Khnaizer and Comcare

[2005] AATA 186

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 186

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/27

GENERAL ADMINISTRATIVE  DIVISION		)         No  N2004/81
Re		MICHELLE KHNAIZER

Applicant

And COMCARE

Respondent

Tribunal Mrs Josephine Kelly,
Senior Member

Date3 February 2005

PlaceSydney

Decision    

1. In proceedings N2004/27, the reviewable decision dated 2 December 2003 is varied as follows:

As at 25 September 2002 and to the present date, Comcare has no present liability to pay compensation to Ms Khnaizer pursuant to ss 16, 19, 20, 21, 21A and 22 of the Safety, Rehabilitation and Compensation Act 1988.

2. In proceedings N2004/81, the reviewable decision dated 12 August 2003 is affirmed.

3. There is no order as to costs.

[sgd]   Mrs Josephine Kelly, Senior Member

CATCHWORDS

WORKER’S COMPENSATION – claim for compensation and permanent impairment – injury to knee, neck and lumber sprain - accident while driving to work – lack of ongoing medical attention – inconsistent complaints since day of the injury –– applicant not entitled to compensation – no permanent impairment – decision varied.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19, 20, 21, 21A, 22, 24 and 27..

CASELAW

Australian Postal Corporation v Oudyn [2003] FCA 318

Rosillo v Telstra Corporation Limited [2003] FCA 1628

Liu v Comcare [2004] AATA 617

REASONS FOR DECISION

3 February 2005     Senior Member Josephine Kelly      

BACKGROUND

1.      On 4 July 2000, Ms Michelle Khnaizer, the Applicant in these proceedings, was driving to Lidcombe station to catch her train to work at Australian Hearing in Parramatta.  She failed to give way at a give way sign and collided with a turning truck.  She was taken to Auburn Hospital where she was found to have suffered no major injuries but had a laceration and bruising to the right knee.  An x-ray taken of the right knee at the time shows no joint effluxion, fracture or joint dislocation sub-luxation.  She was certified unfit for work until 11 July 2000.  She was then off work for some months and gradually returned to full duties over a period of nine months.

2.      On 5 January 2001 Comcare accepted liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, ("the Act"), in respect of the claim for a bruise to the right knee, neck sprain and lumbar sprain.  Ms Khnaizer was paid incapacity benefits up to and including 22 December 2000 and reasonable medical expenses up to and including at least 15 October 2001.  Comcare determined on 25 September 2002 that on and from close of business Wednesday, 25 September 2002, Comcare is no longer liable to pay compensation for your claim under any provision of the Act. 

3.      On 3 April 2003, Comcare refused Ms Khnaizer's claim for permanent impairment under section 24 and 27 of the Act in respect of her neck, back and right lower limb.  That decision was affirmed in the reviewable decision made on 12 August 2003.  This is the subject of proceeding N2004/81 before the Tribunal. 

4.      On 25 August 2003, Ms Khnaizer requested a re‑consideration of the decision made on 25 September 2002.  The reviewable decision dated 2 December 2003 affirmed the decision made on 25 September 2002.  This is the subject of proceeding N2004/27. 

CONSIDERATION

5.      Ms Khnaizer's evidence was inconsistent and misleading by omission.  In her evidence-in-chief, she said that she had fully recovered from a previous motor vehicle accident in 1995 in which she had suffered a whiplash injury for which she had received damages in 1997 or 1998.

6.      She said she was able to attend the gym three to four times per week from the end of 1997 until her accident in 2000.  When she returned to the gym at some time after her accident, for a period of six months, she found that she was not able to carry out the activities that she formerly had and has not returned to the gym because of those injuries.  Ms Khnaizer's evidence in relation to her work was that about 80 percent of her work is typing and that she has to get up every 30 minutes to stretch.  She finds sitting affects her knee and her neck in particular and she suffers headaches.

7.      In relation to her domestic duties she says that she does very little.  She may do some wiping up.  She talked about wiping up a couple of dishes but found that it was too hard on her lower back.  She also said that there were six people in her family and that the washing up was a major undertaking.  It seems that she does do her own washing but her grandmother hangs out her clothes.  She does a little dusting but her injuries, she says, limit the activities that she can undertake.  It is important to note that Ms Khnaizer has not had any time off work because of her neck, headaches, lower back or right knee for a lengthy period of time, at least since 2002.

8.      It is also the case that she has not been prescribed medications by a doctor, at least for the same period of time but in her evidence she said that she bought medications over the counter for pain relief.  She also acknowledged that she has not seen Dr Selim for some period of time.  His clinical notes disclose that her last complaint about her back was in 2002 and she has not seen him very much since 2002.  The last time seems to have been 25 March 2004 which was not to do with any of the injuries that are the subject of these proceedings.  In the meantime she says that she has been seeing Dr Bashir, another GP in relation to her thyroid and she described that she, in effect, monitors her back.

9.      Dr Bashir knows she has back, neck and right leg complaints and she asks her about it, however, that is not apparent from the clinical notes that have been produced by that doctor.  So on the evidence of Ms Khnaizer, we are not persuaded that she has indeed suffered the effects of the motor vehicle accident of July 2000 since 25 September 2002.  This is confirmed by the evidence of Dr Peter Youssef and Dr Robert Smith.  We prefer the evidence of those doctors to the evidence of Dr Richard Evans which was relied upon by the Applicant.

10.     We had heard oral evidence from Dr Evans and Dr Smith, however, an example of Dr Evans' approach was when the Applicant made complaints of clicking in her right knee, although he was not able to explain that in relation to her injury, he did not question that complaint and accepted the Applicant's description of her injuries and the extent of limitation of movement. 

11.     Going to Dr Peter Youssef's report, he took an extensive history which included the motor vehicle accident in 1997 in particular. In relation to that accident she had told him that she developed numbness in the left shoulder after the accident and tingling in the left hand affecting all her fingers.

12.     She indicated that this had occurred two or three times a week and she treated this with paracetamol.  She added that the numbness in her hands ceased within two or three days of the accident, but that she continued to experience numbness in the left shoulder after the accident. 

13.     In relation to the motor vehicle accident in July 2000  she also told that doctor that she continued to experience numbness in the whole of the left upper limb and headaches which she described as being all over.  There was no complaint by the Applicant in her oral evidence about numbness in the left upper limb at all and no reference to the fact that this had occurred since the 4 July 2000 accident, which then is an inconsistency.

14.     She also told Dr Youssef about the clicking in her right knee and the right knee giving way.  She had indicated that she had fallen on four occasions and she had sustained abrasions.  She had not consulted a medical practitioner or other practitioner after these falls.  In her oral evidence, she referred to the clicking and the falls as being embarrassing, however, it is our view that if one was suffering such a lack of use or disability in relation to your knee, you would tend to go and seek medical advice.  We do not accept her evidence in respect of this.  In relation to the current symptoms, Dr Youssef referred to her complaints about a constant headache from the neck up which was not constant before the motor vehicle accident.

15.     She also talked about the right knee in which she has pain.  Ms Khnaizer had also told Dr Youssef that the knee no longer locked or gave way whereas in the Tribunal she said that that did occur from time to time.  In relation to her examination, the doctor's conclusion was essentially that the neck, lower limb and spine were normal.  There was the x-ray of the cervical spine which showed, as of 21 July 2000,

very prominent cervical scoliosis concave to the left and left sided sub-cervical rib at C7. Oblique views are reported as showing mild exit foraminal narrowing at C4/5 and C5/6 bilaterally.

16.     The 2001 July x-ray was normal, of the right knee.  The lumbar spine x-ray of 21 July 2000 showed a lumbar scoliosis concave to the left and mild sclerosis within L4/5 and L5/S1 apophyseal joints.  There were no other abnormalities. 

17.     The ultra sound of the right knee performed on 21 July 2000 showed a small amount of fluid in the suprapatella bursa but no other abnormality.  The doctor referred to other x-rays but then coming to his summary and assessment, he has found that the Applicant has a constitutional disorder of cervical degenerative disease.  He says Ms Khnaizer has evidence of cervical, neural exit foraminal narrowing at L5/6 which may cause intermittent symptoms of cervical radiculopathy due to pressure on the exiting cervical nerve roots.

18.     He notes that following the motor vehicle accident in 1997 she sustained a whiplash injury, exacerbated the underlying cervical degenerative disease and from that time she has experienced pain in the left shoulder which he says cannot be explained on the basis of the cervical radiculopathy in view of the fact that the degenerative changes in the cervical spine are mainly at C5/6 and not at C4/5 at which there are only minor changes.  In any event he notes that if there was any compression of her left C5 nerve root which might explain the numbness in the left shoulder, that this pre-dates the motor vehicle accident of 2000.

19.     He says that her current neck pain may be partially explained on the basis of the underlying degenerative disease, although her alleged symptoms are out of proportion to any physical abnormality.  He also describes her current left forearm and hand pain involves all her fingers and this is not a typical nerve root brachial plexus or peripheral nerve distribution.  This pain cannot be explained on the basis of cervical degenerative disease or a cervical radiculopathy.  It cannot be explained on a physical basis.  Furthermore, there are no abnormalities on examination to suggest a neurological disorder in the left upper limb..

20.     As previously noted, there was no evidence given by the Applicant of any difficulty or numbness in relation to her left upper limb following the 2000 accident.  Dr Youssef, in considering the symptoms of headaches that the Applicant described, determined that:

“…they are clearly migrainous in origin. She complains of the typical symptoms of a migraine headache with nausea, photophobia and vomiting.  Also, there is a significant family history of migraine.  She alleges that there has been a change in the frequency of her migraine headaches since the accident in 2000.  In my opinion, this is the natural history of her migraines and it is important to note that her mother experiences severe migraine headaches which require injections with what is probably Pethidine.  Her migraines are not related to either motor vehicle accidents.  These are constitutional and have a genetic basis.”

“At the time of the accident in 2000 she sustained a soft tissue injury to the anterior compartment of the right knee, particularly the infrapatellar tendon.  This has completely healed.  I could find no objective abnormality on physical examination of her right knee.  There is no physical reason as to why she could not return to her pre-injury gym program.”

21.     I note that the right knee was the only injury noted in the Auburn Hospital records where she was admitted on the day of the accident and the later complaints in relation to her lumbar spine and neck were made some time later, I think when she attended Dr Selim on 10 July 2000, which was at the end of the period of time specified in  her first certificate of unfitness for work supplied by the hospital. 

22.     There were three reports of Dr Smith, one of 30 July 2002 and also 26 March 2004 and 30 July 2003 and I just note that in respect of that examination he found the physical examination on that date was completely normal.  He had also been referred Dr Evans' reports of 8 October 2002, 10 October 2002 and 26 February 2003. He said:

“These reports have not caused me to change my opinion in any way about Ms Michelle Khnaizer.  Perhaps Dr Evans was reporting about a different person”. 

DECISION

23.     In proceedings N2004/27 the reviewable decision made on 2 December 2003 is varied as follows:

As at 25 September 2002 and to the present date Comcare has no present liability to pay compensation to Ms Khnaizer pursuant to sections 16, 19, 20, 21, 21A and 22 of the Act.

In proceedings N2004/81, the reviewable decision of 12 August 2004 is affirmed.

The Applicant being unsuccessful, there will be no order as to costs.  We do not consider that the variation made to the decision in proceedings N2004/27 is more favourable to the Applicant such as to justify a costs order pursuant to section 67(8) of the Act.  What was sought and without opposition from the Applicant's counsel was to vary the decision to accord with the law as developed in the cases of Australian Postal Corporation v Oudyn [2003] FCA 318, Rosillo v Telstra Corporation Limited [2003] FCA 1628 and Liu v Comcare [2004] AATA 617. The real issue in these proceedings was the permanent impairment in respect of which Ms Khnaizer was unsuccessful.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly,
Senior Member

Signed: Sacha Keady
..................................................................................
  Associate

Date/s of Hearing  2 February 2005
Date of Decision  3 February 2005
Counsel for the Applicant         Bill Nicholson
Solicitor for the Applicant          Turner Freeman
Counsel for the Respondent     Brendan Kelly
Solicitor for the Respondent     Phillips Fox