KRISTY SMITH and COMCARE
[2013] AATA 427
[2013] AATA 427
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2179
Re
KRISTY SMITH
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 25 June 2013 Place Brisbane (heard in Townsville) The Tribunal affirms the decision under review.
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Senior Member Bernard J McCabe
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth employee – Accepted workplace injury – Liability for ongoing medical costs – Liability for permanent impairment – Workplace injury resolved – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
Ms Kristy Smith hurt her back when she fell down the stairs at work on 8 December 2008. Comcare initially accepted it was liable to compensate Ms Smith in respect of her injury under the Safety, Rehabilitation and Compensation Act 1988, but it says the injury should have resolved itself by now. Ms Smith says she continues to suffer pain connected to the injury. She wants Comcare to accept liability for ongoing treatment. She has also made a claim in respect of permanent impairment. Those matters have now come before the Tribunal.
The outcome of this case turns on the medical evidence provided by a range of specialists. Given that evidence, I am not satisfied Ms Smith's current complaints of ongoing pain can be attributed to her work. That means her claims in respect of ongoing medical treatment and permanent impairment cannot succeed. I explain my reasons below.
BACKGROUND
Ms Smith was (and is) employed by the Australian Taxation Office in Townsville. She was walking downstairs to the basement on 8 December 2008 when she fell. She said she landed on her back and hurt herself in three places: at the lower back, in the middle of her back and at the base of her neck. She could not stand up after the fall and had to crawl upstairs for help. She was given first aid treatment and taken to hospital in a neck brace. Her neck was x-rayed but nothing was broken. She was discharged later that day but she says she was in a great deal of pain. Ms Smith was unable to return to work for five months after the accident.
An incident report was filed. Comcare accepted liability for lumbar sprain and sciatica on 9 June 2009 and for injury to the sacral nerve root on 20 August 2009.
Ms Smith was receiving treatment of various kinds from her medical practitioners. At first, none of them were able to provide relief from the pain. She was prescribed powerful medications like Valium and OxyContin. Ms Smith was understandably worried about the consequences of long-term use of these drugs. She saw a new general practitioner, Dr Kumar, in 2011. Dr Kumar was alive to the dangers of addiction. She sought to manage the pain condition through a combination of measures, including physiotherapy and a program called “bounce back”. Ms Smith was also sent to a pain management clinic. All this is recorded in Dr Kumar's notes: exhibit two.
Ms Smith said in her evidence that she started to experience real benefit from these measures in late 2011 and early 2012. She was able to reduce her intake of OxyContin. While the pain was not eliminated, it became much more manageable. She also said she was better able to manage some of the tasks of daily living.
These measures cost money. That was not an issue while Comcare was paying the bills. But Comcare decided in February 2012 that the effects of the original injury – which was essentially a soft tissue injury – must have passed. It concluded (and argued today) that any pain the applicant experiences cannot be attributed to her workplace injury. In those circumstances, Comcare was no longer prepared to fund Ms Smith's treatment. She was unable to continue with the measures recommended by Dr Kumar that appeared to be producing encouraging results. She said the pain quickly returned and she was forced to rely on the medication again. Her intake of OxyContin has increased. The applicant said she wants Comcare to support her receiving the treatment measures recommended by Dr Kumar.
THE MEDICAL EXPERTS
The medical experts referred to at the hearing fell into three groups. There were two orthopaedic surgeons (Drs Khursandi and Gibberd), two neurologists (Drs Ohlrich and Costello) and a rehabilitation physician (Dr Watson). All of them filed reports.
The evidence of the orthopaedic surgeons can be summarised briefly. Dr Gibberd was unable to identify an orthopaedic explanation for Ms Smith's current symptoms. He said he was unable to identify any objective signs of continuing pathology that might explain the applicant's pain. He reached that view after conducting two physical examinations, listening to the patient's history and reviewing the radiological evidence. He added that some of the applicant's responses were abnormal and inconsistent with the claimed physical condition. He concluded her current pain did not have any organic cause. Dr Khursandi reached essentially the same conclusion, although he was prepared to accept there may have been an underlying constitutional condition that was temporarily aggravated by the fall at work. Both doctors were strongly of the view there was no connection between her current condition and what occurred at the workplace. (Dr Curtis, an orthopaedic surgeon, appeared to agree there was abnormal pain behaviour but – notwithstanding that apparent agreement with Drs Gibberd and Khursandi – he later accepted some of that pain might be attributable to the workplace. It is difficult to understand how his opinion is internally consistent, so I set it to one side.)
I turn next to the evidence of Dr Watson. He saw the applicant on one occasion for treatment purposes and subsequently wrote a report. He is an occupational physician whose practice deals almost exclusively with people experiencing pain. He is not a pain physician as such, although he has a keen interest in the topic. Dr Watson said the applicant's current condition is attributable to her work, and it is debilitating. He said the applicant's condition was triggered by the pain she experienced in the fall. The trauma of the injury caused her central nervous system to become sensitised and dysfunctional. There has been a functional change in that system as a result of that trauma. The system reacted in much the same way an electrical system would react when there is a blow-out leading to short-circuiting. He said the pain the applicant now experiences – pain behaviour that appears abnormal to an orthopaedic surgeon – is completely explained by this condition.
To make his diagnosis, Dr Watson relied on the sensory abnormalities that perplexed the orthopaedic surgeons and the distribution of the pain. Whereas the orthopaedic surgeons said constant pain described by Ms Smith was abnormal in a person who experienced mechanical difficulty, Dr Watson said that was common in cases where the central nervous system had become sensitised. He said the presence of burning pain was especially significant. He added persons with this condition usually found physiotherapy and other physical treatment made their pain even worse.
As it happens, Ms Smith gave evidence that her physiotherapy treatment was actually working: it was making her feel somewhat better. Dr Watson said not everyone with the neuropathic pain condition he described had difficulty with physiotherapy, but that does not explain how physiotherapy was helping the condition since it has not been suggested physiotherapy was a treatment for central nervous system sensitisation. Dr Watson opined that the neuropathic condition must have been of late onset and only arose after the physiotherapy ceased in 2012. But that does not make sense, as Mr Harding pointed out in submissions on behalf of Comcare. The soft tissue injury should have resolved by the time the physiotherapy was being administered in 2011 and 2012. If the soft tissue injuries were no longer a factor, what was causing the pain at that point? If it was neuropathic in origin, it should not have responded positively to physiotherapy. If it was not neuropathic, and it was not the direct product of the soft tissue injury, how else is it to be explained?
That is a mystery. But I think there are some other difficulties with Dr Watson's evidence. Dr Ohlrich, an experienced neurologist, said the neurological signs which formed the basis of Dr Watson's opinion were not especially significant. He said the evidence he saw in his clinical examination was not consistent with Dr Watson's observations. He pointed out Dr Watson was not a neurologist. I accept Dr Ohlrich is better placed to make neurological investigations because of his specialist training. I prefer his assessment in those circumstances. Dr Ohlrich said there was simply no evidence of any significant impact on the functioning of the nervous system that would explain the pain the applicant experiences. The observations of Dr Costello following his testing appear to support that view. In the circumstances, I prefer the view of Dr Ohlrich on a matter which falls squarely within his area of specialisation.
Dr Ohlrich was careful to say he did not doubt the applicant experienced pain. He said he could not offer an organic explanation for what was happening to her. There may be other causes, but he was unable to say for sure what they might be – but he was confident the symptoms she was reporting could not be attributed to her fall at work.
I have not discussed all of the medical evidence in these reasons. Suffice to say I have also had regard to the evidence of other doctors included in exhibit one, including the opinions of Drs Emery and Curtis. Those doctors do not provide a clear explanation for the applicant's current symptoms, much less explain any link to her workplace injury.
CONCLUSION
I am satisfied the preponderance of the medical evidence establishes the applicant's pain symptoms cannot be attributed to the accident which occurred in her workplace in 2008. The effects of the injury she sustained on that occasion have ceased. It follows the decisions under review with respect to ongoing medical treatment and permanent impairment must be affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 25 June 2013
Date of hearing 23 May 2013 Applicant In person Counsel for the Respondent Mr Anthony Harding Solicitors for the Respondent Australian Government Solicitor
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