Kelly and Comcare
[2005] AATA 942
•27 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 942
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2003/159
GENERAL ADMINISTRATIVE DIVISION ) Re JUDITH RAE KELLY Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date27 September 2005
PlaceHobart
Decision The Tribunal affirms the decision under review.
..............................................
Deputy President
CATCHWORDS
Compensation – Commonwealth employee - whether onset of pain in 2003 caused by injuries suffered in fall at work in 1993 – whether “aggravation” – whether causal connection between fall at work and onset of pain – degeneration of spine – conflicting medical evidence – burden and standard of proof – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 – ss4(1), 60, 62, 64
Lees v Comcare (1999) 56 ALD 84
Tippett v Australian Postal Corporation (1997) 27 AAR 40
Bessey v Australian Postal Corporation (2003) AATA 127
Holbrook and Australian Post Corporation (1993) 5 ALN N446
Ladic and Capital Territory Health Commission (1982) 5 ALN N60
Briginshaw v Briginshaw (1938) 60 CLR 336
Kirby and Collector of Customs (1989) 20 ALD 369
Field v Australian Postal Corporation [2003] AATA 1036
Robertson v Comcare [2002] AATA 1259
Roe v Comcare [2003] AATA 126
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
27 September 2005 The Hon R J Groom (Deputy President) INTRODUCTION
1. This is a claim by the applicant, a Commonwealth employee, for compensation following an episode of “extreme pain” in the lower back suffered on 28 January 2003 and for a period after that date.
2. Over nine years earlier, on 19 April 1993, the applicant fell heavily on a polished floor during working hours and suffered “bruising to right wrist, shoulder, ankle, thigh and cervical spine”. She was off work for a period of some eight days and successfully claimed compensation for her injuries. The basis of the present claim by the applicant is that the injuries sustained in her fall in 1993 caused the onset of extreme pain in 2003.
3. In addition to the fall at work in 1993, the applicant suffered other compensable injuries during her employment in the Department of the Senate, including two claims for repetitive strain injuries (RSI) in 1994 and 1998.
4. Comcare ceased making compensation payments for the applicant’s various work related injuries in June 1997. On 16 February 2003 she lodged a fresh claim for rehabilitation and compensation stating that her injury was first noticed “on waking early morning” on 28 January 2003.
5. On 19 March 2003 Comcare considered the applicant’s claim and determined that she was not entitled to compensation. On 9 April 2003 the applicant sought a reconsideration of that determination. On 25 August 2003 a review officer affirmed the determination of 19 March 2003, but also decided to “… remit this matter to the claims manager for reconsideration under your previous claim for `bruising to right wrist, shoulder, ankle, thigh and cervical spine’”.
6. On 21 October 2003 the applicant applied to the Tribunal for a review of the decision of 25 August 2003.
7. The hearing of this application was held in Hobart on 11, 12, 13 and 26 July 2005. Mr John Avery appeared for the applicant and Mr Brian Morgan for the respondent. The applicant and three medical witnesses Dr Michael Madden, Dr Garth Eaton and Dr Tim Stewart gave oral evidence. The “T” documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and a number of additional medical reports and other documents were received into evidence.
The Legislation
8. Section 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) relevantly provides as follows:
“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.” .....
9. Section 60 of the Act defines “reviewable decision” as follows:
“reviewable decision means a decision made under subsection 38(4) or section 62.”
10. Section 62 of the Act relevantly 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.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority—that Commonwealth authority.”
11. Section 64 of the Act relevantly provides:
“Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant…”.
The Issues
12. The principal issues to be considered in this application are as follows:
(1) What is the proper scope of this review?
(2) Was the episode of pain in 2003 an “aggravation” of the injuries suffered in the fall at work in 1993?
(3) Was there a causal connection between the episode of pain in 2003 and the fall at work in 1993?
The Scope of this Review
13. Mr Morgan for the respondent contended that this review should be limited to a consideration of whether or not the episode of pain in 2003 was an “aggravation” of the injuries suffered in 1993. The reason for this, he argued, was that in the reconsideration of 25 August 2003 the review officer concluded the “aggravation” question but remitted the remaining issue, namely whether there was a continuation of the 1993 injuries, back to the claims manager for further consideration.
14. It is evident from the written reasons supporting the original determination of the 2003 claim that the officer involved considered both the question of aggravation, and also whether the injuries suffered on 19 April 1993 were continuing. She stated in her reasons as follows:
“In summary, I am not satisfied that the injury you sustained on 28 January 2003 arose out of or in the course of your employment. I am also not satisfied on the balance of probabilities that the injury sustained on 28 January 2003 is related and therefore an aggravation of the condition sustained on 19 April 1993. There is no evidence before me to substantiate your claim that the condition suffered on 19 April 1993 is continuing.”
15. The decision on the reconsideration of 25 August 2003 also dealt with both the issue of aggravation and also whether there was any relationship with the 1993 fall. The first issue was rejected and the second was remitted for further consideration by the claims manager, thus causing additional delay and uncertainty for the applicant until that element of the claim was again rejected on 5 January 2005. Consequently there is a reviewable decision on both issues and a proper basis for an application to this Tribunal under s64 of the Act. This application is unlike that considered in Lees v Comcare (1999) 56 ALD 84. In that case an entirely new issue was raised which had not, in any sense, been the subject of reconsideration under s62 of the Act.
16. The Tribunal therefore finds that this review is not limited to the issue of aggravation but that it can and should properly consider whether the occurrence of pain in January 2003 was related in any way to the fall at work in 1993.
Was the Episode of Pain in 2003 an Aggravation of the Applicant’s 1993 Injuries?
17. Mr Avery for the applicant contended that the episode of pain in 2003 was either an “aggravation” of the applicant’s 1993 injuries or that it was a continuation of those injuries.
18. Although questions were raised about the applicant’s credibility the Tribunal does not find that she was dishonest. The applicant did, however, reveal an unusually strong belief that any physical problems she subsequently had were a result of her fall in 1993. Though no doubt genuine, the Tribunal, after carefully considering all of the evidence, is satisfied that belief is not well founded.
19. The applicant gave a somewhat revealing answer when asked in oral evidence why she didn’t lodge a claim for compensation when she was notified in 1997 that her file had been closed. She gave the following response:
“Well, basically I thought that – at that stage I knew that I had a real problem. Grizzling over the same ground wasn’t going to prove anything. We had to wait for something else to be evident that we could work with”.
20. Some aspects of the evidence do cause the Tribunal concern. They include the sudden cancellation, after the onset of pain on 28 January 2003 of an arranged appointment to see a physiotherapist Miss Maureen Bailey on 29 January 2003. Also, despite suffering “extreme pain”, ten days elapsed before the applicant consulted her general practitioner Dr Michael Madden. Certainly at the hearing the applicant endeavoured to explain why she cancelled the appointment and gave reasons for the delay in seeking medical assistance. Despite misgivings about those aspects of the evidence, the Tribunal is satisfied that the applicant did suffer an episode of pain on or about 28 January 2003 and that ten days later she attended Dr Madden, not only for treatment but also to use that opportunity to obtain a workers’ compensation certificate for the purpose of her subsequent claim.
21. The Tribunal therefore finds that an episode of pain did occur on or about 28 January 2003 and for a period of time thereafter. The immediate question is, however, was the pain the result of an “aggravation” within the definition of “injury” in s4(1) of the Act.
22. It was submitted on behalf of the respondent that any aggravation must itself be “… an aggravation that arose out of or in the course of that employment.” They are words in the Act and their meaning is plain. The pre-existing injury may or may not be work related, but to be compensable the aggravation itself must arise out of or in the course of the employment.
23. In this application there is an absence of evidence to support any contention that any aggravation which occurred on or about 28 January 2003 arose out of or in the course of the applicant’s employment. The evidence establishes that the applicant actually ceased work on 14 October 2002 and then commenced long service leave which continued until she finally retired from her position on 20 May 2003.
24. The applicant was asked in cross-examination about any activities she was undertaking at the time which may have caused the pain. She said:
“… I have thought about that many times and there is just nothing there that I can attribute to – it was just so ordinary. I wasn’t working. I was just doing daily things.”
25. The Tribunal is satisfied on the material before it that some unknown event occurred shortly before the onset of pain on 28 January 2003 and it was that event which actually triggered the onset of pain. That event clearly did not occur during the applicant’s employment which had concluded 14 weeks or so earlier.
26. There is therefore no evidence here that the pain returned or increased as a consequence of activities undertaken in the course of the employee’s employment. (See Tippett v Australian Postal Corporation (1997) 27 AAR 40)
27. It must be the employee’s activities at work that cause him or her to suffer pain more intensely (See Bessey v Australian Postal Corporation (2003) AATA 127 and Tippett supra).
28. There is no evidence of any relevant work related injury or aggravation at about the time of the onset of pain in 2003 or indeed at any other time except in April 1993 when the initial heavy fall occurred. The question as to whether the episode of pain in 2003 is related in some other way to the workplace accident in 1993 is fully considered in the following paragraphs of this decision.
Was there a Causal Connection Between the Episode of Pain Suffered by the Applicant in 2003 and the Fall at Work in 1993?
29. The applicant contends in the alternative that the episode of pain in 2003 was caused by the fall at work in 1993. Mr Avery submitted that the applicant had never made a complete recovery from her 1993 injuries and the onset of pain in 2003 was a direct result of those injuries which had arisen out of or in the course of her employment in the Department of Senate. In the Tribunal’s view this is the principal issue to be determined in this application.
30. This Tribunal in effect “stands in the shoes” of the original administrative decision-maker. There is no formal onus or standard of proof unless the specific legislation provides for it. In this application the relevant legislation is silent on the issue. The question of any onus of proof applying in Administrative Appeals Tribunal applications was discussed in Re Holbrook and Australian Postal Commission (1993) 5 ALN N46, where it was suggested as a matter of common sense “that he who asserts, or he who seeks a result, must prove.” That accorded with the view earlier expressed by Fox J in Ladic and Capital Territory Health Commission (1982) 5 ALN N60. Here the earlier workers’ compensation claim had ceased in 1997. The applicant lodged a fresh claim based on the episode of pain in 2003 and asserts a linkage between the 1993 fall and that pain.
31. Again, bearing in mind the administrative nature of the Tribunal’s proceedings, facts relevant to a decision are to be established to the Tribunal’s “reasonable satisfaction” (See Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J (as he then was) and also Re Kirby and Collector of Customs (1989) 20 ALD 369). In the absence of a legislated standard the Tribunal has consistently determined relevant facts on the “balance of probabilities” (see, for example, Field v Australian Postal Corporation [2003] AATA 1036, Robertson v Comcare [2002] AATA 1259 and Roe v Comcare [2003] AATA 126)
32. The Tribunal will now consider the evidence of the applicant and also medical and other evidence in order to determine whether it is satisfied to the requisite standard that there is a causal connection between the fall at work in 1993 and the episode of pain in 2003.
33. In her witness statement of 27 June 2005, which she attested to in oral evidence, the applicant stated as follows:
Statement of Judith Rae Kelly
“1. I am 51 [sic] years old and was born on the 10th day of February 1944.
2. I was employed as a public servant in the Department of the Senate, Parliament House, Canberra between 1987 and 2003.
3. On 19th April 1993, I suffered an accident at work whereby I slipped on the highly polished floorboards that link the Ministerial area and the Senate Committee Office. I handed [sic] heavily on my right side, causing pain to shoot through my right forearm, right shoulder, neck, right hip and right ankle.
4. As a result of the accident, I was taken to the Nurses Centre and given first aid treatment for a sprained ankle and injured shoulder. Accident Report No. 1947 was completed by Sr. Joanne O’Shea at that time. I was later informed by one of the attendants at work that white oil spray had settled on the floor around a pot plant near where I fell.
5. The following day I was unfit for work and consulted Dr David Wilson (now retired). He advised physiotherapy and referred my [sic] to Maureen Bailey, Physiotherapist at Griffith in the ACT. I believe I consulted Maureen Bailey the next day. At that time my neck was stiff, I was unable to look to the right, had difficulty negotiating movements and had a large bruise forming over my right hip. I also suffered nerve pain down the full length of my right leg, around the ankle and into my foot.
6. I notified Comcare of my injuries sin a Claim for Rehabilitation in
April 1993. In August 1994 [sic] Comcare accepted liability to pay compensation in respect of ‘bruising to right wrist, shoulder, ankle, thigh and cervical spine’ (claim number 4227/01). The file was closed in 1997.
7. I have experienced on going pain, associated with the 1993 injury, which continues until this day. In 1994 I experienced severe neck pain as well as right arm and shoulder pain, after prolonged use of computer equipment at work. This situation recurred in 1998. I have continued to receive medical attention and physio therapy treatment in relation to the 1993 injury.
8. On 14th October 2002 I commenced Long Service Leave, which continued until my retirement in 2003. On 28 January 2003 I woke up with extreme pain in my lower back, extending to the right hip and through the anterior thigh. I consulted Dr Michael Madden about this pain about one week later. He confirmed that the problem emanated from an L3/4 disc injury.
9. I was subsequently treated with traction and inferential treatment by Jac Cousin, of the Canberra Physiotherapy Centre in the ACT. This treatment, combined with specified exercises and medication was highly successful, but some of the nerve pain has recurred. At present I am receiving treatment from Robert Tindale, a spinal and musculo-skeletal physiotherapist in Armidale, NSW.
10. I continue to experience pain around the hip joint and posterior pelvis, and the nerve problem in my right leg. I also continue to experience numbness in my right foot. I am unable to sleep on right side at night due to the pain which I continue to experience.”
27/6/05
34. The applicant stated in her evidence that she was continuing to experience pain around the hip joint and posterior pelvis and had a nerve problem in her right leg and numbness in her right foot. She said “it dates from the fall” (Transcript p16). The applicant said the nerve problem was reduced considerably by a physiotherapist Mr Jac Cousin, but was “stirred again” as a result of an August 2003 motor vehicle accident. Under cross-examination the applicant said: “…. and I have always seen the 1993 fall as the precipitation of – or exposing me to further injury”. (Transcript p55).
35. There is no dispute that the applicant did suffer a heavy fall in 1993. Her injuries were then described as “bruising to right wrist, shoulder, ankle and thigh and cervical spine”. It is noted that there is no evidence of any reference by her doctor at that exact point in time to any injury to the lumbar region of the spine or of pain radiating down the right leg into her right foot and numbness in that foot. The applicant saw a Dr Wilson at the time and he issued her with workers’ compensation certificates and referred her to physiotherapist Ms Maureen Bailey. Dr Wilson said the applicant would be fit for light duties on 28 April 1993 “with no keyboard until 3 May 1993”. (See T docs pp36a to 36d).
36. In 1994 the applicant made a claim for RSI.
37. On 28 October 1996 the applicant consulted Dr J F Eather in Kingston in the A.C.T. complaining of “… residual sciatic pain which she attributed to a fall at work some years earlier” (see Dr Eather’s report of 29 January 1997 (T.p14E)). In the same report Dr Eather said “Miss Kelly complained of pain in her right leg running from a hands breath above the buttock crease to the ankle”.
38. Dr Colin Andrews, a consultant neurologist, saw the applicant on 11 March 1997 and stated in a report dated 12 March 1997 (T14F) that following the 1993 fall “… she can remember initially having pain the cervical region and across of the right shoulder. She seemed to make a fairly good recovery from that, but was then left with a pain in the right leg which extends from the buttock down into the heel of the right foot …”. Dr Andrews suggested that the cause “… could be a disc lesion in the lower lumber region of L5/S1…”. He recommended a CT or MRI scan. He added that the injury “would seem to be sequelae to the injuries sustained”.
39. A CT scan was performed by “A.C.T. X-ray” (See T14G). It showed no abnormality at L4/5 or L5/S1 level. Mild degenerative change could be seen in the facet joint of L4/5 at L5/S1. There was “mild generalised disc bulging opposite L3/4 but no nerve root impingement”.
40. In a report from Dr J F Eaton dated 2 June 1997 (T14H) reference was made to a claim for “work stress”. He stated in his report that the suggestion that there was a disk lesion at L5/S1 “… was not confirmed by the CAT scan”.
41. The material before the Tribunal indicates that in 1998 the applicant made a further claim for RSI.
42. Ms Maureen Bailey, physiotherapist of Griffith in the ACT commenced treating the applicant in April 1993 soon after the fall. She continued to treat the applicant until 15 January 2003. In a letter to the applicant’s solicitor dated 29 June 2005 Ms Bailey stated:
“We treated Judith’s lower back originally in April 1993 and then again from September to November 1993. Since then we treated her lower back in September 1996, February and March 1997 and May 2002.
As I have had no contact or knowledge of any subsequent lower back symptoms since May 2002 and have not treated Judith since 15 January 2003l any information from my records would probably not provide a sufficient link for your purposes”.
43. The applicant consulted her general practitioner, Dr Michael Madden of Manuka in the ACT on some 43 occasions between November 1998 and June 2003. Succinct hand written notes of these consultations were made by Dr Madden and tendered in evidence (see exhibit R12). Dr Madden confirmed that in all of those consultations up until 7 February 2003 there is no reference to lower back pain or pain in the right leg or foot. In contrast there are numerous references in the notes to neck, upper arm and shoulder pain.
44. Dr Madden was asked during cross-examination as follows:
“Had she ever complained to you of lower back pain?”
Dr Madden --- “apart from the pain around her hip no”.
And further question, “had she ever complained to you of right leg pain?”
Dr Madden --- “I don’t have anything in my notes to say that”.
45. If the applicant had suffered lower back pain “from the day I fell” (transcript page 47) it is most surprising that there is no reference to it in Dr Madden’s notes.
46. Dr Bryan Ashman, a spinal surgeon of Garran in the ACT provided two written reports of 2 August 2001 and 17 August 2001 (T3 and T4). In his first report he referred to “… persistent pain in the right shoulder, the posterior aspect of the lower cervical spine and in the area around the right hip and iliac crest”. He initially thought that the applicant’s condition related to the long term affects of her injuries in 1993, however in his second report he changed his view and stated, with reference in particular to the applicant’s right shoulder and neck “… these are manifestations of the natural history of underlying spondylosis rather than the long term affects of any work-related condition …”. Dr Ashman was referring to complaints in the right shoulder and neck but nevertheless his opinion is relevant.
47. Three medical witnesses gave oral evidence. Dr Michael Madden and Dr Garth Eaton of Deakin in the ACT, an experienced occupational physician, gave their evidence by telephone. Dr Tim Stewart of Hobart, also an experienced occupational physician, appeared in person. All three also provided written medical reports.
48. Dr Madden provided two medical reports dated 10 May 2004 and 10 December 2004 (Exhibits R2 and A3). He said in his first report:
“I believe that the changes in her lumbar spine are most likely associated with the injury she sustained in the fall at work in 1993. There has been no other obvious cause and her symptoms date from the time of the fall”.
In his report of the 10 December 2004 Dr Madden stated:
“She has had persistent pain in her neck and right shoulder and arm, as well as pain in her lower back, around her right hip and thigh”.
He added:
“I believe that her symptoms are the result of having cervical and lumbar spondylosis. These conditions are probably a result of her fall at work in 1993”.
Dr Madden agreed in his evidence that the applicant had degenerative changes to the spine and believed those changes “may have” been aggravated by the fall in 1993. He agreed that there must have been some “trigger” for the pain in the day or so before the 28 January 2003.
Dr Madden also agreed that it was possible for the pain to take ten years to manifest itself. He said “it is possible, yes, I believe so” (transcript page 971).
He said that before 2003 he didn’t treat the applicant for low back pain. He said she mentioned the pain in her right hip on occasions.
Dr Madden believed the 1993 fall may have caused damage to the spine. He said in evidence: “I can’t imagine that that didn’t cause any long-term problem or it would have caused some damage to her spine, I imagine” (transcript page 94)
Dr Madden said: “she was mainly concerned with her neck and shoulder” (transcript page 99).
In cross-examination he was asked about the applicant’s pain as follows:
Question --- “That condition could just as easily have been a manifestation of the development of the degenerative changes as it could be the incident in the fall in 1993?”
Dr Madden --- “Yes” (transcript page 98)
49. Two reports of Dr Eaton were tendered in evidence dated the 4 April 2002 and 28 November 2004 (Exhibits A9 and A10). In his report of 4 April 2002, which predates the episode of pain in 2003, Dr Eaton stated as follows:
“She said that she continues to suffer with persistent neck, shoulder and hip pain as well as numbness of the right foot”
He added:
“Ms Kelly appears to have developed a chronic pain disorder consequent upon various injuries sustained in a fall at work in 1993 and the development of an occupational overuse injury which initially occurred in 1994 and subsequently was reactivated in 1998”
…
“I do not believe that Ms Kelly’s current condition can be explained by the degenerative changes alone. In my opinion Ms Kelly has substantial evidence to indicate that her condition has had a major contribution from workplace factors”.
In his report of 28 November 2004 Dr Eaton said:
“… I believe there is a direct relationship between Ms Kelly’s ongoing condition and her fall in 1993”.
50. In his oral evidence Dr Eaton said he believed Ms Kelly’s account and confirmed that he maintained his belief that there was a link between the fall in 1993 and the applicant’s current condition. Dr Eaton emphasised:
“… obviously we have to take the information given to us on history and what the patient tells us. And she is adamant that she has had intermittent persistent inner back pain ever since the fall happened”. (transcript page 171)
In cross-examination Dr Eaton was asked:
“So as far as this lady is concerned she could well have woken spontaneously in January 2003 with pain, whether or not she had been injured in 1993?”
Dr Eaton … “Well you couldn’t rule it out”.
51. Dr Stewart was called by the respondent to give evidence. He had provided a written report dated 23 August 2004 (Exhibit R17). In his report Dr Stewart said:
“In my opinion both of the episodes of repetitive strain injury (or occupational overuse syndrome) have fully resolved and the current symptoms that Ms Kelly experiences are non-specific and not related to either RSI or the fall of April 1993”.
And further:
“Miss Kelly has a number of relatively minor complaints that are due to the normal ageing process”.
52. In his oral evidence Dr Stewart said that the symptoms experienced by the applicant in January 2003 “were related to the sciatic nerve”. He said “I think it’s impossible to relate it to 1993”. (Transcript page 205)
When explaining his opinion as to what might trigger an onset of sciatic pain he said:
“I’ve seen people who have experienced pain and sciatic pain which has occurred from simply bending down to pick up a pen from the ground. So the activity of bending down and picking up can be sufficient to lead to that particular activity. Now, that activity is relatively mild in the overall scheme of things, but was perhaps significantly - it was appropriate at that time that that action of bending down to pick up a pen was the straw that effectively broke the camel’s back and led to that situation. However, it is often and more often associated with some form of manual handling, where there has been a strain that has been enough to precipitate that”. (transcript pages 210-211)
CONCLUSION
53. The question for the Tribunal is whether, on the whole of the material before it, it is satisfied to the requisite standard that there is a causal relationship between the applicant’s fall at work in 1993 and the episode of pain in 2003.
54. The alternatives are that the 2003 episode of pain was caused to a degree by the impact of her injuries sustained in 1993, and therefore arose out of or in the cause of her employment, or that it simply resulted from the ageing process and a natural degeneration of the spine.
55. The applicant was born on 10 February 1944 and so at the date of the onset of pain she was almost 59 years of age. There is ample medical evidence before the Tribunal supporting the contention that the applicant has suffered significant degenerative changes to the spine. For example, Dr Eaton spoke of “… quite extensive degenerative change in her spine” (see Dr Eaton’s report of 20 May 2003). Dr Stewart said in his report of 23 August 2004:
“Investigations were available that showed some degenerative changes at C5/6 and C6/7 and some normal disc bulges in the lumbar spine with some degenerative changes. One of the MRI scans was reported as showing annular tears at L2/3 and L3/4 however there was no evidence from the disc bulges that any neurological compromise was present”.
Dr Ashman and others have also made reference to degeneration of the spine.
56. As to the cause of the onset of pain in 2003 obviously there is conflict in the medical evidence. The evidence of Dr Stewart is unequivocal. He holds the firm view there is no evidence of a relationship between the fall in 1993 and the onset of pain in 2003. On the other hand Drs Madden and Eaton, whilst generally maintaining their initial opinions that the 1993 fall and the pain in 2003 were related, were somewhat equivocal and did concede at the hearing that it was possible that the pain may have causes other than the fall in 1993.
57. There is no doubt that the applicant had a heavy fall in 1993 and suffered injuries. A low back injury with pain radiating down the right leg and into the foot however did not feature in any immediate reporting of the injuries suffered in the fall. Those reports were of bruising to the right wrist, shoulder, ankle and thigh and also to the cervical spine. Mention was also made at the time of her “right hip area”. In fact Dr Wilson referred the applicant to the physiotherapist for treatment of the right hip. There were also references to hip and sciatic pain in the applicant’s right leg in 1996, some three years after the fall, and further references to pain in the right leg and foot in 1997. The Tribunal is satisfied that the applicant on occasions has suffered pain in the lower back radiating into the right leg and foot. That pain has not been continuous. Most of her problems and treatment following the fall related to the arm, shoulders and neck. Certainly Dr Madden’s notes appear to concentrate on the neck, right arm and shoulder. There is no mention in his notes, as confirmed by him, of right leg pain. He agreed, as her treating doctor over many years, that physiotherapy had not focused on her right leg and lower back.
58. The Tribunal is not satisfied that the lower back and right leg and foot problems were ongoing right from the time of the fall in 1993. If the applicant had constant problems with her lower back, right leg and foot it is most surprising that they are not mentioned in Dr Madden’s notes. After all, he was her general medical practitioner from 1998 to 2003 and saw her on many occasions during that period.
59. Ms Maureen Bailey is the physiotherapist who commenced to treat the applicant very soon after the fall in 1993. She continued to treat the applicant for almost ten years until the 15 January 2003 a very short time before the onset of severe pain later in that month. One would think that Ms Bailey would be a vital witness with intimate knowledge of the applicant’s physical health and might have provided evidence of the applicant’s back and right leg problems. It is surprising that Ms Bailey was not called as a witness. In her letter dated 29 June 2005 (Exhibit R16) Ms Bailey refers to some treatment of the applicant’s lower back in 1993, 1996, 1997 and 2002 but then says “... any information from my records would probably not provide a sufficient link for your purposes”. Mr Avery for the applicant explained that it is not so easy for an applicant to arrange for the attendance of all relevant witnesses, and the Tribunal recognises that, however two ACT based medical witnesses were called and gave evidence for the applicant by telephone. Although called upon to do so by the respondent’s counsel the Tribunal is of the view that it is not appropriate to apply the rule in Jones v Dunkel. (see Jones v Dunkel (1959) 101 CLR 298. This is because Ms Bailey’s letter actually confirms that her evidence would not be helpful to the applicant. The Tribunal cannot give significant weight to Ms Bailey’s reference to her treatment of the applicant’s “lower back” as she did not give evidence and was not available for cross-examination. It is interesting that Dr Wilson referred the applicant to Ms Bailey for treatment to “... maintain improvement in her right hip area” rather than any lumbar spine problem.
60. In this case there is clear evidence of degenerative changes in the spine. Those changes are said to be quite extensive. There is no convincing evidence that the fall in 1993 caused damage to the spine or aggravated the degenerative changes taking place. There is, of course, that possibility but it is really no more than a possibility. Possibilities, speculation and conjecture are not sufficient. Drs Madden and Eaton were somewhat equivocal about the cause of the episode of pain in 2003. At various point different words were used including “possible”, “feasible”, “I believe”, “possibly”, “I can’t see why”, “there is no black or white answer”. Dr Stewart on the other hand maintained a firm view that the cause was not the fall at work almost ten years earlier. The Tribunal finds that view to be persuasive.
61. The Tribunal is satisfied on the medical evidence, particularly the oral evidence of Dr Stewart, that a person with degenerative changes to the spine can suffer an onset of pain of the kind experienced by the applicant after “relatively mild” physical activity such as “... bending down and picking up ...”. He said it could even occur after “picking up a pen” but was more likely to be caused by some manual handling. Dr Stewart said he has had such a history from patients with degenerative changes to the spine who were previously asymptomatic.
62. The Tribunal has no doubt that in her own mind the applicant attributes her pain to the fall at work. However the medical evidence and the applicant’s own attribution are not sufficient to satisfy the Tribunal that there is in fact a causal relationship between the fall in 1993 and the onset of pain in 2003. Indeed on all the evidence the Tribunal is inclined to the view that degeneration of the spine, unrelated to the fall in 1993, but simply part of the natural ageing process, aggravated by some non-work activity a short time before the 28 January 2003 is likely to have been the cause of the episode of pain.
63. The Tribunal therefore finds that it is not satisfied that the applicant’s injury which formed the basis of her claim for compensation dated 16 February 2003 arose out of or in the course of her employment. The claim therefore does not succeed.
DECISION
64. The Tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 11, 12, 13, 26 July 2005
Date of Decision 27 September 2005
Counsel for the Applicant Mr John Avery
Solicitor for the Applicant Avery Partners Lawyers
Counsel for the Respondent Mr Brian Morgan
Solicitor for the Respondent Australian Government Solicitor
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