Faulkner and Comcare
[2008] AATA 165
•28 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 165
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2005/0026
GENERAL ADMINISTRATIVE DIVISION ) No 2005/1545 Re
DUANE LEE FAULKNER
Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr John Campbell, MemberDate28 February 2008
PlaceSydney
Decision The decision under review is affirmed. ..................[Sgd].....................
Ms Robin Hunt
Senior Member
CATCHWORDS
COMPENSATION – fall at work – claim for soft tissue injury – superficial injury to right shoulder accepted – claim for further injuries to neck and right arm rejected – no incapacity for work – no permanent impairment.
Safety, Rehabilitation and CompensationAct 1988 (Cth) ss 4, 14, 24, 27 and 53.
REASONS FOR DECISION
28 February 2008 Ms Robin Hunt, Senior Member
Dr John Campbell, Membersummary
1. Mr Duane Lee Faulkner suffers health problems, some of which he attributes to his former workplace. There are two matters for review. N2005/26 deals with a reviewable decision dated 9 May 2000, which affirmed a determination dated 9 March 2000, disallowing Mr Faulkner’s claim in respect of an injury on 7 June 1998. The other matter, N2005/1545, deals with a reviewable decision dated 25 August 2005, which affirmed a determination dated 14 June 2005, denying liability for permanent impairment arising out of the same injury.
background
2. Mr Faulkner’s claim for compensation arises out of an incident that occurred in June 1998 when he was working for the National Rail Corporation as a locomotive driver. Mr Faulkner slipped and struck his shoulder. The respondent accepted that the incident occurred but did not accept liability for the claims Mr Faulkner later made on 23 December 1999. The reviewable decision was that, although Mr Faulkner may have suffered some mild bruising and swelling to his shoulder, the claimed condition affecting his neck, right shoulder and arm was not causally related to the June 1998 incident.
3. After the reviewable decision was made, Mr Faulkner did not seek review within the required time frame but was granted an extension up to 2 August 2000. Despite this, he did not pursue any review until 23 December 2004. He was granted a further extension of time to apply to this tribunal by 6 December 2005.
4. His then solicitors, on 8 June 2005, requested a determination of Mr Faulkner’s entitlements for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). By determination of 14 June 2005, the respondent found Mr Faulkner had no entitlement to compensation for permanent impairment and non-economic loss. This was affirmed by reviewable decision dated 25 August 2005.
5. The tribunal dealt with both claims together. Mr Faulkner failed to pursue his claims after two days of hearing and an adjournment for the taking of further evidence. On 19 February 2007, the matters were dismissed when Mr Faulkner failed to appear. They were re-instated on his application later that year.
issue
6. The first issue is whether Mr Faulkner failed to provide notice as required by section 53 of the Act.
7. Presuming he did give notice, the substantive issue is whether Mr Faulkner’s workplace fall caused him compensable incapacity which is continuing so as to entitle him to incapacity payments and a lump sum benefit under sections 24 and 27 of the Act. Section 24 provides for compensation for injuries resulting in permanent impairment and section 27 provides for compensation for non-economic loss.
consideration and findings
8. Subsection 53(1) of the Act provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority as soon as practicable after the employee becomes aware of the injury. The material before the tribunal shows that Mr Faulkner did report the incident on the day it occurred although he did not make a claim until 7 months later. In addition, he has since furnished a statement from his co-driver, Mr Michael John Styles, confirming the incident and completion of an incident report.
9. As well, subsection 54(1) provides that compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section. Under section 99 a claim includes a request. Subsection 53(2) provides a claim shall be made by giving the relevant authority a written claim in accordance with the form approved by Comcare for the purposes of this paragraph. Importantly in our view, subsection 53(5) provides that strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
10. For the review, Mr Styles made a sworn statement that he was working with Mr Faulkner when he hit his shoulder. Mr Styles noticed the right sleeve of the applicant’s shirt was torn, dirty and greasy when Mr Faulkner returned to the cabin after looking at a problem with one of the wagons. Mr Styles knew about the completion of an incident report. Mr Styles said that he noticed a lack of mobility in Mr Faulkner afterwards, referring to his loss of interest in playing squash because of pain in the shoulder and his change of behaviour at work in the cabin of locomotives. Mr Styles thought Mr Faulkner was a person who was prepared “to tough it out”. Overall, he thought the incident changed Mr Faulkner.
11. We find that Mr Faulkner did report the incident in June 1998 to Mr Styles who was working with him on a locomotive at the time. The incident report completed by Mr Faulkner on 7 June 1998 recounts that he slipped on ballast and struck his shoulder when returning to his locomotive after checking an open container door. He took no time off after the incident but experienced pain which he thought related to the incident. Mr Faulkner also lodged a claim for compensation on 23 December 1999 based on the incident. He claimed ‘soft tissue injury to the right arm, neck and shoulder’. We therefore find he satisfies both sections 53 and 54.
12. At the tribunal hearing, Mr Faulkner gave oral evidence that
I was returning back to Taree from a trip to Brisbane and we had gone through Macksville Station and we got a call from the train controller via radio that a fettler who was standing on the platform had reported a container door open on the train so we immediately stopped and I went back to inspect it.
… I walked back and found a container door open, I had locked that and was returning back to the locomotive, walking alongside the ballast as there was no walkway there and there was a large depression in the ground beside it, it was the only place to walk, and as I was walking along the ballast the ballast give way under foot, I slipped forward, struck my shoulder on a side of a wagon and was leaning on my elbow, got back up, proceeded back to the locomotive, I informed my mate on the way up what had happened via radio, we rang up our office, the National Rail office and reported the incident at the time, they asked if I was okay to continue which I was and we got to Telegraph Point where we were relieved.
… We returned to Taree to finish duty and filled out the incident report, accident report and that was the finish of the shift.
13. Mr Faulkner gave oral evidence that he felt pain only in the right shoulder at the time and did not seek any medical attention at that stage. Mr Faulkner agreed under questioning that he continued with his normal duties. He agreed he did not have any treatment until he saw Dr Jenny Wines on 10 January 1999, about six months later. On this occasion, Mr Faulkner recalled that Dr Wines certified him unfit but his evidence was unclear as to whether the certificate was for an Achilles tendon problem, his shoulder or diabetes. On record is a letter from Mr Faulkner to Comcare dated 1 February 1999 but, as Mr Faulkner agreed, probably written on 1 February 2000 rather than 1999, in which Mr Faulkner said the pain in his shoulder became gradually worse so he saw his doctor about it and about problems with his Achilles tendon. The letter said:
I was referred for an X-ray and also some blood tests for diabetes which I was being treated for. The X-ray showed nothing, but the blood test showed that I had elevated blood sugar levels and that I needed medication to assist in controlling the diabetes. I was given some time off work to commence the medication and to see how I react with it.
14. Mr Faulkner recalled seeing the chiropractor, Mr Barrass, on 2 February 1999. He also recalled seeing Dr Wines on 16 February 1999 a couple of days after he had fallen off his motorbike. Mr Faulkner gave evidence that he returned to see doctors in the same practice on more occasions in February and March 1999. Mr Faulkner agreed he attended on 18, 22, 23, 24 and 25 February and also on 1 March 1999. Again all consultations were in relation to the injuries received in the motorcycle accident. He said he also saw the community nurse, who dressed the wound and gave him supplies to dress himself at weekends.
15. Mr Faulkner agreed that he had the wound re-dressed on 16, 17 and 18 March 1999. He also recalled seeing a doctor about his blood and his diabetes. He remembered the discussion with the doctor about his working as part of a two man crew, which was related to his diabetes, but did not remember discussing his shoulder or any other part of his body on that occasion. Mr Faulkner said he nevertheless had ongoing problems with his shoulder and had seen other doctors about it after he was made redundant.
16. Between the time of the injury in June 1998 and the time his position was terminated in October 1999, Mr Faulkner said he continued to work but was having a lot of trouble. He said he had a lot of problems with management and also with his shoulder. He told the tribunal he was not able to carry out his duties 100 per cent.
17. Mr Faulkner gave further oral evidence that he had seen a chiropractor in Armidale on two occasions in 2003 and an osteopath at about the same time. Other than seeing the doctors at the Pat Dixon Medical Centre in Armidale, he saw Dr Mark Craike and, recently, about two months ago, he was referred by his GP to the pain clinic at the Armidale Hospital for assessment.
18. Mr Faulkner also gave evidence that he used to play squash and go fishing but now found these activities difficult because of pain in the shoulder. His 14 year old son helped him with the housework and shopping. He gave further evidence to the effect that once in January and once in February 1999, when he was still employed, he saw more than one GP and complained of problems he was having with his shoulder and an unrelated problem with his heel. One of the GPs referred him for x-rays, not only for the heel but also for the shoulder.
19. When he raised his arm level to the horizontal, Mr Faulkner demonstrated some difficulty with abduction. When questioned about sporting activities, Mr Faulkner said he used to play cricket and football as well as squash. He stopped playing rugby league after he injured his shoulder when he was an apprentice aged about 17. He also gave evidence that National Rail had an indoor cricket team which he used to play for. He had to give that away as he could not bowl any more. He said that, when he rolled his arm over to bowl, it cracked.
Consideration of medical evidence
20. In the claim form he completed on 23 December 1999, after his employment had been terminated on 3 October 1999 and approximately 7 months after the June 1998 workplace incident, Mr Faulkner set out that he was first treated for his injury by Bryan W Barrass on 2 February 1999. An undated report from Mr Barrass confirms that the doctor saw Mr Faulkner on 2 February 1999 and observed restricted movement in his shoulder joint and in his cervical spine. The respondent’s documents also include medical records showing that Mr Faulkner sought treatment for his arm, neck, shoulder and spine in 1999. Further records show that, at a staff examination organised by National Rail in March 1999, Mr Faulkner did not mention an injury associated with the 1998 fall but did mention that he had injured his right arm following a motorcycle accident in January 1999.
21. Dr Michael Prowse, a rheumatologist, saw Mr Faulkner and furnished a report on 10 November 1999. After examining him and checking that an x-ray of his shoulder was normal, Dr Prowse arranged further investigation as he could not find the cause of Mr Faulkner’s chronic right arm pain. An MRI scan, further examination and reports by Dr Prowse and by Dr Wines, a nerve conduction study carried out by Dr Dennis Cordato and other investigations took place. Dr Paul Karen on 8 February 2000 diagnosed soft tissue injury to the neck, right shoulder and arm.
22. A Comcare officer then determined, on 9 March 2000, there was insufficient evidence to establish a causal link between work and the injury claimed. The officer described the injury as ‘superficial injury of multiple and unspecified sites’.
23. Dr Prowse furnished another report on 3 April 2000. Dr Prowse, having seen Mr Faulkner on 10 November 1999, 24 November 1999 and 2 February 2000, noted that electrical studies showed a mild generalised sensorimotor peripheral neuropathy consistent with Mr Faulkner’s having diabetes mellitus and not relevant to his compensation claim. Dr Prowse also felt, however, that it was reasonable to attribute his cervical problems to the workplace injury. He assessed no permanent impairment of the back or efficient use of the right arm and found 10% permanent impairment of the neck.
24. A Comcare review officer, on 9 May 2000, reconsidered the determination rejecting Mr Faulkner’s claim. The officer made a detailed and thorough assessment taking into account the various reports noted above as well as submissions from Mr Faulkner’s solicitors. The reviewable decision affirmed the earlier determination that there was insufficient evidence to establish a causal link between work and the injury claimed, being ‘superficial injury of multiple and unspecified sites’.
25. Dr Alan G Hopcroft furnished a report on 14 February 2005. He reported that he first saw Mr Faulkner on 10 July 2000 as well as on 14 February 2005. Dr Hopcroft observed that Mr Faulkner was obese and had been suffering degenerative spondylosis affecting his cervical, thoracic and lumbar spine at the time of the workplace incident. In Dr Hopcroft’s opinion, the applicant almost certainly damaged his neck further and this may have given rise to intervertebral disc lesions which went on to cause significant pain. Mr Faulkner gave oral evidence that Dr Hopcroft had been managing his condition until he moved to Armidale where he was treated by the doctors at the Pat Dixon Medical Centre in Armidale. Dr Craddock, Mr Faulkner said, last treated him for his back problems.
26. The clinical records of the Biripi Medical Centre confirm that Mr Faulkner attended that practice for various treatments. One of the GPs at that practice, Dr Paul Karen, on 8 February 2000, noted that Mr Faulkner was seen in 1998, 1999 and 2000 and referred to Dr Prowse. Dr Karen wrote further that the prognosis for his soft tissue injury, after the workplace fall, was “good”. He concluded that the prognosis was “good, with time, physiotherapy and anti-inflammatory agents”.
27. Dr Hopcroft gave oral evidence that he saw Mr Faulkner on 10 July 2000 on referral from Dr Paul Karen of the Biripi Medical Centre. He added that Dr Jenny Wines represented the same group practice. He said that he carried out a physical examination and confirmed the findings that came with the referral letters of both Dr Karen and the previous treating specialist, the rheumatologist, Dr Michael Prowse of Port Macquarie. He wrote that he understood Mr Faulkner had suffered significant neck pain since 7 June 1998 when he fell on ballast on a railway track. He observed that Mr Faulkner was obese and had marked restriction in movement of his cervical spine in all directions. Dr Hopcroft at that time believed Mr Faulkner had been suffering degenerative spondylosis affecting his cervical, thoracic and lumbar spine and that he almost certainly damaged his neck further on 7 June 1998 and perhaps the fall gave rise to the C5/6 and T1/2 intervertebral disc lesions.
28. In Dr Hopcroft’s opinion, the applicant’s major problem, causing him most distress, was “his neck pain, his restricted movement and his upper limb symptoms”. There was about a 12-month gap in which he didn't see Mr Faulkner, between 31 January 2001 and 9 January 2002. On the second occasion, he was referred by another general practitioner from Gloucester, Dr Pat Sweeney. Dr Hopcroft noted the applicant was “still having pain in both shoulders … he was having numbness increasing in his hand. He had developed a reactive depressive illness, which was being treated by Dr Sweeney”. Dr Hopcroft also noticed some wasting of his right shoulder musculature, reflecting the fact that he hadn't been using his right arm.
29. Dr Hopcroft said he sent Mr Faulkner for physiotherapy once more, mainly asking the physiotherapist to push with the cervical traction immobilisation, noting he had just spent four days previously in hospital for his diabetic control under one of the physicians there. When he next saw Mr Faulkner, on 20 May 2002, Mr Faulkner said he was moving to Armidale and Dr Hopcroft said his notes showed he recommended physiotherapy continue once a week for his cervical area and also to his back.
30. When Dr Hopcroft saw Mr Faulkner on 15 September 2004, he said “he still had very significant neck and back problems which were essentially at the time that they were increasing”. Dr Hopcroft thought this was reflected by the fact that Mr Faulkner had gone onto a disability pension. Dr Hopcroft also mentioned that there may have been an internal derangement problem of his left knee which he couldn't confirm and he was concerned that Mr Faulkner would be subjected to a tourniquet arthroscopy procedure on his left leg when he had diabetes.
31. The doctor said he did not make an assessment in the right arm because his right arm symptoms were not arising from any pathology in his right arm. The right arm symptoms arose as referred pain from his neck so he felt that neck assessment took into account the radiculopathy. Under questioning, Dr Hopcroft conceded that his understanding that Mr Faulkner “had suffered significant neck pain since 7 June 1998" arose on the basis of what he was told by the applicant.
32. Dr Hopcroft’s last report is dated 14 February 2005 and he provided a short letter adding to that report on 15 November 2005. Dr Hopcroft stated that, having reviewed his report of 14 February 2005, he was of the opinion that Mr Faulkner had a permanent impairment of his cervical spine of 10% under table 9.6. Further, in his opinion, Mr Faulkner had a 5% permanent impairment of his thoracolumbar spine according to the same table.
33. Dr Tony Blue, an orthopaedic surgeon, saw Mr Faulkner on 25 August 2005 and furnished a report on 30 August 2005. Dr Blue wrote that he based his report on personal examination, multiple x-rays, a file containing 32 medical reports, copious hand-written clinical records plus various other reports. He came to a different conclusion from that of Dr Hopcroft, finding no permanent impairment and no significant injury at the time of the incident on 7 June 1998.
34. Dr Blue took a history that Mr Faulkner hit the front of his shoulder on a wagon step and ended up falling further onto the point of his elbow. He noted that Mr Faulkner continued to work until his redundancy in October 1999 and that he had not seen a doctor about any upper limb or neck problem until 2 February 1999. He also took a history of the motorcycle accident on 14 February 1999, which he recorded had occurred at 5 km per hour and which resulted in Mr Faulkner landing on his right side, specifically his hip, forearm and ankle. He further recorded that Mr Faulkner took no time off work but continued chiropractic and osteopathic treatment. Dr Blue noted Mr Faulkner was diabetic, based on medical notes furnished, and said that Mr Faulkner had not mentioned this to him.
35. As to conditions Mr Faulkner complained of on this occasion, Dr Blue recorded that he spoke of chronic pain in the right shoulder radiating down his right upper limb in a glove distribution into all digits of his right hand. He also recorded Mr Faulkner’s complaint that his lower back gave way and so did his knees. After physical examination and consideration of various materials, Dr Blue expressed the opinion that Mr Faulkner suffered from naturally occurring age and constitutionally related early C5/6 and L4/5 disc degeneration but no other significant abnormality in his right shoulder despite loss of movement. The x-rays, ultrasound and bone scan were all normal.
36. Dr Blue found the workplace incident of 7 June 1998 had not caused any abnormality in Mr Faulkner’s neck or upper limb despite the complaint of widespread pain. He also considered the motorcycle accident would have produced merely soft tissue trauma and would have healed in six weeks. About the claimed injury, Dr Blue gave a similar opinion that it would have healed in a maximum of six weeks. He further stated there was no physical impairment whatsoever stemming from the incident on 7 June 1998.
37. Dr John F Davis, an injury management consultant, saw Mr Faulkner and reported his evaluation of him to Mr Faulkner’s then solicitor on 26 September 2005. Dr Davis took a history of the slip on ballast and striking of the shoulder on 7 June 1998 and also noted Mr Faulkner had been on an invalid pension since August 2003. After examination and consideration of reports furnished to him, Dr Davis concluded “on the balance of medical probability” that the symptoms relating to Mr Faulkner’s neck and upper limb were work related and provided a nexus to his current level of impairment and disability. He considered Mr Faulkner had whole person impairment of 10% to his neck under table 9.6 and 10% to his right upper limb under table 9.1.
findings
38. On balance, we find that Mr Faulkner did not suffer any more than a superficial injury to his shoulder on 7 June 1998. We place some importance on the circumstance that Mr Faulkner did not suffer any incapacity preventing him from continuing to work or require medical treatment as a result of that incident. He says that he was not 100% but there is no medical evidence or other corroboration of this apart from a statement from Mr Styles furnished in 2006 that he thought Mr Faulkner changed and was the type to carry on. There is no contemporaneous evidence at all of any complaints between 7 June 1998 and 10 January 1999.
39. At the time, Mr Faulkner recorded in the incident report that he struck his shoulder and suffered minor bruising and swelling. There is no mention in the incident report in 1998 or in the claim form of 1999 of any injury to the neck or the back. Mr Faulkner did not seek medical attention at the time of the incident and it was not until 2 February 1999 that he complained to Mr Barrass, a chiropractor, of pain radiating from his neck to his shoulder extending down into the right upper and lower arm. This was after the intervening motorcycle accident in January 1999.
40. Mr Faulkner did complain to Dr Wines about shoulder problems on 10 January 1999 and 8 February 1999, and also to Mr Barrass on 2 February 1999 and 18 March 1999. Neither of them recorded any complaint about Mr Faulkner having difficulty performing his duties.
41. The first mention of Mr Faulkner’s neck appears, from the material before us, in the notes of Mr Barrass and, in particular, his entry for 2 February 1999. Mr Barrass records a finding of a stiff neck with some crepitus found on examination. Mr Barrass records that he saw Mr Faulkner on 2 February 1999 for a right shoulder problem. His clinical notes for 2 February 1999 do not indicate a complaint about the neck but a finding on examination. He notes Mr Faulkner’s actual complaints were:
Pain was reported as radiating down from the shoulder joint to the elbow. The other pain sites were shoulder blade, right thoracic cage, right ulna, and back of right hand.
42. On 18 March 1999, Mr Barrass did not record any complaint regarding the neck or any finding on examination in relation to the neck. Mr Barrass did record that he carried out a manipulation of the full spine with particular attention to lumbar, upper dorsals, right shoulder joint, and blade muscles.
43. Although Mr Faulkner saw Dr Wines several times in 1999, these visits were for other health problems. Dr Wines has taken no history of complaint regarding the right shoulder or the neck until 7 October 1999, which was four days after the applicant’s employment had been terminated. Mr Faulkner gave evidence to the effect that he went to see Dr Wines on the advice of his union and in order to preserve his compensation rights.
44. Dr Wines noted on a date which is unclear, either 2 or 7 October 1999, that the applicant had been referred to Dr Prowse, a rheumatologist. The letter of referral to Dr Prowse is dated 7 October 1999. Mr Faulkner then complains of:
…a constant, unremitting, worsening problem requiring continued medical treatment.
45. Dr Prowse recorded Mr Faulkner’s account of pain in his right upper arm, shoulder, periscapular, neck and upper anterior chest and radiation to the right hand on 10 November 1999 and noted the work incident involving the shoulder. However, although Mr Faulkner had in the meantime had a motorcycle accident and hurt his arm, requiring medical attention over several days, this accident is not mentioned in Dr Prowse’s report. Dr Prowse found minimal reduction in neck movements and normal limb muscle strength and reflexes on 10 November 1999. He could find no clear cause for chronic right arm pain. After x-rays, ultrasound and MRI investigation, Dr Prowse could still find no neurological deficit and observed shoulder movements were satisfactory on 2 February 2000.
46. Dr Prowse saw Mr Faulkner on 10 November 1999, 24 November 1999, 2 February 2000 and 3 April 2000 and, only after the last examination on 3 April 2000, thought it reasonable to attribute cervical problems to the workplace injury. He assessed no permanent impairment of the back or of efficient use of the right arm and found 10% permanent impairment of the neck although he observed that the majority of cervical injuries settled with time.
47. Dr Blue, who saw Mr Faulkner for the respondent, took a history that chronic pain affected all of the digits of the right hand. But after examination and consideration of earlier reports and material supplied, Dr Blue formed the opinion that there was no pre-existing problem with the right upper limb. There was early degeneration of the C5/6 disc that Dr Blue thought could have been aggravated by the 1998 fall but in his opinion no aggravation occurred. His conclusion was that the effects of the fall would have cleared up in less than six weeks. We find support for this view in the fact that Mr Faulkner took no time off work and consulted no doctor or any kind of medical practitioner for over six months. Dr Blue also noted at point 3.6 of his report that “the glove distribution of his right upper limb pain was strongly indicative of non-organic factors, possibly involuntarily exaggerated, but probably contrived.”
48. The findings of Dr Davis are inconsistent with the findings not only of Dr Blue but also with those of the applicant’s treating rheumatologist, Dr Prowse. As well, Dr Blue’s examination was notably only one month prior to that carried out by Dr Davis. Dr Blue was of the opinion that the incident of 7 June 1998 had not caused any physical impairment whatsoever and he noted his finding, at page 21 of the T Documents numbered T1-T13, that the applicant displayed normal range of cervical movement and mobility and no cervical muscle spasm or deformity.
49. Dr Hopcroft saw Mr Faulkner on referral from a treating GP. Dr Hopcroft practises as an orthopaedic surgeon. On the first follow-up visit from Mr Faulkner, Dr Hopcroft told us in oral evidence that Mr Faulkner was complaining also of some spinal pain so the doctor sent him off for x-rays, he thought thoracic and lumbar sacral spine. Dr Hopcroft said the x-rays confirmed some changes there of his pre-existent Scheuermann's osteocondritis. Then Dr Hopcroft said he saw Mr Faulkner for the results of those x-rays on 20 September 2000, which was the day after he had them done, and confirmed to him that he had some changes in lower back, significantly of Scheuermann's disease and that he needed to continue his physiotherapy but redirecting the physiotherapist to continue not only with the cervical spine treatment but also with treatment to his thoracic spine.
50. Dr Hopcroft gave further oral evidence that Mr Faulkner was not in his opinion incapacitated for work with respect to his back at that stage. He stated that Mr Faulkner’s major problem at this time, causing him most distress was his neck pain, his restricted movement and his upper limb symptoms. He further gave oral evidence that he felt there was a marginal deterioration in 2002 in that it appeared the symptoms were becoming more constant and more intensive, although there was still an intermittent component to them.
51. Concerning his observations when he saw Mr Faulkner in February 2005, Dr Hopcroft said Mr Faulkner was continuing to have cervical traction and that was being undertaken in his general practitioner's surgery. He also had lower back pain and he was complaining of radiating pain to his left leg and it intrigued Dr Hopcroft that he had been reviewed by an orthopaedic surgeon in Armidale, Dr Aixt, who was feeling that there may have been an internal derangement problem of his left knee and Dr Hopcroft couldn't confirm that. Dr Hopcroft further said he was just a little bit concerned that Mr Faulkner would be subjected to a tourniquet arthroscopy procedure on his left leg “when he had diabetes and he had major back problems and all that goes on with manoeuvring a patient under an anaesthetic who has this amount of spinal trouble”. Dr Hopcroft confirmed that he carried out an assessment of the thoracic lumbar spine and found 5 per cent impairment. This was due to finding slight restriction in range of movement.
52. Dr Hopcroft agreed that he could not recall taking any history of any back injury. However, he added it was unlikely that Mr Faulkner could fall and not aggravate an underlying change in his lower back “that he obviously had had for many years” although he did not get a specific story of trauma. He explained his view that regarding lumbar spine, in a patient who is obese, there was certainly a significant change that should be “shifted home to accumulated degenerative change in the course of his life”. In Mr Faulkner he said there was “accumulated micro trauma not accumulated primary bone pathology”.
53. Dr Hopcroft re-iterated later in his oral evidence that in his opinion Mr Faulkner’s thoracolumbar spine related to his work. He explained again that he related it to his work “by the fact that he had a fall at one stage, he complained of pain in his back following that fall which was investigated by other than myself, that there is obviously therefore a component of his back pain that relates to his fall and his work, …”.
54. In this respect, Dr Hopcroft’s conclusions we found less than convincing. Firstly, he conceded he relied on a history of chronic pain from Mr Faulkner. Similarly to Dr Prowse, he found no organic cause for the pain. By contrast to Dr Hopcroft’s attribution of lumbar pain to the workplace fall, we have no material before us leading to work related causation of Mr Faulkner of lumbar pain.
55. Dr Davis also made no firm finding as to causation but based his opinion on the balance of medical probability. He is not an orthopaedic specialist but an injury management consultant and less qualified to diagnose causation. Dr Blue is an orthopaedic surgeon and as such is better qualified than an injury management consultant to form an opinion about any nexus or causation linked to the incident in June 1998. We also consider that Dr Blue’s qualifications are at least as impressive as those of Dr Hopcroft and prefer his analysis to that of Dr Hopcroft for the reasons set out below.
56. Mr Faulkner gave oral evidence to the effect that he never suffered any injury to his back while he was employed by National Rail. This casts more doubt on the suggestion in Dr Hopcroft’s final report of 5% permanent impairment to the thoracolumbar spine as well as the cervical spine. While he has not stated in his report that this impairment is work-related his oral evidence makes it plain that he thought it work related. In addition, the 10% assessment Dr Hopcroft arrived at for the cervical spine is inconsistent with the findings not only of Dr Prowse but also of Dr Blue.
57. We note as well that Dr Hopcroft recorded no measurement of restriction of movement of the applicant’s shoulders. Dr Blue, however, found a measured restriction in both shoulders. He said that:
He would appear to have only 135 degrees of active flexion and abduction of each shoulder
58. This finding is significant as Dr Blue found loss of flexion and abduction not just in the right shoulder. The restriction was bilateral and symmetrical, although there has never been any suggestion of injury to the left shoulder. Dr Blue’s finding in this respect suggests a more thorough examination than that of Dr Hopcroft. We observed Mr Faulkner exhibiting similar restriction of abduction in his right arm when asked by us at the hearing to demonstrate movement of his right arm.
59. We note that none of the investigations carried out on Mr Faulkner find any pathology to account for pain in his neck and right shoulder or arm. Later, age related degenerative changes appear in Mr Faulkner’s spine. While Dr Prowse finally comes to a conclusion that it is reasonable to attribute the neck problem to the June 1998 incident he does not state that he is convinced of a connection.
60. Finally, as we prefer the opinion of Dr Blue, we find that the applicant is not entitled to compensation under section 14 in respect of the injury claimed and alleged to have occurred on 7 June 1998. We further find that Mr Faulkner suffered no continuing effects of the fall and is not entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 respectively.
decision
61. The decision under review is affirmed.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: .....................[Sgd]...............................
Jennifer Wong, Associate
Last date of Hearing 26 October 2007
Date of Decision 28 February 2008
Solicitor for the Applicant Self-represented
Counsel for the Respondent Mr Brendan KellySolicitor for the Respondent Ms Anella Bortone, Sparke Helmore Lawyers
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