Schirmer and Comcare (Compensation)

[2019] AATA 794

Schirmer and Comcare (Compensation) [2019] AATA 794 (21 March 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4118

Re:Neal Schirmer

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:21 March 2019

Date of written reasons:        3 May 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the reviewable decision dated 22 May 2017.

............................[SGD]............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Respondent previously accepted liability intervertebral disc disorder, lumbar region - whether the Respondent is presently liable to pay medical expenses and incapacity payments in respect of previously accepted liability – competing expert evidence - consideration of contemporaneous medical evidence – degeneration of L4/5 disc – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19 and 20

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

3 May 2019

Reviewable Decision

1. Mr Schirmer is seeking to have incapacity payments reinstated in relation to a previously accepted condition of intervertebral disc disorder, lumbar region, sustained on 5 September 2003. The reviewable decision is dated 22 May 2017. It affirmed a decision dated 16 March 2017, which found that the Respondent, Comcare, had no present liability for incapacity payments for that condition under sections 19 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

   The Issues

2. The issues to be decided are:

   (a)whether Mr Schirmer continues to be incapacitated for work by the accepted condition, intervertebral disc disorder, lumbar region, sustained on 5 September 2003, as at 16 March 2017 or thereafter; and

   (b)if so, what is the appropriate weekly wage rate for which he should be compensated. 

   Mr Schirmer's Work and Claim History

3. Mr Schirmer is a toolmaker by trade.  He is dyslexic.  He suffered the injury which resulted in the accepted condition while he was employed at the Anglo-Australian Observatory in Sydney.  He made a claim for rehabilitation and compensation for the accepted condition, which he signed on 10 September 2003.  It was received by the Respondent on 15 September 2003 (the 2003 claim form).  A personnel officer filled out the form for him.  In a decision dated 24 September 2003 the Respondent accepted liability under section 14 of the Act, wrongly, for neck sprain, although the decision correctly stated that the claim was for lower back pain.  That error was corrected in a decision dated 13 November 2006. 

4. The Tribunal notes that Mr Schirmer was retrenched in August 2005.  Since then he has tried unsuccessfully to establish his own business, which lasted about three or six months.  He has had two jobs which lasted about two weeks.  In each case, the employer had no further work for him to do.  He said that they could see him struggling.

5. After he was retrenched Mr Schirmer took personal injury proceedings against his employer and a labour hire firm which employed the person who was with him at the time of the injury.  Those proceedings were settled and Mr Schirmer received a payment.

6. He first claimed incapacity payments on 19 August 2008.  Payments began 18 March 2009 and were made for the period 11 August 2005 to 18 March 2009, and were then on-going. 

7. Mr Schirmer has been receiving Newstart Allowance since the decision was made on 16 March 2017 that Comcare had no present liability for incapacity payments. 

   The Injury and Claim

8. Mr Schirmer suffered the injury causing the accepted condition when he and a colleague were moving a coolant tank, which he said during oral evidence, weighed about 70 kilograms and was 1 metre tall and 1 metre by 400 centimetres in width. 

9. The following details were provided in the 2003 claim form.  The injury occurred on Friday, 5 September 2003 at 2:30 pm.  His doctor did not refer him for any diagnostic tests, such as X-rays, pathology, or to a specialist. 

10. The injury was:

    Sharp pain in lower back when moving. Dull pain at other times.

11. The part of the body affected was lower back. 

12. The injury:

    Limits my ability to pick up equipment etc in the course of my work duties and at home.

13. The injury occurred "on a grass area outside mechanical workshop". 

14. The events contributing to the injury were:

    Had completed cleaning coolant tank outside workshop.  Neal and Reuben were preparing to move tank, which was already on trolley.  As the trolley was moved load shifted and Neal had to steady it.

15. The equipment being used was “hand truck - without load securing strap”.

16. No response was provided to the question "Was someone else responsible for your accident?" 

17. Mr Schirmer returned to work on 8 September 2003. 

18. The personnel officer/case manager filled out part of the form, which she signed and dated 11 September 2003.  She wrote that Mr Schirmer had lodged his claim with the employer on 8 September 2003.  His job title was laboratory craftsman. 

    The Contemporaneous Medical Evidence

19. Dr Philpott issued the initial medical certificate for Worker's Compensation for Mr Schirmer on 8 September 2003.  She did not provide a diagnosis but stated that it is caused by “excessive moving equipment".  She indicated that there were no pre-existing or contributing factors.  She specified the following treatment: 

    Heat, Anaprox, Tiger Balm, 2 kg max lifting. 

    No pushing/pulling. 

20. She confirmed that Mr Schirmer was fit for modified duties. 

21. She diagnosed "Work-related Back Pain - soft tissue injury" in the next medical certificate, issued on 15 September 2003.  The management plan was "Anaprox, physio".  She specified lifting up to 10 kilograms carefully, no heavier. 

22. Dr Philpott specified the following treatment in the medical certificate dated 23 September 2003:  "Heat, Anaprox, Tiger Balm, physiotherapy".  She again specified 10 kilogram lifting maximum and stated "Must attend physiotherapy". 

23. On 20 October 2003, Dr Philpott specified treatment: "Physiotherapy - twice a week".  No medication was specified, although non-steroidal anti-inflammatories were referred to in the file note of the same date.

24. No medications were specified in later certificates Dr Philpott issued. 

25. On 3 November 2003 Dr Philpott specified as treatment "normal duties at discretion of patient, physio two times a week".  She indicated that Mr Schirmer was fit for modified duties.  On 24 November 2003 Dr Philpott specified "No heavy lifting".  On 22 December 2003 she diagnosed work-related right sacroiliac joint pain.  The treatment required was "X-ray, physio, no heavy lifting". 

26. An X-ray of the sacro-coccyx region was carried out on 23 December 2003.  It reported:

    The SI joints on both sides are normally defined.  There is no evidence of erosion of underlying boney abnormality.

27. I note that Doctors Bodel and Smith, orthopaedic surgeons, agreed that that X-ray was irrelevant to the current claim because it related to a different region of the body. 

28. The last medical certificate Dr Philpott issued was dated 21 January 2004.  The specified diagnosis was work-related right back pain.  The management plan was "Swimming, physio, no heavy lifting".  She certified that Mr Schirmer was fit for suitable duties from 21 January to 3 March 2004. 

29. Dr Philpott's file notes of the consultations are not easy to decipher, but they refer to muscle spasm, limits on flexion and extension, and right sacroiliac joint pain.

30. On 15 September 2004 Mr Schirmer consulted Dr Barlow.  The doctor's file notes record "Back pain, coughing + +", and an arrow indicating causing back pain. 

31. On 11 December 2004 the doctor made the following entry, omitting illegible text: 

    Recurrence of back pain

    Coughing, 5/7 ago, pain same area

    (reduced) ROM generally

    Radiates lateral leg to above knee

    Not had any analgesia

    … 

    Pain across L4/5 tender

    …

    Anaprox 50 BD PRM

    Heat

    Advised needs conditioning/exercise

32. On 2 March 2005 Dr Barlow saw Mr Schirmer.  His file note records:

    Left sciatica, coughing, carrying 5 kilogram water bowl for the dog, back pain going into the left leg.

33. He prescribed Tramol 50 grams and referred Mr Schirmer for a CT scan.  The CT scan was undertaken on 2 March 2005, the same day Mr Schirmer saw Dr Barlow.  The findings were:

    Bilateral pars defect L5/S1.

    Extruded or sequestered disc at L4/5 on the left causing compression of the left L5 nerve root.

34. Dr Barlow issued a medical certificate on 15 March 2005, almost 14 months after the last medical certificate issued by Dr Philpott.  It included the following information:

    ·He ticked the box "Initial certificate". 

    ·He saw Mr Schirmer on 2 March 2005. 

    ·The injury occurred on 22 February 2005. 

    ·Mr Schirmer is suffering from L4/5 disc lesion. 

    ·It was caused by coughing (recurrence) previous back injury. 

    ·The treatment was  Framac and physiotherapy three times weekly. 

    ·No lifting more than 10 kilograms, no pushing, pulling, lumbar flexion.

35. In the next medical certificate Dr Barlow issued on 29 March 2005, he stated that the date of injury was 5 September 2003.  The specified medications were Celebrex and Tramal. 

36. There were 180 pages of medical certificates from Dr Barlow in evidence. The most recent was 27 July 2017. 

37. On 14 July 2005 an MRI scan of the lumbar spine was carried out.  The report included the following information, excluding normal findings. 

    Indication: left leg pain 

    There is a grade 1 spondylolisthesis at L5/S1. 

    There is decreased signal intensity on T2 weighting in the L4/5 and L5/S1 discs, indicating disc desiccation.  There is also a reduction in disc height at these levels.  Reactive changes are present in the contiguous vertebral endplates at these levels. 

    At the T10/11 level there is a right posterolateral bulging of the disc annulus with minor encroachment on the theca but no encroachment on neural structures.

    At the L4/5 level there is a large broad based posterior and left posterolateral disc protrusion and associated extruded fragment which descends behind the vertebral body of L5 to the left of midline.  This disc protrusion and associated fragment create compression of the left L5 nerve root with posterior displacement of the nerve root. 

    At the L5 level, bilateral pars interarticularis defects are present.

    At the L5/S1 level there is circumferential bulging of the disc annulus associated with the anterior slip of L5 on S1.  There is an associated right lateral disc protrusion in the right neural exit foramen, causing compromise of the right L5 nerve root with the foramen. 

38. Dr Barlow wrote a report to Comcare dated 9 May 2005. He referred to Dr Philpott's treatment of Mr Schirmer following the September 2003 injury and stated that “He slowly but surely recovered over a couple of months' period”. “At the time he had no sciatic pain in either leg but had basically a chronic lumbosacral strain.”

39. He also reported that Mr Schirmer had told him that his back has always been painful, on and off ever since, but it was only in September 2004 that whilst coughing it appeared to make the pain worse, and the pain radiated into the left lateral leg to above the knee.  Dr Barlow referred to the 22 February 2005 incident but did not refer to the December 2004 incident recorded in his file notes, which was the first record of left-sided leg pain.  He referred to the persisting nature of Mr Schirmer's back pain since 2003. 

    Consideration and Findings

40. Doctors Bodel and Smith provided written reports and gave oral evidence concurrently, with Dr Bodel present in the hearing room and Dr Smith on the telephone.  By the end of the evidence the first issue can be answered by deciding whether the Tribunal accepts Dr Bodel's opinion or that of Dr Smith as to the cause of Mr Schirmer's current incapacity. 

41. It is not in dispute that Mr Schirmer suffers pain in the left side of the lower back, running across the lower back and down the lateral leg to the foot and across the top of the left foot.  It is not in dispute that the disc extrusion at L4/5 is causing sciatica down the left leg beyond the knee.

42. Dr Bodel provided reports dated 3 December 2007, 28 August 2018, and 2 July 2018.  By the end of the hearing his opinion was that it was possible that the large disc lesions seen in the 14 July 2005 MRI was a consequence of the accident of 5 September 2003, and that it caused internal disc disruption at L4-L5, and then there was a sudden further damage to the same disc by way of an external disc disruption in early 2005, which was confirmed on the March 2005 CT scan and the July 2005 MRI. 

43. Dr Bodel could not say that it was probable.  He also emphasised that his opinion was based on the history that he was given, that is, that Mr Schirmer's symptoms after the 2003 incident did not settle completely.  In his 2018 report he wrote that Mr Schirmer continued to have pain in the back and left buttock and thigh after the 2003 incident, and then there was as sudden further damage to the same disc in the February 2005 incident. 

44. In Dr Smith's opinion there is no relationship between the disc extrusion at L4/5 and the incident on 5 September 2003.  In his opinion, first expressed in his report dated 2 December 2008:

    The L4/5 and L5/S1 discs are very degenerate.  This is well demonstrated on the MRI scan of July 2005.  The signal loss there would go back many years prior to 2005.  There is facet joint arthritis at L4/5 and L5/S1, and above over almost every level in the lumbar spine demonstrated on the MRI scan. 

    There is considerable likelihood that the disc extrusion, which was quite large, and that occurred in February 2005, has rendered his back somewhat more symptomatic on a more regular basis than it ever was prior to the incident of 22 February 2005. 

    It is highly likely that he has back pain and/or leg pain on a fairly regular basis.  I would have thought that scenario has been the case since February 2005, and is likely to continue.

45. Dr Smith's prognosis was:

    I would think his condition is unlikely to improve much in the foreseeable future.  I don’t think he will become asymptomatic for lengthy periods of time. 

46. The past 14 years have shown that that prognosis was correct.  Dr Smith provided two other reports, dated 12 October 2017 and 16 August 2018.  He maintained his opinion in each report, and during his oral evidence he did not agree with Dr Bodel's opinion. 

47. The Tribunal prefers the opinion of Dr Smith to that of Dr Bodel for the following reasons.  The contemporaneous documentation does not support the history Dr Bodel assumed.  It also does not support Mr Schirmer's evidence about what happened in the September 2003 incident, which is similar to that Dr Bodel recorded, that is that Mr Schirmer used his left hand to hold the tank and felt a pain in the lower part of his back and in the left buttock and thigh.  The contemporaneous records do not report those specific symptoms and location. 

48. The Tribunal does not criticise Mr Schirmer.  He has understood since March 2005 that his symptoms are related to the 2003 incident.  He has been living with the same symptoms since February 2005, more than 14 years.  He had a previous accepted lumbar condition.  However, the Tribunal infers that he in fact returned to normal duties from 3 March 2004, the end of the period Dr Philpott certified him fit for suitable duties as set out above, until the February 2005 incident.  That is what he told Ms Waller during a functional capacity assessment on 27 September 2005.  That is what he told Dr Bodel on 3 December 2007.  He made no complaint of back pain from the end of the period for which he was certified by Dr Philpott, that is, 3 March 2004 until 15 September 2004. 

49. Further, the MRI report notes desiccation of L4/5 disc which is evidence of disc degeneration.  The Tribunal does not consider that Dr Bodel gave appropriate consideration to that critical matter, as Dr Smith did. 

50. For those reasons the Tribunal finds that the Respondent had no present liability for incapacity payments of the accepted condition under sections 19 and 20 of the Safety, Rehabilitation and compensation Act 1988 (Cth) as of 16 March 2017. The Tribunal affirms the reviewable decision. The question of earning capacity does not arise.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

........................... ..........[SGD]...................................

Associate

Dated: 3 May 2019

Date(s) of hearing:	19, 20, 21 March 2019
Counsel for the Applicant:	Mr D Epstein
Solicitors for the Applicant:	Ms V O'Bryon, Barwick Boitano Lawyers
Counsel for the Respondent:	Mr M Snell
Solicitors for the Respondent:	Ms B Audsley, Australian Government Solicitor