Pollock and Comcare

Case [2002] AATA 753

DECISION AND REASONS FOR DECISION [2002] AATA 753

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/352

GENERAL ADMINISTRATIVE  DIVISION       )              A2001/444          
           Re      Gail Lorraine Pollock      
  Applicant
           And    Comcare     
  Respondent

DECISION

Tribunal       Mr G A Mowbray    

Date2 September 2002

PlaceCanberra

Decision      The Tribunal sets aside the decisions under review, being decisions made by the Respondent dated 18 August 2000 and 24 September 2001, and remits the matters to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:         

(a)on the morning of 22 September 1997 Mrs Pollock slipped and fell on her left side in the foyer of a building in the Defence Department complex in Canberra

(b)as a consequence she suffered a soft tissue injury to her left shoulder/arm and muscle strain to the left knee

(c)these injuries are attributable to her employment

(d)Mrs Pollock continues to suffer from these injuries

(e)Mrs Pollock suffered and continues to suffer from a thoracic spinal pain syndrome, including an intervertebral disc lesion at T9/10

(f)this condition was caused, or at least substantially aggravated, by the accident on 22 September 1997

(g)Mrs Pollock continues to suffer an aggravation of her pre-existing lumbar and neck condition consequent upon the 22 September 1997 accident

(h)this condition includes a diffuse cervical spinal pain syndrome and a lumbar spinal pain syndrome both resulting from the accident

(i)Mrs Pollock suffered and continues to suffer from cervicogenic headaches caused by the accident of 22 September 1997

(j)in terms of section 4(9)(a) of the Act Mrs Pollock suffers "an incapacity to engage in any work" as a result of work caused injuries.

The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.

..............................................
  Member
CATCHWORDS
COMPENSATION – whether thoracic spine condition attributable to work related accident – whether aggravations of cervical and lumbar spine conditions continue as a result of accident – whether cervicogenic headaches attributable to accident – whether incapacitated as a result of compensable conditions

Safety, Rehabilitation and Compensation Act 1998 ss 4(1), 4(9), 14, 19

Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Re Lewis and Comcare [2002] AATA 197
Guides to the Evaluation of Permanent Impairment, American Medical Association, 5th Edition, 2000

REASONS FOR DECISION

2 September 2002 Mr G A Mowbray                

  1. This matter involves two applications by Mrs Gail Lorraine Pollock for review of decisions by Comcare.  The first application (A2000/352) is for review of a decision dated 18 August 2000 denying liability for Mrs Pollock's headaches and thoracic spine condition.  The second application (A2001/444) is for review of a decision dated 24 September 2001 ceasing liability for Mrs Pollock's lumbar and cervical spine conditions.  The 2001 decision also found that although liability continued for Mrs Pollock's left shoulder and left…

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Pollock and Comcare [2002] AATA 753
Case
[2002] AATA 753
Decision Date

CaseChat Overview and Summary

In the case of Pollock and Comcare, the applicant, Mrs Pollock, sought a review of decisions by Comcare to cease liability for certain injuries and effects resulting from a workplace accident. The Tribunal was tasked with determining whether Mrs Pollock's thoracic spine condition, aggravations of her cervical and lumbar spine conditions, and cervicogenic headaches were attributable to the work-related accident. Additionally, the Tribunal had to decide whether Mrs Pollock was incapacitated as a result of these compensable conditions.

The key legal issues before the Tribunal were whether the thoracic spine condition, the aggravations of the cervical and lumbar spine conditions, and the cervicogenic headaches were caused by the workplace accident. Furthermore, the Tribunal needed to assess whether these conditions rendered Mrs Pollock incapacitated to engage in any work. The Tribunal carefully considered medical evidence and the arguments presented by both parties to reach its conclusions.

The Tribunal found that Mrs Pollock's thoracic spine condition was indeed attributable to the workplace accident. It also concluded that the aggravations of her cervical and lumbar spine conditions, as well as her cervicogenic headaches, were a result of the accident. The Tribunal accepted the evidence that these conditions had rendered Mrs Pollock severely incapacitated and unfit for work. Based on these findings, the Tribunal set aside the decisions under review and remitted the matter to Comcare for reconsideration, directing Comcare to give effect to the Tribunal's findings.

The Tribunal's decision was grounded in the clear medical evidence presented and the statutory provisions of the Safety, Rehabilitation and Compensation Act 1988. By setting aside the previous decisions and directing reconsideration, the Tribunal ensured that Mrs Pollock's claims for compensation related to her work-related injuries would be appropriately addressed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The hearing of A2000/352 commenced on 12 November 2001 but was adjourned during Mrs Pollock's evidence with directions that both applications be heard together at a date to be fixed once preparations for A2001/444 were completed. Thanks to the prompt cooperation of both parties the hearing was resumed on 26 November 2001 and concluded the following day. Mrs Pollock was represented by Dr Max Spry of Counsel, and Comcare by Ms Lorraine Gabriel of Counsel.Background Mrs Pollock was born on 22 August 1953. She is married with two daughters. Her previous medical history includes a back injury sustained at the age of 21 while working as a nurse, which resulted in ongoing problems. In about 1985 she developed pain in her neck and right arm that eventually led to two fusion operations in her cervical spine, performed in about 1990 and 1995 respectively. In November 1996 Mrs Pollock began working for the Department of Defence as a trainee ASO1 performing a range of clerical work. Her duties included distribution of mail, which reportedly involved a lot of walking in and between buildings at the Department's complex of offices in the Canberra suburb of Russell. On the morning of 22 September 1997 (that is, approximately ten months after her employment began) Mrs Pollock slipped and fell on her left side in the marble foyer of one these buildings. The severity of the fall and the extent of the injuries sustained has been a matter of contention between the parties, but it is not in dispute that Mrs Pollock was taken by ambulance to Canberra Hospital and treated in the emergency department. Comcare subsequently accepted liability for a "soft tissue injury to L[eft] shoulder/arm and muscle strain to L[eft] knee" and approved treatments such as physiotherapy and pain management along with home help services. On 26 March 1998 liability was extended to include aggravation of Mrs Pollock's pre-existing lumbar (ie lower back) and neck conditions. This led to approval of treatment including surgery on her lumbar spine (which occurred on 30 July 1998 but was not formally approved until October) and several admissions to St Vincent's Private Hospital in Sydney. On 19 May 2000 Comcare determined it had no liability for Mrs Pollock's headaches or for the condition of her thoracic region (ie upper back) as it was not satisfied that either of these was a compensable sequel of the fall and injury of 22 September 1997. Mrs Pollock requested a reconsideration of this determination but it was affirmed on 18 August 2000, leading to her application to this Tribunal (A2000/352). On 1 June 2001 Comcare informed Mrs Pollock of its intention to cease liability for any costs arising out of the aggravation of her pre-existing lumbar and neck conditions and to cease any ongoing entitlement to incapacity benefits. That intention was carried out in a determination made on 26 June 2001. Mrs Pollock requested a reconsideration of this determination but it was affirmed on 24 September 2001, resulting in her second application to this Tribunal (A2001/444).Legislation

Evidence

Evidence Before The Court

Mrs Pollock presented her evidence in an open forthright manner. I believe she was honest. She did not appear to exaggerate or overstate her case. Her evidence was cogent and consistent, despite being strongly tested in cross-examination.The Medical EvidenceDr Alan Searle Dr Searle, a consultant orthopaedic surgeon, gave oral evidence further to his written report (Exhibit A4). In his opinion Mrs Pollock's thoracic disc prolapse at T9/10 in the lower half of the thoracic spine, revealed in a MRI scan dated 1 June 1998, was the result of a traumatic injury. He gave a number of reasons why he considered it "very unlikely" to be a degenerative condition – the size of the prolapse, the fact that it was causing some pressure on the spinal cord, the lack of evidence of damage to the facet joint, the lack of similar degenerative changes at adjacent levels, and the absence of other side effects such as osteophyte formation that would have been associated with degenerative change before the prolapse. Arthritic changes reported in a CT scan dated 16 February 1999 could probably be observed within a year of the prolapse of a disc. He was aware of the problems in Mrs Pollock's cervical and lumbar spine and agreed it was probable she would have eventually experienced problems in those regions in any event. However these were much more likely to undergo degenerative changes than the thoracic spine. He also acknowledged that degenerative processes would usually spread and affect other levels of the spine, but emphasised these would be adjacent levels. Dr Searle knew of the operation performed by Dr Newcombe to treat Mrs Pollock's foot drop – a laminectomy, removing part of the lumbar disc pressing on the nerve root. It was very common to have a recurrence after an operation of this type. It was also quite common to have continuing minor symptoms after a cervical spinal fusion. The levels above and below the fusion would be slightly more likely to undergo degenerative changes than in a normal spine. Dr Searle had been told by Mrs Pollock about the accident in July 1997. He considered this to be a much less serious injury than the one in September 1997. Dr Searle agreed that someone with a spine as degenerated as Mrs Pollock's could experience back pain intermittently. It was unlikely this would occur without some precipitating incident, even if it were relatively minor such as a sneeze. Pain would probably be experienced almost immediately in this situation. However in re-examination Dr Searle stated it was quite common for a disc to prolapse but not produce symptoms for a few days or even a week. The pain was often caused by processes other than the actual prolapse. Ms Gabriel asked Dr Searle to comment on whether a hypothetical job description involving light clerical work would be suitable for Mrs Pollock. He replied that Mrs Pollock may be able to do it part-time but could not imagine her being able to do it full-time even though it was light work. The distance she could walk would decrease through the day, probably to the point of hardly being able to walk at all. He considered all of her injuries to now be permanent, including her hip and knee injuries, that she was severely incapacitated and that she was unfit for work. She was unlikely to see any improvement over time. In his written report he concluded"Comparing her condition now with her activity level prior to the injury on 22/9/97 it is obvious that the fall caused severe aggravations of her pre-existing lumbar and cervical problems, as well as traumatic capsulitis of the left shoulder with possibly a small rotator cuff tear, a contusion of the left ilium, and a sprain of the left knee with traumatic chondromalacia of the left patello-femoral joint. The ongoing symptoms from these injuries and aggravations are permanent and cause a severe degree of disability.She is unfit for work and this work incapacity is permanent.With regard to prognosis there will be gradually increasing symptoms and disability in the cervical and lumbar regions as the degenerative changes progress. This progress will occur more rapidly than might otherwise have been expected because the fall has also accelerated these degenerative changes. There will probably be no change in the conditions in the other regions ie. left shoulder, left ilium, and left knee." (Exhibit A4, p.7)Dr G. David Champion

Decision

Reasons for decision

Having made the findings above on the various conditions that Mrs Pollock suffers and their relationship to the accident, in my view the evidence on incapacity is clear. In terms of section 4(9)(a) of the Act Mrs Pollock suffers "an incapacity to engage in any work". This is the result of work caused injuries. I find accordingly.Conclusions In summary I conclude The decision of the Tribunal is to set aside the decisions under review and remit the matter to Comcare for reconsideration with a direction to give effect to the findings of the Tribunal as set out in these reasons for decision. The Tribunal orders Comcare to pay Mrs Pollock's costs as agreed or taxed.I certify that the 147 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A MowbraySigned: ..................................................................................... AssociateDate/s of Hearing 12, 26-27 November 2001 Date of Decision 2 September 2002Counsel for the Applicant Dr Max Spry Solicitor for the Applicant Peter Bevan, Baker Deane & Nutt Counsel for the Respondent Ms Lorraine Gabriel Solicitor for the Respondent Clare McNamara, Dibbs Barker Gosling

Ratio Decidendi

Legal Principle Established

Mr Schaeffer's opinion of Mrs Pollock as a poor historian had coloured his views on her symptoms and condition. The basis for this opinion was that Mrs Pollock had not mentioned the MRI taken in July 1997, but she had actually provided this MRI to Mr Schaeffer.Consideration of Issues and Findings"Cease liability/effects" decisions As I have said before, in many "cease liability" or "cease effects" decisions made under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied upon. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated "49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.…55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.56. That is to say the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.…58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payment of compensation under s.16 and s.19 of the Act and did not effectively revoke the early determination to accept liability under s.14, thereby preventing further claims of compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236." Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34], upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt, which have been followed elsewhere in the Tribunal.The burden of persuasion It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as "the burden of persuasion" in these matters.