Ferris and Comcare (Compensation)

Case [2020] AATA 1218

Ferris and Comcare (Compensation) [2020] AATA 1218 (7 May 2020)

Division:GENERAL DIVISION

File Number(s):     2019/0864; 2019/4844  

Re:Gail Ferris

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Member W Frost

Date:7 May 2020

Place:Canberra

The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

............................................................

Member W Frost

Catchwords

WORKERS’ COMPENSATION – whether the applicant suffered an injury pursuant to section 5A of the Safety, Rehabilitation and Compensation Act 1988 – whether that injury gave rise to permanent impairment under the Safety, Rehabilitation and Compensation Act – degree of permanent impairment under the Comcare Guide - healed fracture of the sacrum – permanent impairment does not meet 10% threshold – decision under review affirmed

WORKERS’ COMPENSATION – whether the applicant suffered an injury pursuant to section 5A of the Safety, Rehabilitation and Compensation Act 1988 – medical expenses – incapacity for work – whether Comcare is presently liable to pay compensation – no present liability – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 16, 21A, 24, 27, 28, 62, 64

Cases
Canute and Comcare [2006] HCA 47

Solman and Comcare [2018] AATA 6

Secondary Materials

Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1, 2011)

REASONS FOR DECISION

Member W Frost

7 May 2020

INTRODUCTION

  1. The Applicant, Gail Ferris, fell in 2011 at her workplace, the then Department of Education, Employment and Workplace Relations (Department).

  2. In 2011, Comcare accepted liability in respect of Ms Ferris’ Workers’ Compensation Claim, for ‘fracture of sacrum & coccyx (coccyx only)’, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

  3. In 2018, following an application from Ms Ferris, Comcare declined liability to pay compensation for permanent impairment and non-economic loss in relation to her condition, pursuant to sections 24 and 27 of the SRC Act. Ms Ferris applied to the Tribunal for review of Comcare’s decision.

  4. In 2019, Comcare determined that Ms Ferris was entitled to compensation under section 16 of the SRC Act for her claimed ‘fracture of sacrum & coccyx’ and for time off work in the form of incapacity payments under section 21A of the SRC Act. By way of a reconsideration ‘on its own motion’ under subsection 62(1) of the SRC Act, Comcare found that Ms Ferris was only entitled to compensation up to 18 July 2019, not 1 December 2019 as previously determined. That is, Comcare found it had no present liability to pay Ms Ferris compensation for her injury. Ms Ferris also applied to the Tribunal for review of this decision.

  5. The Tribunal has considered three sets of documents filed in this proceeding on 5 April, 7 May and 12 September 2019, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act),[1] together with the following additional documents:

    (a)Applicant’s Statement of Facts, Issues and Contentions filed 20 December 2019;[2]

    (b)Statement…

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AGLC
Ferris and Comcare (Compensation) [2020] AATA 1218
Case
[2020] AATA 1218
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Ferris against decisions made by Comcare. The primary dispute revolved around whether Ms Ferris had suffered an injury pursuant to section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) that resulted in permanent impairment, and whether Comcare was presently liable to pay compensation for incapacity and medical expenses. The case was heard by Member W Frost.

The legal issues before the Tribunal were twofold: first, whether Ms Ferris suffered an injury on or after 18 July 2019, and second, if such an injury was established, whether it resulted in any incapacity for work and entitlement to medical treatment under sections 16 and 21A of the SRC Act. Ms Ferris's central argument was that all her current symptoms were caused by a sacral fracture sustained in a workplace fall in 2011, and that this injury had not healed and continued to cause her pain and impairment.

The Tribunal found that Ms Ferris did suffer an injury in the form of a fractured sacrum on 28 March 2011, as accepted by Comcare. However, the Tribunal was not satisfied that this injury caused any ongoing incapacity for work or necessitated further medical treatment under the SRC Act. Crucially, medical evidence, including CT scans and an MRI, indicated that the sacral fracture had healed and showed no signs of non-union or displacement. While Ms Ferris continued to experience pain, the Tribunal found her argument that this pain was solely attributable to the 2011 injury to be unsustainable, noting the presence of degenerative factors and her apparent unwillingness to consider other causes. Furthermore, regarding permanent impairment, the Tribunal relied on expert medical opinion which assessed her impairment at 5% under the Comcare Guide, falling short of the 10% threshold required for compensation for permanent impairment.

Consequently, the Tribunal affirmed both of Comcare's decisions under review. Ms Ferris's applications to the Tribunal were unsuccessful, meaning Comcare was found to have no present liability for incapacity payments or medical expenses, and her claim for permanent impairment and non-economic loss was declined.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues for the Tribunal to decide in relation to Ms Ferris’ claim for present liability are:(a)whether, on and from 18 July 2019, Ms Ferris suffered an injury pursuant to the SRC Act; and(b)if so, whether that injury resulted in any incapacity for work and medical treatment under sections 16 and 21A of the SRC Act. BACKGROUND On 28 March 2011, while at her place of employment at the Department, Ms Ferris’ chair slid out from under her and she fell.[11] The Incident Report completed by Ms Ferris on the day of this accident contained the following details: Was bending down to pick up something and the chair went out from underneath me. I fell back, hit my head on the table behind me then also on the leg of the table. I landed quite hard on my coxic [sic] which is in a bit of pain.[11] Exhibit R5, T3, pages 13-14. On 31 March 2011, three days after her fall, Ms Ferris had an x-ray of her lumbosacral spine. The accompanying radiologist’s report stated that:[12]Focal step in the lower sacrum, with slightly angulated distal/lower sacrum angulated anteriorly, consistent with an acute fracture.The vertebral column is otherwise reasonably well preserved. There is mild degenerative disc disease at the L2/3 level. No associated alignment abnormality.SI joints are normal allowing for some minor sclerosis around the right SI joints.The bony pelvis is otherwise intact.CONCLUSON: Acute fracture of the lower sacrum. This is only minimally angulated. [emphasis added][12] Exhibit R5, T4, page 15. On 28 April 2011, Ms Ferris completed a Claim for Workers’ Compensation in relation to a ‘fractured tailbone/sacrum’.[13] [13] Exhibit R5, T5, pages 17-32. On 31 May 2011, Comcare accepted liability in respect of Ms Ferris’ workers’ compensation claim, for ‘fracture of sacrum & coccyx (coccyx only)’, under section 14 of the SRC Act.[14] The Department did not dispute that Ms Ferris’ injury occurred as claimed.[15][14] Exhibit R5, T7, page 37.[15] ibid., at page 40. On 1 July 2011, Ms Ferris had a CT (or computed tomography) scan of her sacrum. The radiologist reported as follows:[16]FINDINGS: Focal cortical irregularity at the sacrococcygeal junction with associated sclerosis consistent with a previously healed fracture. The coccyx remnant has a normal angulation which is physiological. No associated soft tissue swelling or fracture line visualised.Bony pelvis is otherwise intact. Allowing for some minimal degenerative change of the SI joints no focal abnormality demonstrated. Moderate to marked facet joint arthropathy of the L5/S1 level noted without extraforaminal narrowing. No disc protrusion at this level. Formal lumbar spine has not been performed.COMMENT: Healed fracture at the sacrococcygeal junction. No evidence of non-union or soft tissue swelling. No cause for pain identified. Moderate facet joint arthropathy at the L5/S1 level. [emphasis added][16] Exhibit R5, T8, page 43. On 1 March 2012, Ms Ferris consulted Dr Bookallil, General Practitioner, in relation to a separate fall not the subject of the reviewable decisions before the Tribunal. The consultation notes recorded:[17][17] Exhibit R8, pages 36-37.Fall at work on Tuesdayslipped while cleaner was washing floorlanded left buttocksfeels ok – a bit stiff, no new painoe no buttocks bruisingtender on left buttocks, but equivalent tenderness on right buttocksgood spinal flexionimp – tenderness from old injury, not new fallworking 6 and 7 hour daysneeds commcare [sic] report done. Sent to Dr K Watson, but I haven’t seen request. Gail will have it photocopied and left for me to complete.Tired at workstarting and finishing later, but doing same hoursgets up at 530 – habit, so would prefer to start and finish earlierimp – this is not a WC issue, but preferred hours need to be negotiated with boss

Evidence

Evidence Before The Court

On 1 July 2011, Ms Ferris had a CT (or computed tomography) scan of her sacrum. The radiologist reported as follows:[16]FINDINGS: Focal cortical irregularity at the sacrococcygeal junction with associated sclerosis consistent with a previously healed fracture. The coccyx remnant has a normal angulation which is physiological. No associated soft tissue swelling or fracture line visualised.Bony pelvis is otherwise intact. Allowing for some minimal degenerative change of the SI joints no focal abnormality demonstrated. Moderate to marked facet joint arthropathy of the L5/S1 level noted without extraforaminal narrowing. No disc protrusion at this level. Formal lumbar spine has not been performed.COMMENT: Healed fracture at the sacrococcygeal junction. No evidence of non-union or soft tissue swelling. No cause for pain identified. Moderate facet joint arthropathy at the L5/S1 level. [emphasis added][16] Exhibit R5, T8, page 43. On 1 March 2012, Ms Ferris consulted Dr Bookallil, General Practitioner, in relation to a separate fall not the subject of the reviewable decisions before the Tribunal. The consultation notes recorded:[17][17] Exhibit R8, pages 36-37.Fall at work on Tuesdayslipped while cleaner was washing floorlanded left buttocksfeels ok – a bit stiff, no new painoe no buttocks bruisingtender on left buttocks, but equivalent tenderness on right buttocksgood spinal flexionimp – tenderness from old injury, not new fallworking 6 and 7 hour daysneeds commcare [sic] report done. Sent to Dr K Watson, but I haven’t seen request. Gail will have it photocopied and left for me to complete.Tired at workstarting and finishing later, but doing same hoursgets up at 530 – habit, so would prefer to start and finish earlierimp – this is not a WC issue, but preferred hours need to be negotiated with boss On 5 March 2012, Dr Bookallil wrote to Comcare following its request in January 2012 for a medical report regarding Ms Ferris to assist in its management of her claim for the 2011 injury.[18] This report relevantly stated that an x-ray ‘showed an acute fracture of the lower sacrum’; a CT of Ms Ferris’ lower spine ‘showed the fracture had healed’; initial pain and tenderness over the sacrum had resolved and is now ‘present to both the left and right of the sacrum’, but ‘is not explained by the fracture’ and ‘weight loss may help’.[19] [18] Exhibit R5, T13, pages 55-60. [19] Exhibit R5, T12, pages 53-54. On 6 March 2012, Ms Ferris had a CT scan of her lumbar spine. The radiologist reported:[20][20] Exhibit R5, T14, page 61.Lumbar alignment is normal.At L1/2, no disc protrusion or nerve root impingement is seen.At L2/3, there is narrowing of the disc space, a mild disc bulge and early facet OA [osteoarthritis] with very early canal stenosis. No nerve root impingement.At L3/4, there is minimal disc bulge and early facet OA. No canal stenosis or nerve root impingement.At L4/5, there is mild disc bulge and a small left paracentral disc protrusion indenting the thecal sac and impinging upon the left L5 nerve root. There is early facet OA. At L5/S1, there is a narrowing of the disc space and a mild disc bulge but no definite disc protrusion seen. Marked facet OA is noted. There is no nerve root impingementCONCLUSION:Small left paracentral disc protrusion at L4/5.Mild disc bulges as described.Early canal stenosis at L2/3.Marked facet OA at L5/S1.

Decision

Reasons for decision

On 1 September 2012, Ms Ferris underwent an MRI (or magnetic resonance imaging) of her lumbar spine and sacrum.[23] Dr Malcolm Thomson, Radiologist, reported:CONCLUSION: Lower lumbar spondylosis comprising chiefly facet joint osteoarthritis. Probable healing bilateral sacral fractures, more prominent on the left than the right, but without significant bony displacement. No current coccygeal abnormality demonstrated. [emphasis added][23] Exhibit R5, T18, pages 73-74. On 3 September 2012, Dr Bookallil discussed the MRI results with Dr Thomson. Dr Bookallil’s consultation notes recorded:[24]MRI - ?healing sacral fracturesspoke to Malcolm ThomsonHe went back to previous CT scan from March 2012 and couldn’t see any sacral fractures thenHe thinks ?stress fractures of the sacrum+ reasonable facet joint osteoarthropathy ?causing symptomsplan – discuss with other senior dr for adviceprobably needs referral to orthopaedics[24] Exhibit R8, pages 42-43. On 6 September 2012, Dr David McNicol, Consultant Orthopaedic Surgeon, assessed Ms Ferris at Comcare’s request for the purpose of obtaining his opinion regarding the management of ‘Ms Ferris’ claim for the fracture of sacrum and coccyx’.[25] In his report dated 18 September 2012 (detailed further below in these reasons), Dr McNicol diagnosed a ‘Healed fracture of the distal sacrum’.[26] [25] Exhibit R5, T19.1, pages 85-90.[26] Exhibit R5, T19, pages 75-84. On 31 October 2012, Ms Ferris submitted to Comcare a Claim for Permanent and Non-Economic Loss in relation to a ‘fractured coccyx’ and ‘ongoing pain caused by sacral coccygeal disruption’.[27] In August 2013, Comcare made a determination declining liability for this claim because it found that ‘a healed fracture of the sacrum [as diagnosed by Dr McNicol] attracts 5% whole person impairment’, but not the requisite 10% under the Guide in order to receive compensation.[28] On the evidence before the Tribunal, it does not appear that Ms Ferris requested a reconsideration by Comcare of its 2013 determination; Ms Ferris’ claim for permanent impairment and non-economic loss the subject of this proceeding was made in 2018.[27] Exhibit R5, T21, pages 93-102.[28] Exhibit R5, T23, pages 105-106. On 14 October 2013, Ms Ferris attended an appointment with Dr Bookallil and discussed Comcare’s determination declining her claim for permanent impairment and non-economic loss due to her injury. The associated medical records state that Ms Ferris ‘didn’t get Comcare payout. probably gets to 10% impairment on psychiatric condition’.[29] Dr Bookallil also drafted a letter, that was unsigned, but relevantly stated that Ms Ferris:[30]suffered a fractured coccyx in 2011 at work. She has chronic pain from fracture. In terms of the permanent impairment claim, Gail would not qualify as 10% impaired on the basis of her coccyx fracture. However, she would qualify as 10% impaired in relation to her psychological condition. [emphasis added][29] Exhibit R8, page 58.[30] Exhibit R9.

Ratio Decidendi

Legal Principle Established

Following re-examination of Dr Mourad, the Tribunal asked him further about his assessment of the degree of Ms Ferris’ permanent impairment pursuant to the Guide. Dr Mourad confirmed that his ‘initial assessment’ was that, because Ms Ferris had a healed fracture without displacement or residual signs, her degree of permanent impairment would be assigned 0% under the Guide, however Dr Mourad wanted to ‘err on the side of caution just in case’ and therefore assigned a 5% rating under the Guide, because ‘there may be some displacement that may be there that we haven’t been able to appreciate’.[176][176] ibid., pages 179-180.CONSIDERATION On 28 March 2011, Ms Ferris fell at her workplace and fractured her sacrum. The Tribunal is satisfied, on the evidence before it, that Ms Ferris suffered an injury in this fall pursuant to section 5A of the SRC Act, being her fractured sacrum, however it finds that she did not fracture any other bone, including her coccyx. There were two applications made to the Tribunal by Ms Ferris. The first application sought review of a decision made by Comcare declining her claim for permanent impairment and non-economic loss under the SRC Act in relation to the 2011 injury. The second application sought review of Comcare’s decision that, under the SRC Act, it had no present liability for incapacity payments and Ms Ferris’ medical expenses related to the injury. The Tribunal is satisfied that the correct or preferable decision is to affirm both decisions under review pursuant to those applications to the Tribunal. That is, Ms Ferris’ applications to the Tribunal are unsuccessful. Essentially, Ms Ferris’ argument in the proceeding was that she was asymptomatic in relation to pain in her lower back region before her fall at work in 2011 and all her current symptoms experienced after the fall were caused by that work injury. This argument is unsustainable on the evidence before the Tribunal and demonstrates a lack of insight, or unwillingness to entertain the likelihood, that other factors are the cause of these symptoms. For example, Ms Ferris rejected any suggestion that her current issues could be caused by her own pathology, which were unrelated to the work injury. Further, while Ms Ferris agreed that at some point in 2011 her sacrum healed, she disagreed that it followed that there should be no subsequent associated pain from that injury. Also, Ms Ferris denied that any incident or event in her life, other than her fall at work in 2011, was the cause of her current pain. This position was unchanged despite documentary and medical evidence to the contrary, including in relation to Ms Ferris’ degenerative factors. Ms Ferris relied upon documentation from a range of medical practitioners. Despite providing a Hearing Certificate in October 2019 noting that she was seeking to call to give evidence, Dr Speldewinde, Dr Tahir and Dr Siddiqui, only the latter ultimately gave evidence to the Tribunal, although it is noted that the other practitioners were said to be unavailable, despite Ms Ferris being aware of the hearing dates for some months in advance of the hearing and being provided multiple opportunities to obtain expert evidence in the proceeding. Accordingly, the Tribunal can only give those medical records and the practitioners’ assessments minimal weight in terms of assessing Ms Ferris’ condition, including because they are from her treating medical practitioners, none of whom have specialist qualifications in relation to the injury the subject of Ms Ferris’ applications before the Tribunal, unlike Dr Mourad, who was relied upon by Comcare.