LUAFA POLOAI and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 506
•3 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3479
GENERAL ADMINISTRATIVE DIVISION ) Re LUAFA POLOAI Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr John Campbell, MemberDate3 July 2009
PlaceSydney
Decision The tribunal sets aside the reviewable decision of the respondent dated 3 June 2003, and substitutes a decision of the tribunal that:
(a) any injury to the applicant's back, buttocks, hips or legs suffered by her, arising out of, or in the course of, her employment with the respondent on 2 May 2002 (when she sustained a fall at work), came to an end no later than the commencement of 3 June 2003;
(b) the applicant is not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) with respect to any incapacity or medical expenses, suffered or sustained by her on or after 3 June 2003, as a result of any injury to her back, buttocks, hips or legs arising out of, or in the course of, her employment with the respondent on 2 May 2002 (when she sustained the said fall).
The tribunal makes no order as to costs.
...................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for compensation in respect of injury – acceptance of soft tissue injury to back and bottom – consideration of claim for continuing effects of injury – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 ss 14(1), 16, 19, 24, 27
Australian Postal Commission v Oudyn (2003) 73 ALD 659
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
3 July 2009 Ms Robin Hunt, Senior Member
Dr John Campbell, Memberintroduction
1. Mrs Luafa Poloai started to work as a parcel sorter with Australia Post in May 1999. Her work involved mail sorting and sometimes unloading trucks which were carrying mail items. On 2 May 2002, Mrs Poloai fell off a loaded “BT” (electric pallet jack) which was designed to move while the operator stood on the platform. As she was operating the BT and standing on it, while travelling towards another piece of equipment for unloading the mail, she fell off. This incident was the basis for her compensation claims brought to this tribunal on appeal.
2. After filling in an information sheet about the incident, Mrs Poloai drove herself home in her car and went to bed. The next day, she saw her general practitioner, who referred her to another doctor. Mrs Poloai returned to work a week later. Australia Post found light duties for Mrs Poloai until 9 September 2003. She then ceased work until she was offered light duties again, on or about 2 July 2004, and she returned to work until 22 January 2006. She performed light duties again in November and December 2006.
3. Mrs Poloai sought compensation for injury caused by the fall. She filled out an incident report and a claim form. In the incident report filled out on the day of the fall, Mrs Poloai said: “(D)riving to BT pulled out filled ULDs, and fell off from the BT and hit my bottom on floor and I lie on the floor for 2 mins. Because the floor is cracked & uneven … it’s hurt my back & bum”. In her claim form, completed on the same day as the fall, Mrs Poloai described the event that caused her illness or injury as:
(a)Pulling full ULD out from bullring
(b)Fell off BT
(c)[address] need to fix the cracked floor
4. The respondent, on 6 June 2002, made a determination accepting liability under subsection 14(1) of the SRC Act for “soft tissue injury to back and bottom.” Some correspondence followed and Australia Post queried the need for some treatment Mrs Poloai was still receiving on 9 December 2002. On 16 January 2003, pursuant to section 19 and after considering a medical certificate from Mrs Poloai’s GP, the respondent determined Mrs Poloai could work for 19.5 hours per week.
5. Dr Ross Whittaker, consultant rheumatologist, examined and assessed Mrs Poloai on 17 March 2003 and reported to the respondent on 20 March 2003:
In my opinion Ms Poloai has not had a workplace injury, which could be considered a substantial or significant contributing factor to her current presentation. Ms Poloai’s disc degeneration (maximal at L4/5) is pre-existing. All of her radiological investigations would support this.
6. In reply to a specific question, Dr Whittaker wrote:
I am not of the opinion that her current condition is attributable to her employment with Australia Post.
I am also not of the opinion that her current condition is a consequence of the alleged incident dated 2 May 2002.
7. Dr Whittaker also stated that, if there had been any compensable component to her presentation, this had ceased. He again said he would be surprised if there were any work contribution to her presentation.
Any present liability to pay compensation for injury?
8. Subsequently, on 9 April 2003, the respondent wrote to say it would not continue to pay compensation to Mrs Poloai unless she provided further evidence with 28 days that she should be paid. Then, on 12 May 2003, the respondent determined that Mrs Poloai was no longer entitled to compensation on and from 7 May 2003. This determination was reconsidered and affirmed on 3 June 2003. The wording of the original determination is problematic as it purports to “cease liability” rather than decline payment of claims on the basis that the effects of the injury had ceased. Mrs Poloai’s application for review, No 2007/3479 is in respect of the reviewable decision denying liability. Initially, the respondent’s position for the review is that the effects of any injury ceased no later than 7 May 2003, but before the conclusion of the hearing the respondent conceded the cessation of effects was 3 June 2003.
9. In our view, we are empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under sections 16 and 19 of the SRC Act, and also under sections 24 and 27 of the SRC Act, where the determination of the first instance decision-maker (here Australia Post) made under section 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the Administrative Appeals Tribunal. See judgment of Conti J in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 at [57]. Their Honours, Heerey and Dowsett JJ, agreed with these reasons.
10. Conti J observed that the statutory scheme “allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen”. We may adjust the nature of awards made subsequently to the determination of section 14 liability, whether in isolation or in the context of consequential relief that may be required in the light of evolving circumstances.
No reviewable decision as to permanent impairment
11. Mrs Poloai also sought compensation for permanent impairment on 8 July 2003 through a firm of solicitors. The respondent rejected that claim on 10 July 2003. At the hearing, Mrs Poloai’s current solicitor made reference to possible review of this decision as well. We are unable to review this decision as no reconsideration was requested or took place of own motion and it therefore was not reconsidered as required to qualify as a reviewable decision for our consideration.
Psychological injury claim withdrawn
12. Mrs Poloai in April 2008 claimed compensation for a psychological injury sustained on 2 May 2002 as well. The respondent also rejected this claim, making a determination on 27 August 2008 which was reconsidered and affirmed on 16 October 2008. Application No 2008/6076 was in respect of this claim and the decision of 16 October 2008 is a reviewable decision. However, at the hearing, Mrs Poloai withdrew this claim.
issue
13. We must decide if Mrs Poloai is entitled to compensation for an injury sustained in her fall, or as a result of her fall, on 2 May 2002.
consideration
14. At the hearing, Mrs Poloai gave oral evidence and went into more detail about the fall and the aftermath. On the day she suffered her accident, Mrs Poloai said she started work at 6 PM. Her accident occurred at 1 AM. She had been working for about seven hours when the accident happened.
15. Pictures which Mrs Poloai produced showed a “BT machine” of the kind she was using at the time of the accident. We also had pictures of “ULDs” before us. Before the accident, Mrs Poloai said she and other employees were sorting parcels from ULDs and placing them into other ULDs, and also removing full ULDs to take to the scale. Mrs Poloai gave evidence that ULDs had wire sides, forming a sort of cage and that there was a hinged side so that the cage of a ULD could be let down to half the height of the ULD. This was to provide better access to parcels for loading into and out of the cage.
16. Mrs Poloai said she had filled each ULD by taking parcels from other ULDs and then moved the full ULD. In order to move it, she had to stand on a BT machine and then drive the BT machine with the full ULD to the scale. She said she did this maybe 50 times per night.
17. On the night of the accident, Mrs Poloai was driving to the scale when she fell off the BT. Mrs Poloai said there was a big crack on the floor, the BT banged into the crack, the tyres of the BT became stuck and the BT started shaking, which she couldn’t stop, and she fell off the BT. Mrs Poloai showed us pictures of the floor crack. Mr Johnson for the respondent said there was no dispute about the photos being what Mrs Poloai claimed.
18. Mrs Poloai gave evidence to the effect that she landed flat on her backside. The following day, she noticed bruising to her right thigh. Immediately after the fall, she was too stunned to notice any pain but did feel pain after one hour. She told us that she sat in the manager’s office and filled out the incident report and claim forms. After an hour sitting, she felt pain in her lower back, right leg and right side. She had difficulty standing up when she was ready to leave. It was when she went to stand up that the pain came on.
19. After sitting in the manager’s office, Mrs Poloai said she drove herself home. When she arrived home, she drove to the front door of the house and opened the car door but called her husband to help her. By this time, Mrs Poloai said she was in too much pain to move and could not get out from the car.
20. The next day, she went to see her GP, Dr Tieu Tat, and he told her he did not do compensation cases and referred her to Dr Glen Au-Yeung. On that day, Mrs Poloai said she still had pain in her back and right side. She indicated her upper thigh and the area near her hip. Mrs Poloai gave evidence that she no longer had any pain and that it had stopped sometime last year. However, she added that her “right is a little bit”. When asked to clarify, Mrs Poloai explained that sometimes it was “okay” and sometimes a “little bit sore”.
21. Mrs Poloai, when asked if she took any painkillers at home the first night when her husband helped her out of the car, said she had not taken anything. When asked whether Dr Tat gave her any painkillers the next day, Mrs Poloai said ”No”. He did not prescribe any and just told her to transfer to Dr Au-Yeung because he did not handle “those kind of things”. Mrs Poloai further said Dr Au-Yeung gave her painkillers and sent her for X-rays. She took the painkillers straight away. They helped “a little bit”.
22. After one week, Mrs Poloai said she went back to work. When asked what duties she went back to, Mrs Poloai said “I was doing labels”.
23. In response to questions, Mrs Poloai was emphatic that she never had any problems with her back before the accident nor any back pain. Mrs Poloai agreed that she told doctors whom she had seen since the accident that before the accident she did not have any pain. She said “(T)hat’s correct, I didn’t have any back pain”. She had no recollection of telling Dr Tat about any backache or any back discomfort before the accident.
24. Mr Johnson referred to a note made by Dr Tat, on 29 June 2001, in clinical notes he had produced to the tribunal under summons, in which he indicated that Mrs Poloai told him on that occasion that she had had two months of low back pain on and off. Mrs Poloai did not remember mentioning this to Dr Tat. Dr Tat also recorded on 29 June 2001 that Mrs Poloai complained of back pain and again on 8 November 2001 that she reported low back pain sometimes but Mrs Poloai did not remember. However, Mrs Poloai later thought that she may have mentioned a different kind of back pain to Dr Tat when she went to see him about the flu, “because I cough at work”.
25. On 2 May 2002, Dr Tat addressed a request to Dr Au-Yeung which says:
Thank you for seeing Mrs Poloai, who fell at work last night. Right lower back hurt and radiate down right leg. Please look after her for me about this problem.
26. Dr Au-Yeung ordered a CT scan and bone scan. The respondent sought an opinion from Dr Whittaker and also had her examined by Dr John O’Neill, consultant neurologist, and Dr David Maxwell, an orthopaedic and spinal surgeon. Dr O’Neill furnished his main report, which was dated 27 July 2004, and then another report dated 28 October 2004.
27. Dr John Korber, radiologist, on 10 August 2004 reviewed Mrs Poloai’s imaging and medical file at the request of the respondent’s solicitor. He noted that a CT scan of 30 May 2002 was apparently normal and that a bone scan apparently reported a lower sacral fracture but Dr Korber recorded he had not seen the bone scan. He commented about the dissension in medical opinions and then discussed the MRI scan of 9 August 2002. He said the scan shows slight desiccation of the L3/4 disc and to a greater extent the L4/5 disc. After some further observations, Dr Korber stated:
There is internal disc derangement of the L4/5 disc, much of which is long-standing with fatty changes….
The L5/S1 disc is essentially normal.
The overall appearances are those of disc degeneration, predominantly at L4/5.
Dr Korber went on to point out that:
Whether the patient has exacerbated a pre-existing degenerative condition is a matter for clinical determination.
28. Dr Whittaker did not believe that Mrs Poloai’s condition was brought on by this fall. He said in his report of 20 March 2003 that she had “significant and long-standing disc degeneration”. He commented that the bone scan and the CT scan were performed on the same day.
He offered a further possible explanation of Mrs Poloai’s condition, saying:
Alternatively, it is possible that Mrs Poloai spontaneously herniated her L4/5 disc on 2 May 2002. Spontaneous disc herniation is commonly seen in patients who have significant pre-existing disc degeneration.
29. Mrs Poloai, when questioned, recalled seeing Dr Maxwell in connection with her claim. Dr Maxwell furnished a report, dated 28 July 2005, and two subsequent reports dated 17 December 2007 and 2 April 2009 and gave oral evidence. In the 2005 report, Dr Maxwell observed that Mrs Poloai complained to him of discomfort on the right side of her back at the L5/S1 level. Mrs Poloai agreed she told the surgeon she had pain in the right side of her back. Dr Maxwell recorded that Mrs Poloai made sighing noises when he asked her to make certain movements designed to show how far she could move her spine. Mrs Poloai agreed she did this but did not agree she exaggerated her symptoms. Mrs Poloai said her symptoms came and went or sometimes were worse than at other times.
30. Dr Maxwell told the tribunal that the first time he saw Mrs Poloai was on 28 July 2005 and the second occasion was on 8 November 2007. He said he did not recall Mrs Poloai mentioning any bruising to her left thigh as a result of the fall at work but she described pain in the right leg and lower back when getting up after sitting in an office for while.
31. When asked his opinion in light of the entries about back pain during 2000 and 2001 in Dr Tat’s notes, Dr Maxwell said:
Well, I think it’s obviously relevant that she was experiencing lower back pain prior to the fall. She did indicate to me that she hadn’t had any experience of any back pain before the fall, which may have been due to a poor memory, but I notice that she did have the back pain for a prolonged period of time, it would appear, and therefore – which is surprising that she had forgotten about it or apparently forgotten about it.
32. Dr Maxwell also thought previous back pain significant in the history that she gave of chronic back pain subsequent to the fall. He had never at any stage felt that there was any evidence that she had in fact sustained a nerve root lesion at the L5 nerve root on the right. He said there was never any evidence of that. Dr Maxwell added her symptoms were not typical of that and there were never any physical signs to suggest that. His theory was that the majority of low back pain came from the facet joint, particularly in somebody who is overweight. He said the facet joints tend to be overloaded and overweight people are subject to increased episodes of low back pain, which is essentially a constitutional condition. Although disc degeneration is a cause of back pain, Dr Maxwell explained the discs themselves are relatively painless structures which are poorly innovated by pain fibres and the discs themselves really only cause pain when they protrude and press on to a nerve which causes radiculopathy. He noted the characteristics of radiculopathy are very typical and usually associated with signs of radiculopathy as well, which Mrs Poloai never had.
33. In Dr Maxwell’s opinion, it was possible for people to have continuous back and leg pain due to nerve irritation but this did not fit the pattern of Mrs Poloai and when he last saw her, she indicated that her back pain had settled completely and that she was still experiencing some pain in the right thigh, but again there was no evidence of any radiculopathy. He thought she may have been suffering from chronic facet joint pain, which seems to have varied in intensity and was now resolved, and he considered essentially constitutional because it occurred before the fall. At the time of the fall, Dr Maxwell said she did have changes showing on investigation suggestive of chronic degeneration.
34. In his report of the first examination, on 28 July 2005, Dr Maxwell described Mrs Poloai’s complaint of “decreased sensation in a stocking distribution in the right leg”. When asked to explain how that differed from what he would expect to find by way of loss of sensation from someone suffering radiculopathy, he replied that it was a non‑organic sign. If organic, having decreased sensation in virtually the whole of the right leg, which is what she complained of, would indicate nerve root lesions of L2, L3, L4, L5-S1 and S2, which she certainly did not have.
35. In answer to the question about what effect he thought the fall on 2 May 2002 did have, Dr Maxwell replied he thought she developed some soft tissue contusions and bruising, mainly involving the right buttock and perhaps the right thigh, which he considered would have resolved in four to six weeks. He considered the incident would have had no effect upon her spine.
36. In his report of 17 December 2007, Dr Maxwell referred to investigations including an MRI scan taken on 9 August 2002. When asked how the radiology, the CT and the MRI, affected his opinion, Dr Maxwell said both the CT scan and the MRI scan showed some pre‑existing age related changes to the L4/5 disc with some disc space narrowing, dehydration of a disc and a central disc bulge with some adjacent degenerative changes in the vertical end plates. He added there was some facet joint hypertrophy. He had seen the CT scan but not the MRI report, but his opinion was that the changes indicated were not great enough to cause significant nerve root impingement to the L5 nerve root. He also thought this opinion consistent with the clinical findings.
37. The report also mentioned that Mrs Poloai reported she was able to walk for one hour. Mrs Poloai confirmed this in evidence and said she had done this for some years. When asked about the significance of this, Dr Maxwell responded that it had been suggested that she may have lateral recess stenosis but with lateral recess stenosis, the narrow lateral recess causes nerve root impingement and that causes the blood supply to the nerve root to be cut off and the person suffers radicular pain in the leg which prevents them from walking further. If Mrs Poloai had this condition, she would have to sit down and change the position of her spine. This makes the blood flow restored to the nerve and the person with this condition can then continue to walk. If she had lateral recess stenosis causing L5 nerve irritation, she would not be able to walk for one hour. Walking and standing makes the situation worse. He saw no restrictions Mrs Poloai faced as a result of her spinal condition. In particular, when he last saw her, Dr Maxwell noticed she was able to flex and reach to her toes. On previous occasions she had some restriction of flexion but on the last occasion he saw her, there was no restriction of any movement. That last observation he made in connection with the latest report, dated 2 April 2009. Given the whole impression, going by the symptoms and the overall physical examination, his overall opinion was that Mrs Poloai made a reasonable recovery, and he thought that was the impression she wished to convey to him.
38. Concerning his opinion based on a report of Dr Thomas Nash, who is a vascular and general surgeon, in which Dr Nash suggested Mrs Poloai had suffered an annular tear at L4/5 as a result of the fall, Dr Maxwell gave evidence he thought that any annular tear was a pre-existing degenerative condition. He confirmed that annular tears are regarded as degenerative conditions that occur with equal frequency in those who suffer from back pain and those who do not. He explained that, when you do a series of MRIs on patients that are complaining of back pain and those patients that are not, the incidence of annular tears is the same, so that annular tears are normally regarded as a degenerative condition, and they are normally not regarded as a painful condition. He added this bore with his previous comments that the disc was poorly innervated with nerve fibres, and was not responsible for continuous incapacitating back pain.
39. Commenting on the MRI report of 9 August 2002, which stated “I presume this is irritating the descending right L5 nerve root…”, Dr Maxwell was asked the question, “(C)an one tell whether or not such irritation is occurring if one is a radiologist looking at the MRI?” He gave evidence that basically it is a clinical diagnosis, saying, “You can get an impression on the MRI scan if it’s likely to be occurring”. He had considered the way the radiologist expressed the result and diagnosis, read the referral letter from the treating doctor and tried to interpret it and look for some changes on the scan which may fit that pattern. There was not much difference between what the original radiologist described and what Dr Korber described in his review of the images on 10 August 2004, in Dr Maxwell’s view. It was just a matter of interpretation and description. Dr Korber had similarly observed that possible exacerbation of a pre-existing degenerative condition was a matter for clinical examination.
40. Further, Dr Maxwell explained that annular tears sometimes resolve but, quite often, they never resolve, in keeping with the degenerative nature of the condition. Disc protrusions, however, do resolve. An acute disc protrusion sustained as a result of trauma may resolve in 90 per cent of cases.
41. With respect to the various medical reports provided to him before the day of his giving evidence, being material from Dr Neil Griffith, Dr Mark Sheridan, Dr John O’Neill and Dr J.S. Scougall, Dr Maxwell gave evidence that none of the material caused him to alter the views he expressed in his reports or in evidence to the tribunal.
42. Dr Griffith, consultant neurologist, reviewed Mrs Poloai on 29 July 2002 and again on 14 August 2002 at the request of Dr Au-Yeung following her MRI scan. He provided further reports on 2 June 2003, 15 October 2003, and 23 December 2004, after seeing reports furnished by Dr O’Neill of 27 July 2004 and Dr Korber’s radiology report of 10 August 2004. Dr Griffith, however, mentioned no history of Mrs Poloai’s previous back pain although he had Dr Korber’s report of the indications of degenerative condition. He was aware of Mrs Poloai’s complaints of pain at the time he saw her and made suggestions about treatment that might relieve her pain at the time of his review.
43. Dr Greg McGroder, an occupational physician and Workcover approved consultant physician, furnished a report on 27 September 2002. Dr McGroder observed that Mrs Poloai’s symptoms most likely would be ongoing, judging by the time frame that they had been present and her response to examination, but he thought the subjective symptoms were not an accurate guide to underlying pathology. Dr McGroder referred to a CT scan and MRI scan, noted degenerative changes and suggested that disc bulging may have resulted from the fall and that the fall may have aggravated degenerative changes.
44. When asked his opinion, given the report of Dr McGroder dated 27 September 2002, Dr Maxwell disagreed with Dr McGroder’s opinion that there was a possible relationship between disc bulging, aggravation or continuing effects.
45. He was next asked about Dr Whittaker’s findings. Dr Whittaker was of the opinion that Mrs Poloai had not suffered any substantial or significant contributing factor to her current presentation as at 20 March 2003. Dr Whittaker however, opined:
Given her underlying degenerative lumbar spine disease, I question her ability to resume her usual work duties as a night sorting officer. May be appropriate for her to be redeployed which requires less lifting and carrying.
46. Dr Maxwell also did not agree with Dr Whittaker in this respect and thought physical activity was beneficial for Mrs Poloai so that she should not be restricted in her level of activity. Nevertheless, we note that Dr Maxwell recorded in April 2009 that Mrs Poloai was restricted to 10 kg lifting at work and made no further comment about this. Mrs Poloai told us she performed restricted duties for a long time after the accident although the respondent did not concede that the restriction was necessary due to her workplace accident.
47. Dr Maxwell also disagreed with the opinion of Dr Sheridan when Dr Sheridan in his report of 24 March 2003, after seeing Mrs Poloai on a referral from Dr Griffith, commented:
She has an MRI scan which shows L4-5 disc damage with broad-based disc protrusion causing bilateral recess narrowing. This fits well with her injury and her symptoms.
48. He also disagreed with Dr Griffith when, on 2 June 2003, Dr Griffith said:
I feel she has discogenic low back pain with referred right lower limb pain.
49. Dr Maxwell gave evidence that he was not suggesting that she may not have some referred pain from the facet joints in her back which may cause some mild referred pain to her leg. He did not consider, however, that Mrs Poloai ever, at any stage, had radicular pain in her leg, which appeared to be what Dr Sheridan was suggesting. We also note that Dr Griffith took no history of previous back pain from Mrs Poloai and this is a deficiency in his background information in view of the evidence that she had complained of back pain previously to Dr Tat, according to his clinical notes. Dr Griffith himself, in his report, infers that he was concerned about whether there may have been some previous back pain and suggested that Dr Tat’s notes be reviewed. This did not occur before he wrote the report so that it is deficient in this respect.
50. Dr O’Neill in his report of 27 July 2004, suspected a psychosomatic component. Dr Maxwell commented there were some inconsistencies in the initial examination, which may lead one to think there was a non-organic component as far as the physical signs were concerned. Further, some aspects of the physical examinations did indicate that there may have been some non-organic signs.
51. Dr Griffith agreed with Dr O’Neill, that the MRI scan shows evidence of degenerative changes. However, in his report of 22 December 2004, he said that he suspected she sustained “an acute L4/5 disc annular tear as a result of the fall at work.” He also noted, “She seems to be motivated to maintain maximal activity.”
52. Dr Maxwell did not agree with Dr O’Neill when Dr O’Neill made the statement:
I could not exclude the possibility that she might have some degree of mechanical low back pain as a result of constitutional degenerative disease, with symptoms having been triggered by the fall.
53. When Dr Maxwell was asked if he took the view that there was nothing wrong with the applicant that would prevent her from doing a full day’s work as at 27 July 2004, he pointed out that he didn’t see her at that time. He could only base his opinion on when he saw her in 2005, and at that time he did not consider that she would need to have any restrictions on her work duties. He also observed in 2009 that Mrs Poloai was saying she was much better.
54. When Dr Scougall, orthopaedic surgeon, saw the applicant on 21 November 2005, he said of her right leg:
… She complains of pain not inconsistent with some nerve root irritation… there might have been some problem with the mid-sacral break.
He also said:
The findings indicate that the fall on 2 May 2002 is a substantial contributing factor … she is fit for work not involving repeated bending, moderate or heavier lifting and constant working in the bent position.
55. When Dr Maxwell was asked about Dr Scougall’s opinion concerning:
… chronic soft tissue lesions in her neck and in her back, and sacrum…
Those lesions in her back are the cause for her back pain and are probably related to the cause for the pain, about which she complains in her right leg.
Dr Maxwell said he did not think there was any evidence, from the scans, of lesions in Mrs Poloai’s back being the cause of her back pain or her right leg pain. He also found no significant structural injury to the back or right leg and was not convinced that she still suffered from any significant injury as a result of her work. Dr Maxwell additionally did not agree with Dr Scougall when he opined that Mrs Poloai would not be fit for work involving repeated bending, lifting or moderate heavier lifting. He had already given evidence that work was beneficial for Mrs Poloai.
56. Dr Maxwell said he did not comment on any abnormality of the sacrum for the reason that he was mainly interested in the area where she was complaining of pain, which was in the back. He thought Mrs Poloai had never complained of sacral pain since the original injury. She had never complained of pain in the sacrum to him at least. He also thought there was no significant stenosis. He believed Mrs Poloai had some congenital narrowing of the spinal canal but considered her scan did not show enough spinal stenosis to be causing clinical problems, based on his experience.
57. Dr Marilyn Moore, consultant psychiatrist, on 15 April 2008, reported Mrs Poloai as having chronic pain, but Dr Moore recorded that Mrs Poloai was sacked at Christmas 2007 and therefore she suffered other problems. Dr Moore was mistaken when she thought Mrs Poloai was sacked and we note Mrs Poloai was employed on light duties, albeit with several days off work over the period since the accident. She was still working at the time of the hearing.
58. We also note, as drawn to our attention by Mr Johnson for the respondent, that Mrs Poloai gave no history of previous back pain to any of the doctors who saw her to assess the effects of her workplace accident.
59. For instance, in Dr Griffith’s report dated 15 October 2003, he says:
I obtained no history of Mrs Poloai having pre-existing low back pain.
60. Dr Griffith, referring to Dr Whittaker’s summary and assessment, opines it is more likely than not that Mrs Poloai’s symptoms predate the alleged injury, noting:
I have no evidence that Mrs Poloai had any pre-existing symptoms and while I feel she did have pre-existing changes in her lumbar spine, these were entirely asymptomatic.
61. We accept that the complaints of previous back pain were unknown to the medical experts who have furnished reports as this is apparent from the reports and from Mrs Poloai’s own evidence at the hearing where she denied having any previous back pain. When several entries made by Dr Tat were drawn to her attention, she tried to explain these notes about complaints of back pain by saying the pain was different. An examination of Dr Tat’s notes, however, shows an entry about back pain on and off for two months made on 29 June 2001. As to Mrs Poloai’s evidence that any earlier pain was related to coughing, there is reference to cough and congestion and upper respiratory tract infection on 16 July 2001 but nothing to that effect on 3 November 2000 or on 29 June 2001 when she gives the two month history or when she sees the doctor on 8 November 2001. Nevertheless, we accept that the radiology and other examinations clearly demonstrate there was a pre-existing degenerative process going on.
does mrs poloai continue to suffer any effects of the injury to her back and bottom?
62. The radiology in the case does not of itself enable us to find any particular consequence occurred on 2 May 2002. In relation to the MRI that showed a degenerative condition, Dr Maxwell agreed with Dr Korber. Similarly, in relation to the bone scan, Dr Maxwell opined that the results of the bone scan, showing some increased uptake at L4/L5, were consistent with pre-existing degeneration.
63. Dr McGroder’s report, where he says “The fall constituted an aggravation of these changes”, is based upon her history, and this history made no mention of previous pain. Her evidence is that she suffered more pain that day but the radiology is equally consistent with there being simply a degenerative condition and that degenerative condition is something which might have produced symptoms from time to time. Those symptoms which came and went and which have now ceased do not necessarily demonstrate any aggravation still having effect on 7 May 2003 when Dr Whittaker thought they had ceased, or 3 June 2003 which was the date conceded by the respondent during this review, or thereafter.
64. Dr Maxwell made the point, especially in his oral evidence, that there was no radiculopathy present when he saw Mrs Poloai. When the applicant gave evidence to the tribunal about what she was suffering that day and later, there was no indication from her of radiculopathy, according to the effects Dr Maxwell indicated. He disagreed with the suggestion that, if she had referred pain from time to time, this indicated radiculopathy.
65. Dr Nash, on 11 February 2008, examined Mrs Poloai and reported injury and persistent symptoms despite conservative treatment. Dr Nash is a vascular and general surgeon. By comparison, Dr Maxwell is an orthopaedic and specialist spinal surgeon, which is the more appropriate speciality in this case.
66. Dr Nash, in the course of his conclusion, attached significance to the fact that he thought Mrs Poloai genuine in her presentation and took a history from her that, before 2 May 2002, she said she was symptom free and fully mobile. The absence of a history of back pain difficulties before 2 May 2002 coloured the view that Dr Nash and others took of her and the effects of the fall.
67. The degenerative condition present in Mrs Poloai could produce symptoms in her back from time to time, according to the medical evidence, but that is a feature of her constitutional condition. As Dr Maxwell pointed out, the radiology may show degeneration without there being symptoms.
68. Dr Maxwell ultimately concluded that it was highly unlikely that the fall on 2 May 2002 had any lasting consequence. He thought the fall that day probably produced some bruising but nothing else of any consequence or lasting effect. The applicant has been compensated already in relation to the period up until the date accepted in the reviewable decision, that is, to 7 May 2003. For us to find in her favour, we would have to be satisfied not just that she suffered some soft tissue injury to her back and bottom on 2 May 2002 but also that continuing injury was still there past the previously accepted date or date argued by the respondent for the review, 3 June 2003. .
69. When asked about the history of her back condition or of back pain before last year, when Mrs Poloai said it went away, she agreed that it had been intermittent. We are also concerned that Mrs Poloai claimed to have forgotten her previous episodes of back pain when she saw various doctors from 2002 onwards. For this reason we are unable to rely on their opinions that her difficulties were related to the fall. Without an accurate history, the reports before us are missing an element which makes the assessment of Mrs Poloai’s condition unreliable. The only doctor who does have a history involving past back pain, being Dr Maxwell, provides evidence upon the basis of which she cannot succeed.
70. We acknowledge that the applicant had an intense period of treatment following the accident on 2 May 2002, including rehabilitation type physiotherapy and hydrotherapy. There was acceptance that there was a problem which arose from the fall which created the need for treatment. A degenerative condition shows on the x-rays, the CT scan and the MRI scan, and could be productive of symptoms.
71. On balance, we find the event did cause pain and injury but we further find that the effects did not continue beyond the date when the respondent sought to cease payments in respect of the injury. It follows that we will set aside the decision of 3 June 2003, which might be read to deny any liability instead of cessation of effects, and will substitute a decision that the effects of the injury accepted by the respondent had ceased by that date.
72. With respect to the respondent’s decision of 10 July 2003 rejecting Mrs Poloai’s claim for permanent impairment, we have already provided reasons why we cannot review it. Even if this determination were reviewable, we would confirm that there is no permanent impairment in light of the above finding of cessation of effects in June 2003. We agree with Dr Whittaker that the effects of the injury had ceased. Dr Maxwell was of this opinion also.
decision
73. The tribunal sets aside the reviewable decision of the respondent dated 3 June 2003 and substitutes a decision of the tribunal that:
(a) any injury to the applicant's back, buttocks, hips or legs suffered by her, arising out of, or in the course of, her employment with the respondent on 2 May 2002 (when she sustained a fall at work), came to an end no later than the commencement of 3 June 2003;
(b) the applicant is not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 with respect to any incapacity or medical expenses, suffered or sustained by her on or after 3 June 2003, as a result of any injury to her back, buttocks, hips or legs arising out of, or in the course of, her employment with the respondent on 2 May 2002 (when she sustained the said fall).
74. The tribunal makes no order as to costs.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr John Campbell, Member
Signed: .........................[Sgd]...........................
Jennifer Wong, AssociateDates of Hearing 23-24 April 2009
Date of Decision 3 July 2009
Counsel for the Applicant Mr J Heazlewood
Solicitor for the Applicant Michael Jokovic & Associates
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Graham Jones Lawyers
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