Panov and Telstra Corporation Limited
[2006] AATA 1500
•12 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1500
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1473
GENERAL ADMINISTRATIVE DIVISION ) Re
SLAVICA PANOV
Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr I Alexander, Member
Date12 December 2006
PlaceSydney
Decision The decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
..............................................
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – claim for compensation for “neck pain” post March 2003 – whether the Applicant’s current symptoms can be causally related to the injuries she suffered in a motor vehicle in March 2001 – inconsistent symptoms and history of neck pain supplied by Applicant – inconsistent diagnoses and contrary opinion provided by medical practitioners – Tribunal satisfied that the Applicant’s current and ongoing symptoms are not causally related to the injuries she suffered at the time of the motor vehicle accident – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 s 14
REASONS FOR DECISION
12 December 2006 Senior Member M D Allen
Dr I Alexander, Member1. By application made on 21 November 2005, the Applicant sought review of a reviewable decision made 28 October 2005, which decision affirmed a prior determination denying compensation to the Applicant for the injury described as “neck pain” post 17 March 2003.
2. There is no dispute that the Applicant was injured in a motor vehicle accident whilst on her way to work on 17 March 2001. As a result of that motor vehicle accident she suffered an injury colloquially described as “whiplash injury”. On 1 June 2001, the Respondent’s insurer accepted liability for an injury described as “neck and back strain”.
3. On 3 November 2001, the Respondent purported to cease liability under s 14 of the Safety Rehabilitation and Compensation Act 1988.
4. The Administrative Appeals Tribunal, in a decision dated 18 July 2003, directed that the Respondent was liable to pay compensation, being the cost of all reasonable medical treatment obtained by the Applicant in relation to her neck, for the period 17 March 2001 to 17 March 2003.
5. On 10 November 2004, the Applicant wrote to the Respondent’s insurers seeking to “reopen” her claim, stating she required further treatment and tests in relation to her neck injury. This letter was treated as a claim but liability was denied on 23 December 2004.
6. At the time of the Administrative Appeals Tribunal matter in 2003 the Applicant’s General Practitioner, Dr Vago, provided a report. In that report he stated:
“History given by the patient: Ms Panov stated that she suffered injuries in a motor vehicle accident on Saturday, 17th March, 2001 … In the crash she hit her head, and sustained injuries to the neck, and left foot. She has been complaining of headaches and neck aches.
Physical Examination: … Examination of the cervical spine revealed tenderness on palpation over the posterior aspect. This tenderness was maximum over the C4/5 disc joint line. Cervical spinal flexion and extension were reduced in range of movements. Lateral flexion of the cervical spine was reduced in both left and right directions. There was obvious para-cervical spasm noted at examination. Tenderness also extended downwards along the superior fibres of the left and right trapezius into both shoulders.”
7. Significantly, at paragraph 6 of his report, Dr Vago stated:
“C.T. scan of the CERVICAL SPINE performed on 23/7/01 revealed no gross injury or fracture.”
8. In a report to the Respondent’s solicitor dated 15 October 2002, Dr Perrett, surgeon, opined:
(1)The diagnosis is of some temporary musculo-ligamentous injuries to the neck as a result of a motor vehicle accident on the 17th March, 2001.
(2)It is reasonable to assume that those neck injuries arose from the work journey on the said date.
(3)(a) While she may have sustained some soft tissue injuries to her neck as a result of the accident there is no indication that she is still suffering from the effects of those injuries.
(b)Any work incapacity was short-lived, only a matter of a few days, and there was no suggestion that she has suffered from any work incapacity since this time; that is in keeping with the known pattern of devolution of the pathology of mild trauma.
9. The Applicant’s history post the motor vehicle accident is at times inconsistent. To the Tribunal, she conceded in cross-examination, that in the year the motor vehicle accident happened, there had been periods when she had been pain free, but since 2003 and 2004 she had been in constant pain.
10. When examined by Dr Perrett in 2002 the Applicant gave Dr Perrett a history of returning to work a few days after the accident and feeling better. She did take the odd day off when the pain “flared up”. According to Dr Perrett, the Applicant said that the pain went away for a few months but came back from time to time, especially when the weather changed.
11. In August 2002, and prior to being examined by Dr Perrett, the Applicant had written to the Respondent’s insurer stating that Dr Vago had treated her every month (for neck pain). Dr Vago’s clinical notes are in evidence as Exhibit A7. These notes reveal that far from treating the Applicant “every month” in 2002, there was a gap of some eight months when she did not seek treatment from Dr Vago at all.
12. On 30 March 2002, the Applicant attended Fairfield Hospital complaining of neck pain. She gave a history of having awoken with neck pain and said that by the time she attended Fairfield Hospital the pain was unbearable. In evidence she said that on a scale of 1-10 her pain was at level 10.
13. Exhibit A6 is the clinical notes of Fairfield Hospital. They record that the Applicant awoke with neck pain two days prior. The notes also state “MVA last year – whiplash. No sequalea”, and a diagnosis of Torticollis was made. We regard the entry of “no sequalea” when referring to whiplash injury as significant. This history could only have come from the Applicant, and confirms her evidence that after a period her neck pain from the motor vehicle accident abated.
14. A CT scan of the Applicant’s cervical spine was carried out on 23 July 2001. The report of that scan reads :
“No disc lesion can be seen and there is no canal, lateral recess or neural foramen narrowing. No bony lesion can be seen”.
15. A further CT scan was carried out on 19 October 2004. This scan referred to a soft tissue density lesion just posterior to the left C7 vertebral body, suggestive of a sequestrated disc fragment. This CT scan report must be contrasted to the report of an MRI scan carried out on 10 May 2005. The report of that imaging reads :
“The signal and morphology of the entire cervical spinal cord is normal.
There is desiccation of the upper five cervical intervertebral discs.
There are shallow annular bulges at C3/4, C5/6 and C6/7.
At the C6/7 level, uncovertebral osteophyte formation on the left is slightly indenting the thecal sac but is not causing any spinal stenosis, cord compression or nerve root compressive lesion.
In the remainder of the cervical spine there is no focal disc protrusion spinal stenosis or nerve root compressive lesion.”
16. Both Professor Sambrook, who was called by the Applicant, and Dr Dalton for the Respondent, stated that an MRI scan is considered superior to a CT scan for soft tissue imaging. We therefore prefer the evidence of Dr Dalton that having examined both the CT and MRI scans (rather than simply having regard to the reports of those scans), any changes shown on the CT scan were not related to the motor vehicle accident.
17. Professor Sambrook, Rheumatologist, obtained a history from the Applicant that she continued to be troubled by continuing symptoms after returning to work. The symptoms did settle for about three to four months, somewhere around 2002, but came back with a severe attack resulting in her attending Fairfield Hospital.
18. In the opinion of Professor Sambrook, the Applicant suffers from evidence of disc degeneration with probable nerve compression resulting from the motor vehicle accident. In particular, his opinion was formed by the fact that the Applicant was quite young to be developing the degeneration in her cervical spine shown on imaging, plus that the osteophyte formation at the C6/7 level was on one side only and at one level. Professor Sambrook could not recall whether he had seen the MRI imaging or whether he had relied upon the report of that imaging.
19. Dr Dalton, a physician in rehabilitation medicine, was of a contrary opinion. He opined that the degenerative changes shown on the Applicant’s MRI scan (which he saw), were similar to those commonly found in her age group, and that on the evidence available to him, the Applicant’s initial symptoms and signs and subsequent history. were of insufficient severity to warrant a finding that the observed degenerative changes were as a result of the motor vehicle accident.
20. With regard to the discrepancies in the recent CT and MRI scans, Dr Dalton confirmed that CT scans are not as useful as MRI scans in assessing soft tissue density. He suggested that perhaps the changes seen on the CT scan in 2004 were in fact not an abnormality, or alternatively, he speculated that an acute disc sequestration had occurred and spontaneously resolved. He added however, that the clinical presentation in 2004 was not entirely consistent with an acute disc sequestration. Furthermore, in response to a question from the Tribunal, Dr Dalton stated that disc sequestration in the cervical spine is not very common and that one would expect to find significant deterioration in a disc in which there was a significant sequestration.
21. In November 2004, the Applicant was referred to Dr Chan, a physician specialising in rehabilitation medicine, who provided a report dated 29 November 2004. Dr Chan noted a history of fluctuating neck pain over a three year period, with increasing pain radiating to the left shoulder, arm, forearm and the left 2nd to 5th fingers over the preceding three to four months. On physical examination he noted that the neck had a full range of motion and that there was tenderness at the C5 level. He noted that the Applicant complained of pins and needles when the C5 level was pressed and that there was subjective reduced pin prick sensation at the left C5 and C6 dermatome.
22. Dr Chan noted that a recent CT scan of the cervical spine was reported to show “a large C6/7 disc prolapse” which led him to make a diagnosis of “left C5/C6 radiculopathy probably secondary to cervical disc prolapse”.
23. He went on to suggest an MRI scan to assess the extent of nerve root impingement. We note that neither the CT scan nor the MRI scan support Dr Chan’s diagnosis and therefore we place little weight on his opinion. We would also note that the findings on physical examination seem to vary with each medical practitioner.
24. There is no dispute that the Applicant was involved in a motor vehicle accident on 17 March 2001 on her way to work and as a result suffered some injuries. A diagnosis of whiplash was made but symptoms did seem to settle. Cervical spine x-rays and a CT scan in 2001 were entirely normal.
25. The history of the Applicant’s neck problem since the motor vehicle accident is contradictory, and the contemporaneous clinical notes of the then General Practitioner and hospital records are not very helpful, but tend to suggest variable and inconsistent symptoms. Upon consultation with specialist medical practitioners, no consistent clinical diagnosis has been forthcoming, and the findings on physical examination by those medical practitioners have not provided a consistent clinical picture.
26. Contrary to his evidence that an MRI scan is a more sensitive imaging investigation, Professor Sambrook appears to prefer the reported findings of the CT scan in 2004 rather than those of the MRI scan in 2005. Although he acknowledged the discrepancy between the two scans, his explanation was not convincing. His opinion depends significantly on the proposition that a 33 year old woman is unlikely to have the changes described in the Applicant’s MRI without previous trauma. We are not satisfied that this is a reasonable proposition. He supports his opinion with general information about whiplash from the medical literature but in our view does not sufficiently explain its relevance to the Applicant’s situation. In his evidence he did not consider alternative explanation for the Applicant’s symptoms.
27. The Respondent relies mainly on the evidence of Dr Dalton, who is of the opinion that the Applicant suffered an injury at the time of the accident, but that the injury was temporary and that she had fully recovered. He considers that there is an alternative diagnosis to explain the Applicant’s ongoing symptoms and that the treatment she has been receiving has not been appropriate for her needs. He acknowledges that the Applicant has evidence of mild degenerative disease of the cervical spine, but is of the opinion that his findings on physical examination and the radiological evidence do not support a proposition that her ongoing symptoms are due to cervical disc disease. He does not accept that trauma is the only explanation for the nature of the degenerative changes seen in the Applicant as a 33 year old woman, thus disagreeing with Professor Sambrook.
28. Having regard to all the material before us, and in particular the varying symptoms and apparent lack of attendance upon her General Practitioner for neck pain for a period of some eight months, plus the opinion of Dr Perrett following an examination in 2002, we found Dr Dalton’s opinion to be more persuasive and therefore, on the balance of probabilities, we find that the Applicant’s ongoing and current symptoms are not causally related to the injuries she suffered at the time of the motor vehicle accident.
29. The decision under review will therefore be affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal
Signed: .....................................................................................
Associate
Dates of Hearing 20 & 21 November 2006
Date of Decision 12 December 2006
Counsel for the Applicant Mr David Richards
Solicitor for the Applicant Castagnet Lawyers
Counsel for the Respondent Mr Brendan Kelly
Solicitor for the Respondent Henry Davis York Lawyers
0
0
0