Harwood and Comcare
[2002] AATA 284
•24 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 284
ADMINISTRATIVE APPEALS TRIBUNAL ) N2000/1062, N2001/1489 and
) N2002/182
GENERAL ADMINISTRATIVE DIVISION )
Re Maria Harwood
Applicant
And Comcare
Respondent
DECISION
Tribunal Ms N Bell
Date24 April 2002
PlaceSydney
Decision The Tribunal affirms the decisions under review.
[SGD] Ms N Bell,
Member
CATCHWORDS
Compensation - injury to back – whether continuing – whether permanent impairment – causation – medical evidence not tendered before Tribunal – whether Tribunal can take into account – procedure of Tribunal for taking into evidence
Safety, Rehabilitation and Compensation Act 1988 – sections 4(1), 14, 16 (1) and 24(1)
Administrative Appeals Tribunal Act 1975 - section 33
Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205
McGale v Glad (1981) 59 FLR 1
REASONS FOR DECISION
Ms N Bell
This is an application by Maria Harwood ("the Applicant") for review of three reviewable decisions of Comcare ("the Respondent") relating to an injury to the low back, knees and neck sustained by the Applicant at work on 27 May 1996. The Respondent, by an initial determination dated 15 August 1996, accepted liability for "sprained lumbar ligaments, lateral ligament left knee and bruised right patella". That determination was followed by the decisions under review by this Tribunal.
At the hearing the Applicant was represented by Ms M Gillies and the Respondent by Mr N Polin, both of Counsel. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") together with exhibits tendered by the parties. The Applicant and Dr Richard Evans gave evidence for the Applicant. Dr David Maxwell gave evidence for the Respondent.
Background
The Applicant, who was born on 5 October 1941, is 60 years of age. She commenced employment with the Commonwealth Bank in 1978 as a customer service officer and is currently employed by the bank as a Personal Banker. On 27 May 1996 the Applicant tripped on a telephone cord and fell. The Applicant claimed compensation on 24 June 1996 in relation to low back injury, injury to both knees and neck. Following an initial determination to accept liability, the Respondent made the following determinations and reviewable decisions which are the subject of the applications before the Tribunal:
AAT Application No. Decision Date of Determination Date of Reviewable Decision
N2000/1062 Refusal to pay further medical benefits for physiotherapy 3 March 2000 29 April 2000
N2001/1489 Refusal to accept liability to pay compensation for permanent impairment 12 July 2001 14 September 2001
N2002/182 Decision to cease liability on and from 25 September 2001 25 September 2001 6 December 2001
The Applicant lodged applications for review of the above decisions by the Tribunal on 12 June 2000, 27 September 2001 and 8 February 2002 respectively.
Legislation
The Applicant contends she is entitled to compensation in respect of medical expenses and to compensation in respect of permanent whole person impairment.
Under section 14 of the Safety, Rehabilitation and Compensation Act 1988 ('the Act"), Comcare is liable to pay compensation "in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment". Section 4(1) of the Act defines "injury" as:
"injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee,
being 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), being an
aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation
suffered by an employee as a result of reasonable disciplinary
action taken against the employee or failure by the employee to
obtain a promotion, transfer or benefit in connection with his or
her employment;"Section 16 of the Act provides for payment of compensation in respect of medical expenses:
"Compensation in respect of medical expenses etc.
16. (1) 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 in the circumstances), compensation of such
amount as Comcare determines is appropriate to that medical
treatment."Section 24 of the Act provides for payment of compensation in respect of permanent impairment:
"Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent
impairment, Comcare is liable to pay compensation to the employee in
respect of the injury."
Applicant's Evidence
The Applicant said that after her fall at work on 27 May 1996 she had pain in her back, neck and knees but did not seek immediate medical treatment and instead saw Dr Arony one week later. Dr Arony certified the Applicant as requiring one week off work and physiotherapy. She initially had two weeks of physiotherapy and thereafter was treated with physiotherapy from time to time.
The Applicant said she now experiences pain in her lower back radiating down to her feet.
She was diagnosed in 1995 as having osteoarthritis in her right hip. She explained, however, that she had had no pain in her left hip prior to her fall in 1996 and that just before her fall she was not experiencing any pain in her right hip. The Applicant said that after her fall at work she experienced severe pain in her hips and down both legs and her movement was more restricted. She said that her last physiotherapy treatment, in respect of her right hip, before the fall, was in 1995.
The Applicant said that she had not injured her back prior to her fall in 1996 and could not remember seeing a doctor in 1994 in relation to back pain, but later agreed in cross examination that she had told Dr Sethi that the pain from a fall in 1992 kept her awake at nights.
The Applicant said she stopped having physiotherapy in April 1997 because she had learned some pain management techniques such as exercising and swimming and while her pain had not stopped, she had learnt to deal with it. She thought doctors could do no more for her.
The Applicant said she commenced having physiotherapy again in 1999 because she had an acute attack of pain whilst on holidays in Queensland. She said her pain was so severe she was unable to walk unassisted and had to use a walking frame. She saw a local medical practitioner and was treated by a local physiotherapist who, she said, helped her a great deal. When she returned from Queensland she saw her treating general practitioner and was referred to Dr Rhidalgh, an orthopaedic surgeon.
The Applicant said that between 1996 and 1999 she just took Panadol for her pain.
The Applicant said that prior to her fall, her hip pain didn't stop her from undertaking any activities inside or outside her home. She said that now, however, she has a fear of falling and avoids some activities such as vacuuming or cleaning the bathroom as these activities aggravate her back and leg pain. She also said she is unable to walk, stand or sit for long, cannot lift shopping bags, her grandchildren or any other heavy weight.
In cross examination, the Applicant agreed that she had told Dr Evans, Dr Maxwell and Dr Rhidalgh that she had had no pain prior to her fall in 1996. She was referred to the clinical notes of her treating general practitioner, Dr Sethi, (Exhibit R4) to the effect that on 23 March 1994 she had attended complaining of lower back pain which she had been experiencing for three months and which extended down both legs. The Applicant maintained she could not recall this attendance but agreed that the pain woke her at night as described in Dr Sethi's notes. A further entry in Dr Sethi's notes, to the effect that she had slipped on her back two years previously, was drawn to the Applicant's attention but she said she had no recollection of any fall in 1992. Nor did the Applicant recall an x-ray of her lumbar spine referred to in Dr Sethi's note of 11 April 1994. The Applicant's attention was also drawn to an entry in Dr Sethi's notes on 11 May 1994 which refers to pain in the Applicant's right knee and right hip at night. She said she was unable to recall this. She agreed that Drs Evans, Maxwell and Rhidalgh, who provided medical reports in relation to these applications, did not have the correct medical history concerning her earlier back problems.
The Applicant agreed she had had pain in her right hip in February 1995 and that she had asked to be referred to Dr Sturgess, Rheumatologist and said that she had wanted to have her hip examined by a specialist.
The Applicant agreed she had had no significant time off work because of her back problems and that from May 1997 to November 1999 she had not sought any medical treatment in relation to her back. She said, in relation to the acute pain she suffered in November 1999, that she had been walking and swimming in the pool while on holidays and began to have pain which became worse over the next three days. She denied any particular incident or activity giving rise to the pain and, in particular denied having done an aqua aerobics class, as had been noted by Ms Warner, the physiotherapist she attended in Queensland in November 1999. She stated that there had been three or four occasions after 1996 when she had been unable to walk but when pressed to describe the pain she experienced, she said she wasn't really unable to walk.
She said that the pain she had in 1999 became better after physiotherapy and her current level of pain is the same now as it was in 1999 before the flare up while she was on holidays.
The Applicant agreed she told Dr Evans she didn't have much trouble with her hips but said they are stiff and she is not as flexible as she used to be. She conceded that her hips make her uncomfortable, that she cannot run, that her hips slow her down and that on some days when she wakes, she can only walk slowly for the first hour. She said that because she is so protective of her back being hurt again she restricts her movements in a way that also benefits her hips. She maintained, however, that her hips are not painful.
Medical Evidence
In his report of 2 November 2000 (T3 of Exhibit TD2), Dr Evans noted at the outset that the Applicant had given him a history of experiencing no back pain prior to the accident in 1996. He also noted that the Applicant had experienced pain in her right hip in 1995 and was referred to Dr Sturgess. Dr Evans' diagnosis was:
"On 27 may 1996 Mrs Harwood slipped and fell. She experienced pain in various areas following the fall, and has had persisting pain in the low back since the time of the accident. It is most likely that, at the time of the fall, she suffered damage to a low lumbar intervertebral disc, most likely at the L5/S1 level; the narrowing of the disc space at that level suggests some collapse of the disc. With this interpretation of the situation, the low back pain and mild/moderate stiffness occurs as a result of damage to the L5/S1 disc, whilst the pain radiating to both legs results from irritation of probably the first sacral nerve roots at the L5/S1 segment of the back. This explanation cannot be given with complete certainty, but nevertheless remains the most likely.
The obvious investigation at this stage would be an MRI scan of the lumbosacral spine. It would most likely show damage/deterioration affecting the L5/S1 disc, and might show abnormalities in the L4/L5 disc…It also seems she suffers from osteoarthritis of each hip. This is a clinical diagnosis, as no x-rays were available. Though the hips are very stiff, they do not trouble her much, and she does not require total hip replacement, at least at the present time…"
In his report of 6 February 2001 (T6 of TD2) Dr Evans commented on the results of an MRI scan of the Applicant's lumbo-sacral spine and said the scan showed multi-level disc degeneration extending from T10 to S1, confirmed the narrowing of the L5/S1 disc space and showed a small annular bulge of the disc abutting the S1 nerve roots and a small left sided annular tear. He said:
"The scan is helpful in confirming the presence of an L5/S1 disc lesion, and this is doubtless the cause of her present symptoms. It does not lead to any alteration in the assessments in my report of 2 November 2000, except that there may well have been some asymptomatic degeneration of the disc prior to the fall of 27 May 1996."
In oral evidence to the Tribunal, Dr Evans said, after being informed of the notation in Dr Sethi's clinical notes of back pain in 1994 and a fall in 1992, that this information does not alter his view of the causation of the Applicant's current condition from the 1996 fall. He also said that, while he considers that the Applicant's back pain is not related to the osteoarthritis in her hips, it would not be fair to say that the condition of her hips does not contribute to her back pain and each may aggravate the other.
In cross examination, Dr Evans agreed that the Applicant had not, despite his questioning, told him about her fall in 1992 and her attendance on her general practitioner for back pain in 1994. Nor did she tell him that the pain she suffered in November 1999 was so severe that she was unable to walk.
He conceded that the degeneration shown by the MRI and the disc narrowing, annular bulge and the tear, could have been there prior to 1996. He said that if that was the case, the accident in 1996 may have triggered symptoms. However, he also conceded that, given Dr Sethi's notes, the Applicant was not asymptomatic prior to 1996 and may have had symptoms as early as 1992.
Dr Evans also conceded that if the Applicant was asymptomatic from 1997 to 1999 then he would be unable to say that her pain in 1999 was due to the accident in 1996. In relation to the period from 1992 to 1994 and an assumption that the Applicant's pain in 1994 was due to a fall in 1992 he said:
"Well, there's a flaw in the logic of whoever made that decision because you can't say if somebody gets pain in 1994 it was due to a fall that happened in 1992. I mean, if the fall was '92 and there was back pain then and that back pain persisted until '94, then you can draw a cause and effect relationship. If it happened in '92 and went away and came back in '94 then you can't."
However, he stressed that the cessation of physiotherapy from 1997 to 1999 and no absence from work did not establish an absence of pain.
Dr Maxwell, in his report of 9 November 2000 (T4 of TD2), after noting that he had been told by the Applicant that she had had no previous back problems said:
"Mrs Maria Harwood has bilateral hip osteoarthritis. I consider most of the pain that she described is referred from her osteoarthritic right hip.
I could find no evidence of significant back pathology. She certainly does not appear to have any marked restriction of movement of her back.
There is no evidence of nerve root irritation.
She does have significant osteoarthritis in both hips, the right is worse than the left and she have (sic) a significant decreased range of movement of both hips, the right being worse than the left."Dr Maxwell's report of 28 February 2001 (T7 of TD2) confirmed the view set out above and gave the opinion that the development by the Applicant of low back pain in November 1999, which he attributed to doing aqua aerobics, was a non-work related injury and not an aggravation of a previous injury.
In his reports of 16 May 2001 (T8 of TD2) Dr Maxwell commented on Dr Evans' reports and conclusions and noted that the Applicant's pain distribution is one that is typical of osteoarthritis of the hips and does not start at her back. Dr Maxwell also noted that, despite Dr Evans' theory of nerve root compression, the Applicant has no neurological compromise. Dr Maxwell also noted, in relation to the MRI scan results, that disc degeneration is an almost universal event in middle- aged and elderly people and was critical of Dr Evans' conclusion that an L5/S1 disc lesion was responsible for all her symptoms, despite there being no radicular signs or symptoms suggesting spinal stenosis and her straight leg raising being relatively normal.
In oral evidence to the Tribunal, Dr Maxwell confirmed that when he first examined the Applicant he did not have an MRI scan and had been given a history by the Applicant of no previous back problems but some problems with her right hip. He said that she complained of pain in the bone under her buttock but not of any centralised back pain. In relation to the MRI scan, Dr Maxwell said that the L5/S1 disc was not significantly degenerate and that the annular bulge and tear could be due to degeneration. He did not regard these as significant pathology.
In relation to the Applicant's onset of pain in November 1999, Dr Maxwell said that this pain could have been brought about by a sudden twist, unaccustomed activity, more walking than usual, a long car trip or indeed by aqua aerobics. He said that it is uncommon to use a walking frame for back pain but that such a frame is commonly used for hip pain. He also said that approximately 25 per cent of patients with arthritic hips develop back pain and that the pain is generally referred up to the back and down to the hip and leg. He finally noted that the Applicant's restriction of movement in her lumbar spine is very minor.
In cross examination, Dr Maxwell stated that he did not perform measurements on all physical examinations of the Applicant but found that her hip movements were all significantly decreased. He also stated that a person with the degree of degeneration shown by the MRI scan may have back pain but that is not always the case and that an MRI is almost irrelevant in diagnosing back pain. He said the history given by a patient is an important part of the "puzzle" in diagnosis.
The report of Dr Sturgess, Rheumatologist, of 30 November 1995 (Exhibit R2) said:
"For the last two years she has been aware of some stiffness, particularly around the area of the right buttock. She also comments that she is unable to sleep on the right side and she feels she may be starting to limp. She can walk a mile without no (sic) difficulty. She tells me that she sleeps poorly because of pain around the right lateral buttock area. She has a marked family history of both osteoarthritis and rhuematoid.
Examination showed a lady who was a little obese, but had good movements of her back. There were no abnormalities in her peripheral reflexes. Movements of both hips were restricted, particularly the right hip. I couldn't localise any tenderness over the lateral aspect of the hip area. X-rays showed early osteoarthritic changes in both hips, particularly on the right and a bone scan confirmed those findings without showing anything else in the back."
Although osteoarthritis of the hip is the only definite abnormality on investigation, I do wonder if some of her buttock symptoms are not coming from the back.Dr Ridhalgh, treating Orthopaedic Surgeon, in his report dated 13 August 2001 (T16 of TD2), said that he had been given a history by the Applicant of an injury to her back in 1996, with no previous back problems "although in 1995 she was examined by Dr Sturgess at St George Hospital for a right hip problem which seemed to go away". He later said "She tells me she did not have any problems with her back before the accident". He had seen the Applicant, following referral by Dr Sethi on 17 November 1999. The Applicant was reviewed by Dr Ridalgh on 9 January 2000, 7 June 2001 and 12 July 2001. He stated the following opinion:
"Mrs Harwood gives a good history for injury to her back that occurred on 27/5/96. Your client continues to complain of posterior pain radiating down the buttock and into her legs, down the back of her thighs. This is much more consistent with lower lumbar spine injury rather than that of the right hip condition.
I feel the condition in her hips has not lead to the permanent impairment in her back."
Dr Li's report of an x-ray of the lumbo-sacral spine on 9 November 1999 (Exhibit A1) concluded mild scoliosis with degenerative lumbar spondylosis.
Dr McDonald, on 24 July 1998 (Exhibit A2), reported some early degenerative changes in the weight bearing compartments of both hips with no acute or complicating features identified.
Dr Chapman, on 22 July 1999 (Exhibit A3), x-rayed and reported on the Applicant's lumbar spine and right lower leg, reporting, in relation to the lumbar spine, that there are some early degenerative changes at the L4/L5 and L5/S1 levels bilaterally. He also reported that the L5/S1 disc is also narrowed.
Dr Hatfield, on 15 September 1995 (Exhibit R3), x-rayed and reported on the Applicant's lumbo-sacral spine and both hips and concluded, in relation to the lumbar spine, that there were generalised early degenerative changes throughout the whole of the lumbar spine and early lumbar spondylosis is present. He noted mild scoliosis to the left in the lower lumbar region. In relation to the Applicant's hips, he concluded that early arthritic changes are developing in both hip joints with the changes more marked on the right side with some sclerosis around the articular margins of the joints.
The notes prepared by Anne Warner (Exhibit R1), physiotherapist, include the following entry dated 7 November 1999:
"On hols from Jannalli (Sydney) staying at R…… Bay doing aqua aerobics in pool + restrained old injury right L5/S1 now with walker on NSAID."
Submissions
Ms Gillies, for the Applicant noted that the central issue in this application is causation. She noted that the Applicant is not pursuing any matter in relation to her neck and knees, but limits her application to the injury to her back.
Ms Gillies submitted that it is reasonable that the Applicant has no recollection of an injury to her back in 1992 and the investigation of pain arising from it in 1994. In her submission those matters have no role to play in relation to this application, given that the Applicant had no treatment for her back prior to the 1996 accident and she had no history of continuing pain in her left leg and in her back.
She noted that Dr Sturgess in 1995 reported pain in the right hip and buttock and the Applicant's limping was only suggested by him. Ms Gillies queried why, if the Applicant's osteoarthritis was so bad, she did not remain under the care of a rheumatologist.
Ms Gillies noted that the Applicant's evidence was that her hip is stiff and not painful and that prior to May 1996 she had no physical restrictions. She also noted that, according to Dr Evans, the Applicant's complaints had been vindicated by the MRI scan. She submitted that Dr Maxwell had made no appropriate concessions and had unreasonably seen the Applicant's osteoarthritis as the cause of all of her complaints.
Finally, Ms Gillies submitted that there was no evidence of a separate injury or incident in November 1999.
Mr Polin, for the Respondent, noted the difficulty the Applicant appeared to have had in directly answering the questions put to her and commented on her failure to inform any of the specialist medical practitioners who examined her of her fall in 1992 and the pain she experienced in 1994.
Mr Polin submitted that the report of Dr Sturgess shows very significant osteoarthiritis and there is evidence of general degenerative changes in the Applicant's spine. He submitted that it is only the Applicant's evidence that would allow the conclusion that she suffered continual symptoms from 1996 and that, rather the conclusion should be that, the lumbar strain suffered by her in 1996 was superimposed over her osteoarthritis which in turn, according to Dr Maxwell, is consistent with all of her current complaints.
Finally, Mr Polin submitted that the pain experienced by the Applicant in 1999 was an aggravation of her osteoarthritis or it was a separate incident of aggravation of her degenerate back.
Consideration
The central issue in this application is whether the Applicant continued or continues to experience the effects of her fall on 27 May 1996 beyond 1997 and, in particular, whether the pain she experienced in November 1999 and following was caused by that fall. This, in turn, raises the issue of whether the Applicant's pain in 1999 was caused by an injury to the lumbar region or by her osteoarthritis of the hips. A collateral issue is whether the Applicant had significant degeneration of her spine and/or a previous injury to her spine prior to her fall in 1996.
A difficulty that ran through the evidence given in this application was that, although the clinical notes of the Applicant's treating general practitioner show that in 1994 she reported back pain severe enough to interfere with her sleep and arising out of a fall in 1992, the Applicant did not report this incident or the pain she suffered to Dr Sturgess or Dr Ridalgh, her treating specialists, or to Dr Evans and Dr Maxwell from whom reports were obtained by the parties for this application. Consequently, the medical reports provided by those doctors were prepared on the basis that the Applicant had had no previous back pain.
Dr Evans, however, was informed of the Applicant's previous problems with her back through the course of his oral evidence and provided some comments in light of that information. As a consequence of this information, he conceded that the Applicant may have had symptomatic degeneration of her lumbar spine prior to 1996. He also conceded that an absence of symptoms for two years would make a causal connection between a fall in 1996 and acute pain in 1999 unlikely. However, he maintained that the Applicant's back and leg pain arose out of the condition of her lumbar spine and, despite the absence of neurological signs, from nerve root irritation.
Dr Maxwell, however, was firm in his opinion that the Applicant's back and leg pain was due to her osteoarthritis in both hips. In this regard, he noted the absence of neurological signs and the result of the MRI scan, which he considered typical of a woman of the Applicant's age, and concluded there was no significant pathology pointing to the pain originating in the lumbar spine. He maintained that the Applicant's pain was referred from her osteoarthritic hips. Dr Maxwell also noted a significant restriction of range of movement in the Applicant's hips compared to no marked restriction of movement in the Applicant's back and the use by her, in November 1999, of a walking frame which he said was more commonly used by those with hip problems, rather than those with back pain.
Dr Sturgess, in 1995, found osteoarthritis in the hips to be the only definite abnormality on investigation, given good movements of the Applicant's back, but allowed for the possibility of some symptoms coming from her back.
Dr Hatfield's report shows that the Applicant had generalised degenerative changes thorughout the whole of the lumbar spine as early as 1995 and early arthritic changes in both hip joints.
Dr Ridalgh reported in 2001 on the basis that the Applicant had had no problems with her back prior to the fall in 1996 and that her right hip problem "seemed to go away". It is difficult to rely on Dr Ridalgh's report given that it is predicated on a resolved hip condition, with the Applicant conceding continuing stiffness in her hips, and on there having been no back pain prior to the fall in 1996.
With one of the significant issues in this application being whether the Applicant's pain was due to her arthritis of the hips or due to her back condition and with the Respondent's contention being that her back condition had resolved by 1997, the report of Dr Chapman (Exhibit A3), who x-rayed the Applicant's lumbo-sacral spine on 22 July 1999, could be taken as an indication that the Applicant, in or about July 1999, was suffering from the symptoms of a condition of her lumbo-sacral spine.
After the conclusion of the hearing of this application, and in the course of considering the material that had been presented to the Tribunal by each party, the Tribunal noted that the referring doctor named on the report by Dr Chapman was a Dr Phipps. Given that, on the face of it, Dr Chapman's report, or at least the existence of it, suggested that the Applicant had been troubled by her back condition in July 1999, the Tribunal looked to the material produced under summons to see whether the clinical notes of the referring Dr Phipps had been produced. Those clinical notes had been produced and an order for access to the parties had been made. Dr Phipps' notes had not, however, been tendered to the Tribunal by either of the parties, nor any submission made in relation to them. The notes contained two entries which appeared to be pertinent to the Applicant's lumbo-sacral spine x-ray in July 1999.
The Tribunal was mindful that this was material that the parties had neither tendered in evidence nor made submissions on and so directed the Registrar of the Tribunal to write to the parties' representatives in the following terms:
"Exhibit A3 is the report of Dr Chapman of 22 July 1999 concerning x-rays of the Applicant's lumbar spine and right lower leg. The taking of x-rays at that time may suggest that the Applicant had attended the referring doctor with some complaint of pain or other difficulty with her lumbar region prior to November 1999. The question of whether the Applicant had suffered any such problems between 1997 and November 1999 was an issue raised at the hearing of the applications.
The referring doctor is noted in the report as Dr V Phipps. Dr Phipps' clinical notes were the subject of a summons to produce and an order for access to the parties. However, Dr Phipps' clinical notes were not tendered in evidence at the hearing, nor were they referred to by either of the parties at the hearing.
It may be that Dr Phipps' clinical notes are of some significance to the question of why the Applicant's lumbar spine was x-rayed in July 1999 and whether the Applicant continued to suffer pain related to her fall in 1996 throughout the period up until November 1999. Of particular interest are the entries dated 20 July 1999 and 26 July 1999."
The parties were provided with a copy of the notes in question and given an opportunity to make submissions on the significance or otherwise of Dr Phipps' notes before the Tribunal proceeded to determine the application.
Counsel for the Applicant, after commenting that the notes had not been tendered into evidence before the Tribunal, submitted that the fact that an x-ray of the Applicant's lumbar spine had been taken in July 1999 supports the Applicant's assertion that her back had continued to cause her difficulty in the period prior to 1999. The Applicant's Counsel submitted that it was open to the Tribunal to infer that the Applicant had made a complaint of back pain and that complaint was serious enough to warrant the referral by Dr Phipps. She stated that this is so despite Dr Phipps notes not being in evidence. No comment was offered on the contents of Dr Phipps' notes.
Counsel for the Respondent submitted as follows:
"1. Both parties were legally represented at the hearing.
2. Both parties were able to fully present their case at the hearing before the Tribunal with both parties choosing not to tender the clinical records of Dr Phipps.
3. The case for the Respondent was presented on that basis and may have been presented differently, particularly in relation to cross examination of the Applicant, had the notes of Dr Phipps been tendered.
4. The notes of Dr Phipps are not part of the evidence before the Tribunal and the Tribunal should not have regard to any of the matters contained therein."No comment was made by Counsel for the Respondent on the contents of the notes.
The issue thus raised is whether the Tribunal may consider and take into account, in its decision making, the contents of Dr Phipps' notes. Section 33 of the Administrative Appeals Tribunal Act 1975 provides:
"33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
(1A) The President may authorise a member to hold a directions hearing in relation to a proceeding.
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a) where the hearing of the proceeding has not commenced - by a person holding a directions hearing in relation to the proceeding, by the President or by a member authorized by the President to give directions for the purposes of this paragraph; and
(b) where the hearing of the proceeding has commenced - by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.
(3) A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member empowered in accordance with this section to give such a direction in relation to the proceeding at that time.
(4) An authorization by the President under this section to give directions as to the procedure to be followed at or in connection with the hearing of a proceeding may be of general application or may relate to the hearing of a particular proceeding or particular proceedings or to proceedings included within a class or classes of proceedings.
(5) The President may at any time vary or revoke an authorization under this section."
Of particular relevance to the issue raised in this application is subsection 33(1)(c) of the AAT Act. In relation to the Tribunal's power or entitlement under that subsection, the Full Federal Court said in Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205:
"The Tribunal is, of course, entitled to inform itself on any matter in such manner as it thinks appropriate; it is not bound by the rules of evidence: see s 33 of the Administrative Appeals Tribunal Act 1975. However, it has long been recognized as the proper practice that a tribunal of fact which takes advantage of such an entitlement should disclose its action and the sources of its information; see Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 7 – 8; McGale v Glad (1981) 59 FLR 1 at 12."
In McGale v Glad (supra) the Full Federal Court said:
"Counsel for the Appellant before us submitted that there was no warrant for the assumption made by His Honour that the evidence would have established that there was no work of a light duty nature available to a person with the respondent's disability. I am inclined to agree with that submission. I do not think that the problem is overcome by reference to para 6A(b) of the Fourth Schedule to the Ordinance which provides that the court is not bound to act in a formal manner and is not bound by the rules of evidence but may inform itself as it thinks fit. It would seem to me that if a court intends to rely on this provision it ought to say so and say what its sources of information are."
In this application, the Tribunal identified to the parties the information it proposed to consider and gave the parties an opportunity to make submissions on that information. Having taken those steps, the Tribunal considers it is appropriate for it to rely on section 33(1)(c) of the AAT Act and to have regard to the material in Dr Phipps' clinical notes.
At entries on 20 July 1999 and 26 July 1999 those notes say, as far as can be deciphered:
"20/7/99
Recurrent right lower limb ache, aches at night, has to put up – not actually knee or ankle.
Aching lower leg and also ache occ.@ R hip area
O/e tenderness at knee.
Calf soft, non tender
No ankle oedema no evidence DVT…
(tibia) bone non tender…
avoid prolonged sitting or standing…
x-ray R lower limb and back…may need CT scan.26/7/99
Discussed x-rays
H/o w/comp. Back pain 4 years ago - bad fall on carpet – flair on. off – did have some…then.
Constant ache – lower limb, calf, ankle and numbness foot, toes, ankle.
O/e non tender to touch, palpate, move.
No obvious significant varicose veins."According to these notes, the main complaint recorded by Dr Phipps on 20 July 1999 was an ache in the right lower leg. There is no mention of back pain but there is a mention of right hip ache. While the fact of a referral by Dr Phipps for an x-ray of the lumbar spine suggests a complaint by the Applicant about pain or difficulty with the lumbar region, Dr Phipps' notes of 20 July 1999 do not support that suggestion.
Dr Phipps' notes of 26 July 1999, while recording a history of back pain after a fall 4 years previously and noting that the back pain would "flair on. off", again centre on the Applicant's complaint of ache in her lower right leg.
In the Tribunal's view, Dr Phipps' notes do not support an inference being drawn, from Dr Chapman's report, that the Applicant suffered back pain during 1997 to 1999. There remains, however, the Applicant's evidence that she did suffer pain in her lumbar region throughout this period, although this is diminished somewhat by Dr Phipps' note that her back pain would "flair on.off".
The report of Dr Hatfield supports the conclusion that the Applicant had degeneration of her lumbar spine as early as 1995 together with arthritic changes in her hips. The Tribunal so finds. The Tribunal also finds, on the basis of Dr Sethi's notes, that the Applicant suffered a fall in 1992 and suffered pain in her back in 1994.
These findings still allow for the possibility that the Applicant's fall in May 1996 aggravated her degenerate back and/or her injury from a fall in 1992. However, the absence of evidence of medical treatment, or complaint to a medical practitioner, of lower back pain from 1997 to 1999, whilst not conclusive, does detract from her assertion that her pain, and therefore any aggravation, from the fall in 1996 continued through to 1999.
The condition that has continued throughout that period, however, is the Applicant's osteoarthritis of the hips. Dr Sturgess' report of 30 November 1995 establishes that the Applicant had suffered from pain and stiffness in her hips, most prominently the right hip, since 1993. Her movements were restricted and x-rays and a bone scan showed osteoarthritic changes. Both Dr Evans and Dr Maxwell found the Applicant's hips, on examination in 2000, to be very stiff. At the same time, Dr Maxwell found only very minor restriction of the movement in the Applicant's lumbar spine.
The Tribunal prefers the opinion of Dr Maxwell to the effect that the pain experienced by the Applicant in 1999 was due to the osteoarthritis of her hips rather than to any lumbar spine condition. In particular, the Tribunal noted and accepted his evidence as to the distribution of pain that is typical of osteoarthritis of the hips, the absence of neurological compromise or any evidence of nerve root irritation to explain the pain in the Applicant's leg and her use of a walking frame, typically used by sufferers of osteoarthritis of the hips.
For these reasons the Tribunal considers that, on the balance of probability, the Applicant's back pain, beyond 1997, was not due to the fall at work in 1996. It follows that the Respondent is not liable to compensate the Applicant for permanent impairment or for medical expenses beyond 1997.
Determination
The Tribunal affirms the decisions under review.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: H Sim .....................................................................................
AssociateDate of Hearing 11 February 2002
Date of Decision 24 April 2002
Counsel for the Applicant Ms M Gillies
Solicitor for the Applicant Ms E Naylor
Counsel for the Respondent Mr N Polin
Solicitor for the Respondent Ms E O'Connor
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