MARK LEDBURY and COMCARE
[2009] AATA 207
•27 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] aata 207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0601
GENERAL ADMINISTRATIVE DIVISION ) Re MARK LEDBURY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr M Denovan, Member Date27 March 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
Member
CATCHWORDS
WORKERS’ COMPENSATION – Injury – Causation – Whether current back pain caused by work-place injury – Whether compensation payable for ongoing medical treatment – Work-place injury caused temporary aggravation of underlying condition of degeneration of the intervertebral disc – Current back pain connected with underlying condition not with work-place injury – Decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
Douglas and Comcare [2004] AATA 256
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263
Ogden Industries Pty Ltd v Lucus (1967) 116 CLR 537
REASONS FOR DECISION
27 March 2009 Dr M Denovan, Member 1. Mark Ledbury, the applicant, was injured at work on 30 April 2004 when he slipped on tiles during a table tennis game (“the work-place incident”). Comcare, the respondent, accepted liability for “lumbar sprain” pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. The applicant subsequently asked for compensation for medical expenses. His claim was refused and is the subject of this appeal before the Tribunal.
3. The applicant also made a claim under s 14 of the Act for “aggravation of a lower disc degeneration”. Mr Ledbury subsequently withdrew that claim after Comcare amended the accepted injury description from lumbar strain to “aggravation of a degeneration of invertebral [sic] disc”.
4. In order to resolve the dispute in this case, I must:
· firstly, attempt to isolate the nature and extent of the applicant’s ailment. It is not strictly speaking necessary to settle on a precise diagnosis of his condition: see, for example, Douglas and Comcare [2004] AATA 256 at [40]. Even so, I must have some idea of what that condition entails; and
· secondly, determine whether the applicant’s ailment requires ongoing medical treatment that would allow him to be compensated pursuant to s 16 of the Act.
5. After having careful regard to the medical evidence, I have decided the applicant’s current back pain is not connected with his work. I have therefore decided to affirm the decision under review. I explain my reasons below.
THE FACTUAL BACKGROUND
6. The applicant is a call centre operator with Centrelink. He injured his lower back on 30 April 2004 when he slipped on the wet floor of the outdoor lunch area while playing table tennis at the Toowoomba office.
7. The applicant consulted general practitioners Dr Shanil Rupnarain and Dr Greg Steel, and chiropractors Dr Evan Rogers and Dr John Rogers.
8. On 14 May 2004, the applicant submitted a claim for workers’ compensation for “lumbar spine injury, soft tissue injury”.
9. In a decision dated 3 June 2004, Comcare accepted liability for “lumbar sprain”.
10. Orthopaedic surgeon Dr William Ryan examined the applicant on 23 June 2004 and diagnosed an aggravation of lumbar disc degeneration. On 5 July 2004, the applicant commenced an intensive rehabilitation program in accordance with a referral from Dr Ryan. On 16 July 2004, Dr Ryan certified the applicant as fit for suitable duties.
11. The applicant returned to work on a graduated program on 24 May 2004 and resumed full-time work and duties on 20 February 2006.
12. The applicant was reviewed by orthopaedic surgeon Dr John Morris on 8 February 2006. In his report dated 10 February 2006, Dr Morris opined that the applicant suffers from naturally occurring degenerative disc disease which was aggravated by his Centrelink employment, and that the effects of that aggravation have now ceased.
13. On 20 June 2006, a delegate for Comcare determined that the applicant has no present entitlement to compensation under ss 16 and 19 of the Act.
14. On 5 October 2006, the applicant requested a reconsideration of the determination to the extent that it related to entitlement for medical expenses. The applicant also applied for an extension of time in which to request a reconsideration, which was granted on 11 October 2006.
15. On 20 November 2006, the delegate of Comcare accepted the applicant’s email of 5 October 2006 as a formal notice of request for reconsideration of the determination of 20 June 2006.
16. The reviewable decision dated 8 January 2007 affirmed the determination of 20 June 2006 in respect to medical expenses, pursuant to s 16 of the Act.
17. The applicant applied to this Tribunal for review on 5 March 2007.
APPLICANT’S POSITION
18. The applicant claims to still suffer from constant back pain. His position is that he did not suffer from back pain prior to the work-place incident. Mr Ledbury told the Tribunal that he had been an active water-skier for many years prior to the work‑place incident. He claimed to have never had any injury to his back due to that sport. Ms Scott‑Mackenzie, counsel for the applicant, contended that degeneration of the intervertebral disc is a condition that does not cause pain, and so aggravation of that condition could not be responsible for the pain the applicant has experienced since the work-place incident. She asked the Tribunal to find that the applicant continues to suffer from pain due to the work-place incident, which she said caused a soft tissue injury that has not resolved. Ms Scott-Mackenzie relied on the evidence of Dr Brian Purssey and the decision of the Full Court of the Federal Court in Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.
MEDICAL EVIDENCE
Dr Purssey
19. Dr Purssey, retired general surgeon, examined Mr Ledbury on 11 February 2008 and has prepared two reports, dated 18 February 2008 and 13 October 2008. It is Dr Purssey’s opinion that the pain suffered by the applicant is mechanical low back pain due to soft tissue injury sustained during the work-place incident. Dr Purssey said he did not accept that Mr Ledbury’s back pain was secondary to naturally occurring degeneration of the disc, because studies have indicated there is very little correlation between radiological signs of disc degeneration and back pain. Dr Purssey supported his position with reference to 1997 and 1998 textbooks and to a research article published in 2001.
20. Under cross-examination, Dr Purssey stated that it could not be said that there is no correlation between back pain and degenerative spine disease however he said that it is not a case of cause and effect.
21. Dr Purssey referred to the diagnostic procedural tests performed by anaesthetist Dr Alan Howell, and said that he was unfamiliar with the second procedure (Bromberg style, par vertebral injection). Dr Purssey said that he had recently informed himself about that procedure by research on the internet, that he regarded it as experimental, that it had a 40% success rate, and that it was designed to be performed in combination with manipulation. Dr Purssey opined that Dr Howell’s expectation that Mr Ledbury should have demonstrated some short-term relief from the procedure was not medically founded.
22. Dr Purssey said it was not known why some people continue to suffer from soft tissue injury pain, although most people who sustain such an injury have pain that resolves. Dr Purssey said that, in concluding the work-place incident was the cause of Mr Ledbury’s ongoing back pain, he relied on Mr Ledbury’s statement that he had no back pain prior to this incident.
Dr Morris
23. Orthopaedic surgeon Dr Morris examined the applicant on 8 February 2006 and on 17 June 2008. Dr Morris opined that Mr Ledbury has an underlying degenerative condition of his spine that was present and symptomatic prior to the work-place incident and that this incident caused a temporary aggravation of the degenerative condition for a period of about three months. Dr Morris explained that Mr Ledbury described symptoms typical of degenerative disease, including the fact that sitting and standing makes the pain worse, and that he experiences a dull ache when he gets up, which is relieved by a hot shower.
24. Dr Morris said that as time passes, symptoms due to degenerative disc disease become more frequent and persistent. Dr Morris’s opinion, based on his experience as an orthopaedic surgeon, was that the aggravation would have caused symptoms for a period of no more than three months. Dr Morris said that the work‑place incident would not have accelerated the underlying degenerative condition suffered by Mr Ledbury.
25. Dr Morris said that most soft tissue injuries heal in a short period of time and do not go on for a period of years. Dr Morris noted when conducting clinical testing that Mr Ledbury showed signs of exaggerating his pain.
26. Dr Morris said that Mr Ledbury gave a history of having no prior back pain. However, when confronted about the chiropractic notes, Mr Ledbury did admit to having had pain in the back for which he was treated by a chiropractor, and that he developed the pain after water-skiing.
Dr Steel
27. General practitioner Dr Steel saw Mr Ledbury on 12 May 2004 and continued to see him periodically after the work-place incident. Dr Steel told the Tribunal that initially he considered Mr Ledbury had a soft tissue injury, but that when Mr Ledbury’s condition did not improve he considered the possibility that his initial diagnosis was incorrect and so referred him to Dr Howell for further investigation and treatment.
28. Dr Steel said that after his injury he had lots of discussions with Mr Ledbury, and that during this time he motivated and encouraged him to return to work. He got the impression that Mr Ledbury was never pain free; however his pain differed in severity over time. Dr Steel said that stress and ongoing issues can perpetuate pain and that he considered psycho-social factors may have been perpetuating Mr Ledbury’s pain; however, the only issue he was aware of was that Mr Ledbury was not getting along with one of his work colleagues after returning to work.
Dr Howell
29. Dr Howell, a specialist in pain management and anaesthesia, saw Mr Ledbury on 9 May 2005 at the request of the applicant’s general practitioner, Dr Steel. Dr Howell said that he first performed a facet joint injection on 13 May 2005 as a diagnostic test. Dr Howell explained that he did not expect Mr Ledbury to get better after this injection, because the nature of his injury indicated to Dr Howell that it was a muscular-ligamentous injury. He considered that such a soft tissue injury would be improving but that the facet joint might be strained, so he gave a block to test this possibility. Dr Howell said that he anticipated Mr Ledbury would benefit by experiencing short-term pain relief, as the local anaesthetic he injected causes that type of benefit.
30. When Mr Ledbury reported no relief from the facet joint injection, Dr Howell suggested a paravertebral block to see if he had ligamentous strain around the site of the injury. Mr Ledbury, when telephoned subsequently by the surgery nurse, reported no improvement in his pain symptoms, even on a short-term basis.
31. Dr Howell explained that in some patients, soft tissue injury can cause chronic pain if it progresses to spinal cord wind-up and central excitation. It was Dr Howell’s opinion that Mr Ledbury did not want to take part in the healing process. Dr Howell explained that Mr Ledbury responded to facet joint injections in an exaggerated way, that he appeared to be “putting it on”, that he did not follow instructions as to his conduct after the injection, and that he failed to make a follow up appointment despite being instructed to do so. These observations, as well as the fact that Mr Ledbury did not report any relief after the paravertebral and facet joint injections, indicated to Dr Howell that there may be a large emotional component to Mr Ledbury’s problems. Dr Howell explained that whilst not all patients are treated successfully by facet joint and paravertebral injections, 100% of patients suffering from pain specific to those areas will gain short-term relief due to the effects of the local anaesthetic. That Mr Ledbury reported no relief indicated to Dr Howell that the cause of his pain was more likely psycho-social.
Dr Knight
32. Dr Greg Knight is an occupational physician. He assessed Mr Ledbury on 27 January 2005, and prepared a report on the same date. Dr Knight said that he would not disagree with the comment that Mr Ledbury would have been expected to get better within three months of the injury, and that his comment in his report that Mr Ledbury should be able to return to full-time duties within 12 months erred on the side of generosity by allowing what he considered was ample time, given the nature of the injury he accepted Mr Ledbury had sustained. Dr Knight did not assess Mr Ledbury from the perspective of causation, rather he accepted the assessments of those doctors who had seen Mr Ledbury prior to his consultation, and assessed Mr Ledbury from the perspective of rehabilitation and recovery.
CHIROPRACTIC EVIDENCE
Dr E Rogers
33. Dr E Rogers first saw Mr Ledbury on 15 October 2001. He said that Mr Ledbury presented with neck and back pain. He also said that his approach to all patients is holistic; hence, he did not confine himself to questions about Mr Ledbury’s back and neck. Whilst he noted Mr Ledbury to have problems that may be associated with pancreas, he did not explore this further as Mr Ledbury was already being treated by a naturopath. Dr E Rogers said that in the first six consultations, Mr Ledbury was treated for neck and back problems. Throughout 2002 and 2003 he also treated Mr Ledbury for neck problems and occasional back problems. Dr E Rogers said it was fair to say that Mr Ledbury had flare-ups of back pain from 2001 onwards and that these had occurred since a water-skiing incident a few years earlier.
Dr J Rogers
34. Dr J Rogers said he recorded that Mr Ledbury had injured his back during a high speed water-skiing accident because that is what the applicant’s response was when asked about his injury. He considered that Mr Ledbury had no continuous episodes of lower back pain prior to his injury at work.
CONSIDERATION
35. The applicant claims to have never had back pain prior to the work-place incident but to have had constant back pain since then. Whilst he has been able to return to full-time work, he still experiences constant back pain for which he takes Panadeine Forte tablets three or four times a week. Mr Ledbury gains relief from his back pain symptoms from massage and seeks the cost of such treatment from the respondent.
36. Ms Scott-Mackenzie, the applicant’s legal representative, argued that the current expert medical opinion is that degenerative intervertebral disc disease does not cause pain. Consequently, she argues, Dr Morris’s opinion that aggravation of that condition was caused by the work-place incident must be in error and should be disregarded, and his opinion that such aggravation has ceased must therefore be given no weight by the Tribunal. Ms Scott-Mackenzie was apparently unaware until very late in the proceedings that the accepted condition had been amended to aggravation of degeneration of the intervertebral disc.
37. Dr Purssey is the only medically qualified expert witness who considers that Mr Ledbury continues to have back pain as a result of the injury he sustained due to the work-place incident. Whilst Dr Purssey’s opinion is inconsistent with the injury as amended (aggravation of degeneration of intervertebral disc), the Tribunal is not limited by that decision and can explore the cause of the ailment that resulted from the work-place incident: Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263. Having done so, I conclude that the description of the condition as aggravation of degeneration of the intervertebral disc is the best description for the applicant’s ailment suffered as a result of the work-place incident. That is the opinion of orthopaedic surgeons Dr Ryan and Dr Morris. I was not impressed by the evidence of Dr Purssey and gave little weight to his evidence for the reasons given below.
38. Firstly, Dr Purssey is a general surgeon. He holds no qualifications in the field of orthopaedics.
39. Secondly, Dr Purssey has no recent clinical experience. His opinions appear to be formed not from his own experience, but from his interpretation of the research of others in the field. Dr Purssey told the Tribunal that he retired from clinical practice some eight years ago, and prior to retiring was assisting other doctors in theatre. His opinions were not founded on study or clinical experience as most expert witnesses’ opinions are; rather, Dr Purssey relied on his understanding of the research of others and his own research on the internet. This was demonstrated in part by the fact that he was unfamiliar with the diagnostic procedures performed by Dr Howell for back pain. Dr Purssey expressed opinions about those procedures after researching the subject on the internet. Such opinion must be given less weight than that of a doctor who is familiar with current diagnostic and therapeutic practices due to his own work in the field. Further, I note that in formulating his opinion about pain and intervertebral disc degeneration, Dr Purssey relies on very old reference material. He quoted text books published in 1997 and 1998, and a research article published in 2001.
40. Thirdly, even if there is no clear correlation between radiological changes and low back pain, and disc prolapse does not cause pain, this does not necessarily lead to a conclusion that degenerative disc disease does not ever cause pain. Dr Morris agreed that there is no correlation between radiological findings of degeneration and clinical symptoms. Under cross-examination, Dr Purssey said that it could not be said that there is no correlation between back pain and degenerative spine disease.
41. Fourthly, Dr Purssey relied on the history given to him by the applicant of no back pain prior to the work-place incident. The evidence before the Tribunal is that Mr Ledbury sought treatment for back pain several times prior to the work-place incident. Mr Ledbury’s position is that he consulted chiropractor Dr E Rogers in 2001, not because of back pain but on the advice of a friend as he was stressed at his job, feeling tired and run down and thought he might have an alignment problem. This position is self-serving, and inconsistent with the evidence of Dr E Rogers. The initial consultation form completed by Mr Ledbury himself listed the presenting complaint as “neck and back pain”. I do not accept Mr Ledbury’s evidence that he experienced no back pain prior to the work-place incident.
42. Dr Purssey’s explanation why he was of the opinion that Mr Ledbury suffered pain due to soft tissue injury sustained during the work-place incident was vague. It was not given from a patho-physiological perspective, is at odds with the opinions of Dr Morris and Dr Knight and not supported by any other expert witness. Dr Morris explained that soft tissue injury is usually something that resolves in a short period of time, usually three months. This was consistent with the opinions of Dr Howell and Dr Knight.
43. It was submitted by Ms Scott-Mackenzie that Dr Howell was biased against the applicant and that his opinion should accordingly be given little weight. I observed that Dr Howell expressed some irritation with the line of questioning used during cross-examination. In particular, Ms Scott-Mackenzie’s attempts to lead Dr Howell as a witness appeared to particularly irritate him. He did not, however, show any sign of bias against the applicant. He saw the applicant at the request of the applicant’s general practitioner, not at the request of the respondent. His opinion expressed in the hearing was consistent with the information provided in his reports, and consistent with the evidence provided by the applicant himself. I considered Dr Howell a valuable witness: he was knowledgeable in his field of pain management, and gave clear and easy to understand explanations to support his reasoning and conclusions. However, even if I were to dismiss the evidence of Dr Howell, my decision in this matter would not change.
44. Whilst Dr Howell explained that some people develop chronic pain after soft tissue injury due to “spinal wind up”, he did not express the view that this was the cause of the applicant’s pain. Rather, Dr Howell stated that the diagnostic tests he performed relied on Mr Ledbury following instructions to keep active. Because Mr Ledbury went to sleep after the test, the diagnostic test had limited value. However, Dr Howell explained that he proceeded on the basis that Mr Ledbury’s report, that he gained no benefit from the first procedure, was accurate. It was Mr Ledbury’s evidence at the hearing that he gained no relief from either of the procedures.
45. Dr Knight gave clear and straightforward evidence, however he did not turn his mind to the question of what caused Mr Ledbury’s back pain. He only considered the likely recovery course. Dr Knight indicated that when assessing Mr Ledbury and writing the report, he had accepted the diagnosis (lumbar strain) for which liability had been accepted. Dr Knight said that he was generous (to Mr Ledbury) when he estimated that Mr Ledbury would be able to return to full-time work within twelve months.
46. This suggests to me that if I was minded (which I am not) to accept Ms Scott-Mackenzie’s submission that the cause of Mr Ledbury’s problem is lumbar sprain due to soft tissue injury, then to find in the applicant’s favour I would have to prefer Dr Purssey’s evidence over that of Dr Howell, Dr Morris and Dr Knight. Yet these three doctors expressed the opinion that soft tissue injury would be expected to cause pain for a far shorter period than that which Mr Ledbury has experienced.
47. I accept Dr Morris’s opinion that Mr Ledbury suffered an aggravation of a degeneration of the intervertebral disc when he injured himself during the work-place incident, and that the effects of that aggravation ceased on 20 June 2006 or before. I also accept that the cause of Mr Ledbury’s current pain is his underlying condition of degeneration of the intervertebral disc.
48. Dr Morris explained that degeneration of the intervertebral disc is a condition that would naturally worsen over time, and that the frequency and severity of the pain episodes caused by that condition would increase over time. That explanation is consistent with Mr Ledbury’s presentation. He had several episodes of back pain from 2001, prior to the work-place incident. After that incident, the pain Mr Ledbury experienced was initially so severe he was unable to return to work. That exacerbation appears to have abated and he now has episodes of back pain, as expected by Dr Morris.
49. In Ogden Industries Pty Ltd v Lucus (1967) 116 CLR 537, it was noted that an existing disease has been aggravated if it has been made worse, not if it has simply become worse. In this case, I find that Mr Ledbury’s degeneration of the intervertebral disc has simply become worse due to the nature and history of the condition.
50. That Mr Ledbury’s pain is exacerbated or increased by psycho-social factors has been suggested by a number of the expert witnesses. This is not a matter I need to make a finding on, other than to say that I find the work-place incident is not responsible in any way for the pain currently experienced by Mr Ledbury.
CONCLUSION
51. In summary, I am not satisfied the applicant suffers from back pain connected with his employment.
52. The Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed:......................[Sgd]...............................................
Matyas Kochardy, Research AssociateDates of Hearing 17, 18 and 20 February 2009
Date of Decision 27 March 2009
Counsel for the Applicant Sarah Scott-Mackenzie
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Susan Anderson
Solicitor for the Respondent Australian Government Solicitor
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