Schou and Comcare
[2007] AATA 1259
•26 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1259
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1640
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER SCHOU Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate26 April 2007
Place Sydney
Decision The Tribunal affirms the decision under review.
No costs are payable pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
....................(Sgd)............
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – Applicant injured on way home from work – fall on a train – documentation throughout notes injury to right shoulder and that the Applicant hit his head when he fell – later claims for psychiatric injury, left shoulder, back, headache, sciatica not accepted – Tribunal prefers documentary evidence to Applicant’s recollections – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 20, 21
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Esam v ASP Ship Management (1998) 87 FCR 82.
REASONS FOR DECISION
26 April 2007 Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member1. Mr Christopher Schou is a 59 year old man who has worked as a contract officer/clerk for the Department of Defence for 20 years. On 28 June 2002, he stopped to have a couple of beers with his supervisor from work, who is also a friend, and on the way home as the train left Town Hall Station, he fell down the steps in the carriage of a double decker train. He was helped up by his friend who alighted with him several stations later, at Kogarah station, where they reported the fall to station personnel. There was some divergence in evidence given regarding what the station attendant was told, and a contemporaneous record made by the station employee was tendered.
2. There was however no disagreement about the fact that Mr Schou proceeded home from Kogarah station by taxi, and that Mr Schou’s 23 year old son then took him to the Emergency Department at St George Hospital where he was seen by staff, including doctors. He told them he had fallen on his right shoulder and hit his head. Mr Schou had radiological examinations in connection with the reported injuries, and was then released to return home later that night.
3. Mr Schou had a week or so off and then saw his general practitioner Dr Clarkson. Mr Schou’s claim for compensation was not received until 6 May 2005 (T16). Liability was accepted by Comcare only for “calcifying tendonitis of shoulder (right)” (T33), and therefore treatment, and subsequently an operation to repair the tear of the right supraspinatus tendon of the right shoulder which was conducted by Dr Murrell on 4 October 2005. The Respondent accepted liability pursuant to section 6 of the Safety Rehabilitation and Compensation Act 1988 (the Act), a journey claim.
4. Mr Schou also had further surgery, a laminectomy L3 – L5 carried out by Dr Diwan on 5 June 2006. Liability for the back has not been accepted by the Respondent.
5. Mr Schou’s early reports of the fall were consistently restricted to injury to the right shoulder, and hitting his head as he fell. Mr Schou appealed the decision not to accept liability for the following body parts which he later said were injured in the fall, or arose as a consequence of the fall.
·Headache
·Neck sprain
·Sprain of back
·Hip/thigh
·Sciatica
·Left shoulder/upper arm
·Anxiety state
6. Accordingly the issue before us was whether liability should be accepted for those body parts named above which Mr Schou claimed were injured in the fall of 28 June 2002.
7. Having heard all the evidence, we were satisfied that Mr Schou suffers certain pain, but we were not satisfied that he injured the abovenamed body parts for which liability was not accepted in the fall he sustained on the train journey on 28 June 2002. Our reasons follow.
ISSUE BEFORE THE TRIBUNAL
8. The issue before the Tribunal was whether, in addition to liability for Mr Schou’s right shoulder, (sections 4, 14, 16 and 19), the Respondent should accept liability for:
· Headache
· Neck sprain
· Sprain of back
· Hip/thigh
· Sciatica
· Left shoulder/upper arm
· Anxiety state
9. We heard oral evidence and had reports and statements from the following before us: Mr Schou (Exhibit R7), his supervisor and travelling companion on 28 June 2002, Mr R Grundeman (Exhibit A1), Dr J Saunders, Sports Physician of the Department of Orthopaedic Surgery at St George Hospital (Exhibits A2 and A3), and Dr D Bornstein, orthopaedic surgeon (Exhibits R4 and R5). There were reports on Mr Schou’s psychiatric state from psychiatrists, Dr K Thomas, (Exhibit A4), and Dr P Brown, (Exhibit R6).
LEGISLATIVE CONTEXT
10. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (“the Act”), in particular sections 4, 14, 16 and 19.
11. Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“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;
...”
12. Sections 14(1) provides for liability for compensation for injured workers, and 16 of the Act provides for reasonable medical expenses to be paid in that regard.
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
13. Section 19 deals with financial compensation for employees who are incapacitated for work utilising a formula which includes the normal weekly earnings of that person, and follows as relevant.
“Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
…”
14. There is of course well established authority both State and Federal, which deals with injury and disease, with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimis contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.
EVIDENCE
15. In coming to a decision whether the Respondent should accept liability for injury to the additional body parts listed above which Mr Schou claims he injured in the fall on 28 June 2002, we considered all the evidence, submissions, case law and the legislation.
16. We noted Mr Schou first claimed he fell down 7 - 8 steps in the train, later amended to 3 – 4 steps. We have drawn no adverse inferences about this. In his oral evidence he described feeling pain in his chest and back, the neck down to the spine, right arm and shoulder, and said his “whole frame moved on me when I hit the floor…” . The area Mr Schou indicated when he described pain around the neck and upper back was C6/7. He said he also felt pain in his lumbar/sacral area to the top of the pelvis after the fall.
17. In his claim form, received by Comcare on 6 May 2005, Mr Schou claimed for “crushed tendon and tear to right shoulder, head injury, headaches, neck pain, lower back pain, sciatica pain in both legs (mainly right), pain in both hips, sleeplessness, shock, stress and anxiety, some pain in left shoulder.”
18. The first available record in relation to the fall, was the “incomplete page” of a file note the SRA employee made when Mr Schou and his supervisor with whom he was travelling reported the fall at Kogarah station on the evening of 28 June 2002. We were mindful that the photocopied page from the station record recorded the accident as: “He complained of a sore “R” shoulder and showed signs of shock.” (Exhibit R10).
19. We noted that Mr Schou presented to the Emergency Department of St George Hospital, at 21:19 hours on 28 June 2002, (T3), where the triage notes recorded “FALL – STAIRS AT TOWN HALL. HAD 7-8 SCHOONERS THIS PM. C/O RIGHT SHOULDER PAIN LEFT RIB AND SHOULDER PAIN. PMH KNEE OPS, STROKE, HEART PROBS.”
20. At 21.25 hours, a further entry by Nurse Gleeson stated: “fall down steps of train. Hit R shoulder. Nil loc. – hit head.” Nurse Gleeson also recorded that Mr Schou was “alert + orientated” and that his physical condition was as follows: “O/A pt alert c/o pain – R shoulder. Across chest + back. Nil lump to head.”
21. Later that evening commencing at 22.10 hours, Dr Ghosh, the RMO, examined Mr Schou and made several other entries (PT3-10). Of note were the record of Mr Schou falling 7 – 8 steps which we have now accepted was actually 3 – 4 steps. Dr Ghosh recorded: “Landed on the R side mostly on R shoulders & R side of chest. Dr Ghosh also recorded that Mr Schou had no lumps or bump on his head and that there was “no spinal tenderness … tenderness over R rib cage in front and at the back”. There was some discussion at the hearing regarding whether “back” in that context meant the back itself or the back of the rib cage. We were satisfied from the evidence at the hearing and the fact that no radiological examinations were made of the lumbar area, that it was not the lumbar area of the back, but rather the back of the ribcage which was intended by Dr Ghosh.
22. We noted that as no report of back injury had been made by Mr Schou to the hospital, the radiological investigations carried out on the evening of 28 June 2002 did not go to the back. Presumably because Mr Schou had reported falling on his right shoulder and hitting his head, the Hospital carried out a CAT scan of the brain, chest X-ray and X-ray of the right shoulder. The record indicated “no spinal tenderness”, and accordingly his spine was not examined radiologically. Mr Schou told us he could not recall whether his back was examined. We were satisfied that, as noted in the hospital notes, Mr Schou had been alert and able to report all problems at the time of attendance at St George Hospital, and that if some other body part other than those reported had been hurt, he would have said so.
23. We noted at Exhibit R2 a copy of a letter of Dr Ghosh to Mr Schou’s treating doctor dated 28 June 2002 in which he wrote that Mr Schou had “sustained blunt injury to R shoulder & R side of the chest from a fall.” There was no mention of the neck, back or other body parts.
24. We were mindful that as recently as 17 March 2005, when Mr Schou on the advice of his solicitors wrote to St George Hospital to correct the record which had been made about his consumption of beer when he attended on 28 June 2002, he mentioned only that he had fallen on his right shoulder and then hit his head on the floor of the train. There was no mention of injury or impact to any other body parts, and his request to the hospital was that its records indicating he had consumed 7 - 8 schooners prior to the fall be amended to indicate he had fallen 7 - 8 steps, (later before us amended to 3 - 4).
25. Dr Clarkson, Mr Schou’s general practitioner, recorded as follows in her clinical notes dated 3 July 2002 at Exhibit R3, “fell in train 5/7 ago (28/6) coming home from work – fell down steps hit head R shoulder . We noted also at T32 in a letter dated 1 August 2005 to Comcare, Dr Clarkson wrote that Mr Schou had fallen on his way home from work “hitting his head and right shoulder”. She added that “He was suffering pain in his R shoulder and scapular, his back and along his R ribs.” Dr Clarkson also wrote: “I saw him next on 16/7/03 with a chest infection and then on 04/03/04, with atypical chest pain, neck stiffness and dizziness. He did not mention the shoulder injury at these visits.”
26. There was then a report of Dr Hassim dated 11 March 2003.
27. Kogarah Town Medical Centre notes were at T52/97 – 112. A summary of the entries follows:
· 7 August 2002 – Noten/Mycardis 40 BP 130 over 80
· 19 November 2002 - Mr Schou was referred for an ultrasound following a fall on the train three weeks previously
· 1 March 2003 - Injury to the R shoulder – supraspinatus rupture – subscapularis: at insertion - calcification deposit
· 1 July 2004 – mention of the neck. The entry reads “…fell off train two years ago – neck + shoulder prob. Sent for X-ray + CT
28. We noted a letter of Dr Hassim to the SRA seeking assistance with physiotherapy for Mr Schou and stating that he sustained injury to the supraspinatus and subscapularis tendons of the R shoulder (T7/18).
29.
We noted from Exhibit R8, St George Hospital notes related to an overnight admission for chest pain dated 2 March 2004, that this was the earliest record of Mr
Schou complaining of neck injury. There was also an entry in the notes of the Kogarah Town Medical Centre at T52/97 of 1 July 2004 in which Mr Schou’s complaint of neck pain is recorded.
30. Dr Clarkson’s notes also indicate she recommended physiotherapy on 16 April 2003. Mr Schou told us however that he did not attend because he was awaiting surgery. At T10, dated 4 March 2004, Mr Schou is recorded as complaining of neck and head pain, but not headache.
31. Mr R Grundeman, who had been travelling with Mr Schou when he fell on the train, also gave oral evidence. Mr Grundeman’s statement (Exhibit A1) was dated 15 March 2005, and described Mr Schou’s fall, stating that he landed on his right shoulder on falling, and hit his head. There was no mention of any other body part. We noted that when he gave his oral evidence, Mr Grundeman mentioned Mr Schou gripping his low back and right hip, and having difficulty walking after the fall. We preferred the documentary evidence, Exhibit A1, to Mr Grundeman’s oral evidence, and noted that the statement he made in Exhibit A1, in fact corroborated that of Mr the hospital notes of 28 June 2002 which indicated Mr Schou reporting right shoulder injury and having hit his head.
32. We noted that Dr J Saunders, sports physician, who gave oral evidence in the Tribunal, recorded in her report of 28 March 2006, (Exhibit A2), that Mr Schou had given her a history of falling down some train stairs “landing on the point of his shoulder and then hitting his head on the floor.” She opined that when he fell onto his right shoulder, the Applicant sustained a tear of the rotator cuff, and that when he hit his head on the ground he suffered a concussive event, and sustained further injury to his neck. In her further report at Exhibit A3, Dr Saunders reviewed Dr Bornstein’s report and commented that Mr Schou aggravated a pre-existing but asymptomatic neck spondylosis and lumbar spine spondylosis with discal injury and formation of an antero listhesis at L4/5. She opined that the fall caused the neck and back which had pre-existing problems, to become symptomatic. She also opined that “It is also highly possible that there was no anterolisthesis at L4/5 prior to the injury and the anterolisthesis occurred at this time. It is not possible to say when the anterolisthesis occurred.”
33. We accepted Mr Schou’s evidence that he had drunk a couple of beers before boarding the train on 28 June 2002, and that he fell down 3 – 4 steps in the train. The information recorded from the documentary evidence above satisfied us that when Mr Schou fell on 28 June 2002, he “sustained blunt injury to R shoulder & R side of the chest.” There was no mention of the neck, back or other body parts on or around the date of the fall.
34. We note for the sake of completeness that liability was accepted for the right shoulder injury which occurred on 28 June 2002 and that Mr Schou underwent surgery for it as performed by Dr Murrell on 4 October 2005.
35. We were satisfied from the documentary evidence which we have shown above, and which we preferred to Mr Schou’s recollections, that he reported only hurting his right shoulder and hitting his head when he fell on the train on the evening of 28 June 2002. Mr Schou did not tell the Kogarah Station staff, the St George Hospital staff, Dr Clarkson or Dr Hassim about hurting any other body part except his right shoulder and hitting his head as he fell in the train. We are satisfied that between July 2002 and June 2004, Mr Schou did not complain to doctors about his hips, back, leg, left shoulder or psychiatric problems. He then made a claim for compensation in mid 2005.
36. Even as recently as 17 March 2005, when Mr Schou on the advice of his solicitors wrote to St George Hospital to correct the record which had been made about his consumption of beer when he attended on 28 June 2002, he mentioned only that he had fallen on his right shoulder and then hit his head on the floor of the train. There was no mention of injury or impact to his back or any other body parts.
37. We were concerned that on several occasions, doctors who saw Mr Schou several years after the incident relied on incorrect history which he had given them. We note for example at T40 the letter of Dr Murrell, a sports physician when he wrote to Dr Diwan, Mr Schou’s treating orthopaedic surgeon, indicating that the Applicant has had low back pain as well as right shoulder pain since the fall. Mr Schou may well have had low back pain due to a degenerative condition by the time he saw Dr Murrell in August 2005, and his recollections of the accident may have dimmed. We have found from the documentary evidence contemporaneous with the fall that Mr Schou did not develop low back pain until some years after the fall, and that in the early reports of the fall, Mr Schou described right shoulder pain and hitting his head as he fell in the train, but no low back pain. Incorrect history was also given by him to Dr Bornstein and Drs Brown and Thomas as discussed in the paragraphs below. We preferred the contemporaneous reports of the fall which were clearly that Mr Schou injured his right shoulder and fell hitting his head.
38. We moved then to consider whether Mr Schou’s claim for the various body parts for which liability has been refused by the Respondent can be sustained, noting that liability was accepted for the injury to the right shoulder (section 4 of the Act), sustained during the journey home from work on 28 June 2002 (section 6(1) of the Act). In doing so, we have reviewed Mr Schou’s evidence as well as the medical evidence.
Neck Sprain
39. Ms Wall, counsel for the Applicant accepted on behalf of Mr Schou that there was little contemporaneous evidence to support his claim that he had injured his neck in the fall of 28 June 2002. However she submitted he had said that he injured himself from his neck to his lumbar spine during the fall. She referred to Dr Bornstein’s diagnosis of whiplash injury (Exhibits R4 & R5), in support of Mr Schou’s claim.
40. We noted that Dr Bornstein wrote in Exhibit R4 that Mr Schou gave him a history of having fallen in a train, landing on the point of his right shoulder and striking his head. It was not unreasonable, he opined to hold that Mr Schou suffered a whiplash-type injury, a soft tissue injury, to the neck during the fall, which caused him some discomfort, noting however that the changes he currently has in his neck and any ongoing discomfort are of a constitutional nature, and not directly related to the fall.
41. Dr Saunders (Exhibit A2), took a history of Mr Schou falling onto the point of his shoulder and then hitting his head on the floor of the train. In her diagnosis she wrote the following about the neck: “Aggravation of a pre-existing, but asymptomatic neck spondylosis and lumbar spine spondylosis with discal injury and formation of an anterolisthesis at L4/5”. Dr Saunders wrote in her second report at Exhibit A3 that having reviewed Dr Bornstein’s reports she agreed that Mr Schou does have pre-existing and constitutional problems with his neck and back. She added however that she believed that those previously asymptomatic conditions became symptomatic at the time of the fall.
42. We were mindful that the earliest mention of neck injury (noted in relation to the June 2002 fall), is at Exhibit R8, the St George Hospital notes made on 2 March 2004 when Mr Schou was admitted overnight for chest pain (Exhibit R8). Those notes also indicate that Mr Schou told the Hospital staff that he has had recent neck pain on the right side over the last 2 – 3 days (before admission on 2 March 2004), and mention shoulder injury (2002), but no back injury. Other entries in relation to the neck in Exhibit R8 were “… GP to organise neck U/S … and Explained to patient that neck U/S is not deemed as urgent …”
43. There was a further mention of the neck in the medical certificate of Dr Clarkson dated 4 March 2004 in which she certified Mr Schou unfit for work for a day with regard to head and neck pain. The notes of the Kogarah Town Medical Centre at T52/97 dated 1 July 2004 also record Mr Schou’s complaint of neck pain.
44. Mr Best submitted that the conclusion Dr Bornstein reached that Mr Schou had suffered a whiplash injury had been based on an incorrect history as he had assumed the neck pain commenced the day following the fall. He submitted that Dr Saunders had also taken an inaccurate history.
45. From the evidence we have, which is Mr Schou’s own account to the doctors at St George Hospital that he injured his right shoulder and hit his head in the fall of 28 June 2002, and from other contemporaneous records, we cannot be satisfied that Mr Schou injured his neck on that occasion. However if indeed he suffered a soft tissue injury on 28 June 2002, then according to Dr Bornstein it would be expected to have resolved within 12 – 18 months.
46. It is more likely that the changes in Mr Schou’s neck and any pain he feels are due to constitutional factors, and not the fall. The Respondent is accordingly not liable, and compensation for such a condition cannot be paid.
Sprain of Back
47. Mr Schou claims he injured his back in the fall on the train on 28 June 2002, and that any effects he suffers are compensable.
48. We noted that no back injury is mentioned in the notes made by the Kogarah station staff member who recorded the report of Mr Schou’s fall on the train on 28 June 2002. He wrote: “He complained of a sore “R” shoulder and showed signs of shock.” (Exhibit R10).
49. We noted that when Mr Schou presented to the Emergency Department of St George Hospital, at 21:19 hours on 28 June 2002, (T3), the triage notes record “FALL – STAIRS AT TOWN HALL. HAD 7-8 SCHOONERS THIS PM. C/O RIGHT SHOULDER PAIN LEFT RIB AND SHOULDER PAIN. PMH KNEE OPS, STROKE, HEART PROBS.”
50. At 21.25 hours, an entry by Nurse Gleeson states: “fall down steps of train. Hit R shoulder. Nil loc. – hit head.” “O/A pt alert c/o pain – R shoulder. Across chest + back. Nil lump to head.”
51. Later that evening commencing at 22.10 hours, Dr Ghosh, the RMO, examined Mr Schou and made several other entries (PT3-10). Dr Ghosh recorded: “Landed on the R side mostly on R shoulders & R side of chest. Dr Ghosh also recorded that Mr Schou had no lumps or bump on his head and that there was “no spinal tenderness … tenderness over R rib cage in front and at the back”. Notwithstanding Dr Saunders’ opinion that “back” in this case meant the back, we are satisfied that Dr Ghosh meant that Mr Schou had reported tenderness over the right rib cage both in the front and at the back. It is more likely than not that he did not mean the lower spine as radiological investigations done on the evening of 28 June 2002 at St George Hospital did not include the back.
52. Presumably because Mr Schou had reported falling on his right shoulder and hitting his head, the Hospital carried out a CAT scan of the brain, chest X-ray and X-ray of the right shoulder, but as the record indicated “no spinal tenderness”, his spine was not examined radiologically. Mr Schou told us he could not recall whether his back was examined. We were satisfied that, as noted in the hospital notes, Mr Schou had been alert and able to report all problems at the time of attendance at St George Hospital.
53. We noted at Exhibit R2 a copy of a letter of Dr Ghosh to Mr Schou’s treating doctor dated 28 June 2002 in which he wrote that Mr Schou had “sustained blunt injury to R shoulder & R side of the chest from a fall.” There was no mention of the neck, back or other body parts.
54. We noted that notwithstanding Mr Schou telling us he hurt his back in the fall of 28 June 2002, there was no record of him telling Dr Clarkson anything about his back in July 2002, neither in the notes of the Kogarah Town Medical Centre of 7 August 2002 (T52/97). Mr Schou replied that he would not necessarily mention his back if he attended at a doctor for other complaints.
55. We were mindful of Dr Saunders’ reports and her oral evidence. In her report dated 28 March 2006 (Exhibit A2), Dr Saunders recorded a history of the fall as given to her by Mr Schou. She records that “he fell onto the point of his shoulder and then his head hit the floor”. There was no mention of the Applicant hurting his back either in her contemporaneous clinical notes (Exhibit R9), nor in her report at Exhibit A2.
56. In her second report dated 22 June 2006 (Exhibit A3), Dr Saunders commented on Dr Bornstein’s report. She states there that she agrees with Dr Bornstein that “Mr Schou does have pre-existing and constitutional problems with his neck and back, however I believe that these previous asymptomatic conditions became symptomatic at the time of the fall…. It is also highly possible that there was no anterolisthesis at L4/5 prior to the injury and the anterolisthesis occurred at this time. It is not possible to say when the anterolisthesis occurred.”
57. As to the St George Hospital notes recorded on 28 June 2002 which indicated Mr Schou reported pain in his right shoulder, across the chest and back; Dr Saunders agreed that it was not possible to determine with any degree of certainty to which part of the back the writer was referring. However, Dr Saunders stated that from the history she took from Mr Schou, she believed he did sustain an injury to his lower back at the time of the fall. However, we considered that the report of the history Dr Saunders took from Mr Schou at her examination which is reported in Exhibit A2 and which did not include mention of the back, was more reliable than her oral evidence as it was taken when Mr Schou was with her on 24 March 2006, over a year before she gave her oral evidence.
58. Dr Bornstein’s reports were at Exhibits R4 and R5. Dr Bornstein recorded the history of the fall as given to him by Mr Schou which was that the Applicant fell landing on the point of his right shoulder and striking his head. There was no mention of the neck or back. Dr Bornstein told us in his oral evidence that Mr Schou has a degenerative condition of the lumbar spine. He also commented that the hospital notes of 28 June 2002 (PT3/8) do not record a low back injury but that Mr Schou has degenerative changes in his lower back with an annular tear at L4/5 an some disc bulging. He did not consider the back was injured in the fall.
59. Ms Wall submitted in relation to the lower back, hips and sciatica, that the St George Hospital notes mentioned injury to those body parts, as well as Dr Clarkson’s report a week after the injury of 28 June 2002. She referred to the reports of Dr Diwan, the treating orthopaedic surgeon and Dr Pell. Ms Wall submitted that a person with a degenerative back such as Mr Schou was more susceptible to develop anterior listhesis within a shorter time than a person without that condition. She submitted that Mr Schou had developed the anterior listhesis within a period of approximately two and a half years after the accident, pointing to it being causally related to the accident.
60. Mr Best submitted, relying on Dr Bornstein, that for an anterior listhesis to develop in a short time, the impact would have to have been, not a fall on a train, but from the impact of something traumatic like a high speed motor vehicle accident. He submitted there would have been immediate pain following the event.
61. We agree with Dr Bornstein and find that there was no such severe impact to Mr Schou’s lower spine as a result of his fall. Ms Wall’s submission is not supported by the medical evidence.
62. We were satisfied from the contemporaneous medical records including those of St George Hospital made on the evening of the accident, on 28 June 2002, that Mr Schou who was conscious and alert and would have reported everything he felt, did not report back pain to the hospital. Neither did he give back pain as part of the history of the fall to Drs Clarkson, Saunders or Bornstein, and we are satisfied that any back condition from which Mr Schou now suffers is as a result of a degenerative condition rather than as a result of the fall on 28 June 2002. The Respondent is accordingly not liable, and compensation for such a condition cannot be paid.
63. We note for the sake of completeness that Mr Schou underwent L3 – L5 posterior decompression and fusion performed by Dr Diwan in May 2006 (Exhibit A5)
Hip/Thigh
64. We noted that there were no complaints by Mr Schou about his hips to doctors until 2004. There were no complaints by Mr Schou about his hips to the St George Hospital on 28 June 2002, nor to Dr Clarkson, nor the Kogarah Town Medical Centre doctors. Mr Schou’s replies to questions regarding this were that he had complaints in his hips since the fall in 2002, but that he could not recall whether he had mentioned them to his doctors.
65. Dr Bornstein did not consider Mr Schou’s hips were injured in the fall on the train.
66. Dr Saunders did not mention the hip or thigh in her reports.
67. Ms Wall submitted on behalf of the Applicant that his claims he had hurt his back and hips were supported by the Hospital notes, Dr Clarkson, and later Drs Diwan and Pell. Ms Wall did not specify any particular notes and on a careful reading of these, we could not accept her submission.
68. The Respondent submitted that along with reference to other body parts, the Applicant’s evidence that he had continuing symptoms in his hips following the fall in June 2002, was not able to be sustained.
69. We have already dealt with Mr Schou’s claims regarding his back, and were not satisfied from the evidence, in particular the contemporaneous documentary evidence, that Mr Schou injured his back, hips or thighs in the fall on 28 June 2002. The Respondent is accordingly not liable, and compensation for such a condition cannot be paid.
Sciatica
70. We noted that the onset of low back pain and sciatica was not reported before 2004 (PT52). Mr Schou said that since the fall, he had been protecting his body from impact, and that the pain had been there since the fall on 28 June 2002. We were mindful from Mr Schou’s evidence and Dr Clarkson’s clinical notes that Mr Schou is quite pre-occupied with his health. In replies given in cross-examination, Mr Schou said that he had leg problems for 20 years and that he had a fear of developing DVT. He felt that his sciatica arose out of the fall in June 2002.
71. We noted that Dr Drummond, an orthopaedic surgeon, reported on 30 August 2004 (PT55), that Mr Schou’s symptoms are due to spondylosis with nerve root entrapment producing sciatic symptoms to the calf, and that he had knee pain due to the advancing osteoarthritic changes in his knees. We noted that Dr Diwan agreed with Dr Drummond in 2004 that Mr Schou’s spine was the main source of his problems.
72. Mr Best submitted that the Respondent accepted Mr Schou suffered pain from his sciatica but indicated that it did not arise out of the fall of 28 June 2002.
73. We were satisfied that given Mr Schou’s knee problems and spine are not compensable as a result of the fall in June 2002, neither is his sciatica. We were not satisfied from the evidence, in particular the contemporaneous documentary evidence, that Mr Schou’s sciatica arose out of or can be causally linked to of the fall on 28 June 2002. The Respondent is accordingly not liable, and compensation for such a condition cannot be paid
Left Shoulder/Upper Arm
74. Mr Schou indicated that when he complained to doctors about pain, he probably did not specify which shoulder, and that the complaints would have included both shoulders. We noted that the first complaints about the left shoulder were dated 2004.
75. We were also mindful that Ms Wall conceded that apart from Mr Schou’s own evidence before the Tribunal that he injured his left shoulder, there is little documented evidence regarding this.
76. We were satisfied from the evidence before us that Mr Schou did not report any left shoulder injury to the Kogarah station staff, St George Emergency on 28 June 2002, Dr Clarkson and others. We do not accept that Mr Schou injured his left shoulder in the fall of 28 June 2002. The Respondent is accordingly not liable, and compensation for such a condition cannot be paid
Anxiety State
77. Mr Schou’s made a claim for psychological injury, that is depression and anxiety state arising out of the fall of 28 June 2002. On referral from his general practitioner, Dr Chung, Mr Schou consulted Dr Thomas, a psychiatrist, on 29 March 2006. He said at the time of the hearing that he had been seeing Dr Thomas every 4 – 6 weeks. He said he had been feeling very anxious and down with regard to his injuries, and had problems with sleep. When asked about his psychological state at the hearing, he replied that he was feeling “fragile”.
78. We noted that Mr Schou had sought assistance for anxiety from his general practitioner prior to June 2002, in fact dating back to 1982 where Dr Clarkson had recorded in her notes on 25 February 1982 that Mr Schou was under stress at work and “v nervy”. (Exhibit R3). Dr Clarkson had also recorded on 17 March 1982 that Mr Schou had strains at work, and was dizzy and was drinking, and again on 3 July 1991, with a record showing he was less anxious on 6 August 1991. Mr Schou was on medication for anxiety at that time, and had indicated to his doctor that it was of assistance. The records also indicated that he was taking an anti-depressant between July and November 1991. Dr Clarkson recorded that Mr Schou was very depressed when he consulted her on 28 March 2000, Mr Schou indicating in his evidence that he may have been depressed but that he was not very depressed. Mr Schou also told us that the depression previously recorded was very different from what he currently feels.
79. We noted also Mr Schou’s complaints that pain and delays in acceptance of his claim have caused him anxiety and depression. We were mindful that following his claim for compensation in mid 2005, liability was accepted for the right shoulder and surgery pursuant to that, took place in October 2005. We cannot accept that there was a delay in dealing with Mr Schou’s claim.
80. He also indicated that currently his psychological state is impacting on his life, with neck and back and sleep problems.
81. We were mindful of Dr Saunders’ observations of Mr Schou at the time of her examination on 24 March 2006 where she recorded that “he was noticed to have a very flat affect and had difficulty recalling many facts and was slow to answer questions”. In her diagnosis she wrote amongst other problems, “reactive depression”.
82. Neither of the psychiatrists involved in this matter, Drs Thomas and Brown were required to give oral evidence although their reports at Exhibit A4 and R6 were before us. Dr Thomas who has been treating Mr Schou since he first consulted him on 29 March 2006, diagnosed Adjustment Disorder with depressed mood, and prescribed medication. We noted that Mr Schou gave Dr Thomas a history of having developed constant pain in the right shoulder and lower back since the fall on 28 June 2002.
83. Dr Brown produced a comprehensive and lengthy report recording that Mr Schou told him he fell down seven or eight steps and that he felt all his upper skeleton had moved, and that he felt his neck jolt. Dr Brown also records that Mr Schou told him he fell on his right side, his shoulder and then hit his head on the floor.
84. Dr Brown recorded Mr Schou as telling him he had been anxious about his health since the fall because he had physical symptoms which were continuing. Mr Schou told Dr Brown that he had had no history of psychological symptoms or treatment, yet Dr Brown recorded from the documents sent to him, a number of consultations with doctors dating from 1982 to 2002 documenting stress at work and recording psychological symptoms.
85. Dr Brown diagnosed Mr Schou with Adjustment Disorder of a transient and mild severity whose main symptoms are anxiety about his health, that is his general medical and orthopaedic problems, and the operation for his back which Mr Schou had not yet undergone when he consulted Dr Brown. Dr Brown opined that if “his lower back problem is the result of the train accident then so too is his current Adjustment Disorder. If his lower back problem is the result of a progressive degenerative osteoarthritis of discs and facet joints (spondylosis) regardless of his fall then his Adjustment Disorder is not the result of the train accident. This also applies to other pathology such as the spondylosis of his neck.”
86. Dr Brown attributed the Adjustment Disorder he diagnosed Mr Schou as suffering at the time he examined him as emanating from the results of the delay for his back operation. He opined: “His current Adjustment Disorder should resolve when the causal stress has been addressed. That is when he has an operation. If the operation is not a success then he may develop another Adjustment Disorder. In any event they should abate with the passage of time.”
87. We were unable to accept Dr Brown’s report in full because he had relied upon an incorrect history, that is Mr Schou’s description of right shoulder, neck pain and lower back pain developing after the fall. However Dr Brown did add that; “If the physical specialists advise that his back problem is the result of his fall then so too is his current Adjustment Disorder as its determinant is his frustration at the delay in his operation. Otherwise his Adjustment Disorder is the result of a constitutional degenerative condition (spondylosis) which is present in his lumbar, cervical and thoracic spine and a matter for his personal health.”
88. We noted Ms Wall’s submission that even if were against Mr Schou as to the back, then Dr Brown had also applied his views about the origins of the adjustment disorder to other pathology such as spondylosis of the neck. However we do not accept that Mr Schou injured his neck in the fall on 28 June 2002, noting however that Dr Bornstein opined he may have had a whiplash injury which is a soft tissue injury expected to resolve within a 12 – 18 month period. Accordingly we could not accept Ms Wall’s submission.
89. We have already said in the paragraphs above that we do not accept Mr Schou suffered an injury to his spine in the fall of 28 June 2002, and accept only that he hurt his right shoulder and hit his head on that occasion. Neither Dr Brown nor Dr Thomas were given an accurate history of the fall by Mr Schou because both have recorded that they were told of a back injury resulting from the fall. We have noted in the preceding paragraph that Dr Brown did say that if Mr Schou’s back problem was a result of the fall, then so too would his adjustment disorder. However as we have not accepted that Mr Schou’s back problem resulted from the fall, and as it is due to a constitutional degenerative condition, then, as Dr Brown opined, it is a matter for his personal health. Accordingly, any Adjustment Disorder or other psychiatric condition Mr Schou suffers is not compensable. The Respondent is not liable.
Headache
90. Ms Wall submitted that Mr Schou suffered headaches derived from his neck pain, or the blow he suffered when he fell on 28 June 2002.
91. We are satisfied from his evidence and the contemporaneous records that Mr Schou reported he fell on his right shoulder and fell hitting his head in the incident of 28 June 2002. However, headache was not reported and we noted the earliest reports of neck pain were in March 2004. At T10, there is mention of neck and head pain, but not headache.
92. We are not satisfied the Applicant suffers headache, and if so, it is not causally linked to the fall of 28 June 2002. Accordingly the Respondent is not liable, and compensation for such a condition cannot be paid.
CONCLUSION
93. We have noted that liability was accepted for injury to Mr Schou’s right shoulder arising out of the fall of 28 June 2002.
94. We are satisfied to conclude for the reasons given in the paragraphs above that Mr Schou did not complain to any doctors, and more likely than not, did not have complaints about his hips, back, legs (sciatica), left shoulder, and psychological state between July 2002 and June 2004. We are satisfied that no complaints about these body parts are causally related to the fall of 28 June 2002. They are accordingly not compensable and the Respondent is not liable.
DECISION
95. The Tribunal affirms the decision under review.
96. No costs are payable pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDates of Hearing 21,22 & 23 March 2007
Date of Decision 26 April 2007
Counsel for the Applicant Ms H Wall
Solicitor for the Applicant Colin Daley Quinn Solicitors
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Dibbs Abbott Stillman
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