Kay Brown and Comcare
[2014] AATA 884
•28 November 2014
[2014] AATA 884
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0860
Re
Kay Brown
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 28 November 2014 Place Adelaide The decision under review is affirmed.
........... [Sgd] .........................................
Deputy President K Bean
CATCHWORDS
COMPENSATION - Commonwealth employees - Permanent impairment - Whether applicant’s impairment results from compensable injury - Applicant's impairment does not result from compensable injury - Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 7(6), 24, 27
REASONS FOR DECISION
Deputy President K Bean
28 November 2014
The applicant, Ms Brown, commenced work at Centrelink in 1990. On 5 December 2000, she fell off a desk whilst putting up Christmas decorations at the Murray Bridge office in South Australia. That incident was the subject of a claim for compensation dated 8 July 2002 in respect of ‘(L) sciatica, (L) 4/5 disc prolapse, disc surgery’.[1]
[1] Exhibit 2, T23/51-58.
On 22 November 2002, a Comcare delegate denied liability for that condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and that determination was affirmed upon reconsideration on 20 October 2009.
Ms Brown subsequently made an application to this Tribunal for review of that reviewable decision on 22 December 2009, and a hearing was held in that application in December 2011. However, at the resumed hearing on 16 December 2011, the parties advised the Tribunal that they had reached an agreement and would accordingly be filing terms pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The relevant terms of the Tribunal’s consent decision in that application were as follows:
In accordance with subsection 42C(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act):
1.the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to the parties; and
2.the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
3.the Tribunal notes that the parties have agreed that the applicant will pursue a claim for permanent impairment compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) with respect to an ‘aggravation of a pre-existing degenerative lumbar spine condition’ suffered on 5 December 2000 (the Injury); and
4.the Tribunal is satisfied that a decision in those terms is within the powers of the Tribunal and is appropriate to make.
Pursuant to subsection 42C(2) of the Act, the Tribunal:
1.sets aside the reviewable decision of the respondent dated 20 October 2009, and decides in substitution therefor that:
1.1under s 14 of the SRC Act, the respondent is liable to pay the applicant compensation for the Injury;
1.2under s 16 of the SRC Act, the applicant is entitled to payment of her reasonable medical expenses in relation to the Injury for the period 5 December 2000 to 5 June 2001;
1.3under s 19 of the SRC Act, the applicant has suffered incapacity as a result of the Injury between 5 December 2000 to 5 June 2001 and as such is entitled to compensation under this section; and
2.the respondent is to pay the applicant’s reasonable party/party legal costs and disbursements, to be agreed or taxed.[2]
[2] Exhibit 1, T4/12-13.
About five months later, on 30 April 2012, Ms Brown lodged a claim for permanent impairment in respect of ‘lower back injury’ sustained as a result of the incident on 5 December 2000.[3] On 21 December 2012, a Comcare Senior Review Officer affirmed a determination by Comcare dated 11 October 2012 which denied liability under ss 24 and 27 of the SRC Act.
[3] Exhibit 1, T6/19-29.
Ms Brown sought review of that reviewable decision on 27 February 2013, giving rise to these proceedings.
ISSUES
At the hearing before me, the parties confirmed that the quantum of Ms Brown’s permanent impairment is not in dispute. In other words, if the Tribunal finds that the injury she sustained on 5 December 2000 resulted in a permanent impairment within the meaning of s 24 of the SRC Act, the parties agree that the degree of permanent impairment is 23%.
However, the non-economic loss scores to be applied in determining any entitlement Ms Brown may have under s 27 of the SRC Act are not agreed. Accordingly, at the conclusion of the hearing, the parties were also asked to file further submissions about the non-economic loss scores that the Tribunal should apply in the event that it found that the respondent was liable to pay compensation under s 24.
As compensation is payable in respect of a compensable injury which “results in” a permanent impairment[4], it follows that the issues for my determination are:
(a)whether the injury suffered by Ms Brown as a result of her fall at work on 5 December 2000 resulted in a permanent impairment; and
(b)if so, what non-economic loss scores should be applied in the determination of compensation payable to Ms Brown under s 27 of the SRC Act.
[4] Section 24(1).
Issue (a) must also be addressed by reference to subs 7(6) of the SRC Act, which provides as follows:
An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
I will proceed to address the first of these issues, before turning to the second issue if it arises.
DID THE INJURY SUSTAINED BY MS BROWN ON 5 DECEMBER 2000 RESULT IN A PERMANENT IMPAIRMENT?
Consistently with the Tribunal’s consent decision referred to above, in the context of this matter the respondent contends that the compensable injury suffered by Ms Brown did not “result in” permanent impairment, as the effects of the injury had ceased by 5 June 2001. However, Ms Brown contends that the effects of her injury were ongoing, and have made a sufficient contribution to the permanent impairment she now suffers, such that that permanent impairment can be said to have “resulted from” the injury. The resolution of this issue therefore depends to a large extent on my ultimate findings based on the factual and medical evidence as to whether and when the effects of Ms Brown’s compensable injury ceased.
I will first outline the salient aspects of Ms Brown’s evidence, before turning to the medical and other evidence.
Ms Brown’s evidence
Ms Brown’s statement
In her statement,[5] which was also tendered at the previous hearing in 2011, Ms Brown explained that prior to her compensable injury in 2000, she had suffered from a bruised coccyx and injury to the base of her spine in 1996 when a castor chair she was sitting on turned over while she was moving on it to obtain some forms at work. However, this injury was not the subject of a compensation claim.[6] She also said:
On occasions prior to December 2000 I suffered from mild backache usually caused by a specific task/exertion however this was generally of a temporary nature and was not a problem and was usually fixed by rest and or massage. None of this backache or tenderness was comparable to the greatly increased level and intensity of pain after December 2000.[7]
[5] Exhibit 1, T8/92-108.
[6] Exhibit 1, T8/94 at [11].
[7] Exhibit 1, T8/95 at [16].
Ms Brown also acknowledged that she was obtaining treatment, including from a Remedial Therapist, Mr Chris Wood, prior to her December 2000 injury:
In August 2000 I had further appointments ... with Chris Wood for massage for back, shoulders and neck. Chris Wood wondered whether I had any problems with my back and as a result referred me to my GP to get an x-ray of my back to see whether there were any underlying problems.[8]
...
That x-ray was performed on 29th November 2000 at Murray Bridge Hospital.[9]
[8] At [20].
[9] At [22].
Ms Brown then recounted the incident on 5 December 2000 and continued:
The fall was “heavy” and I did not immediately get up and remained on the floor. ... I did not immediately take any time off work as a result of the fall as although I thought the pain was increased by comparison with other previous occasions of backache I thought that it would settle with time and rest. After the fall I also felt a pain in my buttocks which I had not felt before.
On 6/12/2000 I attended at the Bridge Clinic ... this appointment had been previously booked to assess my x-ray. I advised Dr Peera of my fall that occurred the day before and was advised that it was probable that I had “bruised buttocks”.
...
On that occasion I explained to Dr Peera that my back was giving me problems and I described my symptoms. At that time I was suffering back and buttocks pain, but was not complaining as I thought it would simply take some time to come good as it had previously.[10]
[10] Exhibit 1, T8/96 at [24]-[26].
In her statement, Ms Brown went on to describe her ongoing buttock and back pain and management of it as follows:
On 12th January [2001] I was experiencing pain in my buttock. I noted in my Centrelink diary “I have a pulled muscle in my bum”. On that day I had a day off as a result of the pain.[11]
...
[On 28 February 2001] … I sat in court all day and described my symptoms as though I had a pebble under my posterior. I wrote a note in my diary to that effect at that time.
...
At this stage I have (sic) been treating my back condition because of the pain in my buttocks and lower back, using Panadol, heat bags and hot water bottles and taking Aspalgin and ACT III, an anti-inflammatory.[12]
[11] Exhibit 1, T8/97 at [34].
[12] At [38] and [40].
Ms Brown’s statement also records the periods of leave she had taken at the time “in order to give [her] back a chance to recover”[13]. She stated that she had difficulties with pain in her buttocks after driving to Berri on a secondment in June 2001 and “was experiencing a pinching in [her] back when [she] was walking”[14].
[13] At [41]
[14] At [44].
In August 2001, Ms Brown returned to see Mr Chris Wood at the Kinesiology and Remedial Massage Centre and also commenced seeing a chiropractor, Dr Stuart Clarke, for her back pain. In September 2001, she took sick leave because “[her] back was so sore after treatment by the Chiropractor”[15]. She also noted in her diary “can hardly walk pain in back down legs”[16].
[15] At [58].
[16] At [59].
Ms Brown stated that “Between Mid September 2001 and mid October [she] attended more than a dozen consultations on account of [her] back pain”[17]. In her statement, Ms Brown noted her attendances on Dr Altmann at the Bridge Clinic in November 2001, stating:
... I was telling him that there was something wrong with my back and he was responding that I was under stress and that the pain was the emotional stress.
...
I continued to complain to Dr Altmann about my back pain, however, he appeared to take the view that I had no physical complaint and that my pain came from my distress which was all in my head.[18]
However, on 3 December 2001, Dr Altmann referred Ms Brown to a physiotherapist, Ms Kerrie Thesinger, apparently “as a result of [Ms Brown’s] continuing pain and complaints”.[19]
[17] At [60]
[18] Exhibit 1, T8/103 at [65]-[66].
[19] At [70].
Ms Brown subsequently travelled to Bali for a holiday. When she was due to return in January 2002, she “dosed [herself] up with the painkillers for the trip however despite medication [she] experienced back pain”[20]. Upon her return to Australia, she attended at Ashford Hospital Emergency Clinic on 9 January 2002, where she was prescribed painkillers, given an injection into her spine, and had x-rays done.[21] She attended a consultation with Dr Altmann on 15 January 2002 and was referred to Ms Thesinger for physiotherapy.
[20] At [75].
[21] Exhibit 1, T8/104-105 at [75]-[77].
On 21 March 2002, Ms Brown saw an orthopaedic surgeon, Dr Morrison. In her statement she said that was given an injection which “increased the level of pain”[22]. She says she also had a spinal block injection in April 2002. Shortly after, on 9 May 2002, Ms Brown had surgery on her back.[23]
[22] At [87].
[23] Exhibit 1, T8/107 at [86]-[88].
Ms Brown’s oral evidence
Ms Brown was cross-examined about the contents of her statement at the previous hearing before a differently-constituted Tribunal in December 2011. The transcript of that hearing was also tendered into evidence in these proceedings[24] and supplemented by some further oral evidence from Ms Brown at the hearing before me.
[24] Exhibit 3.
Under cross-examination during the hearing before me, as well as during the previous hearing, Ms Brown conceded that she had consulted her general practitioner about back pain as early as 1990, when she complained of a sore back for five days. She agreed that this contradicted her earlier evidence that her back pain prior to the fall would only last for one or two days.[25] She also accepted that she had experienced buttock pain prior to the fall[26], and that she had reported injuring her back at work twice during the 1990s, with one of those incidents being the fall from the chair in 1996.[27]
[25] Exhibit 3, p33; Transcript, 25 June 2014, p14.
[26] Transcript, 25 June 2014, p17.
[27] Transcript, 25 June 2014, p9.
Ms Brown also acknowledged taking medication for her back from time to time during the 1990s.[28] She further acknowledged that prior to the fall on 5 December 2000, she had seen her GP on 21 November 2000 complaining of back pain, which led him to organise an x-ray. She went on to acknowledge that she had had a month-long episode of back pain in 1995[29], and had had back pain “off and on” during 2000, including a period of about four weeks between August and September 2000.[30] She further acknowledged having taken medication including Feldene, Panadeine Forte, Voltaren Rapid and Capadex prior to 2000. She agreed that evidence she had given at the last hearing that she had not taken “heavy” medication until after the fall in December 2000 was “false”.[31]
[28] Transcript, 25 June 2014, p9.
[29] Transcript, 25 June 2014, p15.
[30] Transcript, 25 June 2014, p15.
[31] Transcript, 25 June 2014, p17.
When it was put to her that her symptoms came and went after the fall, Ms Brown stated:
The pain in my buttocks was there. The pain in my lumbar spine would have gone and come back. I say that the pain in my buttocks is something that I had never experienced before and to (sic) gradually got worse and worse until I had the pain in my back, down my legs, in my bum. Nobody could explain why I had a pain in the buttocks, so I sought out my own treatment through the heat bags and - et cetera, to - to chiropractors, to kinesiologists, to try and fix this pain. It was different than all my other back pains and I can't tell you that enough.[32]
Ms Brown also acknowledged that she had suffered aggravations of her back pain in 2001, including as a result of falling off a chair in February, from chiropractic treatment in August, and exercising on stairs in October.
[32] Transcript, 25 June 2014, pp23 – 24.
With respect to the fall on 5 December 2000, and her attendance on Ms Thesinger in early 2002, at the previous hearing Ms Brown responded to the questions asked of her as follows:
And did you tell her that you fell off a desk at work in December 2000, yes?---Yes.
But that you did not experience back pain until three months later when you fell backwards off a chair?---It got worse, yes.
Just one at a time. Did you, in fact, tell Ms Thessinger (sic) that you did not have pain after the incident in December 2000 for three months?---Not the sort of pain that I was experiencing, no.
I’ve got to put this carefully. That you fell off a desk at work in December 2000 but did not experience back pain until three months later?---If that’s from the notes you’ve got.
That’s what you told her; you accept that’s what you told her, then?---Must have.[33]
At the hearing before me, Ms Brown maintained that she “must have” said this to Ms Thesinger[34], and that she would not have told Ms Thesinger that, unless she had had a period “pain free of some months or some extended period of time”.
[33] Exhibit 3, p53.
[34] Transcript, 25 June 2014, p18.
At the hearing before me, counsel for the respondent, Mr Krupka, also put to Ms Brown that she had not given the doctors a history of her back pain prior to the fall in 2000. She agreed that she had only sought medical notes from her general practitioner and Mr Wood for the period after the fall, but denied that she was trying to hide her previous back problems.[35]
[35] Transcript, 25 June 2014, p35.
Ms Brown also agreed that the history she had given one of the orthopaedic surgeons, Dr Fry, about having leg pain two months after the fall was not correct, and said that she “got it wrong by a couple of months”.[36] She stated that she believed she was having leg pain in November 2001[37], and that she was taking medication by March or at the latest August 2001[38], notwithstanding the absence of documentary evidence of medication being prescribed for her back pain until October 2001. She agreed that she essentially managed her back symptoms herself, without medical assistance, in 2001.[39] Ms Brown also conceded that, following her return from Bali in early 2002, she did not mention the fall in December 2000 to any of the practitioners she saw[40] (with the exception of her physiotherapist, Ms Thesinger) until April 2002 when she mentioned the fall to Dr Meegan.
[36] Transcript, 25 June 2014, p36.
[37] Transcript, 25 June 2014, p19.
[38] Transcript, 25 June 2014, p19.
[39] Transcript, 25 June 2014, p23.
[40] Transcript, 25 June 2014, p30.
Under questioning from the Tribunal, Ms Brown indicated that she had had low back pain as well as buttock pain in 2001 though, “… not as often, but if I had been sitting for a long time, yes”.[41] She went on to say:
The buttock pain was the first initial thing that happened after the accident that I noticed and I just thought to myself, "Well, you can't - there's no muscles there. There's nothing there. How can I have a pain in the buttocks (indistinct)?" And when I drove to Berri in February in the company car to the Berri office, I found that my back lumbar was hurting because I was sitting in the chair, and also I had taken some sewing to do with me but I couldn't do it because every time I sat on a chair I would get this pain in my buttocks, and it - all I can say is it started off like a pea was in your buttocks and then it has got gradually worse and worse, and now it feels like it would be a squashed rock in your buttocks and that pain was with me I would say all the time. Even the operations haven't helped with that.
Ms Brown also said that she had periods of time in 2001 when she did not have low back pain, or when it was much reduced, but after the fall “the buttocks pain never went away”.[42] However, she said later that she always had the buttock pain and low back pain together.[43]
[41] Transcript, 25 June 2014, p48.
[42] Transcript, 25 June 2014, p49.
[43] Transcript, 25 June 2014, p50.
The medical evidence
I have also had the benefit of reports and oral evidence from three orthopaedic surgeons, Doctors Osti, Gibberd and Fry. Dr Osti is Ms Brown’s treating orthopaedic surgeon, whereas Doctors Gibberd and Fry have provided medico-legal opinions to the respondent. Doctors Osti and Fry gave evidence concurrently at the hearing in person, whilst Dr Gibberd gave evidence separately by telephone.
In the event, it became clear during their oral evidence that there was a large measure of agreement between all three doctors. All of the doctors agreed that the permanent impairment suffered by Ms Brown was a result of the disturbance, deterioration, protrusion and ultimate prolapse of her L4/5 lumbar disc. Accordingly, they also agreed that the fall of December 2000 could be considered to have played a role in her current permanent impairment only if it in some way contributed to the protrusion and ultimate prolapse of her L4/5 disc.
There was also a large measure of agreement between the doctors as to what they would have expected the subsequent history to be if Ms Brown had in fact in some way permanently injured or affected her L4/5 disc in the December 2000 fall. All of them agreed that although the precise presentation would depend on exactly what had happened to the disc (as well as other factors), they would have expected to see more or less immediate symptoms which continued and increased, with steady deterioration in Ms Brown’s ability to cope with these symptoms. They all agreed that any significant period of no symptoms or vastly reduced symptoms was inconsistent with the fall having damaged or affected Ms Brown’s L4/5 disc.
All three doctors further agreed that prior to the fall in December 2000, Ms Brown had established degenerative disease in her spine which was already causing her significant symptoms, albeit not on a continuous basis. They each agreed that against this background, it was possible that a fall of the kind Ms Brown suffered could have in some way disturbed the L4/5 disc in such a way that it contributed to the problems with that disc which became apparent some time later. For example, they essentially agreed that it could have caused a tear in the annulus surrounding the disc, or the extension of an existing tear, and even potentially led to the beginnings of some extrusion of disc material. However, they all agreed that if this had occurred in such a way as to have ongoing consequences, they would have expected Ms Brown to have continuous and gradually worsening symptoms, and to have sought medical assistance. Further, they all also agreed that the onset of true sciatica, that is neuropathic pain in one leg, was a reliable indicator of disturbance of the disc, and onset of pain of that nature provided a good indication as to when the disc began to protrude.
As to the buttock pain complained of by Ms Brown, again there was significant agreement between the doctors as to how this should be interpreted. Each doctor essentially agreed that it if Ms Brown felt this pain for the first time after the fall and the pain was only in her left buttock, it was possible that this represented the beginnings of what would later become true sciatica, due to disturbance of her L4/5 disc. However, they also agreed that any buttock pain could have a number of other possible causes, including local bruising, and that it could also be referred pain from her lumbar spine, rather than neuropathic pain.
All three doctors agreed that in determining whether Ms Brown’s L4/5 disc had been damaged in the fall, consideration of the history of her symptomatology was critical. They broadly agreed that the more continuous and severe the symptoms following this fall, the more quickly they progressed after the fall, the more different they were from the symptoms beforehand, and the more closely related they were to symptoms of “true” sciatica, the more likely it was that there had been disturbance of the disc in the fall. They all broadly agreed that objective indications such as attendance upon and complaints to doctors, time away from work, and the need to take medication, were the best indications of the level of symptomatology Ms Brown was experiencing at any given time. There was also broad agreement between the doctors that if Ms Brown’s L4/5 disc was not in any way damaged or disturbed in the fall, or was affected only in a very minor way and subsequently healed, then it was likely that the subsequent disc problems could not be attributed to the fall.
At one point in his evidence, Dr Osti summarised his opinion as follows:
You don’t have to have a disc protrusion to have buttock pain. So, buttock pain should not be interpreted as a proof that this woman had a disc protrusion when she had the – although she may have. My point was that buttock pain can be significant but in order for the buttock pain to be significant you have to, for the purpose of this medico-legal exercise, you have to have this continuity of symptoms and so if you can prove to us that there is no continuity and this woman actually never had leg pain for a year and a half and then developed back pain almost a year and a half after the fall, then, to say, no definitely the fall was the one that caused the leg pain, I think is pushing it a bit.
…
However, if the scenario is presented to us, to both of us and I’m sure Peter will agree, that this woman had a fall that triggered back and buttock pain and that at no stage, for a period of at least 14 months, there is no objective evidence that Mrs Brown had sciatic symptoms and then she developed sciatic symptoms with her new symptoms 15 months’ later linked to a disc protrusion. I think you are entitled and justified on medical grounds to conclude that her sciatica symptoms are not causing the link to the fact of the fall and I think we all agree on that.[44]
[44] Transcript, 26 June 2014, pp80 - 81.
Doctors Osti and Fry also agreed that if Ms Brown did not experience back pain until about three months after the fall in December 2000, then this “cut” the causal chain and made it improbable that there was any link between the fall and the subsequent disc problems. They agreed this would be the case even if the period without back pain was a lengthy period of say one or two months.[45]
[45] Transcript, 26 June 2014, p87.
Dr Osti added:
No, I agree and the reason is not just there is two or three months because again it’s not some sort of or (sic) nothing type of issue. It’s because obviously as far as we know when she fell she did not fracture her spine and she had already degenerative changes. So, we’re dealing already with a slightly grey type of area and we know that people get sciatica irrespective if they fall off a table or the chair or whatever. So, in my view, if you are trying to leave (sic) this degenerative condition to a compensable injury there has to be a relatively black and white history, the less black and white the history is. For example, there’s very substantial gaps where she appears to be totally asymptomatic or the inconsistency in her symptoms. That she didn’t have leg pain before and then all of a sudden a year and a half later she develops symptoms. I think you are entitled then to doubt the relevance of the fall.[46]
[46] Transcript, 26 June 2014, pp87 – 88.
Accordingly all three doctors effectively agreed that the ultimate determination of whether there was any causal connection between the fall and the L4/5 disc problems which clearly developed later, depended to a very large extent on what conclusions I ultimately reached as to what Ms Brown’s symptoms actually were between the date of the fall in December 2000 and the emergence of the disc protrusion and prolapse in late 2001/early 2002.
With a view to addressing that issue, I propose to next review the contemporaneous records of Ms Brown’s back, buttock and leg symptoms, in chronological order.
The contemporaneous documentary evidence
I have set out in the table below the most relevant contemporaneous records of Ms Brown’s complaints of back, buttock and leg symptoms:
Date Source Quote/Summary 8 January 2001 Incident Report (Ex 2, T4/12) “Kay sought advise (sic) from her local GP. Was sore for a few days later.” 12 January 2001 Applicant’s work diary notes (Ex 1, T8/97) “I have a pulled muscle in my bum” 28 February 2001 Applicant’s work diary notes (Ex 1, T8/98) “...symptoms as though I had a pebble under my posterior” 17-23 June 2001 Applicant’s work diary notes (Ex 1, T8/99) “...back was hurting and pinching when I walked” 6, 9, 16 August 2001 Kinesiology and Remedial Massage Centre notes (Ex 11) [Somewhat illegible]. Entry of 9 August suggests “...very sore” 6 September 2001 Applicant’s work diary notes (Ex 1, T8/101) “My back is killing me. I am not sure whether this guy is making me better or worse.” 7 September 2001 Applicant’s work diary notes (Ex 1, T8/101) “Can hardly walk pain in back down legs. Taking pain killers.” 8 September 2001 Applicant’s work diary notes (Ex 1, T8/101) “sore shoulders and back” 23 October 2001 Bridge Clinic GP notes (Ex 6, p30) “LBP [lower back pain] C +/+ voltrapid/capadex rep celm” 5 November 2001 Bridge Clinic GP notes (Ex 6, p30) GP records Applicant’s comment: “there was something physically wrong with me”. 9 January 2002 Occupational Therapy Assessment of Ms Margaret Macdonald (Ex 2, T6/14) “12 month history of back pain”. 9 January 2002
9 January 2002
Ashford Hospital notes (Ex 6, p305)
CT scan (Ex 2, T7/15)
“Back L5 – chipped – spasms in morning – continues all day – sleepless nights. Painkillers ++.
Exacerbated with exercise on stairs (3 mth duration). Returned from Bali last week.”Indicates disc bulge
18 January 2002 Ms Thesinger’s report dated 12 March 2002 (Ex 6, p563) “... she was in diabolical trouble with constant left lumbar pain, intermittent left groin pain and aching up her spine to her scapula. She fell off a desk at work in December 2000, but did not experience back pain until 3 months later when she fell backwards off a chair. Her back has deteriorated since.” 1 February 2002 Mt Barker Hospital notes (Ex 6, p335) “Chronic back pain – scans done. Ashford Hosp recently – disc bulge. Appt Dr Morrison’s 14 March 2002. Exacerbation since November...” 14 March 2002 Dr Morrison’s notes (Ex 6, p558)
Dr Morrison’s report of same date (Ex 6, p567)
“1 year of LBP [lower back pain] – gradual onset – came and went. Tried massage. No leg pain. Walking limited. Jan – in Bali – pain worse. Emergency in Jan. Now, off work 3 weeks. Using Voltaren Panadeine Forte. LBP - esp with sitting, walking. [diagram indicating tender left buttock]. SLR 90° = 90°. No neuro signs. CT: spondylo – no slip. 4/5 disc ‘bulge’.”
“On examination she is very tender to the left of the midline at L5-S1 and has reproduction of pain with attempted spinal extension rather than flexion. Straight leg raising is full. ...”
19 March 2002 Mt Barker Hospital notes (Ex 6, p336) “Saw specialist 4/7 ago – aggravated back pain.” 3 April 2002 Ashford Hospital notes (Ex 6, p279) “New patient admitted to Mitcham Ward with sciatica. Pain began 2 weeks ago.” 17 April 2002 Handwritten report of Dr Morrison (Ex 2, T10/22). “This is to confirm that this lady has (L) mild sciatica.” 19 April 2002 Mt Barker Hospital notes (Ex 6, p336) “L4/5 disc prolapse on MRI. ... Also pain severe – sciatica (L) leg”
Analysis
Having reviewed the contemporaneous records in light of the medical evidence, I have concluded that the following matters are significant:
·The first contemporaneous record of buttock pain is on 12 January 2001, or a month after the fall, with another record over a month later, on 28 February 2001;
·The first record of a complaint of back pain occurs more than six months after the fall, and is in the form of a note in Ms Brown’s diary;
·Ms Brown first seeks treatment for back pain after the fall in August 2001;
·The first reference to pain in the legs occurs on 7 September 2001, and the reference is to “legs” rather than “leg”;
·There is a relatively continuous history of steadily worsening symptoms in the period from September 2001 until early 2002, when Ms Brown’s L4/5 disc problem was discovered;
·The history from September 2001 until January 2002 bears a striking resemblance to what all doctors indicated they would expect to see following damage to a disc of the kind which could lead to a disc protrusion; and
·The history from December 2000 through until mid-August 2001 does not contain the elements which all doctors agreed they would expect to see if Ms Brown’s L4/5 disc had been damaged in the fall of December 2000.
In addition, I note that whilst she apparently gave Ms Macdonald a “12 month history of back pain” in January 2002, Ms Brown did not dispute the fact that she told Ms Thesinger on 18 January 2002 that she had not experienced back pain until three months after the December 2000 fall, and essentially agreed that she would not have said that unless it was her recollection at the time. I note that all of the doctors, but Doctors Fry and Osti in particular, gave evidence to the effect that a significant pain-free or symptom-free period would essentially break the “nexus” or chain of causation between the fall of 2000 and Ms Brown’s disc problems which became apparent in early 2002. I also note there is no documentary evidence of Ms Brown requiring time away from work due to back or leg symptoms until 2002.
As against this, I note that Ms Brown claimed in her evidence that she was taking prescription medication for back pain by August 2001 at the latest (being medication prescribed for her husband). She also gave evidence that she had pain in her “buttocks” after the fall which she had not had before, and this continued from that time.
However, I must also have regard to the fact that Ms Brown’s oral evidence at the hearing before me was given over 13 years after the fall and I consider it unrealistic to expect her to have a good recollection now of exactly what her symptoms were in the 12 months after that fall. There were also a number of inconsistencies between aspects of Ms Brown’s evidence, for example between her statement and her oral evidence, some of which she acknowledged. There were also inconsistencies between the histories she gave to different practitioners. These inconsistencies may well be explained by the lapse of time since the relevant events. However, I consider that the contents of the contemporaneous records give a more reliable indication as to what Ms Brown’s symptoms were immediately following the fall and in the 12 months thereafter.
Having carefully considered those records in light of the guidance provided by the doctors, and noting the matters I have specifically set out above, I have ultimately concluded that, on balance, I am not satisfied that the fall of December 2000 resulted in any damage to Ms Brown’s L4/5 disc which contributed to the disc problems which subsequently became apparent in early 2002. Whilst it is not strictly necessary for me to determine this, doing the best I can on the material available, I consider that the evidence points toward the problems with Ms Brown’s L4/5 disc having their onset in around August 2001, around the time she sought treatment from Mr Wood and Dr Clarke. The evidence suggests that Ms Brown’s back symptoms steadily worsened from that time onwards, and she appears to have developed some form of leg pain, possibly involving only her left leg[47], in August or September 2001. Her symptoms subsequently continued and worsened, culminating in her presentation to Ashford Hospital in January 2002, following which her disc bulge was discovered.[48]
[47] Exhibit 3, pp18 - 19.
[48] Exhibit 2, T7/15.
In reaching this conclusion, I have of course considered whether Ms Brown’s complaints of pain in her “buttocks” represented symptoms resulting from disturbance of her L4/5 disc and were in effect the beginning of what later became “true sciatica”. However, on balance, I have concluded that having regard to Ms Brown’s description of those symptoms, the fact that much of her evidence about these symptoms was given many years after the relevant events, and also the time it took for those symptoms to be superseded by symptoms of “true” sciatica, Ms Brown’s “buttocks” pain was not caused by disturbance of her L4/5 disc in the fall, but rather was due to one of the other possible causes described by the doctors, most likely referred pain rather than neuropathic pain.
As I have concluded that there was no relevant damage to Ms Brown’s L4/5 disc sustained as a result of her fall in 2000, it follows that, if the fall had not occurred, she would still have proceeded to have increased symptoms in late 2001 and would have suffered the disc bulge and subsequent protrusion requiring surgery in May 2002 as a consequence of her disc degenerative disease. In other words, even if the fall had not occurred, Ms Brown would have suffered the degree of permanent impairment which she currently suffers and, having regard to the terms of subs 7(6), it follows that that permanent impairment, which would have eventuated regardless of her compensable injury, is not compensable.
As I have concluded that the permanent impairment which Ms Brown undoubtedly suffers is not compensable, I have therefore decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........ [Sgd] ......................................
Associate
Dated 28 November 2014
Dates of hearing 25 – 26 and 30 June 2014 Date final submissions received 10 July 2014 Counsel for the Applicant Mr S Cole Solicitor for the Applicant Mr P Allen Counsel for the Respondent Mr B Krupka Solicitors for the Respondent Australian Government Solicitor
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