Phillips and Comcare

[2008] AATA 1153

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/511

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY NORMAN PHILLIPS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr I Alexander,Member

Date 22 December 2008

PlaceSydney

Decision   The decision under review is affirmed.

........................SGD......................

Ms N Bell, Presiding Member   

CATCHWORDS

WORKERS’ COMPENSATION – Whether Applicant is entitled to compensation for medical treatment with respect to low thoracic muscular strain sustained in 1973, 1974 and 1975 (the accepted injury) – Whether the Applicant is entitled to compensation for Incapacity – pursuant to section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 - Decision under Review is affirmed.

Safety, Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971

Commonwealth v Portelli (1982) 39 ALR 161

REASONS FOR DECISION

22 December 2008 Ms N Bell, Senior Member
Dr I Alexander, Member    

1.      As a young man, Mr Anthony Phillips, employed by the Department of the Navy at Garden Island, experienced three incidents at work involving his back.  The first was in August 1973, when he felt pain in his upper back when he was drilling holes in the reinforced concrete ceiling of an air-raid shelter tunnel; the second was in September 1974 when he slipped on the stairs leading down from a slipway and landed striking his lower back on the corner of a wooden step; and the third was in March 1975 when he was sitting on a stool, working at a bench, twisted his body suddenly and experienced a sharp pain in his lower back.

2.      Mr Phillips had a number of jobs over his ensuing career including electrician for Kolotex at Cockatoo Island, pinsetter serviceman for Rushcutter Bowl, sprinkler fitter, and as an employee at Kennard’s Hire.  He experienced pain at various times, sufficient, sometimes; to prevent him from working. In November 1978 he ceased work until April 1979 and again in 1982 he ceased work for approximately 10 months because of his lower back pain.  He was awarded compensation in May 1982 for injuries sustained in 1973, 1974 and 1975 and was paid weekly compensation.

3.      Following these and other un-related work injuries, and an aggravation of his lower back condition in 1993, Mr Phillips commenced work for Film Cars Australia in July 1999, working 30 hours per week performing light duties.  He was receiving partial incapacity payments from Comcare.

4.      On 12 January 2001, Mr Phillips was hit by a tipper truck which crushed him against a stationary van.  He suffered terrible injuries to his left leg resulting in amputation above the knee, a fractured right tibia, broken ribs, a punctured left lung and contusion to the heart.  Mr Phillips has not worked since the accident.

5.      Comcare determined in December 2005 that Mr Phillips was no longer entitled to compensation for his injuries in the 1970s and that his present incapacity was not due to those injuries.  The parties agree, and we concur, that the 1973 incident which affected the thoracic region of Mr Phillips’ back, had no bearing on his later lumbar spine problems.  But, concerning the 1974 and 1975 incidents, Comcare maintains that Mr Phillips’ incapacity results not from those incidents, but rather from either his motor vehicle accident in 2001 or from an underlying degenerative spine condition.  This frames the essential issue in this application: did the effects of Mr Phillips’ injuries in 1974 and 1975 continue beyond November 2005?.

6.      The answer turns largely on the evidence of the medical experts.  That evidence concentrated on the continuing effects, if any, of the 1970s incidents and generally did not canvass the effects of the motor vehicle accident.

7.      Before we turn to this central issue, we note that the terms of the decision under review describe the injury as “low thoracic muscular strain”.   This was the description first given to the injury suffered by Mr Phillips and for which he was compensated for many years.  There is no dispute that this is not the injury that resulted from the 1974 and 1975 incidents.  A question arose as to whether this affects the jurisdiction of the Tribunal to review the decision.   Neither party disputed the Tribunal’s jurisdiction to determine all of the issues presented for its decision.

8.      We are grateful to Mr Johnson, Counsel for Comcare, for his helpful written submission on this question.  We agree with his submission that, at the time the original claim was made, greater flexibility was available under the Compensation (Commonwealth Government Employees) Act 1971 in the making of claims and it was considered sufficient to attract the jurisdiction of the Tribunal for an injury to be referred to in medical reports available to the original decision maker and provided to the Tribunal (see: Commonwealth v Portelli(1982) 39 ALR 161).  We note that in this case the incidents in 1974 and 1975 were referred to by Dr Mario Benanzio, Orthopaedic Surgeon, in his report of 8 April 1975.  This report, among other documents referring to the incidents, was before the decision maker and before the Tribunal.  We are satisfied that the Tribunal has jurisdiction to determine all of the issues raised by the parties in this application.

did the effects of the incidents continue beyond november 2005?

9.      The primary medical evidence before us was that of Dr Kevin Bleasel, Professor Fearnside (both of whom gave concurrent evidence), Dr P Endrey-Walder and Professor Sydney Nade.  The following is a very brief summary of their respective opinions.

10.     Dr Bleasel, Neurosurgeon, took the view that the 1974 fall onto a wooden stair caused structural injury to a lumbar disc.  He based this view on the circumstances of the injury, which he considered to be consistent with an acute injury, and on subsequent lower back symptoms.  He asserted that the 1974 incident was the initial injury and explained all subsequent lower back symptoms.  He made this assertion without objective support and, when the possibility of degenerative spinal disease was raised with him, he denied the existence, in any person, of degenerative spinal disease except as a consequence of a work or sporting injury.

11.     Professor Fearnside, Neurosurgeon, characterised the 1974 incident as a self limiting soft tissue injury.  He said he could not exclude the possibility of disc injury but considered it unlikely.  In relation to the 1975 twisting injury, he considered it a temporary strain injury and, while he could not exclude the possibility of it being a recurrence related to the 1974 injury, he considered it unlikely.  He found no evidence of disc lesion, but did find, in later imaging, evidence of degenerative spinal disease at the lower end of the spectrum of severity.

12.     Professor Fearnside disagreed with Dr Bleasel on the question of degenerative back disease and said it is a recognised condition supported by the literature.  He discussed the complex aetiology of lower back pain and urged an approach that considers the pathology of the axial skeleton and facet joints including strain and arthritis.  He considered that severe back pain causing significant but temporary disability can occur with no readily identifiable pathology.  Professor Fearnside gave considerable weight to the diagnosis of lumbar strain made by Dr Benanzio on 8 April 1975.

13.      We found the opinion of Professor Fearnside to be significantly more persuasive than that of Dr Bleasel.  In particular, Professor Fearnside allowed for the impossibility of certainty, given the complexity of possible causes of back pain, and addressed the issue of probable aetiology by reference to the absence of objective evidence of an acute injury, Mr Phillips’ history and the results of a later MRI scan.  Dr Bleasel, on the other hand, asserted the existence of a disc injury without reference to evidence.  His position in relation to the existence of degenerative spine disease appeared out of step with current medical opinion.

14.     Dr Endrey-Walder, General and Trauma Surgeon, considered that Mr Phillips injured his lumbo-sacral disc in 1974 and all subsequent lower back symptoms can be attributed to the progressive deterioration of that injury.  He based this opinion on his own interpretation of a plain X-ray in either 1978 or 1981 which showed, in his opinion, a “diminution of the height of the lumbo-sacral disc”.  We note that, unlike the other experts whose evidence we had before us, Dr Endrey-Walder has not treated patients with spinal disorders and his expertise is based on medico-legal assessments only.

15.     Professor Nade, Orthopaedic Surgeon, considered that the incidents  in 1974 and 1975 were isolated single events that have no effect on Mr Phillips’ current capacity for work.  He said that from the imaging studies available he can be sure that Mr Phillips did not suffer a fracture of a vertebra or a protrusion of a disc.  He found there has been no significant progression other than what might be expected in a person of Mr Phillips’ age.  He considered a possible narrowing of the lumbo-sacral disc and noted this disc is susceptible to considerable variation among the population and concluded these changes were related to age rather than to an incident.  He also found no evidence of nerve root dysfunction, given a normal myelogram in February 1979.  He considered it most likely that Mr Phillips suffered degenerative spine disease and noted that some people have a genetic predisposition to that.  When asked whether an incident such as the 1974 incident could set in train degenerative spine disease, Professor Nade said that, based on his 30 years experience, in the absence of a gross change in imaging studies and a more significant injury, it would not.

16.     There was some peripheral dispute about correct history to be put to the doctors.  This largely stemmed from some statements made by Dr Avtar Sachdev, Orthopaedic Surgeon, in reports and certificates in 1979 and from other reports suggestive of continuous pain suffered by Mr Phillips. We found Mr Phillips to be a remarkably good historian and we are satisfied of the history he recounted of two weeks off work following the 1974 incident and of intermittent low back pain, with some pain free days, since then.

17.     There were also some reports from the 1970s before us, all of them untested.

18.     Dr  Benanzio, in his report of 8 April 1975, reported “no pathology on existing X-rays” and the presence of signs of lumbar strain.  He predicted progressive recovery without residual disabilities.  This accord’s with the view of both Professor Fearnside and Professor Nade.

19.     Dr Sachdev’s numerous reports add little to an understanding of the aetiology of Mr Phillips’ condition.  However, we note in the T-documents a copy of a “case summary” which includes an extract from a report of Dr Sachdev dated 29 November 1978 in which the doctor is said to opine that Mr Phillips’ symptoms are due to lumbar root pain associated with lumbo-sacral disc disease “quite possibly … an aftermath of injury he had five years ago”.

20.     Also relied on by Mr Phillips was the report of Dr Thomas Claffey, Orthopaedic Surgeon dated 26 April 1994.  Dr Claffey took the view that Mr Phillips’ painful low back was due to underlying degenerative disc problems which, in turn, are probably due to his injuries in 1973, 1974 and 1975.  No explanation was provided for this view except to say that the events of the 1970s were “reasonable precipitating factors”.  This report was also untested.

conclusion

21.     We prefer the opinions of Professor Fearnside and Professor Nade because they draw on Mr Phillips’ history of a fairly swift return to work with full duties after each incident, the absence of radiological evidence of disc injury from the incidents and the unlikelihood of disc damage in the absence of a significant structural injury.  Each brought to bear his considerable experience in treating spine conditions.  Neither Professor Fearnside nor Professor Nade was prepared to completely dismiss the possibility that Mr Phillips’ back pain is the result of the 1974 and 1975 incidents.  Instead, they commented convincingly on the probability that it was not.  We considered their evidence to be measured and realistic.

22.     By contrast, the evidence of Drs Bleasel and Endrey-Walder simply asserted disc damage in 1974 and did not allow for even the possibility that it was otherwise.  While we recognise the expertise and experience of Dr Bleasel, we consider Dr Endrey-Walder’s exclusively medico-legal experience to fall short of a level at which the Tribunal could confidently rely on his evidence.  We also note the view of Dr Bleasel that, without a work or sporting injury, there can simply be no degenerative disc disease.  We consider this to be out of step with the majority medical opinion.

23.     It follows that we find, on the basis of the expert evidence of Professor Fearnside and Professor Nade, that the effects of the injuries in 1974 and 1975 were time limited, they have resolved and Mr Phillips did not, at 8 November 2005, continue to suffer the effects of the injuries..

decision

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate: Felicia Daniele

Date/s of Hearing  17 and 18 June 2008 and 3 October 2008
Date of Decision   22  December 2008
Counsel for the Applicant         Mr M Boulton
Solicitor for the Applicant          Mr Tony Griffith
Counsel for the Respondent     Mr Geoffrey Johnson
Solicitor for the Respondent     Ms Bianca Audsley, Australian Government Solicitor