax returns she immediately commenced work upon another bundle likening the process to a production line.  After four or five bundles had been completed she would get up from her desk and carry them to a storage facility.  She would then pick up four or five more bundles from which to enter data.

32.     Cross-examined the Applicant estimated it took approximately 45 minutes to complete a bundle of returns.  This then meant a 45 minute break between the requirement to stamp documents.  She had morning and afternoon tea breaks of about 10 to 15 minutes and half an hour for lunch.  After 1983 she did not return to full time work and accepted a voluntary redundancy on 10 May 1995.

33.     During the period between the fall and taking redundancy the Applicant had numerous periods of sick leave, and from April 1988 she returned to work at the Australian Taxation Office after a period of such leave on light duties 4 hours a day.  She continued to work four hours a day five days a week until ceasing work in May 1995.

34.     That the Applicant’s neck and right arm pain are the result of the nature and conditions of her work is the opinion of Dr Bleasal.  In his report of 6 February 2002 Dr Bleasal opined that the Applicant suffered pre-existing cervical disc degeneration and noted that the neck and right shoulder pain developed a long time after her fall.  In a later report dated 21 March 2006 he opined that the repetitive movements carried out by the Applicant whilst working at the Australian Taxation Office caused disc damage, osteophyte formation and nerve root irritation in the neck.

35.     In evidence Dr Bleasal expanded upon this opinion.  He opined that the actions of the Applicant “which she had done for many years” extenuated normal wear and tear on her disc (C5/6).  He stated:

“Everyone has changes at C5/6 after 30 but to develop symptoms is a different matter and that is, in my experience, related to activity.”

36.     Asked when the first signs and symptoms of the Applicant’s neck condition became apparent Dr Bleasal stated that that would be when she first started seeing her doctor and referred to a complaint of neck pain in 1985.

37.     Dr Bleasal was then referred to a General Practitioner’s clinical note of cervical spondylosis dated 23 July 1973.  He stated:

“Well, I presume she was complaining of neck pain and that’s why the diagnosis was made… It does not alter my view, she obviously could cope then but she couldn’t cope around the 1985 period”

.

38.     I do not understand Dr Bleasal’s remarks as quoted above.  If as previously stated the signs and symptoms of the disease were first apparent when she started seeing her doctor then the entry of 23 July 1973 means that the disease had its clinical onset at that time, i.e. the time the pain was sufficient for her to seek treatment and the doctor was able to make the diagnosis.

39.     On cross-examination Dr Bleasal stated that he would have said that work was not the cause of the spondylosis but the cause of the Applicant’s pain.

40.     Later in cross-examination Dr Bleasal stated: 

“Well, I don’t think you need to bring the spondylosis into it.  I mean she has muscular strain, and she has in fact on X-ray shown degeneration which is not unusual at her age.  She has neck pain and arm pain as a result of the work.  I don’t have to say, this is definitely the result of degeneration of the neck.”

and at Transcript P67 the following passage occurs:

“Given the treatment commenced in late 1984 or early 1985 and complaints of continuing symptoms right through up to 1988, I know it is difficult looking back but would it not suggest to you that those symptoms in her neck were likely to continue indefinitely by the time the end of 1998 came along?  Yes.”

41.     The Applicant was examined by Dr McGill, Rheumatologist for the Respondent.  In his report of 15 July 2005 he stated: 

“I think her neck symptoms have been entirely a reflection of constitutional degenerative change and were not and are not influenced by her work duties or the railway station fall in April 1983.” 

42.     In evidence Dr McGill adhered to this opinion explaining that changes that occur in the spine including the discs and facet joints tend to advance with age and that inheritance plays a major role in determining the severity of the changes and the age at which they first appear.  More to the point he stated that there is no evidence to suggest that work, even physically demanding work, makes any difference to the development of degenerative changes in the cervical spine. 

43.     In answer to a criticism of his opinion by Dr Bleasal, Dr McGill pointed out that trauma, e.g. a high speed motor vehicle collision or even a history of being a front row rugby forward can cause injury to the spine.  Apart from these factors however the research evidence is that it is inheritance that determines the development of degenerative spinal disease.

44.     Likewise Dr McGill pointed out that the proposition that using muscles would somehow damage the muscles flies in the face of a whole lot of studies which in fact show the reverse. 

45.     Dr McGill referred to studies which supported his opinion.  At the request of the Applicant’s counsel Dr McGill offered to make those studies available.  No application was made to recall Dr McGill in order that he might be cross-examined on those studies.

46.     Dr McGill accepted that a person such as the Applicant who had degenerative changes in her neck could suffer symptoms whilst working.  However those symptoms would resolve after they ceased the activity, say by the next day.

47.     That the Applicant’s spinal problems were constitutional was, in Dr McGill’s opinion, evidenced by the radiological studies showing quite severe changes in her cervical spine and moderate changes in the thoracic and lumbar spine, thus showing degenerative change in the whole of her spine.

48.     The report of Dr Spira, has been referred to above.  In that report Dr Spira refers to the Applicant experiencing neck and shoulder discomfort as a result of tension headaches.  Earlier reports by Drs Waks and Mendlesohn whilst referring to the Applicant’s neck and right arm pain reject work as a cause, and implicate degenerative changes.  Dr Mendlesohn specifically points out :

“As far as her neck is concerned she is suffering underlying cervical spondylosis.  This appears to have been aggravated by the nature and conditions of her work with some elements of chronic muscular fatigue, also complicating the situation.  Now that she is only working part-time I would expect the chronic muscular fatigue to resolve.  However her cervical spondylosis is likely to slowly degenerate with increasing years.  The nature and conditions of her work should not really increase the degenerative process although temporary aggravation is likely, if she is unable to get up to move around from time to time, or if she carried out prolonged work or sudden or unwise movements with her neck or shoulder.”

49.     The Applicant’s activities at work were fully explored during her cross-examination.  I do not regard them as arduous nor as so repetitive as to give rise to permanent muscular injury.  I note that she was from time to time, able to get up and move around and also had morning and lunch breaks.  Dr McGill’s evidence as to degenerative spinal conditions being determined by genetic factors in the absence of specific trauma, and the rejection even by Dr Bleasal of the fall of April 1983 causing any aggravation to the Applicant’s cervical spine, leads to the clear inference given that the Applicant, even before her fall, had evidence of degenerative change in her spinal column, that her current neck and shoulder problems are caused by a constitutional cervical spondylosis. 

50.     

This finding is supported by the opinions of Drs Waks and Mendlesohn. 

Dr Bleasal on the other had seems to have come to his opinion of repetitive injury late as he did not address it in his earlier reports as a possible cause of the Applicant’s neck and arm pain.  Further as he pointed out in his oral evidence, he would not bring the spondylosis into it, but she has a muscular strain.  If the strain is muscular, then it would seem as pointed out by Dr Mendlesohn that it was likely to resolve given her then part time work.  Commensurate with that opinion, one would therefore expect a muscular strain to resolve when work ceased. 

51.     I am therefore satisfied that the Applicant’s neck and right arm pain is not related to her employment.

N 2006/1519

52.     As the Applicant’s right arm and neck pain is not work caused then no question can arise regarding any claim for those conditions under the other sections of Part II SRC Act.

LOSS OF EARNINGS

53.     The Applicant also claimed for loss of earnings pursuant to s19 SRC Act.

54.     I accept that at the time she took a voluntary redundancy from the Commonwealth Public Service effective 10 May 1995, the applicant was having difficulty performing her duties due to pain in her back, neck and right arm.  This was combined she says with a lack of sleep and an analgesia induced lack of ability to concentrate.

55.     

As at the time she took her voluntary redundancy the Applicant was employed

four hours a day five days a week.  This level of employment and the duties she performed had been sanctioned by her medical practitioners, and there is no evidence that the Applicant was unable to carry out the duties of her employment, albeit with some discomfort.  Certainly at that time there was no referral by her immediate employer the Australian Taxation Office to a Government Medical Officer to have the Applicant reclassified as incapable because of ill-health of performing the duties of her position.  In other words her employment was still open to her.

56.     Whereas I acknowledge that the Applicant was experiencing difficulties in working at the time she took her voluntary redundancy, an offer of employment had been made to her, and in my opinion the employment provided was suitable for the reasons discussed above.  By taking a voluntary redundancy she brought herself within the provisions of paragraph 19(4)(c) SRC Act, thus is deemed to be capable of earning in suitable employment an amount equal to or greater than the amount she would have continued to earn in pre-injury employment.

DECISION

57.     For the reasons given above all reviewable decisions are affirmed.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         [ sgd  ] ……Mwela Kapapa........

Associate

Date/s of Hearing  15, 16 and 23 May 2007
Date of Decision  8 June 2007
Counsel for the Applicant         Mr J Mrsic

Solicitor for the Applicant          T D Kelly & Co, Solicitors

Counsel for the Respondent     Mr J Wallace

Solicitor for the Respondent    Sparke Helmore