Hudson and Comcare
[2006] AATA 865
•9 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 865
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/272, S2005/62
GENERAL ADMINISTRATIVE DIVISION ) & S2006/31 Re HENRY HASWELL HUDSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)Date9 October 2006
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – workers’ compensation – injury – liability of Comcare to pay compensation with respect to an injury to the cervical spine, either nerve root compression or disc prolapse, which resulted in bilateral radiculopathy – liability initially accepted – redetermination of own motion – new evidence of non-work related incident that preceded event which may have caused injury – contemporaneous medical and like records significant – medical treatment – Glucosamine – commonly recommended treatment by medical practitioners for arthritic conditions – decisions affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 62(1)
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Lees v Comcare (1999) 56 ALD 84
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519REASONS FOR DECISION
9 October 2006 Senior Member L Hastwell
Dr E T Eriksen (Member)1. Henry Haswell Hudson (the applicant) was born on 5 May 1939. He was 67 years of age at the time of the hearing. He has been employed as a technical officer with the Department of Defence (Navy) since 1991.
2. On 1 July 2003 the applicant filed a claim for compensation and rehabilitation. He asserted that he was suffering from shoulder inflammation that was affecting his right hand, arm, shoulder and also neck. The condition of which he complained worsened over time and it is accepted that he sustained cervical nerve root impingement at level C6/7 which initially caused radiculopathy in his right arm and ultimately lead to bilateral radiculopathy. He asserts that the injury was caused in the course of his employment when he lifted a heavy box of books from the floor of his office to his desktop while packing his office to move to a new building in the Department of Defence at RAAF Base Edinburgh.
3. There are three applications for review before the Tribunal. It was agreed by counsel at the outset that if the applicant is successful in application S2004/272 and there is a finding under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) that the bilateral radiculopathy has been caused or contributed to by his employment, then he would also be partially successful in application S2005/62, in that his claim for permanent impairment under s 24 of the Act would be successful. In the event that the applicant was successful, then the degree of permanent impairment was agreed to be 15 percent under the relevant tables. His claim for non-economic loss under s 27 of the Act would be remitted to the respondent (Comcare) for further consideration as no determination has been made with respect to that aspect of the matter.
4. The application for review S2006/31 relates to a claim dated 12 July 2005 in which the applicant sought to extend liability for nerve root entrapment, resulting in radiculopathy to both the right and left hands. Liability was not accepted. That application will be successful if the applicant is successful in the primary application before the Tribunal, ie if he succeeds in establishing that Comcare is liable with respect to the initial injury and the radiculopathy in the right arm and hand.
5. Another aspect of the primary application for review is to also consider that part of the reviewable decision of 28 July 2004 (S2004/272) which confirmed a determination of 3 May 2004 in which liability for payment for Glucosamine and Valerian tablets was denied. The reason that liability was rejected was because liability for the primary injury was revoked.
6. In the applicant’s statement of facts, issues and contentions an issue of jurisdiction was raised. At the commencement of the hearing counsel for the applicant advised that they now accept that Comcare had the jurisdiction to reconsider the determination of own motion under s 62(1) of the Act.
7. On 29 July 2003, Comcare accepted liability under s 14 of the Act to pay compensation to the applicant for injury to cervical root (right) with a deemed date of injury of 19 June 2003. The applicant made claims for medical expenses and treatment which were accepted. After receiving some new evidence, the review officer conducted a reconsideration of own motion under s 62(1) of the Act and revoked the determination of 29 July 2003, effective 28 July 2004. A new finding was made that Comcare was not liable to pay compensation as there was no liability for the injury under the provisions of s 14 of the Act.
8. The applicant asserts that the duties of his employment with the Department of Defence caused, aggravated or accelerated his injury.
9. Comcare asserts that the injury was not caused by, aggravated or accelerated by the applicant’s employment, but rather that it was the direct result of a non-work related incident that occurred some days earlier.
10. The Tribunal must be satisfied, on the balance of probabilities, of a causal link between the injury and his employment, ie that the duties of his employment caused the injury or accelerated or aggravated an existing injury.
statutory framework/legislative provisions
11. Section 14 of the Act provides:
“(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
12. An injury is defined in s 4 of the Act:
“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.”
13. Section 62(1) of the Act provides:
“(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.”
14. Divisions 2, 3 and 4 of Part 11 of the Act deal more specifically with the liability created by s 14. Once a determination under s 14 is made then the amount of compensation which Comcare will be liable to pay the person to whom the compensation is payable is determined under the other provisions of the Act.
issues to be determined in this case
·Did the applicant’s injury arise out of or in the course of his employment with the Department of Defence?
·Did the applicant’s duties or employment aggravate or accelerate the onset of his condition, or did it hasten the progression of his condition?
the hearing
15. The parties were represented by counsel. The T documents for all three applications for review were received into evidence. Other exhibits were tendered and where relevant will be referred to. The applicant gave evidence. Professor Peter Reilly was called to give evidence on the applicant’s behalf. The applicant’s general practitioner, Dr Alan Watson, also gave evidence. Mr Brian North gave evidence for Comcare.
16. In his statement (Exhibit A5) which was adopted by the applicant, he describes his employment history and his prior history of any significant injuries. He described an incident at work on 19 June 2003 which he claims gave rise to the injury. He also describes at paragraphs 49 to 60 of that statement an incident that occurred on Monday 16 June 2003 when he experienced some pain in his right shoulder both at lunchtime when walking and using hand weights and when exercising with hand weights in the evening. He also describes some discomfort on the right side of his neck and shoulder whilst using his computer on Wednesday 18 June 2003.
17. He told the Tribunal that he had been involved in packing up his office from Monday 16 June 2003 until the date of the injury as his department was changing premises. Apart from some occasional computing work, his substantial duties for that week involved packing.
18. On the morning of 19 June 2003, he packed a box with books. He estimates that it weighed 20-30 kg. As he lifted that box onto his desk, which was approximately .7 of a metre in height, he described feeling a sharp pain in his right shoulder as he lifted the box. It became worse quickly, and he described it as being unlike pain he had previously experienced. He described it as “excruciating”. It was of such severity that he immediately arranged to see a doctor.
19. He left work and saw Dr Vuong later that morning. He drove himself to the surgery at Highbury. He described being unable to use his right arm as he drove. By that time the pain had moved down into the upper aspect of his arm. The doctor prescribed anti-inflammatory medication and pain killers. The applicant collected the medication from the chemist and then went straight home. He described feeling “shook up” when he left the doctor’s surgery.
20. Within a day or two of that event he said that he was experiencing pain in the index and middle fingers of his right hand. The pain had radiated down his arm.
21. He described the pain he experienced at the time of lifting the box as:
“a continuous, intense sort of pain … a sickly sort of pain … if somebody broke an arm or something, that is the sort of pain they would have … an intense sort of pain”.
22. In cross-examination the applicant agreed that he told Dr Vuong on 19 June 2003 that he first felt the pain on the previous Monday (16 June 2003) while walking during his lunch hour, and then again in the evening after doing exercises at the gym and weights before tennis practice. He acknowledged that Dr Vuong's medical notes made no mention of the box lifting incident. His explanation for this was that Dr Vuong had only asked him when the pain started and did not ask him to elaborate. He said that his main concern at the time was to get some pain relief.
23. The applicant consulted Ms Kat Burgess, a masseur, on the following day, 20 June 2003. When shown Exhibit R1 he identified his signature on page 23. That document which is headed “Confidential Client Information” comes from Ms Burgess' notes which were produced under summons. It reports a history being given of “hurt right shoulder at gym” on the Monday (16 June 2003). It further notes “by Tues night v sore”. It also reported that he had “felt a tingling from wrist up arm lateral side to back shoulder”. The applicant questioned the accuracy of this aspect of her notes, and in particular her reporting that by the Tuesday night (17 June 2003) it was very sore. He agreed that it appeared that he had not told her about the box lifting incident. The applicant had no memory of signing that document, but he acknowledged his signature.
24. The applicant was shown a usage printout for the Next Generation gym (Exhibit A1/T1/34). This indicated that he had attended the gym on the morning of 19 June 2003. He agreed that it must be accurate. He did not recall going to the gym that morning. The usage printout showed the applicant entering the gym at 11:46am on the morning of 19 June 2003. The applicant's only explanation for his attendance at the gym at that time was that he possibly went there for a meal after going to his medical appointment. He was in the habit of going to the gym for meals on a regular basis.
25. He acknowledged that on Saturday 21 June 2003 he went to see the duty doctor at the Highbury medical practice to obtain more pain relief. He was shown Dr Waran’s record of that consultation. The applicant did not accept the accuracy of the report and in particular a reference to the pain in his right neck and shoulder being worse on Wednesday (18 June 2003) when working on a computer. He explained to the Tribunal that he was working on his keyboard on the Wednesday and he felt a similar pain to that which he had felt on the previous Monday. He said that he felt what he described as a “twinge” in his shoulder, similar to the pain he had felt on the Monday, “no better, no worse”. The pain that he acknowledged he felt on the Wednesday he described as not being a persistent pain.
26. He acknowledged that on the Monday night at the gym he did hand weights for a while and he then had about 15 or 20 minutes of tennis practice. He went down to the court and served a bag of balls. He then had a meal and left the gym in the early evening. He remained adamant that he was being truthful about the incident at work on 19 June 2003 and that the pain extending into his right arm developed after that date.
medical evidence
27. The Tribunal had as Exhibit R1 a book of medical notes, reports and records that were produced under summons. There was some additional medical evidence in the T documents. The Tribunal heard oral evidence from Professor Peter Reilly and Dr Alan Watson for the applicant and Mr Brian North for Comcare. Comcare did not call Dr Vuong, Kat Burgess or Dr Waran to give evidence.
dr alan watson
28. Dr Watson told the Tribunal that he first saw the applicant in relation to this event on 23 June 2003. He had noted at that time that the patient felt that he had been messed around as colleagues had focused on a shoulder injury and he was annoyed that the wrong site had been scanned. Dr Watson saw him again the next day, 24 June 2003, and it was on that occasion that the box lifting incident was mentioned.
29. Dr Watson’s diagnosis was that the applicant had suffered cervical nerve root entrapment, which had led to radiculopathy. Dr Watson expressed the view that lifting any significant weight can increase the pressure on the spine, and the disc probably ruptured when the box lifting incident occurred.
30. Dr Watson has seen the applicant regularly and said that he presents in a consistent manner, was a motivated person and had rapidly phased back into the workforce after this incident.
31. Dr Watson strongly supported the use of Glucosamine as an accepted treatment for osteoarthritis. He regularly recommends it to patients. It appears to be a safe product, and is supported by the Arthritis Foundation.
professor reilly
32. Dr Watson initially referred the applicant to see Professor Reilly for an investigation of his condition. Professor Reilly first examined the applicant on the 27 February 2004. A number of his reports were in evidence before the Tribunal. In his report of 4 May 2004 Professor Reilly made the following observation:
“…
The right arm pain apparently occurred some days after he had been lifting heavy boxes but there was no specific incident described to me at the onset of the arm pain. …”
33. In his evidence Professor Reilly stated that he understood that the applicant had developed a severe pain in his right shoulder after lifting a heavy box of books at work. This pain was initially diagnosed as tendonitis by his general practitioner. This pain moved down the right arm over the next few days and then to the right index finger. The pain gradually disappeared, but the index finger remained numb. Seven months later the same pattern of symptoms commenced in the left arm. This also largely recovered, but left him with numbness of the left index finger. Professor Reilly's diagnosis was that the applicant was suffering from bilateral C7 radiculopathy which had recovered, but left him with residual partial numbness of both index fingers.
34. Based on the history given to him by the applicant, Professor Reilly considered it likely that the applicant suffered a neck strain at the time of the incident of 19 June 2003 with consequent impingement on the nerve root to the right arm with consequent arm pain and residual numbness of the right index finger. He considered it less likely that carrying light weights while walking on Monday 16 June 2003 was the cause of the injury.
35. Counsel for Comcare put to Professor Reilly that there was some evidence to suggest that tingling in the arm was occurring prior to 19 June 2003, and that there was evidence of neck and shoulder pain commencing after doing some weights at the gym followed by serving tennis balls on the previous Monday night and that this evidence was consistent with the neck condition and the radiculopathy commencing its course on the Monday and gradually worsening. Professor Reilly responded as follows:
“That would suggest that. It may have been worsened by particular events afterwards but it would seem that there was evidence of - symptomatic evidence of irritation of the nerve root at that stage.”
36. Professor Reilly expressed the opinion that the pain extending into the applicant’s right arm (radiculopathy) was caused by the nerve at C7 being compressed/irritated by the exit through the bony canal of the vertebrae (foramen). He was also of the view that there may be a disc protrusion or a soft tissue lesion contributing to the narrowing of the foramen. He was not emphatic that a disc rupture had occurred.
37. Professor Reilly demonstrated the radiological abnormalities on the MRI and CT scans. With visualisation of the x-rays and the explanation of Professor Reilly, it could be seen that on the right hand side at the C6-7 level there was bony narrowing of the C6-7 exit foramen compromising the right C7 nerve roots supplying sensation to the right hand (central finger/forefinger). A soft tissue component was increasing the nerve root compromise at the C6-7 level.
38. Professor Reilly explained the onset of radicular pain by repetitive strain to a compromised nerve root in a narrow foramen, and a soft tissue bulge increasing pressure on the compromised nerve root.
39. In the context of the applicant’s pre-existing degenerative changes, Professor Reilly was of the opinion that for symptoms to progress to radiculopathy he would expect a contemporaneity between the precipitating event and the onset of symptoms. He would expect the applicant to suffer significant pain about the time of the precipitating event, and the pain would then be expected to radiate down the right arm over a 24 hour period. His view was that the neck pain which had been previously experienced by the applicant may come from a number of places in the neck due to the pre-existing degeneration of the applicant's cervical spine whereas the arm pain can be related to particular segments of the cervical spine. The radiculopathy is the indicator as to when the injury occurred.
40. It was Professor Reilly’s view that the lifting of a container of books weighing about 25-30 kg could be a precipitating event to trigger the compression and irritation of the nerve that led to the radiculopathy and the symptoms would develop at or soon after such an event. Once the degenerative condition is aggravated to the point of producing a radiculopathy, long-term disability can ensue. The extension of the radiculopathy to the left side of his body in January 2004 after physiotherapy treatment, was consistent with the pathology in the applicant’s cervical spine. He expressed the view that manipulation or neck movement was capable of causing radiculopathy on the other side, given the initial injury, and amounted to an aggravation of the initial injury.
41. Professor Reilly was of the opinion that the neck pain and shoulder pain referred to in Dr Vuong’s notes may have come from the degenerative changes in the spine without any effect on nerve roots, it was the extension of pain into the arm within 24 hours of pain that indicates the compression of the nerve root which then causes the radiculopathy.
mr brian north
42. Mr Brian North gave evidence on behalf of Comcare. There were also a number of reports of Mr North in the T documents. He examined the applicant at Comcare’s request on 10 November 2004, and his preliminary report is contained at Exhibit A3/T10. It is recorded in Mr North’s report that the applicant stated to him that he had no symptoms on 17 or 18 June 2003, but that he had suffered some neck and shoulder pain on 16 June 2003.
43. Mr North was of the opinion that the pathology in this case was that of degenerative changes at the C6-7 level of the spine with a disc protrusion at C6-7 level which has led to the bilateral radiculopathy. He was confident that a C6-7 disc lesion was present.
44. Mr North was emphatic that radicular symptoms would be present within 24 hours of the precipitating event and that he would expect there to be some level of pain surrounding the precipitating event. He had seen Ms Burgess’ notes and Dr Vuong’s notes, he considered that the history recorded in those notes was consistent with the precipitating event occurring on 16 June 2003 rather than 19 June 2003. His interpretation of Ms Burgess’ notes of 20 June 2003 was that they described very clearly that the applicant suffered a radicular syndrome at the time which had been “going on for several days”.
45. There was no dispute between Professor Reilly and Mr North about the condition from which the applicant suffers. What emerged from both doctors’ evidence was that they would expect contemporaneity between the precipitating event and the radicular pain in the arm in that pain would present, radiating down the arm in a nerve root distribution within approximately 24 hours of the event.
46. Ms Burgess was not called to give evidence. The history as reported to her by the applicant is contained at Exhibit R1/22-23. The applicant’s signature appears at page 23. In her report to Comcare dated 20 June 2004 (Exhibit R1/24) she comments:
“…
He presented with pain in the right shoulder with tingling along the right lateral arm and forearm down to the wrist. He had had the pain before on a couple of occasions … with this episode starting on Monday, 16 June 2003, by Tuesday it was painful. By the time of this treatment he was sleeping propped up because he found lying down increased the pain.
…
When Henry came for treatment it was not to the view of a compensation claim, so I feel his injury was genuine, if somewhat over stated. … when I asked Henry what he had done to cause this pain, his response was it had started on the Monday after he had been to the gym. …”
47. The applicant attends the Family Practice Unit in Highbury, and notes of consultations were available for the Tribunal’s consideration (Exhibit R1/53-54). The relevant entries for the purpose of this review are as follows:
·19.6.03 (Thursday) seen by provider Dr Lucas Vuong
Complaining of right shoulder pain. History of present complaint - doing weights and felt twinge in right shoulder, painful right shoulder, cannot flex above 90 degrees. Examination showed abduction and flexion to 90 degrees with internal and external rotation normal. Tender posteriorly just above the spine of scapular at AC joint. Diagnosis - right shoulder injury tendonitis/bursitis. Prescribed Voltaren Rapid and Panadeine Forte.
·21.6.03 (Saturday) seen by provider Dr Eswaran Waran
Onset of pain since Monday after weight-lifting and tennis. Pain in right neck and shoulder, got worse on Wednesday, spent the day working on the computer. Pain worse in posterior aspect of shoulder and the inner aspect of shoulder blade. Pain worse when lying on that side and with movements of the neck and shoulder. Some radiation of pain down the right arm with paresthesias in all fingertips.
If ultrasound negative, cervical spine x-ray.
Panadeine Forte 1-2 bd.
·23.6.03 (Monday) seen by provider Dr Alan Watson
Complaining of pins and needles of right index and middle fingers. States he has been messed around as physio stated from the beginning that it was his neck. Radiologist also advised after ultrasound of right shoulder that diagnosis right C7 nerve root entrapment. Endorsed medical certificate 23.6.03.
·24.6.03 (Tuesday) seen by provider Dr Alan Watson
Henry now states that there was an injury at work. At 8.30 am lifted heavy box of books 19.6.03 and within half an hour pain in right arm became worse and worse. Advised manager.
Referred to Angelo Minnucci (Physiotherapist) under WorkCover.
findings of fact
48. The Tribunal makes the following findings of fact:
·The applicant sustained an injury to the cervical nerve root at C6/7 in June 2003 which led to radiculopathy in the right arm and hand and some months later in the course of physiotherapy treatment similar symptoms developed in the left arm and hand. This was an aggravation of the original injury. He continues to suffer ongoing impairment in both hands.
·The bilateral radiculopathy with ongoing sensory disturbance in both hands is the result of cervical disc prolapse or nerve root compression at C6/7 with subsequent irritation of the nerves.
·The applicant suffers from pre-existing degenerative changes of the cervical spine, which are likely to have caused some discomfort in his neck and shoulders from time to time.
·On Monday 16 June 2003 the applicant experienced pain in his right shoulder while walking at lunchtime and then in the evening at the gym while doing hand weights and serving tennis balls.
·The applicant was largely involved in packing his office to move to new premises in the week commencing 16 June 2003. This involved some packing and lifting of heavy boxes.
·The applicant suffered some symptoms of discomfort in his shoulder and/or right arm. These symptoms persisted on Tuesday 17 June 2003 and were worse on Wednesday 18 June 2003. By Wednesday 18 June 2003 the pain was becoming more significant such that it interfered with his ability to work on the computer.
·The applicant commenced work early on the morning of 19 June 2003. At around 10.00am he advised a colleague that his shoulder was giving him trouble and that he was leaving work to go to a doctor's appointment.
·The applicant left work at around that time and attended an appointment with Dr Vuong. He did not mention to the doctor any incident at work that morning. The history as recorded by the doctor was that he was doing weights on the previous Monday and felt a twinge in his right shoulder and his complaint was of a painful right shoulder, which he could not flex above 90 degrees. The diagnosis at that time was of a shoulder injury, with the possibilities of tendonitis or bursitis to be considered.
·The applicant travelled back to the Next Generation gym in North Adelaide at around 11.50am that same morning after his medical appointment with Dr Vuong. It is not clear why he attended the gym after the doctor's appointment.
·The applicant continued to suffer from significant pain in his shoulder and right arm and he went to see a masseur, Ms Burgess, on the following day (20 June 2003). During his attendance at her rooms the applicant signed a form headed “Confidential Client Information”. The applicant does not recall signing this form.
·There is a history recorded on that form of the applicant hurting his right shoulder at the gym and that he was being sent to have an ultrasound of his right shoulder. Symptoms from his wrist up his arm are also recorded on the form. It is not clear from that form when the arm symptoms began. One could infer that the symptoms radiating to his arm predated the incident of 19 June 2003 and had been ongoing for several days.
·The applicant attended upon the duty doctor at the Family Practice Unit on Saturday 21 June 2003 as he was still in some pain and needed further pain relief. He did not mention the incident at work. It was recorded by the doctor that day that the onset of pain had been since Monday after weightlifting and tennis. The pain was described as being in the right neck and shoulder and becoming worse on the Wednesday which was spent working on the computer. Pain was described as being worse in the post aspect of the shoulder and medial to scapular and worse when lying on that side and with movements of neck and shoulder. It was noted that there was some radiation of pain down arm with paresthesias in all fingertips.
·The applicant attended once more upon the Family Practice Unit on 23 June 2003. He saw his usual doctor, Dr Watson. He continued to complain of radicular symptoms in his right arm. He made no mention of the incident that gave rise to the injury.
·On 24 June 2003 the applicant attended upon Dr Watson once more. The doctor's notes contain the first record of an injury at work on 19 June 2003. On that occasion the applicant told Dr Watson that he sustained an injury at work which occurred at 8.30am on 19 June 2003. He described lifting a heavy box of books and within half an hour “the pain in his right arm became worse and worse”. It is recorded in the notes “advised manager”.
·There is no record of the applicant advising the manager on 19 June 2003 of any injury arising from lifting a box of books on that morning at work. He did advise a colleague that he had shoulder problems and was going to the doctor.
·The applicant was off work as a result of this injury until 30 June 2003, and he then formally reported the incident to his employer on 1 July 2003.
·In January 2004 the applicant developed similar symptoms in his left arm while undergoing physiotherapy treatment. This was an aggravation of the initial injury.
consideration
49. Comcare's reconsideration of own motion rested on a report from Professor Reilly, a report from Dr Watson dated 23 May 2004 and a report from Ms Burgess. Professor Reilly and Dr Watson both maintain that if the history subsequently given by the applicant is accurate then the box lifting incident is the likely cause of the radiculopathy and the applicant's current condition. Mr North is of the view that, given the recorded medical history, the injury occurred on the Monday night at the gym and progressed during that week.
50. Comcare asks the Tribunal to draw assumptions adverse to the applicant from a number of matters. The applicant's failure to immediately report the incident at work, his failure to mention the box lifting incident at all for several days after the alleged incident, and from references in Ms Burgess’ notes and in Dr Waran’s notes to pain that he suffered on the Tuesday and Wednesday preceding the incident at work. He also attributed the gym incident as being the beginning of the problem to a number of medical advisers before his report of a box lifting incident to Dr Watson some 6 days after the alleged event.
51. Under s 62(1) of the Act the determining authority is able to reconsider a determination of own motion. As was pointed out by Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at p 667:
“The power of [a determining authority] to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees … A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. …”
52. In Lees v Comcare (1999) 56 ALD 84, the Full Court at p 92 commented as follows:
“This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
53. Four of the five elements as set out in Lees are satisfied in this case. The reconsideration of own motion has determined that the applicant has not suffered an injury within the definition of injury contained in s 4(1) of the Act (supra at paragraph 12). In other words, Comcare contends that the injury which the applicant sustained did not arise out of or in the course of his employment, nor was it an aggravation of a physical injury being an aggravation that arose out of or in the course of his employment.
54. The report of Dr Watson dated 23 May 2004, Ms Burgess' report of 20 June 2004 and the comment in Professor Reilly’s report of 4 May 2004 that “there was no specific incident described to with me at the onset of the arm pain” raised new issues for Comcare to consider and it was not unreasonable for the decision-maker to reconsider of own motion under s 62(1) at that point in time. In ReQuinn and Australian Postal Corporation (1992) 15 AAR 519 when referring to that particular section of the Act, the Tribunal said:
“In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change of circumstances.”
In this case the new evidence was sufficient on the face of it to justify reconsideration.
55. The Tribunal has had the benefit of hearing all the evidence.
56. A critical issue in this case is to determine when the cervical nerve root impingement occurred which led to the radiculopathy. Did it occur on the Monday night at the gym or on the Thursday morning at work?
57. Both of the medical specialists that gave evidence to the Tribunal were agreed that they would anticipate significant pain surrounding the precipitating event, that is the compression of the nerve root or the disc prolapse and this would be followed by pain progressing down the arm within 24 hours of that event.
58. Dr Watson and Professor Reilly are of the view that if the account now given by the applicant of a box lifting incident followed by the onset of very significant pain is correct, then the injury did occur on 19 June 2003 in the course of his employment.
59. The applicant gave evidence to the Tribunal of first experiencing a significant event involving “excruciating pain” and pain like he had never previously experienced, on the Thursday morning at work while lifting a box. He said that he had suffered twinges in his shoulder and neck in the days preceding the Thursday, but he was adamant that there was no significant pain prior to the Thursday morning.
60. The notes of Ms Burgess made the following day contain the following statement:
“Have felt a tingling from wrist up arm lateral side to back shoulder - had noticed couple times before.
Monday noticed it, by Tues night very sore.”
Although Ms Burgess was not called to give evidence Comcare has not challenged the veracity of her notes. Ms Burgess has not noted a box lifting incident on the Thursday, being the day immediately before the applicant saw her for the first time. Her notes suggest that radiculopathy may have been present in the right arm prior to the Thursday.
61. If that was the only evidence upon which Comcare had relied in making its redetermination, the Tribunal would have had some concern at its failure to call Ms Burgess to give evidence. Nevertheless there was other evidence available which supported Ms Burgess’ record of events. There was the history given by the applicant to other medical practitioners in the days following the event.
62. Memory can be unreliable and in this case the Tribunal is satisfied that the applicant has an inaccurate recollection of the events surrounding the injury. The Tribunal does not accept the applicant's evidence as to when the precipitating event occurred and when the radiculopathy began.
63. The history that the applicant gave to medical practitioners at the time of the event is important evidence. The Tribunal does not accept the applicant’s explanation that he simply failed to mention the significant event of 19 June 2003 to either Dr Vuong or Dr Waran or Ms Burgess in the days immediately following the injury because they only asked him when the pain began. His description to the Tribunal of the onset of sickening pain in his right arm, with the intensity of breaking an arm, is not something that one would expect a patient to overlook when presenting to a doctor immediately after that event and as a direct result of that event. He tells the Tribunal that he left work because of that event. Nevertheless he made no detailed report to anyone at work of this incident and he merely mentioned to a colleague that he was feeling discomfort with his shoulder and was going to see the doctor (statutory declaration of Steven Blandford).
64. The applicant gave evidence that he had to drive with one arm to the doctor on 19 June 2003 because his arm was so significantly disabled, and yet there is no mention of this in the medical notes. He told the Tribunal that he returned home immediately after collecting a prescription because he was in so much pain. Evidence produced by the applicant to establish his attendance at the Next Generation gym in North Adelaide on 16 June 2003 showed that he returned to the same gym on the morning of 19 June 2003 after seeing Dr Vuong. This was inconsistent with his initial evidence. There is a distance of some kilometres between Tea Tree Plaza and the gym, and travelling this distance to the gym to have a meal is not only contrary to the evidence that he first gave to the Tribunal about his movements that day, but is also inconsistent with him suffering the level of incapacity that he alleges that he was suffering as a result of an alleged precipitating event that morning.
65. The applicant was unable to give any satisfactory explanation of why he did not tell Dr Vuong at 11.00am on 19 June 2003 about an incident which he alleged occurred at 8.30am that morning, which was incapacitating and was the reason, on his account, that he went to Dr Vuong that day.
66. Dr Waran’s record of consultation on Saturday 21 June 2003 states that the onset of the pain was on the previous Monday after weightlifting and tennis with “pain in right neck and shoulder, got worse on Wednesday, spent the day working on the computer”. There is no mention of the box incident. The gym incident features as the precipitating event.
67. The Tribunal does not wish to impugn the integrity of the applicant who did present as a very straightforward and genuine person, but believes that his recollection of events is now faulty.
68. The Tribunal finds the contemporaneous medical records compelling, and in particular the references in the notes of Dr Waran and Ms Burgess. They indicate that the applicant was experiencing significant pain and symptoms related to an incident which occurred at the gym on 16 June 2003, at least two to three days before the incident at work on 19 June 2003. This is consistent with the precipitating event occurring on 16 June 2003.
69. In the circumstances the Tribunal is satisfied on all available evidence that the nerve root compression or disc prolapse which led to the radiculopathy occurred on the Monday evening, 16 June 2003, and gradually worsened over the week until it was causing such discomfort to the applicant that he went to see Dr Vuong on the Thursday morning. The Tribunal does not accept, nor has it been seriously contended, that there was an aggravation of the injury on the Thursday morning. There is nothing in the evidence, apart from the applicant's own evidence, that points to a box lifting incident occurring on the Thursday morning. For the reasons already referred to, the Tribunal found the applicant's evidence in this regard to be unreliable.
70. The Tribunal notes that the medical evidence was supportive of Glucosamine being a widely used and acceptable treatment for osteoarthritis and degenerative spinal conditions. Had the applicant been successful, the Tribunal would have had no hesitation in finding that Glucosamine comes within the definition of “medical treatment” as contained in s 4 of the Act.
71. In the circumstances the Tribunal affirms the decisions under review in applications S2004,272, S2005,62 and S2006/31.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)
Signed: ..............J Coulthard.......................................
AssociateDates of Hearing 19/20/21/24 July 2006
Date of Decision 9 October 2006
Counsel for the Applicant Mr A Rossi
Solicitor for the Applicant Moody Rossi & Co
Counsel for the Respondent Mr R Soulio
Solicitor for the Respondent Sparke Helmore
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