Lombardi and Comcare
[2005] AATA 167
•24 February 2005
|
DECISION AND REASONS FOR DECISION [2005] AATA 167
ADMINISTRATIVE APPEALS TRIBUNAL ) N2003/1607
)
GENERAL ADMINISTRATIVE DIVISION )
| Re | ROBERTA LOMBARDI | |
Applicant
| And | COMCARE |
Respondent
DECISION
| Tribunal | Ms G Ettinger - Senior Member |
Date 24 February 2005
PlaceSydney
DecisionThe reviewable decision is affirmed.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988, costs cannot be awarded.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – claim for 1995/6 back injury – injury not reported - section 53/notice issue - employer, the Commonwealth Bank later self insured in relation to 2001 injury/aggravation - other injuries claimed via State system – no reasonable excuse - no liability – any permanent impairment not compensable – decision affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 53
CASE LAW
Holmes v Comcare [2001] AATA 290
Comcare v Luck [1999] FCA 100
Re Hanson and Comcare (1996) 41 ALD 639
Re Brady and Australian National Railways Commission (1987) 13 ALD 187
REASONS FOR DECISION
| 24 February 2005 | Ms G Ettinger – Senior Member |
The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Ms Roberta Lombardi appealing against a decision of Comcare, the Respondent, dated 14 May 2003 (T15), which was affirmed by the decision of 22 August 2003 (T23), and made within the legislative environment of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). Comcare found that compensation was not payable to the Applicant in respect of a back injury sustained on a deemed date in 1994/5, (which at the Tribunal Hearing was considered to be more correctly characterised as 1995/6).
At the Tribunal Hearing, the Applicant was represented by Ms K Sibley of counsel instructed by Andrew Fegent & Company, and the Respondent, Comcare, by Mr S Moffet of counsel, instructed by Dibbs Barker Gosling Lawyers.
ISSUES BEFORE THE TRIBUNAL
I had to decide :
whether liability should be accepted by the Respondent for injury to the Applicant’s lumbar spine claimed to have been incurred at work in 1995/6, and of which notice was not given to her employer in writing as soon as practicable (section 53 of the Act);
whether I was satisfied Mrs Lombardi had a reasonable explanation for not having reported her 1995/6 injury pursuant to section 53 of the Act; if so,
whether she is entitled to compensation pursuant to section 14 of the Act, and is permanently impaired pursuant to sections 24 and 27 of the Act in relation to injuries claimed to have been incurred on an unspecified date in 1995/6.
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, 16, 24, 27 and 53
I was mindful that for Ms Lombardi’s injuries to be compensable, the definition of injury, which includes aggravation of a physical or mental injury pursuant to section 4 of the Act must be satisfied, and the injuries must be found to have resulted in incapacity for work as claimed by the Applicant, (section 14 of the Act).
Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“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;
...”
Section 14(1) of the Act provides that:
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
Sections 24 and 27 are relevant in relation to claims for permanent impairment. As relevant they follow
“24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of
the injury.
...
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
...
(7)... [W]here Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.”
“27. (1) Where an injury to an employee results in a permanent impairment
and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.”
BACKGROUND AND EVIDENCE OF THE APPLICANT
Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”), the (“T-Documents”). A number of other documents were also admitted into evidence and are referred to during the course of these Reasons for Decision.
Oral evidence was given by Ms Lombardi, and Drs D Dixon, orthopaedic surgeon, D Champion, a consultant physician in rheumatology and pain medicine and D Bornstein, orthopaedic surgeon.
Ms Lombardi, whose date of birth is 30 November 1964, commenced employment with the Commonwealth Bank (“the Bank”) in 1990. She is now separated from her husband, and has two sons, aged 16 and 12. Ms Lombardi’s Statutory Declaration dated 23 January 2004 was before the Tribunal as Exhibit A2.
Ms Lombardi told me that when she commenced with the Bank, she performed the duties of a customer service officer, taking inquiries, closing accounts and generally working standing at a counter. When asked about her back, she said that in 1991, she consulted Dr Bentivoglio, an orthopaedic surgeon, and had a cortisone injection and pain killers for pain on the right hand side of her lower back. She said that the symptoms disappeared after about seven months, to a year, and that she did not lose any work time as a result of her back pain. She said that between 1991 and 1994/5 when she had her accident subject of the claim before the Tribunal, she had no problems with her back.
In cross-examination Ms Lombardi agreed she had not mentioned back problems prior to the 1995/6 injury to doctors who examined her in 2002. She said that the prior back problems had been minor and short term only, and that she had accordingly not thought to mention them. She said that she could not recall not telling Dr Champion about the treatment Dr Bentivoglio had given her. I noted that Dr Champion recorded that Ms Lombardi told him that before 1995/6 she had backache associated with menstrual periods.
Ms Lombardi gave evidence that in approximately 1995, when a refurbishment of her branch at Leichhardt took place, she had to move things around because shelves were being built. Ms Lombardi said that she had to move a box approximately 15 metres from the open area in the front to the back office, and noticed a “twitch” in her back. She said: “I felt as if I had sprained my back”.
Ms Lombardi was unable to remember the exact date of the injury, but related it to the completion of the refurbishment of her branch, saying that was completed in early April 1996, and saying that the incident had occurred some two weeks before that date. She said that she had not reported it because she was afraid it would affect her work situation, stating that she had seen a colleague being treated “differently”, after reporting an injury. She said that she needed her job, and was fearful of losing it. Notwithstanding her statement that she was not aware of her rights to compensation in paragraph 29 of her Statutory Declaration, in her oral evidence, Ms Lombardi told the Tribunal that she was aware of her rights to compensation. However, I noted that she did not report the 1995 injury until 2003.
Ms Lombardi said that she attended a doctor not far from the bank in Leichhardt, approximately a month after the incident, and was prescribed anti- inflammatories and remedial massage, the latter giving relief for a few hours at a time. She said that after a period of two months, she stopped having the massage due to financial problems.
Ms Lombardi said that a month after the incident, her back was sore, “up and down”, and she found it difficult to stand at work, but was able to continue because she was working only two days a week. She said that the pain caused problems at home, and she required help from her family with cleaning duties. She said that she found it difficult to bend, lift, or push a supermarket trolley.
Ms Lombardi told me that in 1997 her back was “up and down”, and she would have one pain free day per month. She also told me she worked at Woolworths for eight months in 1997, and made a compensation claim with regard to her neck and shoulder arising from work there. Ms Lombardi said that in 1997, the pain was in the same place as in 1991, on the right side of the lower back, (I noted that the claim regarding the 1995/6 injury was for the left side).
The Applicant told me that in 1998 her back pain was severe, and she requested an ergonomic chair at the Bank because she found it difficult to stand and do her job. She said that by June 1998, the chair made her back worse, and from late 1995 to 1998 the left side of her lower back had worse pain. She said that she had difficulties with prolonged sitting and standing, and could not walk up or down hill. She had difficulties with housework and with bending, lifting or pushing trolleys and shopping.
Ms Lombardi said that in December 1998 she consulted Dr Ziade, because Dr Singh, her general practitioner, was overseas. She was treated with anti-inflammatories and did not take time off work or make a compensation claim. She said that the pain was worse at that time. I noted that Dr Ziade referred Ms Lombardi to Dr McGill, a rheumatologist. When asked in cross-examination why she had not told Dr McGill about the 1995 incident, Ms Lombardi said that it had nothing to do with her referral.
Ms Lombardi told me that on 27 November 2001, she suffered a further injury at the Bank when lifting a small box which was not as heavy as the one she lifted in 1995/96. She said that she felt a sharp pain in both sides of her lower back, and into her leg. She was treated with anti-inflammatories and Feldenkrais exercises, and attended at an osteopath and physiotherapist.
Ms Lombardi told me that she has a 2001 matter lodged at the NSW Workers Compensation scheme, on appeal (Exhibit A1).
Ms Lombardi said that she lodged a claim with Comcare on 7 April 2003 with regard to the 2001 incident. She said that she returned to work on shorter hours in 2002, and that she was still on restricted hours at the time of the Hearing. Several investigations (CT scans and MRI) were carried out in 2002.
When asked how her back was at the time of the Hearing, Ms Lombardi said that the pain was worse than in 1996, but that she has had pain right through the period to the present. She said that she also suffers from panic attacks and loss of memory.
THE APPLICANT’S SUBMISSIONS
In summary Ms Sibley submitted that:
Ms Lombardi suffered injury to her lower back in an identifiable event, lifting a box whilst employed by the Commonwealth Bank. Her difficulty in recalling the exact date was not of consequence, and she was able to link the incident to sometime before the completion of the refurbishment of the branch on 2 April 1996.
Ms Lombardi felt a “twitch” in her back, and did not notify the injury because she did not think it bad enough to report, and thought it would resolve. Ms Sibley acknowledged that a month later when the Applicant sought assistance from her general practitioner, the event should, pursuant to section 53 of the Act, have been notified, but submitted that Ms Lombardi needed her job, and was fearful of losing it as a result of such notification. Ms Sibley referred to Holmes v Comcare [2001] AATA 290 and Comcare v Luck [1999] FCA 100in regard to notification, and submitted that pursuant to Holmes (supra), the claim form Ms Lombardi lodged in 2003, could be taken to be the notification required pursuant to section 53 of the Act.
Ms Sibley also referred to section 53(3)(c) of the Act, submitting that Ms Lombardi had reasonable cause not to report the injury. She submitted, referring to Holmes (supra), that the Respondent would have to show prejudice suffered as a result of the injury not having been reported, which she submitted it could not. She submitted that the Bank was still operating, and witnesses could have been contacted.
Ms Lombardi had lost no time off work for back pain from the date of injury in 1995/6 until December 1998 (Exhibit R5), when Dr Ziade opined that Ms Lombardi’s back pain was chronic, and it had radiated to her left leg; she sought treatment in 1999, the radiology showing an annular tear.
Ms Lombardi claimed that the 1991 back pain for which she consulted Dr Bentivoglio both in 1991 and in 1997, (Exhibits R14, 15 & 16), was in regard to the right side of her back, which she said had resolved.
Ms Sibley then referred to an aggravation Ms Lombardi suffered at work in November 2001 when she lifted a box. She submitted that the Applicant has suffered left lower back since the event of 1995/6, and has had treatment with anti-inflammatories and has had to vary her activities ever since (difficulties with gradients, bending, lifting and housework); the Applicant has suffered left sided sciatica since 1998;
Ms Sibley referred to the reports of Drs Bornstein (19 April 2004), who stated that the incident lifting the box could have caused the annular tear, and that the level of restriction Ms Lombardi suffers could constitute compensable permanent impairment. She also referred to the opinion of Dr Thomson (Exhibit R13), the latter finding that Ms Lombardi has suffered back pain since 1995. Ms Sibley also said that although Dr Bornstein had erroneously recorded the shoulder injury Ms Lombardi suffered at Woolworths as having occurred in 1993/4, it was to the Applicant’s credit that she had informed Dr Bornstein of it.
The Applicant claims to suffer more than minor restrictions of movement since the incident of 1995/6, which became permanent on that day, equating to 10% permanent impairment.
THE RESPONDENT’S SUBMISSIONS
A summary of Mr Moffet’s submissions made on behalf of the Respondent was as follows:
Mr Moffet submitted that the problems in this case related to credit of the Applicant, the non-reporting of the 1995/6 injury, the problem of lack of contemporaneous documentation, X-rays, surveillance, witnesses, the impact of a further injury in 2001, and the ability to test the veracity of the claim.
Mr Moffet submitted that Ms Lombardi could not satisfy the tests for reasonable cause in section 53 of the Act, in that she took no time off, stated in her Statutory Declaration that she was unaware of her rights to compensation when in her oral evidence, she contradicted that, and had conceded in her oral evidence that after the first month, she knew that the injury was severe enough to have made a claim. Mr Moffet submitted that Ms Lombardi’s fears, as stated by her that she could be treated differently or lose her job if she made a claim, did not constitute reasonable excuse pursuant to the Act. He referred to the cases of Re Hanson v Comcare (1996) 41 ALD 639 and Re Brady and Australian National Railways Commission (1987) 13 ALD 187.
Mr Moffet referred to the Applicant’s duty to report injury pursuant to section 53 of the Act, (Holmes (supra)). He submitted that Ms Lombardi claimed she was injured in 1995/6, and yet did not report her injury or make a claim until 2003. Accordingly Comcare was prejudiced because it was prevented from managing the claim.
Mr Moffet referred to what he characterised as the either, inadequate, or indeed, false histories, Ms Lombardi had given to the various medical practitioners who examined her, mainly in regard to non-disclosure of the back pain she suffered, and for which she consulted Dr Bentivoglio in 1991. He referred in particular to consultations with Drs Champion and Dixon, submitting that Dr Dixon’s report ought therefore not be accepted. He indicated that Dr Champion had described Ms Lombardi as a less than average historian. Mr Moffet also submitted, referring to the report of Dr Bentivoglio of 24 October 1997, that Dr Bentivoglio had reported long term pain and no preceding trauma, indicating that Ms Lombardi had not informed Dr Bentivoglio of the 1995/6 incident. Mr Moffet submitted that Dr Bornstein was equivocal regarding the permanent impairment.
In summary, Mr Moffet submitted that Ms Lombardi could not transcend the section 53 hurdle, had problems with credit and the giving of histories to the various doctors, and could not succeed in her claim, which should be affirmed.
MEDICAL EVIDENCE
As expected, there was a large amount of medical evidence before the Tribunal. Drs Dixon, Champion and Bornstein gave oral evidence and had reports which are Exhibits before the Tribunal. I have dealt with them in the paragraphs which follow, noting that the various radiological and other investigations have also been reported.
THE TRIBUNAL’S DELIBERATIONS
Having heard all the oral evidence, I also had to take into account the written evidence, submissions of the parties, case law and legislation to make the correct and preferable decision regarding whether I was satisfied Mrs Lombardi had a reasonable explanation for not having reported her 1995/6 injury pursuant to section 53 of the Act. If I was so satisfied, I had to decide whether liability could be accepted by the Respondent pursuant to section 14 of the Act, and whether Ms Lombardi is permanently impaired, and entitled to compensation pursuant to sections 24 and 27 of the Act in relation to injuries claimed to have been incurred on an unspecified date in 1995/6.
I have spent quite some time considering the issues in this case, which rely very much on the veracity of the Applicant’s evidence. There were no identifiable witnesses to her alleged accident at work, on a date she cannot recall exactly, which was either in 1995 or 1996. The most accurate date Ms Lombardi could give me was that the Leichardt branch of the Commonwealth Bank where she then worked, and is still employed, on a two day a week basis, was being refurbished, and that her accident happened during the latter part of the refurbishment, which was completed in April 1996.
There was no report of an incident made at the time, no witnesses have been identified, and no compensation claim was made until 7 April 2003. I noted that due to difficulties in ascertaining the exact date of injury, the Respondent deemed Ms Lombardi’s incident lifting the first box to have taken place on 1 July 1994. From the evidence before me, it appeared to have been either in late 1995, or early 1996, shortly before the completion of the refurbishment of the branch of the Commonwealth Bank where the Applicant worked. I have referred to the incident as the 1995/6 incident.
issues of credit
I found considerable inconsistencies in Ms Lombardi’s evidence. It commenced with her excuses for not reporting the incident at work in 1995/6 in which she had to carry boxes of papers during the refurbishment of her branch. She told me that on the particular day of the incident with her back, she had lifted a box of papers from the floor, and carried them some 10 – 15 metres to another space, and deposited them on a table.
She said that is was during this task that she felt a “twitch” in her back, which she did not report, as she thought it would pass. Later on in her oral evidence, Ms Lombardi said that she thought the incident was serious enough to report, but did not do so for fear of loss of her job, which she needed. She also said that she had seen a colleague Anne-Marie treated “differently” after lodging a compensation claim, and she had not wanted to be the subject of such treatment. She ultimately lodged a claim for compensation on 7 April 2003. I have dealt with that in the paragraphs below where I have considered the application of section 53 of the Act.
I noted that Ms Lombardi consulted a number of doctors, and when asked in cross-examination whether she had told each about her prior (1991) back pain, her answers alternated between:
she could not remember; or
that she only informed the doctor in reply to questions asked of her; or
that she did not think it relevant to mention the 1991 back pain; or
that the 1991 back pain was on the right hand side, and had resolved, whereas the 1995/6 injury was to the left side.
This meant she did not tell Dr Oakeshott, whose report is dated 25 February 2003, Dr Mastroianni, whose report is dated 7 March 2003, Dr Thomson whose report is dated 5 August 2003, Dr Dixon whose report is dated 9 March 2004, Dr Bodel, whose report is dated 30 October 2003, Dr Bornstein whose report is dated 19 April 2004, and Dr McGill whose report is dated 29 July 2002 about previous back pain for which she was treated in 1991. I noted also that Ms Lombardi did not tell Dr Dixon about her pain in 1998 or the 2001 injury or aggravation lifting a box at work. That of course had an impact on how the doctors assessed Ms Lombardi’s condition, and renders the reports of limited value to the Tribunal’s task.
Having heard the abovenoted answers given by Ms Lombardi in cross-examination to questions regarding why she did not give many of the doctors she consulted a full and frank history of her back injuries, I took the opportunity of warning Ms Lombardi that she had undertaken to tell the truth at the Tribunal.
I was mindful also that Ms Lombardi told me at the Tribunal that her pain fluctuates, whereas in her Statutory Declaration she indicated that it was constant. At paragraph 9 of Exhibit A2, she stated: “I had more or less a constant level of back pain from the time of the initial injury onwards.” In re-examination, Ms Lombardi said again that between 1995 and 1998 she was in constant pain.
I noted that between 1991 and November 2001 (the date of the second box lifting incident), Ms Lombardi had no time off for back injury. She did however take sick leave during that period, apparently for other reasons.
In support of her apparent poor recall, Ms Lombardi gave the excuse that she had been suffering anxiety and panic attacks for the past ten years. I told Ms Lombardi that if she wanted to rely on such evidence, medical evidence would need to be led. She did not pursue that line of argument further.
In summary I felt that there were issues of credit with this witness.
section 53 issues
It was not in dispute, and I accepted that Ms Lombardi did not report her 1995/6 back injury at the Commonwealth Bank, nor make a claim until 7 April 2003. I was also satisfied that she did not therefore comply with the terms of section 53 of the Act which indicate that as soon as practicable after the employee becomes aware of the injury, she must give notice of it in writing to the relevant authority.
Section 53 of the Act states as follows:
“SECT 53
Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
…
(3)
Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”
I have noted her reasons were that she at first felt only a “twitch”, when she lifted a box, and thought her back pain would resolve, and that after a month when she sought medical assistance, made a conscious decision not to report the injury because she had witnessed a colleague being treated “differently” as a result of making a claim. The Applicant said that she was afraid of losing her job. She also told me, apparently in support of her fear of being treated “differently” for lodging a compensation claim, that she had recently been transferred to another branch after many years at the Leichhardt branch of the Commonwealth Bank. I am mindful there was no evidence led in rebuttal of such claim.
I then considered section 53(3) of the Act, and noting the submissions of the parties, considered whether the Respondent would be prejudiced by the lack of notice. I noted the argument of the Applicant that the branch of the Bank was still in operation, and that in preparation for the Hearing, co-workers could have been contacted. I noted also the Respondent’s submission that attempts to contact such people had not been fruitful.
I agreed with the submission of the Respondent that prejudice would be suffered if the discretion to accept late notice of the claim was exercised, as there was no contemporaneous documentation, neither X-rays nor surveillance, nor witnesses. I also accepted the Respondent’s submission that there was the impact of a further injury to take into account, and overall, the ability to test the veracity of the claim.
As to the other factors in section 53(3); absence from Australia was not relevant. As to ignorance, mistake or other reasonable cause; notwithstanding her statement in the Statutory Declaration at paragraph 6 of Exhibit A2 where Ms Lombardi wrote: “I was, in hindsight, unaware of what rights I had for compensation, particularly as it relates to treatment costs, but also in general”, and paragraph 29: “My not reporting stemmed from by being unaware of my rights …, she told me in oral evidence she knew of her rights to compensation. In fact the reasons the Applicant gave for not notifying her employer or making a claim were that at first she thought the matter would resolve, and then later, was in fear of prejudicial treatment from her employer, and perhaps even loss of her position if she informed the Bank of her accident. I did not accept that Ms Lombardi’s excuses constituted reasonable excuse, neither that she could satisfy any of the tests in section 53 of the Act. Notification can be taken to have occurred on 7 April 2003 when the compensation claim was made. (Holmes v Comcare (supra) and Comcare v Luck (supra)).
However, as I heard evidence in support of Ms Lombardi’s claim for permanent impairment, I have also addressed that in these Reasons for Decision.
liability of the commonwealth – permanent impairment
Comcare acknowledged receipt of Ms Lombardi’s claim for permanent impairment being 2 May 2003 (T14), and on 14 May 2003, (T15), refused the claim for compensation for the 1995/6 injury which it characterised as nominally having occurred on 1 July 1994. This was affirmed on 22 August 2003 (23). Ms Lombardi appealed to this Tribunal on 10 October 2003.
I have already in the paragraphs above considered inconsistencies in the evidence Ms Lombardi gave regarding her injuries. Ms Lombardi:
claimed in her Statutory Declaration that she did not know about her rights to compensation for injury, while in her oral evidence, she admitted she did.
claimed at paragraph 9. of her Statutory Declaration that she had “more or less a constant level of back pain from the time of the initial injury onwards.” In her oral evidence, the Applicant said that in 1997, her back was “up and down” and she would have one pain free day a month, and that from 1995 – 1998, the left side of her lower back pain was worse, and that it was worse at the time of the Hearing than in 1996.
did not give an accurate history to several doctors, including Drs Champion, Mastroianni, Thomson, McGill, Ziade, Oakeshott and Dixon, in that she omitted reference to the 1991 back pain for which she consulted Dr Bentivoglio, and had treatment. Ms Lombardi did however tell Drs Oakeshott and Thomson that on a number of occasions, she had had low back discomfort associated with her menstrual periods prior to 1994/5.
Accordingly, the reports of those doctors must be considered in light of the fact they did not have a full and correct history of Ms Lombardi’s back condition.
I noted that the main investigations carried out were as follows:
X-ray lumbosacral spine, 15 July 1999, showing mild narrowing of the L5/S1 disc, possibly developmental or degenerative.
CT lumbar spine, 14 September 1999; mild degenerative disc disease at L4/5. Dr Oakeshott opined that the changes were constitutional in origin and not associated with her work.
MRI, 18 January 2001, degenerative changes at L4/5. Drs Bodel and Ziade indicated a small annular tear was visible in the MRI.
MRI, 23 January 2002, small diffused disc bulge at L4/5 and L5/S1; disc dessication associated with a small annular tear.
In summary, from 1999, a small annular tear was evident from the investigations,
In connection with deciding this matter, I have also reviewed all the medical evidence available, noting that Dr Champion who is a consultant physician in rheumatology and pain medicine, Dr D Dixon, orthopaedic surgeon, and Dr D Bornstein, orthopaedic surgeon, were called to give oral evidence.
Dr Champion’s reports were at T3 and T4, both dated 13 November 2002. Dr Champion recorded that Ms Lombardi reported no back injuries prior to 1994/5, although he concluded that some biomechanical factors were present before the 1994/5 injury and thought it would appropriate to attribute “about 20 percent non work factors contributing to the causation of her back disorder”. Dr Champion wrote that: “In arriving at my conclusions, I have assumed that Mrs Lombardi has endeavoured to report reliably. Unfortunately her memory did not appear particularly reliable, especially in regard to the early history.”
Dr Champion concluded in his written report that: “Mrs Lombardi’s low back and left leg pain is associated with degenerative change and biomechanically induced pathology at L4-5 and to a lesser extent L5-S1, and that she has referred pain with radicular components to the left leg without evidence of compressive radiculopathy.” He assessed Ms Lombardi as 10 percent permanently impaired as a result of the 1994/5 injury, before the effects of the 2001 injury, during the currency of which the Commonwealth Bank was covered by State workers compensation legislation.
Mr Moffet drew Dr Champion’s attention to the fact that Ms Lombardi did not see a specialist after the 1995/6 accident, had only minor restrictions, did not have time off work, and did not inform Dr Champion correctly of her 1991 back pain. He asked Dr Champion how that sat with the assessment of 10 percent impairment Dr Champion had given. Dr Champion replied on the basis of the full history, that one could say the injury had been trivial, or Ms Lombardi had been stoic and determined, but agreed with Ms Sibley that if the restrictions Ms Lombardi suffered were more than minor, she qualified for the 10 percent.
Dr Dixon’s report of 9 March 2004 was before the Tribunal as Exhibit A3. He stated in his report that Ms Lombardi developed low back pain as a result of picking up boxes, forms and files at the Bank in approximately 1995, and that since that time she has had recurrent back strains in the course of her duties, associated with low back pain and left sciatica. He said that the Applicant was restricted in her household duties as a result. He assessed a 17 percent whole person impairment on the basis of the 1994/5 incident.
Dr Dixon acknowledged in his oral evidence that Ms Lombardi did not inform him of any injury or back pain prior to 1994/5, and acknowledged the history put to him in cross-examination would make a difference to his assessment.
Dr Bornstein’s report of 19 April 2004 was before the Tribunal as Exhibit R3. He diagnosed mechanical instability of the L4-5 disc, and no particular cause for the leg pain. Dr Bornstein opined that Ms Lombardi had 0 percent whole person impairment pursuant to Table 9.2 and 10 percent pursuant to Table 9.6, adding that the impairment of the back became permanent in 2001.
During cross-examination Dr Bornstein was given the complete and correct history of Ms Lombardi’s situation, which included the consultations with Dr Bentivoglio in 1991, and 1997. On the basis of that, Dr Bornstein affirmed that an annular tear could occur lifting a box as Ms Lombardi reported she did in the 1995/6 incident.
The Tribunal - In reviewing the evidence of the doctors who gave oral evidence and therefore had an opportunity of being informed about the 1991 back pain, I noted that:
Dr Champion had already in his written report recorded that Ms Lombardi did not have a particularly reliable memory. When he was informed about Ms Lombardi’s accurate history, and asked how that would affect his assessment of 10% permanent impairment, made after his 2002 examination, Dr Champion could only say that either the injury had been trivial or Ms Lombardi was stoic and determined.
Dr Thomson also noted inconsistencies in results at medical examination “such as to cast doubt on the testimony of the worker.” (Exhibit R13)).
Dr Dixon acknowledged the history put to him in cross-examination would make a difference to his assessment.
Dr Bornstein was also given the more accurate version of Ms Lombardi’s history at the Hearing. He had assessed the permanent impairment as becoming permanent in 2001, but said that an annular tear could occur as a result of the incident in 1995/6.
I was not satisfied from the evidence of those doctors, who all had incomplete histories, that Ms Lombardi suffered a compensable injury after the incident in 1995/6, neither that it had become permanent either then, or at any other time.
other medical evidence
Drs Bentivoglio (Exhibit R2, R14, 15, 16), Mastroianni (Exhibit A4), Bodel (Exhibit A5), Ziade (Exhibit A6, & R8), Bornstein (Exhibit R3), Singh (Exhibit R9), McGill (Exhibit A11), Oakeshott (Exhibit R12), Thomson (Exhibit R13, and Ms Leonard (Exhibit R7) did not give oral evidence, but had prepared reports which were before the Tribunal. There were also leave records (Exhibit R4 & R6) and medical certificates (Exhibit R5).
Dr Bentivoglio’s reports were at Exhibit R2, R14, 15, 16. His report at Exhibit R2, was a letter of 31 January 1991 in which he reported that Ms Lombardi presented with “bad discomfort in both sacroiliac joints for about one year”, which had come on without any preceding trauma. His reports at Exhibits R14, 15 and 16 indicated as follows:
Exhibit R14 – 24 October 1997- Dr Bentivoglio referred to right sided low back pain which Ms Lombardi had had for “a few years”, which had come on without any preceding trauma.
Exhibit R15 and R16 were written in 1998 – Dr Bentivoglio referred to right sided low back pain, and some degree of abnormality in Ms Lombardi’s right sacro-iliac joint. Both reports were written to discuss work arrangements.
There were also reports of Dr Bentivoglio dated 19 February 2002 and 3 April 2002 to Dr Ziade (Exhibit R8), in respect of bone scans and MRI investigations.
Dr Mastroianni’s report at Exhibit A4 was dated 7 March 2003. Dr Mastroianni opined that Ms Lombardi has symptoms and signs associated with lumbar disc pathology and left sided sciatica. He was satisfied this arose out of the 1994/5 injury and the 2001 incident, and opined that Ms Lombardi developed back pain following the earlier incident, with symptoms fluctuating. He considered that not inconsistent with a disc lesion sustained in 1994/5, and considered Ms Lombardi permanently impaired, (without giving a rating). However, the history given to Dr Mastroianni by the Applicant did not include mention of the 1991 back pain and treatment by Dr Bentivoglio, although Ms Lombardi mentioned an injury to her shoulder while working in a supermarket, for which she had had a settlement.
Dr Bodel reported on 30 October 2003 (Exhibit A5). He was not given any history of the 1991 back pain, and considered that Ms Lombardi suffered a disc injury at the lumbosacral junction as a result of the 1994/5 episode which deteriorated in 1998, and was aggravated on 27 November 2001. Dr Bodel assessed 10 percent permanent impairment of function of the back applying what appeared to be the incorrect Tables. Dr Bodel’s report was not of assistance in that he did not have the correct history, and had not asssessed Ms Lombardi according to the Comcare Guide.
Dr Ziade’s report was dated 25 November 2002, (Exhibit A6). His clinical notes were Exhibit R8. Dr Ziade stated that he first saw Ms Lombardi on 14 December 1998 with a history of back injury which resulted in chronic low back pain radiating to her left lower limb. He mentioned the referral of the Applicant to Dr Bentivoglio in 2001, but did not mention any 1991 contact she had had with Dr Bentivoglio.
Dr McGill’s report was dated 29 July 2002 (Exhibit R11). He was not given a history of back pain for which Ms Lombardi sought assistance from Dr Bentivoglio in 1991. He referred to the X-rays, scans and MRIs and to the incident in 1994/5, as well as the increase in discomfort in 1998, and opined that Ms Lombardi’s symptoms were entirely in keeping with disc degeneration evidenced on imaging studies of L4/5.
Dr Oakeshott’s report dated 25 February 2003 was at Exhibit R12. He stated that he had been informed Ms Lombardi had a number of occasions of low back discomfort prior to 1994/5 associated with her menstrual periods. Dr Oakeshott then referred to the 1994/5 incident, the discomfort in Ms Lombardi’s left leg as commencing in 1996 (told to other doctors as 1997), and problems with the chair in 1998. Dr Oakeshott stated that he was unable to identify any objective clinical evidence of physical injury or underlying pathology in relation to Ms Lombardi’s back and left leg in relation to any work injury.
Dr Oakeshott assessed 0 percent permanent impairment, but had used the incorrect Tables.
Dr Thomson whose report was dated 5 August 2003 (Exhibit R13), was given a history of recurrent lumbar back pain associated with menstrual periods. The disability claimed by Ms Lombardi was attributed to the incident at work in 1994/5. Dr Thomson was also told about an incident with an unsuitable chair in 1998, and another incident in November 2001. Dr Thomson noted inconsistencies in results at his medical examination, “such as to cast some doubt on the testimony of the worker.” He did not assess any permanent impairment.
the tribunal – the medical evidence
In considering the medical evidence, I noted that contrary to Ms Lombardi’s argument that she consulted Dr Bentivoglio for right sided back pain, Dr Bentivoglio’s report written in January 1991 disclosed “bad discomfort in both sacroiliac joints” which had not been reported to the doctors named above.
Certain of the doctors (Mastroianni for example), implicated the 2001 incident as well as the one in 1995/6, and did not give permanent impairment ratings (Mastroianni and Thomson). Others did not use the Comcare Guide to give permanent impairment ratings which could therefore not be taken into account (Dr Oakeshott).
Because of the incomplete histories given to the doctors by Ms Lombardi and the issues of credit I have discussed in the paragraphs above, I was unable to conclude from the medical evidence that Ms Lombardi suffered a compensable injury in 1995/6 pursuant to either section 14, 24 or 27 of the Act.
conclusions
In summary, my findings are that Ms Lombardi could not pass the section 53 hurdle.
As to liability of the Commonwealth; Ms Lombardi did not disclose all she should have to the doctors who examined her, as detailed above. Those opinions are therefore coloured by an incorrect history, and are of limited value.
I am satisfied as detailed above that Ms Lombardi was not candid in giving her evidence before me.
Accordingly I could not be satisfied from all the evidence before me that Ms Lombardi suffers a compensable injury or permanent impairment which is compensable, arising out of an injury incurred in 1995/6.
The decision under review must therefore be affirmed.
DECISION
The reviewable decision is affirmed.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988, costs cannot be awarded.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: Neil Glaser
Associate
Dates of Hearing 24 & 25 November 2004
Date of Decision 24 February 2005
Solicitor for the Applicant Andrew Fegent & Company
Counsel for the Applicant Ms K Sibley
Counsel for the Respondent Mr S Moffett
Solicitor for the Respondent Dibbs Barker Gosling Lawyers
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