Maria Roxas and Comcare
[2012] AATA 747
•30 October 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/0630 and
GENERAL ADMINISTRATIVE DIVISION ) 2011/2493Re: Maria Roxas
Applicant
And: Comcare
RespondentCORRIGENDUM TO DECISION [2012] AATA 747
TRIBUNAL: Senior Member J F Toohey
DATE: 11 March 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Where at paragraph 87 the decision currently reads “The Tribunal can make of a claim what it will”, the decision shall now read “The Tribunal cannot make of a claim what it will”.
.....[sgd]..............................................................
Jill Toohey
Senior Member[2012] AATA 747
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0630 & 2011/2493
Re
Maria Roxas
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr S H Toh
Date 30 October 2012 Place Sydney (i)In Matter No 2011/2493 concerning the applicant’s injury on 8 September 2008, the Tribunal affirms the decision under review;
(ii)In Matter No 2011/0630 concerning the applicant’s injury on 9 August 1999, the matter is adjourned for further medical evidence concerning the degree of her permanent impairment.
............[sgd]............................................................
Senior Member J F Toohey and Dr S H Toh
CATCHWORDS
COMPENSATION – neck and thoracic sprain – liability accepted for incapacity and medical treatment – liability denied for permanent impairment and non-economic loss – aggravation of neck sprain – liability accepted – whether effects of aggravation had ceased – whether Tribunal could consider continuing effects of original injury – reviewable decision concerned aggravation only – decision under review affirmed - claim for permanent impairment arising from original injury – liability denied – Tribunal satisfied applicant had permanent impairment - whether permanent impairment could be assessed on Comcare Guide – proper approach where Comcare Guide not applicable – American Medical Association Guides – assessment of chronic pain – matter adjourned for assessment based on clinical judgment
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 43(1)
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16 24, 27 and 64
CASES
Abrahams v Comcare (2006) 93 ALD 147
Broadhurst v Comcare [2010] FCA 1034
Comcare and Broadhurst [2011] FCAFC 39
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Lees v Comcare [1999] FCA 753
Liu and Comcare [2004] AATA 617
Riley and Comcare [2011] AATA 674
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Szabo v Comcare [2012] FCA 28; [2012] FCAFC 129Telstra Corporation Ltd v Hannaford [2006] FCFCA 87
SECONDARY MATERIALS
American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th ed
Comcare, Guide to the Assessment of the Degree of Permanent Impairment, 2nd ed
REASONS FOR DECISION
Senior Member J F Toohey and Dr S H Toh
30 October 2012
BACKGROUND
Maria Roxas was working as a customs officer at Sydney International Airport in August 1999 when a hatch door fell on her head. She was off work for most of the following three months before making a graduated return to full time work. The respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act1988 (the SRC Act) for “neck sprain”, “symptoms involving head and neck” and “thoracic sprain”.
In October 2001, Ms Roxas was involved in a minor motor vehicle accident on her way to work which caused an exacerbation of her neck symptoms. The respondent accepted liability for “aggravation of neck sprain”.
In May 2002, the respondent made a determination to the effect that it was no longer liable to compensate Ms Roxas for her injuries.
In 2004, following a routine rotation of duties, Ms Roxas was assigned to duties which exacerbated her neck pain. As a result, she was taken off those duties and, since then, has undertaken duties which she manages without particular difficulty, but she continues to suffer intermittent “flare-ups” of pain from repetitive movements, as well as from housework and cold weather.
In September 2008, Ms Roxas experienced an exacerbation of her neck pain while at work. It is common ground that, while it was related to her duties, no specific incident occurred to aggravate her pain. The respondent accepted liability for “aggravation of neck sprain”.
In these proceedings, Ms Roxas seeks review of two determinations:
(i)a determination made on 27 May 2011 affirming a decision that the effects of her 2008 aggravation had ceased as of 9 December 2010 and that the respondent was no longer liable to compensate her for medical treatment or incapacity resulting from it;
(ii)a determination made on 18 January 2011 affirming a decision that she is not entitled to lump sum compensation for permanent impairment and non-economic loss as a result of her 1999 injury.
THE ISSUES
The claim for incapacity and medical treatment
Ms Roxas’ application for review of the determination concerning incapacity and medical treatment raises the questions as to whether the effects of that injury ceased in December 2010, and what is the scope of the Tribunal’s review.
The respondent contends that the reviewable decision concerns whether or not the aggravation of neck pain suffered by Ms Roxas in 2008 had ceased by 9 December 2010, and that the Tribunal has no jurisdiction to consider the effects of her earlier injuries. The respondent further contends that any incapacity or need for medical treatment after that date is the result of underlying degenerative changes in her neck or further aggravations of her neck pain.
For Ms Roxas it is contended that her 1999 injury continues to be “the operative and effective cause” of her continuing incapacity and need for treatment, for which she is entitled to compensation, and that the Tribunal is not limited by the terms of the determination under review.
The claim for permanent impairment and non-economic loss
In relation to Ms Roxas’ claim concerning permanent impairment arising out of the 1999 injury, we have to determine:
(i)whether she has an impairment within the meaning of s 4 the SRC Act;
(ii)if so, whether her impairment is permanent as defined by the SRC Act;
(iii)if she has a permanent impairment, what is the degree of her permanent impairment.
This last question involves a further question, being how the degree of any permanent impairment is to be assessed.
THE LEGISLATIVE FRAMEWORK
The respondent is liable to pay compensation to an employee in respect of an injury that results in incapacity for work or impairment: s 14 of the SRC Act.
Injury is defined in s 5A(1) to mean relevantly:
(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.
Disease is defined in s 5B(1) to mean:
(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.
The respondent is liable to pay compensation of such amount as it determines is appropriate for reasonable medical treatment in relation to an injury: s 16.
By s 24, the respondent is liable to pay compensation to an employee in respect of an injury that results in permanent impairment. Such liability does not arise if the degree of permanent impairment is less than 10%: s 24(7).
Where compensation is payable under s 24 for permanent impairment caused by an injury, the respondent is liable to pay additional compensation for any non-economic loss suffered by the employee as a result of that injury or impairment: s 27.
The degree of permanent impairment or non-economic loss suffered by an employee is to be assessed under the provisions of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide): s 24(5).
THE HISTORY OF MS ROXAS’ WORK-RELATED INJURIES
The injury in 1999
Ms Roxas has worked as a customs officer at Sydney airports since 1997. She is now aged 37. She has had scoliosis of the spine since she was a child but had no pain or restriction of movement before Monday, 9 August 1999, when a wooden hatch door weighing approximately five kilograms fell on her head as she walked down a ramp at work.
The hatch door hit Ms Roxas towards the left side of the back of the top of her head. She felt shock but did not lose consciousness. She felt “stunned” but was able to keep walking; she walked to her car which was parked about one minute away and drove about five minutes to her supervisor’s office where she reported the matter and lay down. After a short time, someone drove her home.
The following day, Ms Roxas had pain around her neck and found it hard to get out of bed. She saw a doctor at her local medical practice who certified her unfit for work for the rest of the week.
Ms Roxas cannot recall clearly how long she was off work following her injury, and employment records for the period are not available. According to her claim for compensation, which she signed on 18 August 1999, she returned to work on Monday, 16 August. It is reasonable to assume she was at work at least until she signed the claim form.
Dr Mel Cusi, an orthopaedic specialist, reported to Ms Roxas’ general practitioner, Dr Greg Wilcox, on 19 November 1999 that she had reported two attempts at returning to work, one lasting three days, the other lasting only one day.
Dr Derrick Billett, a consultant orthopaedic surgeon who saw Ms Roxas in December 2000 for assessment, recorded that she was initially absent from work for two days, then returned to work for five days, then was absent for a further two months before returning to work on a part time basis, for two hours a day, five days a week, performing light duties.
Dr John Bentivoglio, an orthopaedic surgeon, recorded in October 2009 that Ms Roxas said she “lost about three months off work”. Dr Kim Edwards, a surgeon who examined her for the respondent in July 2010, recorded that she said she was “off work for about three months”. We will return to whether there is any significance to what each understood about the severity of her injury.
Given its proximity in time to the event, it is likely that Dr Cusi’s report most accurately reflects Ms Roxas’ attempts to return to work following her injury.
It is common ground that Ms Roxas made a graduated return to work for two hours a day from November 1999. It appears she was working five days a week. By August 2000, she had resumed her pre-injury hours. She continued to have occasional time off. A case closure report in February 2001 from Balmain Rehabilitation and Physiotherapy Centre (BRPS) shows that she had been performing full hours on modified duties for more than one month and attending work consistently, and she was to continue a strengthening programme until April 2001.
In the months following her injury, Dr Wilcox prescribed medication, and referred Ms Roxas for physiotherapy which she found helpful. In September 1999, he sent her for an x-ray and CT scan of her cervical spine and referred her to Dr Cusi and Dr Andreas Loefler, a spinal surgeon. Dr Loefler found an “abnormal cervical alignment” but no evidence of significant pathology. He did not think she required ongoing physiotherapy and advised her to exercise regularly. He thought her symptoms would gradually settle.
Ms Roxas continued to feel pain in her neck and, in December 1999, Dr Wilcox referred her to Mr Brad Wood, a clinical psychologist, to help her deal with the pain emotionally. It appears she saw Mr Wood for approximately three months. She also had physiotherapy, initially weekly, then monthly, for more than 12 months. Her pain continued.
The motor vehicle accident in 2001
In October 2001, Ms Roxas suffered an exacerbation of her neck pain following a minor motor vehicle accident on her way to work. As far as she can now recall, her neck pain was worse over the following days and weeks. She does not appear to have taken time off work.
In April 2002, Ms Roxas was referred to BRPS to determine the suitability of new duties. BRPS recorded that she reported increased neck pain and upper back pain after the accident and that she underwent physiotherapy until December 2001; she continued to experience intermittent upper back pain and headaches by the end of the day up to four times a week; she was taking Nurofen, Panamax and Di-Gesic; she also saw Mr Wood again for approximately three months.
Following the motor vehicle accident, Ms Roxas performed data entry duties. She was still experiencing neck pain but her work station was modified so she did not have to make repetitive neck movements. As far as she can recall, she performed data entry duties for approximately 18 months, after which her duties involved examining parcels and containers. She gave evidence that this work did not exacerbate her symptoms but there was no point at which her neck fully recovered, and she continued to experience pain.
In about April 2004, Ms Roxas was reassigned to “primary line duties” at the airport as part of a normal rotation of duties. The “primary line” involved checking incoming passengers’ passports, and entering and checking their data. She processed 60 to 120 passengers each shift; each passenger took between 30 to 60 seconds. She says the set up did not suit her ergonomically and her neck pain increased. She reported the pain to her supervisor and saw Dr Wilcox.
In September 2004, Ms Roxas was referred to Dr Dale Kong, a senior medical adviser with Health Services Australia (HSA), for a fitness for duty assessment. On 9 September 2004, Dr Kong reported that she “suffers from a chronic musculoligamentous strain of her neck with associated neck pain that is intermittent and apparently exacerbated by physical activity involving movement of the neck”. He considered that duties involving “sustained neck posture and repeated neck activity” would likely exacerbate her symptoms.
Ms Roxas was taken off the primary line and was assigned to marshalling duties which she could manage without pain. She also processed incoming passengers’ declaration cards which caused her some problems because it involved prolonged neck flexion. She then began “crew assist” duties, which involved processing the airline crew prior to their flight. These duties were similar to those when processing passengers but involved processing fewer people. She appears to have rotated between marshalling, and “PSP” duties which involve the secondary scanning of passports, up until the present day.
The 2008 aggravation injury
In September 2008, Ms Roxas says, she was performing her marshalling and PSP duties but her neck pain “was increasing more and more” to the point where she had to have time off. As she recalls, she was taken off PSP duties and performed marshalling duties only. On 8 October 2008 she reported the pain to Dr Wilcox. Her claim for compensation and the evidence about her injury are dealt with next.
MS ROXAS’ CLAIMS
On 22 October 2008, Ms Roxas lodged a claim for compensation for an injury which she described as “neck pain exacerbation”. In response to questions on the claim form as to when she was injured, she stated it was at 6:30am on 25 September 2008. She described the cause as “repetitive movement of the neck”. She stated she first sought medical treatment on 8 October 2008 from Dr Wilcox. She stated she had had a similar “neck injury” on 9 August 1999 for which she had been treated by Dr Wilcox in August 1999.
On 8 October 2008, Dr Wilcox certified Ms Roxas unfit for two days and noted she had also had the previous day off work. He diagnosed her as suffering from “neck pain exacerbation”. He gave the date of injury as 9 August 1999 and noted “exacerbation”.
Ms Roxas’s evidence about the effect of the 2008 aggravation was not altogether easy to follow. In response to questions for her counsel she stated as follows:
So when your duties changed how did your symptoms progress? --- I don’t have the intensity of pain that I had in September.
But in terms of the duties that you did from September 2008 through to now have they been different? --- It wasn’t causing me much pain.
Yes, but in terms of the actual duties you’ve been doing how have they been different to the ones that were causing you trouble? --- I don’t understand.
What duties have you been doing since September 2008? --- Marshalling and PSP.
Right. All right. And those duties you were able to cope with; is that right? --- Yes.
And since 2008 have you been – what hours are you working? --- Full-time hours.
In cross-examination, Ms Roxas gave the following responses:
You had a flare-up of your neck pain in September 2008? --- In September, yes.
When your neck pain went back to – when your neck pain went back to the condition it had been in before September ’08, that was the end of the flare-up, wasn’t it? --- But it wasn’t finished. It did not stop that time.
It went back to the way it had been before September 2008? --- Yes.
We understand Ms Roxas’ evidence to be that, by December 2010 – if not some time earlier – her neck pain had returned to its pre-2008 state. She gave evidence that, currently, she experiences neck pain and a headache on waking; they subside by around lunchtime when she goes home from work and rests, and get worse towards the end of the day. On a scale of 1 to 10 (of increasing intensity), she rates her headaches as “4 - 8” and her neck pain as “5 – 9”.
The evidence about how much time Ms Roxas has had off work since 2008 on account of her neck pain is not clear. Correspondence from the respondent to her in December 2010 and May 2011 confirmed her entitlement to compensation on 19 dates between October 2008 and August 2010. It appears from that correspondence that the last time she was off work because of her neck pain was in August 2010.
Ms Roxas gave evidence that she takes approximately one day off each month on account of her neck pain. Her personnel records are not available and it is not possible to verify her leave. However, under cross-examination, she agreed that she is careful to fill out a claim form for sick leave to be sent to the respondent.
Ms Roxas impressed us as a truthful witness and we accept she continues to have time off work from time to time on account of her neck pain. But the fact remains she has not submitted medical certificates in relation to any time off since August 2010. Ms Roxas’ counsel submitted that the respondent’s correspondence shows only time off for which she was paid compensation, and that is so. But that does not explain why, given her evidence that she takes care to submit a claim for injury-related sick leave, she has not done so for more than two years. In any event, the fact that she has not submitted a medical certificate in that time is more consistent with the respondent’s contention that the effects of the 2008 aggravation had ceased, than with Ms Roxas’ contention that it was continuing.
Ms Roxas continues to have “flare-ups” of pain from time to time which last up to ten days, caused by her duties at work as well as things such as cold weather, vacuuming and cleaning, and tensing her muscles. She lives with her mother, who does most of the housework. She says the pain restricts her; she does not socialise as much and she sees less of her family and friends.
Ms Roxas appears to have had some physiotherapy since the 2008 injury but her treatment has consisted mainly of osteotherapy, which comprises back and neck massage and some manipulation, once a fortnight or once a month, depending on how she feels. The treatment relieves the pain for “a good few days” before she has to take Panadol Osteo tablets. She does not have more regular treatment on account of the cost. She takes 100mg of Norflex, a muscle relaxant, each day; if she does not take it, her pain gets worse. She also takes three to four Panadol Osteo tablets.
THE MEDICAL EVIDENCE
The doctors’ findings on clinical examination of Ms Roxas’ neck have been generally unremarkable. They have shown little, if any, restriction of movement. However, while there are differences of opinion as to how quickly after each aggravation her neck pain should have settled, there is overwhelming agreement that she genuinely suffers from chronic neck pain dating from 1999.
Other than Dr Rhys Gray, who saw her for the respondent in 2010, and who thought she exhibited overreaction in her response to normal clinical palpitation of the cervical spine and thought there appeared to be “non-organic factors” at play, there is no suggestion, even from those who can find no explanation for her continuing pain, that Ms Roxas is fabricating or exaggerating her symptoms.
X-rays of Ms Roxas’ cervical spine on 1 September 1999 showed slipping of C3 on C4, and C4 on C5, and suggested trauma to the C3/4 intervertebral disc and associated ligaments. A CT scan on 6 September 1999 showed no evidence of disc herniation or other abnormality. An MRI scan on 22 September 1999 showed mild scoliotic deformity and evidence of disc dehydration from C2/3 to C5/6 but no other disc abnormality.
Dr Loefler, the spinal surgeon to whom Dr Wilcox referred Ms Roxas in September 1999, reported that her history and examination were “suggestive of a cervical disc lesion” and the x-rays suggested pathology at C3/4. He suggested an MRI be done. On review in June 2005, he reported that he had seen a CT scan taken in February 2005 which showed no disc lesion or cervical pathology. He thought Ms Roxas’ ongoing neck pain was most likely related to minor degeneration in the mid cervical area and she might also have musculoligamentous symptoms.
Dr Billet, the orthopaedic surgeon who examined Ms Roxas for the respondent in December 2000, reported that he had viewed the x-ray, CT scan and MRI taken in 1999. He thought she had suffered a soft tissue injury in 1999 that aggravated underlying pre-existing degenerative changes, making them symptomatic.
Dr S Watson, a neurologist to whom Dr Wilcox referred Ms Roxas in December 2000, reported that the CT scan of her cervical spine was normal; plain x-ray suggested “some instability at the C3/4, but MRI scan showed only mild kyphosis in the upper cervical spine, without any significant disc or neural problems”.
Dr Kong saw Ms Roxas in September 2004. He noted the radiological investigations referred to in Dr Billett’s report but did not specifically comment on the role of any pre-existing degenerative changes. He thought Ms Roxas suffered from “chronic musculoligamentous strain of her neck with associated neck pain” from the 1999 and 2001 incidents.
Dr Thomas Rosenthal, an occupational physician to whom Dr Wilcox referred Ms Roxas in February 2005, thought her 1999 scans showed “no significant abnormalities”. He thought she suffered a soft tissue injury to the neck in 1999 and 2001.
Mr Donald Jones, consultant orthopaedic surgeon, who saw Ms Roxas for the respondent in December 2008, could find no “clearly defined causative factors” for the recurrence of her neck pain. He was unable to establish any specific diagnosis of her condition and noted that “detailed radiology did not identify any major structural injury to account for her ongoing symptoms”. He was unable to identify any permanent effect or permanent damage. As her symptoms appeared very similar to her previous symptoms, he thought it likely they were related to the original injury.
In February 2009, Dr Wilcox advised the respondent that Ms Roxas suffered from “a soft tissue injury involving trauma to the neck and shoulder muscles without vertebral or disc abnormalities as demonstrated on imaging”. In his view, the original cause was the 1999 injury, exacerbated in 2001, after which she suffered intermittent pain for some years which became more severe in September 2008 without any obvious precipitating features.
Dr Gray, the orthopaedic surgeon who saw Ms Roxas for the respondent in April 2010, found her symptoms “difficult to assess”. He noted the scans in 1999 and 2005, and an MRI in 2009, none of which he found remarkable. He thought she probably sustained a musculoskeletal strain in 1999 (which he anticipated would have settled within 18 months at most). He could not find an orthopaedic explanation for her continuing symptoms and did not think the 1999 incident was still contributing to her condition.
Dr Bentivoglio, the orthopaedic surgeon who examined Ms Roxas in October 2009 and June 2011, gave oral evidence before the Tribunal. In his October 2009 report, he noted that she would have multiple “flare-ups” of her neck symptoms and would lose occasional days off work and that she “did not record the continuing neck problems until September 2008” when she had “her worst flare-up”. She tried anti-inflammatory medication and heat treatment. It took “about ten days” for her neck symptoms to settle. He thought her condition had “stabilised” but she would have an “occasional flare-up” of her symptoms.
In Dr Bentivoglio’s view, Ms Roxas sustained discal damage directly as a result of the 1999 injury, leading to a permanent weakness of the damaged disc. He thought this in keeping with the MRI and consistent with the “flare-ups” of pain which she had suffered since then.
Dr Bentivoglio agreed that scoliosis can cause degenerative change over time but he did not agree that Ms Roxas’ scoliosis of the thoracic spine could affect her cervical spine. He agreed that the degenerative changes apparent on her radiological examinations can occur naturally, but said only in a very small percentage of persons of her age, and they are almost “unheard of” in a 24-year old (as she was at the time of the 1999 injury) female who has not suffered an injury or does not do manual work. He agreed that discal damage at multiple levels, as shown in Ms Roxas’ scans, would be “a bit unusual” following trauma of the kind she suffered, but he still did not believe hers was a naturally occurring condition.
Dr Kim Edwards, the consultant surgeon who examined Ms Roxas in July 2010 and November 2011, gave oral evidence. He disagreed with Dr Bentivoglio that a blow to the head of the kind sustained by Ms Roxas could cause disc damage at multiple levels. In his view, the disc dehydration seen on the scans is a sign of underlying degeneration and could result from a blow to the head. He did not think it uncommon to see changes of that kind in a 24-year old. He believes the changes seen in her MRI would have been seen had the MRI been done a month before the injury. He did not agree they would render a spine more vulnerable to damage.
Dr Edwards agreed he may not have asked Ms Roxas about any symptoms prior to the injury. He would not say it was purely coincidental that an asymptomatic person would have a blow and then suffer pain for the next 13 years, but said he knows of no pathology connecting the one with the other. He found no evidence of any organic disability as she showed no objective clinical signs on examination. However, he agreed it is possible to have symptoms in the absence of clinical findings, and even though he could not explain them, he was “reasonably certain” Ms Roxas had the symptoms she complained of.
As noted above at [26], Dr Bentivoglio and Dr Edwards both recorded when they saw Ms Roxas that she was off work for about three months after the 1999 injury. Under cross-examination, Dr Bentivoglio agreed that he thought it “a pretty serious event” if she could not work at all for three months. He agreed that, if she returned to work on 16 August 1999 and even if there was “some subsequent sick leave” on account of the neck pain, the event was less serious than he was led to believe. The scenario put to Dr Edwards was that Ms Roxas was off for a week, “had some sick leave and a graduated return to work”, so that “she wasn’t off work for a solid three months straight after the accident but was able to come to work”. Dr Edwards said it would suggest that the incident “was not of any great significance”.
Neither response takes us very far. In particular, it was not put to Dr Bentivoglio what “some subsequent sick leave” meant, and it is fair to say the full picture was not put to him. We have accepted that Dr Cusi’s report, which suggests Ms Roxas was off work for very close to “a solid three months”, is most probably accurate, and Dr Bentivoglio’s concession does not appear to us to undermine his conclusion to any extent.
Dr David Champion, a consultant physician in rheumatology, examined Ms Roxas in June 2011. He noted that she was “one hundred per cent genuine”. He thought the MRI evidence of multilevel disc dehydration suggested she has a “genetic susceptibility to multiple intervertebral disc degeneration” which has been evolving slowly. He stated that, after an injury such as that in 1999:
it doesn’t take much of a biomechanical or psychosocial stress to augment the symptoms and increase the disability. Thus she will remain vulnerable to exacerbation and limited with respect to her work capacity in the long term.
Dr Champion reported it was difficult to estimate the extent to which Ms Roxas’ injuries, especially the 1999 injury, have accelerated the spondylitic process but he thought some degree of acceleration probable. He thought “[t]here will be very likely a gradual progression of the degenerative changes with the trajectory probably having been slightly unfavourably influenced by the initial injury”.
According to Dr Champion, the motor vehicle accident in 2001 “probably caused mainly temporary aggravation, as did the work-related features culminating in [the 2008 claim]”.
In his view, Ms Roxas will continue to suffer “low grade chronic symptoms with periodic mechanically or stress-produced exacerbations”. He commented that a case of the chronic pain without evidence of an identifiable orthopaedic disorder, is most appropriately assessed by a pain specialist. He attached to his report articles on the nature of chronic pain.
Dr Wilcox has treated Ms Roxas since 1999. On 3 February 2009, he reported that her neck pain had been intermittent for some years and became more severe in September 2008. He noted: “[t]here was no exacerbating feature. According to Ms Roxas most of the sick leave over the previous 3 years was due to neck pain”. On 10 October 2010 he reported “there is no doubt that without ongoing regular treatment Maria will suffer frequent exacerbations” that such treatment would merely suppress or minimise the pain but not eliminate it. In his view, from the time frame, the date of onset, and the lack of pre-injury pathology, he could state “with confidence” that her symptoms and signs are a consequence of the 1999 injury. In his view some form of treatment would be needed on a daily basis.
We are satisfied that the weight of the medical evidence supports the conclusion that Ms Roxas had asymptomatic, pre-existing degenerative changes in her cervical spine before the 1999 injury. Only Dr Bentivoglio believes the changes shown in her scans were the result of the 1999 injury itself. The other doctors either believe the 1999 incident aggravated the pre-existing condition, or they cannot explain it, or they make no comment. We find, on balance, that incident aggravated those pre-existing changes, causing neck strain, and have made Ms Roxas more vulnerable to injury since.
The respondent contends that any continuing neck pain which Ms Roxas has experienced since December 2010 is the result of underlying degenerative changes. We do not agree. In our view, the weight of the medical evidence favours the conclusion that her continuing pain and intermittent “flare-ups” of pain stem from the original injury in 1999. We find that she suffers from chronic neck pain which has continued since 1999, with intermittent exacerbations of greater or lesser intensity and duration.
HAD THE EFFECT OF THE 2008 AGGRAVATION CEASED BY DECEMEBR 2010?
The Tribunal’s jurisdiction: the respondent’s contentions
The respondent contends that the decision presently under review concerns only the 2008 aggravation, the effects of which ceased by 9 December 2010, and that the Tribunal has no jurisdiction to take into account any continuing effects of Ms Roxas’ earlier compensable injuries. The respondent relies on the decisions in Lees v Comcare [1999] FCA 753 and Szabo v Comcare [2012] FCA 28 (recently affirmed in Szabo v Comcare [2012] FCAFC 129).
The respondent maintains that the effects of Ms Roxas’ earlier accepted injuries had ceased by 2002 and refers, in particular, to a determination that, as of 3 June 2002, it was “no longer liable to pay compensation for [her] claim under any provision of the [SRC] Act”. That determination, which went unchallenged by Ms Roxas, came about as follows.
By letter dated 16 April 2002, the respondent signalled its intention to make “a determination to cease liability” on the basis of medical evidence, and offered Ms Roxas the opportunity to present further evidence in support of her claim before such determination was made. It referred to her “claim for neck pain and thoracic sprain, date of injury 9 August 1999” and to reports from Dr Billett who, on 12 December 2000, had reported that the effects of her 1999 injury had resolved and her current symptoms were due to the accident in 2001 and “should resolve over the next ensuing months”.
It does not appear that Ms Roxas provided any further information. A BRPS report to the respondent on 1 May 2002 shows Ms Roxas was referred on 18 April 2002 to determine the suitability of new duties, that Dr Wilcox would be reviewing her in three months, and that BRPS would monitor her progress and keep the parties informed. A BRPS report on 28 September 2004 states in relation to Ms Roxas’ 2001 injury that her “case was closed on 7 May 2002 with Maria working full hours with modified duties”.
By letter dated 29 May 2002, the respondent advised Ms Roxas of its determination that it was no longer liable to compensate her “under any provision” of the SRC Act. It referred to Dr Billett’s report of 7 February 2002 which “indicated that the effects of the injury sustained [in 1999] had resolved and [her] current condition was related to injuries sustained in the motor vehicle accident in 2001”.
It is well settled that the respondent cannot lawfully determine that its liability for a compensable injury has ceased; it can only make a determination to the effect that it has present liability: Rosillo v Telstra Corporation Limited [2003] FCA 1628; and see Liu and Comcare [2004] AATA 617. The respondent’s 2002 determination appears to reflect language commonly in use before these decisions.
The Tribunal’s jurisdiction: the applicant’s contentions
For Ms Roxas it is contended that the 2002 determination does not assist the respondent. Further, that if the delegate in the present matter meant to confine consideration to the 2008 aggravation, that decision was wrong; that Ms Roxas’ incapacity, while now small and intermittent, has persisted and she continues to require medical treatment.
It is contended that the reviewable decision should not have focussed only on the effects of the 2008 injury but should have viewed it in terms of the effective or operative causes of Ms Roxas’ incapacity, which include the 1999 and 2001 injuries. In support of this contention, Ms Roxas cites the decision in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1.
It is further contended that the statutory scheme requires the respondent to engage in “progressive and evolving decision-making” as described by the Full Federal Court in Telstra Corporation Ltd v Hannaford [2006] FCFCA 87.
Consideration
The Tribunal’s jurisdiction is limited by the decision under review. In Lees (above) the Court said the Tribunal’s powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 are not at large; it is authorised by s 64 of the SRC Act to review only reviewable decisions, being second-tier or reconsideration decisions made under s 62 of the SRC Act. The question of Ms Lees’ permanent impairment had not been determined at the first-tier decision-making stage and, necessarily, there had been no reconsideration under s 62 of the SRC Act. Consequently, there was no reviewable decision to found an application to the AAT under s 64 of the SRC Act.
In Szabo (above), the applicant suffered a minor aggravation in 1989 of a 1985 injury. Liability was accepted and subsequent favourable determination made until 2008 when it was determined that the effects of the 1989 injury had ceased. The Tribunal had to consider whether, on its proper construction, Mr Szabo’s claim was a “nature and conditions” claim. If so, it was contended, injuries before and after 1989 should have been considered by the Tribunal in order to determine the scope of the claim. The Tribunal found that no such claim had been made. It found that the effects of the 1989 injury had ceased, and that the continuing cause of Mr Szabo’s pain was the 1985 injury for which he had been compensated.
The Federal Court, and more recently the Full Court, upheld the Tribunal’s decision, that, by 2008, Mr Szabo no longer suffered the effects of the 1989 aggravation of his pre-existing lower back degenerative disease, and the pain he suffered was the result of his significant injury in 1985 for which he had been compensated. The Court agreed that, properly understood, the claim was for a specific injury, the effects of which had ceased; it did not extend beyond that, and previous and subsequent events and injuries were not relevant to the Tribunal’s consideration of the reviewable decision.
In Ilsley (above), the applicant’s incapacity arose while he was employed by different employers. On appeal from the ACT Supreme Court, the Federal Court considered the meaning of “results from” in the equivalent of s 14 of the SRC Act and whether the applicant’s incapacity arose from an injury in the context of “a causal chain” of multiple and cumulative injuries. It held that his later injury was the “immediate and proximate cause” of his total incapacity but the injuries suffered in the course of his earlier employment were the “operative and effective causes of his total incapacity” in that they materially contributed to the condition which was subsequently aggravated. That is not the same as saying that, on a review, the Tribunal can consider whether an employer is liable for an injury not presently claimed for.
The Tribunal should make a “broad, generous and practical interpretation” of a notice of injury consistent with the beneficial purpose of the SRC Act and the diversity of knowledge and education of claimants: Abrahams v Comcare (2006) 93 ALD 147 per Madgwick J. That is because a fair reading of a notice of claim may disclose an intention to claim for something more, or different, than immediately appears. However, Ms Roxas’ claim was clear: although no specific cause was identified, it was in respect of an aggravation in 2008 of an earlier injury, suffered at a specified time on a specified date.
In our view, the decision in Hannaford (above) does not assist Ms Roxas as contended for. The issue before the Full Federal Court was whether, in reviewing Mr Hannaford’s claims, the Tribunal had jurisdiction to make a finding of fact which was inconsistent with an earlier s 14 determination, in circumstances where it did not have before it an application to review that determination and did not purport to review the earlier determination. Concluding that the Tribunal had such jurisdiction, the Court said at [57]:
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. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
The Tribunal can make of a claim what it will. The flexible approach described in Hannaford (above) can only be taken within the limits of the Tribunal’s jurisdiction. The Full Federal Court made clear in Lees (above) that the Tribunal’s powers under s 43 are for the purpose of reviewing only a determination made under s 64. Ms Roxas’ claim in respect of the 2008 aggravation concerns that injury only, as does the determination under s 61 and the reviewable decision.
That is not to say that Ms Roxas cannot claim in future for compensation for incapacity or medical treatment arising out of her 1999 injury, and the 2002 determination is no bar to such a claim. We accept that she continues to have pain, intermittent incapacity and some need for medical treatment resulting from her compensable injury in 1999 which is likely to continue indefinitely.
Dr Bentivoglio and Dr Champion comment specifically on the temporary nature of the 2008 exacerbation of Ms Roxas’ neck pain. Dr Bentivoglio recorded that it took “about ten days” to settle. Dr Champion did not put a time on it but referred to “a temporary aggravation”. Dr Wilcox did not comment specifically on the duration of the 2008 aggravation but his reference to continuing occasional “flare-ups” is consistent with it being a temporary aggravation. Ms Roxas was not asked specifically when her neck returned to its pre-September 2008 state. As the transcript shows, what she was asked in cross-examination, and her responses, was not altogether clear but, as we have noted, we take her to say that, by December 2010 – and probably earlier – her neck had returned to its pre-September 2008 state.
We are satisfied, on the evidence before us, that the effects of the 2008 aggravation had ceased by 9 December 2010, being the date nominated in the reviewable decision.
DOES MS ROXAS HAVE A PERMANENT IMPAIRMENT OF HER NECK AS A RESULT OF HER 1999 INJURY?
By letter dated 27 January 2010, Ms Roxas’ solicitors notified the respondent of her claim for permanent impairment for her “accepted neck injury”. Based on Dr Bentivoglio’s report (see below at para [103]), she claimed 14% Whole Person Impairment (WPI).
The respondent contends that Ms Roxas no longer suffers from her accepted injury, namely “neck and thoracic sprain” caused by the incident in 1999 and, consequently, she suffers no impairment as a result of that injury. Further, that any requirement for medical treatment after 10 December 2010 does not relate to that injury but to underlying degenerative changes in her neck.
In our view, the weight of the evidence is against those contentions.
Impairment in the SRC Act means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function: s 4.
There is little disagreement between the doctors that Ms Roxas suffers from chronic neck pain. Because of it, she remains restricted in the duties she can undertake, and she continues to suffer from intermittent “flare-ups” of pain. We are satisfied it is an impairment within the meaning of the SRC Act.
The respondent further contends that Ms Roxas does not suffer from a permanent impairment within the meaning of the SRC Act and relies on Dr Edwards’ opinion in this regard. In our view, the weight of the evidence is against that contention as well, and we note that even Dr Edwards does not dispute that Ms Roxas suffers from chronic pain.
Permanent means likely to continue indefinitely: s 4. The weight of the evidence is that Ms Roxas has suffered from chronic neck pain since 1999 as a result of her work-related injury and subsequent exacerbations, and that she will continue to suffer that chronic pain indefinitely. We are satisfied that she has a permanent impairment for the purposes of the SRC Act.
HOW IS THE DEGREE OF PERMANENT IMPAIRMENT TO BE ASSESSED?
Unless the degree of Ms Roxas’ permanent impairment is less than 10%, compensation is payable to her under s 24 of the SRC Act: s 24(7). The degree of her impairment is to be assessed under the provisions of the 2nd edition of the Comcare Guide. The more recent Edition 2.1, published in December 2011, applies to claims for permanent impairment claims reviewed by Comcare from 1 December 2011.
The assessment of the degree of Ms Roxas’ permanent impairment raises the issues that were considered in Broadhurst v Comcare [2010] FCA 1034 and Comcare v Broadhurst [2011] FCAFC 39. In that case, Table 9.17 of the Comcare Guide was the appropriate Table for assessing the applicant’s permanent impairment of her lumbar spine. However, Table 9.17 provided for consecutive degrees of impairment of 8% or 13%. As there is no discretion to choose an impairment value not specified in the relevant Table (see Principle 7), it was not possible to determine if the applicant’s impairment satisfied the 10% minimum requirement, and Table 9.17 was not applicable.
In Ms Roxas’ case, the appropriate Table in the Comcare Guide for assessing an injury to the cervical spine is Table 9.15 which provides for degrees of WPI of 8% and 18%, raising the problem identified in Broadhurst.
The respondent submits that the Broadhurst issue does not arise in this case because Ms Roxas does not have a permanent impairment. The respondent concedes that, if the Tribunal was satisfied on the evidence that there is at least 8% impairment, then Broadhurst would arise.
Assessments of Ms Roxas’ degree of WPI were made by Dr Bentivoglio and Dr Champion. Both were by reference to Table 9.15 in the Comcare Guide. Dr Bentivoglio’s original assessment was of 14% WPI, a percentage he said in evidence he can only explain as an error on his part, there being no provision for 14% in Table 9.15. He subsequently revised his assessment to 8% WPI, which he told us Table 9.15 constrained him to find.
Dr Champion also assessed Ms Roxas’ degree of WPI as 8%. He reported on 10 July 2011 that she “certainly” did not qualify for 18% so he focussed on whether she met the criteria for 8% WPI. He detailed, by reference to the criteria in Table 9.15, the clinical history and findings on examination and concluded “it is reasonable to conclude that she meets criteria for 8% whole person impairment (and this does not meet the 10% level).” Dr Champion apparently also considered himself constrained by Table 9.15. We read his statement in parenthesis as meaning that 8% is not sufficient for the purposes of s 24(7), not that any higher percentage would necessarily be inappropriate.
There is no suggestion in their assessments that Dr Bentivoglio or Dr Champion thought 8% WPI itself inappropriate or that they considered 0% WPI (“No significant clinical findings, no muscular guarding, no documented neurological impairment, no significant loss of motion segment integrity, no other indication of impairment related to injury or illness”) appropriate. Given the Broadhurst problems raised by Table 9.15, we cannot say that we are satisfied that Ms Roxas has a WPI of 8%. However, in our view, the evidence clearly points to a degree of WPI greater than 0%. We are satisfied that she has a degree of WPI. The question is how it is to be assessed.
Principle 12 in the Comcare Guide provides that, in the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the Comcare Guide, the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) current at the time of the assessment. In Broadhurst, on appeal, the Full Court found Principle 12 was beyond power but read it down as referring to the 5th edition of the AMA Guides.
Applying Broadhurst and the Comcare Guide, we turn to the 5th edition of the AMA Guides which leads us to Table 15-5, concerning cervical disorders. Reflecting the same problem as found in the Comcare Guide, Table 15-5 provides for consecutive degrees of WPI of 5%-8% and 15%-18%.
For Ms Roxas it is submitted that the proper approach in such a case is reflected in consent orders made in the Federal Court on an appeal against the Tribunal’s decision in Riley and Comcare [2011] AATA 674.
In Riley, (above), there was no applicable Table by which the applicant’s impairment could be assessed under the Comcare Guide. Nor was there an applicable Table in the AMA Guides for his particular impairment. Parties agreed, and the Court ordered, that the Tribunal’s decision should be set aside and the matter remitted to the Tribunal for reconsideration “according to law and consistent with the supporting statement” by which parties had agreed that the approach that should have been adopted was:
(i)having determined that there was no applicable Table for the applicant’s impairment, the Tribunal should have referred to the Principles of Assessment in Part 1 of the Guide;
(ii)those Principles provide that in the event that an employee's impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of the Guide, the assessment is to be made under the edition of the AMA Guides;
(iii)the AMA Guides provide that “in situations where impairment ratings are not provided, the Guides suggest that physicians use clinical judgement comparing measurable impairment resulting from the unlisted condition to the measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living”;
(iv)accordingly, if the tribunal is satisfied that neither guide provides a specific means by which the impairment can be assessed, the tribunal should consider evidence from doctors as to the degree of impairment suffered based on their clinical judgement (informed by considering the degree of impairment resulting from similar listed conditions in the relevant edition of the AMA Guides).
There being no means by which the impairment of Ms Roxas’ cervical spine can be assessed under the Comcare Guide or the AMA Guides, the Riley orders lead us to the third step which reflects the language of the AMA Guides concerning the physician’s use of clinical judgment.
The question next arises of how a doctor is to use his or her clinical judgment to arrive at such an assessment. It must necessarily be by reference to some standard or measure. One possibility is to have regard to the more recent, July 2011, edition of the Comcare Guide in which the criteria in Table 9.15 for the estimates of WPI are the same as those in the 2nd edition, the important difference being that it enables an assessment of greater or less an 10%. The criteria which are assigned 18% in the 2nd edition are assigned “10-18%” in the later edition.
Several difficulties with this approach present themselves. Firstly, the Riley orders point us to “similar listed conditions in the relevant edition of the AMA Guides” (emphasis added). Further, Table 9.15 does not take into account the chronic pain associated with Ms Roxas’ neck condition. Finally, the recent edition was not in force at the relevant time.
For Ms Roxas it is submitted that Chapter 18 of the AMA Guides, which deals with “Pain”, in combination with Table 15-5 of the AMA Guides, offers an appropriate means by which an assessment of her chronic pain associated with her cervical spine injury can be made.
The Impairment Tables in the Comcare Guide are drawn from the AMA Guides: Principle 5. Chapter 1 of the AMA Guides concerns the “philosophy, purpose and appropriate use of the Guides”. Chapter 1.5 deals with “Incorporating Science with Clinical Judgment”. It recognises that the Guides cannot provide an impairment rating for all impairments and “since some medical syndromes are poorly understood and are manifested only by subjective symptoms, impairment ratings are not provided for those conditions”. “Subjective concerns” where objective data does not yet exist by which to rate the effect of disorders include fatigue, difficulty in concentrating and pain. It continues:
The Guides nonetheless provides a framework for evaluating new or complex conditions. Most adult conditions with measurable impairments can be evaluated under the Guides. In situations where impairment ratings are not provided, the Guides suggests that physicians use clinical judgment, comparing measureable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.
The physician’s judgment, based on experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended, will enable an appropriate and reproducible assessment to be made of the clinical impairment.
A difficulty with the approach suggested for Ms Roxas is the instruction in Principle 12 of the Comcare Guide that:
An assessment is not to be made using the [AMA Guides] for:
…
·chronic pain conditions, except in the case of migraine or tension headaches. (For complex regional pain syndromes affecting the upper extremities, see Part 1, Chapter 9 – 9.13.3 Complex Regional Pain Syndrome, see page 105).
For Ms Roxas it is submitted that Principle 12 does not rule out the use of Chapter 18 where it is used to supplement the assessment of impairment arising from cervical spine condition and not to substitute an entirely new chronic pain condition.
The construction of the reference in Principle 12 to “chronic pain” was considered by the Full Court in Broadhurst. The majority (Tracy and Flick JJ) referred to a submission that Chapter 18 makes it clear that “the fifth edition draws a dichotomy between pain that accompanies illnesses and injuries and pain that had become an autonomous process”. However, the matter was not decided.
If recourse cannot be had to the AMA Guides because of the application of Principle 12, where is Ms Roxas left? Some means must be found because, subject to s 24(7), the respondent is liable to compensate her for her permanent impairment. The fact that neither guide provides a means by which to assess percentage impairment cannot alter the requirements or operation of the SRC Act: Broadhurst per Buchanan J at [16].
The Introduction to Chapter 18 of the AMA Guides:
[P]rovides information that will enable physicians to understand pain and develop a method to distinguish pain that accompanies illnesses and injuries from pain that has become an autonomous process, and provide … a qualitative method for evaluating permanent impairment due to chronic pain.
We are satisfied on the medical evidence that there is a connection between Ms Roxas’ impairment arising from her neck strain injury and her chronic pain. For Ms Roxas it is submitted that an appropriate way may be for an assessment to be made based on Table 15-5 in the AMA Guides together with Chapter 18. As we understand it, it is suggested that the principles in 18.3d might be applied to Table 15-5 so that, in effect, the chronic pain associated with Ms Roxas’ neck condition might increase her WPI by up to 3%.
A difficulty with this approach is that the Broadhurst problem arises in respect of Table 15-5 itself. It is a flawed foundation onto which to graft a percentage for chronic pain, and to proceed on the basis of Dr Bentivoglio’s and Dr Champion’s assessments of 8% WPI would only compound the problem.
No medical assessment has yet been made of Ms Roxas’ pain condition. We therefore propose to adjourn the matter for the parties, either separately, or together if they agree on a suitable medical expert, to obtain an assessment of Ms Roxas’ degree of permanent impairment based on the expert or experts’ professional experience and skill, having regard to Table 15-5 in the AMA Guides and the principles in 18.3 of the AMA Guides, and to any other standard they consider appropriate to guide their assessment.
I certify that the preceding 121 (one hundred and twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr S H Toh. .......[sgd]................................................................
Associate
Dated 30 October 2012
Date(s) of hearing 6 and 7 August 2012 Counsel for the Applicant Mr L Grey Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Ms E Ford Solicitors for the Respondent Dibbs Barker
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