SAMANTHA BOOTH and COMCARE
[2012] AATA 293
•15 May 2012
[2012] AATA 293
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2009/6151 and 2010/0617
Re
SAMANTHA BOOTH
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member, Dr Kerry Breen, Member
Date 15 May 2012 Place Melbourne The Tribunal affirms the reviewable decisions dated 22 December 2009 and 4 February 2010.
(sgd) John Handley
Senior Member
COMPENSATION – applicant suffered back pain following four motor vehicle accidents in the course of her employment and on other occasions – whether temporary or permanent aggravation of pre-existing lumbar disease – absence of radiology – later incident when on holiday overseas – severe pain – subsequent MRI finding L4/5 and L5/S1 prolapse – whether applicant vulnerable to prolapse by any permanent aggravation of lumbar disease or whether she suffered a discrete injury unrelated to employment – decisions affirmed.
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
REASONS FOR DECISION
Mr John Handley, Senior Member, Dr Kerry Breen, Member
Ms Booth, the applicant in these proceedings, applied to review two decisions made by Comcare concerning injuries she alleged were connected with her employment with the Department of Defence.
The decisions were:
·a denial of present entitlement to compensation for medical expenses and incapacity payments pursuant to section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the condition of aggravation of depressive disorder, aggravation of neck sprain and aggravation of lumbar sprain (2009/6151); and
·a denial of liability to pay compensation pursuant to section 14 of the Act for the condition of aggravation of intervertebral disc disorder – lumbar regional [sic] (bilateral) (multi-level disk prolapse including nerve root compression) and aggravation of depressive disorder (2010/0617).
The opening submissions of Mr Connell, Counsel for the applicant, were confined to the applicant’s back injury. On the third day of hearing, Mr Connell, indicated that his client confined her review only to the lumbar injuries as alleged. That is to say, the applicant did not intend to pursue a review of the decisions in so far as they concerned an alleged neck injury and depressive disorder (Transcript, 22 February 2012, p 33-34). Evidence was not heard from any of the witnesses concerning those injuries.
The applicant did not notify the Tribunal in writing of her intention to withdraw those parts of the decisions from review within the terms of section 42A(1A) of the Administrative Appeals Tribunal Act 1975. Whilst there were references in the reports to the other injuries, it would be wrong, despite our inquisitorial responsibility, to make findings of an association, if any, between them and the employment. The consent of the applicant to pursue the back injuries alone satisfies us that she has, in effect, abandoned any review of the decisions concerning the other injuries. Accordingly, those parts of the reviewable decisions will be affirmed.
The applicant was involved in four motor vehicle accidents on 14 August 2001, 4 July 2002, 16 September 2005 and 18 December 2007. Each accident arose out of or in the course of her employment. Liability for consequential incapacity and medical like expenses for treatment was accepted by the respondent for the first three accidents. The applicant did not make any claim arising out of the fourth accident.
On 31 August 2008, the applicant suffered severe lower back and leg pain whilst on long service leave in Dunoon, in Scotland. She said in evidence and the various documents lodged in these proceedings indicated that the episode of severe pain, as described, occurred when she was bending over whilst in the shower in a hotel. The applicant contended that the episode in Scotland was an aggravation of pre-existing lumber disease which should be found to have arisen out of her employment.
The respondent contended that the episode in Scotland was not an aggravation of pre‑existing lumber disease but was a discrete injury, being an L5/S1 disc protrusion, unrelated to the previous motor vehicle accidents.
In the alternative, it was contended by the respondent that in the event that it was found that the episode in Scotland was an aggravation of pre-existing lumbar disease, the applicant will be required to establish that there had been a significant contribution to it, by the employment, having regard to amendments to the Act, (Safety, Rehabilitation and Compensation and Other Legislation Amendment Act2007 - Act N° 54 of 2007) effective from 13 April 2007. (Previously the liability of the respondent was confined to a material contribution).
We learnt during the hearing of this review that the applicant had suffered back pain in a number of other episodes outside her employment. They will be identified later. We propose to summarise the evidence, both oral and documented, in relation to each event (arising out of the employment and elsewhere) and then summarise the evidence concerning the incident in Scotland.
The applicant said that she fell downstairs at Melbourne University in either 2000 or 2001. She suffered a fracture of her right leg. She recalled the event and said that she had no back problems (Transcript, p 19).
The applicant said that she fell whilst walking along a beach at Phillip Island at Easter in 2001. She said she either tripped on a rock or was struck by a large wave, or a combination of both, which caused her to fall. It was the consequences of that event that caused her to consult Mr Travis Haupstein and Dr Elvira Stow. A short time after her consultation with Dr Stow on 3 May 2001, she travelled to Canada. She said that she was strapped with adhesive tape and consumed painkilling and anti-inflammatory medication while she remained seated during the 20 hour flight. She said that within 2 days of arriving in Canada she was fine (Transcript, p 15-16).
The applicant consulted Mr Haupstein, a physiotherapist, on 1 May 2001. His notes (Exhibit R3) record that the applicant suffered injury at Easter 2001. (A 2001 calendar records that Good Friday in that year fell on 13 April). Handwritten notes record the applicant presented with the medical conditions of migraines, sleep apnoea, PLMD, depression/anxiety, onset of arthritis in right ankle following fracture. A diagram of a person's body within the notes indicates that the approximate area of (the applicant’s) problem was the lower back and the right groin. The applicant could not recall whether that depiction was based on what she demonstrated to Mr Haupstein.
The applicant consulted Dr Stow at the Berwick Medical Centre on 3 May 2001 who was then her general practitioner. The history recorded was (Exhibit R4):
… fell over at easter developed lower back pain saw chiropractor. PN right side sacroiliac area, has seen chiropractor, physio and myotherapist, pain into right buttock and groin, told has done in disc, going on 20 hour plane trip next week told needs strong anti-inflams and pain killers consistent with L2/3 discogenic pain.
Celebrex and Panadeine Forte tablets were prescribed.
THE FIRST MOTOR VEHICLE ACCIDENT
The applicant was involved in an accident on 14 August 2001. She was then employed as a project manager/librarian at the Victoria Barracks in Melbourne. In a claim form completed following the accident the applicant described the event as (Exhibit R9):
Walking past guard house, onto pedestrian crossing then off the crossing towards H Block entrance. A stationary Australia Post vehicle suddenly pulled out from loading bay and struck me.
The applicant recorded the precise diagnosis as found on her medical certificate, namely right wrist injury, general muscle aches – back and legs and shoulder. She described the injury as extremely painful wrist with pain extending into shoulder. One of the questions asked in the form is what part of the body is affected (e.g. lower back)? and the answer recorded by the applicant was right wrist, arm + shoulder.
The notes of Dr Stow show that the applicant consulted her on 14 August 2001 and the history recorded is:
…was hit by a truck going at low speed while at work, left hand hit bonnet, complaining of sore wrist, has a few other general aches. On examination wrist tender distal to distal ulna, pn with flexion and int flexion no other sig injury.
The notes of Dr Stow record that the applicant consulted her subsequently on 21 and 22 August and 5 and 19 September 2001. The history taken on each of those occasions concerned the applicant’s wrist. There were discussions also about treatment for it including referral for a bone scan. There is nothing within the notes referable to any back injury or back pain.
The first entry in the notes after 14 August 2001 concerning the applicant’s back occurred on 3 October 2001. The history then recorded was:
…has been a lot worse lately with pain in lower back and wrist still throbbing postpone return to full hours for 3 weeks for 6 hours per day no sleep due to pain is getting down and teary last few days.
There is no other entry in the notes of Dr Stow recording the applicant presenting for treatment of her back until 4 July 2002, following the second motor vehicle accident. Between 3 October 2001 and 4 July 2002, the applicant consulted Dr Stow for a number of other unrelated illnesses.
The applicant said that she was not 100 per cent sure that she had complained to Dr Stow of neck, shoulder and lower back pain but said I can't imagine that I wouldn't have (Transcript, p 27). She said that Dr Stow was very concerned about her wrist and she understood the wrist was the focus of Dr Stow’s attention. The applicant agreed that the notes of Dr Stow did not contain any history of problems with the lower back, except the entry on 3 October 2001. When asked whether she would discuss a significant lower back problem with her doctor, the applicant said not if I thought it was just as good as it was going to get and put up with it (Transcript, p 30). She said she had been having physiotherapy which was assisting with pain relief but not necessarily the underlying problem (Transcript, p 31). The applicant said that her job required extended periods of being seated which caused increased back pain. By the middle of 2002, she said that the back pain was just something you have to learn to live with (Transcript, p 31).
THE SECOND MOTOR VEHICLE ACCIDENT
The applicant was involved in another accident on 4 July 2002 while travelling from HMAS Cerberus (where she was then working) to Victoria Barracks in Melbourne to attend a meeting. In a statement (Exhibit R10) appended to her claim form (Exhibit R11), the applicant recorded that she was stationary on the Princes Highway near Dandenong. A vehicle travelling behind her at speed failed to stop and drove into the rear of her vehicle which was pushed forward into another vehicle. The applicant recorded that she was propelled forward in her seat, was restrained by her seatbelt and when she was thrust backwards, the back of her seat collapsed.
In a claim form completed on 19 July 2002, the applicant recorded that a medical certificate provided to her by Dr Stow diagnosed her injuries as neck and back pain, whiplash, right knee pain (Exhibit R11). She described her injuries as neck extremely sore, pain upon movement, lower back extremely painful. The claim form also records that the applicant disclosed a similar injury or illness previously, namely neck & lower back & wrist injury relating to work injury last year 14/8/02.
The applicant consulted Dr Stow on 4 July 2002 and her notes confirm that the applicant was:
… rear ended in MVA this am. car going fast 80 KPH. she was parked complaining of back pain lower back, right knee pain, thoracic and neck pain, did not hit steering wheel flew forward then back, seat flew back (broke) good range of movement in neck and back.
On 15 July 2002 Dr Stow recorded that she consulted the applicant and noted that the physio had diagnosed the applicant suffering with ilio-lumbar lig strain with some non-radicular nerve irritation.
The clinical notes from the Berwick Medical Centre record that the applicant attended the clinic on a number of occasions between 15 July 2002 and 25 February 2003, the last consultation in person. There is no other reference in the notes to a complaint by the applicant of back pain, except a single reference on 22 August 2002 of low back pain. A neck injury, described as whiplash, associated with the second motor vehicle accident is described as being worse lately (than the back pain). It was also noted that the applicant suffered pain and stiffness on flexion and extension of the neck but she did have a good range of movement.
In evidence, the applicant agreed that there were occasions after the second motor vehicle accident when the pain in her neck was greater than the pain in her back (Transcript, p 33). The notes of the last consultation with Dr Stow on 22 October 2002 record that the applicant then had a tight neck, getting dizzy and headaches, pain and numbness going down the left arm, since had massage restless legs. Dr Stow did not give evidence.
The applicant said that she travelled overseas to Canada in November 2002 and returned in January 2003. She travelled in an economy class seat and stayed with friends. She was a passenger in a car which, on occasions, travelled short distances from Vancouver where she was based and on one occasion she travelled over a period of 3 or 4 days to Disneyland, in California and return. She said she discussed the intended trip with Dr Stow before she left and was given prescribed medication to take with her. She did not consult with any doctors in Canada or the United States. She did, on occasions, consume the medication prescribed by Dr Stow. Her travelling and sightseeing was not restricted by pain (Transcript, p 43).
On 25 February 2003, being the last occasion that the applicant attended the Berwick Medical Centre, Dr Dean, a colleague of Dr Stow recorded enjoyed her holiday in Canada – has now returned to work. Needs a certificate to state that she is fit to resume work.
Shortly after 25 February 2003, the applicant was transferred to Canberra by the Department of Defence. Entries in the clinical file of the Berwick Medical Centre indicate that a request was made from a doctor in Canberra, apparently engaged by the applicant, to have her clinical notes transferred.
The clinical notes of a doctor engaged by the applicant in Canberra were received as Exhibit R18.
The first consultation is recorded on 15 April 2003 and the doctor has noted a history of motor vehicle accidents on 14 August 2001 and in July 2002. There is no mention on 15 April 2003 of any back injury or back pain. However, it is noted that the applicant has a Comcare injury and was taking Panadeine Forte, Voltaren and Panadeine. The doctor also recorded that there would be a full review when the notes of her doctors in Melbourne were received.
After the first consultation, the doctors in Canberra consulted with the applicant on eight occasions until the last recorded consultation on 3 February 2004. The notes frequently contain the word disc but it is an abbreviation used for the word discussion. The notes record that the applicant consulted the doctors for a number of illnesses and other issues of a personal nature and unrelated to her back injury. The only reference to back pain is found on 9 December 2003 where the applicant complained of lumbar stiffness after gardening during the previous weekend. On the same date, the doctor discussed long term issues affecting back including weight control.
There are no clinical notes of any doctors or physiotherapists in either Canberra or Melbourne between the last consultation in Canberra and the first consultation with Dr Sticklen at the Medi 7 clinic in Mooroolbark, Victoria, on 23 June 2004.
From that date until 17 September 2005 the applicant attended Dr Sticklen and other doctors at his clinic on a number of occasions. There are no references at any consultation concerning a history of, or treatment for back pain or injury. Dr Sticklen made a note on 18 August 2004, that he completed Comcare forms. The reason he completed those forms and the contents of them are not known.
On 9 March 2005 Dr Sticklen recorded that the applicant consulted him with a 3 week history of limping. She also presented with crutches. He diagnosed L achilles & lower calf tender good ROM joints no bone/foot tenderness. The applicant said that she had been told by Mr de la Harpe, a surgeon who treated her in 2008, that the Achilles tendon complaint in 2005 was a classic symptom of problems with the disc, from the nerve. Whilst the applicant could not recall whether she also presented on 9 March 2005 with back pain she said Well, I always had pain in my lower back and the physio treated that (Transcript, p 52). The applicant acknowledged that Dr Sticklen and other doctors at the Medi 7 Clinic did not record a history of back pain before 17 September 2005. She said that the Achilles injury on 9 March 2005 was the pressing injury, she sought treatment for it and Dr Sticklen knew that I [had] constant pain in my back (Transcript, p 53).
The applicant consulted Dr Sticklen on 14 September 2005. The notes record that the applicant then presented with chest symptoms and was complaining of severe insomnia. Dr Sticklen prescribed some medication including Panadeine Forte. The reason for its prescription is not apparent from the entry in the notes of that date.
THE THIRD MOTOR VEHICLE ACCIDENT
The third accident occurred on 16 September 2005 on the Maroondah Highway in Ringwood while the applicant was travelling home from work. The applicant was stationary in traffic and was hit from behind by another vehicle. It sustained damage to its grille and front bumper. The applicant sustained damage to the rear of her vehicle and the back of the driver's seat was again broken by the impact. Both the applicant and the other driver were able to drive their vehicles away from the scene of the accident. The description given by the applicant of the accident in her evidence commencing at page 48 of the transcript is consistent with the description she recorded in a claim form at T5.
The applicant consulted Dr Singh on 17 September at the Medi 7 clinic. He recorded that the applicant was involved in MVA last night – hit from behind – driver, wearing seatbelt – no LOC. He also recorded that the applicant looks well, C/O back pain, rt ankle pain. He prescribed Panadol/Nurofen and recommended that the applicant should come back if worse.
On 20 September 2005 the applicant consulted Dr Fisher at the Medi 7 clinic. A history was recorded of a motor vehicle accident 4 days previously and was described as whiplash injury. The applicant complained of pain in her neck, both shoulders, lower back, left knee and right ankle. She was certified unfit for duties until 27 September 2005. On that date the applicant again consulted Dr Fisher who recorded that she had been attending a physiotherapist for treatment of neck only. The clinical notes do not make any reference to lower back injury or back pain.
The applicant continued to consult Dr Sticklen and other doctors in his clinic until 4 December 2007. She presented on many occasions for numerous illnesses. There are no references in any entry for a complaint of back pain. There are references to her neck (18 October 2005 and 3 January 2006), her shoulders (3 January 2006 and 17 February 2006) and her left knee (3 January 2006 and 15 November 2006). Dr Sticklen referred the applicant for an MRI of her neck on 25 May 2006. His notes record that referral arose out of MVA at work Sept 2005 and headaches. He did not refer the applicant for an MRI of her lower back.
While giving her evidence, the applicant referred on a number of occasions to attending a physiotherapist. The clinical notes of the Knox Physiotherapy Group (Knox) were received as Exhibit R5. They are handwritten, almost illegible and contain many abbreviations which are impossible for us to decipher. However, there are some references to LBP which we understand to be lower back pain. So far as we can determine, the majority of attendances for physiotherapy arose out of complaints of neck and knee pain.
On 20 October 2004 the physiotherapist recorded that the applicant had returned from a trip to Tasmania and back has been feeling good, long drive did not agg. On 15 December 2004 the physiotherapist recorded the applicant’s back was feeling good. On 19 December 2004 she had full ROM neck/back nil complaint. The applicant complained of upset back and neck on 14 January 2005 apparently associated with sleeping in an uncomfortable bed. On 9 March 2005 the applicant was recorded as going well. It is interesting to note that on that date she was off crutches. The physiotherapist had been treating the applicant for an Achilles injury. The reference to the applicant being off crutches is at odds with the entry made by Dr Sticklen on the same date (refer paragraph 33 above).
There is a history on 23 September 2005 of the applicant being involved in a motor accident four days previously (we assume that is a reference to the accident on 16 September 2005) and complaining of back and neck pain. On 25 November 2005 the entry then made was today good day with back. However, seven days later on 2 December 2005 there is another reference to the applicant's neck/back but the words immediately following it are illegible.
On 21 April 2006 there is a history of the applicant falling in the shower at home and suffering a painful left buttock with bruising. The applicant recalled that event but had no recollection of any significantly increased back pain (Transcript, p 62). The applicant attended Knox on the same day. The history records fell in shower [illegible] painful and L buttock bruised.
On 4 December 2006 there is an entry in the Knox notes of Re-agg of LBP? Yachting 1/52 ago. There are references to LBP on 10 August 2006 and 12 July 2007 but the corresponding notes are illegible.
THE FOURTH MOTOR VEHICLE ACCIDENT
On 18 December 2007 the applicant was the driver of a vehicle which was struck from behind when travelling on the way home from work in Hoddle Street Collingwood.
The applicant attached little significance to this accident. She said that she did not make any compensation claim and did not believe that she suffered any back injury or worsening of her back injury as a result of that accident. When asked whether she had any back pain that [she] could identify at that stage as coming from the accident… She answered it's just what I normally have (Transcript, p 68).
The applicant attended Dr Sticklen on 18 December 2007. His clinical note of that consultation records rear ended on Hoddle Street – some back and neck aches. Physio tomorrow. The Medi 7 clinical file records the applicant attended on 7 occasions between 18 December 2007 and 25 March 2008. During that period there is no record of the applicant complaining of, or being treated for back pain or back injury. There is a reference on 29 January 2008 to neck aches. The applicant travelled overseas for a few months from April 2008 and the next consultation occurred on 22 October 2008.
A physiotherapist at Knox recorded on 19 December 2007 hit in rear by car (illegible) sore neck and LB. The remainder of the notes arising at that consultation are illegible. The next consultation with Knox after 19 December 2007 was on an illegible date in January 2008. The entry records been good.
OVERSEAS TRAVEL
The applicant said that she travelled overseas from April 2008 intending to be away for about 7 months. Whilst overseas she travelled throughout England, Wales, Scotland, France, Germany, Hungary and the Netherlands.
The applicant said that there were very few occasions where she ever lifted her suitcase which she estimated to be about 20 kg in weight. She said that she and her mother extensively used hire cars or chauffeur cars. She was collected at train stations and airports by drivers of those cars who carried her suitcase. At hotels, the suitcase was lifted by porters. When they travelled on buses, the driver loaded her suitcase. On occasions where she and her mother hired a car, she would generally leave her suitcase in the car overnight and only take with her the clothes she intended to wear the next day and her toiletries. There were one or two occasions where she stayed at bed-and-breakfast accommodation where she would wheel her suitcase (without having to lift it) and those facilities had elevators. She said that she did not lift her suitcase on those occasions inside her room but would leave it on the floor and would bend into it from a seated position on a chair.
After travelling for about 5 months, during which time the applicant said she had no significant problems with the lower back (Transcript, p79), she and her mother travelled to Dunoon, in Scotland, to attend and observe the Highland games over a 2-day period.
Attending the games exposed the applicant to walking around the venue in Dunoon observing a number of events. There were also occasions where she would sit and observe. The applicant said she was then having less pain and stiffness than she would normally experience and she associated the reduction in those symptoms with walking and standing, rather than being seated for extended periods which she said aggravated her back (Transcript, p 86).
On the morning after the second day that the applicant attended the Dunoon games (and not after the first day, contrary to the history taken in the Medi 7 notes of 22 October 2008 – refer Transcript, p 90), she suffered severe low back pain. This event is a major focus of this review.
The applicant said she suffered real shooting pain whilst bending in the shower in the bed-and-breakfast accommodation in Dunoon (Transcript, p 91). Her mother assisted her from the shower and eventually she was taken to the accident and emergency section of a local hospital. The applicant said she had minimal treatment for the remainder of her tour of Europe. She was unable to obtain any radiology, she consulted with an osteopath and was able to obtain some prescribed pain relieving medication.
On the day after she returned to Melbourne, the applicant consulted with Dr Tiong at the Medi 7 clinic. His note of 22 October 2008 records that the applicant suffered acute pain on bending following the episode in Dunoon. The symptoms presented to him by the applicant suggested that she had a lumbar disc prolapse. He arranged for a CT examination of her lumbar spine and he referred the applicant to Mr Damien Tange, a neurosurgeon.
In an undated report received as Exhibit R8, Mr Tange recorded that he arranged for the applicant to have an MRI of her lumbar spine which indicated a disc prolapse at L4/5 compressing the L5 nerve root and a foraminal disc prolapse to the right of L4/5 compressing the L4 nerve root. His initial treatment involved a translaminar epidural at L4/5. He reported that the applicant significantly improved following her injection but still remained with some discomfort. (Those findings will be referred to as the prolapse in the remainder of these reasons). The applicant agreed that she had not had any radiological examination of her lower back before the prolapse in Dunoon.
EVIDENCE OF MEDICAL WITNESSES
Dr Derrick Billett is a consultant orthopaedic surgeon who examined the applicant at the request of the respondent on 4 March 2004. At that time, the applicant had been involved in the first and second motor vehicle accidents. Dr Billet was not called to give evidence. He provided a report of 12 March 2004 found at T3 (Exhibit R1).
Having examined the applicant and having also read a number of documents provided to him, Dr Billett concluded that the applicant suffered soft tissue injuries to her lumbar region in the first accident of August 2001. He also noted the probable aggravation of an underlying pre-existing constitutional age-related degenerative change in the discs and facet joints. He made a similar finding in relation to the second accident in July 2002.
Dr Billet concluded that at the date of his examination of the applicant, the effects of the soft tissue injuries and the effects of the aggravation had resolved. He attributed the applicant’s pain to underlying degenerative changes in her lumbar spine.
Dr Grant Ramage is a consultant occupational physician who examined the applicant at the request of the respondent on 24 October 2005. He provided a report of 5 November 2005 which is found T10 (Exhibit R1). He did not give evidence.
Dr Ramage initially focused on the third motor vehicle accident of September 2005. He obtained a history from the applicant of her having suffered neck, left knee and right ankle pain immediately following the accident with the presence of severe low back pain the following day.
Dr Ramage obtained a history from the applicant of involvement in two previous motor vehicle accidents. The first occurred in 2001 when she was a pedestrian and suffered neck and low back pain. He understood that following physiotherapy treatment, the applicant recovered over a four-week period. The next accident occurred in 2002 when she was struck from behind while driving a motor vehicle. She again suffered neck and low back pain with her low back pain being the major difficulty (T10, p 42).
Dr Ramage concluded that the applicant continued to suffer from the aggravation of neck and low back strain by the effects of the third motor vehicle accident. He noted that she was coping well with her return to work (although on limited hours) and he held the expectation that her recovery will proceed without difficulty and hopefully she will return to her full-time work within 4 to 6 weeks (T10, p 45).
Dr Sticklen has been the main treating practitioner of the applicant since she first consulted him on 23 June 2004. In addition to having the entire clinical file of the Medi 7 clinic, we had the advantage of the evidence that he gave in this review. He also prepared four reports in support of the applicant dated 10 November 2005 (Exhibit R1, T11), 20 June 2007 (Exhibit R1, T28), 2 June 2008 (Exhibit R1, T35) and 15 February 2010 (Exhibit A6).
In each of his reports he has referred to complaints made to him by the applicant of lower back pain, variously described as muscular ligamentous strain of lumbar spine (Exhibit R1, T11), ongoing moderate pain in her lower back (Exhibit R1, T28), ongoing pain in her lower back (Exhibit R1, T35) and mild to moderate intermittent low back pain (Exhibit A6).
In his first report of 10 November 2005, Dr Sticklen referred to the applicant having been involved in the motor vehicle accident on 16 September 2005. He noted the attendance by the applicant on Dr Singh, his colleague, who recorded in the clinical notes that the applicant suffered a back pain flareup. Dr Sticklen also recorded in that report that he consulted with the applicant on four occasions between October and November 2005 and his concern was her complaints of neck pain. His report does not refer – nor do his clinical notes record–that the applicant made, on any occasion between October and November 2005, any complaint of low back pain.
In evidence, Dr Sticklen agreed that had he obtained such a history from the applicant or alternatively, had she complained to him of low back pain he would have recorded it in his clinical notes. He said that he would normally have recorded it if she had mentioned it and it was the practice of his colleagues to make a similar notation (Transcript, p 5). He agreed that in the absence of a recording in the clinical file of a complaint by a patient that it could be assumed that either no complaint was made or that it was of a minor nature sufficient to cause the doctor not to have recorded it (Transcript, p 4-6). Later in his evidence, Dr Sticklen said that it was his recollection that the applicant had mentioned ongoing low back pain at various times just in passing and because it wasn't a major problem and necessarily, I hadn't reported it consistently through the notes (Transcript, p 15).
Dr Sticklen agreed in evidence that he did refer the applicant for an MRI of her neck which was a consistent complaint, as evidenced by the clinical notes. He acknowledged that whilst the applicant did suffer from low back pain, it hadn't impressed me as being severe and acute enough for a scan … It was his practice to err on the side of caution if there were significant complaints of pain. He would then have referred the applicant for radiology (Transcript, p 7-8, 12).
In his report of 15 February 2010, Dr Sticklen recorded that:
Mr de la Harpe agreed that the previous 3 Comcare accepted accidents had most likely weakened the lower lumbar discs to the point where disc prolapse from minimal repeat trauma was virtually inevitable – just a matter of time. He has stated that her current L5/S1 disc prolapse is most likely a continuation of her original L5/S1 disc injury (Exhibit A6, p 3).
Dr Sticklen said in evidence that he had not had a conversation with Mr de la Harpe and it was his recollection that the comments above were based on a conversation with the applicant. That is, the applicant reported to him that the above opinion was held by Mr de la Harpe (Transcript, p 21).
Mr de la Harpe is an orthopaedic surgeon who first attended the applicant when she presented at the emergency department of Epworth Hospital on 7 July 2009.
In his report of 10 December 2010, Mr de la Harpe recorded that when he first saw the applicant:
… she was a lady who presented with some slightly ill defined left worse than right leg pain. She had had previous troubles and had intermittent symptoms since last year. She was previously under the care of Damien Tan (sic) who decided he couldn't do anything further for her and she had had a few CT guided injections. Her most recent MRI scan (copy enclosed) showed quite a significant looking L5/S1 disc prolapse on the left-hand side. I was not sure if this was causing all of her problems. At that stage we planned to rest her for a few days and consider whether we needed to proceed to surgery (Exhibit A2, p 1).
He recorded that he had obtained a history from the applicant of a:
…previous Comcare claim for a back injury which I understood first occurred when she was struck by a truck on a pedestrian crossing. She worked at the Department of Defence.
The episode I initially reviewed her for occurred when she was bending over in the shower overseas. An MRI scan did reveal quite a significant L5/S1 disc prolapse which is most likely a continuation of her original L5/S1 disc injury.
In his conclusions, he recorded:
1. Samantha had an established Comcare claim for a disc injury to her back which occurred whilst at work to the Department of Defence.
2. Her back pain escalated to the point of causing sciatica.
In his evidence Mr de la Harpe said that he had obtained a history from the applicant that subsequent to:
… the motor vehicle accident she developed immediate and escalating back pain requiring ongoing conservative management which escalated to the point of causing sciatica. And it was at this stage that no doubt the lumbosacral disc had its major failure or prolapse causing the sciatica … (Transcript, p 113-114).
In cross-examination, Mr de la Harpe was asked whether he knew of any other accidents that the applicant was involved in (subsequent to the motor vehicle accident when she was struck at the St Kilda Road barracks). Mr de la Harpe said I'm not aware of anything, apart from bending over in the shower. He said that he was the applicant’s treating doctor, he attended her initially in the emergency section of the Epworth Hospital, his concern was to identify the immediate cause of the onset of her symptoms and he concentrated on the escalation of her sciatica (Transcript, p 115).
In answer to a question put to Mr de la Harpe by us, namely, whether he would want to know that the history that he had been given concerning the connection between the truck accident and the prolapse remained a sound opinion, he replied:
… I'm not fussed about a previous history of back symptoms prior to the truck incident because, whether she had any problems with lumbar spine prior to the truck accident or not, the truck accident was clearly an aggravating factor. So whether she had a perfect spine or a partially degenerate spine at the time of truck accident, the truck accident has obviously accelerated things for her (Transcript, p 119).
When asked by counsel for the respondent whether he would need to have more information, particularly concerning the effect of any degeneration, he replied all I can say is that she has said to me that, from that accident, that's where her symptoms deteriorated, requiring further conservative management (Transcript, p 119).
Later, when he was asked to comment on a proposition that people complain of pain but that doesn't give you any good idea of what is happening in the back or what is not happening in the back Mr de la Harpe replied, Not really (Transcript, p 122).
Mr de la Harpe was asked how he had reached the opinion, found in his report, that the applicant was suffering an original L5/S1 disc injury. He replied:
…I can't recall whether there was an old scan or not. So I cannot remember how I formed that conclusion. I can only assume that there was some early imaging done that I had at hand then.
When he was told that there was no evidence in these proceedings of the applicant ever having had any radiology of her lower back before the episode in Scotland, he said the only other way would have been that the patient said to me “I have a WorkCover claim for an L5/S1 disc injury.” I would have taken the patient's word for it (Transcript, p 135).
Mr Rodney Simm is an orthopaedic surgeon who examined the applicant at the request of her solicitors on 8 June 2010. In a report of the same date (Exhibit A3), he referred to three motor vehicle accidents and the event in Scotland.
Mr Simm reported an opinion that the lumbar disc prolapse occurred because of L5/S1 lumbar disc degeneration consequent on a history of:
… three significant work injuries associated with chronic lumbar back pain from which she did not recover. It would be reasonable to accept that as a result of these injuries there was acceleration and aggravation of the degenerative process in the L5/S1 lumbar intervertebral disc (Exhibit A3, p 6).
In his evidence, Mr Simm conceded that it was not possible to determine whether the lumbar disc was damaged prior to the event in Scotland. He said:
...I can't prove it because nobody has examined where the annulus was damaged, if it was damaged in a car accident, and whether the lumbar disc prolapse occurred at that point can never be proven, no (Transcript, p 161).
Later in evidence, when he was challenged on his opinion that the motor vehicle accidents accelerated and aggravated the degenerative process which contributed to the prolapse, he said:
…you seem to have misunderstood my opinion because I've said that it is multifactorial, her age, constitutional factors, genetic factors, weight, traumatic factors we have discussed and, if she had another traumatic incident, I would put that in the mix as well. So I am not attempting to tell the tribunal that these three incidents that I have recorded are the sole cause of the problem. I have tried to make it clear in my response to your questioning and in my report that I regard these three incidents as having been sufficiently severe to have significantly influenced the clinical course of a multifactorial condition, which is L5/S1 lumbar disc degeneration (Transcript, p 162).
When he was asked how he reached the opinion that the three accidents had been significant, he replied:
… now I've made the assumption that if the injuries were minor, then one would not expect her to have required weeks off work and physiotherapy, medication and treatment which extended over months (Transcript, p 166).
Mr Graham Brazenor is a neurosurgeon who provided a report at the request of the respondent on 23 April 2010 (Exhibit R15).
Mr Brazenor noted that there had not been any radiology of the applicant’s lumbar spine prior to the episode in Scotland. It was his opinion that the motor vehicle accidents were no more than exacerbations of an existing degenerative process in the applicant’s lumbar spine. He concluded that the disc protrusions were more than likely a consequence of the episode in Scotland and were:
… very likely not present before that time. It is, however, very likely that significant degenerative changes would have been present, with temporary exacerbations or advances of the degenerative change occurring in each of the… [accidents before the event in Scotland] (Exhibit R15, p 10).
Mr Brazenor disagreed with Mr de la Harpe’s opinion that the MRI scan subsequent to the applicant returning to Australia revealed a significant L5/S1 disc prolapse which is most likely a continuation of the original L5/S1 disc injury. He considered that conclusion to be a serious error and said that he could not find evidence of any L5/S1 disc injury prior to the event in Scotland and there was no sciatica (Transcript, p 57). He said in the absence of a scan, the likely consequences of a significant back injury would have been a protracted time away from work, persisting mention in the clinical notes of continuing symptoms, the need for scanning if symptoms persisted and referral to a specialist. He said none of these happened until the Scottish episode (Transcript, p 67).
CONCLUSION
This is an application where it has become obvious that the applicant and her treating surgeon, Mr de la Harpe were of the opinion either that a lumbar disc prolapse existed before the episode in Scotland or that episode occurred because she was vulnerable as a consequence of the aggravation of pre-existing degenerative disease in her lumbar spine caused by the motor vehicle accidents (or, in the case of Mr de la Harpe, the first accident).
In a letter to Comcare on 12 February 2009 (Exhibit R2, T4), the applicant recorded that her neurosurgeon (at the date of the letter it was Mr Tange):
… indicated that the MRI confirmed the earlier injury to the L4/5 Discs. He has therefore confirmed that the current injury is NOT a separate, non-related occurrence.
Mr Tange’s report does not confirm or give any similar opinion that there was an earlier injury to the L4/5 discs (Exhibit R8). Other reports that he has written which are found within the various clinical and rehabilitation files lodged by the respondent in these proceedings (addressed to treating general practitioners and to rehabilitation officers), do not contain a similar opinion. If Mr Tange did express that opinion verbally to the applicant, it is not indicated by his reports. We doubt, with respect to the applicant that he ever did give that opinion because there is nothing from the report of the radiologist who interpreted the MRI films that there was an earlier injury to those discs.
In an e-mail dated 25 May 2009 from the applicant to the staff in the office of Mr Tange, the applicant requested:
… confirmation from Damien that the current injury is related to previous injury sustained at work for which Comcare has accepted liability. Damian has confirmed this fact in a fax to my occupational therapist last year (Exhibit R7).
A fax containing that information was not identified or exhibited by either party. The respondent lodged three folders containing copies of the applicant’s rehabilitation file and the facsimile referred to by the applicant was not in those folders.
The applicant’s email of 25 May 2009 requests that Damian (Mr Tange) write a letter to her general practitioner confirming that her injury was related to the previous injuries and also requested that he express an opinion concerning the nature of this relationship. If such an opinion was ever expressed and forwarded to her general practitioner (Dr Sticklen) it is not within his file, which was received into evidence and which we have inspected. There was nothing from his evidence before the Tribunal or his reports and clinical notes to suggest that Dr Sticklen ever received such an opinion from Mr Tange either in writing or verbally.
We do not find that the applicant has attempted to mislead Comcare or the Tribunal. We have concluded that she has either misunderstood the advice that was given to her by her doctors or she has assumed that the back pain subsequent to the episode in Scotland has an association with the back pain she suffered previously.
For reasons which will follow, we are satisfied that the episode in Scotland was a separate and distinct event which was of itself responsible for the protrusions. We are not satisfied that the pre-existing lumbar disease caused the applicant to be vulnerable to further injury.
We cannot attach any weight to the evidence of Mr de la Harpe. We acknowledge that he commenced his treatment of the applicant following her admission to the emergency section of the Epworth Hospital. He was not concerned with making a medico-legal assessment of her injury but rather he treated the severe complaint for which she then presented. It would appear from his evidence that he acted on the belief – based on the information given to him by the applicant – that she did have a pre-existing L5/S1 disc protrusion. Mr de la Harpe also agreed that the only history that he had from the applicant was of the first motor vehicle accident. He had no history of any other motor vehicle or other event which was the subject of evidence in these proceedings. He agreed that he relied on the history given to him by the applicant (Transcript, p 134-135).
We accept and find as a fact that following each of the motor vehicle accidents, the applicant did suffer back pain. We are also satisfied and find as a fact that she suffered severe pain following the episode in Scotland. It was so severe that an L4/5 and L5/S1 protrusion was found in an MRI on 27 October 2008 (T36, p84) and she ultimately required surgery.
Prior to the episode in Scotland the applicant did from time to time report the presence of back pain to her general practitioners. However, those complaints and the recording of them by the doctors were very infrequent. The predominant recording of complaints of the applicant were for the other injuries associated with the motor vehicle accidents being her neck, shoulders and her knees. The description of her symptoms and level of pain as a result of and following the episode in Scotland is at odds with her descriptions after each motor vehicle accident. The applicant said she experienced real shooting pain in Scotland (paragraph 53) and Dr Tiong described it as acute (paragraph 54).
We do not suggest that the clinical notes of a treating general practitioner – or for that matter the practitioners at Knox– should be treated as if they were a transcript of the conversation between a patient and the doctor. However, in the event that there had been persisting and frequent complaints by the applicant of back pain, we are confident that a corresponding notation would have been made. As we indicated earlier, the clinical notes of both medical clinics that the applicant attended, together with Knox, have infrequent references to back pain.
We are satisfied that the evidence of Mr Brazenor is to be preferred, namely, that the applicant suffered temporary aggravations of lumbar disease following each of the motor vehicle accidents. We are also satisfied that the evidence of Mr Simm has merit to the extent that there were many features of the applicant and her lifestyle which contributed to her lumbar disease, namely, her weight, her occupation which exposed her to considerable and lengthy periods of being seated and her age. The applicant suffered back pain and discomfort as a result of other accidents and we are satisfied that these also contributed to her lumbar disease.
If the applicant did have severe back pain consistent with what she asserted to have been a lumbar disc prolapse or protrusion, she would have had lengthy periods of absence from work, there would have been persisting mention of those complaints in the clinical notes, her practitioners would have referred her for appropriate radiology and there would have been referral to a specialist. We accept the opinion expressed by Mr Brazenor on these issues. All of these events occurred after the applicant returned from Scotland and are consistent with the consequences and treatment of a serious back injury. The referral to radiology on the description of symptoms is precisely what Dr Tiong did (and we presume what Dr Sticklen would also have done).
We do attach weight to the evidence of Dr Sticklen, the applicant’s treating practitioner. Although he acknowledged that the applicant did have back pain from time to time, it did not impress him as warranting radiological investigation. It is worthy to note that he did refer the applicant for an MRI of her neck. Additionally, it was his practice to err on the side of caution if frequent complaints of back pain had been given to him. We are fortified in this view on the basis that he did not regard the applicant’s complaints of back pain – when given –as a major problem, which would also account for him not having made notes of those complaints in his records.
That evidence is to be contrasted with her attendances upon them after her return to Australia. She consulted with the Medi 7 clinic on the day she returned to Melbourne. Dr Tiong has a note in some detail of the history that she gave him. His opinion of the likely injury was so apparently severe that he arranged for her to be referred to Mr Tange and who consulted her on the following day and arranged an MRI.
We should also indicate at this point that the clinical notes of the Berwick and Medi 7 practices record that the applicant frequently attended for many years for a myriad of unrelated complaints and illnesses. The doctors made notes of the reasons for her presentation. In our view, she is not a person who was reluctant to attend doctors. She is also a person who is articulate and more than capable of giving a history and describing her symptoms. In the event that she did have persisting pain and problems associated with her lumbar spine, we are confident that she would have attended the doctors for that reason and would have sought treatment.
It is unfortunate for the applicant that an MRI of her lumbar spine was not undertaken prior to the episode in Scotland. If it had been undertaken, it would have confirmed the presence of a protrusion if it existed. However, in the absence of such radiology and having regard to all of the foregoing we are not satisfied, on the balance of probabilities, that the applicant did suffer a pre-existing lumbar disc protrusion. It is for all of the above reasons we are satisfied that the evidence of Mr Brazenor has merit and is to be preferred.
We are satisfied that following each of the motor vehicle accidents, she suffered temporary aggravations of lumbar disc disease. We are satisfied that the episode in Scotland was a distinct and separate event which alone was responsible for the prolapse.
DECISION
Having regard to our conclusions at paragraphs 3 and 4 earlier, we are satisfied that those parts of each decision, in so far as they concerned neck injury and depressive disorder will be affirmed.
We have found that the effects of the motor vehicle accidents caused temporary aggravations of degenerative lumbar disc disease. At 22 December 2009, being the date of the reviewable decision in application N°2009/6151, the effects of those temporary aggravations had been overwhelmed by the protrusions and the consequential surgery. It follows that at the date of the reviewable decision, the applicant did not have an entitlement to compensation for the condition of aggravation of lumbar disc sprain. Accordingly, the reviewable decision in application N°2009/6151 will be affirmed.
We have found that the prolapse arose out of an event which was unrelated to employment. Therefore, the reviewable decision in application N° 2010/0617 will also be affirmed.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member and Dr Kerry Breen, Member.
..............................[sgd].....................................
Associate
Dated 15 May 2012
Date(s) of hearing 1-2 February 2011, 30 May 2011 and 22‑23 February 2012 Counsel for the Applicant Mr D. Connell Advocate for the Applicant Mr P. Simon Solicitors for the Applicant Simon Legal Counsel for the Respondent Mr J. Lenczner Advocate for the Respondent Ms S. Krauss Solicitors for the Respondent Australian Government Solicitor
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