Riley and Comcare
[2005] AATA 23
•11 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 23
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos S2003/213, GENERAL ADMINISTRATIVE DIVISION ) S2004/59 & S2004/194
Re RAYMOND JOHN RILEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date11 January 2005
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decisions under review, and in place of those decisions, decides that Mr Riley is entitled to compensation in respect of his incapacity for work on 21 March, 23 April, 1 and 2 May, 13 and 14 June and 11 November 2002, and is entitled to the medical and physiotherapy expenses he has claimed;
(b) reserves liberty to apply within 21 days in relation to the costs of the proceedings; and
(c) orders that in the absence of such an application, the respondent pay the costs of the proceedings.
(Signed)
D G Jarvis
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – journey accident – neck pain – pre-existing headaches and neck pain – claim by applicant that neck pain due to injury sustained in accident – neck condition aggravated by bus travel – reconsideration of own motion invalid to the extent that it purported to set aside earlier reviewable decision – meaning of “as of” – decisions under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 14, 16, 19 and 62(1)
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Australian Postal Corporation v Bessey [2001] FCA 266
Rosillo v Telstra Corporation Limited (2003) 77 ALD 296
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
REASONS FOR DECISION
11 January 2005 Deputy President D G Jarvis 1. Trevor John Riley was involved in a motor vehicle accident on 22 October 1992 on his way to work. A van collided into the rear of a station sedan being driven by Mr Riley when it was stationary behind a line of other vehicles. As a result of the collision, Mr Riley developed pain in his neck. He was absent from work on the day of the accident, which was a Thursday, and on the next day, but returned to work on the following Monday.
2. Mr Riley consulted his general practitioner, Dr Potter, about the effects of the accident on the day it occurred, but did not consult him again about its after effects (which were by then, he said, pain in his neck) until nearly five months later. Dr Potter later referred Mr Riley for physiotherapy treatment to his neck, and Mr Riley received physiotherapy treatment to his neck spasmodically on various dates commencing on 5 October 1994. He also had an x-ray of his cervical spine on 1 December 1994. Comcare met his medical expenses up to and including 16 November 1995. He was also paid incapacity payments for the two days for which he was absent from work in October 1992.
3. Mr Riley claims that after 16 November 1995, his neck condition flared up intermittently, and he saw Dr Potter, and had some further physiotherapy treatment, on various subsequent dates. He had a further x-ray of the cervical spine on 12 May 2002, and a CT scan on 29 November 2002. He also had further time off work, which he asserts was due to neck pain arising from his motor vehicle accident, on various dates from and including 5 October 1994. He claims that he had four days off work on various dates in 1998 and 1999 (which, as he found out later had not been the subject of compensation payments to him, but had been treated as part of his sick leave entitlement), seven days off work in 2002, and one day off work in 2003 due to neck pain. He asserts that his time off work in 2002 and 2003 was the result of the jarring of his neck during bus journeys to work which caused a flare-up of his neck condition resulting from his motor vehicle accident. He has claimed compensation pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the “Act”) in respect of his incapacity to work on 21 March, 23 April, 1 and 2 May, 13 and 14 June and 11 November 2002. He has also claimed reimbursement of doctors, physiotherapy and x-ray expenses incurred after 16 November 1995, pursuant to s 16 of the Act. These expenses include the cost of five physiotherapy treatments in 1998.
The Three Reviewable Decisions
4. In a determination dated 14 August 2002, an officer of Comcare decided that she was not satisfied that Mr Riley’s then current condition was the result of the accident in 1992 or that there had been other factors that had aggravated that condition. She accordingly determined that there was “no liability under any section of the Act on and from the 16/11/95; the date last treatment was paid.” (exhibit A1, T18, page 43).
5. A review officer later reviewed this determination at Mr Riley’s request, and in a reviewable decision dated 17 April 2003, purported to decide to “[affirm] the determination of 14/8/2002 which ceased liability for neck injury on and from 16/11/95.” (exhibit A1, T25, page 54). Mr Riley has applied to this Tribunal for a review of the decision made on 17 April 2003, and his application is matter number S2003/213 in this Tribunal.
6. In a further reviewable decision made on 8 June 2004, a review officer issued a reconsideration of own motion pursuant to s 62(1)(a) of the Act which varied the determination of 14 August 2002. The review officer made the following decision:
“(a) The reviewable decision of 17 April 2003 is set aside.
(b)Pursuant to s 62(1)(a) of the Act I now make a reviewable decision of own motion varying the determination of 14 August 2002 to find that as at 16 November 1995 the motor vehicle accident in 1992 was not contributing to a material degree to any incapacity or requirement for medical treatment and that as of 16 November 1995 compensation is not payable to the employee pursuant to sections 16 and 19 of the Act.” (exhibit A3, T4, page 8).
7. Mr Riley has also applied to this Tribunal for review of the reviewable decision on reconsideration of own motion, and his application is matter number S2004/194 in this Tribunal.
8. In August 2003, Mr Riley asserted that the jarring of his neck on bus journeys between home and work had aggravated his neck condition, causing him to lose time from work and he claimed compensation for incapacity on this basis. On 22 October 2003, a delegate of Comcare said that she was satisfied that Mr Riley had an injury as defined in s 14(1) of the Act, but was not satisfied that he had suffered a new injury. She added:
“As no new incident has occurred and the evidence suggests this condition is related to a pre-existing condition I have decided to disallow this as a new claim.” (exhibit A2, T9, page 50).
9. This decision was also reviewed at Mr Riley’s request, and on 6 January 2004, a review officer from Comcare confirmed the rejection of Mr Riley’s claim, but decided that the determination of 22 October 2003 should be varied as to the basis of the rejection of Mr Riley’s claim. She said she was not satisfied that on the evidence before her that the finding that Mr Riley had suffered an injury under s 14(1) of the Act could be sustained. She found that there was “insufficient evidence that the employee suffers an underlying disease of the neck”, and added:
“I also note that there has been no evidence provided to support the claim that bus travel could contribute in a material degree to any such disease.” (exhibit A2, T11, page 55).
10. Mr Riley has also applied to this Tribunal for review of the reviewable decision made on 6 January 2004, and his application is matter number S2004/59 in this Tribunal.
11. At the outset of the proceedings before me, I directed that matters number S2003/213, S2004/59 and S2004/194 should be heard together, and that evidence in each of the proceedings should be treated as evidence in each of the other proceedings.
Issues
12. The issue before the Tribunal is whether Comcare is liable for incapacity payments and the cost of medical treatment pursuant to ss 19 and 16 of the Act, as claimed by Mr Riley. This issue in turn raises the following further issues:
(a)whether the incapacity from which Mr Riley has suffered since 16 November 1995, and the medical expenses he has incurred, are the result of the injury he received in the motor vehicle accident of 22 October 1992; and
(b)if Mr Riley was suffering from a neck condition in consequence of his accident in 1992, was that condition aggravated by the jarring to his neck which occurred during bus journeys on or about the dates which are the subject of his absences from work during 2002.
13. Mr Riley also suffered from headaches, which from certain medical records appear to have been associated with neck pain, for at least 10 years prior to his accident in 1992. In considering the above issues, a further question arises as to whether his incapacity for work and medical expenses were the result of this pre-existing condition, and not the effects of his accident.
Background
14. Mr Riley was born on 8 August 1950 and has been employed by Centrelink (formerly the Department of Social Security) since approximately 1990. Prior to that, he had undertaken various forms of employment. When he commenced with the Department of Social Security he was employed as a maintenance officer, and this involved travelling to various Centrelink offices and carrying out general minor maintenance work. He was working in this position at the time of the motor vehicle accident in 1992.
15. In 1993 he was transferred to the position of property officer in Adelaide, and worked in that position for about four years. In December 1996 he became an investigation officer, and this entails ensuring that Centrelink customers are receiving their correct entitlements and are not being overpaid.
Evidence of Applicant as to Accident and its Aftermath
16. Mr Riley said that before the accident, he had stopped two to three car lengths from the rear of the vehicle immediately in front of him. He said as a result of the collision, the van forced his vehicle forward to a point where it almost struck the vehicle in front of him. He described the impact as severe, and said the damage to his vehicle was quite extensive. It caused the driver’s seat in which he was sitting to break at the bottom where the back-rest meets the bottom of the seat. He said as a result, his seat fell backwards, he slid up the seat, and the top of his head struck the metal grilled mesh cargo barrier located behind the front seat. He said that the back seat was in its folded down position. He suffered an injury to the top of his head as a result of hitting the cargo barrier and had a laceration to the top of his head, but it was not significant and did not require stitches. He said that after the accident, he proceeded to his place of work in the city.
17. He saw his general practitioner, Dr Potter, on the day of the accident. He said that his head was very sore from where it hit the cargo barrier, and soon after the accident he began experiencing pain and stiffness in his neck. He said the pain was on the right side of his neck. He said he could not recall when he first began to experience pain in his neck, other than that it was soon after the accident.
18. In his witness statement (exhibit A4), Mr Riley provided information relating to headaches which he had experienced before the accident. He said (exhibit A4, paragraph 13):
“Prior to the motor vehicle accident I had for some years been experiencing headaches on an intermittent basis. The headaches were a dull aching sensation. I would get the headaches at the back of my skull just above the top of my neck. I would also get headache in both temples. I had consulted my general practitioner (Dr Potter) in relation to my headaches. In investigation of the same Dr Potter referred me for an x-ray of my neck. I agree that this x-ray was carried out on 23 August 1991. I understood the x-ray did not show me to be suffering from any problems with my neck which would explain my headaches and I underwent no further investigations to my neck. I did not undergo any treatment for my neck prior to the motor vehicle accident. After the motor vehicle accident I have in fact have had less headaches. I saw Dr Awerbuch at the request of Comcare last year. I told Dr Awerbuch that after the motor vehicle accident I had been having less headaches. Dr Awerbuch asked me to explain why this would be and I was not able to provide an explanation. On further reflection, it occurred to me that my daughter who also had been experiencing headaches was prescribed glasses. This led me to recall that in the period after the accident I was also provided with glasses. I subsequently ascertained I was provided with glasses in November 1992. Possibly the provision of glasses may provide an explanation as to why my headaches have diminished after the motor vehicle accident.”
The date of acquisition of the glasses was confirmed by a receipt from Mutual Community dated 27 November 1992 (exhibit A8).
19. In his evidence before me, Mr Riley said that he had become aware of difficulty with his sight as a result of an incident when he was wiring a duress alarm in a confined space, and his vision was blurry. He noticed that after he had obtained glasses, he could see paperwork a lot clearer, and had not appreciated how clear his vision should have been. He said that before the accident, he used to get headaches about every two to three months, but since the accident he rarely gets headaches, and they are very infrequent.
20. In his witness statement, Mr Riley described the ongoing symptoms from his neck following the accident as follows (exhibit A4, paragraph 14):
“After the motor vehicle accident I have continued and still continue to suffer from ongoing pain in my neck. The pain generally is a dull aching sensation on the right side of my neck which can extend into my right shoulder. My neck has remained an ongoing problem since the motor vehicle accident. Since the motor vehicle accident my neck has never been completely symptom free. I would have some degree of stiffness and aching in my neck. Generally I have been able to self manage my neck symptoms. From time to time however my neck has been prone to exacerbations for example if I have slept the wrong way I would wake up in the morning with stiffness in my neck. If I had jarred my neck or had overexerted myself then I would get an increase in my neck pain. Usually exacerbations in neck pain settle with rest and/or the use of Naprosan [sic]. From time to time exacerbations did not settle with rest or Naprosan and I have undergone physiotherapy treatment for my neck which I found helpful and easing the exacerbations of neck pain. After a few physiotherapy treatments my neck would return to its normal dull aching type of pain.”
21. In his oral evidence, Mr Riley confirmed that the pain was there all the time, but said that it is minimal and it takes some aggravation to make it worse. He said that any quick movement of the head, or striking his head as on the top of a car door, or any jerking motion or bumping into something can affect his neck pain. He said that he lies down for relief or takes naprosyn, but can only get this on prescription. He said he does not take naprosyn on a regular basis, but would take it at least once a month. He said that he keeps naprosyn in his car, in his briefcase and at home so that he will not be without it, and if he takes naprosyn straight away his pain does not continue, but otherwise he has to take a day off.
22. In examination-in-chief, Mr Riley was asked to indicate the source of his pre-accident headaches and his post-accident pain. In the case of the former, he indicated an area at the centre and base of his head. In the case of the post-accident pain, he indicated an area on the right side of his neck, just below the level of his right ear-lobe. He said that this pain travels down to his right shoulder and to the right side of his head behind, above and to the front of his ear and extending to the right temple, and the right eye-ball itself is sore. He said he had never had problems with the left side of his neck or the left side of his head from his neck pain that he could recall.
23. As mentioned above, Mr Riley thought that he was paid incapacity payments for certain time he had off work in 1998 and 1999 for his neck pain, but he later realised that he had been paid sick leave to cover these absences (even though when he entered information on his computer at Centrelink to give the reasons for his time off, he referred to compensation). It appears therefore that the fact that he was claiming compensation for these absences from work did not come to the attention of Comcare at the times when he made that claim. He said in evidence that he did not in all cases make a claim for compensation for his time off, and he paid for medical and physiotherapy treatment after 16 November 1995. However, as a result of suffering from a stress condition later in 2001, Mr Riley decided to cease driving between home and work, and started to catch the bus to avoid the stress of driving in peak-hour traffic to and from work. He said he then found that the stop/starting of the bus to pick up or let off passengers and in the general flow of traffic involved a jerking motion. Further, he said that the buses were long articulated buses, and they had difficulty negotiating the windy roads in the area where he lived, and they were constantly driving over gutters and roundabouts, causing the bus to jar and aggravate his neck pain. He said further that as a result, he had various days off work in 2002, and saw Dr Potter on some of the occasions when his neck was painful, and had further physiotherapy treatment. He decided to make a claim for compensation after he realised that the bus journeys were aggravating his neck pain.
24. Comcare also prepared a summary of the time which Mr Riley had off for neck pain or headaches, starting from 1991. This summary was apparently based on various records available to Comcare prior to the hearing. It appears at the commencement of the third section of exhibit R1.
25. Mr Riley obtained details from the physiotherapists concerned of the dates when he had treatment from them, and the respondent prepared and submitted a summary of the dates of his physiotherapy treatment and the dates when x-rays were taken of his neck. This summary appears in the second section of exhibit R1.
26. The first section of exhibit R1 includes a summary showing the dates of notes of consultations which Mr Riley had with various doctors or physiotherapists in connection with neck and/or headache symptoms, together with a transcription of the notes themselves. The summary in the first section of exhibit R1 also includes reference to notes and a report dated 14 April 1992 from Dr Peter McKenzie, a physician. It appears that Dr McKenzie was treating Mr Riley for a lipid disorder, but his notes also include reference to Mr Riley’s pre-accident headaches. During the hearing, it became apparent that the summary was incorrect in various respects, and with the consent of counsel, I made certain handwritten corrections or additions to this summary. These are marked on the exhibit.
Medical Evidence
27. Mr Riley relied upon evidence from his general practitioner, Dr Potter, and evidence from Mr Gordon Morrison, an orthopaedic surgeon.
28. Dr Potter prepared letters or medical reports dated 15 March 1995 (exhibit A1, T9, pages 30-31), 16 November 1995 (exhibit A1, T13, pages 35-36), 15 August 2002 (exhibit A1, T17, pages 40-41), 3 October 2002 (exhibit A1, T20, pages 45-46) and 21 August 2003 (exhibit A5). In addition, the notes of Dr Potter’s practice, which is now called the Pioneer Medical Centre, were summoned, and extracts of those notes are attached to the first section of exhibit R1. The documents before me also include medical certificates issued by Dr Potter from time to time since the motor vehicle accident.
29. Dr Potter has consistently reported that Mr Riley’s symptoms were caused by his motor vehicle accident. He makes it clear that in his opinion, Mr Riley sustained a soft tissue flexion extension injury to his cervical spine in the accident. He refers to Mr Riley having had intermittent neck pain with local tenderness and stiffness since the accident. He said that he had had physiotherapy treatment and had been prescribed analgesic and anti-inflammatory medications.
30. In his letter dated 15 March 1995, Dr Potter reported that Mr Riley had had “ongoing neck discomfort” since the accident. In his report of 16 November 1995, Dr Potter said that Mr Riley should avoid situations with repetitive neck movements or other factors likely to exacerbate his neck pain. He further said that physiotherapy may be recommended on occasions in the future. He added:
“The duration of such treatments should be short, possibly ten visits in total for each acute exacerbation. He has required this attention on relatively infrequent occasions in the past possibly once or twice per year and I would consider that this will continue to be necessary.
… He will continue to have occasional exacerbations of neck pain and restricted mobility as discussed above.”
Significantly, in this report Dr Potter also said that there were no other factors influencing Mr Riley’s then current condition.
31. Dr Potter confirmed the opinion expressed in his reports when he gave evidence. He also said he had been a general practitioner for 34 years, and that from his experience, radiological evidence does not always reflect the degree of clinical pathology, and some patients continue to have neck discomfort notwithstanding the absence of radiological evidence. Dr Potter confirmed that he had referred Mr Riley for physiotherapy treatment on 28 April 1993 (although it appears from Mr Riley’s evidence that in fact Mr Riley did not seek such treatment until late in the following year). Dr Potter also said in evidence that Mr Riley had lots of other medical problems, and his neck was often discussed during the course of consultations for other complaints, but he did not always record such discussion.
32. Dr Potter also confirmed that Mr Riley had complained of headaches before the accident. He confirmed the note of his consultation on 21 August 1991, which indicates that on that occasion, Mr Riley was suffering from a headache from the right mid cervical area, and he referred him for an x-ray. There was some confusion in the compilation of exhibit R1, and Dr Potter was not asked about his notes of the next consultation, which (as it appeared during the final address of counsel for Comcare) occurred on 27 August 1991. Dr Potter’s notes of this consultation read as follows:
“… Headache. Good. XRCs – Nad. ? for physio plus neck exercises if more trouble.”
Dr Potter said that he discussed the headaches with Dr McKenzie and he (Dr McKenzie) thought they were muscle contraction tension type headaches. Dr Potter was then asked to show the site of the source of Mr Riley’s pre-accident headaches, and the site of his neck pain after the accident. Dr Potter’s designation of the sites was opposite to Mr Riley’s, and in particular, he said the site of the neck pain was higher than the source of the pre-accident headaches.
33. Mr Gordon Morrison, an orthopaedic surgeon, provided a report dated 7 May 2004 to Mr Riley’s solicitors. In his report he advises that he has read earlier reports provided by Doctors Potter, Awerbuch and McKenzie, and then sets out the history he obtained from Mr Riley. He records that Mr Riley was adamant that the type of headache he suffered from before the accident was different from and unrelated to his ongoing neck complaint. Mr Morrison further reports that he reviewed the x-rays taken of Mr Riley’s cervical spine on 23 August 1991, 1 December 1994 and 2 May 2002. He noted that the x-rays had been reported as unremarkable, but considered that “on close scrutiny” there was evidence of slight degeneration at the C4/5 level on all of the films. He also considered that the CT scan of the cervical spine on 29 November 2002 was also unremarkable with no disc prolapse evidence or facet arthritis. His report then continues:
“From the history available to me, I believe that on the balance of probability the accident in October 1992 has been the major contributing factor to his on-going problem, causing an axial compression injury with some disruption of the C4/5 intervertebral disc.
… The aggravations are, in my opinion, a direct consequence of the initial injury sustained in 1992. … The prognosis is for continuing symptoms as described for the foreseeable future … .”
34. In his oral evidence, Mr Morrison said he thought that the x-rays showed a slight narrowing of the disc space at the C4/5 level compared with what one would expect. He thought that Mr Riley’s neck was more vulnerable to the sort of injury that he sustained in the accident than a young healthy neck, and thought that his neck condition would have been stirred up by the impact in the accident. He said that he would not necessarily expect to find radiological changes, as this would depend on the nature of the injury and its severity. He disagreed with the contrary opinion expressed by Dr Awerbuch in this regard in a report from Dr Awerbuch dated 30 October 2003 (see exhibit R2, page 7.1). Mr Morrison made the further comment, in the context of whether one would expect to see signs of radiological changes, that the degree of Mr Riley’s symptomatology is minor, and therefore any changes would also be minor. He made the further comment that even on Mr Riley’s CT scan, there was some indication of degenerative change.
35. In cross-examination, Mr Morrison conceded that if Mr Riley’s symptomatology before and after the accident were identical, then his hypothesis as to the accident being causative of the ongoing neck pain would “(go) out the window”. However, Mr Morrison also said that it was hard for documentation to show that the site and nature of the pre and post-accident pain was different, and he would prefer to rely on Mr Riley’s history as to that issue.
36. The respondent called Mr Jonathan R Middleton, an orthopaedic surgeon, who interviewed Mr Riley in July 2004 for the purpose of preparing a medical report to Comcare’s solicitor. Mr Middleton reviewed the earlier medical reports to which I have referred above, including the report from Dr Awerbuch dated 30 October 2003. Mr Middleton provided a report dated 15 July 2004, which was received as exhibit R3.
37. In that report, Mr Middleton says, in part:
“From your letter of the 7 July, it is clear that the main controversy with regard to Mr Riley is the extent to which his motor vehicle accident in 1992 maybe contributing to his current neck symptoms. Mr Riley presents in a straight forward fashion, with no obvious evidence of any distortion of the information supplied, and I have no reason to doubt that he genuinely believes that all of his neck problems result directly from the motor vehicle accident. I am not so convinced that this is necessarily the case.
Although from the description of this accident, it would appear that a reasonably substantial impact occurred, there is little evidence to suggest that Mr Riley actually sustained any major injury at the time. The lack of significant symptoms in his neck in the first few days, and the lack of any clear medical evidence of any major problems at that time suggest that although he undoubtedly sustained a soft tissue injury, problems were not severe. The usual expectation with a soft tissue cervical injury like this is that problems resolve over a period of weeks or months, without any major long term disability. There has certainly been no convincing radiological evidence of substantial residual damage in his neck. Cervical symptoms of one sort or another are not uncommon in adults, and become more common with advancing years, with or without substantial radiological changes. In fact it would appear that Mr Riley was prone to some such problems prior to his accident. Even though he is convinced that the symptoms he had prior to his accident were materially different, memory of pain is notoriously inaccurate, and becomes increasingly so over the passage of time.
Based on the history provided by Mr Riley, it would be reasonable to conclude that all of Mr Riley’s ongoing neck symptoms are directly related to his motor vehicle accident. On the other hand, based on the objective medical evidence, and the expected recovery from a soft tissue injury, it would be much more appropriate to conclude that for many years Mr Riley’s symptoms have been totally unrelated to his motor vehicle accident. There is no scientific or objective way of proving or disproving these diametrically opposed conclusions, but on balance I feel it is more likely that Mr Riley’s symptoms are unrelated to his accident.” (emphasis added; exhibit R3, pages 3 to 4).
38. It emerged clearly from Mr Middleton’s evidence that he proceeded on the assumption that Mr Riley’s neck pain and headaches were one and the same pathology, based on the information provided to him. He referred in particular to his interpretation of a reference in the report of 14 April 1992 to Dr Potter from Dr McKenzie, where Dr McKenzie described occipital headaches suffered by Mr Riley. However, he acknowledged that he felt uncomfortable trying to interpret what another doctor had said. He said that he did not place much emphasis on the precise location of the pain which Mr Riley had experienced over the years, because it was very hard to localise the precise location of pain accurately, especially where pain came from underneath the surface skin. He further said that a patient’s description of such pain may not be accurate, and he had some hesitation in relying on Dr Potter’s record of the location of the pain, which he thought might also be imprecise.
39. Mr Middleton acknowledged in cross-examination that a soft tissue injury would not be revealed by radiological examination, and he explained that in referring to soft tissue, he included cartilage, muscles, tendons, ligaments and intervertebral discs. He further acknowledged that anatomically, the cervical spine was rich in such structures. He said he was unaware that in the accident, Mr Riley had struck the top of his head on the cargo barrier, in the manner described by Mr Riley in his evidence. He acknowledged that a force operating through the top of Mr Riley’s head through his spine might have caused some type of compression of the cervical discs.
40. Towards the end of his evidence, Mr Middleton indicated that he had provided his opinion on the understanding that the accident had been a “source of quite major and extensive symptoms in recent times.” However, in answer to the following question from the Tribunal:
“THE D.PRESIDENT: Doctor, I don’t think it is suggested that he is having major problems 12 years later. He is having the sort of problems that he has described being jarred on bus journeys and that producing a period of discomfort leading to having absence from work the next day. Now, does that affect your answer as to whether the accident is likely to still be producing that sort of problem? When I say “still” I think that happened in 2002 which is 10 years after the accident?”
Mr Middleton said:
“I guess I’m not quite sure how to answer that. I certainly had the impression that from my interview with Mr Riley that we were talking about something that was a major ongoing problem to him that was a significant disturbance to his lifestyle and what he could do and as I’ve said, I find it difficult to relate that totally to an accident in 1992. The question is, is it possible that Mr Riley has had a neck injury in 1992 and he is still vaguely aware of it and has the odd niggle and it occasionally flares up a little bit, then I don’t find that inconsistent with an old injury. A lot of old injuries leave some minor residual niggles that can bother you occasionally. So certainly my impression with Mr Riley was that we are talking about something a lot more major than that. If I have the wrong impression, then that would have an effect on my opinion.” (transcript, 21 December 2004).
41. The respondent also called Dr Mark Awerbuch, a consultant physician in musculoskeletal disorders and rheumatology and pain management specialist. Dr Awerbuch provided the report dated 30 October 2003 (exhibit R2) to which I referred above. Dr Awerbuch concluded that it was more likely that Mr Riley’s neck symptoms were psychogenic in origin, and thought from his earlier history that he had been suffering from tension headache prior to the accident, and his ongoing neck pain and headaches are not the result of his motor vehicle accident.
Respondent’s Contentions
42. Ms Bean submitted on behalf of Comcare that Mr Riley’s case was based on the proposition that there had been a change in his symptomatology after the accident compared with before the accident. She accepted that Mr Riley genuinely believed that there had been such a change, but contended that the contemporaneous records of consultations he had had in respect of his pre-accident symptoms indicated that his symptoms before and after the motor vehicle accident were similar, and that his recollection was flawed. Ms Bean referred, in particular, to Dr Potter’s notes of the consultation on 21 August 1991, and the reference to the right mid-cervical area as the source of the headaches. She submitted also that this was confirmed by the note reading “(neck → H/A)” made by Dr McKenzie on 13 April 1992, and by the reference in Dr McKenzie’s report of 14 April 1992 to “occipital headaches with associated tenderness at the occiput/neck regions”.
43. Ms Bean further relied on the absence of radiological evidence of degeneration in Mr Riley’s neck, and submitted that Mr Riley had sustained a soft tissue injury in the accident, and this injury was no longer affecting him in the period during which he claims he was incapacitated or incurred the relevant medical expenses. She further submitted that I should not accept Mr Morrison’s interpretation of the radiological evidence, as it was out of step with the reports of the reporting radiologists as well as the views of Mr Middleton and Dr Awerbuch, who both accepted the radiologists’ interpretation of the x-rays and CT scan. Ms Bean also referred to the gap of two years after the accident before Mr Riley had any physiotherapy treatment, and the lengthy periods in between subsequent medical consultations or physiotherapy treatment. She also pointed out that before the accident, Mr Riley had been taking naprosyn for his pre-accident symptoms, that he had had a cervical x-ray, and that the possibility of physiotherapy had been adverted to by Dr Potter. She submitted that as at 2002, any ongoing symptoms were not related to the motor vehicle accident, and that I should prefer the evidence of Mr Middleton and Dr Awerbuch to this effect. As to Mr Riley’s aggravation claim, she submitted that there was no evidence that the jarring during the bus journeys had produced any pathological change in Mr Riley’s cervical spine, and that this had simply been productive of symptoms of pain for a short time, but did not result in any compensable injury.
Consideration
44. Section 14 of the Act provides in effect that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
45. The word “injury” is defined in s 4(1) of the Act as follows:
“injury means
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
46. Under s 6(1)(b)(ii) of the Act, an injury is to be treated as having arisen out of, or in the course of, employment if it was sustained while the employee was travelling between his or her place of residence and place of work. Section 19 of the Act imposes a liability on Comcare to pay compensation by way of weekly payments where an injury results in incapacity for work, and s 16 of the Act imposes a liability on Comcare to pay compensation in respect of the cost of reasonable medical treatment obtained in respect of an injury.
47. I found Mr Riley to be an honest witness. I accept his evidence, which he gave in a straightforward and careful way. He did not appear to exaggerate the effects of his accident.
48. Whilst certain of the medical records prepared before the accident indicate close similarities between Mr Riley’s pre and post-accident symptoms, other aspects of the records indicate differences between the symptoms. Dr Potter was the only doctor who had prepared pre-accident notes who gave evidence. His evidence as to the site of Mr Riley’s pre and post-accident pain differed from Mr Riley’s evidence, but Dr Potter was relying on the very brief notes of his consultations which, he conceded, were not always 100% accurate, given the “confines” of a medical consultation which might only take five minutes. In this regard it is also relevant to refer again to Mr Middleton’s evidence that it is difficult for patients accurately to locate the site of the source of pain, except where there is a laceration of the skin. What is important in Dr Potter’s evidence is that he clearly considered that the pre and post-accident symptoms were different. It is significant that he appears to have consistently referred in his notes to headaches when describing Mr Riley’s pre-accident symptoms, and to neck pain when describing his post-accident symptoms. There is no suggestion in the records that Mr Riley’s pre-accident pain extended to his shoulder, as he said is the case with his post-accident neck pain. I also note that Dr Potter postulated that Mr Riley’s pre-accident headaches might be due to migraine, and this seems inconsistent with Mr Riley’s description of the neck pain which he said he has experienced since the accident. I also note that there appears to have been no clear diagnosis of Mr Riley’s pre-accident headaches. If (as Mr Riley said) his headaches were assisted by wearing glasses, but after the accident his neck pain was aggravated by the jarring of his neck in the course of bus journeys and this had not occurred before the accident, it would seem likely that the pre and post-accident symptoms were not the same, and had different causes.
49. Comcare’s argument to the extent that it is based on the pre-accident records of persons other than Dr Potter, depends on an interpretation of those records, but without the authors of the records being called to give evidence. In his evidence, Mr Riley was clear that his neck pain since the accident is different from his pre-accident symptoms; indeed, he spoke of having his pre-accident symptoms on rare occasions since the accident, but he differentiated those symptoms from his post-accident neck problems. The difficulty on relying on medical records when comparing symptoms of pain before and after the accident was referred to by Mr Morrison in cross-examination, when he said:
“Now, pain is a personal experience. It is very hard for documentation to show if there is difference if it just says that there was headache and neck pain, headache and neck pain before and after, that doesn’t really help me. I would have to rely on Mr Riley’s history for that and I had no reason to question his veracity at the time.” (transcript, 21 December 2004).
I find on the evidence before me that Mr Riley’s post-accident symptoms are different from his pre-accident symptoms, and I prefer his evidence to a contrary position based on an interpretation of pre-accident medical records.
50. The question remains as to whether the symptoms on which Mr Riley’s claim is based were caused by the accident. Dr Potter and Mr Morrison consider that this was the case. Subject to a proviso to which I refer below, I prefer their evidence and conclusions to the contrary views of Mr Middleton and Dr Awerbuch. Dr Potter has treated Mr Riley for some years prior to the motor vehicle accident, and in the period ever since then. He is in the best position of the four doctors to compare Mr Riley’s position both before and after the accident. It is clear from his reports that he has consistently considered that the neck pain of which Mr Riley complained after the accident is different from the headaches from which he suffered before the accident. Mr Morrison’s understanding of the extent of Mr Riley’s complaints since the accident and up to the period of his difficulties in 2002 was consistent with Mr Riley’s evidence, which I have accepted. Both Dr Potter and Mr Morrison had a clear understanding of the nature of the collision, which entailed a severe rear end impact, with Mr Riley’s seat being broken and the top of his head forcibly striking the cargo barrier, when he was in a prone position, putting forces through his cervical spine.
51. Mr Middleton’s contrary opinion as to the relevance of the motor vehicle accident appears to have been predicated on an incorrect understanding of the extent of the pain and difficulties that Mr Riley is asserting. Indeed, on the basis that Mr Riley was complaining of intermittent and comparatively minor neck problems, Mr Middleton’s evidence does not contradict the hypothesis that Mr Riley’s symptoms are attributable to the motor vehicle accident. I refer in this regard to the evidence narrated in paragraph 40 above.
52. Dr Awerbuch’s opinion was partly based on his interpretation of earlier medical records, and for the reasons referred to above, I think there are difficulties in interpreting such records. More particularly, Dr Awerbuch’s evidence proceeded on the basis that Mr Riley had recovered from the effects of his accident prior to the attendance with Dr Potter on 15 March 1993, being the next time he saw Dr Potter following the accident. There appears to be no basis for Dr Awerbuch’s assumption in this regard; the assumption is contrary to the evidence of Mr Riley and of Dr Potter, and is inconsistent with Dr Potter’s evidence as to the consultation of 28 April 1993, when he referred Mr Riley for physiotherapy treatment for his neck, and clearly regarded this as an aftermath of his accident. Further, Dr Awerbuch’s diagnosis that before the accident Mr Riley was suffering from tension headaches does not explain the symptoms which Mr Riley experienced as a result of jarring in the course of bus journeys. The fact that Mr Riley had experienced symptoms from such jarring after the accident, but not before, suggests that the neck pain arising in this way was attributable to the motor vehicle accident. I also note that Dr Awerbuch placed reliance on a number of studies relevant to the symptomatology of Mr Riley. Whilst the results of such studies are potentially relevant, it is necessary for me to determine the issues arising in the present matter by reference to all of the evidence before me as to the circumstances of the motor vehicle accident, Mr Riley’s condition before the accident, and his condition afterwards. The outcome of general studies will not necessarily displace specific evidence which has been appropriately tested and evaluated in a particular case.
53. It follows from my findings that the incapacity and medical expenses claimed by Mr Riley arise out of the injury he sustained in his accident on 22 October 1992, and Comcare is liable for compensation in respect of his incapacity for work and medical expenses.
54. As to the aggravation claim, I note that the word “aggravation” is defined in s 4(1) of the Act to include “acceleration or recurrence”. In Tippett v Australian Postal Corporation (1998) 27 AAR 40 Finkelstein J said at page 44.3:
“Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury … .”
A number of authorities to the same effect were discussed in Australian Postal Corporation v Bessey [2001] FCA 266, and Gyles J concluded at [10] that the authorities did not indicate that a “permanent underlying change” was required.
55. On the evidence before me, I further find that the jarring in the course of bus journeys to and from work aggravated Mr Riley’s neck condition, within the concept of aggravation referred to above. He therefore suffered an injury within the meaning of that expression in the Act, and is entitled to compensation as a result of that injury.
56. My above findings make it unnecessary to consider the reconsideration of own motion dated 8 June 2004. To the extent that that reconsideration deals with the reviewable decision of 17 April 2003, it was beyond the power of the review officer, since under s 62(1) of the Act, the power of reconsideration of own motion is limited to a power to reconsider the primary determination. Mr DiFazio further contended on behalf of Mr Riley, on the authority of Rosillo v Telstra Corporation Limited (2003) 77 ALD 296 and Australian Postal Corporation v Oudyn (2003) 73 ALD 659, that the reconsideration was also invalid as the review officer said that “as of” 16 November 1995 compensation was not payable to Mr Riley pursuant to the Act, so that the decision in effect remained a “cease liability” decision. I do not agree that these words in themselves have the effect contended for, since I think that on their proper construction, they refer to a time or date – in this case, 16 November 1995. The decision did not therefore purport to exclude the possible future liability of Comcare to pay compensation under the Act in respect of Mr Riley’s injury. However, it follows from my above conclusion on the substantive issues raised by Mr Riley’s claim that I should also set aside the decision on review of own motion.
57. I also find it unnecessary to determine whether Mr Riley sustained a soft tissue injury in the accident, or a disruption of the C4/5 intervertebral disc, as suggested by Mr Morrison. The radiologists concerned did not give evidence, and it was not clear whether Dr Awerbuch or Dr Potter merely accepted the radiologists’ reports without examining the x-rays or CT scan for themselves. Mr Middleton said in his report of 15 July 2004 (exhibit R3):
“Review of radiological investigations of (Mr Riley’s) cervical spine indicate no substantial abnormality.” (emphasis added).
It is not clear from this whether he personally examined the x-rays and CT scan, or whether he thought that there was some abnormality in the cervical spine which was, however, only minor. Further, Mr Riley has not undergone an MRI scan, which would apparently provide further evidence as to the nature of his injury and present condition.
Decision
58. For the above reasons:
(a)I set aside the decisions under review, and in place of those decisions, I decide that Mr Riley is entitled to compensation in respect of his incapacity for work on 21 March, 23 April, 1 and 2 May, 13 and 14 June and 11 November 2002, and is entitled to the medical and physiotherapy expenses he has claimed;
(b)I reserve liberty to apply within 21 days in relation to the costs of the proceedings; and
(c)I order that in the absence of such an application, the respondent pay the costs of the proceedings.
I certify that the 58 preceding paragraphs
are a true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
B Bills AssistantDate/s of Hearing 20, 21 and 22 December 2004
Date of Decision 11 January 2005
Counsel for the Applicant Mr F DiFazio
Solicitor for the Applicant Moloney and Partners
Advocate for the Respondent Ms K Bean
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