Findlay and Comcare
[2011] AATA 421
•20 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 421
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2291
GENERAL ADMINISTRATIVE DIVISION ) Re SHERRILL FINDLAY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K S Levy RFD Date20 June 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – Incapacity for work – Medical condition not caused or contributed to by former employment – Decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(9), 5A, 19
Hawkins v Powells Tillery Steam Coal Co Ltd [1911] 1 KB 988
REASONS FOR DECISION
20 June 2011 Senior Member K S Levy RFD INTRODUCTION
1. The applicant, Sherrill Findlay, has made numerous claims over the last decade for acceptance of a condition and compensation for pain in the shoulder and arms. She contends this is related to her former employment at a bank. On 30 January 2009 a review of her claimed conditions was undertaken by the respondent, Comcare. It was determined that her accepted condition of cervical spondylosis was not related to her former employment, and that she had no entitlement to compensation in respect of incapacity for work. That decision was reviewed by a delegate of Comcare and affirmed on 9 April 2010. It is that decision which the applicant now seeks to be reviewed by this Tribunal.
BACKGROUND
2. It is important to set out the context of the history of claims made. The applicant’s position is that she is virtually permanently disabled. Ms Findlay had been employed as a bank clerk, specifically as a coin teller. She has claimed that work caused a workplace injury for her on 31 March 1986. She continued to work for approximately seven years but was retrenched in 1993. She has not worked since that time.
3. She made a claim for neck and back problems on 16 October 2002. The original decision, a reconsideration decision and an appeal to this Tribunal rejected that claim. She then applied on 10 November 2003 for compensation for permanent impairment and non-economic loss in relation to a number of conditions, including degenerative changes of the lumbar spine, an anxiety condition and degenerative changes in the cervical spine. That claim was initially unsuccessful, being rejected on 21 January 2004. Ultimately, on appeal, this Tribunal determined on 11 March 2005 to deny liability for degenerative changes of the lumbar spine and the anxiety condition, but accepted liability for the cervical spine (liability for changes at C4/5 and C5/6: Folio 144, T-Documents). That decision was made based on the evidence of an orthopaedic surgeon, notwithstanding considerable evidence of other medical specialists to the contrary.
4. A number of other claims were made subsequently. However, on review, it was held by this Tribunal on 11 September 2008 that there was no entitlement to compensation for the period 15 October 1993 to 29 August 2006. On 6 October 2006, another series of claims was made. These were denied on 11 December 2006 and the decision to reject those claims was affirmed on review and on appeal to this Tribunal.
5. A review of the evidence in this case followed, which led to the determination denying liability for compensation for cervical spondylosis on 30 January 2009 from which this appeal arises.
ISSUE
The issue for consideration is:
Did the applicant have an incapacity for work under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (“SRC Act”) for the period 29 August 2006 to the present time as a result of a workplace injury?
EVIDENCE
6. The claims history is a lengthy one. It is noted, however, that the applicant has not worked since 1993 and attributes that to the conditions for which she has claimed for almost 18 years. There has been considerable medical evidence accumulated over that period.
7. The Tribunal considered a considerable amount of specialist medical evidence spanning over a decade. It may be summarised as follows:
Radiological Evidence
8. A report of 9 March 1999 shows no abnormality.
Orthopaedic Surgeons
9. On 8 May 2011 Dr Robert Cooke reported about the pain in the applicant’s right shoulder and the C4/5 and C5/6 spondylosis. Dr Cooke said it was probably degenerative change but attributed the pain to the applicant’s former employment with the bank from 1986 to 1993.
10. Dr John Morris subsequently reviewed the applicant on 8 October 2005 and opined that the applicant had chronic pain syndrome rather than any orthopaedic problem with the cervical spine.
Consultant Physicians/Rheumatologist
11. Dr William Douglas examined the applicant on 19 July 2000 and again in June 2002. He diagnosed fibromyalgia and said some degenerative changes were apparent which were consistent with her age. He found no causal or material contribution by Ms Findlay’s former employment at the bank. In the second report of June 2002, Dr Douglas also stated that Ms Findlay “has an exaggerated response to pain, which does not appear to have an organic basis”.
12. There was a subsequent report by Dr Lisa Ryan on 19 January 2005 and she referred particularly to the applicant’s cervical spondylosis. Dr Ryan was of the view that Ms Findlay has a chronic pain syndrome.
Occupational Medicine Specialists
13. On 14 February 2001 Dr Keith Adam reported that the symptoms described by the applicant and the available medical evidence were inconsistent. In any case, he said the conditions which Ms Findlay has were not caused or aggravated by her previous employment.
14. There was a subsequent report by Dr Beryl Turner of 7 October 2005, where she concluded there was no plausible diagnosis to explain the symptoms described by Ms Findlay. Dr Turner was of the view that “psychogenic overlay … accounts for a large proportion of the incapacity”.
Spinal Surgeon
15. On 20 January 2004 Dr Bruce McPhee found radiological evidence of degenerative changes which were minor and consistent with age, but symptoms far greater than could be accounted for by degenerative changes. He also said the applicant had adopted a chronic sick role which appeared to perpetuate her symptoms. Dr McPhee presented a subsequent report dated 3 August 2006 and said that she had mild cervical spondylosis. He did not believe it was caused or materially contributed to by her employment. He believed that Ms Findlay’s problems were largely constitutional in nature.
Neurologist
16. Dr John Cameron reported on 4 December 2007 that the applicant’s neck movements were mildly restricted but no abnormalities around the neck or cervical spine were apparent.
Psychiatrists
17. Dr Gary Persley reported on 10 September 2003 that the applicant had a “chronic pain disorder with both psychological factors and a medical condition”.
18. Dr Jill Reddan provided a report on 6 May 2004 stating Ms Findlay had a somatisation disorder.
Other Evidence
19. At the hearing Ms Findlay, who was represented by her daughter, gave no evidence but presented recent certificates by a physiotherapist, Anne Warner. Ms Warner provided a certificate on 23 March 2011 stating that the applicant’s neck was causing referred pain down her arms. She provided a subsequent report dated 6 April 2011 stating that as the applicant was undertaking a TAFE course, it would be better that the applicant be able to undertake that course part-time.
CONSIDERATION
20. The question for the Tribunal, as put in the respondent’s solicitors’ submission, is whether compensation under the SRC Act is payable; that is, whether there is a relationship between Ms Findlay’s former employment and her present medical condition. I have taken all of the evidence into account in determining this matter. This included the written evidence lodged with the Tribunal prior to the hearing, the oral submissions made at the hearing and the post-hearing documents submitted to the Tribunal on 18 April 2011.
21. Section 19(1) and (2) of the SRC Act provides that Comcare is liable to pay compensation to an employee in respect of an injury which results in an incapacity for work. The term “injury” is defined in s 5A. An incapacity for work is described in s 4(9).
22. An assessment of the evidence shows that Dr Robert Cooke thought that Ms Findlay’s conditions were linked to her employment in his report in 2001. However, his report is the only medical report to find such a connection.
23. Her persistence in making claims, however, calls for careful analysis of the evidence. There must be shown to be evidence which supports a link to employment on the balance of probabilities. However, apart from Dr Cooke’s report in 2001, there has been a litany of other medical reports, virtually all of which seem to point to some evidence of a degenerative condition in the cervical spine. All of those other doctors found there is no contribution, or no material contribution, to these conditions by Ms Findlay’s former employment. Therefore, virtually all of those other expert reports indicate there is almost no support for the applicant’s claim. However, some of the medical specialists alluded to a co-morbidity of the pain she experiences with psychological or psychiatric conditions.
24. In considering the evidence as a whole, it may be that the cervical spondylosis could be said to point to a case in law of novus actus interveniens, a new condition that has arisen since the injury claimed which is the cause of the incapacity. Apart from Dr Cooke, the medical evidence attributes the applicant’s conditions to a “constitutional” change: that is, that the pain is attributable to the ageing process and is quite independent of other factors, including Ms Findlay’s former employment.
25. In any event, if Ms Findlay’s claim is to succeed, there must be evidence to show there was an injury at work which is linked to her present symptoms. The weight of evidence in establishing a connection with the applicant’s former employment is so slight that it could not reasonably be found to support her case. The Court of Appeal in England reversed a finding of the County Court that a link between the death of a person to his employment was “insufficient” and was to be regarded only as conjecture (Hawkins v Powells Tillery Steam Coal Co Ltd [1911] 1 KB 988 (CA)). And so it is in Ms Findlay’s case that there is “insufficient” evidence to connect her incapacity to work with her former employment. At the standard of proof required, which is on the balance of probabilities, the applicant cannot succeed. Ms Findlay submitted some recent evidence of a physiotherapist, but this evidence does not assist in determining causation in this matter. Indeed, there appears to be no new medical evidence since the Tribunal last considered the matter.
26. The decision is therefore affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KS Levy RFD
Signed: ....................[Sgd].........................................................
AssociateDate/s of Hearing 14 April 2011
Date of final submissions 21 April 2011
Date of Decision 20 June 2011
Applicant was represented by her daughter, Ms Melissa Findlay
Counsel for the Respondent Mr Charles Clarke
Solicitor for the Respondent Ms Suzy Dole, Sparke Helmore Lawyers
0
0
0