Radulovic and Comcare
[2008] AATA 1052
•24 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1052
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3007
GENERAL ADMINISTRATIVE DIVISION ) Re SLOBODAN RADULOVIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date24 November 2008
PlaceCanberra
Decision 1. The reviewable decision made by Comcare on 15 May 2007 (no. 16578791) is set aside.
2. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to compensate Mr Radulovic in respect of an injury, being facet joint strain with consequent headaches, suffered by him in September 2005.
. ..............[signed]..................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – whether injury occurred during rehabilitation for previously accepted injury – whether link between exercise performed and injury – whether injury excluded from application of Act by section 54 - decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 ss 14, 53, 54
Comcare v Luck (1999) 29 AAR 403
REASONS FOR DECISION
INTRODUCTION
3. Mr Radulovic is seeking a review of a decision of Comcare denying liability to compensate him for a neck injury and consequent headaches. He claims he suffered the injury whilst undertaking a rehabilitation course for an earlier injury for which Comcare had accepted liability to compensate him.
4. For the reasons which follow the decision under review will be set aside and a decision accepting liability will be substituted.
BACKGROUND
5. Since 1985 Mr Radulovic has been employed as a wardsman at The Canberra Hospital. In April 2005, he injured his back whilst moving a patient. Comcare accepted liability to compensate him in respect of this injury.
6. As part of his rehabilitation following his back injury Mr Radulovic attended a number of exercise sessions conducted by Fit To Manage under the guidance of a rehabilitation specialist, Ms Thompson. These sessions were conducted from September to December 2005. In a claim form dated 30 June 2006 Mr Radulovic said that he suffered an injury to his neck when attending the Fit To Manage sessions.[1] He claimed that “they overstretched my neck and I complained to doctor at time and no one listened.”
[1] Ex. A12.
ISSUES FOR DETERMINATION
7. Two issues arise:
1)did Mr Radulovic suffer an injury to his neck whilst engaged in the programme being undertaken by him as part of his rehabilitation following the injury to his back suffered at work in April 2005;
2)if so, does section 54 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) exclude the injury suffered by Mr Radulovic from the application of the Act?
MR RADULOVIC’S ARGUMENT
8. In his statement of 10 April 2008 Mr Radulovic described the circumstances in which he says he was injured as follows:
I commenced the rehabilitation program at Fit to Manage in October, 2005. The rehabilitation program which they doing with me involved a lot of stretching of my neck, back and legs on the floor and whilst standing and sitting. The instructor was helping me to do the stretching by resisting my movements and also helping me stretch further.
After about 2 weeks into the program, I was performing some floor stretching when I heard a cracking noise in my neck and felt pain in my neck.
9. When he gave evidence Mr Radulovic elaborated on the stretching exercises he said he undertook. He said that one exercise involved his lying on his stomach and lifting his arms, legs and head. A second exercise he described as requiring him to lie on his back and lift his head, legs and arms followed by Ms Thompson pushing his legs alternately towards a position perpendicular to the floor. He also described an exercise in which he hung by his hands from a bar and twisted his body from side to side.
10. Mr Radulovic said that during an exercise when Ms Thompson was pushing his leg upwards he heard a crack, like a clicking noise, in his neck. He said that he immediately told Ms Thompson of the noise he heard and that his neck was sore. Ms Thompson stopped the stretching exercise briefly, massaged his shoulders and then returned to the leg stretching process. She told him that he was too tense and needed to relax. Mr Radulovic said that he told Ms Thompson on two separate visits that the leg-stretching exercise was hurting his neck but she continued with it. The exercise continued to cause him pain in his neck but he persevered with it until the end of the course.
11. When Mr Radulovic returned home after the first occasion when he felt pain in his neck he told his wife and step-daughter what had happened. His wife told him he had probably just strained his neck and that it should get better.
12. Mr Radulovic did not consult his general practitioner, Dr Renshaw, concerning his neck pain until March 2006. He said that the reason for this delay was that he thought initially that the symptoms would go away. When they persisted he got “fed up” and sought medical advice.
Evidence of Ms S. Radulovic
13. Ms Radulovic said that after attending one of the Fit To Manage sessions Mr Radulovic complained to her that his neck hurt and that he felt dizzy and ill. Her recollection was that this occurred after he had attended a number of sessions. She said also that Mr Radulovic told her he had informed the person who was taking care of him of this but that she told him this was normal and part of the exercise.
14. Ms Radulovic described Mr Radulovic as having poor communication skills and being fearful of complaining to people about incidents which happened to him.
Report of Dr Renshaw
15. In his report of 30 October 2006 Dr Renshaw stated that when he examined Mr Radulovic in May 2005 he diagnosed him as suffering “facet joint strain secondary to excessive stretching in his gym based program …”.[2] His diagnosis was based on his history, physical findings and investigations and specialist neurologist’s assessment.
[2] Ex.A9.
Evidence of Dr Andrews
16. In April 2006 Mr Radulovic consulted Dr Andrews, Consultant Neurologist, on referral by Dr Renshaw. In the opinion of Dr Andrews overstretching of his neck left Mr Radulovic with neck pain and cervicogenic headaches. On examination he found Mr Radulovic to be tender on the left at C3/4 facet joints which he considered was related to the treatment Mr Radulovic was receiving for his back condition.[3]
[3] Ex. A7.
17. When the matter first came before me for hearing neither party called Dr Andrews to give evidence. Having considered Dr Andrews’ reports I was concerned that it was uncertain as to the nature of the stretching exercises Dr Andrews believed had been undertaken by Mr Radulovic at the gym at the time he said he had been injured. I requested that Dr Andrews be called.
18. When Dr Andrews gave evidence I described to him the exercises which Mr Radulovic said he had undertaken. Dr Andrews was of the opinion that the leg-raising exercise could strain the ligaments and capsule of the facet joints. He also expressed the view that a facet joint problem was usually related to a particular incident and was usually experienced the next day.
COMCARE’S ARGUMENT
19. Comcare does not dispute that Mr Radulovic suffers from facet joint strain and consequent cervicogenic headaches. It argues that Mr Radulovic suffers an underlying condition of the spine which becomes symptomatic from time to time but that nothing was done during the exercises at Fit To Manage which contributed to this condition.
20. Further it was put by Counsel for Comcare that Mr Radulovic had failed to give notice of the claimed injury in accordance with section 53 of the Act, which provides that the Act does not apply to an injury unless written notice of the injury is given as soon a practicable after the employee becomes aware of the injury. However subsection 53(3) provides:
Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
Evidence of Ms Thompson
21. Ms Thompson is a Rehabilitation Specialist and a Psychologist. I was told by Ms Thompson that there is no formal qualification for a rehabilitation specialist.
22. Ms Thompson described Mr Radulovic’s program as consisting of stretching exercises, leg stretching and strengthening exercises and core stability exercises. In her opinion these were “nothing to do with his neck.”[4] Later she stated that “I find it incredibly hard to conceive that stretching the leg muscles someone can feel a problem in the neck.”[5] She said also that Mr Radulovic did not complain of pain in his neck either during or at the end of the program.
[4] Transcript 21.7.08 p-36.
[5] Transcript 21.7.08 p-47
23. Other than the Progress Reports prepared by Ms Thompson, she did not keep notes of the individual rehabilitation sessions undertaken by Mr Radulovic.
Report of Dr Lethlean
24. In November 2007 Dr Lethlean, Consultant Neurologist, assessed Mr Radulovic at the request of Comcare’s solicitors. His report of 9 January 2008 is exhibit R1.
25. Dr Lethlean reported that Mr Radulovic was cooperative but a poor historian. On examination Mr Radulovic indicated that he had pain in the posterior cervical spine from C1 to T1 without tenderness on superficial palpation. He also reviewed a number of medical files relating to Mr Radulovic.
26. In the opinion of Dr Lethlean at the time Mr Radulovic attended Fit To Manage he suffered from cervical spondylosis, a degenerative age-related process affecting facet joints and cervical discs. In his view this process is common and normally anticipated in an individual of Mr Radulovic’s age.
27. Dr Lethlean was asked the following:
On the balance of probabilities, do you consider that the applicant sustained a neck condition as a result of rehabilitation/gym program in about August/September 2005?
He replied:
This question is difficult – available data is limited. It appears that cervical symptoms did develop in the latter part of 2005 – or at Odd Bods Gym, although cervical traction would not, I assume, be part of a gym program. Whether the neck condition was due to physiotherapy/ traction, or developed concomitantly would be an open question. On the balance of probabilities, physiotherapy/cervical traction would probably not have caused difficulties, but could have done so – on the background of cervical spondylosis. It is the statement of Mrs Radulovic to myself that it was at a gym at Deakin (Fit to Manage) where on stretching his neck began to hurt. Certainly cervical pain can develop at the time of cervical traction, and it is possible that the neck condition was sustained as a result of the program, as distinct from developing in the ordinary course of events, due to underlying cervical spondylosis.
To consider that, on the balance of probabilities, the neck condition resulted from the rehabilitation/gym program, it would require a statement from Mr Radulovic that the neck pain did develop on an occasion of cervical traction, and preferably with some notation from the treating physiotherapist – some 24 occasions of attendance in the period September – December 2005. Lacking that, I would consider that on the balance of probabilities there was not a causal connection. [6]
[6] Ex.R1.
REASONING
Did Mr Radulovic suffer an injury to his neck whilst engaged in the rehabilitation programme being undertaken by him?
28. Having listened to and observed Mr Radulovic give evidence I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. Although he may become confused at times and his recollection of events may not always be accurate I am satisfied that he did feel pain in his neck whilst undertaking an exercise as part of his rehabilitation programme and that he did inform Ms Thompson of this. I am also satisfied that he has continued to suffer pain in his neck and headaches since the incident as he has described.
29. In reaching this conclusion I take into account that Mr Radulovic’s evidence is corroborated by the evidence of Ms Radulovic that Mr Radulovic complained to her on his return home after the session. I am satisfied that Ms Radulovic was an honest witness and I accept her evidence.
30. I have considered that Mr Radulovic did not continue to complain to Ms Thompson about the ongoing pain he experienced and that it was several months before he sought medical assistance from Dr Renshaw. However, I accept the evidence of Ms Radulovic that Mr Radulovic does not complain to others readily and was concerned to maintain his job. In view of Mr Radulovic’s disability this is understandable. I also take into account that Mr Radulovic’s neck condition worsened over time.
31. I prefer the evidence of Mr Radulovic to that of Ms Thompson. As she did not keep records of individual rehabilitation sessions I do not accept that her recollection of treating Mr Radulovic was as detailed as she claimed. I do not suggest that Ms Thompson was untruthful, but I am satisfied that at times she was relying on what she believed she would have done in the circumstances rather than having a specific recollection of the events.
32. Further I am satisfied on the basis of the evidence of Dr Andrews the cause of the pain and headaches suffered by Mr Radulovic is a facet joint strain suffered whilst undertaking the rehabilitation programme. Ms Thompson was not prepared to accept that such an injury could be caused by the exercises being undertaken. I prefer the evidence of Dr Andrews by reason of his more relevant qualifications and greater experience. I note also that Dr Renshaw diagnosed facet joint strain, although this was in part based on the opinion of Dr Andrews.
33. I prefer the opinion of Dr Andrews to that of Dr Lethlean as Dr Lethlean does not express a firm view on the issue of the causal link (if any) between the rehabilitation exercises and the neck condition. Dr Lethlean did not appear to be aware of the type of exercise being undertaken by Mr Radulovic. I note that in evidence Mr Radulovic did say that his neck pain developed at the time of the rehabilitation exercises
Does section 54 of the Act exclude its application to the injury suffered by Mr Radulovic?
34. The claim for compensation was not made by Mr Radulovic until 30 June 2006, several months after the injury. Although there was no notice prior to the claim being lodged I am satisfied that the claim document satisfies the requirement of written notice of the injury: Comcare v Luck.[7] Clearly the notice did not comply with the requirements of subsection 53(1)(a) as it was not given as soon as practicable after Mr Radulovic became aware of the injury.
[7] (1999) 29 AAR 403.
35. However I am satisfied that Comcare would not be prejudiced if the notice is treated as being sufficient. All relevant witnesses are still available and gave evidence. There is nothing to suggest that the delay until the end of June 2006 in the giving of the notice has hindered the investigation of the claim by Comcare. Comcare did not provide any evidence of prejudice being suffered by it by reason of the delay.
36. I am satisfied that pursuant to subsection 53(3) of the Act the required notice of the injury is taken to have been given
DECISION
37. The reviewable decision made by Comcare on 15 May 2007 (no. 16578791) is set aside.
38. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to compensate Mr Radulovic in respect of an injury, being facet joint strain with consequent headaches, suffered by him in September 2005.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: ..............................................................................................
Peter Horobin
AssociateDate of Hearing 21 July & 25 September 2008
Date of Decision 24 November 2008
Counsel for the Applicant Alan Anforth
Solicitor for the Applicant Daniel Steiner
Capital Lawyers
Counsel for the Respondent Steven Whybrow
Solicitor for the Respondent Kate WatsonAustralian Government Solicitor
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