Solman and Comcare (Compensation)
[2018] AATA 6
•9 January 2018
Solman and Comcare (Compensation) [2018] AATA 6 (9 January 2018)
Division: GENERAL DIVISION
File Number(s): 2016/2636; 2016/3431
Re:Julie Solman
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:9 January 2018
Place:Canberra
The reviewable decisions of 12 April 2016 and 21 June 2016 are affirmed.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – no jurisdiction in absence of determination of liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – determining mechanisms by which liability is established – ambit of accepted condition in absence of fresh s 14 determination cannot be broadened – lack of jurisdiction cannot be remedied by procedural step – no jurisdiction to consider a claim for incapacity or impairment arising from cervical spondylosis or arthritis – ailment a different condition to injury accepted in September 2004 – injury, not impairment, that unlocks compensation – fusion surgery on neck – injury to neck – decisions affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 14, 16, 19, 24, 27 and Part VI
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)Cases
Abrahams v Comcare [2006] FCA 1829
Canute v Comcare 226 CLR 535
Comcare v Muir [2016] FCA 346
Lees v Comcare (1999) 56 ALD 84
Portors and Comcare [2017] AATA 2166
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.REASONS FOR DECISION
Deputy President Gary Humphries
9 January 2018
INTRODUCTION
Ms Julie Solman, the Applicant in these proceedings, was an employee of the Department of Defence (the Department) when she had an accident in Melbourne on 30 June 2004. She slipped while trying to enter a car in the rain, hit her head and sustained an injury to her neck. As this occurred in the course of her employment, she made a claim for workers compensation a few weeks later, and on 15 September 2004 Comcare, the Respondent here, accepted liability for a neck sprain.
In (it seems) early 2013 Ms Solman made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for cervical spondylosis without myelopathy. On 23 July 2013, however, Comcare rejected that claim, its delegate reasoning as follows:
I am not satisfied that your claimed condition has been caused by new set of circumstances. The medical evidence clearly indicates that your condition is a worsening of symptoms of your already accepted condition [i.e. neck sprain]…
In January 2014 Ms Solman underwent fusion surgery on her neck. Comcare accepted liability under s 16 of the Act for the cost of that surgery in a determination dated 3 December 2013. On 22 December 2015 she lodged a claim for permanent impairment and non-economic loss, pursuant to ss 24 and 27, in relation to her accepted neck condition. On 2 March 2016 Comcare denied liability for this claim, and Ms Solman sought reconsideration of that decision. However on 12 April 2016 Comcare affirmed its determination denying liability, and Ms Solman lodged an application for merits review by the Tribunal on 17 June 2016 (matter 2016/2636).
On 19 April 2016 Comcare issued a determination ceasing liability under ss 16 and 19 for Ms Solman’s neck sprain condition. She sought reconsideration the following month, and on 21 June 2016 Comcare made a reviewable decision affirming that there should be no further liability for the neck condition. Ms Solman lodged an application for merits review of that decision in the Tribunal on 5 July 2016 (matter 2016/3431).
EVIDENCE OF MR AND MS SOLMAN
Ms Solman gave evidence that she had been involved in two previous motor vehicle accidents prior to her accident in June 2004. As a teenager she had rolled her car after swerving to avoid a dog in 1982. Following that incident she was hospitalised after suffering what she called damage to a corner edge of the vertebra. She had to wear a soft collar for a period. She had a further accident in 1994, when she and her children were taken to hospital as a precautionary measure, and a CT scan was taken of her cervical spine.
She commenced work at the Department in 2001, initially as a logistics manager and later continued as a project manager. She retired from the Department in April 2016 on invalidity grounds.
She was in Melbourne in relation to her employment in June 2004 when she had an accident while attempting to enter a car with work colleagues. She slipped in the rain and hit the right side of her head on the door frame. She told the Tribunal she had a stinker of a headache soon afterwards, and saw her GP within a few days. Physiotherapy was recommended.
She told the Tribunal that, in the period after the 2004 accident, she experienced pain in varying degrees; always in her neck and sometimes in her shoulders as well. She dealt with that pain generally by taking painkillers, but also undertook Bowen therapy on occasions. She described her pain as intermittent. She was referred by her GP to a neurosurgeon, Dr Chandran. She continued to experience symptoms after May 2005: stiffness in her neck, pain and headache. Physiotherapy was not overly beneficial. She also attended a chiropractor. She told the Tribunal that she managed to live with her pain; she got on with life.
Her evidence was that her pain intensified in 2012, and by about September that year it became intolerable. She was prescribed cortisone injections, but they were only partially successful. She was operated upon by neurosurgeon Dr Michael Ow-Yang, who undertook a C5/C6/C7 fusion in January 2014. She said that her pain was much relieved by this operation, but was not erased entirely. She described it as a 50 per cent improvement. She still experiences headaches, and her neck still aches.
Under cross-examination, she also mentioned a fall she experienced while on board HMAS Kanimbla in the course of her employment on 29 March 2006.
She was also cross examined on the question of her experience of pain between mid-2005 and 2012. She denied that the symptoms in her neck and shoulder went away between 2005 and 2012. When it was put to her that doctors from 2012 onwards noted her condition as having been of recent origin, she responded this episode [neck and shoulder pain in 2012] was the beginning of something I didn’t identify as being related [to the 2004 incident] at the time. She said she had made no claims against Comcare for her chiropractic and Bowen therapy between 2005 and 2012 because:
…it’s not in my nature to do that… To my way of thinking Bowen therapy and chiropractic was something for me to improve my quality of life at the time because I had already psychologically accepted that I had neck pain…
A statement dated 25 April 2017 of Ms Solman’s husband, Mr Neil Solman, was tendered. In this he said, inter alia:
I remember that since her accident in 2004, Julie was constantly using wheat pack heat bags on her neck to try and relieve her head and neck aches. I remember her using them constantly, I lost track of how many heat packs she went through over the years.
Between 2004 and 2012, Julie’s pain slowly increased. It was a case of things slowly getting worse. Things got worse so slowly that we barely noticed. We just got on with things. Unfortunately by the end of 2011, Julie’s pain and discomfort was increasing at a rate that could no longer be ignored. It got to the point where Julie could hardly do anything and was in constant pain. It was no longer possible to get on with things…
There are not that many bulk billing doctors in our area, so we tend not to run off to the doctor complaining all the time, we just deal with it.
THE MEDICAL EVIDENCE
Tendered medical evidence
Medical reports, clinical notes and other records were tendered, revealing a picture of Ms Solman’s medical history.
The motor vehicle accident in which Ms Solman was involved in 1982 resulted in an injury to her neck, specifically a C5 fracture. A CT scan of her cervical spine, taken on 1 November 1994, showed evidence of an old fracture line at C5. The scan showed some limitation of excursion of the cervical spine and flexion and extension, and some loss of cervical lordosis.
On 2 July 2004, Ms Solman attended a GP, Dr Stuart Haynes, complaining of neck pain and tenderness. An x-ray of her cervical spine on 19 July 2004 showed mild height loss at C4/5, with loss of normal cervical lordosis, and tiny osteophytes slightly narrowed the right C5/6 intervertebral foramen. Dr Haynes reviewed that x-ray on 29 July 2004 and recommended she continue physiotherapy and massage treatment.
On 30 September 2004 Ms Solman attended Dr Haynes complaining of neck pain and referred arm pain. She was prescribed pain relieving medication and referred for a CT scan. On 29 October 2004, she told another GP, Dr Paul Joseph, that she had received some benefit from Bowen therapy. Dr Joseph observed on examination that she had a restricted range of motion. She returned to Dr Haynes on 9 December 2004, complaining of continued facet joint tenderness with radiation into her left shoulder, and again on 5 May 2005 with neck pain and headache.
She was referred for an MRI on 10 May 2005 which disclosed disc degenerate change in the mid spine, not compressing the cord but in conjunction with endplate and uncovertebral joint change causing slight right foraminal narrowing at the C5/6 and 6/7 levels.
A report of neurosurgeon Dr Nadana Chandran dated 28 June 2005 noted Ms Solman’s medical history and found that neurologically there were no significant deficits, except diminished sensation in the tip of her right thumb. He considered that the issue was a soft tissue injury to the neck with facet joint involvement in the upper cervical spine and possible nerve irritation at C5/6. He recommended physiotherapy for the upper facet joints and, if there was no relief, a possible facet block.
Ms Solman’s medical records then fall silent with respect to her neck condition for the next seven years. Those records disclose numerous visits to GPs during this time – Comcare submitted that there were at least 50 such visits – but no reference is made in them to her neck condition. On 17 September 2012 she attended a GP, Dr Sujith Kamath, and reported that she had flu-like symptoms for a few days, but then a very sore left shoulder, especially in the two preceding days, with no injury. On 20 September 2012, Queanbeyan District Hospital completed a discharge form after Ms Solman attended complaining of a week-long history of left shoulder and neck pain. The form notes that she was very uncomfortable with pain in the left neck and shoulder, and a restricted range of movement.
An x-ray of her left shoulder and cervical spine was taken on 21 September 2012, showing cervical spondylosis at C3/4, C4/5, C5/6 and C6/7 levels, as well as some narrowing of all the intervertebral foramina on both sides between C3 and C7. A CT scan on 24 September 2012 showed, at the C3/4 level, a little narrowing of the left intervertebral foramina due to degenerative change. At C5/6 there was marked narrowing of the right intervertebral foramen due to degenerative change and a little narrowing of the left intervertebral foramen. At C6/7 there was narrowing of both intervertebral foramina due to degenerative change.
On 25 September 2012, Ms Solman attended Dr Kamath and complained of still having a lot of pain in her left shoulder – down her forearm to her index/middle finger. She attended Dr Kamath again on 5 October 2012 to report that her neck was better but still sore. On a further visit to Dr Kamath she was referred to a urologist, Dr Michael Ow-Yang.
In a report dated 23 October 2012, Dr Ow-Yang noted that Ms Solman was suffering quite severe left brachalgia. He noted that her pain started about 6 weeks ago. He diagnosed left C7 radiculopathy and suggested that surgical intervention may be justifiable given the severity of the pain. An MRI of her cervical spine taken on 30 October 2012 concluded that she suffered from multilevel degenerative disc disease and multilevel foraminal stenoses with nerve root impingement.
On 10 January 2013 she told Dr Kamath of continuing neck and shoulder pain.
In a further report dated 21 February 2013, Dr Ow-Yang reported his examination of Ms Solman from the day before. He adopted a working diagnosis of right C2/3 facet arthritis in combination with right C6 and bilateral C7 nerve root compression. He opined in relation to the 2004 incident that there is the possibility that the significant blow to the head may have set off an accelerated degenerative progress resulting in her current problems.
A regional bone scan on 26 February 2013 reported Active facet joint arthropathy right C2/3.
Associate Professor Gautum Khurana, a neurosurgeon, examined Ms Solman and provided a report dated 5 June 2013. He took a history from Ms Solman and noted that she was overall okay between 2004 and 2012. He diagnosed her as suffering cervical spondylosis, particularly at C5/6 and C6/7 which is symptomatic, in addition to C2/3 facet arthropathy.
Dr Kamath provided a report dated 20 June 2013 in which he offered a working diagnosis of Facet Joint Arthritis with Aggravation of Depression. Dr Kamath noted that he was not treating Ms Solman at the time of the 2004 incident, but made this observation:
It is known that an injury can predispose to an early onset of arthritis in the joint. So the injury Julie sustained at the age of 40 might explain her symptoms at present, aged 49.
Dr Ow-Yang provided another medical report, dated 26 June 2013, in which he opined:
It is entirely plausible that a progression of facet joint arthropathy at the C2/3 level as well as changes at the C5/6 and C6/7 levels seen on most recent MRI may be caused by the injury that occurred in 2004.
He suspected that Ms Solman may not have been suffering her current symptoms had the injury in 2004 not occurred.
On 23 September 2013 Dr Ow-Yang performed a facet joint block at bilateral C4/5 and C5/6.
Dr Khurana examined her again, and in a report dated 27 November 2013, diagnosed symptomatic cervical radiculopathy, progressive, refractory to medical and conservative management, and C5/6 and C6/7 predominant spondylosis. He considered Ms Solman’s prognosis to be poor without surgical intervention. On 14 January 2014 Dr Ow-Yang performed an Anterior Cervical Discectomy + Fusion and a spinal cord/nerve root decompression.
An x-ray taken of her cervical spine on 14 April 2014 showed evidence of degenerative changes in the C3/4 and C4/5 discs, above two levels of fusion, and a complete loss of the normal cervical lordosis which could have been due to spasm in the neck.
In a report dated 14 January 2015 Dr Khurana again diagnosed cervical spondylosis, adding Her condition at a structural level is a degenerative one… When asked if this condition was related to the 2004 incident, he answered:
Yes. That incident aggravated likely underlying cervical spondylosis, making it symptomatic and progressive.
When asked if the spondylosis was the natural progression of an underlying condition, he responded Not strongly.
On 20 August 2015, Dr Ki Douglas, an occupational physician, provided a medical report for the Department in which she diagnosed Ms Solman with degenerative cervical spondylosis. Dr Douglas thought that her neck condition would deteriorate with age and she would have an increased and accelerated arthritis affecting the cervical spine. She considered Ms Solman likely to become permanently partially incapacitated for work.
On 24 February 2016 orthopaedic surgeon Dr Mohamad Mourad provided a report in which he opined that Ms Solman’s employment did not continue to contribute to her condition. He further considered that Ms Solman had not suffered a permanent impairment due to her accepted condition. He took the view, on the balance of probabilities, that Ms Solman’s pre-existing cervical spondylosis was only temporarily aggravated by her fall on 30 June 2004. He stated that, at worst, it would have led only to soft tissue injury that would have resolved within two weeks of the accident, with no permanent damage. He considered that Ms Solman’s complaints of ongoing symptoms of pain and weakness in her upper limbs and neck were solely attributable to her pre-existing cervical spondylosis – an age-related process – which was partly attributable to her motor vehicle accident in 1982.
A report of orthopaedic surgeon Dr Roger Pillemer dated 12 October 2016 was before the Tribunal. Dr Pillemer diagnosed an injury to her cervical spine on 30 June 2004, and noted also residual radiculopathy. He opined that Ms Solman’s ongoing symptoms were due to that injury, noting she was asymptomatic prior to this.
On 31 October 2016, Dr Pillemer provided a supplementary report in which he confirmed his earlier diagnosis.
Live evidence of Doctors Pillemer and Mourad
The Tribunal took concurrent evidence from Dr Pillemer, called by Ms Solman, and Dr Mourad, called by Comcare.
Dr Pillemer confirmed his view that her injury showed evidence of nerve root involvement, that is, radiculopathy. Based on a history of ongoing and intermittent left arm pain since the incident in June 2004, he considered that incident to be either the cause of the symptoms and need for ongoing surgery, or the main aggravating factor leading to surgery. He thought that the operations may have contributed to the development of her radiculopathy.
Dr Mourad told the Tribunal that Ms Solman had pre-existing cervical spondylosis, of which the 2004 incident was only a temporary aggravation. He said that various factors, such as her age and body mass index, put Ms Solman at higher risk of cervical spondylosis, and added:
I really don’t think that a fall whereby you hit your head as you’re trying to enter a vehicle would actually cause or aggravate cervical spondylosis.
Under cross-examination, Dr Pillemer agreed that he would change his opinion of the link between the 2004 incident and the onset of symptoms in 2012 if there was no reporting of any symptoms between mid-2005 and late 2012. He also agreed that, if Ms Solman continued to suffer symptoms of the injury he diagnosed arising from the 2004 incident, he would expect her to have consulted a doctor or other specialist about those symptoms between 2005 and 2012.
Finally, comments of Dr Ow-Yang from his report of 23 October 2012 were put to Dr Pillemer in this way:
Sorry, doctor, I’m just recalibrating the document here? --- Sure, sure.
Thank you for referring this 48 year-old lady who has quite severe left brachialgia. The pain initially started about six weeks ago as a tightness or ball in the base of her neck radiating towards her left scapula and trapezius muscles but then it progressed down the shoulder lateral arm and lateral forearm to affect the arm, index and middle finger.
Now, you’d accept that that history is not consistent with a continuation of symptoms from 30 June 2004, is it? --- Yes, I accept that.
And you accept that it’s not consistent with a continuation of symptoms from 27 June 2005, don’t you? --- If she was asymptomatic I would accept that.
Sure. And that kind of history that I have just read to you is more consistent with the natural progression of underlying cervical spondylosis than an incident that occurred on 30 June 2004, isn’t it? --- Yes. Yes.
THE RELEVANT LEGISLATION
Section 14 of the Act is the threshold provision entitling an injured employee to compensation:
(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.
An acceptance of liability under s 14 facilitates an injured employee access to other forms of compensation under the Act, including medical expenses (s 16), incapacity payments (s 19) and payments for permanent impairment and non-economic loss (ss 24 and 27).
Section 5A(1) defines the meaning of injury in the Act:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment; …
Section 24 deals with compensation for injuries resulting in permanent impairment. Relevantly, it provides:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
Section 27, dealing with compensation for non-economic loss, is expressed to operate where compensation is payable in respect of the injury under section 24.
CONSIDERATION
Does the Tribunal have jurisdiction to consider Ms Solman’s claims?
On 15 September 2004 Comcare accepted liability for a work-related injury sustained by Ms Solman. The injury in question was neck sprain.
Ms Solman contends that she continues to suffer the effects of her work-related neck sprain condition. She argues that she is therefore entitled to compensation pursuant to ss 16 and 19 of the Act. She further maintains that her condition has resulted in a permanent impairment and non-economic loss, with the consequence that she is entitled to compensation under ss 24 and 27.
Conversely, Comcare contends that the neck sprain condition injury affected her only temporarily after the accident of 30 June 2004, and its effects ceased about a year later, at the latest. It put to the Tribunal that the condition giving rise to the asserted need for medical treatment, incapacity payments and compensation for permanent impairment and non-economic loss is a different condition to the one Comcare accepted liability for in September 2004. Despite determinations accepting liability for medical expenses and incapacity in the period from 2012 to 2015, Comcare contends that it is now entitled to make new findings of fact, to the effect that that Ms Solman ceased suffering from the effects of her 2004 injury on or around 13 July 2005: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
In the course of the Tribunal hearing, counsel for Ms Solman advanced the argument that the Tribunal could consider that her present entitlement to compensation under the Act arises from an injury resulting from the spinal fusion surgery in January 2014. Counsel characterised this either as an aggravation of the Applicant’s cervical spondylosis or as an entitlement arising pursuant to s 4(3), dealing with injury resulting from medical treatment of an injury. In submissions made subsequent to the end of the hearing, Ms Solman sought the opportunity to lead further evidence in this regard; the Tribunal refused this request.
If the condition from which Ms Solman is presently suffering, and which is generating the need for medical treatment, incapacity payments and so on, is indeed a different condition to neck sprain, the Tribunal has no jurisdiction to determine any claims in relation to that new condition in the absence of a determination of liability under s 14. This is because the Act provides a mechanism (set out in Part VI of the Act) by which liability is established, and a condition which has not passed through the process of consideration so provided for cannot be the basis for review by the Tribunal.
In Lees v Comcare(1999) 56 ALD 84 at 91, Wilcox, Branson and Tamberlin JJ observed:
[32] Pt VI of the Act is headed “Reconsideration and Review of Determinations”. It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.
With respect to the powers and discretions that may be exercised by the Tribunal, their Honours went on to conclude:
[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
Similarly, in Comcare v Muir [2016] FCA 346 the Federal Court considered whether the Tribunal had jurisdiction to review a claim for compensation which had been reformulated by the applicant between the consideration and reconsideration stages in Part VI. Flick J concluded that it did not, saying (at [37]):
Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.
The Tribunal must therefore determine whether the condition Ms Solman continues to suffer from – or at least, the condition she suffered from at the date of her workers compensation claim on 22 December 2015 – is the already-accepted neck sprain condition or is another condition. Unfortunately for Ms Solman, the weight of evidence suggests that it is indeed another condition.
In June 2013 Professor Khurana, a neurosurgeon, diagnosed her as suffering cervical spondylosis. Dr Mourad, an orthopaedic surgeon, agreed with that diagnosis in a report of February 2016, adding that it was an age-related process. Occupational physician Dr Douglas diagnosed degenerative cervical spondylosis in August 2015. In February 2013 urologist Dr Ow-Yang adopted a working diagnosis of right C2/3 facet arthritis in combination with right C6 and bilateral C7 nerve root compression, which he described as essentially degenerative. Ms Solman’s GP, Dr Kamath, offered a working diagnosis of Facet Joint Arthritis in June 2013. Radiology reports in this period refer variously to cervical spondylosis, facet joint arthropathy and degenerative change. Notwithstanding the variation in diagnoses, all of these opinions concluded that her condition is essentially degenerative in nature.
Only Dr Pillemer, orthopaedic surgeon, appeared to take a different approach. His diagnosis was a little difficult to pin down. In his evidence to the Tribunal, he referred to nerve root involvement, that is, radiculopathy, but he also appeared to accept that her presenting condition was an expression of her 2004 injury. However, this diagnosis, he clarified under cross-examination, was based on her having reported symptoms of neck and back pain in the period between 2005 and 2012. He agreed that if she had been asymptomatic during this period her presenting condition would now be more consistent with the natural progression of underlying cervical spondylosis.
As is explained in more detail below, the Tribunal finds on the factual evidence that Ms Solman was asymptomatic between mid-2005 and late 2012, and as such concludes that the medical evidence is unanimous in suggesting that she now suffers either from cervical spondylosis or from an arthritic condition, either of which are essentially degenerative in nature. The Tribunal is reinforced in this conclusion by the observation that the 2004 injury was in the nature of a frank injury, falling within the description of an injury (other than a disease) pursuant to s 5A(1), whereas her present condition is best characterised as an ailment pursuant to s 5B.
There is evidence to suggest that the frank injury in 2004 has contributed to the onset of her present ailment. Nonetheless, that ailment is a different condition to the injury accepted in September 2004 by Comcare. Madgwick J in Abrahams v Comcare [2006] FCA 1829 observed (at [21]) that:
Nothing is more common than that medical diagnoses change and evolve, or are or become various.
This is not such a case, however. Though affecting the same part of her body as the frank injury of 2004, the cervical spondylosis (or arthritis) of today is descriptively and qualitatively different to that injury.
The Tribunal has no jurisdiction to consider a claim for incapacity or impairment arising from cervical spondylosis or arthritis. Similarly, it has no jurisdiction to consider a claim relating to an injury resulting from the spinal fusion surgery in January 2014 or an aggravation of cervical spondylosis. Neither condition has been fully considered by the mechanisms set out in Part VI. An injury resulting from medical treatment of an injury under s 4(3) is a separate and distinct injury to the one giving rise to the treatment; it follows that a separate determination under s 14 must be made: Portors and Comcare [2017] AATA 2166 at [93].
Counsel for Ms Solman pointed out to the Tribunal that Comcare had rejected a claim for cervical spondylosis in July 2013 on the basis that her condition then was characterised as a worsening of symptoms of your already accepted condition. The argument, as I perceive it, was that Ms Solman was disadvantaged by relying upon Comcare’s characterisation of her condition in not pursuing reconsideration under s 62 at that time, a step which would have conferred jurisdiction on the Tribunal to now consider that condition. I sympathise with Ms Solman’s contention, and have considered whether some allowance can be made for that disadvantage. However, a lack of jurisdiction is something that no procedural step by the Tribunal can remedy. It is, inevitably, fatal to a claim proceeding.
In his written submission, counsel for Ms Solman maintained that it is for the Tribunal itself to assess the true scope of a claim under the Act and to conduct its review on that basis. However, that is precisely what the Federal Court in Muir determined the Tribunal is not entitled to do. Flick J there noted (at [34]) that The central question [is] the claim as made. Here, the claim made to Comcare by Ms Solman was not for aggravation of cervical spondylosis, nor for an injury arising out of spinal fusion surgery. She did make a claim for cervical spondylosis without myelopathy, but did not seek reconsideration of Comcare’s rejection of that claim. In the absence of that crucial step it is as if the claim itself was never made. None of these conditions qualify for review by the Tribunal.
Counsel for Ms Solman submitted, following the conclusion of the hearing, that she should be granted leave to provide the Tribunal further evidence as to the material given to, received by, and considered by the Respondent and the primary and reconsideration decision makers. The nature of that further material was not elaborated upon in the written submission. I assume that the material is designed to establish what her counsel calls the true scope of Ms Solman’s claim. However, I reiterate that the true scope of the reviewable claim must be viewed through the prism of s 14. The only liability accepted by Comcare pursuant to that section, and reviewable by the Tribunal, is for neck sprain. The submission of material which might have suggested liability for some other condition cannot broaden the ambit of her accepted condition, in the absence of a fresh s 14 determination.
Did the 2004 injury contribute to Ms Solman’s present condition?
Although the Tribunal, for the reasons set out above, has no jurisdiction to consider this question, some observations might be usefully made on the evidence in this regard. This is because I perceive that Ms Solman might be granted an extension of time to lodge a fresh application for cervical spondylosis or for an injury arising under s 4(3).
The Tribunal notes that the Act, as it stood in 2004, provided that a worker was entitled to compensation where employment contributed to a material degree to an injury. That threshold – lower than contribution to a significant degree – is preserved for injuries occurring prior to 13 April 2007: see Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007. If Ms Solman is able to show that a cervical spondylosis condition occurred before 13 April 2007, she would need to show only that the 2004 work-related injury made a material contribution to the onset of that condition.
There was evidence before the Tribunal supporting the conclusion that the 2004 incident contributed to the condition which first manifested itself in late 2012 (the 2012 condition). Her GP, Dr Kamath, opined in June 2013 that:
…an injury can predispose to an early onset of arthritis in the joint. So the injury Julie sustained at the age of 40 might explain her symptoms at present, aged 49.
In January 2015 Dr Khurana expressed the view that the 2004 incident aggravated likely underlying cervical spondylosis, making it symptomatic and progressive. In similar vein Dr Ow-Yang in June 2013 thought:
It is entirely plausible that a progression of facet joint arthropathy at the C2/3 level as well is changes at the C5/6 and C6/7 levels seen on most recent MRI may be caused by the injury that occurred in 2004.
Dr Pillemer’s view was that Ms Solman suffered an injury to her cervical spine on 30 June 2004. He opined that the symptoms he observed in October 2016 were due to that injury.
The views of these doctors stood against that of Dr Mourad, who told the Tribunal:
I really don’t think that a fall whereby you hit your head as you’re trying to enter a vehicle would actually cause or aggravate cervical spondylosis.
However, the evidence was somewhat more finely balanced than the above juxtaposition might imply. In his evidence before the Tribunal, Dr Pillemer conceded that his opinion was based on the premise that Ms Solman had reported back and neck symptoms in the period 2005-2012. He agreed that his opinion would change if she had not so reported. It is unclear to what extent the other doctors, whose evidence was tendered but who were not called, might have changed their view if they had been told that she was asymptomatic during that period. Dr Khurana noted in June 2013 that she was overall okay between 2004 and 2012, but made no similar observation in January 2015 when he found that 2004 incident aggravated her spondylosis.
In determining to which side of the ledger Dr Pillemer’s evidence should be placed, the Tribunal would be required to determine whether Ms Solman was indeed asymptomatic between 2005 and 2012. On the balance of probabilities, I consider that she was.
Her evidence was that she experienced neck/back pain throughout this period, and that medication and treatment had only limited benefit in managing that pain. She told the Tribunal that she experienced pain in varying degrees in this period, always in her neck and sometimes in her shoulders. She took painkillers and underwent Bowen therapy on occasions. Physiotherapy provided limited relief. Her pain, she said, was intermittent. She managed to live with her pain; she got on with life.
Her husband’s evidence, similarly, was that she was eventually in constant pain. He said We just got on with things. He explained that, because of a shortage of bulk billing doctors where they lived, she tended not to run off to the doctor complaining all the time, we just deal with it.
This evidence, however, is difficult to reconcile with the medical records. Those records suggest that Ms Solman did indeed attend on doctors, fairly regularly, during this period, for a variety of ailments and conditions. It is difficult to understand why – if the records are to be believed – she never referred to her constant pain during these consultations. It is also difficult to understand why she made no claim against her accepted condition for physiotherapy, chiropractic or Bowen therapy in this seven-year period. She told the Tribunal it’s not in my nature to do that; she had, however, retained solicitors and lodged compensation claims, making this reticence to exercise her rights difficult to accept.
The Tribunal also notes that she seems to have told doctors from September 2012 onwards that her pain was of recent origin. This is hard to reconcile with her claim of pain in the same region of her body prior to September 2012.
On the balance of probabilities the Tribunal, if it had jurisdiction, would find that Ms Solman was asymptomatic as to her accepted condition between 2005 and 2012. On that basis, it would also find (again on the balance of probabilities) that the thrust of Dr Mourad and Dr Pillemer’s evidence was that the 2004 incident did not materially contribute to the 2012 condition. In reaching a decision on any entitlement to compensation in this eventuality, the Tribunal would attach greater probative weight to the live evidence of witnesses over the untested evidence of other doctors.
It is more difficult to speculate on what the Tribunal would find on a claim pursuant to s 4(3) for an injury arising from medical treatment. This is because this issue was not raised prior to the hearing and not fully ventilated in that setting.
CONCLUSION
The Tribunal has found that the condition Ms Solman presently suffers from – being the condition she suffered from on 22 December 2015, the date of her claim under ss 24 and 27 – is a different condition to her already-accepted neck sprain condition. Ms Solman is entitled to compensation under those sections for an injury [which] results in a permanent impairment. It is the injury which unlocks the compensation, not the impairment: Canute v Comcare 226 CLR 535 (at [10]). The Tribunal is not persuaded that her neck sprain condition has led to any permanent impairment. Accordingly, the Tribunal must affirm Comcare’s decision of 12 April 2016 denying liability for permanent impairment and non-economic loss under ss 24 and 27 (matter 2016/2636).
Similarly, the Tribunal concludes that Comcare has no present liability under ss 16 and 19 for Ms Solman’s neck sprain condition. The treatment expenses and incapacity to work which she now faces are the result of a different condition. It follows that the reviewable decision of 21 June 2016, denying liability under those sections, must be affirmed (matter 2016/3431).
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 9 January 2018
Date(s) of hearing: 18 April 2017 and 9 November 2017 Date final submissions received: 20 December 2017 Counsel for the Applicant: Mr Karl Pattenden Solicitors for the Applicant: Slater and Gordon Lawyers Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: McInnes Wilson Lawyers
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