Paddison and Comcare
[2005] AATA 146
•17 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 146
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2004/15, Q2005/31
GENERAL ADMINISTRATIVE DIVISION ) Re JANELLE DULCIE PADDISON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date17 February 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...........[Sgd]........
Member
CATCHWORDS
COMPENSATION – Injury – Whether injury sustained by applicant when riding a bicycle was while undertaking ‘medical treatment’ – Whether applicant’s hip injury arose out of or in the course of her employment – Whether applicant aggravated a wrist injury in the course of employment – Tribunal not satisfied that the applicant was undertaking ‘medical treatment’ – Neither hip injury nor wrist injury aggravation occurred in the course of employment – Decision under review affirmed.
Fyfe and Comcare [2000] AATA 769
REASONS FOR DECISION
17 February 2005 Ms MJ Carstairs, Member 1. This is an application by Janelle Paddison (the applicant) for review of decisions made by Comcare in relation to three injuries which the applicant asserts arose out of or were aggravated by her employment.
2. The applicant represented herself at the hearing on 3 February and 4 February 2005. The respondent was represented by Mr C Clark of counsel instructed by Dibbs Barker Gosling, Solicitors.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A4 for the applicant and R1 – R3 for the respondent.
BACKGROUND
4. The applicant was born on 15 September 1961. She was employed by the Australian Protective Service as a Protective Service Officer from 1989 and worked at Brisbane Airport. In 1998 she sustained a severe twisting injury to her ankle, cuts and bruising to her left elbow, and bruising to her back in a fall at work at the airport (the 1998 injury). The respondent accepted her claim for compensation for the 1998 injury.
5. In 2001, the applicant made a civil claim on Brisbane Airport Corporation for damages in relation to the 1998 injury. This claim was settled in 2003 and the applicant received $350,000 plus costs however Comcare recovered $153,256.99 in compensation paid to the applicant (T153: Q2004/15).
6. On 28 February 2001 the applicant was injured when she fell from her bicycle (the bicycle incident). The injuries sustained in the bicycle incident were treated by the respondent at the time and for purposes of accepting liability for compensation, as an extension of the claim in relation to the 1998 injury. Liability was accepted for left ankle strain, soft tissue injury to left elbow, secondary muscular strain of right hip (T89: Q2004/15). Later, however, the respondent revoked the determination accepting liability for injury arising from the bicycle incident. The delegate concluded that the bicycle incident was not compensable either as an extension of the 1998 injury (s48 of the Safety Rehabilitation and Compensation Act 1988 (the Act) would prevent this) nor in its own right, it being asserted by the delegate that the bicycle incident did not arise in compensable circumstances (T163: Q2004/15).
7. On 2 October 2002 the applicant made a further claim for compensation after she experienced increased pain in her wrist, which was originally injured in the bicycle incident (the wrist injury). The wrist injury was stated to have occurred on 5 September 2002 while the applicant was working on a work trial of administrative duties at the registry of Administrative Appeals Tribunal (the AAT registry). The claim for the wrist injury was rejected on 16 April 2003 (T143: Q2004/15) and this decision was affirmed on review by a delegate on 13 December 2003 (T163: Q2004/15).
8. On 17 August 2004 the applicant claimed for muscular strain of the right hip which she stated had occurred on 4 September 2001 (the hip injury). Her claim was rejected on 23 November 2004 (Q2005/31: T7), a decision affirmed on review on 10 January 2005 (Q2005/31:T9).
9. The issues for the Tribunal are whether the bicycle incident is compensable; whether the applicant suffered injury to the hip that arose out of or in the course of her employment; and whether the applicant aggravated an injury to her wrist in the course of employment.
EVIDENCE
the bicycle incident
10. The applicant gave evidence that she had taken up bicycle riding as part of her rehabilitation from the 1998 injury. She said that she was told by her medical practitioner, Dr Hur, that she should use whatever she had available to her to rehabilitate herself and recover from the 1998 injury. The applicant said that what she had available included use of a swimming pool, bicycle riding and walking. She said that Dr Hur and other medical practitioners were aware that she was riding a bicycle for exercise as part of her rehabilitation. Under cross examination the applicant said that she could not recall whether Dr Hur had specifically told her to undertake bicycle exercise. She said, referring to a report (T27:Q2004/15) completed by her physiotherapist, Ms D Grimmer, that Dr T Saxby, orthopaedic surgeon, had said she should undertake “non-land-based” exercise. The applicant said that she had interpreted Dr Saxby’s remark to include swimming and bicycle riding, however she said she was unsure whether she had told Dr Saxby that she was undertaking bicycle riding.
11. The applicant said that she was conscious that she must exercise if she was to satisfy the stringent standards required to achieve fitness levels that would allow her to return to the full range of duties required for the position of security officer at the airport. She said also that she was aware that exercise was part of recognised medical treatment for the condition of reflex sympathetic dystrophy, which she developed after sustaining the 1998 injury.
12. The applicant said that when she returned to work on partial duties at the airport after the 1998 injury, she undertook exercise before going on duty, so that her muscles would be warmed up sufficiently for the walking involved in the job. She was undertaking warming up exercise by bicycle riding when the bicycle incident occurred. She said the bicycle skidded on stones and she was thrown to the ground, landing heavily on her back. She was taken by ambulance to hospital and was found to have sustained a broken elbow, damage to her wrist, injury to her back and she had re-injured her ankle.
13. The applicant agreed under cross-examination that she had accepted the civil settlement of the claim in relation to the 1998 injury on the basis of legal advice that it would be difficult to establish that the bicycle incident was related causally to the 1998 injury.
14. In a file note (undated) (T53) Ms M Valdez, Comcare officer recorded that the applicant had telephoned concerning the bicycle incident which had occurred the day previously, and Ms Valdez recorded that the applicant said she initiated this exercise because her specialist said she needed to exercise. Bicycle exercise wasn’t specified but thought this addresses specialist’s suggestion.
15. In a report dated 20 February 2001 Dr C Hur, general practitioner, stated:
Above named lady, as part of her rehabilitation for her compensable condition….was undergoing strengthening exercise, flexibility, and hardening process as recommended. It is my understanding that during this process she had a fall causing L ankle, L elbow injury.
16. Dr C Staples, neurologist, had prepared three written reports on the applicant (T50, T62, T68: Q2004/15). He gave oral evidence that he had made no notation in his clinical notes concerning exercise, nor bicycle riding, though he said his usual advice in the treatment of reflex sympathetic dystrophy is for the patient to exercise.
17. The Tribunal also had oral and written evidence (exhibits A4 and A5) from Ms C Evans, who was present at the applicant’s medical appointments and when the bicycle incident occurred. She stated that she could not recall whether Dr Saxby gave examples of what he meant by “non land-based exercise”.
the hip injury
18. The applicant said that she did not injure her hip in the bicycle incident. The applicant said that the notes of investigations at the hospital on the day of the bicycle incident (Q2004/15: T51) confirmed that she sustained no injury to her hip.
19. The applicant said that on 2 September 2001 she was undertaking her duties at the airport with another officer, Ms S Birnbaum. They were patrolling together in what the applicant said was a ‘buddy system’ where two worked together if one was not sufficiently fit to satisfy all the medical requirements of the position. She said that at that stage she was unable to pass the baton tests and could not patrol alone. The applicant said that during the patrol she and Ms Birnbaum were descending stairs at the airport when the applicant was seized with pain in her right hip which immobilised her for several minutes. She said that the weight of her equipment increased the pain. She said however that she was able to finish her shift and attend the gymnasium later that day, where her pain worsened.
20. The applicant said that she reported the incident to her physiotherapies and case manager the next day. She was questioned concerning why the incident on the stairs and any witness to it was not mentioned in her claim for compensation for the hip injury (Q2005/31:T4). She said that she had completed this form incorrectly when making her claim years later. She said that at the time she would have mentioned the occurrence to her doctor, Dr Caligaris and could recall mentioning it to her compensation case manager, Mr T Mihelcic.
21. The clinical notes of her general practitioner, Dr A Caligaris (exhibit R3) recorded on 4 September 2001 that the applicant presented with:
3/52 ..R) hip pain. Hurts mainly at work when gun belt 7kg pressing on (R) side or when sitting for a while and goes to stand up or if lies on (R) side….muscular strain as result of rehab gym program
22. In a report dated 4 September 2001 (Q2004/15: T88(a)) Dr Caligaris stated:
This lady is currently suffering with a muscular strain of her right hip. I believe most likely this is due to her favouring her right leg during work and whilst she is participating in her gym program for rehabilitation.
23. Dr Caligaris repeated her view that the applicant’s right hip pain was due to an injury that occurred in a gym program in her report dated 5 December 2001 (Q2004/15: T101).
24. In a written statement dated 14 January 2005 (exhibit A3), Ms Birnbaum stated that the applicant complained to her about extreme pain or spasm in her hip region when they were on duty together at the airport on 2 September 2001. She stated that the applicant was unable to move for some ten minutes. In oral evidence, however, Ms Birnbaum said that the applicant had a problem with her back. When she was cross-examined on this she said that she meant the applicant had pain from her back to the hip region. She said that she had made a diary note of the incident at the time it occurred, however this diary note was not produced.
25. In written reports dated 26 April 2002 (Q2004/15:T110), 9 September 2002 (Q2004/15:T117) and 19 November 2002 (Q2004/15:T135), Mr M Wearne, orthopaedic surgeon reviewed the applicant’s symptoms after the 1998 injury and the bicycle incident. In his first report he noted that the applicant had a normal range of movement of both hips though she complained of some areas of tenderness, which he thought was bursitis, and was probably related to the bicycle incident.
26. Mr Wearne agreed under cross examination that if the applicant had fallen on her left side in the bicycle incident it was less likely that the bicycle incident was a cause of her right sided bursitis.
27. In a report dated 9 January 2003 (exhibit R1) Dr J Fraser, orthopaedic surgeon, stated that the applicant had no fixed deformity of the hip, and had a full active range of motion in that joint though she complained of pain.
the wrist injury
28. The applicant gave evidence that her wrist originally was injured in the bicycle incident. She said however that her wrist recovered after the bicycle incident and she said that this was reflected in her passing her baton test for security duties at the airport during 2001. The applicant said that her wrist was aggravated when she was pushing to replace files into the compactus at the AAT registry during the work trial in September 2002. She said that she heard her wrist crack. She said that her claim never been properly understood as a claim for the aggravation of an earlier injury.
29. The applicant was taken to her claim form in regard to the wrist injury (T123(a)), where she stated in answer to a question concerning what event may have contributed:
The wrist never resolved and started becoming painful when lifting and carrying files.
When she was questioned why she made no reference to the incident pushing the files, she said she had misunderstood the nature of the question on the claim form. She said that since the bicycle incident she has experienced a constant throbbing in the wrist, and the wrist locks if pressure is placed on it.
30. The following medical reports referred to the applicant’s wrist condition:
§ Mr M Wearne, in reports dated 26 April 2002 (Q2004/15:T110), 9 August 2002 (Q2004/15:T117) and 19 November 2002 (Q2004/15:T135)
§ Dr J Fraser, report dated 9 January 2003 (exhibit R1).
§ Reports of Dr P Rowan, orthopaedic surgeon dated 16 July 2001 (Q2004/15: T82), 24 March 2003 (Q2004/15: T141)
31. In his first report Dr Rowan said that the applicant sustained a wrist injury in the bicycle incident, and complained of clicking or grating in the wrist. Examination of the wrist however revealed a full range of motion in all directions though with a noticeable click in the left wrist. Dr Rowan considered that the symptoms would ultimately settle and required no surgical treatment. When Dr Rowan saw the applicant in 2003, he recorded that she complained of continuing pain in her left wrist, worse with typing and she reported a painful click in her wrist. He said that there was no objective evidence of any pathology, but concluded that her pain had commenced with the bicycle incident and was attributable to it. In oral evidence Dr Rowan confirmed that the applicant had not mentioned an incident at the AAT registry where her wrist cracked when she was pushing files.
32. Dr Fraser reported that her wrist had been sore since the bicycle incident, and that she complained of areas of numbness, as well as crepitus in the left wrist, which was worsened by typing. On clinical examination however he found no measurable impairment of the left wrist. He said there was no swelling; there was full range of motion and normal intrinsic power; however there was some crepitus on movement of the left wrist.
33. In a report dated 23 October 2001 (Q2004/15:T97) Ms D Bailey, physiotherapist, reported that the applicant was able to carry out the following exercises:
§ bench press: 25kg x 20
§ curls: 7kg x 20
§ rowing : 2.5 km in 12 minutes
In a report dated 27 September 2002 (Q2004/15: T122) Ms Bailey stated:
(The applicant) returned to the gym this week after and absence of about five weeks. This absence she put down to the flu…This past week she had attended on three occasions. On the day of assessment Janelle had ridden 5 kms to the gym, played one hour of squash and had then ridden home….She is doing a mixture of cardio and weights.
CONSIDERATION OF THE ISSUES
34. Section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) provides for the payment of compensation for injury if the injury results in, amongst other things, incapacity or impairment. Injury is defined in s4 of the Act to include an aggravation of a physical injury, and aggravation is there also defined as including an acceleration or a recurrence. Medical treatment is defined in s4 of the Act and includes therapeutic treatment at the direction of a medical practitioner, as well as therapy under the supervision of a range of health professionals. Liability for the payment of compensation is extended by s4(3) to the circumstances where a person suffers further injury as the result of medical treatment, where compensation was payable for the injury for which the person was being treated at the time and it was reasonable for that treatment to have been undertaken.
the bicycle incident
35. The applicant submitted that the respondent had incorrectly treated her claim for injuries sustained in the bicycle incident as an extension of the 1998 injury and on that basis later revoked the determination. She submitted, relying on reports from Dr Hur and Dr Donnelly, that she was undertaking medical treatment when she sustained injury in the bicycle incident.
36. From her evidence it was clear that the applicant was using the term rehabilitation in a very general sense. The Tribunal accepts that she was genuinely making every attempt after the 1998 injury to achieve her fitness levels to return to her duties as a security officer. Her keenness to do so was referred to in several places in the documentary materials, and was noted by Dr Wearne who particularly urged to the respondent that the applicant’s enthusiasm would not be matched by her capacity, given the injuries that she had sustained.
37. The Tribunal was not satisfied that the applicant was undertaking bicycle riding as medical treatment within the meaning of the Act, and as defined in s4 at paragraphs (a), (b) (d) or (i) of the definition as each requires that the supervision or direction of a medical or health professional is in place.
38. On the applicant’s evidence this was not the case. Her evidence was that recommendations were made for her to exercise to assist her recovery, but she could not say affirmatively that she had discussed bicycle riding with either Dr Saxby or her general practitioner. She referred to the recommendations from Dr Saxby that she undertake “non land-based” exercise, but it was her own assumption that this would include bicycle riding. The most telling evidence of this is the file note recorded after the conversation with a Comcare officer the day after the bicycle incident that the applicant had said that bicycle exercise was not specified by her medical practitioners.
39. Dr Hur’s report of 20 February 2001 (Q2004/15:T54) does not assist the applicant. It is prepared after the bicycle incident ant there is no earlier report from him which states that he recommended or was supervising bicycle riding. Whilst the 20 February 2001 report refers to the applicant having fallen from the bicycle when undergoing strengthening exercise as part of her rehabilitation, there is nothing in that report that suggests that this was on his recommendation, nor that he was aware that she was doing it, a point further confirmed by his use of the phrase it is my understanding in that report.
40. There is no evidence that the bicycle exercise was supervised by or directed by a medical practitioner. It can be inferred from the references to “non land-based exercise” that practitioners would have advised against it. There was no rehabilitation program in place for the applicant at the time of the bicycle incident so this does not provide a basis for compensation for the injuries sustained in it.
41. For these reasons the Tribunal was satisfied that the decision to revoke the determination that the bicycle incident was compensable under the Act, was the correct decision.
the hip injury
42. The Tribunal took into account that the applicant did not refer to the occurrence of the incident at the airport when she made her claim for the hip injury in 2004. In the claim form she had stated that she was injured during sporting activities and gave the location as the gymnasium at Albany Creek. In her statement of facts prepared for the hearing the applicant made no reference to the circumstances of being immobilised on the stairs with hip pain on 4 September 2001. The Tribunal gained no assistance from the evidence of Ms Birnbaum and formed the impression that she had written her statement as a way of supporting her former work colleague. The Tribunal does not accept that the applicant was immobilised with hip pain at the airport on 4 September 2001.
43. The Tribunal took into account that Dr Caligaris’s clinical notes made no mention of the incident on the stairs and it is unlikely that a disabling event where the applicant was immobilised for some ten minutes would not have been mentioned when the applicant saw the doctor. Dr Caligaris concluded in her report in December 2001 that the hip injury was sustained at the gymnasium.
44. The Tribunal took into account that Dr Wearne conceded that if the applicant did not fall on her right hip in the bicycle incident then it was unlikely that right sided bursitis would be related to the bicycle injury. However this does not assist the applicant in establishing that her hip injury was work related. As the applicant pointed out, the medical records of her admission to hospital record nothing concerning any hip injury.
45. The medical evidence therefore strongly points to the applicant having sustained an injury at the gymnasium and not in circumstances which are compensable under the Act. For these reasons the claim as it relates to hip injury fails.
the wrist injury
46. The Tribunal agrees with the applicant’s submission that the wrist injury arose in the bicycle incident. The Tribunal has found above that any injury arising in the bicycle incident is not compensable. The Tribunal agrees with the applicant’s submission that her claim is properly one of aggravation of an existing injury.
47. The Tribunal does not accept however that the applicant’s wrist injury resolved after the bicycle incident as she said. All the medical evidence points to the applicant having some continuing impairment present after the bicycle incident, though it appears to have been mild. In Dr Wearne’s report in April 2002 he reported that the applicant complained of occasional pain and cracking in her left wrist. The applicant told Dr Fraser in 2003 that the left wrist had been sore since the bicycle incident. No mention was made in that consultation of any intervening event of the kind the applicant now says occurred when she was working at the AAT registry. The applicant did not mention any flare up of her wrist when she was working at the AAT registry when she had consultations with Dr Rowan in January and February 2003.
48. The applicant was diagnosed by Dr Rowan in July 2001 as having sustained a soft tissue injury to the left wrist in the bicycle incident. He considered the wrist condition would settle. Dr Fraser found no measurable impairment in the left wrist in 2003. He said that there was some crepitus but there was no swelling, and she had full range of movement and strength. Dr Rowan’s conclusions are similar: he noted that x-rays and imaging of the joint in July 2001 and March 2003 were normal.
49. The Tribunal took into account that the applicant made no mention on her claim for the wrist injury that it had occurred in the circumstances of pushing a file at the AAT registry and agrees with the submission of Mr Clark that this makes it less likely that her recent account of what occurred at the AAT registry is true, especially when she did not mention it to the medical practitioners who were reporting on her wrist.
50. The Tribunal also took into account the report of the applicant’s physiotherapist in September 2002. This report shows the applicant was able to carry out substantial activity in the gymnasium in the same month that she says she sustained the aggravation of the wrist injury. It is significant that the report makes no mention of a recent wrist injury.
51. The Tribunal was satisfied that the applicant sustained a wrist injury in the bicycle incident and that she was left with a minor residual impairment in that she would experience pain and clicking or cracking on certain wrist movements. Even if the applicant did experience cracking when she was pushing files at the AAT registry, which is doubtful as it is not mentioned in her claim, the Tribunal was not satisfied that any aggravation of the injury occurred. The applicant was able to undertake considerable gymnasium work around the same time, and the medical reports from 2001 to 2003 show that the condition of her wrist changed little from the time of the injury to the wrist sustained in the bicycle incident. A temporary flare up of a condition is not compensable under the Act: Fyfe and Comcare [2000] AATA 769. For these reasons the applicant’s claim for aggravation of her left wrist condition fails.
DECISION
52. The Tribunal affirms the decisions under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: C Banks
Associate
Date/s of Hearing 3 and 4 February 2005
Date of Decision 17 February 2003
The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs, Barker Gosling
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