Sinclair and Comcare
[2008] AATA 931
•20 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 931
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2006/1360
)
GENERAL ADMINISTRATIVE DIVISION ) Re RHONDA SINCLAIR Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr John Campbell, MemberDate20 October 2008
PlaceSydney
Decision The tribunal affirms the decision under review.
...................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
COMPENSATION – disputed liability for injury – medical expenses – work accident – previous acceptance of some injuries – new claim for further injury – conflicting medical evidence – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Canute v Comcare (2006) 226 CLR 535
Watts v Rake (1960) 108 CLR 158
REASONS FOR DECISION
20 October 2008 Ms Robin Hunt, Senior Member
Dr John Campbell, Memberintroduction
1. Rhonda Sinclair was taking part in a workplace meeting when a telephone started to ring. Ms Sinclair hurried up from her chair to answer the call then tripped and fell on the floor. Ms Sinclair suffered quite extensive injuries. Although in pain, however, Ms Sinclair continued working that day. The following day, she sought treatment. Comcare accepted liability for specified injuries and agreed to compensate Ms Sinclair for medical expenses related to those injuries. The applicant’s case is that subsequent pain in the right leg and swelling in the right ankle also were consequences of the fall at work. Acceptance of liability for additional injury and recovery of costs for investigation and treatment of the condition were sought. We have decided that the fall did not cause the further injury Ms Sinclair complained of. This means she has not succeeded in her claim.
issue
2. The question for the tribunal is whether Ms Sinclair suffered an injury to her right lower limb, in particular, to her right ankle, when she fell at work. She seeks extension of liability to include this extra injury and claims payment for related medical expenses incurred and physiotherapy she received between 11 February 2004 and 21 April 2004 connected to the injury claimed.
consideration
3. Comcare accepted liability on 25 August 2003 for the following injuries suffered by Ms Sinclair as the result of a fall on 2 June 2003:
·Lateral epicondylitis (bilateral);
·Neck sprain (right);
·Contusion of elbow and forearm (bilateral);
·Contusion of wrist (bilateral);
·Bruise knee (bilateral); and
·Contusion of face, scalp and neck, except eyes.
4. According to a letter from a regional case manager written to the claims manager in Canberra, on 16 February 2004, Ms Sinclair complained of recurring leg pain after Comcare had closed her case file and sought payment of physiotherapy expenses arising from referral by her local GP on 9 February 2004. The letter of 16 February 2004 enquires whether Comcare will cover any ensuing invoices. A workcover medical certificate issued by Dr Raphael Kwa, Ms Sinclair’s GP, on 9 February 2004, certifies that she has right plantar fasciitis, right ankle strain and right lateral hamstring strain for which physiotherapy is necessary. Dr Kwa sets out that ‘the injury’ was ‘secondary to fall while at work’ on 2 June 2003.
5. Ms Sinclair told the tribunal she was concerned about swelling across the front of her ankle, which is still present, and believes it is associated with her fall at work. She is not claiming that she suffered a major injury but wishes to have the ankle problem checked out and feels that Comcare should bear any expenses as the injury was one of the consequences of the fall for which Comcare has already accepted liability for other injuries.
6. On 14 April 2004, Comcare declined liability for plantar fasciitis and knee and ankle strain (right). The Comcare letter to Ms Sinclair declining liability did not mention the further condition referred to in the above doctor’s certificate, namely, right lateral hamstring strain. A statement of reasons with the letter explained that, although the decision-maker was satisfied that Ms Sinclair was suffering from plantar fasciitis and knee and ankle strain (right), she was not satisfied these problems were related to the workplace fall. The reasons referred to Dr Kwa’s statements, made on 6 April 2004, that Ms Sinclair felt she injured her right ankle and knee during her fall at work and had altered lower limb posture secondary to her ankle and knee problems, but that he had no record of these injuries in his notes. As to the plantar fasciitis, the decision-maker noted that Dr Kwa stated he had tried to explain to Ms Sinclair any link to the workplace incident was tenuous.
7. Ms Sinclair told the tribunal she made no claim for plantar fasciitis and reference to this had caused a misunderstanding. She realised that plantar fasciitis was not related to the workplace incident. She was claiming an effect on the ankle or on the lower limb. Ms Sinclair’s counsel pointed out she made her claim in terms of Canute v Comcare (2006) 226 CLR 535 in the High Court, which held the definition of an injury did not require a specific diagnosis or aetiology. We accept that all that is required is an effect on the body that is abnormal.
8. On 15 April 2004, Comcare wrote to Ms Sinclair inviting her to comment before a decision to cease liability was made in relation to her accepted injuries and asked her to send any further information by 20 May 2004. Following this letter, the Comcare file shows a regional case manager sent to the claims management centre a number of medical accounts for Ms Sinclair together with payment receipts. These included physiotherapy treatments in February, March and April 2004, consultation fees from Dr Kwa and from Dr Graeme J. Doig, orthopaedic surgeon, right ankle imaging, another invoice for ultrasound of right ankle together with a brief report to Dr Doig from Dr Neville Brown who noted fluid distension of the sheath for the tibialis anterior tendon of the ankle.
9. Ms Sinclair is convinced her ankle, which is still somewhat puffy across the front, was injured during the fall. She is not seeking incapacity payments or continuing medical expenses but seeks reimbursement of the cost of investigation of her ankle problem and physiotherapy. She feels she has been treated unfairly by Comcare because of its rejection of modest expenses she incurred in connection with this claim. If the swelling to the ankle did arise out of an injury on 2 June 2003, she is entitled to recover related medical expenses and her position is that it is reasonable to have any link investigated.
10. She explained her position in a letter to Comcare on 4 June 2004. She disputed Dr Kwa’s recollection and wrote that she had bruising of nails on both feet that was still growing out. She also pointed out that the hospital doctor she saw the day after the injury mentioned both knees. She also mentioned the CRS Australia workplace assessment report dated 15 August 2003. The CRS report noted that Ms Sinclair complained of right elbow pain, other symptoms in the right arm, left forearm discomfort, intermittent discomfort radiating from the right heel to the hip, occasional left neck pain, ‘right has now settled’, and discolouration of nails on both little toes. In her letter of 4 June 2004 to Comcare, however, Ms Sinclair complained of discolouration of three toenails ’from L-R on the left hand foot and the big toe on the right hand foot’.
11. No one disputes that Ms Sinclair fell over, tripping on a chair on 2 June 2003. Contemporaneous material, starting with the emergency department clinical records from Tamworth Base Hospital, show Ms Sinclair attended the day following her fall. A triage nurse noted:
Yesterday bruising to the left palm, left knee, right elbow.
12. When Ms Sinclair saw Dr Albert Law at the hospital, he recorded the following:
She fell at work yesterday, tripped accidentally over the leg of a chair, landed on both feet, both knees and both elbows, still able to continue with her work yesterday and today, bruise over left palm, left knee swelling, controlled by ice, minimal pain on movement, weight bearing.
13. On examination, Dr Law observed:
There is right knee swelling and bruising over the right patella, minimal joint line tenderness bilaterally.
14. Ms Sinclair next saw Dr Kwa. Dr Kwa’s notes show no mention of sensations of which Ms Sinclair now complains, such as tightness, compression or solidity in the right ankle. In his clinical note of 4 June 2003, Dr Kwa reports:
Fell over in the office, got up too quick to answer the phone and tripped on a chair, landed on knees and elbows and palms/wrists. Floor was carpet on concrete. 02/06/2003. Went to TBH ED yesterday, currently sore right elbow and up the arm, tip of the nose is sore, pain in the back of the neck, still able to continue with work. ….
15. Consultation notes made on 3 July, 11 August and 10 October 2003, detail ongoing right upper limb problems but Dr Kwa makes no mention of the lower limb, including intermittent symptoms from heel to hip which Ms Sinclair complained of to CRS in August 2003. When Ms Sinclair attended the CRS, they recorded no mention of her ankle or of changed sensation.
16. Ms Sinclair agreed when giving oral evidence that she did not complain about the ankle until some months after the fall. Ms Sinclair said she went on holiday to Queensland in late 2003. She was not sure of dates but said she was winding down after a very busy period at work. In answer to questions, Ms Sinclair agreed she took about six weeks long service leave in October and November. She went back to work in about December 2003 and worked through until Christmas. Then she also took leave in January 2004, maybe a week or so. She gave evidence to the effect that she first noticed something untoward with her ankle when she was lying on a couch in late 2003, around October or November.
17. It was when lying with her feet up that Ms Sinclair noticed her right ankle was swollen. She thought the swelling must have been related to the fall at work. There was no pain in the ankle but it had been feeling tight and the whole of her right side was sore ever since the fall. Although the ankle had not been normal it was not painful like her other injuries so she had not complained or sought attention for it. She told us that once she noticed it looked puffy and unhealthy, she told her GP at the first opportunity. She thought that this must have been during December 2003 once she returned from holidays. It could have been later as she would have had to wait for an appointment with Dr Kwa.
18. Dr Kwa’s notes provide no corroboration of Ms Sinclair’s claim that she sought attention for her ankle ‘at the earliest opportunity’ after her holiday in late 2003. Dr Kwa’s records show first mention of the ankle on 9 February 2004. Ms Sinclair feels she would have mentioned it before February but there is no record of this despite her having visited Dr Kwa on 15 January 2004 about another problem. Ms Sinclair also recalled visiting Dr Kwa for a final certificate in October 2003 and the ankle is not raised in notes at that time. Dr Kwa’s record in February 2004 reads:
Noticed right ankle swollen medially. Was swollen a few months ago. (Christmas).
19. Dr Kwa reported to Comcare, on 6 April 2004, as noted by the Comcare decision-maker, that he had no record of ankle injury. Ms Sinclair, nevertheless, insists she noticed altered sensation in her right ankle since the fall. Ms Sinclair agreed that in February 2004 one of the complaints she made to Dr Kwa was that she had burning pain in the heel of her right foot and that she had some concerns about that as well when referred to Mr Michael Bird for physiotherapy treatment. Ms Sinclair further said her ankle was swollen when she first pointed it out to Dr Kwa but pain surfaced later, after she saw Mr Bird.
20. Dr Kwa’s notes indicate he did not believe there was a link between the swollen ankle and the fall. He also produced a report, on 13 March 2007, at the request of Ms Sinclair’s lawyer, in which he writes that Ms Sinclair continues to experience some pain and discomfort in her ankle, right knee, right hand but he cannot reliably give an assessment of her objective pain level nor her future requirement for treatment. He described any link to the fall as tenuous. He explained in a letter, dated 26 June 2007, that he thought any link to plantar fasciitis was tenuous. Dr Kwa clarified that he thought Ms Sinclair received physiotherapy for ankle and hamstring strains only.
21. In his clinical note of 19 August 2004, after describing Ms Sinclair’s complaint, Dr Kwa says:
Not worth while pursuing workcover claim.
22. We have a report furnished by Mr Bird, musculoskeletal physiotherapist, of 29 November 2007. Mr Bird found marked swelling around the anterior-medial ankle region and slight restriction of movement. Mr Bird also noted pain on certain movement and tenderness on palpation. He thought these findings were consistent with tenosynovitis of the tibialis anterior tendon. He also remarked on plantar fasciitis. The ankle problem he thought was consistent with Ms Sinclair’s account of being caught under the leg of a chair and falling. He noted some improvement with treatment but that she ceased further treatment due to her claim being denied.
23. Dr Kwa also referred Ms Sinclair to Dr Doig on 29 April 2004, explaining that she had the fall in June 2003 and bruised her knee as well as injuring her elbows and neck. He also noted that Ms Sinclair recently presented with discomfort and swelling in the right ankle anteriorly which she first noticed in December 2003. The swelling and discomfort had not settled with physiotherapy and Dr Kwa sought Dr Doig’s assessment and management. From invoices and receipts on Comcare’s files, it is apparent that Ms Sinclair saw Dr Doig on 30 April 2004 and again on 12 May 2004. Dr Doig furnished a report on 16 October 2007 and diagnosis of the ankle problem.
24. When Dr Doig saw Ms Sinclair on 30 April 2004, he felt she had tenosynovitis of her tibialis anterior tendon at the right ankle. He commented in his letter to Dr Kwa, dated 12 May 2004, that this did not appear to be giving her many problems as she was walking without a limp with high heels on. Dr Doig commented that Ms Sinclair’s main concern seemed to be tying the condition up with her injury the previous year.
25. When Dr Doig saw her again in 2007, he found, on examination, ‘persistent swelling over the front of the right ankle in the soft tissues’. He organised an ultrasound and recommended anti-inflammatory tablets. On the Comcare file is a report by Dr Brown, who undertook an ultrasound of Ms Sinclair’s right ankle on 7 May 2004. Dr Brown said his study confirmed the clinical prominence at the anteromedial aspect of the right ankle was due to fluid distension of the sheath for the tibialis anterior tendon. He did not venture any opinion as to why this had occurred. Dr Doig noted the ultrasound confirmed suspicions of tenosynovitis of the tibialis anterior tendon.
26. In Dr Doig’s opinion, the inflammation around the tendon could have been caused or predisposed by the fall. Dr Doig, in giving oral evidence when asked whether one can have trauma mediated swelling without it being painful, answered that this was possible. In a later brief report dated 17 October 2007, Dr Doig, in response to a specific question about causation, clarified his opinion, saying the inflammation was most likely a combination of the fall and altered biomechanics in protecting her right knee injury which also was a result of the fall. We note that this opinion introduces a new element into the medical opinion of causation before us, that for an injury to be compensable a workplace event need not be the sole cause or even the dominant cause but contributory.
27. Dr Doig thought it reasonable that Ms Sinclair have physiotherapy for the condition but had ‘no idea’ if it was therapeutic. He recommended Ms Sinclair wear proper walking shoes instead of high heels. When asked, Ms Sinclair agreed that she had worn high heels until she saw Dr Doig and he recommended different shoes. Her evidence was that she always used to wear high heels but she was no longer able to do so.
28. Comcare’s witness, Dr Terence Saxby, orthopaedic surgeon, saw Ms Sinclair on 20 March 2008 and furnished a report on 2 May 2008. Despite Ms Sinclair’s complaints of ongoing problems, Dr Saxby noted she walked without a limp and found no obvious deformity or swelling. The plain x-ray of April 2004 and ultrasound of May 2004, which Ms Sinclair brought with her, Dr Saxby noted, showed no abnormality. Dr Saxby answered a number of specific questions put by Comcare and concluded that Ms Sinclair’s present condition was consistent with her having suffered multiple soft tissue injuries which had now resolved, as examination more than four years after the event showed very minimal objective clinical changes. He did not think she exaggerated or fabricated symptoms but her complaints of ongoing discomfort in her lower extremity he did not believe was the result of previous injury. He found it difficult to attribute her complaints to anything specific.
29. Dr Saxby thought that, as Ms Sinclair had multiple soft tissue complaints after the fall, it may well be easy to overlook one of these at the time. However, as these were relatively minor injuries, they should have resolved. He agreed with the statement of Dr David Walker in his report of 4 August 2004 about causation. This included the opinion that plantar fasciitis had nothing to do with mild ankle pain and also that it had nothing to do with the accident. Dr Walker had noted that the condition became manifest some time after the accident. Dr Walker also thought any hamstring strain caused minimal discomfort and it was impossible that she had it for 8 months and not noticed it. He opined that she probably had no such injury and any discomfort or sensation she was now experiencing was unrelated to the accident and of doubtful aetiology.
30. Dr Saxby stated that he did not believe Ms Sinclair’s present problems related to her injury at work. Under cross-examination, Dr Saxby gave evidence that a tendon injury would not have occurred without pain being felt at the same time. Even if the injury was characterised as mere swelling rather than inflammation, or injury such as ankle strain or soft tissue injury, any trauma such as effects of the fall, would result in pain. In his opinion, pain would result at the time of the injury even if this were low grade trauma. On the other hand, it would have been possible for Ms Sinclair to overlook pain in one area if other injuries at the time of her accident were more painful.
31. We note that comments by medical practitioners and experts who have seen Ms Sinclair some years after the event can only be of limited assistance in determining causation where the injury complained of has resolved or largely resolved. Drs Doig and Saxby have shared the opinion that any injury was minimal but have been forced to rely on Ms Sinclair’s own history and on more contemporaneous reports and opinions such as those of Dr Kwa and Dr Walker when it comes to causation of a condition which is not supported by any objective clinical evidence or examination. Dr Kwa has expressed the opinion that any link between the fall and ankle injury is tenuous. He has no notes of lower limb problems in the months following the fall. Dr Walker also considered it impossible that Ms Sinclair had the injuries complained of for 8 months and not noticed them.
32. The evidence before us is that Ms Sinclair first noticed swelling of the ankle in December 2003 although she experienced changed sensation in the leg earlier in 2003 but made no complaint until February 2004 when she saw Dr Kwa. We bear in mind it is possible she mentioned her concern in October 2003 or January 2004 when she saw Dr Kwa for other reasons but Dr Kwa has no such recollection. Drs Walker and Saxby find no link to the fall and Dr Doig thought the tendon problem might be related to the fall but based this conclusion in part on a link with a knee injury, which was not established. There was no evidence before us of altered biomechanics in the knee but simply bruising of the right knee, which was an accepted injury.
33. Medical opinion is that no compensable ankle injury resulted from the fall. In our view, as is borne out in the majority of medical opinions, the swelling and later pain became apparent or were documented too late to indicate a connection. The issue was complicated by a misunderstanding about plantar fasciitis which Ms Sinclair agrees was an unrelated condition and which does not form part of her claim. While the suspicion that an ankle injury occurred is not unreasonable bearing in mind the severity of the fall and the likely involvement of ankle strain when tripping and falling, no medical record exists about any ankle injury until months after the fall. Medical opinions and material before us leads to a finding that the fall at work had nothing to do with the development of ankle swelling or ankle pain or any further lower limb injury claimed by Ms Sinclair. On balance, therefore, we are not persuaded that the fall did cause the ankle injury or any lower limb injury complained of.
34. Comcare rejected Ms Sinclair’s claim on the basis that no ankle injury was included in her original claim and there was insufficient evidence to suggest an ankle injury occurred as a result of the fall. Ms Sinclair’s treating doctor, Dr Kwa, opined that any link was tenuous and no specialist orthopaedic opinion before us makes a convincing link to the fall. We are dependent on expert medical opinion in reaching a conclusion on balance and this leads us to affirm the reviewable decision as correct.
35. It is perhaps unfortunate that the ankle was not investigated when Ms Sinclair first raised concerns that she had overlooked a further injury which might have been linked to her fall. On balance, we accept that she believes the truth of her claim that she has ankle swelling or lower limb discomfort as a result of the fall at work but this is not to say she cannot be mistaken in her belief.
36. We also note that Dixon CJ of the High Court in Watts v Rake (1960) 108 CLR 158, observed that where a person has developed a condition in consequence of an accident considered as a precipitating cause, even where part of his or her present condition is traceable to causes other than the accident, a presumption arises in favour of the applicant who is seeking remedy. He stated, at [2]:
… there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.
37. As His Honour pointed out, states of fact may be proved by evidence or may appear as inferences which the evidence supports. In a similar vein, Menzies J stated at [8]:
Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health.
38. In the present case, the cause of Ms Sinclair’s ankle swelling is not clear from the evidence presented to us. Medical opinion differs but there is no definitive opinion before us that the fall caused the further condition of which Ms Sinclair claims. None of the evidence supports her belief as to causation of her present problem, with even Dr Doig’s opinion that the fall was a likely cause of the ankle problem being based on a false assumption related to the knee.
39. Had the swelling appeared or been noticed sooner, the presumption suggested in Watts v Rake might well operate in Ms Sinclair’s favour. But because Ms Sinclair did not call attention to her ankle until several months after the accident in June 2003, the position is not straightforward. The cause of ankle swelling or lower limb discomfort is not obviously linked to the accident as the time lapse allows for other intervening factors. Even had a presumption in Ms Sinclair’s favour arisen, on balance, we consider any possibility of a connection to her fall has been averted by the medical opinions before us. It follows that we do not consider that any decision can be made in favour of Ms Sinclair.
decision
40. The tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr John Campbell, Member
Signed: ..........................[Sgd]............................
Jennifer Wong, AssociateDate/s of Hearing 2-3 September 2008
Date of Decision 20 October 2008
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Australian Government Solicitor
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