Stewart and Comcare (Compensation) - [2023] AATA 1904

Stewart and Comcare (Compensation) [2023] AATA 1904 (30 June 2023)
Division:GENERAL DIVISION
File Number(s): 2020/1757 & 2020/4107
Re:Yvonne Stewart
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:30 June 2023
Place:Brisbane

The reviewable decisions are affirmed.
.........................[SGD].........................
Deputy President J Sosso

Catchwords
COMPENSATION – workplace injury – journey claim – lumbar and cervical spine injuries – aggravation of underlying degenerative spinal condition – liability accepted – whether liability for condition has ceased – whether ongoing entitlement to claim medical expenses – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Deputy President J Sosso
30 June 2023

The issue before the Tribunal in this matter is whether Ms Yvonne Stewart (the Applicant) continues to be afflicted by the injuries she suffered to her neck and lower back after falling at approximately 7:50 am on 13 August 2002 at the Surrey Hills Railway Station whilst on her way to work with the Department of Defence – Exhibit 1 T6 p. 48.
On 19 August 2022, the Applicant made a claim for “musculo-ligamentous strain of neck” – Exhibit 1 T6 pp. 47 – 54. The Applicant described the incident at the Surrey Hills Railway Station as follows – Exhibit 1 T6 p. 50:
“When walking on downhill slope, feet slipped on wet pathway and I fell flat onto my back.”
The Applicant described the injury/illness suffered as “sore neck & hand, bruising to hand & back”. The parts of the body affected were said to be “back, neck, left hand” and the way in which the injury affected her was “sore neck – discomfort (minimal)” – Exhibit 1 T6 p. 49.
On 14 August 2002 the Applicant was examined by her treating GP, Dr Sandra Ray, who made the following observations – Exhibit 7 p. 15:
“fell on her way to work yesterday at Surrey Hills station fell on back, Sx now pain with turning neck and left shoulder blade bruised feels unwell
O/E painful restriction of all neck movements
good range of back movements
bruise in area of left axilla”.
On 6 September 2002 Comcare accepted the Applicant’s “neck sprain” as compensable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) –

Exhibit 1 T7 pp. 55 – 56.
On 12 February 2003 Comcare also accepted liability for the Applicant’s condition of “L4/5 disc bulge” also as a result of the accident on 13 August 2002 – Exhibit 1 T9 p. 59.
On 28 August 2007, Senior Member McCabe (as he then was) of the Tribunal, by consent, determined that the Applicant suffered from 10% permanent impairment pursuant to

Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment as a consequence of her neck sprain and L4/5 disc bulge condition – Exhibit 3 pp. 13 – 14.
On 23 October 2008…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart and Comcare (Compensation)

Details

AGLC: Stewart and Comcare (Compensation) [2023] AATA 1904
Case: [2023] AATA 1904
Decision Date: 30 June 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare regarding the Applicant's entitlement to claim medical expenses for lumbar and cervical spine injuries. The Applicant had accepted liability for a workplace injury sustained on 13 August 2002, which involved a fall at a railway station that aggravated an underlying degenerative spinal condition. The core dispute revolved around whether the Applicant's liability for the condition had ceased and, consequently, whether she retained an ongoing entitlement to claim medical expenses. The decision was made by Deputy President Sosso P of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the Applicant's ongoing entitlement to claim medical expenses for her spinal conditions had ceased, and if so, on what basis. This required the Tribunal to consider the nature and extent of the Applicant's injuries, the impact of the 2002 accident on her pre-existing degenerative spinal conditions, and the medical evidence presented by both the Applicant and Comcare. The Tribunal also had to assess the reliability of the medical evidence, particularly in light of concerns raised about the circumstances of the Applicant's assessment by Dr Khurana and the Applicant's own recollection of past events.

The Tribunal considered various medical reports and the Applicant's testimony. It noted that the Applicant had a long history of spinal pain and degenerative changes predating the 2002 accident. While acknowledging the Applicant's honesty and candour, the Tribunal found that her recollection of past events was understandably not always precise, a common experience for individuals recalling events from decades prior. The Tribunal also considered the evidence of Dr Khurana, whose report was subject to scrutiny due to the Applicant's concerns about the assessment environment. Ultimately, the Tribunal found that the medical evidence regarding the nature and impact of the 2002 accident on the Applicant's spine was mixed, with some earlier reports suggesting resolution of symptoms within months, while the Applicant maintained ongoing recurrent pain. The Tribunal also noted opinions from other medical professionals that suggested the degenerative changes might have occurred independently of the falls.

The Tribunal affirmed the decisions under review, indicating that it found against the Applicant's claim for ongoing entitlement to medical expenses. This outcome suggests that the Tribunal concluded, based on the evidence presented, that the Applicant's liability for the condition had ceased or that the ongoing symptoms were not sufficiently linked to the accepted workplace injury to warrant continued entitlement to medical expenses.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 3 July 2020, the Applicant applied to the Tribunal for a review of this decision – Exhibit 1 T4a pp. 29 – 31, 2020/4107.BACKGROUND The Applicant was born in October 1953, and at the time of the Hearing was aged 69 years – Exhibit 1 4a p. 29. At the time of her 13 August 2002 accident, the Applicant was working with the Department of Defence. She tendered her resignation from the Department on 26 April 2005 to take effect from close of business 20 May 2005 – Exhibit 1 T10 p. 60. It would appear that the Applicant worked for the Commonwealth Government, off and on, since 1970 and commenced working with the Department of Defence in Melbourne around 1999 – Exhibit 1 T16 p. 76. The material presented to the Tribunal indicates that the Applicant was involved in a motor vehicle accident in 1974 – Exhibit 1 T6 p. 49. The Applicant prepared a statement dated 26 September 2006 in which she outlined, inter alia, a history of her neck and lower back symptoms from 1993 until 2006 – Exhibit 3 pp. 8 –12. In the statement, the Applicant states that in 1993, as she alighted from a car, she twisted her back. It took her two months to recover – Exhibit 3 p. 8 para 2. In 1999 the Applicant commenced working as a payroll officer with Deakin University. However, she resigned from this position within two months due to neck pain – Exhibit 3 p. 8 para 3. In June 2001 the Applicant “ricked” her neck when she slipped over when going to work. She did not make a claim for this injury, and stated that it resolved quickly – Exhibit 3 p. 8 para 4, Exhibit 2 ST15 p. 486. As previously noted, the Applicant slipped and fell when walking down a ramp at Surrey Hills Railway Station on 13 August 2002. The Applicant stated that she “landed heavily on my back and jarred my neck in the process” – Exhibit 3 p. 8 para 5. On 10 December 2002 a CT of the Applicant’s lumbar spine was performed by Dr Marcus Loff. The following findings were made – Exhibit 1 T8 p. 58:“At L4/5, there is moderate broad based posterior disc bulge.This is associated with congenitally short pedicles and common facet joints, to produce mild to moderate central spinal canal stenosis with mild circumferential compression of thecal sac and traversing nerve roots…Mild to moderate central canal stenosis at the L4/5 level produced by a combination of bony and soft tissue elements…” A handwritten note on the CT report by Dr Sandra Ray (GP) states as follows:“The disc bulge will usually lessen over time.” The Applicant took recreation leave from the end of April 2003 until the end of August 2003 and during that time travelled with her partner throughout Queensland – Exhibit 2 ST12 p. 479:“During this time I travelled extensively, by 4WD mainly throughout Queensland. The trip included many of the normal tourist type activities including walking, swimming and driving. My partner did the majority of driving as on many occasions we were towing a caravan and I did not feel comfortable with this. It seems to be implied that I was responsible for much of the driving and this could have aggravated my condition. I suffered minimal problems with both my neck and back and when necessary took medication including panadeine forte however this was required on very few occasions.”

Evidence

Evidence Before The Court

The Tribunal agrees with Comcare’s submission, and proceeds accordingly.Medical evidence Comcare primarily relies on the 25 May 2021 report and oral testimony of Dr Khurana. As previously noted, Dr Khurana prepared an extremely detailed report and he sets out at length the Applicant’s medical history and her responses to the various questions he asked of her at her assessment. One matter needs to be addressed at the outset. The Applicant specifically asked if she could have a support person with her when she was being assessed by Dr Khurana. This request was rejected. A Senior Associate with McInnes Wilson Lawyers (who represented Comcare) emailed the Applicant on 18 January 2021 and provided the following response to her request regarding a support person – Exhibit 3 p. 21:“We have made enquiry with MLCOA who have scheduled the assessment with Dr Khurana as to whether he will allow you to bring in a support person. We have been advised that Dr Khurana will not allow a support person in the assessment.We have also been advised that the main reasons are that in the past some support people have become quite aggressive/slanderous and because Dr Khurana wishes to avoid any intervention by a support person into the assessment process.We acknowledge this is not the answer you were hoping to receive, nevertheless, please let me know if you wish to discuss further.”[Emphasis in the original] At the Hearing Dr Khurana denied that he had refused to allow the Applicant to have a support, in fact he testified: “I always welcome support people to be present if someone brings them in, you know, within reason…I don’t have a policy of not allowing a support person…” – Tr. 16.3.2023 p. 57. The Applicant stated that not only was she denied the help of a support person, but contrary to advice she was given, Dr Khurana had a staff chaperone with him throughout the assessment. The Applicant stated that she did “not agree that I was informed of this as I would not have proceeded with the interview had I known” – ACS EVIDENCE para 1. It defies logic that McInnes Wilson Lawyers would have unilaterally rejected the Applicant’s request for a support person at her assessment with Dr Khurana, and given detailed reasons. The Tribunal formed the view that it is more likely than not that Dr Khurana did in fact inform the Senior Associate in the manner outlined in the email. While not much turns on this in terms of the ultimate disposition of the matter, it is patently clear to the Tribunal that the Applicant approached the appointment with Dr Khurana, and underwent the examination and assessment, in an emotional state and in a less than ideal environment. It is likely that she was more emotional than she would otherwise have been, and the assessment was conducted in stressful circumstances. The value of some aspects of Dr Khurana’s report is therefore not as great as they otherwise would have been. Accordingly, when Dr Khurana recounts that the Applicant’s recollection of her history was “rather vague and somewhat disjointed” (RCS para 26a), that she found it difficult to remember specifics without access to documents and was at times emotional, then it is necessary to put the examination carried out by Dr Khurana on 19 April 2021 in context.

Decision

Reasons for decision

It is not necessary to set out at length that testimony as it was consistent with the views expressed in his report. Dr Khurana was extensively cross-examined by the Applicant. Although the Applicant is not legally trained, she asked a series of relevant questions. Dr Khurana answered each of the questions posed in a direct and succinct manner. The Tribunal was impressed with the testimony of Dr Khurana. He clearly is a well-qualified professional and was an impressive witness.Conclusion The Tribunal has been assisted by the closing submissions of both parties. Comcare’s Closing Submissions, prepared by Ms Bindon, comprise a comprehensive and detailed critique of the medical evidence before the Tribunal. Ms Bindon very helpfully provides a summary of the testimony of Dr Khurana which comports with the Tribunal’s understanding of his testimony – RCS paras 27 – 33. The earlier “medical” evidence about the nature and impact of the 2002 accident on the Applicant’s lumbar and cervical spine is mixed. For example, Dr Selvaratnam, Physiotherapist, in his 20 August 2004 report, opined that the Applicant’s cervical and lumbar pain from the August 2002 incident had resolved within a few months – Exhibit 2 ST2 p. 444. The same opinion was expressed by Ms Lapeyre in her report of 2 September 2004, although both her opinion and that of Dr Selvaratnam would appear to be the recounting of the self-reporting of the Applicant – Exhibit 2 ST4 p. 446. It should be noted that the Applicant denies that her condition resolved after a few months of the August 2002 accident. In her statement of 5 January 2022, the Applicant claims that she continues to have “recurrent pain and disability since 2002 and this has continued at varying levels up to the present time” - Exhibit 6 para 22. An equivocal report was prepared by Dr Ray on 13 October 2004. As will be recalled, Dr Ray opined as follows – Exhibit 2 ST9 p. 458:“On 13.8.2002 Yvonne fell and may have aggravated pre existing degenerative disease of the cervical and lumbar spines. She may have suffered from soft tissue injuries. I think it is impossible to be more precise at this stage.” As Dr Ray was the Applicant’s treating GP, and not a specialist, it is entirely understandable why she would have given this qualified diagnosis. A further qualified opinion was given by Dr Brazenor in his report of 7 February 2005. In that report Dr Brazenor opined as follows – Exhibit 2 ST15 p. 488:“This lady has significant degenerative/cumulative injury changes at the lower two segments in her cervical spine and lower two segments of her lumbar spine. I consider the various falls described to me today may have contributed to these changes in Ms Stewart’s spine, but not necessarily. It is entirely possible that without any of those falls Ms Stewart’s spine might look exactly the same as it does on scan, and her disability may be indistinguishable from what it is today.” Dr King examined the Applicant a few months after Dr Brazenor’s report. As noted above, Dr King was of the opinion that the Applicant’s cervical spine condition was due to a combination of psychological factors (chronic pain syndrome), and, to a lesser extent, degenerative disc disease. However, Dr King opined that the Applicant was partially incapacitated for work and “that incapacity results from the injuries in 2002 and 2004” – Exhibit 1 T11 p. 63.

Ratio Decidendi

Legal Principle Established

The Applicant’s concerns with Dr Khurana’s report is dealt with in greater detail below.CONSIDERATIONIntroduction It is important, at the outset, to record that it is not in dispute that the Applicant has for some time been suffering pain and discomfort in her lumbar and cervical spine. A reading of the various medical reports and scans discloses that she has for many years been in pain and has required prescription medication. There is no suggestion from the material before the Tribunal that the Applicant has exaggerated her symptoms or attempted to mislead any of her treating clinicians. The Tribunal had the benefit of listening to the Applicant give evidence, albeit remotely. It was tolerably clear to the Tribunal that the Applicant attempted to answer the questions asked of her honestly and forthrightly. Understandably, the Applicant was, at times, defensive of her position, but the Tribunal has no reason to doubt the sincerity of her testimony. It is then, important in this context to focus at the outset on the Applicant’s recollection of key events, some of which occurred decades ago. The Tribunal was presented with a report dated 7 October 2021 prepared by Dr Swapna Sebastian, Consultant Neurologist. The Applicant saw Dr Sebastian because she was suffering from migraines. Dr Sebastian, in the course of her report, made the following observations – Exhibit 3 p. 34:“Yvonne tells me that her memory has been slowly getting worse. She forgets things mid-sentence. Short term memory seems to be the problem. Registration of recent events is an issue.” In addition to short term memory loss, it became clear during the Applicant’s testimony that she also had difficulty remembering key events that occurred many years previously. Quite properly, Comcare noted that this was understandable and entirely consistent with general human experience – RCS para 18. Comcare pointed out the various times the Applicant was unable to remember key information about previous accidents – RCS para 21. In response the Applicant made the following submission – ACS EVIDENCE para 24:“I agree that I have not been able to remember all details over a period of almost 50 years and would challenge anyone who has not got the benefit of having written records to refer to to [sic] remember all the details on which I was questioned. Especially when considering that I was quite distressed after being misled by the Respondent’s legal team in relation to having a support person with me during my “interview”’. I would submit that the Respondent has erred in suggestion that documentary evidence supports the more reliable basis and would argue the contrary.” The Tribunal draws no adverse inferences against the Applicant because her memory of events many years ago is not crystal clear; that state of affairs is common to most people. The Tribunal also does not draw any adverse inferences concerning the Applicant informing various treating medical professional about matters in the past which are contradicted by contemporaneous written evidence. As observed previously, the Tribunal formed a favourable opinion about the honesty and candour of the Applicant.