Popadic and Telstra Corporation
[2005] AATA 181
•24 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 181
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1544
GENERAL ADMINISTRATIVE DIVISION ) Re DUSANKA POPADIC Applicant
And
TELSTRA CORPORATION
Respondent
WRITTEN REASONS FOR ORAL DECISION
Tribunal Mrs Josephine Kelly, Senior Member Date24 January 2005
PlaceSydney
Decision (Amended pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975)
The reviewable decision of the Respondent dated 13 September 2002 is varied in that as at 7 May 2002:
1. The Respondent was liable to pay the cost of medical treatment that Ms Popadic obtained in relation to injuries she received in the car accident on 10 April 2000 which resulted in headaches and right neck and shoulder pain and numbness in the right side of her face and behind her ears.
Note: As requested by the Respondent, I note my finding that as at today the Respondent is also so liable.
2. The Applicant was not incapacitated for work.
[sgd} Mrs Josephine Kelly, Senior Member
CATCHWORDS
WORKER’S COMPENSATION – journey claim – whiplash injury sustained travelling to work – consistent complaints since date of injury – medical evidence suggests no pathology – facet joint injections providing relief – applicant entitled to medical expenses – decision varied
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 16 and 19
REASONS FOR DECISION
24 January 2005 Mrs Josephine Kelly, Senior Member 1. This is my decision in this matter. By way of summary I indicate that I vary the decision under review, in that I find that Telstra was liable to pay compensation for Ms Popadic's medical expenses as of 7 May 2002, relating to injuries she received in a car accident on 10 April 2000, which resulted in headaches, and right neck and shoulder pain, and numbness in the right side of her face and behind her ears. She has complained of those symptoms from the time of the accident until today. I find that those symptoms are caused by her accident in April 2000. I note that the decision under review relates to liability up until 7 May 2002. However, at the Respondent's request, I record findings relating to the present, to assist the practical administration of Ms Popadic's claim, which is what I understood Mr Kelly was asking me to do.
2. Dusanka Popadic, the Applicant, seeks a review of the decision made by the Respondent, (“Telstra”), on 13 September 2002 to affirm the decision made on 7 May 2002, that Telstra was not liable to pay to Ms Popadic compensation in respect of any incapacity or medical expenses on and from 7 May 2002, in respect of a whiplash injury she had suffered.
3. I should say that I do vary the decision in relation to the incapacity in that I would have to say that as of 7 May 2002, she was not incapacitated for work and, in fact, she has only ever been incapacitated for work, on the evidence, for 2 hours on the day of the accident, 10 April 2000.
4. The injury that occurred during the car accident on April 10, 2000 can be described as a whiplash injury to the neck. Telstra had initially accepted liability for the accident and only the decision of 7 May 2002 changed that position.
5. I note Ms Popadic's evidence was that she has only had 2 hours off on the morning of the accident, otherwise she has fitted in visits to doctors, physiotherapists, and whoever else, so as not to affect her work commitments.
6. Ms Popadic's complaints have been consistent since her accident: headaches, pain in the right side of the neck and to her right shoulder of varying intensity, and to an extent, exacerbated by activities such as lifting her daughter, carrying things, lawn mowing, and steam cleaning the carpet. She also had a feeling of reduced sensation or numbness in the right side of her face, and a pins and needles sensation around the right side of her lips. The pins and needles sensation have ceased. She also, once, did complain of pain in her right hip, but that seems to have resolved relatively quickly. She also complained of her back locking on a trip to Yugoslavia in 2000. However, that complaint has only occurred once and nothing seems to arise in respect of it.
7. She has also suffered some lack of sensation and numbness, as I understand it, behind both ears, and that is referred to in Dr Garrick's report, which I will refer to later. That has occurred on about three occasions as I understand it.
8. Ms Popadic has taken pain killers for her headaches and shoulder pain over the years, sometimes relying on prescriptions written for her mother. She gave a history after the accident that, around that time, she was advised that her father had terminal cancer. She went on a family trip of reconciliation, if I might describe it that way, in May/June 2000 to Yugoslavia with her father, mother, and young daughter. From then until his death in about April 2003, she was concerned with his welfare. He lived in Perth and she made several trips across there between 2001 and 2003 when he died.
9. Following his death in 2003, Ms Popadic returned to Yugoslavia for about two and a half months, to make the appropriate arrangements in relation to his personal affairs. On her return, she made an appointment to see Dr Garrick. That was in 2003, but because he had about a six month waiting list she did not see him until 2004. That was really the first time that she had sought any treatment, and she has since followed a consistent plan of treatment over a reasonable period of time which has been successful.
10. I note that since the last facet joint injection, she has had only one or two headaches, and she has had none since she saw her physiotherapist, Ms Larsen, on 17 January 2005.
11. In relation to her lack of undertaking treatment over any length of time, I note that she is a single mother working full time. She has had to deal with her father's illness and subsequent death in 2003. She has had educational problems with her young daughter from about 2000 to the first term of 2003. She also has an elderly mother. It seems from Ms Popadic's evidence that it is only when she has time to worry about herself that she, in fact, has done so. She has also had financial constraints in terms of treatment she could undertake. For example, at one stage, she swam in the Greenacre Pool rather than having hydrotherapy because it was much cheaper and because she could afford to do so.
12. In relation to Dr Aggarwal, she said that she had first of all gone to see him as a bulk billing patient, but when he found that her claim was a workers' compensation claim, he required that she go to another surgery. That was also, as I understand it, after her claim had been refused by Telstra and she did not have the financial resources to continue to see him. She also said she did not have the facet joint blocks that he recommended, because the doctor he referred her to was no long doing such injections. I note that those facet joint blocks were to be in respect of the right C3-4 and C5-6 levels It was not until she saw Dr Garrick in 2004 that she, in fact, had those injections which resulted in the subsequent improvement in her condition in terms of the headaches, and pain in the right shoulder, of which she gave evidence today.
13. I will now refer to the medical evidence, of which there is a considerable amount. First of all, the report of Dr Presgrave, a neurologist and neuro-physiologist, who saw Ms Popadic on 13 July 2000. He said:
“Her present complaints include a sensation involving the right eye which she found difficult to characterise, numbness of the right cheek, headaches and blurring of vision.”
And he found:
“In summary, I think that Ms. Popadic is recovering from a mild musculoligamentous cervical injury. She continues to experience mild non-specific headaches, which will probably settle. II was unable to explain her visual symptoms and indeed there were no abnormal ophthalmologic findings today.
In view of her complaints it might be worth seeking an ophthalmologic opinion to make sure that there has been no retinal detachment or other minor injury to the eye to account for her symptoms.
With regard to her continuing neck pain and headaches I have suggested that rather than continuing physiotherapy she might try regular swimming or even hydrotherapy. I think it likely that her residual neck symptoms and headaches will settle with time.”
14. That was 13 July 2000. On 11 April 2000, Dr Sequeira undertook some imaging. I am not sure precisely what that was, however, in a report from Dr Sequeira of 11 April 2000, he said:
“The normal cervical curvature is decreased and there is restriction of movements on flexion and extension of the neck. There is a slight narrowing of the C3/C4 and C4/C5 disc spaces. There is no subluxation nor is there any encroachment on intervertebral foramen on either side…
Summary:
1. There is restriction of movement with slight narrowing of the C3/C4 and C4/C5 disc spaces
2. Normal right hip joints.”
15. Dr Li prepared two reports that were before the Tribunal, at exhibit R6 and page 34 of the T documents. The first time Dr Li saw Ms Popadic was the 8 November 2000. He undertook a CT scan of the cervical spine. His conclusion was:
“Normal examination. In view of the history of injury, further assessment with cervical spine xray with flexion and extension views is recommended to exclude subluxation which is non-detectable on a CT.”
16. So, on 12 March 2001, Dr Li undertook an xray of the cervical spine with the following findings:
“Spinal alignment is normal. No focal destructive bone lesion, fracture or dislocation is detected. The intervertebral disc spaces are normal. The intervertebral foramina are bilaterally are normal. No cervical rib is detected.
The pre-vertebral soft tissue is not thickened.
No subluxation is detected on flexion or extension.
CONCLUSION
Normal examination”
17. The final imaging report that I have is that of Dr Stewart of 25 July 2002. She undertook a CT scan of the cervical spine and of the brain. She found:
“The disc spaces and vertebral bodies appear normal apart from slight narrowing of the atlanto-axial joint anteriorly. There is no evidence of disc protrusion or foraminal narrowing. No soft tissue mass or bone destruction is detected.”
The CT scan, on its face, apparently shows no abnormalities.
18. That is all the imaging evidence that I have, and I conclude that there is no apparent structural pathology apparent at this stage.
19. Ms Popadic saw Dr Nanda, an ophthalmic surgeon on 6 October 2000. His conclusion was that:
“the ocular examination was essentially within normal limits with no obvious ocular cause to explain her symptoms. I have referred Miss Popadic back to you for further systemic evaluation to determine the cause of her symptoms.”
20. Dr Chara, also an ophthalmic surgeon, saw Ms Popadic on 17 September 2001, and he, in essence, found no abnormality from his point of view as an ophthalmic surgeon. He also referred to Ms Popadic's complaints of the sensation over the malar region on the right side as compared with the left side:
“…although she does not have anaesthesia on the right side as such. I do not know what to make out of all these symptoms but my findings did not bring out anything to substantiate any significant ocular or periorbitral trauma resulting from the accident. On the other hand, Ms Popadic gave the impression she is a very honest person.”
21. So, in terms of ophthalmic evidence, it seems that there has been no explanation or diagnosis of the complaint Ms Popadic makes, in particular, of the pressure that she says she suffers of a pushing sensation behind her right eye.
22. Dr Potter, a rheumatologist, saw Ms Popadic on 6 September 2002. In a fairly lengthy report he provides a summary at the end. He says:
“Dusanka Popadic is suffering from a condition 2 years post-motor vehicle accident of symptomatic distress of neck and head disorder for which I have no physical condition to diagnose within my speciality.”
23. In effect, he seems to think - or the impression or implication is - that it is a subjective disability and he refers also to a previous incident at page 76 of the T documents.
“...may come because when examined she has a tracheostomy scar and that apparently comes from about 10 years ago when she took an overdose of Tryptanol and required ventilation and respiratory failure followed.”
So, it is an implication that it is all in her mind.
24. We then come to the reports of Dr Maxwell and Dr Matheson. Dr Maxwell has seen Ms Popadic on three occasions and has given three reports. In his first report of 26 October 2000, Dr Maxwell, who is an orthopaedic surgeon, says:
“Present symptoms
With regard to her neck she experiences pain on the right side of her neck which occasionally radiates into the right shoulder. She has not noticed any restriction of movement but she does experience some occasional sharp pain in the movement of the neck, particularly to the right. The neck pain is also aggravated by carrying objects in her right hand and is aggravated by carrying her daughter.
The right side of her face feels numb compared to the left side and her right eye feels abnormal, as if she has pressure around her eye….
Diagnosis and opinion
…On the balance of probabilities I consider the present condition is due to the accident which occurred on 10/4/00. The contributing factor was the motor vehicle accident. I consider that the effects of the accident are of a temporary nature but they have not yet ceased. I will not place any restrictions on her capacity for employment.”
25. And he recommended a treatment:
“…more intensive exercise programme to mobilise the facet joints of her cervical spine. That could be then followed up by a strengthening exercise for the muscles of her neck. Her symptoms should gradually resolve with the passage of time and I do not consider that she will be left with any permanent residual disability.”
26. Dr Maxwell's next report is dated 21 November 2002. His diagnosis and opinion is:
“It is probable that Ms Popadic sustained a sprain of the cervical spine in a motor vehicle accident. The effects of this sprain have now ceased.”
27. He does state the present symptoms:
“… pain in her neck on the right side, and this radiates into her shoulder. She also has pain in the right eye. She says she is able to see normally but occasionally her right eye starts to water. “
The complaints are still there, but the doctor goes on to say that
“I do not consider she sustained a significant structural injury in the motor vehicle accident. I have no explanation for her visual disturbances. It appears to me that many of her symptoms are in fact functional. I do not consider she has any incapacity for employment.. I consider that the effects of her original cervical sprain have ceased.”
28. So, that was 21 November 2002, by which time the decision had been made to refuse continuing liability. The next report of Dr Maxwell is dated 29 July 2004. He sets out his diagnosis and opinion and describes her symptoms. I note that when Dr Maxwell last saw Ms Popadic that she had seen Ms Larsen the physiotherapist, and hence Dr Maxwell's comment:
“With the help of the physiotherapist she appears to feel that the pain is now coming from C2-3. A facet joint injection at this level has not markedly improved her symptoms.”
29. That is not the evidence that we have heard from Ms Popadic today. He continues in that report:
“The numbness on the right side of the face mostly occupies the trigeminal nerve distribution which is a cranial nerve. It would not be directly be effected by an injury to the neck.”
30. He finds that:
“There is no abnormality to find on examination, apart from a subjective discomfort on palpation of the right side of her neck and the decrease in sensation on the right side of her face which is not a particularly objective sign.”
He says:
“It is difficult to explain any pathology which would involve the soft tissues and not improve over a 4 year period, particularly when the initial trauma did not seem particularly great and she was able to work on the same day.
I therefore find it difficult to make a diagnosis based on a pathological condition.
I consider it is improbable that she would still be suffering the direct effects of a traumatic injury which occurred in 2000…
I consider the affects of the initial condition have ceased. I consider they would have ceased almost certainly 6 months after the accident.
He clearly had not gone back to his first report, which he did about 6 months after the accident.
31. Dr Matheson is a consultant neurosurgeon, and the Tribunal has two reports from him. In the one of 13 January 2003 he refers to sensory diminution or apparent sensory diminution from just above the eyebrow to the upper part of the neck and down behind the ears. In his opinion, this is clearly:
“a non-organic distribution. It did not coincide with the trigeminal nerve, rather areas demarcated by the trigeminal nerves such as the top of the head were intact and the area of numbness apparently extended to the cervical roots both behind the ear and in the upper part of the neck. ‘
32. There was nothing else to find:
“Diagnosis. No abnormality detected.”
He says:
“There is no known headache that lasts for three years.
…
This is clearly a somatised disorder without any basis in reality. Any minor bruising she got from the accident on 10 April 2000 has long since resolved without disability. She has no residual impairment from that accident.”
33. His report of 5 November 2004 is along a similar vein. He critiques some medical reports and says:
“I reviewed the recent notes. Dr Garrick recorded on 5 March 2004. He diagnoses initially a cervical problem with a C6 radiculopathy but then goes on and changes this to an upper facet joint problem at C2/3. Dr Maxwell considered a ligamentous dysfunction at C5/6. Dr Aggarwal felt it was C3/4 and C5/6 facets. Dr Potter felt there was no pathology and Dr Musgrave diagnosed a musculoligamentous strain to the neck. As we can see from the above reports everybody is making a different diagnosis which is typical of a situation in which no pathology is present. “
So, his diagnosis was no abnormality detected. He says:
“She may have suffered a strain to the neck or some bruising around the head but this has long since recovered.”
34. He says the only treatment she requires is psychiatric treatment, and that this matter would predate the motor vehicle accident. Again, he seems to be referring to the overdose possibly that she had some years ago.
35. I just should refer briefly to Dr Aggarwal, who did give some treatment to Ms Popadic in 2002. As I've indicated he recommended that she have some facet joint injections but, as I have said, she did not proceed with these.
36. His report of 15 September 2003 is not really of assistance, as he really only treated her in October 2002.
37. In relation to the medical evidence I accept the report of Dr Garrick of 5 March 2004. He organised the facet joint injections which, as I have said, provided relief to Ms Popadic in combination with physiotherapy, as she described in evidence today. In my opinion, Ms Popadic's complaints of the headaches and right shoulder pain are genuine. They have continued in varying intensity since the car accident in 2000, and it seems that the recent treatment that she has had is reducing them considerably.
38. There has not been a diagnosis in relation to the numbness that she has described on the right side of her face. However, I accept that she does suffer that difficulty and I note her evidence that Dr Garrick has said that he will deal with that after he has dealt with the headache and the right shoulder question.
39. In conclusion, Ms Popadic has only been incapacitated for two hours, on the day of her accident in April 2000, and has not been incapacitated from that time until today, and she was not incapacitated for work as of 7 May 2002.
40. Mrs Popadic is entitled to her medical expenses as of 7 May 2002 and as of today, in respect of her headaches and pain in the right side of her neck and right shoulder, and also in relation to numbness in the right side of her face behind her ears, and I vary the decision of the 7 May 2002 as I have previously indicated.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member
Signed: Sacha Keady .....................................................................................
Associate
Date/s of Hearing 24 January 2005
Date of Decision 24 January 2005
Representative for the Applicant Self
Counsel for the Respondent Brendan Kelly
Solicitor for the Respondent Natalie Fisher
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