Lynette Briggs and Comcare

[2012] AATA 514

[2012] AATA 514

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2123
Re	Lynette Briggs
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	6 August 2012
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that the Respondent is liable under section 14 and section 16 of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation to Mrs Briggs in respect of the injury to her lumbar spine.

.............[sgd]……….........................

Miss E A Shanahan, Member

CATCHWORDS

Workers Compensation – employment related injury – aggravation of degenerative spondylosis and spondylolisthesis necessitating surgical intervention – contribution to a significant degree – delay in giving section 53 notice – prejudice to the Respondent – decision set aside.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, sections 5A, 5B, 7, 14, 16 and 19

CASES 

Banks v Comcare (1996) FCA 1490

Frosch v Comcare (2004) FCA 1642
Re Farnaby and Military, Rehabilitation and Compensation Commission [2008] AATA 603
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Re Holmes and Comcare [2001] AATA 290
Re McCarthy and Comcare [2002] AATA 5
Re Scutts and Department of Defence [1998] AATA 13085
Re Smith and Comcare [2011] AATA 662
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Tralongo and MRCC [2004] AATA 1242

Re Vo and Comcare [2005] AATA 773

REASONS FOR DECISION

Miss E A Shanahan, Member

6 August 2012

1. On 23 December 2010 Mrs Briggs lodged a claim for compensation with her employer, Australian Aboriginal Hostels Limited (AAH Limited), for an injury to her back.  She sustained the injury while working at the William T Onus Hostel between 31 March 2008 and 2 April 2008.  Mrs Briggs underwent spinal surgery in the form of L4/5 posterior interbody fusion for L4/5 spondylolisthesis on 3 February 2010 at St Vincent’s Hospital in Melbourne.  On 8 April 2011 a delegate of Comcare, the Respondent, disallowed the claim for compensation.  On 25 May 2011 a review officer affirmed the delegate’s decision. Mrs Briggs lodged an application for review with this Tribunal on 31 May 2011. 

2. Mrs Briggs was represented at the hearing by Mr Mark Carey of counsel, instructed by Hounslow and Associates solicitors. The Respondent was represented by Ms Cathy Dowsett of counsel, instructed by Thomsons Lawyers solicitors. The Tribunal had before it the documents filed by the Respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  The parties tendered further documents in the course of the hearing (Exhibits R2 to R14 for the Respondent and Exhibits A1 to A4 for the Applicant). Mrs Briggs, Dr Sybil Borthwick, Mr Gerald Moran, Dr Alethea Dwyer and Mr Clive Jones gave oral evidence. 

   BACKGROUND TO THE APPLICATION

3. Mrs Briggs started work with AAH Limited on 25 October 2007 as a casual worker.  On 8 November 2007 AAH Limited employed Mrs Briggs on non‑ongoing, two-month contracts. Her duties included planning menus, food delivery, preparation of rooms and changing, washing and stock control of all linen.  In addition, she was required to perform other tasks as directed. AAH Limited terminated Mrs Briggs’s employment on 3 April 2008.  AAH Limited advised Mrs Briggs in late February 2008 that her contract would not be renewed.  Prior to her employment by AAH Limited, Mrs Briggs had not been in paid employment since 2002.

4. On 31 March 2008 Mrs Briggs was instructed to wash 48 drapes, each approximately one metre wide and two to three metres long.  These drapes had been found in a garage during an inspection by Ms Rita Stewart, the Regional Manager of AAH Limited, who confirmed that each drape  weighed  between three and four kilograms.  Mrs Briggs started washing the drapes (using a washing machine) on 31 March 2008.  Due to her short stature and average build, Mrs Briggs had difficulty pegging the wet drapes onto the drying line and later removing them.   

5. On 1 April 2008 Mrs Briggs rode her bicycle to work.  In addition to her normal duties, she washed, pegged out and removed drapes from the line during the day.  By the end of her working day she felt tired and noted pain in the area of her sacroiliac joints, which resulted in her walking as if nine and a half months pregnant.  On completion of her duties, she took a tram to her son Darren’s apartment and stayed there for the night.  On 2 April 2008 Mrs Briggs completed the washing and drying of the drapes despite increasing pain.  She then left work at 1.30 pm, had lunch with another son, who then drove her to Darren’s apartment, where she again stayed the night.  By 3 April 2008 Mrs Briggs stated that the severity of the back pain was such that she spent the day in bed and took Panadeine Forte regularly.  She did not contact her employer regarding her absence.  She did not submit a pay claim for the week commencing 31 March 2008. 

6. Mrs Briggs, having experienced short-lived episodes of low back pain in the past, anticipated that this episode would resolve in one to two days.  She described her symptoms as severe lower back pain with shooting pains in both legs associated with some numbness and tingling.  She first sought medical attention on 10 April 2008 at the Victorian Aboriginal Health Service Co-Operative (VAHSC). A Dr Cook attended to Mrs Briggs and, according to Mrs Briggs, he prescribed Panadeine Forte, Ibuprofen and Deep Heat ointment.  Dr Alethea Dwyer provided a summary of Mrs Briggs’s records with the VAHSC and stated that:

   On 10 April 2008, [Mrs Briggs] presented again with low back pain with no radiation exacerbated by sitting.  At this stage mention was made only of cleaning tasks the previous Friday.  She was treated with Panadeine Forte. 

7. Mrs Briggs attended another general practice   Doctors of Northcote on 16 August 2007.

8. On 18 April 2008 Dr S Ouna saw Mrs Briggs and recorded:

   Low back pain

   Started 1 week ago.
   Was working as a cleaner at a hostel from 7 nov. [sic]
   At work – washed heavy drapes on 1st april. [sic]
   ...
   Now pain gone up to shoulder on both sides.

   Physical examination revealed:

   Poor Flexion/ extension

   Very tender lumbar area
   Less tender T para spinal muscles
   No sciatica

   Dr Ouna requested an X-ray - Spine-  Lumbo-sacral and Thoracic CT – Spine – Lumbar – Back pain.  (Tdocuments 17(g), p78).  This imaging did not take place. 

9. A plain x-ray of Mrs Briggs’s lumbar spine was performed on 2 May 2008 and according to Dr Dwyer’s summary of 4 April 2011... showed advanced degeneration with almost complete obliteration of L5/S1 disc space.  The original radiological report was not available to the Tribunal.  In her summary, Dr Dwyer states that following receipt of the radiological report, she increased Mrs Briggs’s dose of Ibuprofen to 400mg twice daily.  The summary further states that Mrs Briggs was seen by doctors at VAHSC on:

   ...10 727 april [sic] and 4 & 27 of July complaining of increasing low back and sciatic pain and was prescribed Panadeine Forte physio and hydrotherapies.

   In August 2008 Mrs Briggs’s analgesia was changed to Tramadol, with the dosage being increased to 150mg twice daily before reasonable control was temporarily achieved.  On 4 March 2009 Mrs Briggs’s pain was described as crippling.  Dr Quiery of VAHSC started treating her with the opiate MS Contin, with the dose increasing to 20mg twice daily by August 2009.

10. Dr Dwyer requested a CT scan of the lumbar sacral spine and this was performed on 21 November 2008.  The scan revealed:  Moderate central canal stenosis at L4/5, with degenerative facet joints resulting in Grade I L4 and L5 anterolisthesis (5mm).  At the L5/S1 level ... marked intervertebral degenerative change, with moderate ... foraminal narrowing was reported. (T-documents 17(c)).  In her summary of 4 April 2011, Dr Dwyer had stated she had seen Mrs Briggs on 3 November 2008 and noted ... markedly reduced popliteal and achilles reflexes.  (Tribunal comment - this presumably means reduced knee and ankle jerks although reference to popliteal reflexes is not anatomically correct).  The complete VAHSC medical record concerning Mrs Briggs does not confirm the dates on which these neurological abnormalities were detected. In a further report, Dr Dwyer placed the date as being 24 November 2008; that is, after receipt of the CT scan report.  On 24 November 2008 Dr Dwyer wrote a letter of referral, requesting that Mrs Briggs be seen in the neurosurgical clinic at St Vincent’s Hospital.

11. According to Mrs Briggs’ statement, she first visited the St Vincent’s Hospital neurosurgical clinic on 10 March 2009.  While reports from St Vincent’s Hospital were not received until 25 August 2009, the result of an MRI of the lumbar spine dated 21 March 2009 has been made available to the Tribunal. It confirmed the CT findings on 21 November 2008.  It also demonstrated a diffuse disc bulge at L5/S1 contacting the S1 nerve roots. A single page entry regarding Mrs Briggs dated 10 March 2009 appears in the St Vincent’s Hospital neurosurgical clinic record. It notes a twelve-month history of pain radiating to both thighs/calves and foot and on examination normal muscle power, reflexes and sensation in both lower limbs.

12. On 10 March 2009 an MRI of the spine and a flexion/extension plain x-ray of Mrs Briggs’s lumbar spine were ordered. The latter was not performed until 21 August 2009. The flexion and extension views measured the displacement of Mrs Briggs’s L4 vertebra on L5 as being 13.5mm on flexion and 12mm in extension.  On 25 August 2009 Mrs Briggs was reviewed by Dr Yi Yuen Wang, the then neurosurgical registrar at St Vincent’s Hospital, who described Mrs Briggs’s symptoms as persisting and if anything increasing.  He considered it likely that Mrs Briggs would need surgical intervention and arranged a further MRI and CT scan of her lumbar spine. 

13. The CT scan took place on 2 November 2009 and the MRI took place on 30 January 2010.  The CT scan showed compression of the right L5 nerve root in addition to the previously reported pathological changes. This was confirmed by the MRI.  The MRI assessed the anterior displacement of L4 on L5 as being 3mm. 

14. Mrs Briggs’s name was placed on the waiting list for an L4/5 lumbar fusion on 6 October 2009 and according to Mrs Briggs the surgery had been planned for December 2009 but was postponed due to the operating neurosurgeon’s ill-health.  She eventually underwent an L4/5 spinal fusion on 3 February 2010.  On 5 February 2010 she underwent further surgery to revise the position of a lumbar fusion screw. 

15. Mrs Briggs has derived a great benefit from the surgery and is now free of lower limb symptoms.  She still has occasional back pain, mainly following over-exertion, such as washing large volumes of clothes. However, she only needs to take analgesics, on average, twice a month.  Her husband performs most of the household duties and Mrs Briggs does the cooking.  She was advised by St Vincent’s Hospital to restrict her activities following the surgery. Since then, Mrs Briggs has not been reviewed with respect to her current capacity to perform normal activities. 

16. The most detailed clinical notes provided are those of Mr Chris Lane, the physiotherapist at VAHSC, who treated Mrs Briggs from 10 July 2008 until 12 February 2009.  Mr Lane has recorded radiation of Mrs Briggs’s back pain to both thighs and calves from the time he first saw her, the range of movement of her spine, areas of local tenderness, aggravating and relieving factors and the worsening of Mrs Briggs’ pain in November 2008. Whenever Mrs Briggs’s back pain increased, Mr Lane noted a decrease in the range of movement and an increase in paravertebral and gluteal tenderness. 

17. On 20 November 2008 Mrs Briggs informed Mr Lane that she was considering legal action against her former employer because she believed her symptoms were the result of lifting heavy curtains at work.

18. Mrs Briggs had several documented episodes of low back pain prior to the events in April 2008.  The first of these occurred in 1983, after she single-handedly shifted a wardrobe.  She was treated by a chiropractor and her pain resolved in two days.  Further episodes are recorded in the medical files on 2 February 2004, 18 January 2006, 16 January 2007 (following a fall in the shower), 23 April 2007 (after shifting furniture) and on 4 February 2008 bilateral hip pain and probable sciatica were noted. Mrs Briggs said that all of these episodes resolved in one to two days or, at the most, within a week. She did not report the workplace injury or submit an earlier claim as she expected the symptoms would again resolve with rest and analgesia.

19. Mrs Briggs did not lodge a claim for compensation until 23 December 2010; although she is recorded as considering such action in November 2008.  In February 2009 Mrs Briggs obtained a Victorian WorkCover Authority Certificate of Capacity. Further certificates were provided by Doctors of Northcote throughout 2009 and 2010.  According to Mrs Briggs, she tried unsuccessfully to contact Ms Faye Atkinson by telephone in 2008. In December 2009 Mrs Briggs attended the regional office of AAH Limited and lodged the certificate dated 7 February 2009 and completed by Dr Hammond.  Mrs Briggs attributes the delay to her misunderstanding of where any resultant liability would fall.  She thought that making a claim would be taking money away from my people, by which she meant those seeking refuge at William T Onus Hostel. 

    ORAL EVIDENCE BEFORE THE TRIBUNAL

20. Mrs Briggs’s evidence has been summarised under BACKGROUND TO THE APPLICATION above.

    DR SYBIL BORTHWICK

21. Dr Borthwick of the Doctors of Northcote medical practice provided a report to Comcare on 25 February 2011 outlining Mrs Briggs’s medical records held by the clinic.  The records noted Mrs Briggs’s first attendance for back pain as being on 18 April 2008 and that a CT lumbar spine had been requested on 16 May 2008.  While Dr Borthwick’s letter stated that a copy of this was attached, Comcare has not provided this or any report to the Tribunal. 

22. Dr Borthwick has only been seeing Mrs Briggs as her primary general practitioner since April 2010.  Based entirely on the medical records, Dr Borthwick considered Mrs Briggs’s back pain to be multifactorial. She explained the disc and facet joint changes were degenerative and related to age. However, the claimed work injury could cause or exacerbate the anterolisthesis and canal stenosis and result in the chronic disc pathology becoming symptomatic.  Dr Borthwick was reluctant to comment on the anterolisthesis as she had little experience with this condition. 

23. In her oral evidence, Dr Borthwick confirmed the Doctors of Northcote records.  Dr Borthwick considered the clinical notes of her clinic to be poor and that these could not be relied upon to exclude the fact that Mrs Briggs could have suffered radiation of lower back pain to her legs or feet before the first notation of such radiation on 20 February 2009.  She explained that low back pain was such a common presenting symptom in general practice that most practitioners waited and observed patient’s progress before instituting any investigations.

    DR ALETHEA DWYER

24. Dr Dwyer is one of several practitioners working at VAHSC, the clinic Mrs Briggs attended from 2 January 2003 until 2 September 2009.  Dr Dwyer  provided three reports – the first dated 28 March 2011 to Comcare, the second dated 4 April 2011 to Mrs Briggs’s solicitor, and the third dated 7 April 2009 was addressed to: To Whom it May Concern and given to Mrs Briggs for  her compensation claim. 

25. Dr Dwyer’s reports were based on entries in Mrs Briggs’s clinical records.  The letter of 7 April 2009 refers only to increasing back pain following the lifting of heavy curtains at her work on 31 March 2008 and then summarises Mrs Briggs’s progress until 7 April 2009.  Dr Dwyer quoted the report of the CT scan of the lumbar spine performed on 21 November 2008. She stated that she examined Mrs Briggs on 24 November 2008 and upon finding Mrs Briggs’s ankle and knee jerks to be absent, referred her immediately to the neurosurgical clinic at St Vincent’s Hospital.  The letter also says Mrs Briggs was first seen at the neurosurgical clinic on 21 March 2009. 

26. In the report to Comcare dated 28 March 2011, Dr Dwyer listed Mrs Briggs’s attendances with low back pain at VAHSC on five occasions.  However, the report makes no reference to Mrs Briggs presenting with low back pain on 10 April 2008 following the claimed injury.  The report states that Mrs Briggs was seen by the neurosurgical clinic at St Vincent’s Hospital in January 2008 and …put on the waiting list for surgery.  Following multiple deferments, she eventually had two laminectomies in early February 2010. ...

27. The third report to Hounslow and Associates dated 4 April 2011 is a composite of the two earlier reports with several omissions. 

28. In her evidence before the Tribunal, Dr Dwyer explained the difficulties she had experienced in analysing the entries in Mrs Briggs’s medical file.  This resulted from problems at the clinic with the institution of computerised records.  Despite this, she was certain Mrs Briggs had attended VAHSC on 10 April 2008, as she had found such a record in 2011 but was now unable to locate it.  While the first mention of sciatica in the clinical records was in the entry of 10 July 2008, Dr Dwyer could not be sure that Mrs Briggs had not complained to the clinic’s doctors of pain radiation at an earlier date.  She considered the episodes of back pain prior to those reported on 10 April 2008 as being of no great significance.  Dr Dwyer had herself made an entry of probably sciatica on 4 February 2008 but said all episodes prior to April 2008 were as I say it was never severe enough for us to actually x-ray it. Dr Dwyer confirmed that Mrs Briggs had not attended VAHSC since late 2009.

    MR GERALD MORAN

29. Mr Moran is an orthopaedic surgeon.  In his report of 6 November 2011 Mr Moran opined that Mrs Briggs suffered from degenerative L4-5 spondylolisthesis and L-2, L3-4 and L5-S1 disc degeneration. He stated that her condition had been aggravated by her work duties between 31 March 2008 and 2 April 2008. Consequently, Mrs Briggs has a continuing incapacity for her pre-injury work since 2 April 2008. 

30. In his evidence before the Tribunal Mr Moran confirmed his opinion that an aggravation of pre-existing pathology was more likely than a discrete alteration in spinal pathology. 

31. Under cross-examination, Mr Moran rejected Ms Dowsett’s suggestion that a delay in the onset of sciatic pain indicated that the workplace events (in April 2008) had not resulted in disc prolapse, as such pain not uncommonly commenced weeks after the event. 

32. The Tribunal asked Mr Moran if it was possible that the workplace events had increased the slippage of the fourth lumbar vertebra on the fifth and thereby rendered Mrs Briggs symptomatic.  Mr Moran regarded this as a possibility only; as there was no radiological evidence to support this mechanism given the absence of any pre-injury or early post‑injury x-rays.  The Tribunal also asked Mr Moran if Mrs Briggs’s spondylolisthesis could be congenital. This question was initiated by the radiological report of 24 August 2009 noting a pars defect at L4/L5; a condition which may be either congenital or resulting from trauma (Tribunal member’s own knowledge).  Mr Moran was of the opinion that spondylolysis, the name given to this defect, can give rise to spondylolisthesis but is never congenital. 

33. In re-examination, Mr Carey asked Mr Moran if the underlying pathology had been aggravated by the events in April 2008.  Mr Moran believed this to be the case and added that this had the effect of accelerating the need for surgery. 

    MR CLIVE JONES

34. Mr Jones is an orthopaedic surgeon.  He provided two reports dated 8 January 2012 and 23 February 2012.  Mr Jones considered Mrs Briggs’s spondylolisthesis with neural compression to be degenerative in aetiology and rendered symptomatic by the workplace events.  He regarded the latter as a temporary aggravation lasting two to three months.  In his opinion, the need for surgery had been related to the natural progression of Mrs Briggs’s spinal canal stenosis.

1. Mr Jones maintained his opinion that the work injury caused only temporary aggravation of Mrs Briggs’s degenerative spinal disease.  In reaching his opinion he relied solely on his personal clinical experience, which indicated that injury-induced aggravation or causation of symptoms resolved in three months’ time.  Mr Jones was asked about the significance of the absence of right lower limb reflexes, as reported by Dr Dwyer on 24 November 2008.  He said this may indicate something affecting the first sacral nerve root in the spine but he considered this quite unusual in canal stenosis.

2. In response to Ms Dowsett’s question, Mr Jones said that he did not believe that the time of onset of any sciatica symptoms was of clinical relevance.  [Tribunal note:  It is not clear if Mr Jones was provided with the CT scan report of 2 November 2009 which showed an L5/S1 disc bulge contacting both S1 nerve roots, the MRI scan of 21 March 2009 to the same effect and the MRI of 30 January 2010 showing compression of the right L5 nerve root by the bulging L4-5 disc and facet joint pathology resulting in subarticular stenosis.]

3. Under cross-examination, Mr Jones agreed with Mr Carey’s submission that the decision to proceed to surgery was symptom driven, particularly as the clinical signs and radiological findings were positive.  However, that did not alter his opinion that any aggravation had ceased by July 2008. 

4. The Tribunal asked Mr Jones if it was possible that the work events of March/April 2008 could have increased L4 on L5 slippage.  Mr Jones was unable to say whether the slippage had increased as the result of the work-related incident.

   DOCUMENTARY EVIDENCE

5. Mrs Briggs’s sons, Darren and Robert, provided statements attesting to her level of pain and distress on 2 April 2008 and that she stayed at Darren’s apartment for approximately one week after the workplace events.  Darren said his mother spent this time lying down.  As her pain became really bad she sought medical advice after about a week. 

6. The relevant entries in Mrs Briggs’s medical files have been considered under BACKGROUND TO THE APPLICATION above. The Tribunal agrees with Doctors Borthwick and Dwyer that their clinic’s note-keeping is poor. 

   LEGISLATION

7. The relevant legislation is contained in the following sections of the Safety, Rehabilitation and Compensation Act 1988 (the Act). 

   5A  Definition of injury

   (1)In this Act:

   injury means:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   5B  Definition of disease

   (1)In this Act:

   disease means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)     the duration of the employment;

   (b)     the nature of, and particular tasks involved in, the employment;

   (c)     any predisposition of the employee to the ailment or aggravation;

   (d)     any activities of the employee not related to the employment;

   (e)     any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

   (3)In this Act:

   significant degree means a degree that is substantially more than material.

   14  Compensation for injuries

   (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.

   16  Compensation in respect of medical expenses etc.

   (1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

   19  Compensation for injuries resulting in incapacity 

   (1)   This section applies to an employee who is incapacitated for work as a result of an injury …

   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 ...

   SUBMISSIONS

8. The Respondent advised that it did not intend to pursue the issue in relation to section 7(7) of the Act.

9. The parties agreed that Mrs Briggs had suffered an injury satisfying s 5B(1)(a) of the Act; that is the workplace events between March 31 2008 and April 2 2008 had resulted in the aggravation of a pre-existing L4/L5 degenerative anterior spondylolisthesis and disc degeneration at L1-2, L3-4 and L5-S1. 

10. Mr Carey contended that this aggravation rendered Mrs Briggs symptomatic in terms of back pain and the development of sciatica, which persisted and increased in severity necessitating surgical intervention.  He pointed out that Mr Jones and Mr Moran considered Mrs Briggs incapacitated for work at her former level as a cleaner.

11. Mr Carey submitted that there was only one serious objection to the Tribunal finding that Comcare was liable under s14 of the Act.  That was whether notice was given as soon as practicable (s 53(1)(a)); and if not so given in a reasonable time, whether Comcare would be prejudiced by this delay in the event the Tribunal found that notice was sufficient.   He noted that the decision-maker of the primary determination dated 8 April 2011 stated: I am satisfied that you have provided notice of your injury as soon as practicable.

12. Mr Carey cited the decision of the Tribunal in Re Farnaby and Military, Rehabilitation and Compensation Commission [2008] AATA 603, where Deputy President Groom said at paragraph 26:

    A failure to understand or appreciate the symptoms of an injury or disease and their cause has been recognised as a reasonable cause for want of a notice or a claim.

    Deputy President Groom referred to the authorities of Kiefel J in Banks v Comcare [1996] FCA 1490 and the Tribunal in Tralongo and MRCC [2004] AATA 1242.

13. Mr Carey submitted that despite Mrs Briggs’s ongoing symptoms, her regular attendance at two medical clinics and physiotherapy; a diagnosis was not made until the CT scan was performed on 21 November 2008. Following this Mrs Briggs was referred to the neurosurgical clinic at St Vincent’s Hospital where further delays were experienced.  Mr Carey argued that the earliest time Mrs Briggs could have given notice was when Dr Hammond provided a WorkCover Certificate of Capacity on 27 February 2009, although Mrs Briggs had given evidence that she had attempted to contact the hostel manager in November 2009 and later spoke with Ms Faye Atkinson, who could not recall the incident.  Mr Carey cited the decisions in Re McCarthy and Comcare [2002] AATA 5 and Frosch v Comcare (2004) FCA 1642, in support of his contention that the provision of a certificate or information as to the nature of injury or ailment and its connexion to employment was all that is required.

14. While it was not denied that Mrs Briggs did not lodge the certificate until she attended AAH Limited’s regional office on 16 December 2009, Mr Carey contended that:

    Where there’s no prejudice to the relevant authority then the notification that is in fact given shall be treated as reasonable notice. (Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 as applied by Deputy President Hotop in Re Holmes and Comcare [2001] AATA 290).

15. Mr Carey submitted there was no material before the Tribunal to support an argument that the Respondent was prejudiced by the acceptance of the certificate as the giving of notice under s 53 of the Act.  No witnesses had been called to refute Mrs Briggs’s account of events or her sons’ statements and the medical records of Mrs Briggs’s treating doctors who were available to give evidence before the Tribunal.  However, should the Tribunal not be satisfied as to a lack of prejudice to the Respondent, Mr Carey submitted that Mrs Briggs’s delay in giving notice resulted from her misunderstanding of the compensation system and her naive belief that she may be taking money away from the residents at the hostel.

16. Mr Carey summarised the medical evidence and noted the acceptance  by all of the doctors (except Mr Jones) of the diagnosis of an aggravation of a pre-existing degenerative spinal condition caused by the additional work duties of washing heavy drapes between 31 March and 2 April 2008.  Mr Jones said that the aggravation accelerated the need for surgery.  Mr Carey noted Mr Moran’s evidence that the work injury contributed a significant degree to the aggravation of the underlying condition and necessitated surgical intervention to achieve symptom control. 

17. Mrs Briggs sought to have the reviewable decision set aside and compensation in the form of incapacity payments made from 2 April 2008. She also sought the payment of her medical expenses subject to s 16 of the Act and an order for the costs of the proceedings.

18. Ms Dowsett accepted that should the Tribunal find in Mrs Briggs’s favour in the s 53 notice issue, it would be open to the Tribunal to set aside the reviewable decision and find that there had been a temporary aggravation that resolved by July 2008.  Ms Dowsett relied on Dr Dwyer’s evidence that the symptoms of sciatica appeared later, and led Dr Dwyer to examine Mrs Briggs and find that the tendon reflexes in her right lower limb were absent.  Ms Dowsett’s contention was that this represented a relevant alteration in circumstance and that Dr Dwyer’s report and clinical notes were more reliable than Mrs Briggs’s memory.  Based on Mr Jones’s opinion that the effects of the March/April 2008 injury would last two to three months, Ms Dowsett postulated a separate intervening cause for the development of sciatica.  She did not address the nature of such an intervening event.

19. The Respondent’s major contention relates to the question of the giving of notice and the prejudice suffered by it as a result of the delay until 16 December 2009.  Ms Dowsett submitted that unlike Mrs Briggs’s earlier episodes of back pain, her symptoms in April 2008 had persisted and as soon as practicable would have been in mid-April 2008.  Ms Dowsett contended that while Mrs Briggs was concerned that by lodging a claim she would be taking money from the residents at the hostel, she had resolved that concern by February 2009, when she had asked her doctor for a certificate and then a letter for her solicitor in April 2009. 

20. Ms Dowsett distinguished the decision in Holmes from Mrs Briggs’s claim on the basis that Mr Holmes’s injury was contracted over a lengthy period rather than on a specific occasion.  She also distinguished the Tribunal’s findings and decision in Re Smith and Comcare [2011] AATA 662, where prejudice to Comcare was not found as Mr Smith’s medical records of pre-injury health were available. Ms Dowsett submitted that Mrs Briggs’s medical records were not full medical records as they did not contain the entries for 10 April 2008 and 31 April 2008, upon which Dr Dwyer relied in her reports. Nor was the report of the plain lumbar spine x-ray dated 2 May 2008 taken by Northcote Radiology, available to the Respondent or the Tribunal. In response to a question from the Tribunal, Ms Dowsett acknowledged that Comcare had not attempted to obtain this report.

21. Ms Dowsett argued that Comcare had been denied an opportunity for a contemporaneous investigation of the extent and nature of the injury.  She was relying on the Tribunal decision in Re Vo and Comcare [2005] AATA 773. In Mrs Briggs’s case, Ms Dowsett submitted that the crucial time for such an opportunity for contemporaneous investigation by Comcare, was before VAHSC recorded the onset of sciatica in July 2008 and/or February 2009 as recorded by Doctors of Northcote.

22. Ms Dowsett contended that the only issue before the Tribunal was Comcare’s liability under s 14 of the Act, which could only be addressed if the requirements of s 53 were met; as the reviewable decision had not considered liability under s 16 and s 19.

23. In response to the Respondent’s submissions that the Tribunal jurisdiction was limited to considerations under s 14 of the Act, Mr Carey drew attention to a decision of Downes J that the review of rejection of a claim for compensation may encompass impairment, medical expenses and incapacity.  In addition, Mrs Briggs had indicated she was claiming medical expenses as she ticked the relevant box. (Mr Carey subsequently confirmed that the decision he referred to above was Re Fuad and Telstra Corporation Limited [2004] AATA 1182).

24. Mr Carey argued that the dissatisfaction with the quality and completeness of Mrs Briggs’s treating doctors’ records did not equate to prejudice. Comcare, upon receiving notice, had directed its queries to the treating doctors whose responses were based on the same clinical notes.

25. Mr Carey also pointed out that Mr Jones, in forming his opinion, had placed no reliance on the time of onset of the symptoms of sciatica. 

    TRIBUNAL’S DELIBERATIONS AND DECISION

26. There is no dispute as to Mrs Briggs’s diagnosis:   degenerative anterolisthesis of L4 on L5 producing mild to moderate spinal canal stenosis, degenerative disc changes at L1-2, L3-4, L4-5 and L5/S1, facet joint degenerative changes and compression of the right L5 nerve root.   The parties accept that the injury suffered by Mrs Briggs in the course of her employment at William T Onus Hostel between 31 March 2008 and 2 April 2008 rendered her pre-existing ailment symptomatic.

27. The issues for determination by the Tribunal are:

    ·was the contribution by Mrs Briggs’ employment  to the aggravation of a pre-existing degenerative spinal disease of a significant degree and if so;

    ·is the Respondent liable to pay compensation in accordance with s 14(1) of the Act and by extension s 16 and s 19;

    ·is any such liability negated by the requirements of s 53  to give notice as soon as practicable  (s 53(1)(a));

    ·was the delay in giving notice  prejudicial to the Respondent (should this notice be considered sufficient); and

    ·did the delay result from ignorance, a mistake or any other reasonable cause and be thereby considered sufficient.

    A SIGNIFICANT CONTRIBUTION

28. Mrs Briggs acknowledged her history of episodic back pain commencing in 1983. She acknowledged that she had not apprised the doctors she had seen of all of these episodes because they had only lasted for a few days and had been responsive to rest and simple analgesia. 

29. Mrs Briggs has given a clear history of the events of 31 March to 2 April 2008 and her resulting symptomatology, which shall not be repeated here.  She admits that she did not notify her employer of these events or her symptoms.  She did not seek medical attention until 10 April 2008, when her pain became more severe and unresponsive to rest and Panadeine Forte.

30. It is unfortunate in terms of reaching a decision in this matter (and from the viewpoint of Mrs Briggs’s medical management) that throughout the relevant period Mrs Briggs has attended two medical clinics and has been seen by different doctors, with little continuity of care.  The medical records of both clinics are poor and the notes are brief.  These defects in the note-keeping have been acknowledged by the representatives of both clinics. 

31. Mrs Briggs was physically examined at Doctors of Northcote on 10 April 2008. The findings on examination are limited to the lumbar spine.  The entry no sciatica could mean no symptoms of radiation or no signs of nerve compression.  Her back was not examined again until 12 November 2008.  In the interim, the only physical examination of Mrs Briggs was of her mouth. 

32. There are no entries in the VAHSC clinical record of Mrs Briggs undergoing physical examination of her back or a neurological examination of her lower limbs.  In the letter of referral to the St Vincent’s Hospital neurosurgical clinic dated 24 November 2008, Dr Dwyer stated Absent reflexes on R. However, the clinical notes of that day merely say + ve neurology.  Dr Dwyer’s letter of 7 April 2011 refers to Mrs Briggs attending the clinic and complaining of back pain on 10 April 2008 and on 31 August 2008. The letter states that on 31 August 2008 Mrs Briggs had positive SLR [straight leg raising] at 75-80 degrees [side not stated].  The letter of 4 April 2011 states that markedly reduced lower limb reflexes [side unstated] were demonstrated on physical examination on 3 November 2008.  The three-word entry in the notes of that date does not record any examination findings other than bilateral sciatica found.  [Tribunal note: sciatica is a symptom not a physical sign].

33. In contrast, Mr Chris Lane, the physiotherapist who treated Mrs Briggs, has made detailed entries on each occasion he saw her at VHASC.  Commencing on 10 July 2008, when he recorded low back pain since 11 April 2008, radiating to the posterior, thighs and calves, he continued at each attendance to examine Mrs Briggs’s back and her spinal range of movement.  Unfortunately, he did not test her lower limb reflexes.  On 30 October 2008 Mr Lane described Mrs Briggs as having decreased light touch sensation in both calves in a L4 dermatomal distribution.

34. It may be that some pages of these records are missing. As Dr Dwyer told the Tribunal, she had photocopied the records herself and had stuff piled up all over the place.

35. In light of the deficiencies in the doctor-generated entries in the medical records of VAHSC, the Tribunal has placed greater reliance on the entries made by Mr Lane.

36. In her report to Comcare dated 28 March 2011, Dr Dwyer stated that Mrs Briggs had been seen at St Vincent’s neurosurgery in January 2008 and put on the waiting list for surgery. This is patently incorrect as referral to St Vincent’s neurosurgical clinical was made by Dr Dwyer on 24 November 2008.  Mrs Briggs’s name was placed on the waiting list by Dr Wang in August or October 2009.  Dr Dwyer’s advice to Comcare was a factor in the review officer’s decision of 25 May 2011.  Mr Burrows wrote:

    It is of note that you were on the St Vincent’s neurosurgery waiting list for surgery prior to the claimed workplace incident. (PT21, p84)

37. The orthopaedic surgeons, Mr Moran and Mr Jones, agreed that the workplace incident of March/April 2008 had aggravated Mrs Briggs’s underlying degenerative lumbar spine pathology and that she remained incapacitated for her former work.  Mr Jones was adamant that the effects of this aggravation would have lasted no more than three months and Mrs Briggs’s symptoms thereafter were due to the natural progression of the underlying degenerative pathology.  Mr Jones’s opinion was based purely on his own clinical experience. He maintained this opinion despite the clinical history of Mrs Briggs experiencing continuing and increasingly severe symptoms until relief was obtained by spinal fusion. 

38. In contrast, Mr Moran, basing his opinion on the same clinical history, considered the aggravation to have persisted without any evidence of an intervening event until surgical intervention.  Mr Moran also regarded it as a possibility that the events of March/April 2008 had increased the slippage of L4 on the L5 vertebra and accelerated the degenerative process.  Dr Borthwick was of a similar opinion in relation to the possibility of increase slippage associated with the workplace incident.  Mr Jones was unable to comment on this possibility.

1. The Tribunal finds that the workplace incident made a significant contribution to Mrs Briggs’s development of back pain and sciatica necessitating surgery for symptomatic relief.  This conclusion is determined primarily by the longitudinal clinical history provided by Mrs Briggs in her evidence and contained in the clinical records.  As the contribution was significant as required by s 5B(b) of the Act, s 14 is attracted.

2. Liability under the Act is subject to the requirements of s 53 of the Act with regard to the giving of notice.

   THE GIVING OF NOTICE

3. Section 53(1)(a) of the Act provides that notice in writing of the injury is to be given as soon as practicable after the employee becomes aware of the injury.

4. Mrs Briggs attended the AAH Limited regional office on 16 December 2010 and presented the certificate completed by Dr Hammond on the 27 February 2009.  She was given a claim form for Workers’ Compensation, which was lodged on 23 December 2010.  In Frosch v Comcare the Federal Court determined that lodging such a certificate constituted the giving of notice.  Notice was thus given approximately 20 months after the workplace incident.

5. It is clear that Mrs Briggs first contemplated lodging a Workers’ Compensation claim on 20 November 2008, when she discussed it with the physiotherapist, Mr Chris Lane.  In that same month she endeavoured to contact the manager of the William T Onus Hostel but was unsuccessful.  In December 2009 she again attempted to contact her ex‑employer.  The first Workers’ Compensation Certificate was issued on 27 February 2009, although it was written on a Victorian WorkCover form.  In 2009 and 2010, these certificates were regularly provided by Doctors of Northcote.  Throughout their submissions to the Tribunal, Ms Dowsett and Mr Carey referred to the date of giving of notice as 16 December 2009.  This date also appears in the letter from Rita Stewart, the Regional Manager of AAH Limited, as being the date on which Mrs Briggs submitted medical certificates relating to her claim.  The employer’s questionnaire accompanying the claim form of 23 December 2010 was signed by Fay Halatanu and was dated 7 January 2010. The questionnaire stated that the employee notified the employer on 16 December 2009.  The parties accept that the date on the employer’s questionnaire should be 7 January 2011.

6. The Tribunal finds that notice was given on 16 December 2009.

7. Mrs Briggs explained her delay in giving notice earlier than 16 December 2009 as being due to her mistaken belief that by lodging such a claim she would expose the residents of the William T Onus Hostel to the financial liability of paying her compensation.  She appears not to have had any prior experience of the workers’ compensation system. 

8. While not addressed by Ms Dowsett or Mr Carey, the clinical records of Doctors of Northcote reveal that Mrs Briggs first learnt that she was to undergo surgical intervention in 8 September 2009 or 16 October 2009.  Neither these clinical records nor those of VAHSC contained any mention of their doctors discussing with Mrs Briggs the nature of her injury or its treatment.  This is in contrast to several entries wherein her anxiety, its treatment with Valium and numerous family conflicts and major problems were discussed.  From 2008 until 2010 Doctors of Northcote recorded serious problems in the immediate family ranging from mental illness to criminal activities attracting charges and necessitating Mrs Briggs’s attendance in court in support of a family member.  The latter may amount to other reasonable cause; as did comparable considerations in Re Scutts and Department of Defence [1998] AATA 13085 a decision of Deputy President McMahon.

   PREJUDICE TO THE RESPONDENT

9. The Respondent’s claim of prejudice relates primarily to its lost opportunity to obtain medico-legal expert opinion prior to the documentation of symptoms of sciatica in July 2008 by Mr Chris Lane.  Mrs Briggs’s evidence was that radiation of the back pain to her thighs and legs with associated numbness and tingling were present from 2 April 2008. Mr Lane recorded these symptoms as being present since 11 April 2008. Furthermore, Dr K B O (initials only entered in the notes), who saw Mrs Briggs in the neurosurgical outpatient clinic at St Vincent’s Hospital on 10 March 2009, noted a twelve-month history of right and left leg pain radiating to the hip/calf/foot and paraesthesia.  Despite Dr Dwyer’s recording of absent knee and ankle reflexes in Mrs Briggs’s right lower limb in November 2008, the examination conducted at the St Vincent’s Hospital neurosurgical clinic on 10 March 2009 found normal muscle power, reflexes and sensation in both lower limbs.  One can only conclude that any physical signs Mrs Briggs may have had varied from time to time, as only Dr Dwyer had adduced evidence of a neuropathy.  

10. If the respondent had obtained independent expert medical opinion prior to the performance of the CT scan on 21 November 2008, the expert opinion would have been constrained to the clinical history and any physical signs of nerve compression which may or may not have been present.  While medico-legal experts will frequently recommend necessary and appropriate further investigations, such as a CT scan or MRI, the ordering of such investigations is the responsibility of the treating doctor, who may or may not accept the recommendation depending on their clinical judgement.  Earlier investigation would probably have been of great advantage to Mrs Briggs.

11. The Respondent did obtain expert opinion (Mr Jones) in January 2012, following receipt of Mr Moran’s opinion of 6 November 2011.  The Respondent provided Mr Jones with the majority of the documentation before the Tribunal, including, the entire clinical records of Doctors of Northcote and VAHSC and the clinical records of St Vincent’s Hospital.  In all, Mr Jones received 13 separate items of evidence. 

12. The Respondent did not present any specific evidence to the Tribunal supporting its claim of prejudice.

13. The parties cited the Tribunal decisions in Re Holmes and Comcare [2001] AATA 290, Re Smith and Comcare [2011] AATA 662 and Re Vo and Comcare [2005] AATA 773.  In Re Holmes the delay was 6 years; in Re Smith 12 years and in Re Vo 6 years from the time of onset of symptoms. In Re Vo, however, Mr Vo had received some compensation for anxiety and depression occurring in 1995 in a consent agreement adopted under s 42C of the Administrative Appeals Tribunal Act 1975, with the injury ceasing to have effect on 21 October 1995.  Mr Vo lodged a further claim for compensation on 9 October 2001 for the same injury.  In Re Holmes and Re Smith the Tribunal found the Respondent had not suffered prejudice by virtue of the delay in giving of notice as contemporaneous medical records and opinions were available to the Respondent in both cases. 

14. Ms Dowsett distinguished Re Holmes from Mrs Briggs’s claim, on the basis that Mr Holmes’ injury had been contracted over a lengthy period of time and there was no specific event leading to his medical presentation.  Mrs Briggs’s injury was similar to the extent that she suffers from a chronic degenerative condition, although it was rendered severely symptomatic by a specific event.  The Tribunal does not agree with Ms Dowsett’s contention that Re Smith is also distinguishable as Mr Smith’s pre-injury health records were available.  Medical records since January 2003 relating to Mrs Briggs were provided to the Tribunal and the parties. Any deficiency thereof was beyond retrospective reconstruction.

15. In Re Vo, the Tribunal did find the Respondent had been prejudiced by the delay in giving notice due to Comcare’s loss of opportunity to have Mr Vo examined and to provide Mr Vo with rehabilitation.  The Tribunal decision to deny the claim was based on the finding that Mr Vo did not suffer from an ailment that is, a disease, as defined in s 4 of the Act. Rather he suffered from an intensely obsessional personality structure and paranoid traits.  Mrs Briggs’s circumstances are quite different.  No medical practitioner suggested she does not have an ailment, the absence of which could have been detected by earlier expert examination and opinion.

16. The Tribunal finds that the Respondent has not been prejudiced by Mrs Briggs’s failure to comply with the requirements of s 53 of the Act.  Given Mrs Briggs’s mistaken reason for not acting earlier, The Tribunal accepts that the notice of injury was given on 16 December 2009 and constitutes sufficient notice. 

17. The Tribunal is satisfied that the employment related incidents between 31 March and 2 April 2008 significantly contributed to Mrs Briggs’s degenerative lumbar spinal disease by rendering it continuously and severely symptomatic and accelerating the necessity for surgical intervention.  In addition, the medical evidence, without exception, is that Mrs Briggs remains incapacitated for employment at her former occupation as a cleaner.

    SHOULD THE TRIBUNAL PROCEED TO CONSIDERATION OF THE CLAIM UNDER SECTION 16 AND SECTION 19

18. Based on the decision of Downes J in Re Fuad and Telstra Corporation Limited [2004] AATA 1182, Mr Carey submitted that such considerations were before the Tribunal, despite the decision-maker not having proceeded to such a consideration. In Re Fuad, Downes J at paragraph 5 said:

    [5]It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.

19. In Commonwealth v Ford (1986) 65 ALR 323, Mr Ford’s claim was under the 1971 Act. The Federal Court held that the Tribunal may review a determination and award benefits to which the claimant was entitled but which were not referred to in the Commissioner’s determination. The Tribunal was not confined either to the material which was before the Commissioner or to the events which had occurred up to that time.

20. Mrs Briggs’s claim form indicated that she was seeking compensation under s 14 of the Act and as she ticked the box relating to medical expenses she was presumably seeking compensation in relation to medical expenses.

21. Given this Tribunal’s decision with respect to the s 14 liability of Comcare, Comcare should revisit the question in relation to s 16 and s 19, as provided in Part II of the Act.

22. The Tribunal sets aside the decision under review and substitutes its decision that Comcare is liable to pay compensation in accordance with s 14, to Mrs Briggs for her injury sustained in employment between 31 March 2008 and 2 April 2008. 

    ORDER AS TO COSTS

    95.The Respondent shall pay the Applicant’s costs of these proceedings. 

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan.

.......[sgd]...........................................

Associate

Dated 6 August 2012 

Dates of hearing	4 & 6 June 2012
Counsel for the Applicant	Mr Mark Carey
Solicitors for the Applicant	Andrew Hounslow, Hounslow & Associates
Counsel for the Respondent	Ms Cathy Dowsett
Solicitors for the Respondent	Mr Phillip Johnstone, Thomson Laywers

Attachment

EXHIBITS

For the Applicant:

• Statement of Mrs Lynette Briggs dated13 January 2012 – Exhibit A1
• Mr Moran’s Report dated 6 October 2011 – Exhibit A2
• Statement of Robert Briggs dated 27 February 2012 – Exhibit A3
• Statement of Darren Briggs dated 27 February 2012 – Exhibit A4

For the Respondent:

• Section 37 Documents (T-documents) – Exhibit R1

• Doctors of Northcote clinical file relating to Lynette Briggs, last entry 27 July 2011, including re Victorian Aboriginal Health Services Co‑Operative medical reports and notes – Exhibit R2

• Victorian Aboriginal Health Service Co-Operatives notes predominantly relating to physiotherapy treatment – Exhibit R3

• Lumbar Spine Report (CT scan) dated 2 November 2009 – Exhibit R4

• Plain x-ray report dated 24 August 2009 – Exhibit R5

• Mr Moran’s Report dated 6 October 2011 – Exhibit R6

• Report by Dr Clive Jones dated 8 January 2012 – Exhibit R7

• Report of Dr Clive Jones dated 23 February 2012 – Exhibit R8

• Referral from Dr Dwyer to St Vincent’s Hospital dated 24 November 2008 – Exhibit R9

• MRI Scan dated 23 March 2009 – Exhibit R10

• X-Ray dated 24 August 2010 – Exhibit R11

• MRI LUMBAR Spine dated 30 January 2012 – Exhibit R12

• CT Scan dated 4 February 2010 – Exhibit R13

• CT Scan dated 8 February 2010 – Exhibit R14