Reynolds and Telstra Corporation Limited
[2003] AATA 1182
•21 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1182
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/440
GENERAL ADMINISTRATIVE DIVISION ) Re DIANE MARGARET REYNOLDS Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date21 November 2003
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED:
1. The effects of the injuries suffered on 18 November 1996 have not ceased and the liability of the respondent continues.
2. The respondent shall pay the applicant’s costs to be taxed in default of agreement.
(Sgd) J Handley
Senior Member
COMPENSATION – Applicant fell when on her way home from work in 1996; back injured; subsequently worked until 2002; intervening exacerbations of pain; whether new injuries; whether effects of 1996 has ceased; decision set aside.
Safety, Rehabilitation & Compensation Act 1988
REASONS FOR DECISION
21 November 2003 Mr J Handley, Senior Member 1. On 26 November 2001 a claims officer of GIO Australia on behalf of the respondent issued a determination where it was decided that the applicant “no longer suffers the effects of muscular ligamentous strain of the lumbar spine sustained on 18 November 1996”. Liability to pay compensation pursuant to the Safety, Rehabilitation & Compensation Act 1988 was deemed to have ceased on and from 26 November 2001 (T-55 page 108).
2. The applicant sought a reconsideration of that decision and on 7 March 2002 the determination of 26 November 2001 was affirmed (T-62 page 119).
3. The application was heard before the Tribunal on 30 July 2003 and 10 October 2003. Mr Carey appeared on behalf of the applicant and Mr Ferwerda appeared on behalf of the respondent. The applicant gave evidence as did Doctors Montague, Dohrmann and Jackson. A number of other documents were received into evidence and will be referred to in these reasons.
4. In his opening, Mr Carey submitted that the applicant suffered a severe low back injury on 18 November 1996 shortly after leaving her workplace. Thereafter Ms Reynolds has suffered severe low back pain with exacerbations from time to time. She continued to work with the respondent until November 2002 and has thereafter been totally incapacitated. Ms Reynolds remains an employee of the respondent. Mr Carey submitted that arrangements had been made for his client to undergo spinal fusion (and on the resumed day of hearing it was learnt that Ms Reynolds was to be admitted to hospital for surgery in late October).
Diane Margaret Reynolds
5. Ms Reynolds is presently 53 years of age having been born on 26 July 1950. She was educated to age 16 but left school to commence clerical employment in private industry. She resumed studies part-time and obtained a diploma in marketing. She remained employed but temporarily left after marrying and having children. She later returned to employment and commenced working with the respondent in 1994. Initially she was engaged on a twelve month temporary contract but her position became permanent in 1995. Ms Reynolds said that she had previously participated in sports of squash, netball, tennis, golf and jet skiing without prior injury.
6. Initially Ms Reynolds was engaged in a mobile telephone net area known within Telstra as “Churn”. Her work was part of a team engaged in attempting to lure customers to return to Telstra from rival competitors. She was initially employed at an office in Collingwood but later moved to an office in Collins Street. At the time of injury in November 1996 she had separated from her husband and was living with her adult son.
7. On the day of injury Ms Reynolds said that she left work at approximately 5:20pm. She was then working at an office in Collins Street. She was intending to cross Collins Street to board a tram to take her home. She recalled the traffic in Collins Street was busy. She also recalled stepping off the footpath onto the roadway and walking between two parked cars. She was intending to cross the roadway but slipped. She recalled the sensation of falling forward and was aware that she was at risk of being struck by oncoming traffic. She recalled that to avoid this she used her hands to push and lurch herself backwards away from the parked cars but fell heavily and with some force onto her buttocks. She felt immediate pain and shock and embarrassment. Her handbag spilt and she was sweating. She momentarily composed herself and returned to her office. She recalled that she was distressed and was assisted by other persons. After resting for approximately 15 minutes she eventually left the building and boarded a tram and travelled home. That night she recalled that she was “hurting” all over, particularly around her lower back and buttocks. She consumed pain-killing medication and said that she spent an “uncomfortable night”.
8. The next morning Ms Reynolds recalled that she suffered severe low back pain and a severe headache. She said that she felt as if she had been “jarred”.. She attended her family doctor in Murrumbeena who prescribed anti-inflammatory and pain-killing medication and recommended physiotherapy. Certificates of incapacity for work were provided yet despite a relatively short period of incapacity Ms Reynolds returned to work. She reported the incident and made a claim for compensation later in November 1996.
9. Thereafter the applicant attended for physiotherapy and later transferred to another doctor (who’s name she could not recall) in East Bentleigh who also recommended physiotherapy.
10. Ms Reynolds largely remained at work and in the following year recalled that she attempted to play golf but it increased back pain. A back-brace was prescribed by her physiotherapist which Ms Reynolds attempted to use whilst playing golf but recalled that it caused her to be restricted. She attempted swimming and hydrotherapy. She later attended Dr Murray at a sports medicine clinic and had laser acupuncture. She also attended the Brighton Family & Women’s Clinic where x-rays and a CT scan were arranged. Medication was again prescribed. Despite the medical treatment undertaken, Ms Reynolds said that she continued to suffer from severe pain but largely remained at work.
11. In January 2000 Ms Reynolds recalled that a fire drill was undertaken at the workplace. She and others were required to descend nine flights of concrete stairs. She recalled the day following the fire drill she had severe pain in her legs, buttocks and lower back. She was off work for approximately one week and a further claim for compensation was made and accepted. Physiotherapy treatment continued and the employer provided a foot stool and lumbar roll for use in the workplace. Ms Reynolds continued to wear her back-brace in the belief that a restriction of back movement would reduce the risk of increased pain.
12. Later in 2000 Ms Reynolds moved to another office in Collins Street where she was predominantly working in a seated position taking incoming telephone calls. Daily work hours were increased in exchange for the introduction of a nine day fortnight. At or about that time back pain increased in severity and pain-killing medication was consumed at a greater rate. Heat packs were also used.
13. In January 2001 Ms Reynolds commenced another course of physiotherapy and remained at work. In late 2001 Ms Reynolds was admitted to hospital for removal of an ovarian cyst. She convalesced with her sister in Queensland and recalled that at that time she was pain free. She assumed that the effects of an epidural injection which had been administered prior to surgery had relieved her of pain. She was also of the belief that her back pain had its origin in the cyst. However that belief was short lived because whilst in Queensland she recalled one morning leaning across a kitchen bench when her back suddenly seized. She was in severe pain and unable to move. A neighbour who was a physiotherapist arranged for provision of a wheelchair and acupuncture was arranged locally. The acupuncturist referred Ms Reynolds to Dr Marshall in South Yarra upon her return to Melbourne.
14. Eventually Ms Reynolds was referred to Mr Dohrmann a neurosurgeon who referred her for an MRI scan.
15. On November 2001 Ms Reynolds attended a party at a friends house when decking upon which she was standing collapsed. She recalled falling forward onto her hands and knees and felt “rattled” but thereafter recovered without exacerbation of pain.
16. During the weekend of 14 and 15 September 2002 Ms Reynolds moved house. Whilst she said that she “moved some light items” she denied lifting any heavy items. She said she was busy that weekend and subsequently was unable to rest, which she normally does on weekends. She also attended the Prahran Market to purchase groceries and vegetables. She said a trolley used by her was loaded by shopkeepers and the heaviest activity involved dragging the trolley (with wheels) up two steps to where her car was parked. She said another person lifted the trolley into the boot of her car. On the following Monday she was in severe pain and was assisted by a friend who was a nurse. She was driven to South Melbourne for acupuncture and returned home for bed rest. Eventually she was admitted to Alfred Hospital. Save for an unsuccessful attempt to return to work on graduated hours, Ms Reynolds has not worked since late 2002.
17. In cross-examination Ms Reynolds said that she “supervised” the filling and lifting of boxes during the weekend when she moved house. She denied lifting any boxes herself and denied an entry into the notes of the Alfred Hospital that she pushed a trolley to or from the Prahran Market “up hills”. She recalled that she had been prescribed morphine immediately prior to admission to the Alfred Hospital and wondered whether she was either confused when giving her history or whether the presenting doctor misunderstood her. She associated the increase in back pain at or about the time of moving house with being denied the opportunity to rest throughout that weekend which was her normal practice.
18. With respect to the fall in Collins Street in November 1996, Ms Reynolds was unable to explain why her doctors at Murrumbeena did not record in the certificates provided that she had suffered back pain (page 6), or pain in her buttocks in the days immediately after the incident (pages 6, 7, 8), or an explanation of cause of injury by falling (pages 6, 7, 8, 10, 16, 17). Additionally she was unable to explain why the medical certificates did not record that she suffered injury by falling onto her buttocks on a roadway. Ms Reynolds said that until she had been called upon to give evidence in these proceedings she had not ever been asked to explain or describe the incident of November 1996 in any detail and noted that the episode had occurred seven years earlier. She said she was principally concerned in November 1996 to have her injury treated and to be prescribed pain-killing medication.
19. Ms Reynolds denied that she had suffered back pain or injury prior to November 1996 but conceded that she was “not 100% certain”.. She said that she had attended doctors previously but could not recall their names. She said more often she would attend doctors because of colds or influenza either at her family clinic in Murrumbeena or at suburban 24-hour clinics.
20. With respect to the manner in which she had described her back pain to doctors from time to time, Ms Reynolds was taken to reports where histories taken record her as having described the back pain as either “intermittent” or “off and on”.. She said that these words were used to describe fluctuations or variations in the intensity of pain but said that since November 1996 she has not been without back pain except for the short occasion following the surgery to remove an ovarian cyst.
21. With respect to the episode of descending stairs at work in January 2000, she agreed that she had been walking down the stairs quickly and that descending stairs had been a problem for her since the fall in November 1996. She denied that she slipped or fell whilst descending the stairs during the fire drill and agreed that part of the history taken by Mr Dohrmann (as evident by his report) was incorrect. Ms Reynolds said that she was referred to Mr Dohrmann by Dr Montague at the Heritage Clinic because of concern felt by him as to her back injury. She denied that she sought referral to Mr Dohrmann because at or about September 2001 (when she was referred) she was aware that Telstra was reviewing liability.
Peter Julian Dohrmann
22. Mr Dohrmann is a neurosurgeon who provided a report dated 18 November 2002 at the request of the applicant’s solicitors. Ms Reynolds was referred to him by Dr Montague on 5 September 2001. Mr Dohrmann has attended Ms Reynolds on a number of occasions subsequently.
23. In the report he referred to an episode in 1996 when Ms Reynolds was employed by Telstra. He described her as having “had a fall while leaving her work place in Collins Street”. Later he reported that she “slipped on stairs at work”.
24. In evidence Mr Dohrmann said that the history taken by him from Ms Reynolds of an initiating episode with minor episodes subsequently was typical of a person who suffers a disc injury. Further to this he expected that persons with a disc injury would suffer exacerbations and remissions of pain. He said that treatment by way of massage, acupuncture and physiotherapy were mainstream and typical. He was confident that her “problems” commenced in 1996 and a discogram taken on 11 July 2003 were consistent with her symptoms. He said that a spinal fusion was an option for pain relief.
25. Mr Dohrmann said that he found Ms Reynolds to be a hard working person who presented with a history that was consistent and that she had not embellished her symptoms. He said the fall in 1996 was significant and had that fall not occurred it would be unlikely that she would have presented with current symptoms.
26. In cross-examination Mr Dohrmann agreed that he first consulted with Ms Reynolds approximately five years after the fall in 1996. He also agreed that it was likely that there would have been some pre-existing disc degeneration because of her age however in his opinion it was unlikely that there would have been recovery from the 1996 episode because in his experience, disc damage heals poorly. Nonetheless he agreed that there could have been some symptomatic recovery. He agreed that he did not take a detailed history of the fall in 1996 because he was more concerned with treating Ms Reynolds and relieving her of pain. He said that had she fallen against a car, it would have been less likely to have caused disc injury than falling backwards onto her buttocks.
27. Mr Dohrmann was asked to comment upon an opinion expressed by Mr Jackson, a consultant orthopaedic surgeon engaged by the respondent, who found that the episode of 1996 produced temporary symptoms only. Mr Dohrmann said that he could not comprehend how this opinion could have been made nor demonstrated unless there was a long interval between the original injury and the next subsequent experience of back pain. That is to say, if there had been a long interval between the initiating episode and the first subsequent episode of pain, only in those circumstances could it be postulated that the 1996 episode produced a temporary exacerbation of pre-existing disc damage.
28. In his opinion the consistency of the history given by Ms Reynolds and the presence of pain subsequently caused him to be of the opinion that the 1996 fall in Collins Street was responsible for her present symptoms.
Graham Albert Montague
29. Dr Montague has previously treated the applicant and provided a report dated 29 October 2002 which was received into evidence. He adopted his report as a summary of his treatment of Ms Reynolds.
30. The report indicates that Ms Reynolds first attended his clinic on 22 February 1999 and first complained of back pain on 4 July 2000. Dr Montague noted that Ms Reynolds had previously been treated by Dr Hodsman at the Brighton Family & Women’s Clinic who arranged referral for a CT scan on 11 April 2000. A copy of that report was annexed to Dr Montague’s report of 29 October 2002.
31. On 9 July 2000 Dr Hodsman noted that Ms Reynolds had given him a history of falling down some stairs approximately six months earlier. That history was taken by another doctor at the Heritage Clinic. Dr Montague acknowledged that his report and his notes have no record of Ms Reynolds advising that she had increased back pain following an incident of descending stairs during a fire drill.
32. Dr Montague again saw Ms Reynolds in April 2001. He took a history of an exacerbation of back pain but without the cause being noted. He then referred her to Mr Dohrmann.
33. In cross-examination Dr Montague said that he would prefer to defer to the opinions expressed by Mr Dohrmann who he noted had also referred Ms Reynolds to Dr Verrills and Mr Malum. Dr Montague said he had reports from those latter doctors but he did not bring them with him to the hearing. He could not recall whether those doctors had obtained a history of the 1996 incident. Dr Montague understood that Mr Malum was now treating Ms Reynolds and had arranged for her to have a spinal fusion in late October 2003 (approximately two weeks after the second day of hearing). He said he was not in a position to recommend for or against surgery and again deferred to the opinion of Mr Malum.
34. With respect to whether the effects of the 1996 episode had ceased Dr Montague agreed that a number of factors would need to be considered namely, Ms Reynolds’ age, whether she had any prior degeneration, the mechanics of the injury and whether she fell onto her buttocks, (however he was of the opinion that whether Ms Reynolds fell onto her buttocks was probably more indicative of the causation or initiation of injury as opposed to whether the effects of injury had ceased). He also agreed that symptomology and structural damage would be indicators of whether the effects of injury had ceased but he thought that this enquiry was speculative because x-rays and or CT scans were – to his knowledge – not arranged in 1996. He therefore preferred to rely on the applicant’s symptoms and complaints of pain. He also thought that the applicant’s lifestyle, her weight, and any other episodes might be relevant as to whether the effects of injury had ceased, but overall, he was of the opinion that despite subsequent periods of resolution and exacerbation of pain, the initiating injury could continue to affect Ms Reynolds.
35. Dr Montague said that he was unable to give an opinion as to whether the 1996 episode caused a disc injury or aggravated a pre-existing disc injury but said that “certain events will injure a back that will not recover”. He said that he would have expected doctors who had previously treated Ms Reynolds to have performed investigations.
Robin Jackson
36. Mr Jackson is an orthopaedic surgeon who was in private practice between 1974 and 1997 but subsequently has been a medico-legal consultant on a full-time basis. He provided two reports dated 13 September 2000 (T-21) and 26 March 2003 following consultations with Ms Reynolds.
37. In evidence Mr Jackson said that he initially was of the opinion that the applicant had suffered a disc injury following the 1996 episode but on review in March 2003 – having observed an MRI scan performed on 26 September 2001 – he held the opinion that the 1996 episode aggravated a pre-existing degenerative process, the effects of which had ceased. Additionally Mr Jackson said that at his first consultation with Ms Reynolds he only considered the 1996 episode (although the report indicates that he was aware that Ms Reynolds had suffered an exacerbation of pain following the incident at work where she descended stairs during a fire drill).
38. Mr Jackson said that he examined Ms Reynolds with a view to providing an opinion as to whether the effects of the 1996 episode had ceased by reference to “past problems”, the applicant’s history, her clinical history subsequently, her age and other investigations. He said that there were no investigations following the 1996 episode and it was reasonable in the circumstances for the applicant’s doctors to conclude that there were no underlying or pre-existing “problems”.
39. Having obtained a history during the second examination of complaint of exacerbated pain in January 2000 and September 2002, Mr Jackson was of the opinion that it was “not uncommon” for incidents of the type complained of by Ms Reynolds to exist in a person who has pre-existing degeneration. Mr Jackson said that the evidence of Ms Reynolds of her back having seized, on at least one occasion subsequent to 1996, was not indicative of ongoing contribution from the 1996 episode but rather was a further aggravation of pre-existing degenerative disease.
40. In cross-examination, Mr Jackson said that the report of the MRI scan which he reviewed at the time of the second consultation was only one factor causing him to alter his opinion. He said that his second report was more “considered” and more accurate because of the observation of the radiologists’ findings at MRI.
41. Mr Jackson was then taken to paragraph 2(d) of his second report which is expressed in the following terms:
One must take the current situation which is that of disc degenerative disease of the lumbar spine. There are many factors that contribute to this. The current situation represents lifetime factors of recreational activities, sporting activities and injuries, all minor incidents that may have occurred, structural factors and genetic factors together with age.
42. Mr Jackson agreed that his reference to the word “injuries” in that paragraph incorporates the 1996 episode.
43. Mr Jackson was then asked to assume that the applicant had not suffered back pain prior to 1996 but had suffered fluctuating back pain subsequently. By reason of that pain she had attended for treatment with doctors, physiotherapists, masseurs, hydrotherapists and acupuncturists. On the basis that she had presented for treatment from these practitioners by reason of ongoing symptoms, Mr Jackson agreed that continuing pain on a daily basis would be significant. He was not “certain” however whether back pain subsequently had been continuous or intermittent.
44. When asked to assume that the 1996 episode caused the onset of back pain which had subsequently fluctuated in intensity, he was then asked whether he would, in those circumstances, continue to adhere to the opinion which he expressed in his report, that the effects of the 1996 episode ceased within two years. He said that that period was expressed by Mr Macintosh and he regarded that period of time as being as an “empirical figure”. Mr Jackson said he would prefer to express the opinion that the effects of the 1996 aggravation would have “settled” within two years. Nonetheless it was his opinion that continuing fluctuating back pain with continuing treatment would indicate that the 1996 episode continues to contribute to the applicant’s current situation.
Submissions
45.
Mr Ferwerda on behalf of the respondent submitted that the decision under review should be affirmed. Whilst acknowledging that Ms Reynolds does have significant spinal pathology, he submitted that upon the basis of the contents of the report (and evidence) of Mr Jackson and the report of Mr Macintosh (refer
T-documents) the effects of the 1996 episode have ceased.
46. It was submitted that as a result of the applicant being cross-examined in these proceedings more was known about the incident of descending stairs at work, the weekend where Ms Reynolds moved house, and her presentation to Alfred Hospital where a history was taken of pushing trolleys. It was submitted that the applicant’s explanation of suffering back injury in 1996 by falling onto her buttocks was an embellishment and was inconsistent with medical histories that she had provided to doctors at or about that time and subsequently. It was submitted that the symptoms subsequently reported were inconsistent and the opinions expressed by Mr Dohrmann were implausible.
47. It was noted that Mr Malum was not called by the applicant nor were other witnesses to explain the inconsistencies in the applicant’s evidence.
48. It was submitted that weight should not be attached to the evidence of Mr Dohrmann despite him being a treating specialist. It was submitted that he was an advocate for the applicant, that he had no history of the episode in Queensland, and the history that he obtained with respect to the fire drill was inaccurate. Additionally it was submitted that the impression formed by Mr Dohrmann of Ms Reynolds as a witness of truth was irrelevant because that was a matter for determination by the Tribunal.
49. With respect to the evidence of the applicant that she had been in pain subsequent to 1996, it was submitted that there was “ample evidence” that she had not been in pain for that duration or for the intensity as expressed. It was noted that persons were not called to corroborate the applicant’s complaints of persisting pain. In the alternative, pain subsequent to 1996 can be explained by the persisting exacerbations of incidents and episodes which were not work related.
50. Mr Carey on behalf of Ms Reynolds submitted that his client had given a good account and history of the 1996 incident which he submitted was responsible for her persisting and ongoing pain subsequently and is the cause of the spinal fusion for which his client will undertake in late October 2003.
51. It was submitted that it was not in issue in the present application whether the applicant should have undertaken treatment or the reasonableness of the treatment. It was noted that doctors frequently disagree with respect to opinion and diagnosis within litigation however the applicant had given a consistent and credible account of chronic back pain subsequent to 1996. Mr Carey submitted that the applicant did not embellish and gave a truthful and honest account. It was acknowledged that there was some inconsistencies between histories taken by doctors and by the Alfred Hospital but histories given were in a clinical environment and where the patient is not cross-examined as she was during litigation. Additionally, litigation was not contemplated at the time of the taking of a clinical history because the applicant was at all relevant times anxious to seek and receive treatment.
52. It was noted that the applicant has had extensive treatment from a number of differing health care professionals and both Mr Dohrmann and Mr Jackson agreed that the 1996 episode was an important factor in the initiation of her symptoms.
53. In the circumstances it was submitted that the decision under review should be set aside and the respondent should continue its liability.
Conclusions and Reasons for Decision
54. This is an application to review a decision made by the respondent to cease liability in November 2001 with respect to an injury sustained in November 1996.
55. The hearing over two days involved an intense and intimate enquiry into the circumstances of the 1996 episode and the effects of it subsequently upon the applicant. Opinion was divided as to whether the effects of the 1996 episode continued beyond 2001 but that is the nature of litigation. Clearly if there was agreement between the parties the matter would have resolved at a Conciliation Conference convened by the Tribunal in April this year.
56. Litigation also involves enquiry into alleged inconsistencies between the evidence of an applicant and the histories taken by that person’s doctors. This is not an uncommon phenomena. The responsibility therefore of the Tribunal is to take account of the evidence heard and read and ultimately reach the correct or preferable decision.
57. The applicant impressed me as a witness of truth. Despite the attack made upon her I did not find that she embellished her evidence or exaggerated her complaints. She acknowledged that there were inconsistencies between her evidence and that of some of her doctors. Nonetheless the histories taken by treating practitioners was not in an adversarial or litigious environment and I doubt that the applicant envisaged at the time that she would later have to account for, or explain, the words recorded by her healthcare professionals in various medical certificates, treatment records and in reports. It must also be acknowledged that both Doctors Dohrmann and Montague indicated in evidence – when alleged inconsistencies in their treatment records were raised – that they were concerned with treatment of the applicant and were more concerned with reporting and recording symptoms and the proposed plans of treatment.
58. The applicant was criticised for the explanations she had variously given for the mechanism of the incident in 1996. Indeed there was some criticism of her because on one view, an explanation she had given would point to her not having fallen at all. In fairness to the applicant, she was asked to recall an event which occurred almost seven years earlier at a point in time when she could not possibly have known that she would be required to explain it, in detail, in litigation. The explanation recorded by her in her claim for compensation was apparently acceptable to the respondent because it ultimately accepted liability. Additionally, Ms Reynolds cannot be held responsible for the description of the incident as recorded by doctors from time to time. The description recorded by doctors can be no more than a manifestation of the understanding they had of the description of the fall (for example Mr Macintosh reported that Ms Reynolds fell after “attempting to pull herself backwards”).
59. I am satisfied and find as a fact that on 18 November 1996 shortly after leaving her workplace Ms Reynolds intended to cross Collins Street. In order to do so she was required to walk between two parked cars. It appears that Ms Reynolds lost her footing and in an attempt to avoid falling forwards (thereby putting her at risk of being struck by passing traffic) she propelled herself backwards by pushing against one or more parked cars. In so doing she fell onto her buttocks onto either the roadway or the edge of the footpath.
60. Subsequently Ms Reynolds has complained of persisting and chronic low back pain which – for reasons which will follow – I am also satisfied and find as a fact are related to the 1996 episode.
61. The effects of that episode have not, in my view, ceased.
62. Ms Reynolds has significant spinal pathology. This is clearly evident by her proposed admission for a three level spinal fusion. The persisting pain from 1996 is evident by the myriad of treatment undertaken by her by a number of different healthcare professionals. The notes taken by those professionals – interpreted word for word – may not necessarily satisfy the respondent but the presentation for treatment is consistent with a person suffering ongoing pain. To her credit, Ms Reynolds attempted to work for approximately six years until September 2002 but has been incapacitated since that time. The ongoing incapacity is in my view directly referable to the 1996 episode.
63. I was impressed with the evidence of Mr Dohrmann who is the applicant’s treating neurosurgeon. He gave his evidence in a balanced and rational manner and was firm in his opinion that the 1996 episode continues to be responsible for the applicant’s ongoing complaints. The attack made upon him as an advocate of Ms Reynolds was unfair. I prefer the view that he is a medical practitioner who is concerned for his patient’s welfare.
64. Mr Jackson said in evidence that he changed his opinion after he observed an MRI report which was not in existence at the time of his first consultation. At the time of first presentation he relied, in part, on a CT scan taken of 11 April 2000 and he ultimately concluded that the effects of the 1996 incident continued to affect Ms Reynolds. Indeed he found that the incident in January 2000 of descending stairs did not cause an injury but rather a “spontaneous onset of an increase in back pain due to her lumbosacral disc degeneration”. He thought that the presenting injury was the aggravation of a pre-existing condition “possibly dating back to her injury five years ago”.
65. In his report of 26 March 2003 Mr Jackson gave a differing opinion. He said that he had the opportunity to examine an MRI of September 2001 which he interpreted as “clearly defines a longstanding problem which I believe was present at the time of her initial injury on 18 November 1996”. He concluded that the 1996 incident aggravated the pre-existing degeneration and that any “aggravating factor would long ago have ceased”. He thought the applicant demonstrated at consultation in March 2003 the “natural progression of a pre-existing or underlying condition that is an L5/S1 disc degenerative disease which was present prior to 18 November 1996”. He concluded that the effects of the aggravation in 1996 were temporary.
66. I thought the reports of Mr Jackson were difficult to reconcile. In both reports he found that the 1996 episode caused the aggravation of pre-existing spinal degeneration yet in the former report he thought the effects were continuing at September 2000. In March 2003 he said the effects of aggravation were temporary, that the affects were likely to have resolved within two years and the altered opinion was based on his interpretation of an MRI report taken in 2001. What he did not explain in his report or in evidence is what it was that he found in the MRI report which caused him to change his opinion.
67. Mr Macintosh examined on behalf of the respondent in August 2001. He observed the CT scan of April 2000 (the same scan initially observed by Mr Jackson). He found that the applicant suffered a “significant fall and injury to her lower back in 1996 which would have been expected to produce symptoms the effect of which would be expected to have resolved over two years”.. He was later asked to comment upon the report of the MRI scan and found that it was “essentially similar to the CT scan and does not appear to have contributed to her management”.. He thought the changes evident from the MRI scan “are not uncommon in women of her age particularly with her long history. Therefore the MRI scan results do not change the conclusions of my report of 2 August 2001”.
68. The respondent did not call Mr Macintosh. It should also be noted that the applicant did not call Mr Malum the surgeon who will perform the three level fusion nor was Dr Verrills called to whom Ms Reynolds was referred. I draw no adverse inference against either party for the failure to call these doctors however the conclusions reached by this decision are based entirely on the evidence heard and the documents read and received into evidence.
69. I am satisfied – consistent with the evidence of the doctors – that Ms Reynolds did not suffer an injury when she descended stairs in January 2000 but rather she suffered a temporary exacerbation of the pre-existing injury. Equally I am not satisfied that any injury was suffered in the weekend of September 2002 when Ms Reynolds moved house. I am satisfied that there was a temporary exacerbation of the pre-existing injury which rapidly resolved and Ms Reynolds returned to her pre-exacerbated state.
70. In all of the circumstances I am not satisfied that the effects of the 1996 episode have ceased. Rather I am of the view that the effects of that injury persist and the liability of the respondent continues. The decision under review will therefore be set aside.
71. The applicant is entitled to have her costs paid by the respondent pursuant to the Federal Court scale.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 30 July & 10 October 2003
Date of Decision 21 November 2003
Counsel for the Applicant Mr M Carey
Counsel for the Respondent Mr J Ferwerda
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