Radovic and Comcare

[2002] AATA 331

DECISION AND REASONS FOR DECISION [2002] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2001/29

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      APRIL JUNE MAY RADOVIC     
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date10 May 2002

PlaceBrisbane

Decision       The Tribunal affirms the decision to deny liability for compensation for "right wrist fracture".      

..............(Signed)................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
COMPENSATION – no liability for injury arising out of incident unconnected with previous compensable injury

REASONS FOR DECISION

10 May 2002           Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision to deny liability for compensation for a right wrist fracture, suffered by the applicant, April June May Radovic, when she fell in her garden at her home.

2. Ms. Radovic claims that her fall at home resulted from a spasm in her back, which was connected with the ongoing consequences of a back injury which she suffered at work in 1994.

3. The history of Ms. Radovic's compensable back injury may be summarised as follows:

   (i)In 1994, Ms. Radovic was working for Aboriginal Hostel Limited.  Her job included the making of beds.

   (ii)In May 1994, Ms. Radovic experienced pain in her back whilst making a bed.

   (iii)In August 1994, she had what she described as a "big spasm" in her back whilst making a bed.  She fell over and hurt her hip.  She had three months off work.

   (iv)Upon her return to work she found that her hip kept swelling.  She was put on light duties.  She found that the beds were too low and that she could not do any lifting.

   (v)Ms. Radovic was put on a rehabilitation program which included a course in computer work and hydrotherapy.  She found that the rehabilitation course was extremely stressful and she began to experience panic attacks and spasms in her back.  She had difficulty keeping the rehabilitation program going.  She needed a break from it from time to time.  At one stage she had a break of about four months from it.

   (vi)In early 1998, Ms. Radovic was put off work permanently.  She has been receiving workers compensation ever since.

   (vii)In 2000, Ms. Radovic was paid $32,000 for permanent impairment in relation to her back.

   (viii)Liability for compensation was accepted on the basis that Ms. Radovic had aggravated pre-existing disc degeneration disease and osteoarthritis of the interfacetal joints of her spine.

   (ix)Ms. Radovic was examined by a consultant orthopaedic surgeon, Mr. Robin V. Jackson, on 8 September 1999.  Mr. Jackson was of the opinion that Ms. Radovic's back was injured in August 1994 and that the injury had resulted in an impairment but that the impairment was "only partially due to her back injury and to a very large extent, reflects the underlying degenerative change".

4. On the morning of 12 July 2000, Ms. Radovic was feeding some fish which she kept in a pond in the front yard of her home.  She claims that the following chain of events then occurred:

   (i)She turned around – whilst still carrying the container of fish feed.

   (ii)She felt a sharp pain in her back.

   (iii)She leapt forward and fell into a bush.

   (iv)She heard her right wrist "crack".

   (v)She got to her feet – ran inside and put a dress over her nightie – drove her automatic car to the Darwin Hospital.

   (vi)She had an operation in which plates were inserted into her arm to stabilise her wrist.

5. The records of the Emergency Department of the Darwin Hospital show that on 12 July 2000, Ms. Radovic presented herself at the hospital at 7.35am.  The record includes the following:

   "tripped + lost balance this am in
   garden – fell on outstretched
   hand
   immed pain R wrist
   back problems
   Zoloft
   Voltaren"

1. Ms. Radovic had been seeing her General Practitioner, Dr. Ash, from time to time about her back, prior to her fall in the garden.  Dr. Ash had told her that her back problems were muscular.  He had prescribed pain killers and muscle relaxants for her.

2. Ms. Radovic was seen by Associate Professor Bruce McPhee, spinal surgeon on 18 December 2001.  Professor McPhee's report contains the following observations (among others):

   "Sensation was altered on the top of the right foot.  Deep tendon reflexes were all intact and equal.  Babinski responses were plantigrade and there was no clonus.  She exhibited widespread inappropriate and non-anatomical tenderness over the lumbar spine and sacrum.
   Examination of the right wrist showed no deformity.  A surgical scar was noted over the dorsum.  There was slight reduction of all movements with the exception of volar flexion, which was about half of the normal range.  She had the full range of elbow movements.  There was no measurable wasting of the forearm. Power and sensation were normal.

   OPINION
   The fracture of the right wrist was not due to any workplace injury nor did it arise out of the claimant's employment since at the time she was not working.  The allegation is that back spasm caused her to collapse and that the back spasm was due to a compensible injury.
   Firstly she has a lower back condition that is long standing and predates the onset of her symptoms in 1994.  There are widespread degenerative changes in the lumbar spine.  Any injury in 1994 caused aggravation of a pre-existing condition.  On the balance of probability she would have eventually developed low back pain.
   The whole hypothesis of the relationship between wrist fracture and work is dependent on a spasm causing legs to collapse.  Unfortunately I am unable to support this contention.  For the legs to collapse one must postulate a transient neurological insult.  This would cause the nerves to both legs to suddenly cease functioning but to recover rapidly.  There is nothing on investigation that is likely to cause these symptoms.  The only genuine instance of which I am aware would be transient compression of the spinal cord due to a benign tumour of the spinal canal.
   The claimant did exhibit a number of abnormal signs and symptoms that cannot be explained on the basis of organic low back disease.  There is clinical evidence of abnormal illness behaviour.  This is in keeping with a chronic pain disorder as noted in her various psychological reports.  The history of spasm with collapse is in keeping with a chronic pain disorder.  The collapse has no organic basis."

3. The Tribunal accepts the evidence of Professor McPhee.

4. The Tribunal finds that there is no connection between the fall on 12 July 2000 in which Ms. Radovic broke her wrist and the aggravation in August 1994 of a pre-existing degenerative condition in her lumbar spine.

5. The Tribunal affirms the decision to deny liability for compensation for Ms. Radovic's broken wrist.

   I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

   Signed:         .....................................................................................
              B. Hitchcock, Personal Assistant

   Date/s of Hearing  22 April 2002
   Date of Decision  10 May 2002
   Applicant  Ms. D. Knox
   Counsel for the Respondent    Mr. C. Clark
   Solicitor for the Respondent    Australian Government Solicitor