Panov and Telstra Corporation Ltd
[2003] AATA 677
•18 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 677
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1151
GENERAL ADMINISTRATIVE DIVISION ) Re Slavica Panov Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Professor Tania Sourdin, Member Date of Hearing 19 May 2003
Date of Decision 18 July 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that:
1. The Respondent is liable under section 16(1) of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) to pay compensation to the Applicant, being the cost of all reasonable “medical treatment” (as defined in section 4(1) of the Act) obtained by the Applicant in relation to the physical injury to her neck from 17 March 2001 to 17 March 2003, subject to proof being provided to the reasonable satisfaction of the Respondent that the cost of such medical treatment has been incurred by the Applicant.[Sgd] Prof T Sourdin, Member
CATCHWORDS
WORKERS COMPENSATION – liability – soft tissue neck injury - whether applicant suffering from a compensable or continuing injury – decision set aside
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 sections 14 and 16.
CASE LAW
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
REASONS FOR DECISION
18 July 2003 Professor T Sourdin, Member 1. This is an application for review of a decision dated 26 July 2002 made by GIO Australia (“the Insurer”) the insurer of Telstra Corporation Limited (“the Respondent”). This decision affirmed an earlier decision of the Insurer dated 5 November 2001 which determined that Telstra was not liable to pay compensation to Ms Slavica Panov (“the Applicant”) in respect of neck and back strain.
2. This matter was heard before the Tribunal on 19 May 2003. In addition to the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), the Tribunal had before it the following exhibits:
Exhibit
Description
Date
A1
Medical report of Dr Vago
7 February 2003
A2
Sydney Spinal Care tax invoice statements relating to chiropractic treatment
10 January 2003
A3
Five tax invoices from Blue Cross Medical Centre relating to acupuncture treatment
9 - 13 April 2002
R1
Respondent’s Statement of Facts and Contentions
8 November 2002
R2
Respondent’s Statement of Issues
18 September 2002
R3
Report of Dr Perrett
15 October 2002
R4
Report of Dr Perrett
26 February 2003
R5
Dr Vago clinical notes
Various dates
R6
X – ray report of Dr McDonald
25 May 1987
R7
Report of Dr R Goreman
2 June 1990
R8
Sydney Spinal Care notes
29 June 2002
R9
Fairfield Hospital Emergency Department notes and clinical record
30 March 2002
3. The Applicant appeared unrepresented at the hearing. Mr Brendan Kelly, counsel appeared for the respondent. Issues about the Applicant’s representation were raised with the Applicant and both the Respondent and Applicant concurred that this issue had been raised in three pre-hearing conferences. The Tribunal heard evidence from the Applicant.
LEGISLATION
4. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988 (“the Act”), especially sections 14 and 16(1).
14 Compensation for Injuries
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.
14(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
14(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
…
16 Compensation in respect of medical expenses etc.
16(1)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.
…
FACTUAL BACKGROUND
5. On 17 March 2001, the Applicant was involved in a motor vehicle accident on her way to work. She suffered soft tissue injuries to her neck and head when a taxi collided with the vehicle that she was driving. She did not attend a doctor and continued to work by train, as her car was irrecoverable. When she awoke the next day the Applicant found that she was suffering from pain which she attributed to the accident. On 18 March 2001, the Applicant saw Dr Vago, who had been her local treating doctor for many years, and he advised her that conservative treatment was warranted. The Applicant had only a few days off work and returned to work within a week of the motor vehicle accident.
6. The Applicant continued to see Dr Vago for pain that flared up from time to time in her neck. However, as these visits appear to have been bulk billed, the Insurer did not receive accounts for payment from Dr Vago or the Applicant.
7. On 5 November 2001, the Insurer determined that the Respondent was no longer liable to pay compensation and that liability ceased on that date. (T14, folio 24). The Applicant indicated that she did not receive a copy of this determination.
8. It would appear that in March and April of 2002, the Applicant experienced neck pain. On 21 June 2002, after attempting to submit chiropractic treatment accounts, the Applicant applied to have the decision reviewed. At that review, which took place on 26 July 2002, the Respondent submitted a short report of Dr Vago dated 20 June 2002 (T15, folio 26). The Reconsiderations Officer noted that the last physiotherapy treatment was in July 2001 and that there was no real evidence that the Applicant was having ‘regular treatment’.. The Reconsiderations Officer did not have copies of the documentation made available to the Administrative Appeals Tribunal, (on summons) at the hearing which showed that the Applicant had attended Fairfield Hospital in March 2002 and had treatment after that date (including acupuncture treatment). Chiropractic treatments appear to have been undertaken from late June 2002.
THE APPLICANT’S EVIDENCE
9. The Applicant gave oral evidence. She stated that she had worked for Telstra for about eight years. She described her neck pain and indicated that it radiated to her head. She told the Tribunal that she took painkillers and was given a soft neck brace when she attended Fairfield Hospital in March 2002. The Applicant stated that her pain was not constant. She told the Tribunal that she experienced pain from ‘time to time’ and that her pain had escalated in March 2002 when she attended Fairfield Hospital and was given ‘an injection’ for pain relief. The Applicant noted that she had a good work record and could not afford to take time off, as she is a single mother. She also indicated that she could not afford to see doctors.
10. The Applicant recounted the events surrounding her accident in 2001. She appeared as a credible and consistent witness although her comments regarding later treatment were somewhat confused. The Applicant indicated that she had been involved in a motor vehicle accident in 1986 when she injured her right leg. Under cross examination, the Applicant conceded that she also had X Rays of her back although indicated that her injuries arising out of that accident were mainly confined to her leg and lower back. She indicated at the hearing that her problems now relate to her neck and, shoulder blade area of her upper back. She considered that these problems all related to her neck injury and the motor vehicle accident that took place on 17 March 2001. At the hearing she indicated that she was only seeking compensation for future medical expenses, not any ongoing compensation relating to weekly payments.
11. The Applicant indicated that she had incurred some expenses relating to painkillers, chiropractic, acupuncture and medical treatment that had not been paid by the Respondent. The Applicant indicated that at the time of the hearing she suffered pain from time to time but that the pain did not prevent her performing her work. She indicated that changes to her work situation, and the lack of headphones recently had impacted upon her neck. However, headphones were now to be made available to operators and the Applicant was confident that this would improve her neck condition.
12. The medical evidence in support of the Applicant’s claim was from Dr Vago. Dr Vago indicated in his report (Exhibit A1) that the treatment had been ‘conservative’ and that on 7 February 2003:
“[s]he is still complaining of pain symptoms. Prognosis in this case is guarded. She is well motivated and did not exhibit any functional overlay symptoms. The patient is presently back at work. Ms Panov has suffered some degree of residual damage in the accident. I estimate the permanent impairment of the neck at 20%. She remains under our care on an indefinite basis.”
THE RESPONDENT’S EVIDENCE
13. The Respondent submitted that any restriction of movement in the Applicant’s neck had now subsided and that the soft tissue injury suffered by the Applicant was of a temporary nature. The Respondent submitted that any back pain was attributable to the motor vehicle accident previously suffered by the Applicant. The Respondent relied upon a report of Dr Perrett who saw the Applicant on one occasion. Dr Perrett noted in his report (Exhibit R3) that when he examined the Applicant on 8 October 2002 there was no restricted movement in the Applicant’s neck and no muscle spasm or tenderness. Dr Perrett also considered that there were abnormal X ray findings and no restriction of movement. Dr Perrett assessed any impairment at nil and considered that the clinical findings were ‘normal’.
14. The Respondent considered that the Applicant did not continue to suffer from ‘neck and back strain’ arising out of or in connection with her injury, or in the alternative, that if the Applicant did, then it does not result in any incapacity for work. Further the Respondent considered that the Applicant, had not, beyond 5 November 2001 reasonably required any medical/hospital treatment in respect of ‘neck and back strain’ arising out of her accident on 17 March 2001.
CONSIDERATION
15. Section 14(1) of the Act provides that the Commonwealth is liable to pay compensation for an injury suffered by an employee which results in death, incapacity for work, or impairment. Section 16 provides that compensation is to be paid in respect of reasonable medical treatment.
16. The Applicant submits that she has ongoing problems with her neck that do not require her to take time off work, but which may require treatment and which have required medical and associated treatment in the past. The Applicant indicated that she still experiences neck pain symptoms from time to time.
17. The doctors who wrote reports in this matter disagreed about the severity and prognosis of the Applicant’s neck condition. Doctor’s Vago and Perrett had very different views about the extent of any impairment and incapacity arising out of the neck injury.
18. On the material before it, the Tribunal finds that the Applicant did suffer a soft tissue neck injury that did not prevent the Applicant working for more than a few days, but which caused the Applicant to seek treatment on an ongoing basis in 2002. The Tribunal is satisfied that the Applicant has incurred expenses that arise out of her employment with the Respondent and her accident on 17 March 2001. In making this finding, the Tribunal has considered the reports of Doctor’s Vago and Perrett and the evidence given by the Applicant. The Tribunal accepts that the Applicant would not have received acupuncture and chiropractic treatment to her neck unless she was suffering from neck pain. The Tribunal considers that the Applicant’s neck pain can ‘flare up’ and that her injury had not completely settled by 5 November 2001. The tribunal also accepts that the neck condition is not related to any pre existing condition.
19. In Health Insurance Commission v Van Reesch (1996) 45 ALD 302 at 307-308, the Federal Court held that it was possible for a person with a pre-existing back condition to suffer a compensable injury, where the injury was not an inevitable consequence of the pre-existing condition. The Court held that the presence of the condition did not preclude an Applicant relying upon a particular event, which they say, led to personal injury, in a claim for compensation.
20. Therefore, the Tribunal must decide, on the medical evidence before it, whether the Applicant’s injury to her neck is a compensable injury despite the evidence that the Applicant had a pre existing condition and injury. The Applicant considers that the neck injury is compensable and notes that the she did not press any claim in respect of a back injury.
21. The Tribunal found the Applicant to be, overall, an honest and reliable witness. On the medical evidence before it, the Tribunal is satisfied that the Applicant has had neck pain from time to time, that is a result of her accident but that by the time of the hearing the prognosis was positive. The Tribunal is thus satisfied that the Applicant’s condition is short term in nature and has largely settled.
22. The Tribunal notes that the Applicant has not been prevented from working and has continued working despite experiencing neck pain from time to time. The Tribunal considers that the injury suffered is not ongoing and permanent in nature. The Tribunal finds that the Applicant did continue to suffer from the effects of her injury until 17 March 2003. Accordingly, the Tribunal sets aside the decision under review in substitution finds that all reasonable treatment expenses incurred by the Applicant up until that date should be paid by the Respondent pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Professor T Sourdin, Member
Signed: A. Krilis
AssociateDates of Hearing 19 May 2002
Date of Decision July 2002
Representative for the Applicant Self Represented
Counsel for the Respondent Mr Brendan Kelly
Solicitor for the Respondent Natalie Fisher
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