Gharakhan and Comcare (Compensation) - [2017] AATA 351

Gharakhan and Comcare (Compensation) [2017] AATA 351 (21 March 2017)
Division:GENERAL DIVISION
File Number(s): 2015/6357
Re:Fereshteh Gharakhan
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:21 March 2017
Place:Sydney

The decision under review is set aside, and in substitution, the Tribunal decides that the costs of surgical treatment to the L2/3 level of the applicant’s lumbar spine incurred by the applicant on 5 June 2015 is payable by Comcare under s 16 of the Safety, Rehabilitation and Compensation Act 1988.
....................................[sgd]....................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
COMPENSATION – entitlement to medical treatment expenses – surgery at L2/3 level of spine – whether the treatment was obtained in relation to a compensable injury – compensable injury of sciatica – decision set aside and decision made in substitution
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 16
CASES
Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570; 251 ALR 322
Dillon v Parker (1818) 1 Swans 359; 36 ER 422
In re Peacock, Long v Dow [1930] VLR 9
O’Connor v S P Bray Ltd [1937] HCA 18; 56 CLR 464
Spread v Morgan (1865) 11 HLC 588; 11 ER 1461
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
21 March 2017

The applicant, by Application for Review filed on 8 December 2015, seeks review of a decision made on 11 November 2015 by a delegate of the respondent. Such decision affirmed an earlier decision that Comcare was not liable to meet the cost of a surgical procedure to the applicant’s lumbar spine performed by Dr Ralph Mobbs on 5 June 2015. The applicant’s claim for compensation had been brought under s 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The surgery was performed at the L2/3 level of the applicant’s lumbar spine.
Section 16(1) of the SRC Act states:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Section 5A of the SRC Act provides the definition of injury as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 351
Decision Date: 21 March 2017

CaseChat Overview and Summary

This matter concerned an appeal against a decision by Comcare to deny compensation for surgery performed on the applicant's lumbar spine at the L2/3 level. The applicant sought coverage for this surgery, arguing it was necessary due to a compensable injury sustained in 2004. Comcare contended that the surgery was necessitated by a fall that occurred in 2013, and that this fall and the resulting injuries were not attributable to the applicant's employment or the 2004 injury. The decision under review was an affirmation by a Review Officer of an earlier determination by a Comcare delegate.

The court was required to determine several key issues. Firstly, whether the L2/3 surgery performed in June 2015 was required in relation to a compensable injury for which Comcare was liable, and if so, whether it was reasonable for the applicant to obtain. Secondly, the court had to consider whether the 2004 injury had caused a weakness in the applicant's lumbar spine, leading to the need for the surgery. Finally, the court was asked to determine if Comcare's prior payment for injections to the L2/3 joint constituted an election to accept liability for continuous treatment of that condition.

The court considered extensive medical evidence from several specialists, including Dr. Ralph Mobbs, Associate Professor Neil W McGill, and Dr. Christopher Browne. While Comcare argued that the 2013 fall was the direct cause of the L2/3 surgery and was unrelated to the 2004 injury, the medical evidence presented a more complex picture. Dr. Mobbs indicated that the L2/3 problem was more related to the original back injury than the fall. Associate Professor McGill testified that the 2004 injury could have caused leg weakness, potentially due to deconditioning from chronic pain, which might have predisposed the applicant to falls. Dr. Browne suggested that weakness resulting from the original surgery site and subsequent procedures may have predisposed the applicant to falls, thereby connecting the 2004 injury and subsequent events to the L2/3 procedure. The court noted that the factual matters relied upon by the applicant were not in contest, with the dispute centering on the medical diagnosis and causation.

The court found that the applicant's leg weakness, which may have predisposed her to falls, was a result of the pathological process at the lower spinal levels and the subsequent multiple surgeries. This weakness, in the court's view, was connected to the 2004 injury. Consequently, the court set aside the Comcare delegate's decision and substituted a new decision finding that Comcare was liable to pay compensation for the L2/3 surgery as it was required in relation to the applicant's compensable injury.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The 17 June 2015 determination was reconsidered and affirmed by a Review Officer on 11 November 2015. This is the decision under review.THE EVIDENCE The applicant gave evidence at the hearing of her application. The Tribunal noted that due to apparent pain, the applicant was required to stand for much of the hearing to obtain some pain relief. During her testimony the applicant confirmed much of the history as is set out above. It should be noted that the factual matters relied upon by the applicant are not in contest in these proceedings. Much of the hearing was occupied with medical evidence. Medical evidence was provided by Dr Ralph Mobbs who provided numerous medical reports, Dr Peter Giblin, orthopaedic surgeon, who conducted a medico-legal examination and provided a report dated 26 May 2016, Dr Christopher Browne, rheumatologist, who also conducted a medico-legal examination of the applicant and provided a report dated 12 November 2016 and Associate Professor Neil W McGill, consultant rheumatologist who provided a report dated 16 August 2016 in respect of his medico-legal consultation. The evidence of Associate Professor McGill and Dr Browne was provided by way of concurrent evidence. All other medical experts provided oral testimony separately.THE ISSUES FOR DETERMINATION The issues for determination are:(a)Whether the medical treatment conducted by Dr Mobbs on 5 June 2015 was required in relation to an injury for which Comcare is liable (which could only be the 2004 injury) and if so, whether the medical treatment was reasonable for the applicant to obtain.(b)Whether the 2004 injury caused a weakness to the applicant’s lumbar spine, which has resulted in a need for surgery, hereafter referred to as “the adjacent segment issue”.(c)Whether Comcare, by meeting the costs of injections for the L2/L3 joint, have thereby tacitly accepted liability for continuous treatment (the “election issue”). Although Comcare does not concede the fall, it leaves it to the Tribunal to determine the veracity of such event. Rather, the only issue concerns the medical diagnosis of her condition. It is agreed that the surgery performed by Dr Mobbs on 5 June 2015 (“the medical treatment”) was medical treatment as defined in section 4 of the SRC Act. The respondent contends that if the applicant suffered the fall, that such fall was not attributable to injuries arising out of or in the course of employment, and further that any condition suffered by the applicant as a result of her fall did not arise out of or in the course of her employment. The respondent contends that the L2/3 spinal surgery on 5 June 2015 was attributable to the effects of the fall. Accordingly any requirement for the applicant to undergo such surgery was not attributable to the injury suffered by the applicant on 23 March 2004. Further, the surgery performed on 5 June 2015 was not medical treatment obtained in relation to the injury. Comcare rejects the submission that any weakness resulted from the 2004 injury which extended to the L2/L3 joint, and also rejects the claim that it is, in effect, estopped from asserting that it is liable to meet the surgical costs to the L2/L3 joint just because it paid for injections to that location. Accordingly, Comcare contends that no liability arises to pay compensation under s 16 in respect of that medical treatment.CONSIDERATIONWas the surgery in 2015 related to the 2004 injury?

Decision

Reasons for decision

The applicant experiences lumbosacral pain more marked on the right side and worse when sitting and rising from a chair. She also experiences bilateral leg pain, worse on the right side. She experiences pain in the right posterior thigh and calf in the lateral aspect of the foot with some radiation to the toes in the right foot. The pain is described as of a burning quality with some tingling and numbness. In respect of the left leg she experiences pain chiefly in the calf and foot. She has limited ability to cook and clean, and her husband assists with activities. She is able to do some domestic duties but is unable to iron and her husband does the shopping. Her walking is limited and she usually requires support. Her social activities are restricted and she has to stand, even in restaurants, to relieve pain, and has difficulty sitting in a car.CHALLENGED DECISION In the decision dated 17 June 2015, the Comcare delegate considered the claim for the cost of the lumbar surgery performed on 5 June 2015 which was necessary in consequence of the fall. The delegate referred to the report of Dr Lyon who noted that the applicant required hospitalisation and that radiological investigations “revealed a compression fracture of the superior aspect of the L3 vertebra”. The delegate also noted that the MRI scan dated 23 January 2015 confirmed central disc protrusion at L2/L3 and a large Schmorl’s node at the superior end plate of L3. The delegate noted that these injuries and conditions were consistent with the injury sustained in the fall. The delegate found that compensation was not payable under section 16 of the SRC Act for the L2/L3 surgery, because the surgery was unrelated to the original injury sustained in 2004. The 17 June 2015 determination was reconsidered and affirmed by a Review Officer on 11 November 2015. This is the decision under review.THE EVIDENCE The applicant gave evidence at the hearing of her application. The Tribunal noted that due to apparent pain, the applicant was required to stand for much of the hearing to obtain some pain relief. During her testimony the applicant confirmed much of the history as is set out above. It should be noted that the factual matters relied upon by the applicant are not in contest in these proceedings. Much of the hearing was occupied with medical evidence. Medical evidence was provided by Dr Ralph Mobbs who provided numerous medical reports, Dr Peter Giblin, orthopaedic surgeon, who conducted a medico-legal examination and provided a report dated 26 May 2016, Dr Christopher Browne, rheumatologist, who also conducted a medico-legal examination of the applicant and provided a report dated 12 November 2016 and Associate Professor Neil W McGill, consultant rheumatologist who provided a report dated 16 August 2016 in respect of his medico-legal consultation. The evidence of Associate Professor McGill and Dr Browne was provided by way of concurrent evidence. All other medical experts provided oral testimony separately.THE ISSUES FOR DETERMINATION

Ratio Decidendi

Legal Principle Established

Comcare rejects the submission that any weakness resulted from the 2004 injury which extended to the L2/L3 joint, and also rejects the claim that it is, in effect, estopped from asserting that it is liable to meet the surgical costs to the L2/L3 joint just because it paid for injections to that location. Accordingly, Comcare contends that no liability arises to pay compensation under s 16 in respect of that medical treatment.CONSIDERATIONWas the surgery in 2015 related to the 2004 injury? As can be seen from the list of issues, the critical question is whether the fall was attributable to the applicant’s 2004 injury. This question requires consideration of the medical issues sustained between 2004 and 2013 by the applicant. Dr Mobbs provided both oral and written testimony. In his report dated 29 July 2015 Dr Mobbs stated: “Her L2/3 problem is more related to her original back injury rather than to the fall and back fracture.” In his report dated 27 February 2014, Dr Mobbs advised the Comcare delegate:“The pathology sustained with her recent injury is a superior endplate fracture of L3. It could be argued that as she has had a previous fusion at L4/5 then this may have added some additional stress to the L3 level during her fall and may have increased the likelihood of an endplate fracture, however her pattern of fracture is multi-factorial due to impact, osteoporosis and, to a lesser degree, perhaps her previous L4/5 fusion therefore authoring the biomechanics of her low back.” Associate Professor McGill was asked whether the 2004 injury and subsequent treatment could have caused the development of bilateral leg weakness. He testified that:“I think the - the answer, in terms of “could” is yes. I think the documentation fairly clearly indicates that she didn’t have a focal neurological deficit following the – the problems that she experienced in 2004. You know, for example Dr Mobbs in 2010 provided examination findings of normal sensation, normal reflexes, and I’ll just quote exactly what he said about the weakness, but it was global type weakness rather than – “decreased power throughout” were his words. So a sort of a deconditioning type weakness. So I think someone with chronic pain would do less activity, and by doing less activity would become deconditioned at a faster rate than they might otherwise.” (Transcript p 56.27-.36) Dr Browne testified that:“Look, I think a weakness resulted from the process that was going on at – at the original surgery site, but without sort of a clear cut sort of one-sided radicular pain problem, but she did proceed to have a series of surgeries, one initially in March 2006 which was an L4-5 decompression from which she didn’t gain any significant relief. And then a second procedure which was a fusion at L4-5 and disc concerted December 2006. She felt some initial improvement, was still experiencing bilateral leg pain of – she described of electrical quality, suggesting potential radicular symptoms. And then her left leg pain became worse in March 2007 and she had a – a further procedure in November 2007, revision surgery, decompression again of the L4 and L5 nerve roots. There was some correction of a – of a pedicle screw that was not in the right position. She again felt there was no significant improvement, continued to have low back bilateral leg pain, right leg pain becoming more severe in her view. So there’s – that was the situation leading up to her visit to Iran, the first visit, and she sought further opinions. A couple of very well-known neurosurgeons who both declined to have further surgery – to offer further surgery and then – until she saw Dr Mobbs. And then he then removed some pedicle screws in April 2011. This helped her back pain to a degree. She then went on to visit Iran. She did comment that prior to the trip to Iran in 2013 she was experiencing fairly severe left thigh and back pain, tendency for her legs to give way. She’d had several falls at home, was using a walking stick, and on 18 August 2013 while in Iran she actually – the leg gave way, she fell. As a result of the fall she sustained a fracture of the L3 vertebra which was documented, and then subsequently went on to have the L2-3 surgical fusion with decompression of the nerves at that level and – and a fusion of that segment. But – so I think the – it was – she – she was – I think she was at some reasonable support for the fact that she may have had leg weakness leading up to the L2-3 procedure and the tendency for falls at home prior to the visit to Iran suggests that that leg weakness was potentially significant. I believe that that’s resulted from the – the pathological process going on at the lower levels, the subsequent multiple surgeries which haven’t been very satisfactory left her with some residual weakness which may have predisposed her to the fall in 2013 and the events that followed from there. I think in my – in my view there is a connection, in the sense that she was predisposed, that she had some leg weakness which led to potential falls, and that’s what may have happened on that occasion.” (Transcript p 56.42-57.31)