NEANG YUN and COMCARE
[2009] AATA 126
•26 February 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3505
GENERAL ADMINISTRATIVE DIVISION ) Re NEANG YUN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date26 February 2009
PlaceAdelaide
Decision The tribunal:
(a) sets aside the decision under review and in place of that decision, decides that the respondent is liable for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury sustained on 24 December 1990 as claimed by the applicant on 20 March 2006;
(b) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(c) orders that in the absence of such an application within that period, the respondent pay the costs of the proceedings.
DG Jarvis (Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – nurse sustained back injury in 1990 – conflict of medical evidence – relevance of lay evidence in resolving conflict – concurrent evidence as to CT scans – relevance of statistical evidence – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16 and 19
March v E & M H Stramare Pty Ltd (1990-91) 171 CLR 506
State Government Insurance Commission v Laube (1984) 37 SASR 31
REASONS FOR DECISION
26 February 2009 Deputy President D G Jarvis 1. In February 1991 the applicant, Neang Yun, claimed compensation for an injury that he sustained on 24 December 1990 in the course of his employment at the Royal Canberra Hospital. In April 1991 Comcare accepted liability for acute lumbo-sacral muscle and ligament strain pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
2. In March 2006, Mr Yun made a further claim for ongoing compensation for medical expenses and incapacity payments on the grounds that he was still suffering the effects of the injury that he sustained on 24 December 1990. Comcare rejected the claim and this was confirmed on reconsideration. Mr Yun has applied to this tribunal for review of the decision on reconsideration.
Issue to be determined
3. The issue before me is whether the incapacity for work and medical expenses that are the subject of the current claim for compensation are the result of the injury that Mr Yun sustained on 24 December 1990.
Background
4. I make the following findings of fact from the evidence of Mr Yun. I found him to be a frank witness who gave an honest account of the circumstances in which his injury occurred, and of the after effects of his injury.
5. Mr Yun was born in Cambodia, and is currently aged 55. He gave evidence of the grave difficulties that he encountered when he was living in Cambodia during the period of the Pol Pot regime. He was forced to flee Cambodia with his wife, and went to a camp in Thailand where he worked for the International Red Cross. He finally left Thailand and came to Australia in 1983 with his wife and two young children as a refugee. He said that his years in Cambodia and Thailand were very unsettled and unsafe. There was no social security, healthcare or education system, and no social structure at all, and many people were required to carry out hard work that they were not used to and died or became sick.
6. After participating in a refugee program and assisting the teaching of the Khmer language in Canberra, Mr Yun began studying nursing. In 1986 he commenced work on a part-time basis as a registered nurse at the Royal Canberra Hospital, and remained in that employment until 9 August 1996.
7. On 24 December 1990 he sustained an injury to his lower back at the Royal Canberra Hospital as a result of lifting and turning a heavy disabled patient with the assistance of two other nurses. He said that he experienced a sharp stabbing pain in his lower back as he bent and lifted the patient, and also experienced immediate pain down his left leg. He collapsed and could not get up from the floor due to the severe pain. He immediately stopped work and had to be assisted into a wheelchair. He was taken to the Casualty Department, where he had an x-ray and was examined by a doctor who gave him an injection for pain. He remained in hospital overnight.
8. He was very incapacitated and confined to bed for a week after his injury. He continued to be treated at the Royal Canberra Hospital and by a general practitioner for the next six weeks. The treatment consisted of rest, medication, physiotherapy and hydrotherapy.
9. He was then certified fit to return to work on 15 February 1991. After that he returned to full hours but remained on very light duties. Over a period of several months he progressively returned to full unrestricted nursing duties, but remained very careful in the way that he carried out those duties as he continued to have ongoing difficulties with his lower back and left leg. He experienced regular aching in his lower back and a tingling sensation in his left leg.
10. From May 1991 his hours at the hospital increased to 48 hours per fortnight and fluctuated between 48 and 60 hours per fortnight. After the injury he took Panadeine Forte for 6 months or so, but stopped that medication because of abdominal discomfort. He then continued to take a minimum of 4 Panadol tablets nearly every day.
11. Prior to his injury, Mr Yun had commenced studying engineering part-time. He completed this course and obtained a diploma in engineering in 1995. After that he decided to move to Adelaide, and one of his reasons for doing so was that there were more opportunities to obtain work as an engineer in Adelaide than in Canberra.
12. He continued to take Panadol at the same rate after he moved to Adelaide. He said that he took the Panadol “to reduce the pain to a bare minimum that I could cope with” (transcript, page 13, line 29). He consulted his current general practitioner, Dr Daniel, in 2001, and in March 2002 Dr Daniel arranged a CT scan and referred him for physiotherapy. Mr Yun said that over the period from the date of injury until he saw Dr Daniel, the pain in his back was constant, and he also had pain in his left leg all along, although the pain in the back was worse. However, he did not take any time off work because of his back between when he returned to work in February 1991 and until after he began seeing Dr Daniel.
13. In his written statement Mr Yun provided the following further information as to the work he did at the hospital before he resigned to come to Adelaide.
“64.I continued to work without complaint even though I regularly experienced pain. I was concerned that if I was unable to do my full duties I would lose my job. The discomfort was also spasmodic and on most days I could carry out my duties without restriction.
…
66.I felt as though I had to work harder to be accepted within the team in the hospital environment as well as socially outside of the workplace. Complaining was not part of my culture. I was very happy to be living in a country which was safe, provided medical services, provided education and ongoing employment with a wage to be paid for work carried out. I also had access to pain relief if needed.
67.I also considered that the ongoing difficulties I was having with my back were insignificant compared to the difficulties I had experienced in my life in Cambodia and Thailand and did not consider that there was any benefit in raising complaints in relation to my back during the course of my employment.” (exhibit A1, page 8)
14. After arriving in Adelaide, Mr Yun worked as an interpreter on a part-time basis. He experienced ongoing discomfort in his lower back, and in about 2001 experienced an episode of severe pain when he was performing his normal work. He consulted Dr Daniel. His symptoms eased but flared up again in 2002 and he was then referred to an orthopaedic surgeon, Dr Ghan. CT scans were undertaken in March and August 2002. He had further flare ups in 2004 and 2006. His current treatment involves pain-killing tablets, meditation and a medicated plaster which provides a slow release of pain medication.
Legislative scheme
15. Section 14(1) of the Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:
“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
16. Section 16 provides in effect that where an employee suffers an injury, Comcare is liable to pay the appropriate cost of reasonable medical treatment obtained in relation to the injury.
17. Section 19 provides for compensation by way of incapacity payments where an employee is incapacitated for work as a result of an injury.
18. The requisite connection between the injury and employment appears in the definition of “injury” in s 4(1) of the Act. This provides relevantly that injury means:
“(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or …”
Medical evidence
19. Exhibit R3 includes records from the Royal Canberra Hospital of Mr Yun’s treatment for the injury he sustained on 24 December 1990. The record is consistent with his evidence. It confirms that he had pain and was tender in the lower back, and had numbness and pins and needles initially in both legs, but persisting in the left leg. Medical certificates certifying incapacity for work were issued by the general practitioner whom Mr Yun consulted. He described his condition as a lumbosacral strain. The records of that practitioner, and of a second general practitioner whom Mr Yun also consulted, have, however, been destroyed.
20. Two specialists, namely Mr Paul Carney, a neurosurgeon, and Dr Peter Stevenson, a consultant physician, gave evidence of their opinions as to the nature of the injury sustained by Mr Yun and its relevance to his present condition. They expressed differing opinions as to whether the injury that Mr Yun sustained in 1990 was a prolapse of the L5/S1 disc.
21. They gave helpful concurrent evidence as to the significance of the available radiological evidence, and this helped to crystallize the extent to which their opinions differed, and the basis of their difference of opinion. They agreed that a plain x-ray taken at about the time of the injury would not reveal a prolapse, and the fact that the x-ray report was normal was of no significance to the issue as to which their opinions differed. They also agreed that a CT scan of 8 August 2002 showed a large left-sided prolapse of the L5/S1 disc.
22. An earlier CT scan of 22 March 2002 did not show a disc prolapse. However, both doctors agreed that that scan showed degenerative changes at the L5/S1 level, in that there was some narrowing of the disc and evidence of calcification. Mr Carney thought that some scarring was also apparent, but Dr Stevenson did not agree with that.
23. Whilst both doctors agreed that the cause of the abnormal narrowing of the L5/S1 disc as shown by the March 2002 CT scan was consistent with either non-specific degenerative change or a traumatic injury, Mr Carney thought it more probable that Mr Yun had suffered a prolapse of L5/S1 disc at the time of the injury in 1990, and that this had caused the abnormality in the L5/S1 disc. He concluded that whilst Mr Yun had (on the history he obtained) partially recovered with very conservative treatment and there had almost certainly been some healing of the disc space, Mr Yun had sustained a tear in the annulus and had suffered intermittent recurring bouts of compression and pain. The particular aspects of Mr Yun’s history which Mr Carney regarded as significant were the unusual lifting of the patient, in that the patient was heavy and difficult and the lifting was done in a bent position; there had been an instant onset of severe pain that radiated down the left leg; Mr Yun had been confined to bed for a week after the event, and needed several weeks off work; the lower back pain had been associated with sciatica; and Mr Yun had had continuing symptoms as from that time on, both in the lower back and the left leg. Mr Carney said further that in his opinion, the recent episodes of severe symptoms were attributable to a recurrence of the prolapse, and there was evidence of nerve root compression and scarring. He said that once a person had had a disc rupture, they were always at risk of recurrent rupture, and once the disc was weakened, less significant events such as a sneeze, severe bout of coughing, or lifting a weight which was not heavy could provoke another rupture. Further, residual scarring following the healing of the annulus could cause episodes of pain.
24. Mr Carney said further that the fact that the doctors treating Mr Yun in 1990 had not requested a CT scan did not necessarily suggest that they did not consider that he had suffered a significant disc injury or significant sciatica. He said that it would have been reasonable for the doctors then involved to have waited to see what happened, and if Mr Yun recovered progressively, they might reasonably have decided that they did not need to do a CT scan.
25. I prefer Mr Carney’s conclusion to the contrary view which Dr Stevenson expressed, namely that Mr Yun’s recent pain and disability is due to the natural progression of non-specific degeneration of the lower spine. Dr Stevenson said that the main reason for his having reached a different conclusion from Mr Carney was the difference in the history that he had relied on. In reaching his opinion, Dr Stevenson regarded it as important that there was no sufficient evidence of ongoing back or leg pain after Mr Yun returned to work, or that he had sought on-going medical treatment for problems with his lower back until 2001. However, Mr Yun gave evidence as to his continuing low back pain and sciatica, and of the medication he had taken over the years after the accident, and I accept that evidence. Further, Mr Yun said that he had not sought medical treatment for his continuing symptoms during his continuing work at the Royal Canberra Hospital and prior to his consulting Dr Daniel in 2001, but he explained his reasons for putting up with his symptoms during his continued employment in Canberra in his witness statement (see paragraph 13 above).
26. Dr Stevenson also based his opinion to some extent on various surveys of persons who have suffered symptoms of disc degeneration in the light of MRI scans. Whilst such studies are informative and relevant, statistical evidence does not necessarily apply to any particular individual, and it is ultimately necessary for me to determine this matter by reference to the whole of the evidence before me. The limitations on the use of statistical evidence were referred to in State Government Insurance Commission v Laube (1984) 37 SASR 31, where a former Chief Justice of the Supreme Court of South Australia said, at [33]:
“… I am clearly of the opinion that the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual. The fact that most people with a blood alcohol level of 0.15 per cent are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable.”
27. Evidence was also given by Mr Yun’s general practitioner, Dr Daniel. Whilst he acknowledged the difficulties of determining the relevance of the injury that Mr Yun had suffered 10 years earlier in Canberra, he gave evidence of having obtained a history from Mr Yun that was consistent with the proposition that his more recent relapses and flare-ups of symptoms were attributable to the injury on 24 December 1990. He agreed that if there was a tear of the annulus then, the disc would have been left in a vulnerable state, and his evidence was generally consistent with the views expressed by Mr Carney.
28. In March v E & M H Stramare Pty Ltd (1990-91) 171 CLR 506, Mason CJ referred at 515 to the common law tradition that questions of causation must be determined by applying commonsense to the facts of each case. In doing so, and in considering the competing opinions of the doctors, I must take into account the totality of the evidence, including not only the medical evidence, but also of course the evidence of Mr Yun and the documentary material before me. Approaching the matter in that way, I am satisfied that the incapacity and medical expenses that are the subject of the claim for compensation referred to in the decision under review have resulted from the injury that Mr Yun sustained at the Royal Canberra Hospital.
Decision
29. The tribunal:
(a)sets aside the decision under review and in place of that decision, decides that the respondent is liable for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury sustained on 24 December 1990 as claimed by the applicant on 20 March 2006;
(b)reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(c)orders that in the absence of such an application within that period, the respondent pay the costs of the proceedings.
I certify that the 29 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 19 and 20 November 2008 and 16 February 2009
Date of Decision 26 February 2009
Counsel for the Applicant Mr T Rossi
Solicitor for the Applicant Moody Rossi & Co
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent Australian Government Solicitor
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