Gordon and Comcare
[2006] AATA 641
•21 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 641
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1289
GENERAL ADMINISTRATIVE DIVISION ) Re DOMINIC GORDON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr R McRae, MemberDate21 July 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
COMPENSATION – applicant suffered pre-existing degenerative spinal disease – history of increasing low back pain and left leg pain – factual dispute – whether any sudden physiological change – whether disc prolapse or bulge causing left sciatica an injury simpliciter or a continued manifestation of a gradual disease process – decision affirmed
Re Liu and Comcare [2004] AATA 617
Rosillo v Telstra Corporation Ltd [2003] FCA 1628
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Kavanagh v Commonwealth (1960) 103 CLR 457
Darling Island Stevedoring and Lightridge Co Ltd v Hussey (1959) 102 CLR 482 at 508
Health Insurance Commission v Van Reesch (1996) 1118 FCA 1
REASONS FOR DECISION
21 July 2006 Mr John Handley, Senior Member
Dr R McRae, Member1. Mr Gordon is an employee of the Department of Defence. He has alleged that he suffered lower back injury in the course of his employment in August 2003. Comcare (“the Respondent”) denied the claim on 7 May 2004 and affirmed that decision on 17 September 2004. These proceedings are a review of that decision.
2. Counsel for the Applicant, Mr Carey, submitted that the respondent had only considered whether employment had made a material contribution to a pre-existing disease process involving a lumbar disc prolapse and left sided sciatica. It was submitted that the respondent should have also considered whether Mr Gordon suffered an injury simpliciter, that is, a sudden physiological change in his lower back giving rise to prolapse and left sided sciatica.
3. Mr Gordon had been the subject of a previous compensation application upon Comcare. He suffered a low back injury in 1996 including symptoms of right sided sciatica. He was incapacitated for six weeks and resumed employment. Thereafter he continued with physiotherapy and chiropractic treatment. The respondent then accepted liability for the ongoing costs of treatment. On 11 September 2001, Mr Michael Shannon examined the Applicant at the request of the respondent. It was his opinion that Mr Gordon had suffered a temporary aggravation of a pre-existing degeneration in his lower spine but at the date of consultation the employment was no longer materially contributing to it. Comcare decided on the basis of that opinion to cease liability in a decision made on 16 January 2002. Mr Gordon did not challenge that decision. That decision would be unenforceable having regard to the decisions of the Tribunal constituted by the President in Re Liu and Comcare [2004] AATA 617 and a decision of Madgwick J in Rosillo v Telstra Corporation Ltd [2003] FCA 1628.
4. In the present proceedings, Mr Gordon relied on his statement dated 20 January 2006 and a further statement, which contained slight alterations dated 31 January 2006.
5. The statements record that after the 1996 episode, Mr Gordon returned to work and predominantly undertook clerical duties but was also responsible for setting up rooms within the employer’s premises on the occasions of staff training. That activity required him to manoeuvre tables, chairs and electronic equipment, carry boxes of materials and other equipment. On occasions, boxes of materials were carried from the ground floor of the premises where he worked to the 6th floor where the training room was located. On some occasions he was required to climb a ladder to check a projector which was mounted on the ceiling. The statements record the dates of training sessions in July and August 2003 and specifically records a training session entitled “Stress Management” on 28 August 2003. The statement records that on 27 August 2003, Mr Gordon set up the training room at about 4.00pm over a period of approximately 30 minutes where he was required to carry boxes of course materials, a laptop computer and an overhead projector. The statement also records that he was required to set up tables and chairs from a “horseshoe configuration” into a “café style configuration”. The statement records that he undertook these activities by himself without assistance.
6. Paragraph 6 of the statements record:
During the week of 25/31 August 2003 I developed left leg sciatic symptoms. I believe that these symptoms began on 28 August. I didn’t have any pain at all before I came to work on the day the symptoms occurred. I cannot recall any incident that day that may have caused the pain but the leg pain did come on during the day.
7. Paragraph 7 of the amended statement records that after he returned to his desk at 9.15am on the morning of 28 August 2003, “the pain began sometime during the morning”. Mr Gordon recorded that the symptoms in his left leg were different to the symptoms that he had in 1996 in his right leg, he did not report the symptoms and other colleagues were aware of his discomfort. He recorded (paragraph 8) that he suffered a prolapse at either L4/5 or L5/S1 which was the cause of his left leg symptoms which he associated with sitting at work “on the particular day that the symptoms in the left leg first came on”.
8. Thereafter the statement records that he continued to work for the remainder of August and until 14 September 2003 when he commenced annual leave for a period of approximately two weeks. During that time he travelled to the Gold Coast with his wife and young children where pain was relieved partially by warmer weather and by swimming and exercise in a heated pool. On his return to work on 30 September 2003, there was “a dramatic worsening of the symptoms” that he experienced in his left leg and from 2 October 2003 he was unable to continue at work. Thereafter treatment was administered mainly by Mr Graeme Brazenor, a neurosurgeon. A graduated return to work programme commenced in May 2004 and full time duties have been undertaken since February 2005.
9. In evidence, Mr Gordon conceded that on the occasions that he set up training rooms the time required would vary between five and 30 minutes and would be dependent upon the nature of the training and the configuration of the room. He said that on each occasion, irrespective of how long it would take him to set up a training room, he would climb a ladder to check the function of the ceiling mounted projector. Mr Gordon said that the dates recorded in his statement were obtained by him from a training calendar that he located in the workplace. Additionally he said that the symptoms recorded, and the occurrence of them, was recorded in his statement by reference to the training calendar and by his memory. He conceded that on 27 August 2003 he may only have spent five minutes setting up the training room, he could not be sure if he carried any course materials nor could he be sure that he carried a ladder or climbed it. He acknowledged that his description by his statement of the activity involved in setting up a training room was “general”.
10. Mr Gordon said that on 28 August 2003, the pain in his lower back and left leg “built up from 9.15 until 12 noon when I realised there was a problem”. He said he did not see a doctor initially because he thought it could be relieved by painkillers. Thereafter, until the occasion that he commenced his leave in mid September, he did not undertake the setting up of any training rooms and performed clerical work at his desk only. He said that he consumed painkillers and anti-inflammatory medication. On return to work on 30 September 2003, he was principally engaged in the use of a computer where he associated increased lower back pain and neck symptoms with periods of being seated at his desk looking at a computer screen.
11. In cross-examination, Mr Gordon acknowledged that a comment within his statement (paragraph 2) namely, “between 1996 and 2003 I had no trouble with my back” to be incorrect. He acknowledged that he did have time away from work during that period by reason of low back pain which required him to have regular chiropractic treatment and consume medication. Additionally, Mr Gordon said that he had regular chiropractic treatment for his neck which he described as “maintenance”. He thought that his neck pain had a relationship to his low back pain and he also thought that his neck pain was associated with his employment by reason of being seated in a stationary position at a desk and working at a computer.
12. Mr Gordon acknowledged a statement of Mr Peter Petersen who conducted the Stress Management training course on 28 August 2003 and who recorded that he did not ever conduct training with tables in a “café style” configuration. He also recorded that another workmate by the name of De Vito set up the training room on 27 August 2003. Mr Gordon acknowledged that it was possible that he did not set up the training room on 27 August 2003 at all, and also acknowledged that he may not have set up some of the other training sessions that he referred to in his statement. Additionally he acknowledged that he may not have carried or climbed a ladder on 27 August 2003.
13. Mr Gordon was asked to clarify the occasion when he suffered low back and left leg symptoms in August 2003, having regard to some confusion that emerged from the history recorded in his statement. In evidence, he said that he first suffered left leg symptoms in the week of 25/31 August 2003 but did not then know that it was sciatic in nature. He said that he thought then that the pain in his left leg was “strange” because he had previously had right leg pain which was diagnosed as sciatica. He said the left leg pain was not as intense as had been the pain in his right leg. He said he recorded 28 August 2003 as the date when the pain emerged because it “seemed to come on at the end of the week” which by reference to the training calendar coincided then with staff training. He acknowledged that he had “reconstructed” the history recorded in his statement and in his compensation claim forms by reference to records within the workplace.
14. Mr Gordon was then asked to explain entries in leave records produced on the day of hearing. The records (Exhibit 1) show that on 28 August 2003 he was recorded as having taken that day as annual leave. Mr Gordon acknowledged that if the records were correct, he could not have been at work on 28 August 2003 and the onset of symptoms on that day in the workplace could not have occurred. Additionally he acknowledged that he would be unable to associate any left leg symptoms in the workplace on 28 August 2003 by reference to undertaking physical activity on the previous day.
15. Mr Gordon was unable to explain why his general practitioners did not record his back injury as the cause of incapacity in certificates completed shortly after incapacity commencing October 2003. It is noted that the certificates refer to incapacity by reason of either “medical condition” or “personal illness”. It was also noted that Mr Brazenor in his report of 25 February 2005 took a history from Mr Gordon of left sided sciatica first being apparent “when he came back from Queensland” (refer Exhibit C). Mr Gordon said that if that history had been obtained it would have been a history that he had given to Mr Brazenor.
16. In re-examination, Mr Gordon said that he would not be prepared to accept that he was away from work on 28 August 2003 as the leave records suggested. He said he would need to check his records. Additionally, he maintained that he did experience low back and left leg pain whilst working at his desk in the week commencing 25 August 2003. He said that he “jogged” his memory of dates by reference to the training calendar but not his memory of the symptoms.
graeme brazenor
17. Mr Brazenor is a neurosurgeon who has been in practice for 25 years. He completed two reports of 25 February 2005 (Exhibit C) and 31 January 2006 (Exhibit D). A copy of his clinical notes were also received into evidence and marked as Exhibit E.
18. Mr Brazenor confirmed that his associate Dr Dagley first saw Mr Gordon on 17 October 2003. She had a history of “seven weeks ago – gradually increasing LBP”.
19. Mr Brazenor first saw Mr Gordon on 25 November 2003. He recorded that the injury in 2003 was different to the injury of 1996 (by reference to radiological investigations). He noted that the 1996 episode involved the L4/L5 level and right sided sciatica, whereas the 2003 presentation concerned the L5/S1 disc and left sided sciatica. His treatment was conservative and he noted that Mr Gordon eventually returned to work.
20. Mr Brazenor said that a prolapse, or bulge, occurs by two phases. Initially the outer coating (the annulus) of a disc is stretched which may not necessarily be painful. The second phase, if it occurs, involves the soft interior (the nucleus) of a disc working its way out through a tear in the annulus, this being a bulge or prolapse which in turn makes contact with the peripheral nerve precipitating pain and, in this case, left leg sciatic pain.
21. It was Mr Brazenor’s opinion that both of these phases occurred at the same time. He regarded these phases as being “a radical change in his condition”. He agreed that a prolapse or bulge could occur without trauma although in his experience patients usually describe such an event as occurring whilst either bending or reaching out. It was his opinion that the note taken by Dr Dagley of “seven weeks ago – gradually increasing LBP” was the start of the Applicant’s painful episode.
22. Mr Brazenor was asked to consider an alternative history to that obtained by him namely, the Applicant not having been involved in the setting up of training rooms. He was asked to consider whether his duties in the two weeks before commencing annual leave, being seated at a desk without bending, twisting or lifting, would have contributed to the worsening of the condition. It was his opinion that the Applicant, having previously developed sciatica, would have endured a continuing worsening or manifestation of an evolving disc bulge.
23. In cross-examination Mr Brazenor said the Applicant had “accumulated little injuries” to the L5/S1 annulus, that the disc nucleus was emerging through a tear in the annulus and it made contact with the nerve root when he was seated at his desk at work. He thought that had been a gradual process but acknowledged he was uncertain whether back pain occurred before or after the disc material made contact with the spinal nerve. This was because in the history that he obtained the Applicant suffered increasing low back pain before the commencement of left sided sciatica and the history taken from Dr Dagley was of increasing back pain of seven weeks duration prior to the first consultation.
24. It followed that if there had been a seven week history of low back pain, contact between disc material and the left sciatic nerve root would have occurred at an advanced stage of the “previously gradual” process rather than being a change in the process.
25. Additionally, Mr Brazenor noted that the history that he obtained from Mr Gordon was of left sided sciatica first being noticed after he came back from his Queensland holiday. Mr Brazenor said that history would have been volunteered because it is not his practice to ask patients to associate an episode with any particular location, that is to say, he does not ask patients whether pain or symptoms occurred in or about the workplace.
mr michael shannon
26. Mr Shannon is an orthopaedic surgeon who gave evidence when the hearing resumed on 15 May 2006. He examined Mr Gordon in September 2001 and provided a report of 13 September 2001 (T12). He also examined him on 9 May 2005 and provided a report of 11 May 2005.
27. Mr Shannon was of the opinion that Mr Gordon suffered an L4/5 disc prolapse in 1996 which was shown on CT and MRI in 2003 as calcified and described by him as being significant. The same scans showed the presence of bulging also at L5/S1 with the latter causing an impinging on the S1 nerve root. Mr Shannon noted that the protrusion at L5/S1 was causing left sided symptoms whereas the previous prolapse was causing symptoms on the right side.
28. An examination of the films did not demonstrate to Mr Shannon any tear or rupture of the L5/S1 disc which he said would have been shown (on the films) as a “bright spot” whereas the bulging manifests as a “dark spot” (transcript, pages 82 and 84). In his opinion the bulging at L5/S1 was the manifestation of an underlying degenerative spinal process. The left sided symptoms, in his opinion, are explained by the bulge causing pressure on the nerve root. He said it was impossible to determine whether that prolapse was of recent onset.
29. In cross-examination, Mr Shannon said that degenerative changes can either be “dramatic” or “subtle”. Whilst acknowledging that a “dramatic” change in an existing prolapse might result in a tear or a rupture of the disc, no such phenomena was present and in his experience a large proportion of the population suffers from a bulging or protruding disc without symptoms. It was his opinion that the Applicant’s complaint of low back pain, with left sided symptoms towards the end of August 2003, was an indication of the continuation of a degenerative process. He denied that there was a sudden change in his condition when the left leg pain commenced, rather it was his opinion that there was a sudden change in his “symptoms”. Mr Shannon also added that this scenario was consistent with the history that he obtained from Mr Gordon of there being “no incident or injury in the course of his employment” (refer report 11 May 2005, page 2 and Transcript at page 86).
submissions
30. Mr Carey submitted that the Applicant in 2003 suffered an injury simpliciter. It was submitted that a temporal relationship to employment would suffice to permit the Applicant to succeed.
31. Reliance was put on the High Court decisions of Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (“Zickar”) and Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (“Petkoska”). The former case referred to the phenomena of a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. Petkoska referred to “a sudden physiological change” which the High Court found constituted a “physical injury” within the meaning of the ACT compensation legislation.
32. In the present case it was submitted that the Applicant suffered from a degenerative process which was not symptomatic before August 2003 which became symptomatic and which subsequently caused incapacity. It was submitted that the MRI and CT scans demonstrated the presence of distinct physiological change, being the L5/S1 prolapse. That injury, it was submitted, was different to the injury of 1996 and if the Applicant’s evidence and history is accepted, it should be found as a fact that he has suffered a dramatic physiological change and an injury simpliciter should as a fact be found.
33. Mr Ferwerda on behalf of the Respondent, submitted that the Applicant could only succeed if as a fact he could establish that his L5/S1 sciatic symptoms occurred or commenced at work and the symptoms were in the nature of a sudden physiological change (refer Petkoska). It was submitted that the evidence demonstrated that the Applicant would be unable to succeed under either of the above authorities. It was submitted that the evidence should be found as not pointing to left leg symptoms commencing at work on 28 August 2003 or indeed in the week commencing 25 August 2003. It was submitted that there was evidence of the Applicant attending a chiropractor frequently before the week commencing 23 August 2003. Additionally a letter from Mr Brazenor to Dr Frost of 25 November 2003 referred to history from the Applicant of starting to notice gradually increasing low back pain with left sciatica after he returned from Queensland in late August or early September 2003. Additionally, it was submitted that the report of Mr Brazenor should be interpreted as not containing any references to bulging at L5/S1 causing any sudden physiological change.
34. It was submitted that the Applicant’s evidence and his history was unreliable. Reference was directed towards paragraph 6 of the Statement of Facts and Contentions lodged on behalf of the Applicant prior to the commencement of the hearing which referred to a history of left leg symptoms in late September 2003. Additionally, there was an absence of workmate witnesses in support of the Applicant’s case and an inability to recall the identity of such persons with respect to reports he alleged that he made of left leg symptoms. Additionally the notes of the Applicant’s general practitioner of 6 October 2003 referred to a back injury “about a week ago”. In conclusion it was submitted that the Applicant had said in evidence that he had notified Dr Dagley (assistant to Mr Brazenor) that his symptoms occurred in the workplace, however, she had made no note of those comments.
35. In conclusion it was submitted that there was no basis to find an injury simpliciter and upon the evidence of Mr Shannon a more appropriate finding would be the Applicant suffering from the inevitable consequences of an underlying degenerative process with left sciatic symptoms.
conclusion and reasons for decision
36. In this application there are a number of inconsistencies in the histories given by Mr Gordon to his solicitors, his doctors and Comcare. There was some disagreement between the two doctors that gave evidence in these proceedings as to the diagnosis and the mechanism of injury. Indeed there is dispute as to whether the Applicant has in fact suffered (as a matter of law) an “injury” as opposed to a “disease”. Findings on those issues particularly are required and the following is an attempt to summarise and distil the evidence.
37. The case for Mr Gordon was put by him initially by there being a relationship between being engaged in heavy physical work in the week commencing 25 August 2003. It was his case that in that week he was engaged in setting up training rooms in the workplace involving the manoeuvring of furniture and carrying of equipment and course materials. It was his case that on 28 August 2003 he suffered severe low back pain and left leg pain whilst seated at his desk in the workplace.
38. During the hearing it became obvious that the Applicant did not set up the training room as alleged and was not at work on 28 August 2003. That was later conceded. Accordingly, the remainder of the hearing concerned the applicant pursuing his claim for compensation upon the basis of injury simpliciter (refer paragraph 2 earlier). Statements from other persons in the workplace were not provided until the day prior to the hearing, but indicated that it was unlikely that the Applicant had been engaged in the type of duties that he had previously described when setting up the training rooms.
39. In fairness to the Applicant, it was his case that he reconstructed the events of the week commencing 25 August 2003 by reference to diaries kept in the workplace and by making valued assumptions based on his previous work duties and responsibilities. The leave records for that week did not emerge until the hearing which demonstrated that on 28 August 2003 he was not at work.
40. The case thereafter proceeded upon the basis that on an occasion in a period of two weeks before the commencement of annual leave in September 2003, the Applicant had been seated at his desk in the workplace when he suffered the onset of severe low back pain and severe left leg pain.
41. We are now doubtful, for reasons which follow, whether the altered basis upon which the Applicant’s case was put as a fact can be sustained.
42. In his claim form completed on 5 January 2004, the Applicant recorded that he suffered “lower back and left leg along sciatic nerve” injury in “approx week of 25 August 2003”. Whilst the circumstances of setting up of training rooms is recorded, the Applicant did recite “hard to pinpoint actual cause of injury, I was at my desk typing and using mouse when I felt the pain dramatically increase”. In his amended statement dated 31 January 2006, Mr Gordon recorded that after he returned to his desk at 9.15am on the morning of 28 August 2003, “the pain began sometime during the morning”. He recorded that he consumed some painkillers and was aware that pain was then radiating into his left leg, different in nature to pain which had been radiating into his right leg in 1996. He recorded that he did not then report the left leg and low back pain to his supervisor or manager but it was obvious to others that he was in discomfort because he had been “asked several times “what’s wrong””.
43. Thereafter the statement records that Mr Gordon continued to work until about 14 September 2003 (when he commenced annual leave) during which time he performed his normal clerical work and set up training rooms. He travelled to Queensland with his family for one week during the September school holidays, suffered back pain which was relieved by warmer weather and swimming in a heated pool but upon return to work on 30 September 2003, he suffered a “dramatic worsening of the symptoms” within two days of resumption and was unable to continue at work. The persons who asked Mr Gordon “what’s wrong” were not called to give evidence in these proceedings nor were statements lodged by them.
44. Ms Corcaran, the Applicant’s supervisor, recorded in her statement of 9 February 2006 that Mr Gordon was not at work on 28 August 2003, was absent from the workplace on 1 and 4 September 2003 because of study leave and carer’s leave and no recollection was held by her of any complaint of back pain or leg pain at or around that time.
45. Attention was drawn during cross-examination of Mr Gordon to medical certificates completed by his doctors in October 2003. More particularly to the absence of certified incapacity because of back or leg pain. A certificate by a doctor at the Medical One Clinic in Taylors Lakes on 6 October 2003 (T17) records incapacity between 2 and 8 October 2003 “due to a medical condition”. A certificate from the same clinic of 10 October 2003 recorded incapacity between 9 and 10 October 2003 “due to personal illness”. The first certificate recording back pain as the cause of incapacity was dated 13 October 2003 (T19) but it does not refer to sciatica. The first reference to that condition occurred in a certificate of 27 October 2003 where the stated cause of incapacity was “sciatica severe lumbar pack pain”. In fairness the doctor’s notes from that clinic record on 10 October 2003 a consultation for the stated cause of “L sciatica pain getting better”. However, on 6 October 2003 the history recorded was “injured back at some stage a week or so ago”. Dr Frost of the Medical One Taylors Lakes Clinic wrote to Mr Brazenor on 16 October 2003. He refers to left leg sciatica but records “he noticed over a few weeks his back progressively has worsened with increasing pain lower leg with numbness of shin”.
46. The claim form completed by the employer (T25) records that the Applicant’s “injury/illness” was notified on 2 October 2003 “when Dominic called in on “personal leave””. That entry has attracted our curiosity because the employer’s representative (T25, page 70) recorded that Mr Gordon was absent on recreation leave between 10 and 29 September 2003, worked on 30 September and 1 October 2003 but was “then on personal leave to date”. That is, after 1 October 2003, he was on personal leave. Earlier in the employer’s report, the notification of injury whilst on “personal leave”, was received on 2 October 2003. The medical certificate at T17 (refer earlier) dated 6 October 2003 certifies incapacity “due to a medical condition” between 2 and 8 October 2003. We cannot reconcile incapacity, by work caused injury, between 2 and 8 October 2003 when the medical certificate does not refer to back injury and the contemporaneous employer records show the Applicant as being absent on “personal leave”.
47. Comcare eventually arranged for Mr Gordon to be examined by Dr Gras at Health Services Australia. He consulted on 2 December 2003 and obtained a history of:
In October 2003 there was a change in his symptoms. Over a period of some weeks he noticed some low level increase discomfort and these increased after returning to work after a holiday in Queensland. After returning to work he developed a sudden increase in pain. . . . since that time he has continued to have pain over the last six weeks but the level of pain has fluctuated considerably.
48. Mr Gordon was also seen by Dr Elder at the request of the employer. He provided a report on 17 June 2004 (T32). The history taken by him was of back injury in 1996 with some ongoing back pain which was “self managed . . . until October 2003. At that time he returned from annual leave . . . he developed low back pain and left leg pain. This again worsened over two days”.
49. Lapeyre Consulting Service was engaged by the employer to undertake ergonomic assistance to Mr Gordon in the workplace. In a report completed following assessment in February 2004 (T26), the author records:
He described reaggravating his lower back in approximately August 2003 after returning to work from annual leave. He stated that he experienced an increase in pain and a change in the location of his pain to the left side of his lower back.
50. On 7 July 2004, the Applicant’s solicitors wrote to Comcare seeking reconsideration of the primary determination made in May 2004. No doubt upon the instructions of Mr Gordon, the solicitors alleged:
After holidaying in Queensland the claimant returned to work on 2 October 2003. He worked for two days. During the two days at work he performed physical work in the form of fitting out a training room. The claimant instructs that it was not until he was seated performing his work duties that he felt pain in his back. The pain became progressively worse during the next few days. The claimant first sought medical treatment from a chiropractor four days after experiencing the pain in his lower back.
51. Dr Dagley who was an assistant to Mr Brazenor consulted with Mr Gordon on 17 October 2003 and then took a history of “7 weeks ago – gradually increasing LBP”. Mr Brazenor said this would refer to early September (transcript, page 69). Dr Dagley did not refer to sciatica but later recorded “off work 3/52 L sciatica”, (which would indicate late September).
52. In a report of 25 November 2003 to Dr Frost at Medical One Taylors Lakes, Mr Brazenor reported a history of gradual increase in low back pain in late August/early September 2003 “and when he came back from Queensland he started to notice left sided sciatica”. Similar comments were made by Mr Brazenor in a report to the Applicant’s solicitors on 25 February 2005.
53. On balance therefore it would appear that the only history of back and left sciatica in August 2003 was from Mr Gordon. Mr Brazenor refers to back pain in August 2003 as does Dr Dagley (by inference) by reason of her comment on 17 October 2003 of low back pain for seven weeks.
54. As opposed to those histories there is evidence of left sciatica occurring at a later time when regard is had to the reports of Dr Elder, Dr Gras, Mr Brazenor, the doctors at the Medical One Clinic in Taylors Lakes and the Applicant’s solicitor’s letter when seeking reconsideration of the primary decision. The comments within the report of Lapeyre refer to low back pain in August 2003 after returning to work from annual leave. It is therefore unclear whether low back pain did occur in August 2003 or after return to work from annual leave which would have been at the end of September 2003.
55. It therefore follows that the only evidence of increased low back pain occurring at or about the same time as the left leg pain in August 2003, was from the Applicant. The remainder of the evidence, and almost all of it is in close proximity to August or September 2003, was of either low back pain with left leg pain later, or low back pain with left leg pain occurring only after return from holiday in Queensland or no reference to left leg pain at all.
56. On the balance of probabilities, having regard to the weight of the evidence, we are satisfied that the left leg pain and low back pain did not occur at or about the same time. Additionally, we are not satisfied that there was any left leg pain before the Applicant returned to Melbourne from his Queensland holiday. We acknowledge that most of the Applicant’s case is based upon a reconstruction from work diaries and we do not want this decision to be interpreted as any criticism of him. However, it is our view that the histories given, particularly to the doctors, and more recently to his solicitors, is consistent with the true events namely, low back pain in August 2003 with the onset of left leg sciatica after the Applicant returned to Melbourne from his Queensland holiday at the end of September 2003.
57. Whether the low back pain and the left leg sciatica had a connection with the employment will be the subject of discussion below.
injury simpliciter?
58. Mr Carey conceded in his closing submissions that the Applicant’s case commenced upon the basis that the pre-existing spinal disease was aggravated by the workplace activity of setting up training rooms. He conceded that the evidence in this case did not support that proposition and the Applicant’s claim then was of injury simpliciter only, namely, Mr Gordon having suffered an injury by a temporal relationship with the employment. The submissions extended to distinguishing between a “disease” and an “injury” and support for the Applicant’s case was upon the decisions of Zickar, Petkoska and Health Insurance Commission v Van Reesch (1996) 1118 FCA 1. The combined effect of those decisions requires an examination of whether there has been any “sudden or identifiable physiological change which could properly be described as a personal injury not being a disease” (refer Kirby J in Zickar and his reliance on Darling Island Stevedoring and Lightridge Co Ltd v Hussey (1959) 102 CLR 482 at 508). Additionally, the “injury” need not only be “external” but can be “internal”. It is enough that the “injury” took place in the course of the employment. It is not necessary to show that it arose “out of” such employment (refer Kirby J in Zickar and refer also Kavanagh v Commonwealth (1960) 103 CLR 457).
59. In Van Reesch the Applicant suffered a pre-existing degenerative spinal disease and later suffered a prolapsed disc. Northrop J decided that there had been evidence before the Tribunal to support a finding that the worker had suffered a disc prolapse, that it was not an inevitable consequence of the spinal disease and a rupture of the disc which was described by His Honour as a prolapse, constituted “injury”. Specifically, His Honour decided “if there was no rupture there would be no event answering the description of personal injury”. Wilcox J, in his review of the evidence, noted that the Respondent worker had described “a change in the nature of the pain . . . and its extension to her leg . . .” Wilcox J, as did Northrop J, found in favour of the Respondent worker but relied also on the High Court decision of Zickar which had been decided after the Tribunal heard Van Reesch and before the Federal Court delivered its decision.
60. Zickar involved an application brought by a worker who suffered from cerebral artery disease and ultimately suffered from a ruptured cerebral aneurism. The High Court found, and Wilcox J followed, that had Mr Zickar not suffered a rupture there would not have been “any personal injury”. But a rupture did occur at work, in the presence of disease and the rupture in the circumstances constituted a personal injury.
61. In Petkoska, the Respondent worker had previously suffered from rheumatic mitral valve disease. She later suffered from a cerebral vascular accident (a stroke). The connecting mechanism was a blood clot formed in the left atrium of the worker’s heart which passed into the temporo‑parietal region of her brain. The embolisation of the thrombis and its passage into the brain was apparently precipitated by atrial fibrillation.
62. What may be seen from the decisions in Zickar, Petkoska and Van Reesch is injury, as was found in each case, occurring in the workplace and in the course of the employment. The “injury” was sudden and was set against a background of pre-existing disease.
63. Accordingly, in the present application, Mr Gordon needs to establish against a background of pre-existing spinal disease that he suffered from an “injury”, in the course of his employment which was a sudden or identifiable physiological change (from the underlying disease process).
64. In the present case there is no dispute that the Applicant suffered a pre-existing degenerative disease in his lumbar spine. It had been responsible for incapacity associated with an L4/L5 prolapse in 1996 for which compensation had been recovered.
65. As a fact, we are satisfied that Mr Gordon did suffer increasing low back pain. We are also satisfied that he has suffered from left sciatica. It would appear that the left sciatica is a consequence of a disc prolapse at L5/S1. For reasons which follow we are not satisfied that there was any sudden physiological change which would otherwise permit a finding of “injury”.
66. On balance, we are:
(i)not satisfied that low back pain and left sciatica occurred in August 2003, but on the basis of the majority of the evidence we find that;
(ii)left sciatica occurred after the Applicant returned to Melbourne in late September from his Queensland holiday.
67. There is no doubt that a prolapse at L5/S1 has occurred. Its existence is found in the MRI report of 21 October 2003 (T20). Whilst there was some differences in the opinions of Mr Brazenor and Mr Shannon, we are of the view that when there evidence is interpreted, they both ultimately reach the same conclusion.
68. Mr Brazenor said in evidence that it was his opinion that Mr Gordon had suffered injuries to the outer annulus of the L5/S1 disc which gradually accumulated and its nucleus emerged through a tear in the annulus fibres making contact with the S1 nerve root. That description is in the nature of a rupture for which there is no clinical evidence in support. Indeed, Mr Brazenor has not referred to a rupture in any of his reports. In his report to Dr Frost of 2 February 2004, it was the opinion of Mr Brazenor that the L4/L5 disc “is troubling him at present so I think he will be successful in reopening his Comcare claim”. That opinion is clearly an error.
69. However, Mr Brazenor was of the opinion that the rupture that he thought had occurred was a “gradual process” which “crept up on him”. He thought the contact between the disc and the S1 nerve occurred at an advanced stage of a distending annulus and was a “further manifestation of the condition”. It was not, in his opinion, a change in the process (refer transcript, page 72 and 73).
70. Mr Shannon said that upon his examination of Mr Gordon and his observation of the clinical records the L5/S1 disc did not tear or rupture but rather he suffered from a bulge. He thought Mr Gordon had suffered from previous degeneration in the disc which produced bulging and pressure on the S1 nerve root. Whilst he acknowledged such a process could be sudden, in the present case he thought it was the end result of a gradual or a continuous process. In his experience a large proportion of the population has disc bulging which is often asymptomatic. It was his opinion that the Applicant appears to have had a change in his symptoms but there was no change in the process of the L5/S1 disc bulging.
conclusion
71. In all of the circumstances we have concluded on the balance of probabilities that there was no sudden or identifiable physiological change in the Applicant’s lower lumbar spine having any connection with any pre-existing disease. We are unable to find in the circumstances that the Applicant has suffered injury.
72. In the circumstances the decision under review is affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Dr R McRae, MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 10 February and 15 May 2006
Date of Decision 21 July 2006
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Mr J Ferwerda
Solicitor for the Respondent Sparke Helmore
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