Harwood and Comcare - [2010] AATA 934

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 934
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1594

GENERAL ADMINISTRATIVE DIVISION )

Re VICKI HARWOOD

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date23 November 2010
PlaceBrisbane (heard in Townsville)

Decision The decision under review is affirmed.

..............Signed...............
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – degenerative condition of lumbar spine at L5/S1 level – current medical evidence universally to the contrary of there being any connection between present symptoms and any occurrence in employment – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
REASONS FOR DECISION

23 November 2010 Deputy President P E Hack SC

Introduction

In September 1992 the respondent, Comcare, accepted liability, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay to the applicant, Ms Vicki Harwood, compensation for an injury described as “an episode of back pain”. The pain was said to have been the result of a fall in May 1990 during the course of Ms Harwood’s employment as a catering attendant with the Department of Defence. There was a subsequent amendment of the description of the accepted injury to “aggravation of underlying L5/S1 disc resorption”.
In August 2009 Ms Harwood made a claim for compensation by way of incapacity payments and reimbursement of medical expenses said to arise from the accepted condition. Comcare determined that Ms Harwood had no present entitlement to compensation as the effects of the compensable injury had ceased.
Ms Harwood seeks a review of that decision.
Background
In May 1990 Ms Harwood was employed as a catering attendant by the Department of Defence. On 9 May 1990 she slipped on a wet floor and injured her back. She says that she was told by the medical practitioner that she attended that she had bruised her coccyx. No x-rays were taken at the time. Ms Harwood continued to experience intermittent pain thereafter until June 1992 when she first made a claim for compensation. In July 1991, in connection with her appointment as a permanent employee, Ms Harwood reported that the back caused an “occasional twinge” only.
On 21 September 1992 Comcare informed Ms Harwood that “liability has been found for an episode of back pain as a result of a fall on 9 May 1990”. Subsequently, the description of the injury was changed to “aggravation of underlying L5/S1 disc resorption”, no doubt on the basis of a report obtained from Dr Warren Todd, an orthopaedic surgeon.
Ms Harwood was seen by Dr Michael Coroneos in May 1997. He reported that:
“Ms Harwood has an underlying chronic lumbar degenerative condition with evidence of advanced chronic L5/S1 level degeneration or spondylosis.
…
I believe that the incident described on 9 May 1990 may have resulted in some soft tissue local symptoms which would have resolved over a couple of days to a couple of weeks at most. No material or significant contribution would have occurred to the degenerative condition of the lumbar spine which as indicated above was well advanced on radiographic examinations performed the following year. The clinical history, occupational history, medical history and documentary evidence does not support that any significant injury occurred as a result of this fall.”
Ms Harwood received intensive treatment from a physiotherapist in May 1997 and in June 1997 reported great improvement in her back condition that enabled her to cope with her work without significant problems.
On 28 October 1997 Comcare determined to “cease liability” on the claim from 31 October 1997. Ms Harwood did not, as she might have, seek re-consideration of this decision although she did request an extension of time within which to seek a re-consideration.
There the matter lay until August 2009 when Ms Harwood made a claim for compensation for incapacity and for the payment of medical expenses. The claim form for medical expenses described the injury as “acute back pain” with a date of injury of 13 August 2009. On 7 September 2009 Comcare determined that Ms Harwood was not entitled to compensation for the medical treatment obtained. Ms Harwood sought re-consideration of this determination. The claim for compensation for incapacity appears not to have been dealt with.
Ms Harwood sought a re-consideration of this decision. It was affirmed by letter dated 25 February 2010. The decision was confined, correctly as it seems to me, to the decision to refuse compensation for medical expenses. The delegate “remitted” the claim for compensation for incapacity back to the primary decision-maker. The application for review was lodged in the Tribunal on 21 April 2010.
The evidence
The first specialist opinion is that of Dr Todd who reported in October 1992 that x-rays had shown “an L5S1 isolated disc resorption”. Dr Todd thought it possible, but not probable, that Ms Harwood’s condition pre-dated the fall on May 1990. But, as his subsequent report made clear, Dr Todd’s opinion was informed by a history of a single fall with intermittent but worsening pain since then.
In addition to the report of Dr Coroneos I have two more recent reports, one of Dr Brett Halliday, consultant orthopaedic surgeon, dated 1 July 2010, and the other of Dr Leigh Atkinson, consultant neurosurgeon, dated 5 July 2010 and the evidence of those two practitioners. Neither provides any support for the proposition, advanced by Ms Harwood, that her present complaints of back pain are related to the fall of May 1990 or, for that matter, other falls in the course of her employment.
Dr Halliday said that Ms Harwood suffered from “significant lumbar disc degenerative disease”. He said:
“… There is no doubt that Ms Harwood has significant discomfort and limitation of physical activities. Relating this lower back condition to a work event from 1990 is however extremely difficult. It is noted that, around the time of the said incident, Ms Harwood already had significant degenerative disease at the L5/S1 level on plain films. The plain films were performed approximately 12 to 18 months after her injury and from the reports, having not been able to review the films, I would agree with Dr Todd and Dr Coroneos’ assessment in that the degenerative disease had been present prior to the fall. It is also of interest to note that Ms Harwood freely admits that, while she took several weeks to get over the initial fall, she had completely recovered by the time she obtained full-time employment in the kitchen with the Department of Defence in 1991. She then had further falls, all of which temporarily aggravated her underlying condition. For many years Ms Harwood has suffered with significant lower back pain. Fortunately she was able to be retrained into administration work, and has continued to work full-time since that episode. I note from Dr Coroneos’ report that Ms Harwood had already, by 1997, suffered with significant complaints of lower back pain and limitation of activities. Ms Harwood continues to suffer with these limitations. They are gradually worsening over time. This is the natural history of underlying degenerative lumbar spondylosis.
…
Ms Harwood has degenerative lumbar spondylosis predominantly at the L5/S1 level, but throughout the lumbar spine. This is a condition which is constitutional and would appear, on the balance of probabilities, to have already been in existence and well advanced by the time Ms Harwood had a fall in 1990. There is no doubt that repeated falls have temporarily aggravated Ms Harwood’s condition from time to time. Certain physical activities temporarily aggravate her symptoms as well.”
Dr Atkinson’s opinion was similar. He said:
“I conclude that Ms Harwood has age-related degenerative changes of the lumbar spine focussed on the L5/S1 level. She has some associated restriction of movements of the lumbar spine. She has some non-dermatomal symptoms in the right lower limb and thigh. There are no neurological or soft tissue changes otherwise. I consider that she suffered an aggravation of the pre-existing degenerative disease of the lumbar spine at L5/S1 in the fall on 9 May 1990. From the history available, I conclude the aggravation settled.
Ms Harwood had subsequent flare-ups of her back pain condition as a result of aging and associated obesity. I consider her subsequent episodes of back pain have been related to aggravations of the degenerative condition in the lumbar spine.
From the information available to me, I consider it is unlikely that any diagnosed condition arose out of the course of Ms Harwood’s employment with the Defence Department. I consider she suffered a temporary aggravation of the degenerative changes in the lumbar spine in the incident on 9 May 1990, which subsequently settled.”
Both doctors, in answer to a question posed by Ms Harwood, said that her back would have been as bad as it presently is even without the falls of which she complains.
Ms Harwood has provided a statement in which she seeks to link her present condition to the fall in May 1990 and to subsequent falls in December 1991, March 1992 and June 1992. It is open to doubt whether Ms Harwood suffered from the subsequent falls having regard to the histories provided to medical practitioners and to Ms Harwood’s statement of 26 June 1992. I need not resolve the apparent inconsistency in the accounts provided by Ms Harwood. I note, however, that Dr Halliday’s opinion is predicated upon the history of multiple falls now given by Ms Harwood.
I do not doubt that Ms Harwood believes that there is a connection between her employment and her present back condition however the medical evidence provides no support for that view. The only medical evidence that provides any support for such a connection is that of Dr Todd however there are at least three reasons to prefer the opinions of Drs Halliday and Atkinson. First, Dr Todd’s opinion is informed by a history that is contrary to that given by Ms Harwood. In particular, Dr Todd appears not to have been told that Ms Harwood’s back, in July 1991, was causing an “occasional twinge” only. On the contrary, Dr Todd was informed of a history of “intermittent, but worsening low back pain since” the original fall. Next, Dr Todd did not have the considerable advantage of seeing CT scans and MRI scans. His opinion was limited to plain x-rays. Finally, Dr Todd has not seen Ms Harwood recently.
The current medical evidence is universally to the contrary of there being any connection between the present symptoms and any occurrence in employment. It seems plain that Ms Harwood’s current condition is attributable to the effects of degenerative change and that any aggravation from a fall or falls in 1990 or thereafter has long ceased.
I would then affirm the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .........Signed.............................................................
  Associate
Date of Hearing  15 November 2010
Date of Decision  23 November 2010
Applicant  Unrepresented
Counsel for the Respondent     Ms N Kidson
Solicitors for the Respondent    Australian Government Solicitor