Mitchell and Comcare (Compensation) - [2021] AATA 610

Mitchell and Comcare (Compensation) [2021] AATA 610 (23 March 2021)
Division:GENERAL DIVISION
File Number: 2017/3827
Re:Sonia Mitchell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:23 March 2021
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
R Cameron, Senior Member
Catchwords
COMPENSATION – whether Applicant still suffers from previously accepted injury – reasonable treatment – chiropractic and massage treatment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Bayani and Australian Postal Corporation [2015] AATA 342
Comcare v Holt (2007) 94 ALD 576
Blackwell and Comcare [2017] AATA 1357
Jorgensen and Commonwealth (1990) 23 ALD 321
Rana v Military Rehabilitation and Compensation Commission (2008) 104 ALD 595
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Topping and Comcare [2015] AATA 525
REASONS FOR DECISION
R Cameron, Senior Member
Xx March 2021
INTRODUCTION

The Applicant seeks review of a decision made by a Review Officer of the Respondent on 4 May 2017 (“the reviewable decision”). The reviewable decision made two findings as follows:
(a)That it was reasonable to accept liability for one treatment per fortnight for either massage, chiropractic or acupuncture in respect of a compensable injury suffered by the Applicant for the period 8 March 2017 until 10 May 2017; and
(b)that as at 10 May 2017 chiropractic, massage and acupuncture treatment were not reasonable medical treatment for her compensable conditions.[1]
[1] In her Statement of Facts, Issues and Contentions filed on 21 May 2019 the Applicant stated the matter had come about because one new case manager interpreted the word "either" differently to the previous two case managers and years of previous determinations. The Tribunal finds the approach adopted by the Respondent to be the appropriate identification of relevant issues for determination by it.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The Respondent has in its Statement of Issues, Facts and Contentions identified three issues for determination by the Tribunal. The Applicant did not cavil with the issues identified in the Respondent’s document. The Tribunal has proceeded to determine the matter according to these issues as identified:
(a)The first issue is whether the Applicant continues to suffer the effects of a compensable injury being the soft tissue injury of lower back, neck, shoulder and both wrists sustained in a motor vehicle accident on 11 June 1997.
(b)The second issue is if she does continue to suffer the effects of the compensable injury is massage, chiropractic and/or acupuncture reasonable medical treatment in the circumstances to obtain in relation to such injury.[2]
(c)Thirdly, whether as at 10 May 2017 and presently, the Applicant is entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) for massage, chiropractic and/or acupuncture treatment in respect of the compensable injury.
[2] This formulation of the issue is in similar terms to that identified by the Applicant at page 122 of her reply submissions to the Respondent's submissions of 21 August 2020.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The following documents were tendered in evidence:
(a)A bundle of documents prepared by the Applicant comprising 78 separate documents of 538 pages.[3]
(b)A further bundle of documents consisting of six pages entitled “missing pages” tendered by the Applicant;[4]
(c)The “T documents”;[5]
(d)A bundle of copy documents obtained after they had been summonsed being clinical notes from the Bell Street Family Medical Centre, the Applicant’s chiropractor Dr Henry and a Chinese medical practitioner Dr Wilson Cui comprising 163 pages;[6]
(e)A report of Dr Brazenor dated 19 October 2017;[7]
(f)A further report of Dr Brazenor dated 28 October 2019;[8]
(g)A report of Mr Papagoras dated 21 October 2019.[9]
[3] These documents were referred to throughout the hearing and will be also referred to in these reasons collectively as the "A documents". They were received in evidence as exhibit "A-1".
[4] Exhibit "A-2".
[5] Exhibit "R-1".
[6] Exhibit "R-2".
[7] Exhibit "R-3".
[8] Exhibit "R-4".
[9] Exhibit "R-5".
The Applicant, Dr Brazenor and Mr Papagoras gave oral evidence.
PRELIMINARY OBSERVATIONS ON THE APPLICANT’S EVIDENCE AND CONDUCT OF THE APPLICATION
It is appropriate to make some preliminary observations about the general tenor of the Applicant’s evidence.
At the outset it should be observed that the Applicant at all times represented herself. As the Tribunal observed in its written reasons for reinstating this application, this case does provide an example of what does confront the Tribunal increasingly when presented with self-represented parties. Such occasions pose unique and difficult challenges. The conduct of the final hearing of this application which took place over several days, very much fell into that category.
The Tribunal on several occasions explained in detail to the Applicant the format that would be adopted during the hearing. It explained to her what she was required to do in the various steps that were undertaken during the course of the hearing. This included the manner of conducting an opening, the manner of giving evidence-in-chief, the manner of and nature of cross-examination (this included the form of questions that are permissible), the nature and purpose of re-examination, and critically the distinction between giving evidence concerning facts that needs to be proven or are otherwise in dispute, and submissions, which of course serve a very different function.
The Applicant is an intelligent woman. This was quite apparent from the level of detail when she prepared her case, the structure with which she assembled her documentary evidence and prepared written submissions, and when she turned her mind to it, her undoubted capacity to be an effective advocate for her own interests, including the advancement of her claim concerning the compensable injury, and indeed, the conduct of this case.
Unfortunately, from time to time she did not, despite the guidance and latitude afforded to her by the Tribunal, conduct herself in a way that conformed with her obligations to provide assistance to it. This was regrettable. The Applicant on many occasions saw it as appropriate to devote much attention to the conduct of Comcare over many years in dealing with her several claims. She seemed to see the Tribunal’s function as some form of mini- enquiry into Comcare’s conduct of her claim, despite having it explained to her frequently that it was not. In many instances this approach was more of a priority for her, despite the Tribunal advising her to the contrary, rather than placing before the Tribunal appropriate evidence to enable the Tribunal to reach the correct and preferable decision in accordance with its obligations under the Administrative Appeals Tribunal Act 1975 (“AAT Act”).
Additionally, at not insignificant inconvenience to the Tribunal and the Respondent, the Applicant was not prepared to proceed at the close of evidence. Written submissions were permitted to be lodged by both parties. The Applicant without the leave of the Tribunal attempted to introduce fresh evidence and in spite of the fact that she had ample time to prepare her case. Any material contained in her final submissions that constitutes fresh evidence will not be received by the Tribunal.[10] To permit the Applicant to do so would be unfair to the Respondent. This attempted introduction of fresh evidence was done despite the Applicant being advised on several occasions that all evidence must be submitted to the Tribunal prior to the close of her case. She also sought to introduce fresh evidence despite being informed on several occasions as to the nature and purpose of closing submissions. She consciously ignored the explanations given to her by the Tribunal despite obviously understanding what her obligations were. On that question, her submissions were in many instances discursive and unhelpful, frequently containing matters that are completely irrelevant to the questions for determination. Also, insofar as that material is irrelevant, it is not taken into account by the Tribunal.
[10] Quite understandably, the Respondent objected to the Tribunal receiving any fresh evidence.
It should also be noted that counsel for the Respondent similarly afforded the Applicant considerable latitude. Not only was it the conduct of counsel representing a model litigant, but it was conduct that reflected significant empathy for the position that the Applicant, as someone who had allegedly suffered an injury and was representing herself, found herself in. On many occasions counsel could have quite legitimately objected to the way the Applicant conducted her case, particularly in the course of the evidence-in-chief where she frequently descended into making statements critical of Comcare (rather than giving admissible evidence), often in the nature of a submission or statement, and often irrelevant, but he did not do so. It is fair to say that counsel for the Respondent and the Tribunal permitted this level of latitude not only to give the Applicant the best possible opportunity to present her case as she saw fit, but also out of empathy for her position. Counsel for the Respondent is to be commended for this.
Some further preliminary observations should be made about the way the Applicant gave her evidence to the Tribunal during the hearing. It must be recognised that several of the events which were canvassed occurred well over 20 years ago. This included, amongst other events, the motor vehicle accident in which she suffered injuries on 11 June 1997. It is to be expected that with the passage of so much time, witnesses’ memories will fade and not be as accurate as they might otherwise be when the events were recent, or where there may be the capacity to revive one’s memory from a contemporaneously created document that recorded the event, or relevant facts concerned.
Unfortunately, from time to time and frequently when probed, the Applicant had a tendency to either speculate as to what might have occurred, or reconstruct, rather than say that she had simply no recollection. On other occasions, during the course of her evidence she was prone to exaggeration, embellishment, or what might sometimes be described as “gilding the lily”. Her cross-examination was punctuated by periods of excessive argument, despite being warned against such practice, rather than properly responding to a plain and simple question put to her. Such plain and simple questions required a straightforward response. Often, she simply refused to do so. This approach was most unhelpful and did not assist the Tribunal or her case. In several parts of her evidence there was inconsistency with documentary evidence sometimes created by her, or by others such as Dr Henry who features significantly in this matter. This was not helpful.
Whilst the Tribunal would not go so far as to describe the Applicant’s evidence as intrinsically unreliable, it does in certain circumstances consider that aspects of her evidence must be viewed with caution and on occasion rejected. More will be said about this in the course of these reasons.
RELEVANT FACTS
The motor vehicle accident on 11 June 1997 and its immediate aftermath
This matter evolved from a motor vehicle accident that took place on 11 June 1997, when a car that the Applicant was driving[11] collided with another vehicle at the intersection of De Havilland and Lower Dandenong Roads in Mordialloc. At the time of the collision her car was travelling at approximately 60 km/h, having slowed down from approximately 80 km/h when she was executing a right-hand turn. According to the claim form, as confirmed by evidence she gave in the witness box, traffic lights at that controlled intersection changed to amber just before she entered. She stated that she did not apply the brakes but merely took her foot off the accelerator. Whilst executing her turn in the intersection another vehicle, heading in the opposite direction, commenced moving; causing the right-hand corner of his vehicle to strike the right-hand corner of her vehicle. Her evidence was that her left hip was pinned to the seatbelt and her right hip was twisted. Under cross-examination she stated that her vehicle spun around as a result of the collision and simultaneously she blacked out. When probed about why she blacked out if she had not hit her head, she was unable to offer an explanation other than that she was in shock.
[11] Under cross-examination the Applicant was unable to precisely recall the make of motor vehicle she was driving at the time of the accident. She speculated that it might have been a Hyundai.
The Applicant’s car was not particularly badly damaged, with some damage to the right-hand corner. It was not a write-off. For instance, she gave evidence that there was no debris left on the road from the accident. There was such comparatively little damage that she then proceeded to complete her journey driving to work. When probed on why she continued to work given that she had blacked out and suffered other injuries, she repeated that she thought she was in shock and that the whole thing was very traumatic. Importantly, for the purposes of this application, she stated that she could not recall experiencing any symptoms such as pain after the accident. She also gave evidence that she had to go to work because she had a deadline; otherwise she would have gone home.
Surprisingly, given that the Applicant blacked out as she said, emergency services were not called, and no report was made to the police even though she was injured.[12] The Tribunal cannot accept that she blacked out. At all times the Applicant has shown a heightened sense of protecting her interests, however that may be achieved. Placing matters “on the record” in case future reference or corroboration may be required, appear to be one of the hallmarks of her character. The Tribunal notes that a report was not made to the police in this case, even in the following days when she had the opportunity to compose herself, if she was, as she asserts, in shock and suffering from some heightened level of trauma.
[12] It should be recalled that in the State of Victoria, there is an obligation on the parties to a motor car accident where someone has been injured to report it to the police.
Another reason why the Tribunal is troubled by the Applicant’s evidence concerning a blackout or loss of consciousness, is that she did not report this to her treating medical practitioners who she saw later on the day of the accident, and the next day. No reference to a blackout or loss of consciousness being caused by the accident was made in her claim to Comcare. Had it occurred; one would have expected her to do so. Also, in later years the only medical practitioner who has made any reference to the Applicant reporting a loss of consciousness to them when taking a history from her (and whose evidence was before the Tribunal), was Dr Griffith in his report of 22 September 2008.[13] In that report he only goes so far as to note that the Applicant believed she may have lost consciousness briefly. This version is different to the one she gave in the witness box. This also reflects on her credibility.
[13] Document T 24 of the T documents.
Another surprising feature of the Applicant’s evidence, in addition to carrying on the journey straight to work, was the fact that she did not seek medical attention until much later in the day. One would have expected that the Applicant, who has always been very alive to protecting her interests, would have immediately sought medical attention from whatever source, straight after the accident. Particularly so if she had blacked out. Under cross-examination, the Applicant did assert that she thought she had suffered from some form of post-traumatic shock. When asked why this was so, she said she thought it was because she was vague and forgetful after the accident. She also stated that she then had a brain scan carried out, which revealed that she had not hit her head. There was limited corroborative evidence of a brain scan having been performed. In one document produced by Comcare in the T documents, a “Case Summary” which is undated and attached to a letter of instruction apparently sent on 30 July 2008 to Dr Griffith, there is reference to a brain scan.[14] It observes that “ a CT scan of the brain was undertaken in July 1997, no abnormality was found.”[15] Dr Griffith’s report observes that a CT scan of the brain was performed on 11 July 1997 and no abnormality was found. Once again, one might have expected reference to the blackout, a subsequent brain scan, and neurological manifestations such as vagueness and forgetfulness seeing the light of day in more contemporaneous documentation. It is again surprising that it did not.
[14] Document T 23 at page 152 of the T documents.
[15] It should be observed that the Case Summary (at page 123 of the T documents) also refers to a report from Dr Habib dated 22 July 1997 which reported that the Applicant attended his clinic on the day of the accident complaining of dizziness, painful right shoulder, and painful hands and legs. The report of Dr Habib of 22 July 1997 was furnished by Comcare to Mr D’Urso when it briefed him for the purposes of a medical report (Document T 30 of the T documents.) Mr D’Urso’s report referring to that of Dr Habib is dated 1 April 2009 and is document T 32 of the T documents. Both documents also refer to a report of 7 July 1997 from the Victorian Imaging Group. One assumes this is the “brain scan” referred to by the Applicant in her evidence from the witness box. The reports from Dr Habib and Victorian Imaging Group were not in evidence the Tribunal. Presumably, given the contents of the Case Summary they were in the possession of Comcare. It is surprising that this matter was not referred to by the Applicant in her claim to Comcare given that the issue of the effect of the accident on her brain and brain function was unresolved it would appear more likely than not, the outcome of scans and the report of Dr Habib in July 1997.
Consultations with General Practitioners following the motor vehicle accident
On her evidence, later in the day of the accident, after she had completed work, the Applicant consulted a general practitioner Dr Habib. Her usual general practitioner Dr Khan was not available. A medical certificate from Dr Habib is in evidence.[16] He recorded the description of injury as “car accident, painful shoulder, hands, legs, headache, anxiety”. Critically, this certificate did not record any lower back injury. He certified the Applicant as unfit for work on 11 June 1997.
[16] Document A-2.
The next day, 12 June 1997, the Applicant consulted Dr Khan. He also provided a medical certificate that is in evidence.[17] In that certificate he described the Applicant’s injuries as “soft tissue injury lower back/neck and both wrists”. The treatment recommended in that certificate was analgesic and physiotherapy.
[17] Document A-3.
Although not explored in the course of her evidence in the witness box, from documents before the Tribunal it appears that the Applicant attended Victorian Imaging Group and Dr Habib in July 1997.
The Claim to Comcare
The Applicant, as noted earlier, completed a “Claim for Rehabilitation and Compensation” dated 13 June 1997 (the first claim).[18] Question 24 of the claim form required the Applicant to describe in detail what events contributed to her injuries. She gave a very simple description of the car accident; which was that as she entered the intersection concerned, the other vehicle turned right in front of her as the light changed to amber. The Tribunal observes that it was a very different version of the accident to the one that she gave in the witness box. Her evidence started with it being a head on collision, then her evidence shifted so that at the time of impact the other driver was stationary, and then yet again she said he turned so that his right-hand corner struck her right-hand corner. Also, she could not explain why she blacked out if there was no impact to her head. In the witness box she said her car spun around. This was not referred to in the claim form. On another occasion, under cross-examination, she conceded that she really did not know what happened. The version given in the witness box of the accident is much more serious indeed. The Tribunal does not accept the version given in the witness box by the Applicant. It bore elements of reconstruction and embellishment.
[18] Document A-5.

By a determination made on 7 July 1997 Comcare accepted liability for the first claim.[19] The condition described in the first claim was: “Soft tissue injury of the low back, neck, shoulder and both wrists.”
[19] The determination of 7 July 1997 is document T 6 of the T documents.
Treatment commenced with Dr Henry June 1997 to September 1997
Following her initial consultations with the general practitioners, the Applicant was given a written referral by Dr Khan to a physiotherapy clinic at Rosebud.[20] The referral was for a soft tissue injury to her neck and lower back from a motor vehicle accident. To the best of her recollection she was unable to attend that clinic because there were no available vacancies in its timetable.
[20] The referral is document A-4.
Consequently, the Applicant was apparently able to use the referral to see Dr Henry and first consulted her on 18 June 1997. Dr Henry’s clinical notes are in evidence before the Tribunal.
During the first consultation with Dr Henry, she completed a standard form headed “Gaffney St Chiropractic Centre” which contained amongst other things personal details of the Applicant, the date of consultation and various other subject headings including “X-Rays”, “Date”, “Problem and Location”, “Onset”, “Radiations”, “Character”, “Course/Duration”, “Related Problems” and “Previous Episodes”.[21] Additionally, there were other medical conditions identified for which responses were sought from the Applicant. Those responses were recorded with either a tick or a cross as the case may be.
[21] The standard form and Dr Henry’s entries therein are at page 44 of Exhibit R-2.
There are several entries in the standard form that were made by Dr Henry which should be recorded for the purpose of these reasons. An entry was made “No x-rays”. The date of the accident was identified. A description of the accident was “MCA- 60 kmh, hit by turning vehicle Wed 11/6/97.” This description is consistent with that given by the Applicant in the claim form, which as noted earlier, is significantly different to the version given in the witness box. It is another reason why the Tribunal accepts the versions of the accident given by her at this time rather than the version that, as noted earlier, it found to be a reconstruction and an embellishment.
Dr Henry also recorded in the standard form, details of the injuries complained of which appear to be left foot, right hand, right shoulder, groin, pain walking and “LBP” (presumably lower back pain). She also recorded that the Applicant suffered from the onset of shock the next day. There was tenderness in various places recorded. It should be observed that Dr Henry’s writing is difficult to read on several of the entries in her clinical notes that have been produced. The Tribunal observes that lower back pain whilst certainly acknowledged was not emphasised in these clinical notes. In terms of Radiations there was reference to left posterior calf and thigh component. Under the heading “Course/Duration” Dr Henry recorded the entry “improving”.
Under the heading “Previous Episodes” Dr Henry made an entry: “10 yrs ago-LBP-leg length affected. Chiro-resolved few years ago same re-occurred.”
An entry in Dr Henry’s clinical notes for 23 June 1997 notes, that the Applicant’s progress is improving and her lower back pain is “intermittent.”
In the clinical notes for 3 July 1997 it is recorded that the Applicant started crying mid- conversation and a reference is made to poor sleep, restlessness and post-traumatic stress syndrome. However, with reference to her back the entry is “back improved”.
Dr Henry’s notes for a consultation on 7 July 1997 record that the Applicant is very emotional and stressed and feels this aspect is getting worse, with her back described as “okay”.[22]
[22] The entries for 23 June, 3 and 7 July 1997 are on page 47 of exhibit R-2.
The clinical notes recording the Applicant’s attendance on Dr Henry on 17 July 1997 record “extremely tender L 5”.
On 11 September 1997, the entry made by Dr Henry is “doing really well considering stress.”
Save as mentioned above, there are no other references to the Applicant’s back condition (which is the subject of this application) made in Dr Henry’s clinical notes between 18 June 1997 and 11 September 1997. There were 14 attendances by the Applicant to Dr Henry during this period.
The Applicant discontinued the 1997 treatment by Dr Henry after her session on 11 September 1997, when she was recorded by Dr Henry as doing really well.
The absence of treatment with Dr Henry from September 1997 to June 1998
The Applicant did not consult Dr Henry again until 18 June 1998. This will be addressed in more detail later. The Applicant gave evidence that the discontinuance of treatment by Dr Henry for nine months was due to several factors. Her father fell ill with a form of leukaemia and subsequently died in late 1997. She said that her mother was alone in the family home and she was spending a bit of time with her. Further, she got married at a difficult time. Additionally, she was working full-time and did not recall having any time off other than for her honeymoon or making wedding preparations.[23]
[23] In paragraph 88 of her reply submissions, she also said it was due to Comcare stopping treatment. This was not explored in her evidence.
To some extent, the Applicant’s version of events was corroborated by documentary evidence from Dr Henry. A clinical note of 13 May 1998[24] made by Dr Henry records that the Applicant’s father had died in the previous December and that she had also married. It records that the Applicant requested a letter to Comcare for treatment to continue. A handwritten letter from Dr Henry addressed to Ms Bevan at Comcare dated 18 May 1998 was in evidence.[25] The contents of the letter are referred to in full. Some aspects of it should be summarised in these reasons. In that letter Dr Henry states that the Applicant was undergoing chiropractic treatment between 18 June and 11 September 1997 for injuries sustained in a motor vehicle accident on 11 June 1997. She further stated that the applicants “sprain/strain type injuries were responding well when, due to extraneous circumstances, she discontinued her therapy (11 September 1997) before completion of her treatment program.” It is then recounted that at that time the Applicant’s father was diagnosed with an aggressive terminal illness. It stated that understandably, the Applicant’s attention was diverted to the needs of her family. It asserts that the Applicant continued to suffer discomfort relating to her injuries.
[24] This note reflects a conversation between Dr Henry and the Applicant not a consultation.
[25] A documents A 7 and page 20.
When probed about these matters in cross-examination, it was specifically put to the Applicant that she could have attended for treatment if needed at any time between September 1997 and June 1998. Her answer to this question was somewhat evasive and to the effect that if she could have, she would have. This response is, to some considerable extent, inconsistent with the manner in which the Applicant has tended to conduct herself on most occasions to the observation of the Tribunal. It should be repeated that at all times she has demonstrated a heightened sense of awareness when it comes to protecting her position. The Tribunal has no doubt whatsoever, that if she were suffering any pain or other discomfort that required treatment to her lower back as she now alleges, she would not have hesitated to consult Dr Henry, let alone her general practitioner. The fact that she did not do so is consistent with the observations made by Dr Henry in the clinical notes that have been referred to above. The reference in the clinical notes on 7 July 1997 that her back was “OK”, and the subsequent note on 11 September 1997 that she was doing really well, are indicative that her back was not causing her any difficulty by that time.
Another matter that should be mentioned in this context is that the Applicant did not, after her initial attendance on the general practitioners on 11 and 12 June 1997, consult one (nor any other medical practitioner) for the rest of 1997, or in 1998. Given that the referral to Dr Henry came from a general practitioner, Dr Khan, (her regular general practitioner who it will be recalled she specifically went to the day after the motor vehicle accident having seen another general practitioner the previous day) if, as the Applicant has contended, her back was causing her such difficulty, it is surprising that she did not further consult a general practitioner for treatment and guidance concerning her back condition.[26] It should be recalled that, she consulted two general practitioners before she saw Dr Henry. If her back was causing her the difficulties she alleges throughout this time span one would have expected her at some stage to have seen her general practitioner. It should be recalled that Dr Khan in his medical certificate of 12 June 1997 recommended treatment including analgesics. This was also a form of treatment that other specialists whose evidence was before the Tribunal, including Dr Brazenor, similarly recommended. The immediacy of pain relief provided by the use of analgesics might have had considerable attraction to the Applicant in the circumstances. It is telling that she did not avail herself of that treatment option. It is consistent with a finding that her back condition had, by the conclusion of the treatment in September 1997, resolved itself. It is also surprising that Dr Henry did not provide any follow up reports to Dr Khan during the time she treated the Applicant in 1997. This is also consistent with a conclusion that by September 1997 her lower back was not causing her any difficulty.
[26] This fact coupled with what he described as “the unaccountable gap” in treatment between 1997 and 1998 were relied on by Dr Brazenor to contend that it was very much against the Applicant having sustained significant low back injury in the accident of 11 June 1997 (paragraph 4, page 12 of his report of 19 October 2017).
Treatment with Dr Henry between June 1998 and February 1999
Following the letter of 18 May 1998 from Dr Henry to Ms Bevan at Comcare, referred to previously, there was in evidence a file note made by an officer of Comcare 12 June 1998 recording details of a telephone conversation with the Applicant.[27] The substance of the telephone conversation was that the Applicant was seeking approval for further chiropractic sessions. The Comcare officer stated that there had been a gap in treatment. The note records that the Applicant explained her father had been sick and that she was too worried to continue her treatment sessions with the chiropractor which had not been completed. The telephone note records that treatment was then approved for a period from 12 June until 31 July 1998. Interestingly, the last sentence of the file note mentions that various forms were faxed to the Applicant and she was advised to see her general practitioner for a referral. There was no evidence before the Tribunal that such an attendance upon a general practitioner for a referral was undertaken by the Applicant as requested by Comcare.
[27] The file note is document A 8 of the A documents at page 21.
Notwithstanding the approval for further treatment by Dr Henry between 12 June and 31 July 1998, treatment was extended from 18 June 1998 until 4 February 1999. The Applicant consulted Dr Henry on 33 occasions. There is no evidence before the Tribunal which reveals why treatment was extended beyond 31 July 1998. Nor whether it was approved by Comcare. One would have expected to have seen some documentary evidence that might have explained why, and in particular whether, such extended treatment beyond that initially approved affected, and if so in what way, any aspect of the Applicant’s back condition that she now complains of. The Tribunal infers from the lack of such documentary evidence that it probably did not.
Although there were 33 consultations between Dr Henry and the Applicant, there are comparatively few entries made in the clinical notes concerning the Applicant’s back condition.
Those entries are dated 18 June, 27 July, 3 August, 17 August, 10 December 1998 and 7 January 1999. Not all those entries need to be reproduced. Certainly, the entries on 18 June, 27 July and 17 August 1998 record discomfort, or pain that the Applicant explained to Dr Henry that she was feeling in her back. The entry on 10 December 1998 refers to a fall in which she hit her head and noted a spasm in the right lower back the day after. A further entry for 7 January 1999 records that her back had been quite bad for a few days after lifting a heavy chair over a table.
The entries for 10 September and 26 October 1998 are very positive stating “all is well” and “all good”. It goes without saying that this is inconsistent with the Applicant’s assertions that her back condition was not improving or had not been resolved. Several other entries made no reference to her back, but references to her pregnancy, its subsequent complications, and a miscarriage which was reported in the entry for 5 October 1998. They do demonstrate that she was being treated whilst pregnant and that this continued after her miscarriage. It also reveals that her back complaints were obviously improving. This was contrary to her evidence in chief, and to some extent her evidence under cross-examination, which will be referred to later. Acting on medical advice from her gynaecologist, she had bed rest for three months. Her gynaecologist also advised her not to have lower back treatment during this time. The Applicant also stated that her back continued to cause her difficulty.
The final attendance by the Applicant on Dr Henry during this time span was on 4 February 1999. The entry in the clinical notes for that attendance records: “Now resolved, no probs”. When probed about this entry under cross-examination, her response was that she could not speak for Dr Henry, and that one would have to ask her. She stated that she did know her back had still not resolved and the only reason she stopped treatment was that she was pregnant with her daughter whom she stated was conceived after her first miscarriage.[28]
[28] In her evidence in chief she also gave evidence to the same effect that she fell pregnant in 1999 after her miscarriage.
The Applicant in her evidence from the witness box disagreed with the entry recorded in Dr Henry’s clinical notes on 4 February 1999 that her issues were resolved and the were no problems. Unfortunately, Dr Henry did not give evidence and could not herself be probed about these entries. However, the overall theme of those entries, throughout this period of treatment, is consistent with an improvement resulting in resolution of her back complaint. Even though Dr Henry did not give evidence, and the Applicant did on affirmation, the Tribunal cannot accept the Applicant’s evidence. There is no apparent reason why Dr Henry would make such a clear and unequivocal entry in her clinical notes if it was mistaken, or otherwise untrue. The Tribunal accepts that the entry made by Dr Henry on 4 February 1999 in her clinical notes is accurate. The Tribunal had the opportunity to observe the Applicant’s evidence on this topic and overall found it difficult to accept in the face of that clinical note. It must be rejected. It was an example of the Applicant’s tendency to exaggerate or embellish her evidence.
The absence of treatment from Dr Henry from February 1999 to July 2000
The Applicant did not seek any treatment from Dr Henry (or any other medical practitioner) for her lower back between 5 February 1999 until 27 July 2000.
The Applicant explained this absence of treatment as a result of several considerations. One of those was that, as noted earlier, she had been directed by her gynaecologist not to have lower back area treatment whilst she was pregnant. It will be recalled that her daughter was born in October 1999. Her evidence was that the cessation of treatment did not mean her back symptoms had disappeared. When probed in cross-examination, she stated that this consideration applied to the first three months of her pregnancy for which bed rest had been recommended.
The Applicant’s evidence concerning this gap in treatment was unconvincing. Whilst she stated her back symptoms continued, she did not identify what those symptoms were. Her evidence did not identify precisely whether she was in any pain; and if so what the description of the pain was, such as she had done in the past using terms as ‘jabbing’ or ‘stabbing’ or her back ‘locking up’; and its frequency such as whether it was continuous or periodic (as she had done on other occasions); and where it was located. She did not seek treatment or other therapies from the medical profession. One would have expected her to take such a step if she was continuing to experience pain with difficult back conditions whilst under the treatment of her gynaecologist. Presumably, he could have advised her on this, prescribed medication or provided a referral to a suitably qualified specialist medical practitioner to address the specific problems. Other treatment, such as medication in whatever form, may have been appropriate to relieve those symptoms if indeed they were causing her difficulty. In her evidence the Applicant was extremely complementary of the gynaecologist, who was from the Royal Women’s Hospital. Given the undoubted confidence she had in that gynaecologist, it is surprising if she was still in pain from her back condition that she did not seek his assistance in whatever form necessary, to deal with this condition. The gap in treatment is also surprising given that her daughter was born in October 1999 and the next visit was not until July 2000, a gap of approximately eight months. Even if she had concerns, which is quite understandable, concerning her miscarriage, after the birth of her daughter there does not seem to have been anything preventing her from seeking appropriate treatment. For these reasons the Tribunal cannot accept her explanation for the cessation of treatment between February 1999 and 27 July 2000. Once again, it should be repeated that she has demonstrated capacity to protect her interests at all times. Had she been in pain the Tribunal concludes she would not have hesitated to seek appropriate treatment during this period. Finally, on this topic this conclusion is consistent with the observations made earlier in these reasons concerning the entry in Dr Henry’s clinical notes for the attendance on 4 February 1999; that with respect to her condition it was “now resolved no probs.”
Single visit to Dr Henry on 28 July 2000
There was one attendance by the Applicant to Dr Henry on 28 July 2000. A clinical note for that attendance is in evidence before the Tribunal.[29] No entries are made in those clinical notes concerning the lower back pain of which the Applicant had previously complained and now complains of.
[29] Page 57 of the supplementary T documents.
The Applicant sought to explain both the gap in treatment and the absence of any reference in the clinical notes to her lower back condition in similar terms to previous occasions. The explanation offered was that it was a period when she did not have treatment for her back, just her shoulder. She reiterated that it did not mean her back condition was not the cause of her difficulty. The Applicant was probed particularly in cross-examination about whether she told Dr Henry that she was having lower back problems when she saw her on 28 July 2000. Her response was that she could not remember if she told her that she was having lower back problems. This position was maintained by her even after she was shown a copy of a letter written by Dr Henry, dated 17 August 2000, in which there was no reference to her experiencing lower back problems.[30] Again, the Tribunal considers this explanation thoroughly unconvincing. It has no doubt that if the Applicant was suffering any lower back conditions, it would have been raised with Dr Henry during that consultation on 28 July 2000. The Tribunal concludes that there is no reference in the clinical notes because the Applicant did not mention it to her. It also infers that she did not mention it to Dr Henry because she was not experiencing any conditions at that time.
[30] The letter is document T 9 of the T documents. It will be addressed in more detail in the next subheading of these reasons: "The absence of treatment from Dr Henry from July 2000 to February 2001.”

Also, on the question of the Applicant’s explanation that she could not have treatment for her back at that time, the Tribunal repeats the observations made above, that if chiropractic treatment were not an option, she could have and almost certainly would have, consulted a medical practitioner to obtain an alternative form of treatment that may not have involved physical intervention in the way that chiropractic treatment generally does. It should be reiterated that the Applicant expressed great confidence in her regular general practitioner at the time, Dr Khan, and the gynaecologist from the Royal Women’s Hospital, under whose care she was during the relevant time. Surely if she was experiencing the pain, she said she was, and chiropractic treatment was not an option, she would have raised it with one of those medical practitioners and sought alternative treatment, most likely by way of suitable medication.
It should be noted that Dr Henry turned her mind to the question of suitable medication for the Applicant. Although at a later time, there is a letter of 19 June 2007 in evidence from Dr Henry addressed to a “Doctor”, obviously a medical practitioner who can prescribe medication, requesting the recipient’s assistance with some anti-inflammatory medication together with a CT scan.[31] The reason for this referral was that she considered some early anti-inflammatory medication may arrest the evolution of the injury. More will be said about this letter later. However, it demonstrates that if the Applicant needed medication to manage her conditions, whatever they may have been, Dr Henry was ready to make that recommendation and refer the Applicant to a medical doctor. That she had not done so until 2007 the Tribunal considers is indicative of the Applicant’s condition, certainly to that time, as not being anywhere near as serious as the Applicant portrayed. Certainly, it is also support for the contention that if she really was in difficulty during the course of her pregnancy, the obvious thing would have been to have sought medical intervention by the prescription of an appropriate form of pain relief. This was a viable alternative to chiropractic treatment, rather than that the Applicant unnecessarily suffering during the course of her pregnancy as she seemed to assert she did.
[31] The letter is document T 20 of the T documents. More detailed reference to the contents of this letter from Dr Henry appears later in these reasons.
The absence of treatment from Dr Henry from July 2000 to February 2001
There was no treatment undertaken by the Applicant for any lower back condition between 29 July 2000 and 22 February 2001.
It should be observed that, from the evidence recounted so far, there had been no observation of a complaint by the Applicant of lower back pain from 4 February 1999 to 22 February 2001. The matters and findings referred to by the Tribunal previously concerning this period are repeated. During this further period in which no treatment was undertaken, between July 2000 and February 2001, there was further evidence corroborating that there was no back problem reported by the Applicant to Dr Henry. In evidence was a letter dated 17 August 2000 from Dr Henry.[32] The letter, in its first paragraph, states that the Applicant recently consulted her regarding her neck and upper shoulder pain. There is no reference in that letter to any lower back pain. Once again, the Tribunal concludes that if the Applicant were indeed suffering from lower back pain at the time, as she now alleges, she would have informed Dr Henry; and it would have seen the light of day in this letter of 17 August 2000, which it appears was written to make a further claim on Comcare for future chiropractic treatment. The Tribunal concludes that there was no reference to lower back pain in that letter because the Applicant was not suffering from it at that time and had therefore not informed Dr Henry of such pain.
[32] Document T 9. It should be observed that there is no clinical note made by Dr Henry on 17 August 2000. The only note close to that date is the entry on 28 July 2000 previously referred to. There is an undated note after that entry in which it records that she spoke to Kylie Farrell at Comcare concerning continuing care, and a notation of a "written response". Presumably, Dr Henry's letter of 17 August 2000 was written following that conversation for the purposes of assisting the Applicant make a successful claim to Comcare for further treatment concerning the Applicant's neck and upper shoulder pain.
There was also a handwritten letter from Dr Henry, dated 6 January 2001 and addressed to Kylie Farrell at Comcare, in evidence.[33] It refers to a telephone conversation between them in early December 2000. Dr Henry states that she is “resending” paperwork concerning the Applicant, seeking authority to recommence a period of treatment to bring the Applicant’s “symptoms back under control”. She observed that it was the third occasion she had sent what she described as “relevant paperwork” regarding the Applicant. [34] The Tribunal also notes the paperwork was first sent to Comcare on 17 August 2000. Dr Henry also stated that she was sending material by mail (for the third time) and requested a response early the next week as the Applicant “is in a bad way at the moment”. The symptoms suffered by the Applicant are not identified. Once again, there is no reference to any lower back condition suffered by the Applicant. An examination of Dr Henry’s clinical notes does not reveal any entries in December 2000 or January 2001 concerning an examination of the Applicant by her, or any symptoms that she was presently suffering from. Certainly, there were no entries in clinical notes between those made on 4 February 1999 (stating that the Applicant’s condition was now resolved and that there were no problems) and the letter of 6 January 2001 to Kylie Farrell at Comcare referring to any back problem. The Tribunal cannot understand what foundation there was for Dr Henry to state in the letter of that date that the Applicant was “in a bad way at the moment” (whatever condition she may be referring to). Unfortunately, since Dr Henry did not give evidence it was not possible to probe this issue any further. However, it is another reason why the Tribunal views with caution not only the evidence of the Applicant, but also the contents of any report prepared by Dr Henry which was tendered in evidence.
[33] Document A 10 of the A documents.
[34] Unfortunately, the "relevant paperwork" was not attached to the copy of Dr Henry’s letter in evidence before the Tribunal.
The Applicant’s evidence on this treatment break was not altogether clear. On page 95 of her closing submission in reply to the Respondent’s submissions, she asserted that the treatment break was solely due to Comcare stopping treatment, and also referred to the letters from Dr Henry to Comcare of 17 August 2000, 6 January 2001 and 23 February 2001. The Tribunal considers that if her back was giving her the trouble that she now contends it was, she would have sought treatment from Dr Henry regardless of Comcare’s determination.
Treatment with Dr Henry between February 2001 and October 2001
The Applicant resumed her attendances on Dr Henry from 23 February 2001 to 26 October 2001. There were 18 consultations.
Once again Dr Henry’s clinical notes are in evidence. It is fair to say they are spartan. There are only four entries that contain any reference to the Applicant’s lower back complaint. There is no entry in those clinical notes to her lower back condition after the entry on 14 August 2001 which may even be questionable on that topic. The entry records: “Central L-S sharp twinges-movement, especially getting out of bed.” These limited entries in the clinical notes are inconsistent with the Applicant’s evidence of the pain levels that she was then experiencing in her lower back, and the consequent need for the continuing treatment that she undertook during this period. Once again, whilst Dr Henry did not give evidence to the Tribunal, it infers that as these notes are contemporaneous, they more likely to be accurate in this instance.
A feature of the remaining entries in Dr Henry’s clinical notes for this treatment period is the reference to the Applicant’s second pregnancy. The entry for 21 September 2001 reports that she was 9 or 10 weeks pregnant and that it was going well. Once again, these notes record that the Applicant was being treated by Dr Henry notwithstanding her pregnancy. It also reflects treatment during the first three months of her pregnancy, which on her evidence was against the recommendation that had previously been made by her treating gynaecologist. This also is inconsistent, at least to some extent, with the Applicant’s evidence to the Tribunal that she did not have treatment whilst pregnant, or it was of limited duration.
The absence of treatment from Dr Henry from October 2001 to September 2002
The Applicant did not attend a consultation with Dr Henry from 27 October 2001 to 20 September 2002; a period of approximately 11 months.
Her son was born during this time, in April 2002.
The Applicant offered several reasons for not seeking treatment during this period. They were; her pregnancy and the birth of her son, a dispute with her employer including harassment and bullying for which she made a claim, and what she described as Comcare’s refusal to pay for treatment.
Once again, the Tribunal finds it difficult to accept the Applicant’s explanation for this absence of treatment in its entirety. Unquestionably, the lead up to and after the birth of her son is an explanation that can be accepted. However, for the time other than that affected by the pregnancy, the Tribunal finds it unlikely, that if her back was causing her significant difficulty she would not have sought treatment either from Dr Henry, or a qualified medical practitioner, if chiropractic attention was not appropriate by reason of the pregnancy.
Events during September 2002 to June 2007
In September 2002 the Applicant consulted another general practitioner, Dr Glassenbury, when, apparently, her previous GP retired. In evidence was a referral from her general practitioner dated 19 September 2002 to Dr Henry. The Applicant wrote to Comcare enclosing that referral from her general practitioner seeking approval for further treatment from Dr Henry “twice weekly in the short term to fix the bad state of my back and neck”.[35]
[35] The referral from Dr Glassenbury and covering letter from the Applicant to Comcare is document T 11 of the T documents.
The Applicant saw Dr Henry on 21 September 2002. Dr Henry followed up with a report to Dr Glassenbury in the form of a letter dated 25 September 2002.[36] The contents of the letter are referred to in full. However, several aspects of it should be particularly noted. The report was prepared at the request of the Applicant, after she had seen Dr Henry following a recent episode of lower back pain. The Applicant had stated that whilst she had experienced recurrent lower back pain since her 1997 car accident, it had worsened over the past few months and she was unable to attribute this to any known event. Dr Henry reported that over the last few years the Applicant had two children and thus a new lifestyle that is traditionally difficult for lower backs.
[36] Document T 12 of the T documents.
Comcare, by way of a letter dated 3 October 2002, sought more details from the Applicant via Dr Glassenbury, before further consideration could be given to her claim for treatment. This letter from Comcare contained a “Schedule of questions to be answered by Dr Glassenbury on Mrs Sonia Mitchell.” The Schedule of questions comprised 11 separate questions.[37]
[37] The letter from Comcare of 3 October 2002, and the Schedule of questions are document T 13 of the T documents.
Dr Glassenbury prepared a report for Comcare dated 4 January 2003.[38] The contents of that report are referred to in full. There are some matters referred to that warrant noting in particular. The Applicant had presented at the surgery for treatment on 20 September and 2 October 2002. Reference was made to the 1997 motor vehicle accident and the injuries that she sustained. Dr Glassenbury recounted that the Applicant described ongoing lower back pain. It was stated that she obtained considerable relief through physiotherapy at the time (presumably, meaning the time of the motor vehicle accident. The Tribunal assumes the reference to “physiotherapy” is in fact incorrect and means the chiropractic treatment from Dr Henry as this was the only treatment the Applicant was receiving at the time). When she presented, the Applicant described lower back ache and stiffness precluding easy movement, especially severe in the mornings and again in the evenings.
[38] Document T 14 of the T documents.
Dr Glassenbury described the examination as unremarkable apart from diffuse lower back tenderness and evidence of muscular spasm. He opined that he could not provide an accurate diagnosis of the injuries sustained in 1997. It was likely the Applicant had sustained diffuse soft tissue injuries mainly affecting the lower back. Another opinion expressed by him was that when she presented in September 2002 there were no firm signs of injury on examination which was consistent with soft tissue injuries. Such symptoms could relate to an exacerbation of the 1997 injuries. Additionally, the physical effort of caring for a five-month-old baby as well as having children of varying ages may also have been contributory.
Dr Glassenbury then recommended physiotherapy treatment of some weeks up to three months. He stated that the prognosis of the injuries sustained in 1997 was good. Full recovery from current symptoms were expected. However, he did warn that future exacerbations of pain and stiffness might still occur.
Some further observations should be made concerning Dr Glassenbury’s report of 4 January 2003. He clearly did not see the Applicant’s back condition as being of significant concern, as is evidenced by his opinion expressed that no more than three months of physiotherapy treatment would be sufficient to enable full recovery from the symptoms currently experienced by her. Although he acknowledged that the Applicant complained of ongoing lower back pain, it appears from this report at least, that the description of the pain experienced by the Applicant given to him, was most likely of less severity than it was portrayed by the Applicant in the witness box. Another matter emerging from a consideration of this report is that however one categorises the pain levels the Applicant experienced at that time, it did not appear to Dr Glassenbury to be of such seriousness, or significance, so as to warrant ordering appropriate medical imaging to be taken of the Applicant’s back. Presumably, had appropriate medical images been ordered at that time, a definitive opinion could have been expressed about her condition, by whoever the Applicant’s treating health care practitioner was.
There is a paucity of documentation in both the T and the A documents, for some time after Dr Glassenbury’s report of 4 January 2003. The Tribunal finds this surprising given the history of the matter.[39]
[39] The next document in the T documents, after Dr Glassenbury’s report of 4 January 2003, is a letter from Comcare to the “Gaffney Street Chiropractic Clinic” concerning the Applicant dated 1 April 2004. In the A documents there is an even bigger gap in documentation. After Dr Henry’s handwritten letter to Kylie Farrell of Comcare dated 6 January 2001, the next document is the CT scan of the Applicant’s lumbar spine (Series1) dated 16 November 2007. There surely must have been further relevant documentation in the possession of both parties to this application given the claim’s history. No explanation was offered by either of them for their absence.
Despite the paucity of documentation passing between the parties (or produced to the Tribunal), the Applicant commenced an extensive and protracted period of treatment with Dr Henry. This continued over many years. In the course of his evidence, Dr Brazenor produced an Excel spreadsheet graph of the Applicant’s chiropractic consultations with Dr Henry between 18 June 1997 and 6 September 2017. As a pictorial representation of the Applicant’s treatment, it is instructive. As Dr Brazenor described it in his oral evidence, it shows a “crescendo” of treatment sessions in the years 2003 and 2004 particularly (he also described the 66 consultations with Dr Henry in the year 2003 as “staggering”[40]). It is useful to record the number of consultations with Dr Henry by the Applicant over several years.[41]
[40] Paragraph 1 on page 6 of his report of 19 October 2017.
[41] There were several sources of documentary evidence before the Tribunal which enabled the number of consultations between Dr Henry and the Applicant to be determined. There were of course Dr Henry’s clinical notes. Additionally, the Applicant in document A 14 tabulated each date of attendance from 23 June 1997 until 18 December 2006. In document A 77, the Applicant provided details in tabulated form of “Treatment Dates” from 2007-2020. Details of treatment after 2010 will be referred to later in these reasons. This table is derived from Dr Brazenor’s report dated 19 October 2017.

Year.

Number of Consultations.

2003

66

2004

30

2005

36

2006

15

2007

22

2008

30

2009

18

2010

10

As can be seen from the table, it is not unrealistic to describe the frequency of consultations with Dr Henry by the Applicant, certainly in the years 2003 to 2005 in terms of a “crescendo”.
There is little documentation before the Tribunal covering those years of 2003 to 2005. There is a letter dated 1 April 2004 from Comcare, addressed to Dr Henry’s chiropractic clinic, which refers to the necessity of reviewing the efficacy and reasonableness of the Applicant’s treatment and its relationship to her compensable condition.[42] The letter had attached to it a schedule of questions which covered the Applicant’s condition and treatment, including how long the treatment had occurred and what progress has been made to date.
[42] This letter is document T 15 of the T documents.
This evoked a response in a letter of 25 May 2004 from Dr Henry.[43] The contents of that letter are referred to in full. It states that the Applicant had suffered “whiplash-type trauma” (prior to this letter, no doctor or treating chiropractor had used the term “whiplash” in relation to the Applicant’s injuries). It further goes on to say that she had “unfortunately suffered recurrent acute episodes, similar to her original presentation, predominantly with cervical and lumbopelvic symptoms”. The letter states these recurrent bouts became more severe and with shorter intervening pain free periods. It is opined in this letter that the Applicant’s “ongoing areas of mechanical pain were the direct sequalae of her work-related trauma”. It was also mentioned that the Applicant’s back was quite vulnerable to further strain during the stage of life she was in caring for two young children.
[43] It should be clarified that the letter was signed by Dr Jerrett of the same clinic as Dr Henry on her behalf who was apparently on extended sick leave at that time.
By the time this letter was written there were two entries in Dr Henry’s clinical notes concerning the effect lifting children was having on the Applicant’s back. An entry of 7 March 2003[44] noted that the Applicant realised she had been aggravating her back by lifting her son out of bed. Another entry on 9 July 2003[45] similarly referred to her lifting her son out of his bed, causing her condition to worsen. The Applicant was probed on this issue in cross-examination. She conceded that she realised she had been aggravating her back by lifting her son out of bed and also getting him out of her car. The letter dated 25 May 2004 also discusses the Applicant’s treatment and observed that a number of attempts had been made to extend the treatment intervals. It was then anticipated the treatment frequency would decrease over the coming three to six months from fortnightly, to monthly, and eventually to an as-needed basis. The letter stated that in the early stages this resulted in what she called “rapid flareups”. It further stated that the Applicant’s lower back was more stable at that time. This was when her intensive treatment was finishing, and self-management was a realistic goal. The Tribunal notes that it appears this expectation was not fulfilled.
[44] Page 66 of the supplementary T documents.
[45] Page 68 of the supplementary T documents.

On 4 March 2005 letters were also sent by Comcare to Dr Jerrett at the Gaffney Street Chiropractic Centre (from which Dr Henry practiced), and also to the Applicant’s new general practitioner, Dr Khoury.[46] Both letters asked a series of questions concerning diagnosis, cause and treatment of the Applicant’s condition. The letter to Dr Jerrett also noted that the previous letter from Dr Henry indicated that chiropractic treatment should reduce over six months.
[46] The letter to Dr Jerrett is document T 17 and Dr Khoury’s is document T 18 of the T documents.
The only response to these letters that was in evidence before the Tribunal was one dated 25 March 2005 from Dr Henry.[47] The contents of that letter are referred to in their entirety. Amongst other things, Dr Henry stated that the Applicant’s “chronic mechanical low back pain was also improving until a significant aggravation in June 2004, related to the use of certain furniture”. Her lower back pain significantly increased in June and July 2004. Once again, it contended that this back pain had been initiated by the motor vehicle accident in 1997. It also reiterated, quite incorrectly and contrary to the entries in her clinical notes and the admissions made reluctantly by the Applicant in the witness box, that the Applicant had denied any prior history of lower back pain, and that Dr Henry had found no evidence that would lead her to doubt this. The report also noted that treatment had been reducing since the previous year to a frequency of every two to four weeks.
[47] Document T 19 of the T documents. It is just not known if Dr Khoury responded. It was not explored during the hearing before the Tribunal. Given the contents of Dr Henry’s report of 25 March 2005 it is surprising that there was no response, particularly if he was aware of the sudden onset of low back pain that the Applicant reported. This seems likely, given the contents of Dr Henry’s reply, which stated that she had seen her GP. Whilst this question remains unresolved, it makes it more difficult to prefer any opinion that might be expressed by Dr Khoury in any of his reports that were tendered, when he did not give oral evidence of the hearing of this application – unlike Dr Brazenor.
The letter dated 25 March 2005 then had a section headed in bold font and underlined “Important Additional Note”. Dr Henry stated that she had last seen the Applicant on 15 April 2005[48], four weeks after the previous treatment. The Applicant reported 48 hours of significant increase in her lower back pain. The onset of such pain had occurred suddenly, without any obvious source of aggravation. The Applicant had reported difficulty walking for the previous 24 hours due to pain. Dr Henry concluded that the Applicant’s back condition was significantly worse than in the previous month. She noted that the Applicant had apparently consulted her general practitioner, whom she referred to as Dr Khan, rather than Dr Khoury (to whom it will be recalled the letter from Comcare on 4 March 2005 referred to previously was sent). It also said that the Applicant had also consulted Dr Khan two weeks beforehand. Dr Henry concluded that “the quite considerable deterioration over a four-week period strongly confirms that Mrs Mitchell needs ongoing support during this strengthening phase.”
[48] This is after the date of the letter; obviously a typing error. The Tribunal infers from reading the letter that it should have read “15.03.05”.
Several observations should be made concerning Dr Henry’s letter of 25 March 2005. The observations of Dr Henry concerning the incident with, as she described it, “certain furniture” was explored in some detail during the hearing whilst the Applicant was in the witness box. Counsel for the Respondent identified three entries in Dr Henry’s clinical notes concerning a rocking chair causing the Applicant pain.[49] In one clinical note of 19 December 2003 it described the Applicant’s back pain as acute and that it was caused by sitting in the rocking chair. The Applicant was probed in evidence about the rocking chair. Initially, when questioned about the topic she was quite argumentative. Eventually, she conceded that it was not good for her back, and also agreed it was an aggravating factor. Therefore, she got rid of it. She was challenged on why she continued to use the rocking chair for approximately three months if it was causing her such difficulty as described in Dr Henry’s clinical notes. Other than acknowledging it caused her difficulty, her response was she did not know and that it was 17 years ago. This is a very surprising response indeed for someone who was always very mindful of protecting her own interests, whatever they may be. One would have expected that if the rocking chair was causing her acute pain, she would have stopped using it immediately. The Applicant’s evidence on this subject was unreliable.
[49] The entries were on 14 October 2003, 19 December 2003 and 6 January 2004. Those entries are at pages 72, 74 and 75 of the supplementary T documents.
It is also surprising to the Tribunal that Dr Henry only records an entry in her clinical notes of advising the Applicant “to stay out of rocking chair” on 6 January 2004. Similarly, if the rocking chair was causing such acute pain as described in her notes, one would have expected that Dr Henry would have immediately told the Applicant to stop using it and not allowed its use to continue for approximately three months. The Tribunal also observes that Dr Henry in her report of 25 March 2005, by referring to the rocking chair as “certain furniture”, appears to downplay what really occurred to the Applicant with her use of the chair over three months, rather than faithfully reproducing what was recorded in her clinical notes, or the substance of them. It also appears that Dr Henry has glossed over the potential for the lifting of children and the use of the rocking chair to have been the cause of the significant increase in the Applicant’s lower back pain. One might have expected her firstly to have mentioned it, and if she disagreed or did not consider it to be a cause of this lower back pain, to explain why. Once again, because Dr Henry did not give evidence at the hearing of this application these questions could not be explored.
Another matter emerges from Dr Henry’s report to Comcare dated 25 March 2005. The information contained in that letter under the heading “Important Additional Note” was of demonstrable concern to her. The use of this endorsement in bold font jumps out at the reader and was clearly designed to emphasise to Comcare what she saw as the significance of the Applicant’s suddenly deteriorating lower back condition. It was obviously of significant concern to the Applicant, given she consulted her general practitioner on at least two occasions concerning her back condition; which on the evidence before the Tribunal, she had not done much in the past at all. Given the concerns of Dr Henry and the Applicant, not to mention the obvious pain that it appears that developed, it strikes the Tribunal as surprising in the extreme that no report, from whichever general practitioner treated her on or about the time in April 2005, was in evidence. It is also surprising, indeed, that appropriate medical images of the Applicant’s lumbar spine were not obtained as a matter of urgency. Surely, if there was, as Dr Henry recorded, a sudden onset of lower back pain without any obvious aggravating event, something was going on. Chiropractic treatment did not appear to be the answer. On the Tribunal’s calculations from the evidence before it, by 25 March 2005 the Applicant had undergone at least 205 consultations with Dr Henry. Obtaining appropriate medical imaging, and referral to a spinal medical specialist, might well have provided the answer. Once again, this issue could not be explored in evidence because neither Dr Henry nor any general practitioner who treated the Applicant in April 2005 gave evidence.
Following Dr Henry’s report dated 25 March 2005, surprisingly, there is no documentary evidence concerning the intervening period until 19 June 2007, other than that Dr Henry’s clinical notes confirm the Applicant continued to regularly consult her.
June 2007 and diagnosis of the Applicant’s L5/S1 disc problems
On 19 June 2007, Dr Henry wrote a letter to an unidentified doctor concerning the recent change in the Applicant’s experiences of lower back pain.[50] She expressed the opinion in that report that clinically these conditions looked like early L5 radiculopathy, with disc herniation the most likely cause. She requested assistance from that doctor by way of some anti-inflammatory medication plus a CT scan. She considered early anti-inflammatory medication may arrest the evolution of the injury. It is not apparent to the Tribunal whether this recent change in the pattern of lower back pain expressed by Dr Henry in that letter is the same phenomenon described in her previous letter of 25 March 2005, where she described the sudden onset of a significant increase in lower back pain. Once again, because she did not give evidence this could not be explored at the hearing. However, there is limited evidence before the Tribunal to explain what occurred between March 2005 and June 2007. Once again, the Tribunal observes that the chiropractic treatment seems to have continued unabated.
[50] Document T 20 of the T documents.
In the latter part of 2007, Dr Khoury ordered a CT scan. The results of that CT scan of 16 November 2007 are in evidence before the Tribunal.[51] They reveal moderate to severe degenerative change at L5/S1 with severe right and moderate left neural foraminal narrowing.
[51] Document A 11.
The results of the CT scan received in November 2007 appear to have prompted a referral by the Applicant’s treating general practitioner Dr Khoury, to a neurosurgeon, Mr D’Urso.[52]
[52] This is evident from a subsequent report prepared by Mr D’Urso dated 10 April 2008, which refers to a referral from Dr Khoury. In a letter of instruction to Dr Griffith from Comcare of 30 July 2008, a “medical report” from Dr Khoury of 16 April 2008 was enclosed. This was not long after Mr D’Urso’s report of 10 April 2008. A copy of the referral was not in evidence before the Tribunal; and as already noted, Dr Khoury did not give evidence at the hearing of the application. It is unfortunate that this referral was not in evidence, given that a report addressed to him from Dr Henry on 31 January 2008 (which will be referred to later) was in evidence. Regrettably, for instance, we do not know how many times Dr Khoury saw the Applicant prior to the referral to Mr D’Urso; and what he diagnosed or observed around this time, just prior to and following the CT scan of November 2007. Also, it is not known if any medication or other treatment was recommended or undertaken by Dr Khoury around this time. This was not probed at the hearing of the application.
On 31 January 2008, Dr Henry wrote a letter to Mr D’Urso concerning the Applicant’s condition. Apart from stating that she had treated the Applicant since the accident in 1997, she observed that “each presentation by her had been in relation to chronic mechanical back pain or neck pain”. Dr Henry then noted that in “late 2006, the character of her pain changed.” It was said to be more persistent and localising to the right sacro-iliac joint and buttock. It then stated that by late November 2007 the Applicant was unable to tolerate short periods of standing. The results of the CT scan were referred to concerning L5-S1.
The Tribunal has some difficulty with the contents of the letter prepared by Dr Henry for Mr D’Urso dated 31 January 2008. In fairness to her, it must be repeated that she did not give evidence, which is of course problematic. However, there are inconsistencies between the contents of this letter and the contents of her clinical notes, not to mention the previous letters she wrote to Comcare or “Dear Doctor”. These will be referred to more specifically. The entries should be referred to in their totality. An examination of those clinical notes does not reveal that on each occasion that the Applicant presented to Dr Henry for treatment that she reported “chronic mechanical back pain or neck pain.” In fact, frequently, there were a variety of entries making such comments as “doing really well”, “all is well”, “all good”, “no problems”, “feeling better”, “doing really well”, “quite good” and “good”, amongst others. The significant number of entries expressed in this language do not accord with the description of pain symptoms in that letter. Once again, this apparent inconsistency on the face of the documents could not be explored with Dr Henry.
Another inconsistency between the contents of the clinical notes and the contents of Dr Henry’s letter to Mr D’Urso on 31 January 2008 arises from her observation that in late 2006 the character of the Applicant’s pain changed. An examination of her clinical notes for November and December 2006 do not record a change in character of the pain. In the entries for 4 and 11 December 2006 are several instances when it was recorded that no adjustment was necessary, and that the Applicant’s lower back had improved. If the condition had deteriorated to the point of becoming more persistent as described in that letter, one would have expected to see entries in the clinical notes reflecting this. They do not do so. This is puzzling indeed.
The letter of 19 June 2007 to an unidentified doctor states that there had been a recent change in the pattern of the Applicant’s lower back pain with reduced tolerance to standing and the onset of right lateral leg pain. This conveys a representation to the reader that the change in pain symptoms experienced by the Applicant in her lower back, occurred on or around June 2007, not “late 2006”. This is a different time to that explained to Mr D’Urso in the 31 January 2008 letter. Of course, that is also different to the description of the sudden onset of pain that occurred, without any obvious aggravating event, allegedly in April 2005 (pre-dominantly right mid lumbar and left sacro-iliac region) referred to in the letter dated 25 March 2005 to Comcare, under the heading “Important Additional Note”. The upshot of this is that there seem to be different versions from Dr Henry of when the changes in lower back pain occurred to the Applicant. It is of concern that Dr Henry produced a letter prior to the Applicant consulting a neurosurgeon for the first time that on its face is not accurate and, to some extent, misleading. This is both as to when the onset of the change of pain symptoms, which presumably were characteristics of, or commensurate with, the severe degenerative change at L5/S1 identified in the CT Scan of 16 November 2007, was; and also that there was no reference to the Applicant’s prior history, which has also been addressed earlier in these reasons. Naturally, these are inconsistencies that could have been explored had Dr Henry given evidence.
Mr D’Urso prepared a report dated 10 April 2008.[53] The contents of this report, and his other reports, will be considered later in these reasons in more detail, when the Tribunal undertakes a consideration of the opinions expressed by the several experts’ reports in evidence in this matter.
[53] Document T 22 of the T documents.
It appears that on or about the time that Mr D’Urso completed his first report on 10 April 2008, the Applicant made a request of Comcare for an assessment of her entitlement to incapacity benefits.[54]
[54] There is reference to a claim for an assessment of entitlement to incapacity benefits by the Applicant in a letter from a Client Services Officer of the Respondent on 6 October 2008: document T 25 in the T documents. There is also reference to the Applicant making a claim for the assessment of eligibility of incapacity benefits in a letter of retainer sent by Comcare to Dr Griffith on 30 July 2008: document T 23 in the T documents.
Subsequently, Comcare retained Dr Griffith, a consultant surgeon, to “gain up-to-date specialist opinion” on the Applicant’s “current condition, capacity for employment, and recommended medical treatment”.[55] Dr Griffith clinically assessed the Applicant on 28 August 2008.
[55] The letter of instruction to Dr Griffith is document T 23 of the T documents.
Dr Griffith then prepared a report dated 22 September 2008.[56] That report will also be considered when the Tribunal undertakes a consideration of the opinions expressed by several experts that are in evidence.
[56] Document T 24 of the T documents.
Following receipt of Dr Griffith’s report of 22 September 2008, Comcare wrote to the Applicant on 6 October 2008 informing her that in summary his opinion was that her current symptoms were a result of a lumbar disc injury; and that, on the balance of probabilities such injury was not a result of the motor vehicle accident in June 1997.[57] In the light of that opinion expressed by Dr Griffith, the Applicant was offered the opportunity to provide further medical evidence in support of her claim.
[57] The letter from Comcare to the Applicant is document T 25 of the T documents.
Following Comcare’s request, Dr Henry produced a report on 31 October 2008[58] and Dr Khoury prepared a report on 25 November 2008.[59]
[58] Document T 26 of the T documents.
[59] Document T 27 of the T documents.
Dr Henry’s report of 31 October 2008 is referred to in full. However, she made several particular points which will be repeated. She emphasised that prior to the accident in 1997 the Applicant had no history of back pain. The Tribunal has already commented on this observation several times in these reasons. Those comments are repeated; the observation was not correct. She then reiterated that in “mid 2006” the character of the Applicant’s lower back pain changed. Once again, the Tribunal has made observations about the inconsistencies between this conclusion and her previous observations in other reports prepared by her. Dr Henry conceded that the lower back pain symptoms experienced by the Applicant are the result of a degenerative disc lesion and L5 radiculitis. Acknowledging that the Applicant’s “symptoms had altered somewhat from the original presentation”, she stated that the current condition is a sequalae of the injuries suffered in the car accident rather than something unrelated. She also stated that the Applicant does not have evenly-spread multilevel degeneration or broad-based disc bulging. This caused her to conclude that it was likely the car accident made a significant contribution to the location and distribution of the degeneration concerned.
Dr Khoury’s report of 25 November 2008 was fairly short. It is referred to in its entirety. Some parts of it should be highlighted. He opined that given the Applicant’s history and current symptoms and the L5-S1 disc problems, the source of these problems was the 1997 car accident. There was subsequent aggravation, by what he described as the normal age degenerative process from 1997 to 2008. In reaching this conclusion he relied upon several factors: the Applicant had no history of back pain, and had done no physical work to cause disc problems; and that the symptoms complained of by the Applicant in 2008 were also reported in her medical certificates in 1997, which confirmed a strain of the lumbar spine muscle attachments and possible L5-S1 irritations at the time of the accident. There are aspects of this opinion which the Tribunal cannot accept. For reasons that have been well canvassed previously, the Tribunal does not accept that there was no previous history of back pain.
Further, when one examines the medical certificates in evidence before the Tribunal, they do not confirm strain of the lumbar spine muscle attachments and possible L5-S1 irritations at the time of the accident. The first certificate of Dr Habib in evidence makes no reference to either of these symptoms. The second certificate, dated the day after the accident, simply refers to a soft tissue injury to the Applicant’s lower back. The Tribunal considers that Dr Khoury’s report, to the extent that it is not correct, misrepresents the Applicant’s condition and its cause. The Tribunal does not blame Dr Khoury for this, particularly concerning the prior history, for several reasons. It would appear almost certain, given the Applicant’s admissions in the witness box, that he was also misled as to her prior history. Therefore, he was not given the opportunity to consider the Applicant’s prior history and what effect, if any, it may have had in reaching the conclusions he did. Also, it is not known whether he was furnished with the original medical certificates of Dr Habib and Dr Khan. As he did not give evidence at the hearing of this application, these are matters that could not be explored. However, it does make it difficult for the Tribunal to rely on the conclusions expressed in this report. This is particularly so where such opinions differ with those of Dr Brazenor, who gave evidence and was cross-examined searchingly by the Applicant.

Dr Khoury has relied upon the accounts of various events given to him by the Applicant, whose reliability has been found by the Tribunal in this regard to be wanting. Concerning this issue, in his report of 26 February 2019 he stated that there was a gradual onset of the Applicant’s condition which worsened. This of course is inconsistent with some of the reports particularly from Dr Henry which referred to a sudden change in the Applicant’s disc pathology. This is also in contrast to the observations of Dr Brazenor and Dr Griffith. The Tribunal has accepted that there was a more sudden onset of the Applicant’s disc symptoms.
Also, in respect of the accounts the Applicant gave him regarding gaps in treatment (which he did not specify in that report) those gaps occurred before Dr Khoury became the Applicant’s general practitioner. As observed above, it is of concern to the Tribunal that he did not qualify his report by expressly stating when he commenced seeing her or that he had recorded these facts based upon what the Applicant had informed him. The Tribunal has reached a different conclusion about these gaps in treatment.
Once again, there is no reference in any of Dr Khoury’s reports to the previous incidents that the Applicant reported to Dr Henry (and that she recorded in her clinical notes) before the 1997 motor vehicle accident which she admitted occurred while in the witness box. Without attributing any blame to him, it is, however, another reason not to prefer his opinion.
For these reasons overall, the Tribunal places little reliance on Dr Khoury’s opinion on this topic when compared specifically with those of Dr Brazenor and Dr Griffith.
The Tribunal does not place much reliance upon the report of Dr Cui of 22 February 2019.
Dr Cui did not give oral evidence before the Tribunal and therefore could not be cross-examined.
Dr Cui is not a legally qualified medical practitioner but describes himself as a traditional Chinese medical practitioner. His qualifications and experience simply do not match those of the medical specialists whose evidence was before the Tribunal and in particular that of Dr Brazenor, who gave evidence.
Dr Cui has purported to give evidence about the Applicant’s spinal conditions. It seems to the Tribunal he has purported to make diagnoses that just simply would not have been possible without recourse to other material such as all the relevant medical images. Nowhere in his report does he refer to having examined such medical images.
Dr Cui also says that there has been no degeneration or injury in other areas of the Applicant’s back. The Tribunal finds it difficult to say that he could give this opinion. He does not state the source of or the evidentiary foundation for expressing this opinion.
Dr Cui also appears to have relied upon the patient history given to him by the Applicant which, as has been reiterated several times throughout the course of these reasons, is questionable.
To his credit, Dr Cui readily conceded that he did not first consult the Applicant until 15 years after the 1997 motor vehicle accident.
Dr Cui’s conclusion that, from his assessment of the injured area (noting that he does not describe what sort of assessment he undertook), the spinal changes and nerve compression are due to a strong external impact and are consistent with the 1997 motor vehicle accident, is difficult for the Tribunal to accept. It is inconsistent with the contents of several reports, particularly from Dr Henry referred to above, which indicate that there was a sudden event, in or about 2006 or 2007 or that the injury worsened at that time. It is also inconsistent with several of the other medical reports and the clinical notes of Dr Henry that indicate the Applicant was pain-free initially in the lower back after the accident and that the treatment as at 11 September 1997 had been successful. It is most likely a reflection of the truncated patient history as furnished to him by Applicant. Nonetheless, it really does limit the reliance that the Tribunal can place on this report.
Did the 1997 motor vehicle accident cause the Applicant’s L5/S1 spinal conditions?
The Tribunal acknowledges that the evidence before it, including the results of medical imaging undertaken of the Applicant’s lower back and the expert opinions expressed by several legally qualified medical practitioners which have been discussed extensively in the course of these reasons, demonstrate that she suffers from moderate to severe degenerative change at L5/S1 the severe right and moderate left neural foraminal narrowing.
However, the Tribunal cannot accept that the current lower back conditions from which the Applicant suffers at the L5/S1 were caused by the 1997 motor vehicle accident. There are several reasons that the Tribunal relies upon in reaching this conclusion.
The first reason is that the Tribunal prefers the opinions expressed by Dr Brazenor and Dr Griffith. The reasons for doing so have been articulated earlier.
The clinical notes of Dr Henry which on several occasions indicate that there had been a complete recovery have been referred to above. This recovery was commented on by Dr Brazenor in his report of October 2017, where he observed that the medical and clinical records indicate that the symptoms resolved by the end of September 1997. This is also consistent with the reference in Dr Henry’s clinical notes on 7 July 1997 that her back was “OK”. There is also her letter dated 18 May 1998 to Ms Bevan at Comcare which describes her injuries as “sprain/strain type injuries” responding well to treatment. These observations are consistent with the opinions of Dr Brazenor and Dr Griffith that the Applicant did not suffer a significant disc lesion or intrusion at the time of the 1997 motor-vehicle accident. It is also consistent with Dr Griffith’s observation that had she incurred injuries by way of a disc lesion or intrusion at the time of the motor vehicle accident, she would surely have known about it. It is of critical importance in this matter that she did not express her symptoms in that way to Dr Henry during that period.
The breaks in the Applicant’s treatment which have been canvassed earlier in these reasons, in particular the gap in consultation with Dr Henry from 1 September 1997 until midway through the following year, taken in conjunction with an absence of medical consultations for back pain during that time, very much suggest that the Applicant’s symptoms arising from the 1997 motor vehicle accident had resolved. Had she been suffering any symptoms at all during that time, the Tribunal, having had the opportunity to observe the Applicant’s ample capacity to protect her own interests, has no doubt that she would have sought appropriate treatment from whatever healthcare practitioner she thought appropriate.
Dr Brazenor’s consistent opinion expressed both in his reports and in the witness box is that on the balance of probabilities, the Applicant does not continue to suffer the effects of an injury arising from the 1997 motor vehicle accident. He opined that on the contrary, the medical and chiropractic records indicate that the symptoms had resolved by the end of September 1997.
Dr Brazenor’s conclusion in his October 2017 report is that there is no evidence in the medical records consistent with a significant lumbar injury being suffered by the Applicant on 11 June 1997.
Dr Brazenor’s opinion, if indeed it is such rather than a factual observation, that no medical imaging was performed until 16 November 2007 is powerful evidence against the assertion that the Applicant had suffered significant injury until 2006. This is inconsistent with such injury to the L5/S1 being suffered in the 1997 motor vehicle accident as contended by the Applicant.
The Tribunal refers to several of Dr Henry’s reports commencing from March 2005 which record a sudden onset of pain (or a change in the character of the pain experienced by the Applicant in late 2006). This includes Dr Henry’s letter of 19 June 2007 entitled “Dear Doctor”. That letter observed a change in the Applicant’s symptoms, and for the first time sought treatment by way of anti-inflammatory medication and recommended a CT Scan. These reports have been referred to and considered in some detail above. Although she does not say so, these observations are consistent with the findings of Dr Brazenor and Dr Griffith that the current problem the Applicant experiences at L5/S1 developed on or about 2007 and not as a result of the 1997 motor vehicle accident.
The Tribunal accepts Dr Griffith’s opinion that on the basis of the history given to him by the Applicant it is virtually certain that she did not have an irritative neuropathy, or significant disc protrusion prior to 2006. The Tribunal also accepts his observations that had the Applicant suffered the symptoms of a significant disc lesion at the time of the 1997 motor vehicle accident she would certainly have been aware of it. Her inability to recall to Dr Griffith what her initial symptoms were is consistent with his findings that she did not suffer a significant disc lesion or intrusion at the time of the 1997 motor vehicle accident. Once again, the Tribunal repeats its observations about the Applicant’s credibility and accepts that Dr Griffith accurately recorded the history provided to him by the Applicant.
Again, the Tribunal accepts Dr Griffith’s conclusion that the disc lesion was the principal contributing factor to the Applicant’s current symptoms which have been slowly progressing since its onset in mid-2006. He concluded that the disc lesion which developed in mid-2006 and which has progressed since that date is currently responsible for her symptoms. The disc lesion which occurred in 2006 displayed typical symptoms, whilst the Applicant’s entire clinical history prior to that date did not reveal such symptoms. Also, as he observed that because the Applicant was asymptomatic for months at a time before, he concluded that this suggests that her earlier symptoms were not of major significance. These are other reasons for preferring his opinion over those advanced by the Applicant.
For the sake of completeness, it should be repeated that for the reasons articulated in the previous section under the heading “Consideration of expert evidence”, the Tribunal does not accept the opinions of Mr Bittar and Mr D’Urso on this question.
By reason of the foregoing matters the Tribunal determines that the Applicant does not continue to suffer the effects of a compensable injury, being the soft tissue injury of lower back, neck, shoulder and both wrists sustained in a motor vehicle accident on 11 June 1997.
THE ISSUE OF REASONABLE TREATMENT
Although the Tribunal has concluded that the Applicant’s current lower back conditions from the L5/S1 were not caused by the 1997 motor vehicle accident, it will consider whether the treatment claimed by her is reasonable in the circumstances within the meaning of section 16 of the SRC Act.
The matters to be considered by the Tribunal when addressing this issue have been the subject of much consideration not only by this Tribunal but also in several court decisions. They need not be analysed in any significant detail as they are hardly controversial. Considerations relevant to the reasonableness of treatment include the following:
(a)the benefit of the treatment to the injured worker;
(b)the long-term effects of the treatment centre;
(c)whether the treatment is likely to cure the injury or will significantly reduce its effects;
(d)whether the treatment maintains the status quo; and
(e)the cost of ongoing treatment.
The Tribunal must determine whether the relevant treatment was reasonable in the circumstances facing the Applicant. Reasonable for one party in the circumstances of that person may not be reasonable treatment in the circumstances of another person suffering the same affliction. Gray J in Jorgensen and Commonwealth[127] said, in relation to section 16(1):
“The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation.”
[127] (1990) 23 ALD 321.
In terms of what is reasonable treatment within the meaning of section 16 of the SRC Act, the Clinical Framework assumes significant relevance.[128] Treatment that conforms with the Clinical Framework principles is more likely to be considered reasonable in the terms of section 16.[129]
[128] See for instance Bayani and Australian Postal Corporation [2015] AATA 342.
[129] Topping and Comcare [2015] AATA 525.
In addition to these matters, the question of what is described as the “Cost/Benefit” analysis arises under section 16 of the SRC Act. Several authorities have held that treatment may be found to be unreasonable because anticipated therapeutic benefit does not justify the cost involved. In Comcare v Holt,[130] Mansfield J found that it is plain enough that sometimes proposed therapeutic treatment will be unreasonable because there is some alternative treatment available with potentially similar benefits at a lesser cost. The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant.
[130] (2007) 94 ALD 576.
The Respondent also referred to the notion of “shifting reasonableness”. This is a concept that is frequently applied to therapy or treatment such as physiotherapy, chiropractic and allied health care services such as acupuncture and massage. Where there has been a protracted course of treatment and where such treatment was initially reasonable, there may be a point reached where it ceases to be reasonable. This is a perfectly comprehensible concept. Therefore, treatment that may initially have been reasonable can in the long-term become unreasonable.[131]
[131] The Respondent referred the Tribunal to several previous decisions of the Tribunal concerning this topic. They will not be referred to in their entirety. However, by way of example a useful and accurate statement of this concept relevant its application was provided by Senior Member Tavoularis in Blackwell and Comcare [2017] AATA 1357 at [18]-[19].
The Applicant in her several submissions concerning this issue has identified several benefits that the treatment to date and the course of proposed treatment have given.[132] These include but are not limited to being able to resume full-time employment, avoiding surgery and avoiding the necessity of pain relief medication. She also points to treatment reducing over time and with ongoing treatment of what she asserts is approximately $2,000 per year it is comparatively cheap in the scheme of things.
[132] The Applicant’s several submissions are referred to in particular as very lengthy reference is made in their entirety to her submissions in reply to the Respondent's final submission of 21 August 2020 under the heading "TREATMENT" commencing at page 122 of 198.
The Tribunal concludes that continuing chiropractic, massage and acupuncture treatments in the Applicant’s circumstances are not reasonable within the meaning of section 16 of the SRC Act. There are several reasons for this which will be articulated in subsequent paragraphs.
The number of occasions on which treatment has been undertaken and the time span over which this occurred is manifestly excessive. It should be recalled that there have been in excess of 530 consultations by the Applicant with the relevant healthcare professionals over a period of approximately 20 years. As was noted by Dr Brazenor, the Applicant’s condition has not improved. In terms of the general factors identified above, the very best benefit of such treatment to the Applicant is questionable. The long-term effect has been negligible. Indeed, Dr Brazenor goes so far as to say that chiropractic treatment has absolutely no positive effect on the condition being treated. Nor will all the proposed forms of treatment have any positive effect on chronic back, neck and bilateral shoulder pain. Treatment has not cured the injury or significantly reduced its effects.
In terms of both the question of objectivity and weighing up the benefit of the treatment against the cost of obtaining it and any other treatment available, it cannot be justified. There was evidence from Dr Brazenor that there was an alternative approach to treating the Applicant’s condition by walking, being careful as to how she sits and attempting to minimise or eliminate entirely the activities of bending and twisting at the waist. It also must be reiterated that he opined that physiotherapy, chiropractic, osteopathic, yoga and many activities in the gym could exacerbate a spinal condition and should be avoided. He emphasised that the only back therapy that is really effective is walking. This program that Dr Brazenor recommended was given a good prospect of providing long-term resolution and is clearly much less costly than the treatment proposed and the treatment to date.
It should also be reiterated with respect to chiropractic treatment that Dr Brazenor firmly expressed the opinion that manipulation of lower back injuries should be avoided. He stated that chiropractic treatment undoes the natural healing. The spine stops healing if it is assaulted. He was quite adamant that appropriate steps such as avoiding bending and taking gravitational compression off the spine, coupled with walking in an appropriately fashioned program, would lead someone to be pain-free over a time span of between approximately six months and two years. It was his opinion that the chiropractic treatment undertaken by the Applicant had prolonged her symptoms for 20 years. Both in terms of the general factors and a cost/benefit consideration, this is a powerful reason justifying the conclusion of the Tribunal that the proposed treatment sought is not reasonable.
Dr Brazenor also observed from an examination of the Applicant’s scans that had she been treated appropriately by the time of Dr Henry’s report in February 2019, she would have been pain-free. His comments that the Applicant was being “held hostage” by the chiropractor (he used other terms which have already been recorded in these reasons and need not be repeated) is also another powerful reason justifying the conclusion of this Tribunal that the proposed treatment sought is not reasonable.
In the context of reasonableness or shifting reasonableness, Dr Griffith expressed the opinion that physiotherapy and chiropractic treatment should be reserved for acute exacerbations and not administered on a routine basis over a period of months or years. He also expressed the opinion that if such chiropractic treatment was ineffective over a limited period the role of the chiropractor (or the physiotherapist) should be reassessed. This opinion is consistent with the notion of shifting reasonableness. He clearly considered that such treatment should not continue indefinitely. If the Applicant’s symptoms had not been resolved after a comparatively short time, certainly it would seem, after no more than a few months, that it was appropriate to investigate and apply other treatment options.
Whilst of lesser importance in the context of reasonableness of treatment or the notion of shifting reasonableness, Dr Griffith’s opinions concerning other means of treatment should not be overlooked. The four treatment recommendations he made are referred to and repeated. The prescription of a more effective analgesic, trial of a back support, further radiology and perineural infiltration of steroid under x-ray control had been suggested by Mr D’Urso previously. Once again, they certainly warrant investigation, and if appropriate, they warrant being undertaken. They do seem objectively reasonable and on a cost benefit basis more likely than not to be further and better options for treatment.

As noted above, Mr D’Urso made no strong recommendation concerning the resort to, or necessity of chiropractic treatment, and its frequency. It does not appear that he was given accurate details of the frequency of the Applicant’s chiropractic treatment at the time he prepared his reports. This weighs against the Applicant’s contention that chiropractic treatment is reasonable and necessary.
Another relevant factor in this consideration arises from the evidence of Mr Papagoras which has been referred to earlier. A consistent theme of his evidence was that the proposed treatment was not consistent with the applicable guiding principles of the Clinical Framework. He observed that as far as he is aware, there is no evidence that supports ongoing, indefinite treatment such as chiropractic, acupuncture and massage for the management of chronic lower back conditions. He expressed the opinion that the treatment therefore is not reasonable in the circumstances, and that the Applicant should continue in self-management as a reasonable solution for managing her present conditions. He also observed that given the substantial and protracted treatment over roughly 20 years it would be reasonable to expect that the Applicant could self-manage her condition and would not require the lengthy “tapering” suggested by the chiropractor.
The Tribunal found Mr Papagoras to be a very fair and impressive witness whose evidence was accepted by the Tribunal.
Whether the treatment may have been reasonable initially, it has by now for the reasons articulated in this section, ceased to be reasonable. Therefore, the notion of shifting reasonableness can be applied to this matter to reach such a conclusion. After a total treatment involving approximately up to 530 consultations[133] over a 20-year time span both in terms of objective consideration and on a cost/benefit analysis such treatment has well and truly become unreasonable.
[133] The Tribunal refers to the contents of footnote 108 above concerning the exact number of consultations and the discrepancy in numbers in the evidence before the Tribunal. Whichever number is relied upon, on any objective consideration, it is a significant number.
The Tribunal considers that as it has accepted the expert opinions particularly of Dr Brazenor and also Dr Griffith, they must prevail. It does not see that any of the other material before it nor the contentions of the Applicant establish that continuing treatment by way of chiropractic, acupuncture or massage as sought are reasonable within the meaning of section 16 of the SRC Act.
If chiropractic treatment was reasonable initially for the purposes of some form of pain relief, the Tribunal considers that it is most likely that by 2017 it ceased to be so. In reaching this conclusion the Tribunal relies upon the entries in Dr Henry’s clinical notes together with the evidence of Dr Brazenor that there were other means of being able to treat the applicant which were more likely to have produced a pain-free outcome if clearly a substantially reduced cost.
In reaching this conclusion it should be noted that notwithstanding that the reviewable decision accepted liability for treatment between March and May of 2017, in relation to its decision making under sections 16 and 19 of the SRC Act, the Tribunal has the power to make a finding of fact contrary to a finding of fact made in an original decision under section 14 even where the section 14 decision remains in force (see Telstra Corporation Ltd v Hannaford[134]).
[134] (2006) 151 FCR 253 (Hannaford).
As was said in Hannaford, such findings of fact effectively undercut the necessary findings of fact made in the initial or original decision of Comcare to accept liability for the Applicant’s claim. Also, in such circumstances the Tribunal is empowered to do so where the original decision remains in force to the extent it has not been actually reversed and has not been the subject of any adverse review per se by the Tribunal.
Therefore, the Tribunal determines the second and third issues against the Applicant.
CONCLUSION AND DECISION
By reason of the foregoing matters the Tribunal affirms the decision under review.

I certify that the preceding three hundred and fifty-six (356) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.......[sgd].................................................
Associate
Dated: 23 March 2021

Date of hearing:

Date of final submissions:

14, 15 and 16 July 2020

25 August 2020

Applicant: By video

Counsel for the Respondent: Mr Roy Seit

Solicitors for the Respondent: Sparke Helmore Lawyers

Year.	Number of Consultations.
2003	66
2004	30
2005	36
2006	15
2007	22
2008	30
2009	18
2010	10

Date of hearing: Date of final submissions:	14, 15 and 16 July 2020 25 August 2020
Applicant:	By video
Counsel for the Respondent:	Mr Roy Seit
Solicitors for the Respondent:	Sparke Helmore Lawyers