Kish and Comcare
[2006] AATA 1026
•30 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1026
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1561
GENERAL ADMINISTRATIVE DIVISION ) No N2004/1145
) No N2005/535
) No N2006/64
) No N2006/65Re STEPHEN KISH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member R Hunt and Member Dr I Alexander Date 30 November 2006
PlaceSydney
Decision The decisions under review are affirmed. [SGD]
R. Hunt
Senior Member
CATCHWORDS
WORKERS COMPENSATION - accepted claim for compensation for lumbar spine injury - effects of injury ceased - worker not still incapacitated - regular physiotherapy over many years – not "reasonable medical treatment".
Safety Rehabilitation and Compensation Act 1988 - ss4, 14, 16
Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
30 November 2006 Senior Member R Hunt and Member Dr I Alexander summary
1. Mr Kish, the applicant, sustained an injury at work for which Comcare accepted liability on 23 June 1999. The accepted injury was “displacement of intervertebral disc – lumbar” and the date of injury noted as 6 May 1999. Comcare paid Mr Kish’s medical expenses for a period before declining to make any further payments on 8 May 2002. Over the ensuing years, Mr Kish made a series of claims which were denied. Five reviewable decisions rejecting Mr Kish’s claims for compensation are before the tribunal.
2. The tribunal has decided that Mr Kish no longer suffers the effects of any injury to his lumbar spine arising out of or in the course of his employment. Nor does he suffer any other injury or permanent impairment arising out of or in the course of his employment in our view. We find that he is not entitled to compensation for medical expenses as a result of any workplace injury. This means Mr Kish’s applications for review have not been successful.
ISSUES
3. The issues before the tribunal in respect of the series of claims for continuing injury and medical expenses are:
·whether Mr Kish continues to suffer from the effects of an injury sustained to his lumbar spine on 6 May 1999 in the course of his employment; and
·whether Mr Kish is entitled to compensation under s 16 of the Act as a result of that injury.
4. The issues before the tribunal in respect of the series of claim for permanent impairment are:
·whether Mr Kish suffers from a permanent impairment of the thoraco-lumbar spine resulting from injuries to his thoraco-lumbar spine arising out of or in the course of his employment in the period between 1991 and 1999 and from a lifting incident in 1999; and, if so,
·whether Mr Kish’s impairment is 10% or greater when assessed on a whole person basis in accordance with the approved guide; and
·whether Mr Kish is entitled to compensation under ss 24 and 27 of the Act.
consideration
5. There are a number of claims that have been joined in this matter. In essence, Mr Kish’s case is that from 1991, when he commenced employment with the Department of Immigration and Multicultural and Indigenous Affairs, he had none of the symptoms that he complains of throughout all of the determinations and reviewable decisions brought before us for review. Mr Kish commenced employment with the Department in 1991. He says he first noticed an onset of neck and upper back pain in 1992. He put in a claim in 1992 in respect of those symptoms. That claim was accepted.
6. Mr Kish continued to work until again, in 1994, he submitted a claim in respect of neck and upper back. That claim was accepted with a deemed date of injury of 1 December 1994. Mr Kish’s counsel explained that both those claims were in respect of treatment expenses. The claims before this tribunal concern a later incident in 1999 and alleged aggravations or exacerbations of the 1999 injury as well as permanent impairment. Mr Kish also seeks reimbursement for his lost hours of work.
7. All of Mr Kish’s claims before the tribunal involve variously described injuries to the lower back. All arise out of a similar set of circumstances, with two said to have arisen out of a box moving incident in 1999 whereupon Mr Kish was moving books in boxes from desk to trolley, entering a lift with the trolley, taking the trolley to the basement and then moving the boxes from the trolley on to trucks. As a result of that incident, Mr Kish says he noticed symptoms on 6 May 1999 and had a period of time off work. The claim for injury, on or about 6 May 1999, was accepted up to 30 November 1999. Application N2005/535 claims that the box moving incident, combined with the nature and conditions of his employment, resulted in a “thoraco-lumbar spinal injury” and a consequent whole person impairment of 10%. Similarly, in application N2004/1145 Mr Kish claims rehabilitation and compensation in respect of “chronic rotator cuff strain” and “musculigamentous of the thoraco-lumbar spine” as a result of the box moving incident and the associated “repetitive bending and twisting movements”, as well as undefined “repetitive work pressure from management” throughout the 1990s and having to work at a “non-ergonomic work station”.
8. Mr Kish has also made a number of claims alleging injury as a result of the nature and conditions of his employment. In N2003/1561 Mr Kish claims rehabilitation and compensation in respect of “lumbar facet syndrome”. He puts that this injury arose out of the need for him to undertake “repetitive movement” in the course of his employment. Comcare accepted liability for this up to 2 June 2003, and denied liability thereafter.
9. Similarly, in application N2006/64 and N2006/65 Mr Kish made a claim in respect of “an exacerbation (at work) of previous injury” to his back. In the first application, that is N2006/64, Mr Kish alleges that the exacerbation occurred on 10 August after the ergonomic layout of his workstation was altered. According to Mr Kish, this resulted in a “complete muscular de-stabilisation” of his back. In application N2006/65 Mr Kish alleges that his previous back injury was exacerbated when, on 11 January 2005, he was “sitting in office chair”.
applicant’s evidence
10. Mr Kish gave oral evidence that 1992 was the start of discomfort problems in shoulder, neck and upper back which he associated with the physical muscular movements he was required to do at the desktop. His duties at the time involved working with computers and dealing with information received by the Department in the compliance section, checking that against database records, retrieving files and forwarding the information to people in field teams. He said he was in front of a computer all the time, looking at database, movement and visa records, all of which were computer accessed with verification to paper files. He continued to do normal duties and normal hours, apart from odd days that he may have had off and put a claim for treatment expenses which was accepted.
11. In July of 1996, he put in a claim in respect of an inflammation of the first carpometacarpal of the right hand. This was accepted. He then trained himself to use the computer mouse with his left hand and gave up using the right hand with the mouse completely. As at 29 April 1999, he was working part‑time. Mr Kish said he reduced his hours while studying for a master’s degree.
12. Mr Kish described the circumstances surrounding his injury in 1999. He said he was moving boxes loaded with files to the basement where they would be put on a truck. The job involved moving the boxes from desk level height laterally to the top of the trolley and then taking the loaded trolley to the lift, down to the basement, unloading the boxes from the trolley, then to the back of the truck which was a bit higher than desk top level. He remembered two trips like that. He thought that “in total it was comfortable to think of my contribution of moving something like 200 boxes or 200 times”. Each box held something like five or six files and he had thought it should not present any difficulty. He gave further evidence he took on that work because he was looking for something to exercise and move the upper back muscles which tended to become stiff over the time since the last time he had been swimming. He said he was in a routine of swimming not less than every 3 days a week because of his back and to prevent headaches.
13. Mr Kish said moving the boxes did not relieve him of stiffness by exercising his upper back muscles as he had hoped. He told the tribunal that on 6 May 1999, he experienced a lumbar spasm while driving his car. He first went to see Lorraine Medlow, a physiotherapist, because the GP’s rooms were not open at the time he experienced the spasm, early one morning on his way to the swimming pool with his daughter. He saw his GP, Dr Bob Sebesfi, the next morning. The doctor certified him as unfit for work from that day and he remained off work until 11 June 1999.
14. Mr Kish said he had some difficulty meeting a graduated return to work program but eventually resumed pre-injury duties and continued to take medication. He gave evidence to the effect that he had continued symptoms and took medication in 2000 and in 2001 until, in March of 2002, his general practitioner referred him to Dr Ackerman. He said he underwent manipulative physiotherapy and then Dr Ackerman recommended a group physiotherapy or exercise regime. Mr Kish also tried pilates and yoga at home after learning exercises at the pilates studio.
15. Mr Kish told us work modifications were put in place for him by 10 October 2005 although not in what he regarded as complete. He persevered with a graduated return to work. Since October 2005, he had not returned to a full time position. He was doing around 6½, or 6 ¼ hours per day. On 19 December 2005 he was attending work on those reduced hours.
16. Mr Kish explained that re-locating to the Sydney office from Parrammatta required him to recommence using public transport. He said this “upset everything again”. By 23 December 2005 he had muscle spasms, described as lumbar spasms on both sides. Subsequently, he didn’t work the following day, on 24 December 2005.
17. Mr Kish told us his lower back is now much better. He described it as being “more under control” and said that his commute from Epping to the city is becoming less of a problem. With regards to his upper back, Mr Kish said it was “the same”. When asked to elaborate, he explained that compared to the early days of 1992 and 1994 it was much better. He said he had restricted movement, finding it difficult to do actions such as slumping and bending forward.
18. Mr Kish told us he is currently undertaking an exercise programme. He said that when he started exercising, some time ago, he did freestyle swimming. He said that in 2000 or 2001 he was advised that breaststroke swimming was bad for the lower back. Mr Kish said that breaststroke was subsequently dropped from his repertoire. He said that in 2005 he commenced backstroke and dropped freestyle. He said that by 2000 or 2001 he was swiminig three times per week and 30 laps. Before April 1999 he was swimming three times a week and swimming 16 – 18 – 20 laps a session. Mr Kish told us he also regularly walks long distances. He said in 2005 he was walking approximately 3.2 km three times per week.
19. Mr Kish said he takes Nurofen regularly. He says sometimes he can go a week without using whilst other times he might need to use it 3 - 4 times per day, taking from 6 - 8 tablets a day.
medical evidence - summary
20. The medical evidence comprised numerous written medical reports from various medical specialists and other health care professionals, numerous medical certificates as well as the clinical records of the general practice attended by Mr Kish for the period from December 1994 to October 2002. We also had the benefit of oral evidence from two orthopaedic surgeons and one rehabilitation specialist. Mr Kish’s treating general practitioner, Dr Sebesfi, furnished no written report.
21. We considered the medical evidence against the background of the evidence given by Mr Kish particularly with reference to the events of 1999 and the time of onset of symptoms referrable to the lower back. We note that Mr Kish in his oral evidence stated that the pain he experienced on the 6 May 1999 when driving “was the very first lumbar spasm I ever had”.
22. In cross examination, when questioned about the time of onset of symptoms in relation to the time of moving of the boxes, Mr Kish confirmed that he was in no doubt whatsoever that the first symptoms occurred a week later and constituted a sudden onset of spasm and pain in the lower back.
23. However, we note that Dr Bornstein had recorded, in his report following a consultation with Mr Kish, that Mr Kish had moved a large number of boxes at work and that “the next day it would appear that his back did tighten up”. Mr Kish explained in evidence that he did not have any recollection of saying this to Dr Bornstein or of his muscles tightening up. He qualified this, however, saying that he had no recollection “unless it was part of the normal routine of having the muscles tighten up”.
24. Similarly, Dr Ganora’s report of 27 September 2005 notes that Mr Kish moved a large number of boxes at work (between 100 and 150) and that “some days later he developed progressive pain in the lower back, particularly in the right side”. Although Dr Ganora’s report does not mention the incident in the car on 6 May 2005, it does record that Mr Kish lifted the boxes in May 1999 and not April of that year.
Dr R Sebesfi - General Practitioner (GP)
25. In December 1992, Dr Sebesfi referred Mr Kish to a Ms Lorraine Medlow, physiotherapist, for assessment with reference to neck and left shoulder girdle symptoms including trapezius muscle spasm. In her history Ms Medlow noted a recent motor vehicle accident with a whiplash injury to the neck. There is no mention of a thoracolumbar injury or symptoms referable to that area of the spine.
26. A medical certificate, dated 6 May 1999, notes a diagnosis of “lumbar facet syndrome” and a further certificate, dated 29 May 1999, notes a diagnosis of “paralumbar muscle spasm”. In addition, an undated medical review certificate probably around September 1999 notes “displacement of intervertebral disc- lumbar.” There was no radiological evidence to support such a diagnosis.
27. In the clinical records of the General Practice attended by Mr Kish, there is an entry dated 6 May 1999. The entry is presumed to have been made by Dr Sebesfi as there is no signature. The entry is as follows:
Was supposed to start at Parramatta today …but back ‘went’ on him yesterday when he was seated @ coffee table @ home”……prob follows repeated lifting (‘up to 200 times’) boxes of files…
28. The entry makes no mention of acute onset of pain while driving and there is no mention as to the time when the boxes of files were lifted.
29. A diagnosis of acute facet syndrome was made and recommended treatment included Valium, non-steroidal anti-inflammatory medication and non-weight bearing exercise. On the 15 June 1999 an entry noted “(80-90% better over the last 3/7) –return to work -3hrs per day”. No investigations were done according to the records before us.
Dr Ackerman - Sports Medicine GP
30. In a report dated 17th September 2002, Dr Ackerman stated that he first saw Mr Kish on the 7th March 2002 and on five occasions subsequently. At the first consultation he noted a 3 year history of low back pain. Mr Kish allegedly told Dr Ackerman that:
[In] April 1999, he spent a week at work moving a large number of files and file boxes… A week after this he was driving his daughter to swimming training when he developed spasms of pain in his lower back. He rested for several minutes and was able to drive home.
Mr Kish claimed that thereafter “he suffered almost continuous low back pain”.
31. On examination Dr Ackerman found some loss of normal lumbar lordosis and mild restriction of other lumbar movements. Dr Ackerman made a diagnosis of spinal instability and suggested and X-ray and CT scan of the lumbar spine. He noted that his files had no record of the results of the tests but that he believed they had been done and were normal.
32. We note an entry in the GP records dated 22 March 2002, “CT scan and L/S spine X-ray are completely normal”.
33. Dr Ackerman noted that following physiotherapy and special exercises the back pain improved and stated that he could “see no particular obstacle to full recovery”. He goes on to conclude that the “problem is ongoing and is largely due to the box moving incident”. Dr Ackerman provides no explanation for his conclusion and makes no reference to the thoracolumbar spine or the alleged incidents in the early and mid nineties.
Dr Margaret Gibson - Occupational Physician
34. Dr Gibson provided a fairly comprehensive report dated 1st April 2003. She obtained a history of some upper back discomfort in 1995-1996 following long periods of work sitting in front of a computer. This was treated by his GP who recommended swimming. Further history was that on 6th May 1999 Mr Kish spent 1-1½ hours moving file boxes at work. The boxes were not very heavy and there was no discomfort noticed at the time. A week later he was driving his car and while entering the car park at Epping pool the vehicle went over a speed hump. At that time Mr Kish allegedly developed severe and immediate lower back pain. Subsequent treatment included exercise, pain medication and physiotherapy.
35. Dr Gibson noted that at the time of the consultation Mr Kish was working fulltime in his normal position. Mr Kish’s current problems were noted as discomfort between his shoulder blades extending “down the thoracic spine to approximately the level of the inferior border of the scapula”. On physical examination mild restriction in spinal movements was noted.
36. Dr Gibson commented that a lumbosacral spine CT with contrast performed on March 2002 reported by Dr P Fitzgerald was normal. She opined that Mr Kish may have constitutional weakness in the muscles of his lumbar spine and may have sustained a musculo-ligamentous back strain in relation to the incident described when driving. She concluded that this injury should have long since resolved. She also concluded that Mr Kish’s current problems were not related to the incident with the boxes as there was no history of symptoms at the time. Dr Gibson made no definitive diagnosis and considered Mr Kish to be fit for fulltime work in his normal capacity.
Dr R Wallace - Orthopaedic Surgeon
37. Dr Wallace first saw Mr Kish on the 16th December 2003 and provided his first report dated 3 February 2004. In this report Dr Wallace noted that Mr Kish complained of interscapular thoracic pain in the course of his work in the mid 1990’s and that this was treated with physiotherapy and exercise. Dr Wallace also noted that on April 29th 1999 Mr Kish and two co-workers were required to move 140 boxes weighing between 8 to 10 kilograms and that the work involved repetitive bending and twisting movements. A week later on 6th May while driving his car Mr Kish complained of severe lumbar spinal pain.
38. Dr Wallace stated that Mr Kish has had no past medical problems and then goes on to report that Mr Kish’s present complaint is “persisting pain at the interscapular region of his thoracic spine with no radiation to the lumbar spine”. There is no mention of symptoms referable to the lumbar spine. On examination of Mr Kish he noted some tenderness of the T5, 6 and 7 spinous process and some limitation of movement in forward and lateral flexion.
39. With regard to X-rays done in March 2002, the report states:
Plain films of the lumbar spine show decreased disc height at the L5/S1 level with irregularity of the end plates and Schmorl’s node involving the superior end plates at L2, 3 and 4 vertebral bodies. CT examination of the lumbar spine from L3 to S1 shows no abnormality.
There is no comment as to the significance of the x-ray findings
40. Dr Wallace concluded that:
this patient has suffered a chronic rotator cuff strain at the right shoulder and musculoligamentous strain at his thoracolumbar spine as a result of the nature and conditions of his employment as a Clerk in the period 1991-1999 as well as musculoligametous strain at his thoracolumbar spine sustained as a result of specific lifting activity in the course of his duties at work on 29th April 1999.
41. In a supplementary report dated 3rd February 2004 Dr Wallace estimates that Mr Kish “has suffered a whole person impairment of 10% as a result of his thoraco- lumbar spinal injury”.
42. Dr Wallace saw Mr Kish again on the 31st March 2005 and provided a report dated 11th May 2005. In this report Dr Wallace provided a superficial review of events since he last saw Mr Kish. He noted that Mr Kish’s current problem is:
persisting pain at the thoracolumbar junction as well as the right buttock and at the anterior aspect of his abdomen at the costal margins[ and concluded that he was] suffering from significant ongoing disability at his thoracolumbar spine as a result of injuries sustained due to the nature and conditions of his employment.
Dr Wallace provided no explanation for his conclusions.
43. In oral evidence Dr Wallace stated it is common for people to complain of some activity and have vague symptoms in the interim with onset of significant pain a week or 10 days later. We note that he did not say that patients would be symptom free between an alleged injury and the onset of more severe symptoms a week later.
44. Dr Wallace stated that that he made the diagnosis of muscular strain because he could find no evidence that would suggest disc protrusion. In cross examination, Dr Wallace disagreed with a proposition put to him that the natural history musculo-ligamentous strain is to resolve in time but subsequently asserted that this diagnosis is a “descriptive term based on the information available”. When asked whether he was able to point to objective evidence of any pathology he did not provide a satisfactory response.
45. When asked by the tribunal whether it was his evidence that one episode of musculo-ligamentous strain in 1999 is the cause of Mr Kish’s subsequent, ongoing and permanent impairment Dr Wallace answered as follows:
My diagnosis in both reports has been that his current impairment is due to injury sustained due to the nature and conditions of his work in the period to 1991 to1999 as well as specific incidents of injury in April 1999.
In our view Dr Wallace did not provide a satisfactory answer to the question. He was then asked to clarify what he actually thought was wrong with Mr Kish.Dr Wallace replied as follows:
again, based on the information we have, I think it would be difficult to pinpoint pathology but this gentleman has documented injury to his thoracic spine that was accepted by Comcare, apparently on 7 December 1992. December 1994 and then he has this further injury in 1999”.
46. Dr Wallace goes on to suggest that Mr Kish has “sustained trauma to his back because of his work”. Again, in our view, Dr Wallace did not provide a satisfactory answer to the question.
Dr Borstein - Orthopaedic Surgeon
47. Dr Borstein saw Mr Kish on three occasions and has provided reports dated 18. December 2003, 7 January 2004, 19 October 2004 and 8 February 2006.
48. In December 2003 Dr Borstein obtained a history from Mr Kish that he had problems with aching in his upper back in 1992. This problem was thought to be postural and treatment included swimming and postural support. On 5th May 1999 Mr Kish complained of getting pain in the back after moving numerous boxes. There was no problem at the time of moving the boxes but it is noted that “Next day it would appear that his back did tighten up” We note that Mr Kish in his oral evidence specifically refuted having said this to Dr Borstein and asserted that he had no recollection of such symptoms. Dr Borstein found no abnormality on examination.
49. The report noted that CT scan and X-rays of the lumbar spine dated 21 March 2002 were seen and were completely normal. Dr Borstein stated that in his opinion there is no diagnosis with respect to the lower back. In a supplementary report dated 7 January 2004 after having been provided with a different history of the alleged event, namely the history given to Drs Ackerman and Gibson, where the pain came on a week after the episode of moving boxes. Dr Borstein opined that pain coming on a week later “would almost certainly be unrelated to the original alleged precipitating incident.”
50. On the second occasion in October 2004 Dr Borstein noted that Mr Kish continued to complain of thoracolumbar pain. Examination was again normal and he concluded that Mr Kish does not have any injury to his lower or upper back related to his employment
51. In February 2006 when Dr Borstein saw Mr Kish for the third time and he again found no abnormality on examination. He commented that he was unable to substantiate Mr Kish‘s complaints clinically and that there was no objective evidence of spinal disease or injury.
52. In oral evidence Dr Borstein was asked to explain what is meant by a strain, a sprain, a tear in relation to musculo-ligamentous injuries. He replied as follows
“Musculo-ligamentous injuries, irrespective of where they are in the body, will have varying degrees of severity, the least of which is a strain, followed by a sprain, followed by a tear. A strain is literally a stretch of the tissues followed by – a strectch and they come back to the original size, like taking an elastic band and stretching it, if you stretch it further, some fibres will tear, in which case you get check transcript a sprain, the next stage is a complete tear or a partial complete tear”
53. He went on to say to that to diagnose any of these condition with reference to the thoracolumbar spine the only objective evidence would be muscle spasm which he did not find on any of the occasions when he saw Mr Kish.
54. When asked whether the diagnosis of ”thoracic hypomobilty syndrome” meant anything to him, Dr Borstein said that it did not and that it is not a diagnosis that one would support in relation to Mr Kish and that all it means is that the degree of mobility is less than normal for some reason but that in itself it doesn’t actually mean anything.
55. When asked about the time of onset of pain following an injury Dr Borstein stated that the pain need not be present immediately by that he would have expected the pain to have developed within 24 to 36 hours and at the most 48 hours later. He did concede, however, that one can sustain an injury and within a 7 to 10 day period have vague symptoms and then have a more sudden onset of more severe pain some time later.
56. Dr Bornstein noted that in his opinion an absence of any symptoms for a 7 to 10 day period would preclude a causal nexus between an alleged injury and a sudden onset of pain. When asked by the tribunal about the period of expected recovery from an injury causing muscolo-skeletal strain Dr Bornstein indicated a period of one to two weeks
Dr Mackie - Rehabilitation Specialist
57. Dr Mackie first saw Mr Kish in September 2004 and provided a relatively brief report dated 13th September 2004. She noted a history of thoracolumbar back pain in 1992 treated with physiotherapy and exercise and the development of low back pain in 1999 while moving boxes at work. She also noted that Mr Kish was treated with antidepressant therapy for 12 months and maintained a high input of exercise, swimming, osteopathic and Pilates programming. On examination she found Mr Kish had a flat thoracic spine with very little movement in forward flexion particularly in the mid thoracic area and noted a “sharp kyphotic hump at the T2 region”. These are physical findings that no other medical practitioner has commented on.
58. She opined that Mr Kish has “thoracic hypo mobility syndrome which may be either possibly or partly constitutional”. She also opined that Mr Kish had signs of a chronic pain syndrome and would benefit from a pain management program. She provided no real explanation to support her conclusions. She did not address any issues with reference to the lower lumbar spine.
59. Dr Mackie saw Mr Kish again on May 2005 and provided a report dated 23rd May 2005. On this occasion, she again suggested that Mr Kish would benefit from a pain management program which included cognitive behavioural therapy in addition to addressing issues of posture. She also commented that Mr Kish “has a tendency to analyse his situation with great intensity and I believe that although this may be interpreted as abnormal it is probably the very feature of his personality and skills which suits him to work in the Department of Immigration”.
60. In oral evidence, Dr Mackie stated that the opinion she expressed in her first report was based on the history given to her by Mr Kish at the time of the consultation and she was unwilling to make any further comment after having been provided with an alternative history consistent with Mr Kish’s evidence. She conceded that “thoracic hypomobilty syndrome” was in fact not a diagnosis but a way of describing an impression of reduced mobility of the thoracic spine which she found on examining Mr Kish. She also conceded that she did not find any objective evidence of pathology but merely subjective evidence of movement variation. When asked in cross examination whether she considered Mr Kish to be obsessional about his situation she said:
I’d received a number of other reports for advice from him and which is probably out of the ordinary for most of my patients but then he was a man who spent a lot of time writing reports and analysing things.
Dr Mackie went on to say that she thought “he was fairly intensively analytical about what he was doing”.
61. In response to a question from the tribunal, Dr Mackie conceded that that she made no assessment of the nature and extent of the high input exercise, swimming and other activities that Mr Kish had reported to her. She also conceded that patients with hypomobility syndrome usually do not have any pathology and that there is no cause for this purported syndrome but merely a description of apparently reduced movement. She also admitted that she had made no assessment of Mr Kish with regard to his lower back.
Dr A Ganora - rehabilitation specialist
62. Dr Ganora saw Mr Kish on two occasions and provided a report dated 27th September 2005. He obtained a history from Mr Kish of recurrent back problems and headaches since the early 1990s with treatment that included exercises, postural changes and anti-inflammatory medication. With reference to the episode in May 1999 the history obtained by Dr Ganora was that Mr Kish “was moving a large number of boxes at work”, describing the number as “hundreds of boxes containing files” and that “he moved between 100 and 150 boxes over a period of 2 to 3 hours one afternoon” and that “some days later he developed progressive pain in the lower back, particularly on the right side.”
63. Dr Ganora reported that Mr Kish’s problem with thoracic pain is currently less troublesome and that the main problem is pain in the lumbar region as well as cyclical headaches up to 3 to 4 times per week.
64. Dr Ganora also stated that there was no relevant past medical history. On examination, Dr Ganora noted normal alignment of the spine in a standing position, some tenderness at the thoracolumbar junction and lumbosacral junction and flexion possible to 80 degrees.
65. Dr Ganora opined that “the clinical picture is strongly suggestive to me of a lumbar disc injury having occurred in May 1999” and recommended further investigation in the form of an MRI study. He made no mention of the radiological investigations done in 2002.
66. We note that Dr Ganora’s opinion is clearly based on the on Mr Kish’s history alone. We therefore accord less weight to his opinions and findings than to those based on a more objective history.
Dr Wong - Occupational Physician
67. Dr Wong saw Mr Kish on 31st March 2005 and provided a report dated 7th April 2005. He elicited a history of increasing level of pain in his neck, middle and upper back between 1992 and 1999. He also noted the history of onset of pain while driving one week after having assisted in moving 150 boxes at work. Mr Kish’s current problem was identified as recurrence of back spasms if sitting in front of a computer for more than 15 to 20 minutes including symptoms around the level of the thoracolumbar junction from time to time.
68. Physical examination revealed some limitation of spinal extension. Dr Wong concluded that Mr Kish suffers from “chronic pain affecting his neck and lower back”and that Mr Kish’s recovery is complicated by psychosocial factors the management of which will effect prognosis. He recommended continuation of his current exercise program but that this would need to be supplemented with cognitive behavioural therapy to better manage the psychosocial issues.
Consideration of the medical evidence
69. The medical evidence in this case is problematic. It is clear that Mr Kish has complained of a variety of symptoms related to his back, particularly pain, for a number of years. His complaints have been treated by various practitioners in various ways and have included pain and anti-inflammatory medication, physiotherapy, spinal manipulation, exercise programs and a variety of postural interventions. Mr Kish has also undertaken vigorous exercise programs often appearing to be self directed.
70. What is not so clear is whether Mr Kish has a definitive physical diagnosis which can explain his various problems and whether there is a causal relationship to his work. In recent years Mr Kish has been seen by numerous health care practitioners and there has been no consistent explanation for his various complaints and no definitive diagnosis. The diagnoses that have been proposed appear to be merely descriptive in an attempt to provide an explanation of Mr Kish’s symptoms in the absence of any objective evidence of pathology.
71. The opinions of the various medical practitioners are largely based on Mr Kish’s description of his problems. The difficulty with this is the unreliability of the Mr Kish’s reporting as evidenced by the significant variation in the histories elicited by the various practitioners. We particularly note that the history provided by Mr Kish in his oral evidence is not consistent with the contemporaneous notes of his treating GP. We note that none of the medical specialists who have provided evidence made any real attempt to evaluate the impact of the various treatment programs undertaken by Mr Kish particularly the intensive exercise and spinal manipulation programs. Also there has been no meaningful evaluation of non-work related factors which may have contributed to Mr Kish’s problems. The opinions appear to be based on the mere assumption that Mr Kish’s claims are in fact the only explanation for his symptoms.
72. We further note that Mr Kish relies significantly on the evidence of Dr Wallace. However, this evidence was not satisfactory from our point of view. We found Dr Wallace’s evidence somewhat confused and too focussed on the medico-legal context and not enough on the established facts. He provided no coherent analysis to support his opinions and his oral evidence we found unconvincing and somewhat evasive.
73. Notwithstanding the issues raised about the length of time spent in consultation we note that Dr Bornstein saw Mr Kish on three occasions and we prefer his evidence over that of Dr Wallace. Dr Borstein’s opinions appeared to be based on a reasonable analysis of the established facts and physical findings. In oral evidence, his responses to questions provided us with a clearer understanding of several relevant issues.
74. Dr Mackie’s evidence added little in that her opinion was somewhat narrowly directed to the thoracolumbar spine and advice about posture. She did not address the lower lumbar spine particularly the relevance of the 1999 incident. She did however raise the issue of chronic pain management and psychological intervention an issue supported by the opinion of Dr Wong.
75. Dr Ganora’s opinion appeared to be mere speculation based on Mr Kish’s history which was not consistent with his own evidence before the tribunal.
76. The opinions of the other practitioner’s provided no additional assistance to the tribunal in linking Mr Kish’s problems to his workplace activities.
77. After having considered all the evidence we accept that Mr Kish does have problems with his back however we are not persuaded that these problems are causally related to his work or nature and conditions of his workplace. Particularly we are not persuaded that the moving of boxes on the 29th April 1999 was the cause of his lower back symptoms one week later. Furthermore, we are not persuaded that Mr Kish suffers whole person impairment as a result of work related injury.
conclusion
78. The Tribunal concludes that, on the medical evidence before it, the respondent’s decisions must be affirmed. For the reasons given, we do not accept as fact that, as at the date that the respondent ceased making payment, the applicant suffered, or has since suffered, symptoms related to any workplace injury.
79. The answers to Mr Kish’s various applications, framed in terms of Mr Kish’s series of claims, are set out below.
Does Mr Kish continue to suffer effects from his 1999 injury? (N2003/1561)
80. Mr Kish lodged a claim for rehabilitation and compensation in respect of “lumbar facet syndrome” on 8 June 1999. Mr Kish claimed that the cause of this condition was repetitive movement undertaken in the course of his employment with the Department of Immigration, Multicultural and indigenous Affairs.
81. Comcare accepted liability in respect of Mr Kish’s “displacement of invertebral disc-lumbar” on 23 June 1999. In a later determiniation dated 2 June 2003, however, Comcare ceased liability for further compensation. Mr Kish requested a reconsideration of this determination and on 2 December 2003 an Independent Review Officer (IRO) affirmed the Comcare determination. The IRO noted the opinion of Dr Gibson, and reiterated her point that “irrespective of the cause, the injury suffered at that time should have long since resolved”.
82. We agree with the decision of the Independent Review Officer. Mr Kish’s claim on this point therefore does not succeed.
Does Mr Kish suffer a whole person impairment of 10% (N2005/535)
83. On 28 April 2004 Mr Kish lodged a claim for permanent injury and “whole person impairment of 10%” as a result of a thoraco-lumbar spinal injury. He claimed that this impairment eventuated as a consequence of the nature and conditions of his employment and an incident in 1999 where he lifted and moved a large number of boxes.
84. On 27 September 2004 a Comcare delegate disallowed Mr Kish’s claim for permanent impairment of the thoraco-lumbar spine. Mr Kish requested a review of this determination and on 19 April 2005 an IRO affirmed the determination of 27 September. The IRO stated that she was not satisfied that Mr Kish suffers a permanent impairment of at least 10%.
85. We agree with the reviewable decision of the IRO. Therefore, Mr Kish’s claim on this point does not succeed.
Does Mr Kish suffer from chronic rotator cuff strain and musculigamentous strain of the thoraco-lumbar spine? (N2004/1145)
86. Mr Kish made a claim for rehabilitation and compensation on 1 June 2004 in respect of “chronic rotator cuff strain” and “musculigamentous of the thoraco-lumbar spine”. Mr Kish claimed this injury occurred in the early to mid 1990s and was a result of a chain of events a this work including:
§Early to mid 1990s: repetitive work pressure from management… non-ergonomic work station; and
§1999: moving boxes for management… repetitive bending and twisting movements.
87. In a determination of 5 August 2004 Comcare denied liability for this claim. In a decision dated 3 September 2004 an IRO affirmed this determination, stating that the medical evidence and Mr Kish’s claim were both vague.
88. We agree with the decision of the IRO. Therefore, Mr Kish’s N2004/1445 claim does not succeed.
Does Mr Kish suffer from an exacerbation of a previous injury to his back? (N2006/64 & N2006/65)
89. On 5 May 2005 Mr Kish lodged two claims, both in respect of “an exacerbation (at work) of previous injury” to his back. The first claim, N2006/64, stated that the injury occurred on 10 August 2004 after:
[an] “occupational rehab therapis insisted I alter the ergonomic of my desk from ‘flat back’ to ‘neutral spine’ [and] the O.R.T. insisted I raise the height of my PC monitor by 4cm approximately. This placed a curve and unsupportable strain on my back leading to a complete muscular de-stabilisation, as I see it.
90. A determination of 4 October 2005 denied liability for “aggravation of displacement thoracic/lumbar intevertebral disc”. Mr Kish requested a review of this, and on 12 January a reviewable decision affirmed this determination, stating that of the two medical opinions on file, the opinion of Dr Bornstein was preferred Dr Bornstein suggested that Mr Kish did not suffer from any back condition related to his employment.
91. The reviewable decision of 12 January considered whether an aggravation could have arisen in the corse of Mr Kish’s employment. The decision again referred to the medical evidence of Dr Bornstein, notably his opinion that, on examination some two months after the claimed date of injury, Mr Kish’s back appeared normal.
92. Mr Kish’s other claim of 5 May 2005 claimed that Mr Kish suffered an exacerbation of the injury to his back on 11 January whilst “sitting in office chair”. On 4 October 2005 Comcare denied liability for “aggravation of unspecified back disorders. On 12 January this determination was affirmed in a reviewable decision. The reviewable decision stated:
As no work related factor has been identified in the medical evidence which is related to the assumed aggravation, I am unable to be satisfied that the employee suffered an injury being an aggravation of an underlying back condition.
93. We agree with the two reviewable decisions, N2006/64 and N2006/65 respectively. Therefore, Mr Kish’s claim does not succeed.
decision
94. The reviewable decisions are affirmed.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Rhonda Pietrini
Associate
Date/s of Hearing 7-8 June 2006 & 12 October 2006
Date of Decision 30 November 2006
Counsel for the Applicant Elizabeth Wood
Solicitor for the Applicant Martin Carrick
Counsel for the Respondent Brendan Kelly
Solicitor for the Respondent Maree Mittiga
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