HRRB and COMCARE

[2009] AATA 962

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 962

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4990

GENERAL ADMINISTRATIVE DIVISION		)
Re		HRRB

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date16 December 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd]................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – acceptance of liability for “neck sprain (right)” and “thoracic sprain (left)” – reviewable decision that employment-related effects had ceased – respondent is not liable to pay compensation or provide medical treatment to the applicant for incapacity or impairment – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16,19

REASONS FOR DECISION

16 December 2009 Mr R G Kenny, Senior Member    

BACKGROUND

1. The applicant was employed as a budget officer with a Commonwealth Department on 19 December 2005 when she completed a claim for rehabilitation and compensation in respect of “soft tissue injury right C4 and left T4”. The applicant alleged that these injuries had occurred as a result of “tension caused by co‑worker’s disrespectful communication style and orders” and “lots of data entry to meet deadlines”. On 16 March 2006, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for “neck sprain (right)” and “thoracic sprain (left)”. 

2.      On 8 January 2008, Comcare wrote to the applicant and advised that, on the basis of a medical report from her treating doctor, Dr Noel Morrison, compensation and medical treatment for her accepted conditions may no longer be payable.[1] The letter invited the applicant to provide further medical evidence to support a continuation of liability. In the absence of a response from the applicant, Comcare determined, on 15 February 2008, that the applicant no longer suffered from the effects of her compensable injuries and that she had no present entitlement under the Act. That determination was affirmed in a reviewable decision on 22 August 2008.

[1] See ss 16 and 19 of the Act.

3.      In addition to the compensable injuries of “neck sprain (right)” and “thoracic sprain (left)”, reference is made in medical reports before the Tribunal to a shoulder condition.  Mr Clark, counsel for the respondent, submitted that any symptoms referable to the applicant’s shoulder were not associated with the compensable injuries.  The shoulder condition has been variously described as a full thickness tear of the supraspinatus tendon and degenerative changes to the AC joint (by consultant orthopaedic surgeon Dr Derrick Billett); as a supraspinatus tendon tear and subacromial bursitis (by orthopaedic surgeon Dr Katherine Gordiev); and as a full thickness tear of the supraspinatus tendon and rotator cuff disease (by consultant orthopaedic surgeon Dr Simon Journeaux).  Those practitioners clearly differentiate between the shoulder condition and the compensable injuries.  The applicant advised that she has lodged a separate claim with Comcare in relation to the shoulder condition as well as for a pain-related psychiatric condition.  These have not yet been determined.  I accept Mr Clark’s submission that these matters do not form part of this review by the Tribunal. 

4.      The issue for the Tribunal to determine is whether the respondent is liable to continue to pay compensation and provide medical treatment to the applicant for the injuries which were accepted by Comcare as being compensable. 

EVIDENCE

The applicant

5.      In her evidence, the applicant said that the symptoms of pain in her back had virtually disappeared as a result of a special exercise regimen she commenced in August 2008, a pain management program recommended to her by Dr Morrison.  She said that whenever pain returns, the exercise, which is designed to strengthen her muscles and tendons, gives instant relief.

Medical evidence

6. Dr Billett and Dr Journeaux completed reports on 2 May 2006 and 11 February 2009, respectively. They also gave oral evidence. Dr Billett’s opinion is that the applicant suffered underlying age degeneration of the spine which was aggravated by employment-related factors. He also opined that the effects of this aggravation had passed and that the applicant now suffered from the continuing effects of her underlying degenerative condition. Dr Journeaux described underlying multi level degenerative disease of the spine. His opinion was that, while such a condition could be aggravated by certain work conditions, there was no information available to him which would so indicate in the applicant’s case. Dr Gordiev completed reports on 20 April 2006 and 15 June 2006. Her opinion was that the applicant suffers from age-related degenerative changes in the intervertebral discs or the facet joints and that there was no current injury to the applicant’s neck or thoracic spine. Dr Morrison completed reports on 17 August 2007 and 21 December 2007. His opinion was that the compensable conditions were unlikely to continue as a significant factor beyond 12 months after they were accepted under the Act.

SUBMISSIONS

7.      Mr Clark submitted that, as at the date of and since the reviewable decision, the medical evidence does not support a continuation of symptoms from the compensable conditions in the applicant’s spine. 

8.      The applicant made a range of submissions.  In the main, these were directed to criticisms of the workplace conditions which she endured in 2005 and which were causally related to her spinal and shoulder conditions.  The applicant was also critical of the nature of some of the medical examinations and procedures she underwent as part of her claim.  In particular, she contended that she should have undergone an MRI and should have been more thoroughly examined in relation to tendon pain, giddiness, nerves and what she described as adrenal fatigue.  She also submitted that it was not possible for medical practitioners to generalise on the time when an aggravation of an underlying condition would resolve and be replaced by the underlying condition alone.  The applicant said that she had experienced a problem with her left shoulder some 20 years prior to 2005, when she had no underlying arthritic degeneration, and that it took approximately four years to resolve at that time.

CONSIDERATION

9.      I have noted the submissions made by the applicant.  Most of these were unrelated to the issue before the Tribunal.  They may have potential relevance to her pending claims before Comcare in relation to shoulder and psychiatric conditions. 

10.     One of the applicant’s submissions concerned the determination of the cessation of symptoms of aggravation and the return to underlying age-related degeneration.  This is a matter of medical opinion.  In her case, this was not generalised but specific to the applicant who was examined by each of the orthopaedic surgeons who gave evidence in this matter.  There is clear evidence that any work‑related symptoms from her neck sprain (right) and thoracic sprain (left) had resolved by the time of the decision under review.  On the other hand, there is no evidence which supports the continuation of symptoms from those conditions.  Indeed, the applicant’s evidence was that, since she commenced her exercise regimen, she has no continuing pain in her spine.  On the evidence before me, I am satisfied that the effects of any employment-related injury in the applicant have ceased and had done so at the time of the decision of Comcare in those terms.

DECISION

11.     The Tribunal affirms the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

Signed: .........................[Sgd]...............................................
             Mátyás Kochárdy, Research Associate

Date of Hearing  7 December 2009
Date of Decision  16 December 2009
The Applicant was self-represented
Counsel for the Respondent     Mr Charles Clark
Solicitor for the Respondent     Ms Claire Fitzpatrick, Sparke Helmore