Molina and Comcare (Compensation)

[2018] AATA 345

Molina and Comcare (Compensation) [2018] AATA 345 (28 February 2018)

Division:GENERAL DIVISION

File Number(s):      2015/5725 and 2016/2998

Re:Naomie Molina

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:28 February 2018

Place:Brisbane

The decisions under review are affirmed

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – claim for compensation for lower back injuries – accepted conditions – whether applicant continues to suffer from the effects of compensable injury – whether applicant presently entitled to medical expenses or incapacity payments – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES
Comcare v Power (2015) 238 FCR 187

SECONDARY MATERIALS

Guide to the Assessment of Permanent Impairment (1^st edition)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

28 February 2018

BACKGROUND

1. Naomie Malina (‘the applicant’) sustained a lower back injury on the journey to her workplace in 1994. She then sustained a further lower back injury moving stationery at her workplace in 1996. At the time of these incidents the respondent accepted liability for both injuries under the Safety, Rehabilitation and Compensation Act 1988 (the Act).

2. On 26 June 2015 the respondent made a determination that the applicant was not presently entitled to medical expenses or incapacity payments for her accepted 1996 injury, and following a request for reconsideration by the applicant, the respondent issued a reconsideration decision on 3 September 2015 affirming the determination.[1]

   [1] Exhibit A, T-documents, T1 at p. 14, MRI Report of Dr Iain Stewart, dated 27 March 2001.

3. On 8 February 2016 the applicant applied to the respondent to reopen her 1994 injury claim as an accepted injury that may be contributing to her current symptoms in addition to the 1996 injury.

4. On 28 April 2016 the respondent issued a determination denying medical expenses and incapacity entitlements under section 16, 17 and 20 of the Act in relation to the 1994 injury and the applicant requested a reconsideration of the determination. On 27 May 2016 a reconsideration decision was issued by the respondent affirming the determination decision.[2]

   [2] Exhibit B, Supplementary T-documents, Vol 1, ST12 at p. 200, Request for Reconsideration, dated 6 May 2016.

5. The applicant seeks review in this Tribunal of the reconsideration decisions of the respondent dated 3 September 2015 and 27 May 2016.

   HISTORY

6. The applicant was employed by the Department of Transport and Communications when she injured herself by tripping on a paver, jarring her back on the way to the workplace in 1994. The applicant then worked for the Department of Communications and the Arts when she injured her back moving stationery in 1996.

   LEGISLATIVE FRAMEWORK

7. Section 14 of the Act establishes the liability of the Commonwealth to pay compensation in regards to an injury suffered by an employee if the injury results in death, incapacity for work or impairment.

8. Section 16  of the Act provides that where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

   EVIDENCE

9. There is a significant amount of evidence that has been gathered from medical professionals including multiple general practitioners, orthopaedic specialists and neurologists since the original injury occurred in 1994. A summary of the most relevant information relied upon by each party appears below.

   Dr Denis King

10. Dr King completed a report dated 4 October 1995 with regard to the applicant’s 1994 injury. He summarised that the applicant’s lower back pain had decreased in the course of time and that there has been evident improvement. Dr King stated:[3]

    “Residual low back symptoms relate to the injury suffered on 28 February 1994…

    Ms Culverwell is fit to carry out all aspects of her employment…

    The prognosis is good in regard to both the low back and cervical region with gradual improvement and resolution of symptoms over the next 6 to 12 months”

    Dr Robin Jackson, Orthopaedic Surgeon

    [3] Exhibit B, Supplementary T-documents, Vol 1 ST4 at pp. 171-172, Report of Dr Denis King, dated 4 October 1995.

11. Dr Jackson completed a report on 30 April 1999 after the applicant was referred for medical re-assessment. He made an assessment that:[4]

    “Ms Culverwell appears to have a chronic soft tissue injury. The aetiology appears to involve an initial injury on 28 February 1994 and the injury of 31 July 1996 appears to have been an aggravation.

    It is very difficult to relate this injury to her very prolonged period of disability and to the alleged effects on her daily life.

    … it is difficult to explain this condition [soft tissue problems from 28 February 1994] being present on 31 July 1996 due to the fact that the natural history of such soft tissue injuries is usually complete resolution, particularly bearing in mind that Ms Culverwell’s injury does not appear to have been severe.

    It is my opinion that the aggravation was temporary. In effect, I consider that it would have settled within a period of six weeks.”

    [4] Exhibit A, T-documents, T7 at pp. 36-38, Report of Dr Robin Jackson, Consultant Orthopaedic Surgeon, dated 30 April 1999.

12. Dr Jackson considered that the overall percentage of whole person impairment resulting from the 1996 injury was 0% and stated that if there was any overall permanent impairment relating to the applicant’s lower back from the 1994 injury, this could be reduced by weight reduction and a fitness programme for cardiovascular fitness and specific exercises for the applicant’s back and abdominal muscles.[5]

    Dr Hugh Weaver, Orthopaedic Surgeon

    [5] Exhibit A, T-documents, T7 at p. 40, Report of Dr Robin Jackson, Consultant Orthopaedic Surgeon, dated 30 April 1999.

13. At the request of the solicitors for the applicant, Dr Weaver reported on 2 September 1999[6] that the applicant’s plain radiographs of the lumbar region performed on 1 March 1994 showed minor narrowing involving the lumbosacral disc space in isolation.

    [6] Exhibit A, T-documents, T9 at pp. 43-50, Report of Dr Hugh Weaver, Consultant Orthopaedic Surgeon, dated 2 September 1999.

14. Dr Weaver commented that it was his impression that the radiologist who performed a CT scan of the lumbar region on 20 January 1995 had under-reported and that Dr Weaver had the “distinct impression that there were small elements of intervertebral disc bulging involving both the L4/5 and the L5 S1 intervertebral discs; there was also an element of some narrowing involving the outside intervertebral foramen at L4/5.”[7]

    [7] Ibid at p. 46.

15. In performing his examination, Dr Weaver found the applicant demonstrated an overall generalised mild limitation of cervical spine movements and that at this point the applicant disclosed she had “sustained a previous incident which had affected her neck.”[8]

    [8] Ibid.

16. Dr Weaver concluded that the applicant’s impairment can be represented by a 10% loss of whole body function within level 3 of Table 9.6 of the Guideline to Assessment of Permanent Impairment (the Guide, 1^st edition was current in 1999). Dr Weaver states that if the applicant were to be assessed from the viewpoint of impairment for industrial purposes then the applicant would be regarded as exhibiting an ongoing 15% to 20% impairment of thoraco-lumbar spine function in isolation.[9]

    [9] Exhibit A, T-documents, T9 at p. 48, Report of Dr Hugh Weaver, Consultant Orthopaedic Surgeon, dated 2 September 1999.

17. Dr Weaver also states:[10]

    “I have obviously expressed a different opinion from Mr Jackson with regards to the character of Ms Culverwell’s ongoing level of impairment. I refer once again to the proposition that this woman did present with substantial evidence from her history, with both clinical signs and CT evidence that she is suffering from a degree of lower intervertebral disc degeneration. Although I accept the proposition that this pathology is at least in part age and weight related, I continue to have no difficulty with the proposition that Ms Culverwell can argue that her ongoing problem is referable, at least in part, to the effects both of her original employment injury (as sustained back in February 1994) and also the effects of the employment with which she has been persevering subsequently…

    I would tend to dispute the proposition that Ms Culverwell is suffering from a soft tissue condition which would be expected to resolve completely.”

    Dr Maria Cox, General Practitioner

    [10] Ibid at p. 49

18. Dr Cox provided a report dated 7 September 1999 in which she disagreed with Dr Jackson’s opinion and believed that the applicant had a chronic soft tissue injury to the lower back resulting in a chronic pain state and was a direct result of the injury suffered by the applicant in July 1996.[11]

    [11] Exhibit A, T-documents, T10 at p. 52, Report of Dr Maria Cox, General Practitioner dated 7 September 1999.

19. Dr Cox provided a further report on 22 July 2002 where she outlined essentially that her initial opinion remains unchanged and her prognosis is that the applicant’s condition is chronic.[12]

    Dr Derrick Billett, Consultant Orthopaedic Surgeon

    [12] Exhibit A, T-documents, T17 at pp. 77-80, Report of Dr Maria Cox, General Practitioner, dated 22 July 2002.

20. Dr Billett performed a physical examination, and viewed the lumbar spine x-ray of March 1994 stating “disc spaces are well preserved. There is slight facet joint arthropathy at the L5/S1 level.” He also viewed the CT scan of the lumbar spine performed in January 1996, noting that “there is no disc prolapse or disc bulge. There is minor facet joint arthropathy at the L5/S1 level. There is no central canal or lateral recess stenosis”. He opined in his report dated 4 February 2000:[13]

    “The physical examination has not produced any clinical evidence of an intervertebral disc prolapse or nerve root irritation in relation to her cervical, thoracic or lumbar region. Although she may have initially sustained a soft tissue injury to her lumbar region in February 1994, I consider that the soft tissue injury has resolved completely…

    I would attribute Ms Culverwell’s ongoing symptoms to underlying pre-existing degeneration in her cervical and lumbar region. These changes are age-related and did not occur during the course of her employment, but were aggravated during the course of her work and this aggravation is still ongoing.”

    [13] Exhibit A, T-documents, T12 at p. 60, Report of Dr Derrick Billett, Consultant Orthopaedic Surgeon dated 4 February 2000.

21. Dr Billett completed a further report dated 14 March 2000 in which he stated that, as the applicant had pre-existing constitutional degenerative changes it was possible that the applicant may have developed pain irrespective of employment however, that:[14]

    “… although there is a pre-existing condition, it does not follow that the individual will automatically develop pain. Individuals could remain symptom-free, despite the underlying degenerative changes, constitutional in type and age-related. Likewise, they could develop pain either from specific incidences or spontaneously.”

    [14] Exhibit A, T-documents, T13 at p. 66, Supplementary Report of Dr Derrick Billett, Consultant Orthopaedic Surgeon dated 14 March 2000.

22. While Dr Billett concluded that on that basis it is impossible to provide an opinion on whether the impairment would have occurred, or at some later point, or been significantly less had it not been for the work performed in the course of her employment, he does say:[15]

    ”It should be appreciated that although Ms Culverwell may have initially sustained a soft tissue injury in the early years, she has continued working and has in fact continued to exacerbate the underlying degenerative changes, age-related and constitutional in type, both her neck and lumbar region, and that is the connection between her disability or impairment and her work.”

    [15] Exhibit A, T-documents, T13 at p. 66, Supplementary Report of Dr Derrick Billett, Consultant Orthopaedic Surgeon dated 14 March 2000.

23. Dr Billett concluded that there would be 10% impairment attributable to the applicant’s back using Table 9.6 of the relevant Guide.[16]

    Dr Thomas Davis, Orthopaedic Surgeon

    [16] Ibid at p. 65.

24. Dr Davis conducted a physical examination of the applicant in 2002.[17]  Upon examination, he found a flattening of the normal lordosis of the lumbo-sacral spine, without evidence of muscle wasting or muscle spasm. He also reported a reduction to approximately 50% of all ranges of movement of forward flexion and backward and lateral extension, and rotation to right and left.

    [17] Exhibit A, T-documents, T16 at p. 71, Report of Dr Thomas Davis, WorkCover Approved Medical Specialist dated 13 March 2002.

25. In his diagnosis, Dr Davis stated that:[18]

    “The claimant may well have suffered a musculo-ligamentous injury affecting the paravertebral lumbar muscles as a result of the incident…. The condition however         is superimposed on pre-existing degenerative changes to       particularly affect the L5/S1 level.”

    [18] Ibid at p. 74. 

26. Dr Davis was of the opinion that the applicant’s ongoing symptoms are due to the degenerative changes which are constitutional and not work related. He further determined that the incident in 1996 was not responsible for her current condition; rather the degenerative constitutional changes at the L5/S1 level.[19]

    [19] Exhibit A, T-documents, T16 at p. 75, Report of Dr Thomas Davis, WorkCover Approved Medical Specialist dated 13 March 2002.

27. Dr Davis concluded that while the nature and condition of the applicant’s employment may have aggravated the degenerative condition, any aggravation ceased in September 2001, being the time that the applicant ceased her employment.[20]

    Dr Geoff Broad, General Practitioner

    [20] Ibid.

28. Dr Broad examined the applicant in 2014, and diagnosed her with “L5S1 disc degeneration with desiccation and height loss with a small annulus tear… and significant multilevel facet joint degeneration, worse at L4/5.[21]”

    [21] Exhibit A, T-documents, T27 at p. 99, Report of Dr Geoff Broad, General Practitioner dated 25 August 2014.

29. Dr Broad further reported:[22]

    “[The applicant’s] current condition is related to the incident in her previous         Commonwealth employment, with no other known contributing factors. Her condition has deteriorated over time, and will continue to do so due to the nature of           the underlying condition and natural ageing.”  

    [22] Ibid.

30. Dr Broad suggested that had the incident in 1994 not taken place as and when it did, it was unlikely that the applicant would suffer from her current symptoms, or similar to her current symptoms, at this point in time. Dr Broad concluded that the applicant’s condition is chronic, and likely to deteriorate in the longer term.[23]

    [23] Ibid.

31. Dr Broad compiled a further report in 2015 in response to the report issued by Dr Sharwood, and confirmed that his opinion was unchanged from 2014.[24] He concluded that the applicant was fit for modified duties, and that while the applicant is unlikely to return to fulltime work, she would be able to work for 20 hours a week.

    Dr Peter Sharwood, Orthopaedic Surgeon

    [24] Exhibit A, T-documents, T33 at p. 124, Report of Dr Geoff Broad, General Practitioner dated 21 April 2015.

32. Dr Sharwood conducted a physical examination on the applicant in 2015, and in relation to her back, reported that she could flex to 40 degrees and extend to 10 degrees, with lateral flexion and rotation to 40 degrees.[25] He also reviewed the MRI of 7 January 2011, and concurred with the report describing evidence of lumbosacral disc desiccation and minor changes of facet joint arthropathy. Dr Sharwood noted that x-ray images taken in 2007 revealed no evidence of any lumbar spine pathology.

    [25] Exhibit A, T-documents, T31 at p. 112, Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 10 March 2015.

33. Dr Sharwood diagnosed the applicant with chronic degenerative lumbosacral disc disease, consistent with her age. He was of the opinion that the applicant’s employment did not contribute to her current condition; that her initial condition has since been superseded by degenerative lumbar spondylosis.[26]

    [26] Ibid at p. 113.

34. While Dr Sharwood agreed with Dr Weaver’s conclusion that the injury sustained in 1996 amounted to a 10% aggravation of a pre-existing degenerative condition, he concluded that this aggravation has now ceased, and has been superseded by degeneration related to the aging process.[27]

    [27] Ibid at p. 114.

35. Dr Sharwood provided a further report on 2 November 2016,[28] where he disagreed with the opinions of Dr Broad and Dr Campbell; reiterating his opinion that the applicant’s current symptoms “relate entirely to degenerative disc disease at the L5/S1 level and facet joint arthropathy at the L4/5 level.”[29]  

    [28] Exhibit B, Supplementary T-documents, Vol 2 ST20 at p 236, Supplementary Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 5 October 2016.

    [29] Ibid at p. 237.

36. Dr Sharwood further disputed the diagnoses made by Dr Broad and Dr Campbell, writing:[30]

    Both Doctors Broad and Campbell assume that the disabling low back pain          suffered by Ms Molina relates to the injuries in 1994 and 1996 however there is no           scientific evidence on which this assumption can be based.

    …

    In [Dr Campbell’s] conclusions … he says that on the balance of probabilities the injuries in 1994 and 1994 [sic] sustained in the course of her employment caused         an injury but offers no scientific evidence to associate those events with the        presence of age related degenerative changes.

    [30] Exhibit B, Supplementary T-documents, Vol 2 ST20 at p. 237-239, Supplementary Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 2 November 2016.  

37. Dr Sharwood considered that the symptomology reported by Dr Campbell was consistent with age related degenerative change, and that the cause of the applicant’s low back pain, as described by Dr Campbell, was age related degenerative changes in the lumbar spine. As Dr Broad’s conclusions were based on the same premise, he disputed those findings in the same fashion.[31]

    [31] Ibid at p 239.

38. Upon reviewing the medical imagery records, Dr Sharwood concluded:[32]

    In my opinion, there is conclusive evidence that images taken on 1 March 1994    and recorded… in the report by Dr King dated 5 October 1995, show no obvious        abnormality.

    A CT scan of the lumbar spine taken on 20 January 1995 is reported as showing no abnormality. Ms Molina has had images taken in 2008 and 2011 which show          changes consistent with progressive degenerative lumbar spondylosis. In 2008    degenerative disease of the L5/S1 disc was noted with dehydration and         desiccation, and in 2011, facet joint arthropathy at the L4/5 level was noted. This,            in my opinion, clearly follows a natural aging process.

    Dr Scott Campbell, Neurosurgeon

    [32] Ibid.

39. Dr Campbell interviewed and examined the applicant in 2016. He reported that the examination revealed decreased flexion and extension of the lumbar spine by 30-50%, with asymmetry of movement and central tenderness and guarding.[33] Dr Campbell determined that the lower limb power, reflexes and sensation were normal. He also reviewed the MRI scan of 7 January 2011, and determined that it evinced age-degenerative changes with no evidence of nerve root compromise. He also noted that Dr Sharwood’s report of 10 March 2015 diagnosed the applicant with degenerative lumbar spondylosis with no ongoing work related incapacity.

    [33] Exhibit F, Summons Records, Annexure B22, Report of Dr Scott Campbell dated 12 April 2016. 

40. Dr Campbell diagnosed the applicant as having musculoskeletal injury lumbar spine, which he accepted as being sustained at work in February 1994 and July 1996. He was of the opinion that, on the balance of probabilities, the injuries obtained through the 1994 and 1996 incidents are the significant contributing factors to the ongoing symptoms, and reported that the ongoing chronic lower back pain remains work related from the 1994 and 1996 incidents. He concluded that the applicant’s condition has reached maximum medical improvement and that the current symptomology and restrictions are likely to persist indefinitely.[34]

    [34] Ibid.

1. Dr Campbell provided a further report on 25 March 2017 in response to the supplementary report by Dr Sharwood, and stated that his diagnosis, prognosis and opinion of the applicant’s condition remained unchanged from his 2016 report.[35]  However, he concluded his report by commenting that while the MRI scan of 7 January 2011 showed degenerative changes with no evidence of nerve root compromise, it could not be concluded that the degenerative changes were symptomatic.

   [35] Exhibit D, Dr Scott Campbell Reports at p. 2 dated 25 March 2017.

   SUBMISSIONS

2. The issues in contention can be summarised as follows:

   (a)Is the applicant entitled to ongoing compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Act in respect to her accepted condition of musculo-ligamentous strain to the lower lumbar region, sustained on 31 July 1996, from 26 June 2015?

   (b)Is the applicant entitled to ongoing compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Act in respect to her accepted condition of soft-tissue injury/musculo-ligamentous strain to the lower lumbar back region, sustained on 28 February 1994, from 28 April 2016?

3. The applicant submits that she remains entitled to compensation under sections 16 and 19 of the Act for medical expenses and incapacity benefits for her accepted injuries from 26 June 2015.

4. The applicant submits that the respondent is liable to pay compensation pursuant to section 16(1) of the Act in relation to the medical expenses arising from medical treatment, specifically physiotherapy treatment, sought in relation to her accepted injuries.[36] 

   [36] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions at [19], dated 24 January 2017

5. The applicant submits that the physiotherapy obtained from 26 June 2015 in relation to the 1994 and 1996 injuries was reasonable in the circumstances. The applicant submits that she obtains “significant therapeutic benefits from her physiotherapy treatments and would find her symptoms unmanageable without it.”[37] She further submits that the medical treatment is obtained solely in relation to the accepted injuries, rather than any degenerative change.

   [37] Ibid at [20].

6. The applicant submits that the respondent is liable to pay incapacity payments pursuant to section 19 of the Act. The applicant submits that the accepted injuries resulted in an incapacity for work from 26 June 2015. The applicant submits that none of her incapacity is attributable to degeneration, but that if the Tribunal finds that degeneration contributes to her incapacity, that she is not precluded from succeeding because it is not the sole cause of her incapacity. The applicant submits that the incapacity resulting from the injuries has continued since the date of injury; not ceasing at any point in time, and accordingly, any degeneration does not break the chain of causation between her accepted injury and her incapacity for work.[38]

   [38] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions at [27], dated 24 January 2017

7. The applicant further submits that while she may have a residual capacity to work a maximum of 15 hours per week, on the basis of her location, age, skill-set and ergonomical needs resulting from her injuries, she is unable to partake or earn in any suitable employment.[39]

   [39] Ibid at [29].

8. The respondent contends that the applicant does not continue to suffer the effects of either the 1994 injury or the 1996 injury, and that she does not require any ongoing medical treatment as a result of the injuries. The respondent further submits that the applicant is not incapacitated for work as a result of either injury.

9. The respondent contends that the effects of the applicant’s injuries in 1994 and 1996 have since ceased. Specifically, the respondent contends that “the applicant’s lumbar spine showed no abnormality after the 1994 injury, and the 1994 injury resolved by about April or October 1996.” The respondent further submits that the 1996 injury temporarily aggravated the 1994 injury, but the 1996 injury was resolved by September or October 1996. The respondent submits that the applicant suffers from an underlying constitutional degenerative condition, lumbar spondylosis, which is attributable to all symptoms from 1999.

10. In the alternative, the respondent submits that the applicant’s treatment is not obtained in relation to the 1994 or 1996 injuries, and that the present treatment is not reasonable because it is not required.

11. The respondent finally contends that the applicant’s incapacity relates only to her lumbar spondylosis.

    CONSIDERATION

12. I have to determine whether the applicant continues to suffer the effects of her accepted injuries.

13. In 1994 the applicant injured her lower back when she tripped on a paver on her way to work.  She experienced an immediate onset of lower back pain. Liability was accepted for a musculoligamentous strain of her lower lumbar region arising out of this incident. In 1996 she sustained a further injury to her lower back whilst moving boxes of stationery at work. Liability was also accepted for this musculoligamentous strain to her lower lumbar region. The applicant states that before the 1994 injury she had not experienced any injuries or symptoms with her lower back. The applicant claims that since her 1994 injury she has continued to experienced symptoms, including pain, discomfort and decreased flexibility and mobility in her lower back, which have not resolved. 

14. The applicant has stated that the symptoms have continued since about 1994 and have largely remained the same over time. The applicant stood by her statement that she has experienced pain since her 1994 injury and had not experienced any lower back pain before that time. The applicant states that her pain levels have remained the same and that there was no family history of back pain.

15. The applicant confirmed that she continues to attend physiotherapy sessions and attends fortnightly appointments involving massage and the use of the TENS machine. Her physiotherapist has suggested that she do a range of exercises and encourages her to walk at least four to five times a week to help strengthen her back muscles. Her physiotherapist has given her a plan for her treatment and once a month he will give her acupuncture on my back if it is very tense. She stated that she performs her exercises and walking regime daily. Her physiotherapist also checks her spine to make sure that it is aligned. She also stated that she does not recall having missed a physiotherapist appointment.

16. The applicant stated that she has been looking for employment and registered with two website agencies but has not had any success with either of those. She has also looked in the local paper. She has not been able to find any suitable jobs.

17. During cross-examination the applicant was referred to her claim form in respect of her trip injury in 1994 and her claim form in respect of her back injury in 1996. She agreed that those forms were filled out very soon after she had sustained those two incidents and that the tribunal can accept that those forms are an accurate summation of what it is that she said happened to her on those two particular occasions.

18. When the applicant was directed to her claim form of the 1994 injury, she agreed that she tripped and stumbled but did not fall to the ground. It was put to the applicant that in more recent times doctors had understood her history to be that she fell to the ground and she agreed that she did not fall to the ground.

19. The applicant confirmed that in her claim form in respect of the 1996 incident she had stated that she had been unpacking eight boxes of stationery and there was a development of pain over the course of the morning in her back. It was put to the applicant that the histories that the doctors had been given in more recent times suggest that there was a sudden and dramatic onset of pain in 1996, and that they would have misunderstood the history of slow onset. The applicant responded: “The pain came on and it did come on rather suddenly, yes.  I felt it more after I had finished unpacking those boxes, that's when the pain level increased”. It was put to the applicant that when she filled out her claim form for the 1996 incident in September 1996 in response to the question: “When did your injury happen or when did you notice the illness?” she answered: “AM slowly during morning”.[40] She confirmed that she remembered writing that during the morning of the incident.

    [40] Exhibit A, T-Documents, T5 at p. 25, Claim for Rehabilitation and Compensation dated 12 September 1996.

20. The applicant confirmed that between the trip injury in 1994 and the stationery unpacking injury in July of 1996 she also had a claim with Comcare for pain arising in her neck and shoulders and that for a period of time she received treatment for her neck. She confirmed that she did not specifically remember the claim for your neck and shoulders.

21. The applicant was asked to confirm that her evidence to the tribunal was that the pain has remained the same since 1994. She answered that the pain in her back has been present since 1994 and has fluctuated over time. It was put to the applicant that at certain times her pain has improved considerably and then worsened again, however she responded: “No, it has not improved considerably at all.  It has stayed a constant and with varying levels of pain”.

22. It was put to the applicant that in September 1996, she wrote a letter to Comcare which said that:[41]

    There has been a significant resolution of the symptom complex associated with   my injury of the lower lumbar region but there was still a residual element of pain,   which is exacerbated by everyday work related activities such as prolonged   periods of sitting and bending.

    [41] Exhibit B, Supplementary T-Documents, Volume II, ST16 at p. 215, ‘Request for Reconsideration of Claim 17944/02’ dated 27 September 1996

23. She stated that she did not remember writing that letter.

24. The applicant was asked if her back pain was exacerbated when she was more physically active, and she remarked that it depends on the type of physical activity undertaken.

25. The applicant confirmed that in 2008 her general practitioner, Dr Cox, referred her to Dr Govind, a pain specialist. A report of Dr Govind was tendered into evidence.[42]

    [42] Exhibit F, Summons Records, Annexure B2, Letter Dr Govind (of Canberra Hospital) to Dr Cox (of Spence Medical Centre) dated 8 October 2008.

26. The applicant agreed that Comcare had continued to pay for physiotherapy treatment which she had received for her back until 2015. She stated that she had been seeing the physiotherapist fortnightly and at various points in time she was seeing physiotherapists on a twice weekly basis. She stated that on occasion she would see physiotherapists on a weekly basis. When the applicant was asked if she agreed that in some years she didn't see a physiotherapist at all, she answered that she would not agree with that.

27. It was put to the applicant that Comcare's records indicate that she was not reimbursed for physiotherapy treatment in 2004, 2005, 2006 and 2007 and that reimbursement for physiotherapy treatment only recommenced in 2009. The applicant wouldn't say that that was not correct but she stated that she recalled having trialled chiropractic treatment for her back and naturopathic treatment which she believed were not covered by Comcare. It was put to the applicant that in the years 2004 to 2008, rather than getting physiotherapy, she was seeing a naturopath and/or a chiropractor. The applicant answered that she trialled treatment with a naturopath or a chiropractor to see if that would help.

28. It was then put to the applicant that in 2003, Comcare's records of reimbursements for her medical treatment show that they paid a series of invoices to Orchid Chiropractic.  The applicant confirmed that she attended that practice. The applicant agreed that she had been reimbursed for receipts between January and July in 2003. The applicant agreed that if Comcare’s schedule of treatment is accurate, then she was not obtaining physiotherapy for a period of approximately four years.

29. The applicant was asked about her statement in which she remarked “After the 1994 injury I went on reduced hours.”[43] It was put to the applicant, to which she agreed, that her core, or standard hours did not change; she just stopped attending more than her required hours, so she was not building up flextime. Her attention was again drawn to her statement where she had provided: “After the 1996 injury I was put onto work four days a week at seven hours 21 minutes a day.”[44]

    [43] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions at [15], dated 24 January 2017.

    [44] Ibid at [16].

30. The applicant was also referred to a report from Dr Jackson, an orthopaedic surgeon, who saw the applicant in 1999 and in his report said:[45]

    She is an administration officer and had usually worked 38 hours per week.  She informed me that she worked on a part-time basis for two months from November     1998 after which she returned to fulltime duties.  In early April 1999 she again            commenced part‑time work and she currently is working four days per week seven         hours 21 minutes per day.

    [45] Exhibit A, T-documents, T7 at p. 40, Report of Dr Robin Jackson, Consultant Orthopaedic Surgeon, dated 30 April 1999.

31. The applicant was asked whether she would agree, based on Dr Jackson's report, that the part-time work commenced in April 1999. The applicant stated that that was correct, in that she trialled fulltime work but was put on part-time hours when she found fulltime hours difficult. She confirmed that she had attempted to return to fulltime work after the incident.

32. Finally, the applicant confirmed that the main job that she was looking for was for an executive assistant role. The applicant was asked what locations she had been registering on the websites. She indicated that she would have a better chance of finding employment in Morayfield and Caboolture, as there would be more opportunities for part-time work there than what there would be on Bribie Island. The applicant confirmed that she hasn’t explored work opportunities within Brisbane itself and not in the Brisbane CBD. Upon being re-examined, the applicant was asked how far the drive is from where she lives to Brisbane in terms of minutes. The applicant presumed that it would take about an hour or more, depending on the traffic levels and that her best option would be to catch the train into the city.

33. Dr Peter Sharwood, an orthopaedic surgeon was called as a witness by the respondent. In evidence he confirmed that the contents and opinions expressed in his reports of 10 March 2015[46] and 2 November 2016[47]  are true and correct.

    [46] Exhibit A, T-Documents, T31 at p. 109-117, Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 10 March 2015.

    [47] Exhibit B, Supplementary T-Documents, Volume 2, ST20 at p. 236-241, Supplementary Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 2 November 2016.

34. Dr Sharwood was directed to his second report of November 2016 in which he referred to a chapter in an Australian Medical Association (‘AMA’) publication about the causation of spinal injuries.[48] Dr Sharwood was asked to explain the basis of his understanding of the relevance of that chapter for matters such as questions of causation and diagnosis. He answered that it was a meta-analysis of all the medical information available about this condition, which has taken into account many reports and papers on the causation of injuries. He remarked that the particular chapter, chapter 8, refers to the spine, and reviews and analyses the papers that have been written about that to try to determine what causes pathology.[49] Dr Sharwood stated that the publication was relevant to establish whether there was an academic basis to support his presumption in his first report that the applicant’s condition was in fact a degenerative condition that was causing her disability rather than being as a result of a specific injury on a particular date. He stated that 80 per cent of the population develop back pain during their life, and to relate it to a specific injury, there has to be an injury causing a pathology which is recognised within a reasonable time after the injury occurs.

    [48] Exhibit G, Eskay-Auerbach, M., and Talmage JB., AMA Guide to Evaluation of Disease and Injury Causation (2^nd edition, 2014).

    [49] Ibid at p. 185

35. Dr Sharwood was directed to his first report in which he referred to a lumbosacral strain that was sustained in the incident in 1996.  Dr Sharwood was then referred to Dr Campbell's reports in which he makes reference to a "chronic soft tissue musculoligamentous injury of the lumbar spine". Dr Sharwood was asked if there is a difference between how he had described this particular injury and how Dr Campbell has described it. He told the Tribunal that the difference was a matter of semantics, and that a lumbosacral strain is an event that occurs in a specific episode where there is nothing to suggest any major pathology at that time. He stated that the generally accepted recovery period for a lumbosacral strain was about three or four weeks. Dr Sharwood confirmed that there was an absence of any evidence of change in the pathology arising from that incident and that to have an ongoing complaint as a result of an injury; one would be able to identify pathology, such as a disc prolapse or something of that nature. He stated that he had referred to the magnetic resonance scan (‘MRI’) in 2008.

36. In cross-examination Dr Sharwood was asked whether he had regard to the applicant's statement in forming his views. He stated that he did not recall seeing this document, and that he only had regard to the materials referred to in the letters of instructions from the AGS.

37. Dr Sharwood was referred to his first report dated 10 March 2015[50] in which he diagnosed Ms Molina with degenerative lumbar spondylosis which he agreed, in layman's terms, would refer to the degeneration of the lumbar spine. He testified that almost everyone will develop degeneration in their lumbar spines at some stage of their life and that everyone with degeneration will have some form of associated pathology. He testified that the spondylosis is that pathology.

    [50] Exhibit A, T-documents, T31 at p. 112, Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 10 March 2015.

38. During cross-examination, Dr Sharwood testified that eighty percent of people present with back pain as a result of degeneration. He confirmed that, if properly examined, everyone who has degeneration could know that it results from a form of pathology. He further testified that 20 percent of those with degeneration are asymptomatic, and agreed that it's possible that someone with degenerative pathology may not have symptoms.

39. Dr Sharwood agreed that the applicant followed the natural ageing process. When asked if it is possible that someone with the applicant’s pathology would be asymptomatic, he answered that it was not possible because she was presenting with symptoms. He agreed that he had assumed that those symptoms are a result of the degeneration.

40. Dr Sharwood was referred to the AMA guide which states:[51]

    Disc degeneration and its associated pathology do not explain symptoms of lower           back pain and its related disability. …

    In general, pathology on MRI has shown little relationship to symptoms or disability….And there is currently no consensus regarding the association between lumbar degeneration, degenerative disc disease identified on imaging, and lower        back pain.

    [51] Exhibit G, Eskay-Auerbach, M., and Talmage JB., AMA Guide to Evaluation of Disease and Injury Causation (2^nd edition, 2014, pg. 199).

41. Dr Sharwood stated that he agreed with the findings. It was put to him that he would agree that based on the AMA guide, there is no scientific evidence that Ms Molina's degeneration is causing her symptoms. He responded that “there is no proof”. The witness confirmed that in his report, he assumed that the presence of degeneration in the applicant’s lower back symptoms is attributable to degeneration. It was put to the witness that, based on the AMA guide, there is no conclusive way of knowing whether the degeneration is causing her symptoms. The witness remarked that you cannot prove what causes pain, and agreed that it is possible that the degeneration is not the cause of her symptoms.

1. Dr Sharwood accepted that the applicant suffered two musculoligamentous injuries in 1994 and 1996 and confirmed that musculoligamentous injuries relate to the muscles and ligaments. When asked if some injuries to muscles and ligaments can result in damage that the body is unable to repair itself, he answered “Possibly”. When it was then put to him that some injuries are therefore unlikely to resolve by themselves, he remarked that the injuries resolve, but assessing whether the symptoms disappear is difficult. The witness agreed that injuries to muscles or ligaments can be chronic and that it is possible for chronic conditions to be life-long.

2. Dr Sharwood accepted that someone with a 13 year history of back pain is unlikely to recover from it. He stated that it was possible that that would be the case regardless of whether there is any further injury to the area down the track. He accepted that the pathology relating to the applicant’s degeneration started sometime between 2007 and 2011; however, he did not accept that by 2007, the applicant had experienced lower back symptoms for approximately 13 years due to lack of proof. In light of the difficulty in proving the applicant’s symptoms, he accepted that it would be difficult to identify the point at which the cause of the applicant’s symptoms changed.

3. When Dr Sharwood was asked if it was particularly difficult to identify the point at which the cause of symptoms change when there is no symptom-free period between two potential causes, Dr Sharwood emphasized that while the applicant reported that there was no symptom free period, she did go back to work after both injuries.

4. It was put to Dr Sharwood that he had not identified the time at which the applicant stopped experiencing symptoms from her two accepted injuries. He responded that a strain of that nature resolved after about three months. It was again put to Dr Sharwood that he was unable to pinpoint the time at which Ms Molina stopped experiencing symptoms from her accepted injuries. Dr Sharwood relied upon the AMA meta-analysis concerning 21 studies over 11,000 persons, in which none of them found a physical factor that could reliably predict lower back pain.[52] Dr Sharwood detailed that the best predictor of chronic pain according to current medical knowledge is psychiatric vulnerability. Dr Sharwood further stated that it is difficult to identify the cause of the symptoms.

   [52] Exhibit G, Eskay-Auerbach, M., and Talmage JB., AMA Guide to Evaluation of Disease and Injury Causation (2^nd edition, 2014, pg. 227).

5. Dr Sharwood was questioned about the reference in his second report to Ms Molina’s  knee arthritis. He agreed that knee arthritis wouldn't prevent her from performing administrative duties or working as an executive assistant and would not be the sole cause of her inability to work full-time. It was put to Dr Sharwood that her incapacity therefore rather resulted from her lower back symptoms, to which he responded that that was how the applicant reported it. He was again asked if he was of the opinion that her lower back symptoms were a possible cause of her incapacity, and he reiterated that this is what the applicant had reported.

6. Dr Sharwood was referred to the part concerning “Treatment" in his report of November 2015,[53]  where he stated that the applicant is likely to require ongoing medications. He confirmed that the medication would include analgesics. He confirmed that he noted that the applicant had undergone physical therapy and that he stated that the applicant “is likely to be able to self-manage, but she may need intervention on occasion."[54] Dr Sharwood confirmed that she could require physiotherapy and that such treatment may assist in managing her symptoms. He further confirmed that her treatment provider might be able to identify particular exercises that may assist in addressing her symptoms, and that such a treatment plan would be likely to help improve her symptoms, make it easier for her to cope with general activities and possibly be less incapacitated for work.

   [53] Exhibit B, Supplementary T-documents, Vol 2 ST20 at p. 232, Supplementary Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 2 November 2016.  

   [54] Ibid.

7. Prior to giving evidence, Dr Scott Campbell, of Brisbane Private Hospital confirmed that he had read and considered the material provided to him by Maurice Blackburn including the supplementary T documents. He stated that those documents do not change any aspect of his reports. Dr Campbell stated that he had 18 years’ experience in providing medico legal reports, with the same experience in giving evidence in court. He stated that he graduated as a qualified neurosurgeon and commenced as a specialist in 1997 and had been mostly on the spinal injuries roster at the Royal Brisbane Hospital, up until the last year or two. He stated that he had been provided with a copy of the Guidelines for Giving Expert and Opinion Evidence in the AAT and confirmed that his reports comply with the Guidelines to the best of his knowledge.

8. Dr Campbell confirmed that he provided a report dated 12 April 2016 and a report dated 25 March 2017 and did not wish to make any changes to the reports.

9. Counsel for the applicant directed Dr Campbell to his second report, dated 25 March 2017 where he stated: “It cannot be said that the degenerative changes were symptomatic".[55] The applicant asked Dr Campbell what caused him to form that view. Dr Campbell referred to the MR scan 71-11 which showed aged-related degenerative changes but no evidence of nerve compression.  He opined that it cannot be said that the degenerative changes were symptomatic. He remarked that in 2011, the applicant would have been in her fifties and that while almost all 50-year olds have degenerative changes, most of those persons are asymptomatic. He attested that the presence of degenerative changes is usually an incidental finding.

   [55] Exhibit D, Dr Scott Campbell Reports at p. 2 dated 25 March 2017.

10. Dr Campbell was asked to comment on whether the degenerative changes shown on the MRI are likely to cause symptoms. He responded that he did not believe he could conclusively comment, and reiterated that while the spine is designed to wear and tear with age, which is not usually associated with symptoms, occasionally it is associated with symptoms. Dr Campbell further stated that we can only go on the balance of probabilities.

11. Dr Campbell was asked what, in his opinion caused the symptoms the applicant has experienced from about 25 November 2015 onwards. He answered that her current symptoms are most likely a progression of her original symptoms from the work injuries in 1994 and 1996. Dr Campbell also stated that in his opinion that the applicant’s symptoms from the two injuries in 1994 and 1996 had not resolved and that she has persisting symptoms, which will continue to persist in the future.

12. Dr Campbell was asked to report on Ms Molina's present capacity for work. He remarked that the last time he saw her was twelve months ago, when she wasn’t working, but that in her statement she noted she was unsuccessful at finding work due to a combination of her back injury, her age and the fact that she had been out of the workforce for so long.

13. Dr Campbell was asked if he believed that she would be unable to work more than about 15 hours per week. Dr Campbell expressed his opinion that she appears motivated to find work; however, given her age, the stigma of a back complaint and the length of time out of the workforce she would find it difficult gaining employment.  Dr Campbell further stated that if she was to find a sympathetic employer, it would be wise not to work any more than 15 to 20 hours per week.  When asked what he believed caused her inability to work any more hours, he stated that the lower back complaint would cause difficulty with performing manual handling tasks. He stated that she would have problems with activities of driving and sitting and if she works 20 to 40 hours per week, she is at risk of aggravating those symptoms.

14. During cross-examination, Dr Campbell was referred to his second report where he diagnosed the applicant with a chronic soft tissue musculoligamentous injury of the lumbar spine.[56] Dr Campbell was asked if it was his view that no damage was sustained to the spine that was caused by either the incident in 1994 or the incident in 1996. He responded that he was of the view that the applicant sustained work injuries to the lumbar spine in February 1994 and July 1996.  Dr Campbell elaborated that her symptoms commenced following the injuries, which demonstrates a strong causal relationship between the injuries and the symptoms. He stated that while she did not suffer a fracture or a disc protrusion, as the MR scan didn't show anything like that, it is likely that she suffered a soft tissue injury. He added that common terms for her injury would be musculoligamentous injury, soft tissue injury or whiplash injury.  In the vast majority of cases, these symptoms will settle down, however in 5 to 10 percent of cases, depending on the severity of the injury, they can persist and become chronic.

    [56] Exhibit D, Dr Scott Campbell Reports at p. 3 dated 25 March 2017.

15. Dr Campbell was referred to Dr Sharwood's reports and evidence, in which he stated that due to the nature of the injuries sustained in 1994 and 1996, he would expect the injuries to settle in around three months. Dr Campbell agreed with the time frame, and remarked that most musculoskeletal injuries will settle over a three to six-month period, however some take longer and a few persist and become chronic. Dr Campbell was of the opinion that the applicant’s condition was chronic.

16. Dr Campbell confirmed that in his first report he noted that applicant complained of lower back pain and stiffness and that he understood that she had those symptoms since 1994. Dr Campbell was asked if lower back pain and stiffness were symptoms of a symptomatic degenerative lumbar spine. He agreed that if the degenerative changes in her spine were symptomatic, then she would experience similar symptoms to the symptoms that she is currently experiencing.

17. Dr Campbell asked if it would be fair to say that the presentation of lower back pain and stiffness could be explained by a degenerative lumbar spine. He was of the opinion that based on the history of events, it would be unlikely but not impossible. Specifically, Dr Campbell detailed that the immediate onset of the symptoms following the two work accidents is demonstrative of a trigger, rather than any underlying degenerative problems.  He elaborated that with a degenerative problem, there would not be a trigger incident and the symptoms would come on slowly and gradually over a period of time and increase in intensity, which was not the case. However, he accepted the possibility.   

18. Dr Campbell was asked if he accepted the possibility that because she does have underlying, degenerative changes in her lumbar spine, that there was a period of time where the symptoms of low back pain and stiffness were entirely referable to the falls in 1994 and 1996 and then, there was a period of time where there has been, in essence, an overlap so those underlying degenerative changes have started over time to become symptomatic. He answered: “Once again, that's possible, but I think unlikely”.

19. When asked if the continuity of symptoms since 1996 was the reason he thought such an event was unlikely, Dr Campbell answered that he thought it was unlikely for several reasons.  He elaborated that the history details a specific incident in February 1994 resulted in a back injury with symptoms that persisted, with a further aggravation in July 1996. He went on to reiterate that the history demonstrates that specific events, as opposed to a degenerative problem caused the back pain.  Dr Campbell emphasised that there has been no previous documentation of lower back pain, and stated that therefore, any degenerative changes that were there before were asymptomatic and would have likely remained asymptomatic, regardless of the work injuries.

20. Dr Campbell was then referred to the first injury and asked if the likelihood of degenerative changes being present and symptomatic at that stage were unlikely. He remarked that the applicant was 38, and an MR scan of her spine at 38 would have shown age-related degenerative changes, as it would show in any 38-year old. He continued that her scan is no different to any other 38-year old at that time. Dr Campbell asserted that for someone that has had some back issues before then it could be attributed to degenerative changes if there was no other cause; however he maintained that the applicant is not in that category as she was asymptomatic before the injuries.

21. Dr Campbell was asked if he agreed with the proposition that her symptoms were entirely attributed to the effects of the musculoligamentous strain, however, due to the underlying degenerative changes in her lumbar spine, the symptoms overlapped, and then overtime, the degenerative changes became symptomatic. Dr Campbell answered that it is possible, but unlikely.  

22. Dr Campbell confirmed that there was a continuity of symptoms arising from the incidents in 1994 and 1996. Dr Campbell was asked how important the continuity of the location, description and intensity of symptoms being present throughout that period of time was. In his response, he commented that with a persistent problem, a degree of continuity of the symptoms would be expected during and throughout the years, and while symptoms should be allowed to fluctuate, if the patient was symptom free for three or four years before the symptoms returned, then other factors could be causative.

23. During cross-examination, Dr Campbell was asked that, if physiotherapy assisted with the management of those symptoms, and the applicant did not attend physiotherapy for a four-year period in the mid-2000's, would he accept then that, if the symptoms had improved for that period of time 1994 and 1996 injuries ceased to contribute to the symptoms, and symptoms attributable to the underlying degenerative condition emerged. Dr Campbell responded that if the symptoms disappeared completely for four years and then returned, then that would be too long a period for her problems to be all work-related.  He continued that there would have to be other factors then involved, and the pre-existing, asymptomatic, degenerative changes could become symptomatic, but maintained that even if the applicant’s symptoms did settle, she is always going to be susceptible to further injury in the future. He further acknowledged that new causes could be introduced.

24. Dr Campbell was asked whether in his experience, people who have had an injury to a particular part of their body always remain sensitive to noticing signs and symptoms in that area. He answered that that would be mostly true.

25. Dr Campbell was reminded that when in one of his earlier responses, he agreed that the vast majority of musculoligamentous strains would settle down, reduce in severity to a point when they are not there at all, so it is not a sudden point at which one day you have symptoms and the next day you do not. He confirmed that to be correct and also confirmed that that symptoms of degenerative changes in the lumbar spine can gradually present themselves.

26. Dr Campbell confirmed that he had been provided with the various other reports from specialists. Dr Campbell agreed that there has been varying opinions as to the cause of the ongoing nature of the applicant’s symptoms of lumbar spine problem, and was of the belief that the reports vary in clarity, with some reports merely repeating symptoms and not providing a diagnosis. 

27. Dr Campbell was asked if he thought that the changes present in the MRI scan of 7 January 2011 could explain the reported symptoms of lower back pain and stiffness. Dr Campbell responded that he believed the scan to be a normal scan for a person of that age.  He continued that, if there was a history of an injury, he would think that the injury would be the most likely cause.  But, if there was no history of injury, then it is possible that it could be due to wear and tear changes on the scan.

28. In re-examination Dr Campbell was asked if the musculoligamentous injuries sustained in 1994 and 1996 were likely to show up on an MRI or CT scan taken around that time. He responded that those particular injuries would be very unlikely to show on a scan. When asked what other symptoms, other than lower back pain and stiffness, are likely to be present if degeneration was symptomatic, provided that if degeneration was symptomatic, then there would be very similar symptoms. When Dr Campbell was asked if he would expect other symptoms to be present, he answered that he would not necessarily expect other symptoms, other than associated radicular pain due to the build-up of tissue and pinched nerves. He maintained that in his experience, soft tissue injuries or musculoligamentous injuries are often associated with referred pain, which is exactly the same as radicular pain.

29. Dr Campbell was asked if changes evident on the MRI reports would not, generally speaking be symptomatic. Dr Campbell referred to the 2011 scan and reiterated that the scan showed normal age-related degenerative changes.  He remarked that if there is an obvious cause, then that would be the likely diagnosis, such as a work injury or a motor vehicle accident or a fall, however  if there is no specific cause and the symptoms came on slowly then it just may be attributable to degenerative problems.

30. The applicant has submitted that the applicant should succeed because of the binding force of Comcare v Power.[57] Certainly, in that case the court laid down as a principle that if, after considering all the available material, the Tribunal was unable to decide on the balance of probabilities whether a claimant continued to suffer the effects of the compensable injury, the Tribunal is bound to decide the matter in the claimant’s favour.[58] However, I do not consider this principle is relevant in the current circumstances, because after reviewing the evidence, I have concluded that there is no cogent evidence that the applicant’s injuries of 1994 and 1996 contributed to her condition in 2015 when the determination and the reviewable decision was made, or now.

    [57] (2015) 238 FCR 187.

    [58] Comcare v Power (2015) 238 FCR 187 at [71].

31. While the applicant endeavoured to give her evidence to the best of her recall, I do not consider that the applicant is a reliable historian concerning the circumstances of her 1994 injury. In her claim form of 1994, the applicant detailed that she tripped.[59] During the hearing, she agreed that she tripped and stumbled but did not fall to the ground. When it was put to the applicant that in more recent times doctors had understood her history to be that she fell to the ground, she stated that she did not fall to the ground.

    [59] Exhibit B, Supplementary T-Documents, Volume 2, ST2 at p. 159, Claim for Rehabilitation and Compensation for ‘muscle strain of lower back’ dated 7 March 1994.

32. The applicant has also been inconsistent in recalling the circumstances of the 1996 injury. Initially she agreed that she stated in her claim form that the pain came on slowly during the morning, whereas she has later maintained that she had a sudden and dramatic onset of pain. This difference has significance because Dr Campbell has stated, in evidence, that the immediate onset of symptoms following a workplace accident is demonstrative of a trigger incident. In my opinion, the fact that the applicant’s symptoms developed slowly is more consistent with there being a degenerative condition at that time.

33. I do not accept the applicant’s assertions during the hearing that she has been in constant pain since 1994 because they are contrary to the statements that she has made since the 1994 incident. In 1995 Dr King reported on the improvement of her condition.[60] In September 1996 (after her injury of 31 July 1996) the applicant advised Comcare that there “has been a significant resolution of the symptom complex associated with my injury of the lower lumbar region but there was still a residual element of pain”.[61]  The applicant’s statement that she has been in constant pain since 1994 is further inconsistent with the records of her claims for pharmaceuticals, as she did not make any claims for pharmaceuticals between October 1996 and August 2002.  

    [60] Exhibit B, Supplementary T-documents, Vol 1 ST4 at pp. 171-172, Report of Dr Denis King dated 4 October 1995

    [61] [61] Exhibit B, Supplementary T-documents, Vol 1 ST7 at p. 179, Request for reconsideration of determination dated 11 October 1996.

1. I accept that the applicant has been honest in stating that she has had pain of the lower lumbar region but do not consider that they are work related. I consider that the reports of Dr Sharwood are a fair assessment of the applicant’s condition. In giving evidence, he was not an advocate for a particular outcome and his evidence was balanced. Dr Sharwood recognised that it is possible that the degeneration is not the cause of her symptoms. However, I have to resolve this matter on the balance of probabilities, as Dr Campbell appreciated.

2. The crux of Dr Sharwood’s report of 2 November 2016 was that there is no medical or scientific evidence on which to base an assumption that the applicant’s back pain was related to the injuries sustained in 1994 and 1996.[62] In his report he opined that the cause of the applicant’s lower back pain was age related degenerative changes in the lumbar spine. As mentioned previously, Dr Sharwood reviewed the medical imagery records of 1994, 1995, 2008 and 2011, which he reported to “clearly follow a natural aging process”.[63] This aspect of his report, which he regarded as important, was not challenged by the applicant.   

   [62] Exhibit B, Supplementary T-documents, Vol 2 ST20 at p. 239, Supplementary Report of Dr Peter Sharwood, Orthopaedic Surgeon dated 2 November 2016.  

   [63] Ibid.

3. I rely upon Dr Sharwood’s assessment, that the cause of the applicant’s lower back pain was age related degenerative changes in the lumbar spine. His opinion was based upon the meta-analyses of the studies in the AMA guidelines, and which support his opinion that the cause of the lumbar spine pain was the degenerative condition. Dr Sharwood’s assessment is consistent with the opinions of Dr Billet and Dr Davis that the degenerative changes in the lumbar spine are the cause of her condition. Under examination, Dr Campbell also conceded that a four-year interval between attending physiotherapy sessions was too long a period for her condition to be entirely work-related. 

4. In 2000, Dr Billet reported that the soft tissue injury to the lumbar region of the applicant had resolved. His conclusion is consistent with Dr Sharwood’s opinion that the applicant’s soft tissue injury had resolved. I consider that these specialists are correct in their opinions. During examination, Dr Campbell conceded that most soft tissue injuries would resolve in the time that has elapsed since the injury was sustained. However, I do not consider that there is any cogent evidence that the workplace injuries continued to contribute to the applicant’s condition in 2015, or now.

5. In 1999, Dr Jackson had reported that physiotherapy and massage treatment were no longer required. I consider that he was correct because her injuries had resolved and that such treatment would thereafter not be for the purpose of “alleviating” the original injuries of 1994 and 1996 within the meaning of section 4(1) of the Act. The applicant did not need to have physiotherapy treatment for at least four years in 2004, 2005, 2006 and 2007.

6. In view of my previous findings that the applicant’s workplace injuries had resolved by 2015, she is not entitled to compensation for medical treatment or incapacity payments.

   DECISION

7. The decisions under review are affirmed.

122.     

123.     

124.     

125.     

126.     

127.     

128.     

129.     

130.    I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………………………………………………..

Associate

Dated 28 February 2018

Date of hearing:	24 April 2017
Applicant:	Naomie Molina
Solicitors for the Respondent:	Australian Government Solicitors