Nieuwesteeg and Comcare
[2006] AATA 910
•26 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 910
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/217
GENERAL ADMINISTRATIVE DIVISION ) Re CAROLYN NIEUWESTEEG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date26 October 2006
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Ms Nieuwesteeg aggravated a previous lumbar spine injury in compensable circumstances on 24 January 2000.
The parties have 14 days in which to make written submissions in relation to costs. Liberty to apply.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - injury - previous lumbar spine injuries accepted - multiple injuries arising from incident in employment - injuries claimed contemporaneously accepted - aggravation of lower back condition claimed 5 years later - quality of evidence - reasonable satisfaction - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 24, 67
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Commonwealth v Beattie (1981) 35 ALR 369
REASONS FOR DECISION
26 October 2006 Mr S. Webb, Member 1. Carolyn Nieuwesteeg is a constable in the Australian Federal Police. In November 1999 she suffered injuries, including to her lower back, in a motor vehicle accident in the course of her duties. In December 1999 she again injured her lower back and sustained cuts and bruises in an incident involving a woman and a dog in which she was assaulted. Comcare accepted liability for these injuries. In January 2000 Constable Nieuwesteeg was involved in an incident at the Belconnen police station in which she was kicked and bitten while attempting to restrain an offender in an interview room. She claimed compensation for bruising to her arms and legs and a bite wound to her right hand. Comcare accepted liability for these injuries. Subsequently Constable Nieuwesteeg experienced incapacitating episodes of lower back pain. She was of the opinion that her previous back injury had been aggravated by the incident in January 2000. In February 2004 she lodged a permanent impairment compensation claim for a lower back injury in relation to the incidents in December 1999 and January 2000. Ultimately the claim was rejected because the degree of impairment she suffered as a result of each incident was not greater than the minimum 10% threshold. Subsequently in March 2005 Constable Nieuwesteeg asked Comcare to issue a determination of liability for a lower back aggravation injury she allegedly suffered in January 2000. Comcare denied liability.
2. The issue for determination by the Tribunal is whether Constable Nieuwesteeg sustained an aggravation injury to her lower back during the incident that occurred on 24 January 2000 for which Comcare is liable.
3. Comcare asserted that Constable Nieuwesteeg's memory of the signs and symptoms she experienced following the incident on 24 January 2000 is defective and cannot be relied upon. Furthermore in Comcare's submission the memories of her mother, Josephine Hagen, and her sister, Laura Beck, are similarly defective and unreliable. Comcare says that contemporaneous documents are to be relied upon and should be preferred. These documents include the claim for compensation that Constable Nieuwesteeg completed on the 27th of January 2000 and a report by Dr Peter Wilkins dated 25 January 2000 in which no mention is made of lower back symptoms. Furthermore Comcare asserts that Constable Nieuwesteeg sought no treatment for any lower back injury in the five-month period following the incident. That, it is said, indicates that Constable Nieuwesteeg did not suffer an injury to her lower back on 24 January 2000. Comcare noted that Constable Nieuwesteeg made reference to pain, discomfort and stiffness in her lower back in a police statement she prepared on 29 February 2000. However, Comcare says this statement should not be relied upon because the particular sentence is identical to a sentence Constable Nieuwesteeg used in a police statement she prepared on 4 February 2000 in relation to the December incident, in which she did suffer an injury to her lower back. Finally, Comcare asserts that the conclusions of Dr Griffith and Dr Talbot that the incident on 24 January 2000 caused an aggravation injury to Constable Nieuwesteeg’s lower back cannot be relied upon because they are based, substantially, on the history she provided. I do not agree.
4. Nevertheless, during the hearing Comcare conceded that if the Tribunal was satisfied, on the balance of probabilities, that Constable Nieuwesteeg did suffer symptoms of pain, discomfort and stiffness in her lower back in the week or so following the January incident those symptoms would in all likelihood indicate a compensable aggravation injury of the kind claimed. That, it was said, would be consistent with the medical evidence of Dr Griffith and Dr Talbot and the settled cases. With that I agree.
5. For reasons that will appear I am satisfied that it is more likely than not that Constable Nieuwesteeg aggravated her pre-existing lower back injury on 24 January 2000.
6. The word ‘injury’ is defined at s.4 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) to include an aggravation of a physical injury suffered by an employee that arose out of or in the course of employment. The word ‘aggravation’ is defined to include ‘acceleration or recurrence’.[1] The concept of aggravation essentially concerns the worsening of a pre-existing injury. It does not require a pathological change or a physical lesion and may be a temporary phenomenon indicated by an increase in the level of pain caused by work activity.[2] I note the distinction between pain experienced in the workplace that is attributable to a pre-existing injury and pain that is the result of work activity.[3] Importantly, under the Act Comcare is liable to pay compensation in respect of an injury if the injury results in incapacity for work or impairment,[4] or medical treatment expenses are reasonably incurred in respect of the injury,[5] or the injury results in a sufficient degree of permanent impairment.[6] Constable Nieuwesteeg's case presses liability pursuant to s.14 of the Act.
[1] s.4
[2] see Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44
[3] see Commonwealth v Beattie (1981) 35 ALR 369 at 378
[4] s.14
[5] s.16
[6] s.24
7. It is not in dispute that the incident on 24 January 2000 occurred, and involved a violent struggle. In the course of that struggle Constable Nieuwesteeg attempted to prevent the struggling offender from mutilating himself by physically restraining him and applying handcuffs. After initially struggling by herself with the offender for a time she was assisted by (then) Constable Booth, who gave evidence. The evidence of Constable Nieuwesteeg concerning the sequence, intensity and duration of the struggle and events thereafter is consistent with the evidence of (now) Senior Constable Booth. I accept their evidence in that regard.
8. It is significant to note that Constable Nieuwesteeg is tall and the offender was restrained over a table in the interview room, with very little room to manoeuvre. I am satisfied that for much of the struggle it was necessary for Constable Nieuwesteeg to bend and twist while wrestling with the offender over the table and attempting (not altogether successfully) to avoid being bitten, punched and kicked.
9. Constable Nieuwesteeg's evidence was that she did not suffer an immediate onset of lower back pain, but was extremely concerned about the possibility of serious blood-to-blood infection, having been bitten by the offender, with blood drawn, and having come into contact with his blood. I accept that the offender was then known to Constable Nieuwesteeg as an intravenous drug user, and that she was fearful of the risk of infection as a result of the incident. Constable Nieuwesteeg stated that she experienced pain in her lower back sometime after the incident. She could not be precise as to when the pain started but was certain that she was experiencing significant lower back pain by 27 January 2000 when she travelled to Melbourne and during subsequent days. That evidence is consistent with the evidence of Ms Hagen and Ms Beck.
10. Constable Nieuwesteeg impressed me as a witness of truth who gave her evidence to the best of her recollection. The same can be said of Ms Hagen and Ms Beck. The only challenge to the reliability of their evidence was in terms of the accuracy of their recollection of events more than six years ago. I accept that with the effluxion of time memory may become opaque, the details of events once plain in chronology may become muddled and intermixed. Subsequent and environmental factors may intrude. Nevertheless some significant events, however distanced by time, remain undimmed in the memory. I accept that for Constable Nieuwesteeg the motor vehicle accident in November 1999, the incident with the woman and the dog in December 1999 and the subject incident of these proceedings on 24 January 2000 are such significant events. More precisely, Constable Nieuwesteeg was certain and unshakable in her memory of experiencing lower back pain as a result of the incident on 24 January 2000 or soon thereafter. Even though Constable Nieuwesteeg may have difficulty differentiating the details of every symptom she suffered as a result of those events, in terms of the relationship of each symptom to each particular incident, I am satisfied and I accept that her recollection of significant discomfort and pain in her lower back after the incident on 24 January 2000, as reported by her in the police report she prepared on 29 February 2000, is true.
11. I note that this is not a case in which Constable Nieuwesteeg stands to benefit financially if she succeeds in these proceedings. No additional payment of compensation will flow. That much, at least, was conceded by Comcare. Constable Nieuwesteeg has a compensable lower back injury as a result of the December 1999 incident with the woman and the dog and the motor vehicle accident in November 1999. It is not surprising in those circumstances that neither Dr Griffith nor Dr Talbot observed any effort by Constable Nieuwesteeg to embellish or exaggerate her symptoms on medico legal examination. Furthermore there is no apparent reason, by way of ulterior motive or material consequent gain, for her to embellish or exaggerate the symptoms she allegedly experienced following and as a result of the 24 January 2000 incident in her evidence before this Tribunal, and I am satisfied that she did not.
12. I now turn to address Comcare's submissions.
13. It is a fact that Constable Nieuwesteeg did not explicitly claim lower back symptoms in the claim form she completed in relation to the January 2000 incident on the morning of 27 January 2000 before departing on a flight to Melbourne. It is also true that she did claim lower back symptoms on a claim form she completed on that same morning in relation to the December 1999 incident. On 4 February 2000 Constable Nieuwesteeg completed a police statement in relation to the December 1999 incident in which she specified the lower back symptoms, among others, she suffered. On 29 February 2000 Constable Nieuwesteeg completed a police statement in relation to the January 2000 incident in which she specified, in the same terms, the lower back symptoms she suffered as a result of that incident. In the Comcare's submission the fact that she used the same words, in one sentence, to describe these symptoms in both statements diminishes the likelihood that she actually suffered lower back symptoms following the January incident. I do not agree. It is not unusual, as Constable Nieuwesteeg asserted, for police officers who frequently are called upon to write reports or statements to use elements of previous statements, as a template, when drafting such material if the facts permit it. Acceptance of Comcare’s submission on this point would compel a finding that Constable Nieuwesteeg deliberately set out to embellish or exaggerate her symptoms in the statement she completed on 29 February 2000, contrary to fact. I do not accept that she did.
14. Comcare submitted that Constable Nieuwesteeg did not suffer symptoms of back pain after the incident on 24 January 2000. Dr Peter Wilkins recorded Constable Nieuwesteeg's injuries for medico legal purposes on 25 January 2000.[7] He did not record any injury to Constable Nieuwesteeg’s lower back or to her face or head. His clinical notes made no reference to Constable’s Nieuwesteeg’s concern about blood-to-blood infection or any injury to her face or head. There is no reason to believe that Dr Wilkins examination of Constable Nieuwesteeg for the stated purpose of recording her injuries was deficient. Dr Wilkins gave evidence that he remembered the consultation because it was unusual. His clinical notes, to which he referred, did not indicate any lower back injury or symptomatology. Thus it is reasonable to conclude and I find that Constable Nieuwesteeg was either not experiencing lower back symptoms at the time she was examined by Dr Wilkins or if she was experiencing such symptoms her mind was distracted from those symptoms by other priorities, or the symptoms were not of sufficient intensity to cause her to inform Dr Wilkins. I accept Dr Wilkins’ evidence that at the time he was not aware of how Constable Nieuwesteeg's injuries had been caused. He was not aware of the nature of the assault on Constable Nieuwesteeg, or that she had been bitten, or that she was concerned or anxious about the risk of serious infection. Essentially Dr Wilkins recorded physical injuries that were apparent to him at the time.
[7] T4
15. The fact that Dr Wilkins did not record any lower back injury does not compel me to conclude this matter in favour of Comcare. Constable Nieuwesteeg’s Counsel asserted that her mind was primarily focused on the possibility that she had contracted a serious blood-to-blood infection such as HIV/AIDS or hepatitis as she asserts. I accept the evidence of Dr Griffith and Dr Talbot that such a consideration may distract a person from lesser concerns such as the precise location of symptoms of pain, discomfort or stiffness. Whether Constable Nieuwesteeg was in such a state of mind is unknown, however I accept in the circumstances that it was likely.
16. More significantly Dr Griffith's evidence was that the delayed onset of lower back pain as result of the December 1999 incident was consistent with a discogenic injury to lower spine. His evidence was that such an injury may involve tearing of the annulus, commonly evidenced by bulging or protrusion of the disk (a disc bulge was subsequently reported by Dr Watson in May 2000), as result of which the person may not experience symptoms of pain for a number of hours or days. His evidence was that pain arising from such an injury is likely to result from the effects of the injury on surrounding structures and tissue rather than from the injury to the disc itself. I accept that evidence.
17. Dr Griffith and Dr Talbot gave evidence that it was probable that Constable Nieuwesteeg did suffer an aggravation injury to her lower back as a result of the incident on 24 January 2000. Their opinions were predicated upon the history given by Constable Nieuwesteeg and their medical expertise in relation to spinal injury and related symptomatology. Both doctors were of the opinion that the violent intensity of the struggle in which Constable Nieuwesteeg was involved on 24 January 2000, and the twisting and bending stresses she experienced during that struggle, were sufficient, as a matter of probability, to have exacerbated or aggravated the previously existing lower back injury. I accept their opinions in that regard. I note that Dr Talbot was not inclined to the view that Constable Nieuwesteeg's injury in December 1999 was discogenic, contrary to the opinion of Dr Griffith. However Dr Talbot gave oral evidence that while a disc bulge of minor proportion such as that identified by Dr Watson in May 2000 was not necessarily indicative of injury, the duration of symptoms were more likely to be consistent with a discogenic injury than with an injury of a musculo-ligamentous kind.
18. Comcare submitted that the recollections of Constable Nieuwesteeg, Ms Hagen and Ms Beck are unreliable. In part, I agree. Dr Wilkins did not record any contusion or injury on Constable Nieuwesteeg's face or head. There is no contemporaneous evidence that Constable Nieuwesteeg suffered any such bruising or injury to her face or head as a result of the January incident. Constable Nieuwesteeg did not refer to any bruising or injury on her face or head at that time in her evidence. However, Ms Hagen and Ms Beck plainly stated that Constable Nieuwesteeg had significant bruising on her face when she arrived in Melbourne on 27 January 2000. They also gave evidence, consistent with Constable Nieuwesteeg's evidence, that Constable Nieuwesteeg was substantially incapacitated as a result of lower back pain over the ensuing days she spent in Melbourne at her father's house. Their evidence was that Ms Hagen drove Constable Nieuwesteeg to the Casey Medical Centre to consult Dr Auteri as a result of the lower back pain she was then experiencing. Dr Auteri’s records were obtained under subpoena. There is no record that Constable Nieuwesteeg consulted Dr Auteri in the days or weeks following the January incident. There is however a record of a consultation with Dr Auteri in similar circumstances in Melbourne in December 1999, following the incident with the woman and the dog. The evidence is that at that time Constable Nieuwesteeg had substantial bruising on her face. On that basis it is probable that Constable Nieuwesteeg, Ms Hagen and Ms Beck are mistaken about the timing of the visit to Dr Auteri and Constable Nieuwesteeg's facial bruising, and I so find.
19. Constable Nieuwesteeg gave evidence that she consulted Dr Rosendahl, her treating doctor, within days or a week of the January incident. However she could not be precise as to whether the consultation was before or after that incident. Dr Rosendahl's records were summonsed, but none were returned. Nevertheless, Comcare's records and relevant records of the Health Insurance Commission did not indicate that any consultation had taken place between Constable Nieuwesteeg and Dr Rosendahl in the days or weeks following the January incident. I note that the Health Insurance Commission records indicate that Constable Nieuwesteeg consulted Dr Rosenthal at the end of March, but there is no indication or evidence that this consultation was in relation to any lower back injury as a result of the January incident. I am satisfied that Constable Nieuwesteeg did not consult Dr Rosendahl in the days or weeks following the January incident and so find. That being so and in the absence of other documentary evidence I find that Constable Nieuwesteeg did not obtain professional medical treatment for any lower back injury in the weeks immediately following the incident on 24 January 2000.
20. However, Constable Nieuwesteeg's evidence was that she treated her lower back pain with analgesic and anti-inflammatory medications. That evidence is corroborated by Ms Hagen and Ms Beck who gave evidence that they witnessed Constable Nieuwesteeg taking such medication while staying at her father's house in Melbourne following 27 January 2000. While there are some doubts about the accuracy of Ms Hagen's and Ms Beck's recollections of these events, I am persuaded that their evidence should not be entirely rejected. It strikes me that while Ms Hagen and Ms Beck may have confused events surrounding the bruising on Constable Nieuwesteeg's face or head and her visit with her mother to Dr Auteri, their recollection of Constable Nieuwesteeg experiencing debilitating pain and discomfort in her lower back in the days after 27 January 2000 and self treating herself with medications is likely to be accurate if she was suffering discomfort and pain at that time. I note that Constable Nieuwesteeg obtained treatment from Dr Rosendahl[8] and was prescribed physiotherapy and medications following the November and December 1999 incidents.[9] Constable Nieuwesteeg’s evidence was that the physiotherapy was of very little benefit. In that light Constable Nieuwesteeg’s evidence that she treated herself after the 24 January 2000 ‘flare-up’ of her lower back condition appears reasonable, especially if the symptoms were not sufficient to warrant attendance upon Dr Auteri or at the Valley Hospital. I note that Ms Beck had no difficulty distinguishing an episode of severe and debilitating back pain Constable Nieuwesteeg suffered on the evening before Ms Beck's wedding later in 2000 from earlier similar episodes.
[8] see T32(a)
[9] also see Dr Razif’s report at T32(b)
21. In conclusion I am persuaded that it is more probable than not that Constable Nieuwesteeg did in fact suffer pain, stiffness and discomfort in her lower back for a period after the 24 January 2000 incident. It is probable that she treated herself with medications during her visit to Melbourne on 27 January 2000 and during subsequent days. I do not accept, however, that the signs and symptoms she experienced at that time were especially severe as they were not sufficient to compel her to obtain professional medical treatment.
22. I accept that the symptoms of pain, stiffness and discomfort she experienced at that time were the result of a temporary aggravation of her previously existing lower back injury, and I so find. I am satisfied that her symptoms over a number of days following 27 January 2000 were sufficient to cause temporary incapacity and impairment.
23. That being so, I am reasonably satisfied, on the balance of probabilities as opposed to mere possibility, that Constable Nieuwesteeg suffered an aggravation injury to her lower back on 24 January 2000 in compensable circumstances. It follows that the decision under review is set aside.
24. As the matter is resolved in Constable Nieuwesteeg’s favour it is appropriate to consider the issue of costs pursuant to subs 67(8) of the Act. The parties have asked to be heard on this question. Thus, written submissions will be received addressing the costs issue within the following timetable. Comcare is to file and serve its written submissions within 7 days. Constable Nieuwesteeg is to file and serve her written submissions within 7 days thereafter. On receipt of submissions the Tribunal will determine orders in relation to costs. There is liberty to apply.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Peter Edwards
AssociateDate of Hearing 16 – 18 October 2006
Date of Decision 26 October 2006
Counsel for the Applicant Mr Ken Archer
Counsel for the Respondent Mr Steven Whybrow
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