Stone and Comcare
[2005] AATA 1182
•1 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1182
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/55
GENERAL ADMINISTRATIVE DIVISION ) Re FRANCIS STONE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date1 December 2005
PlaceSydney
Decision The decision under review is affirmed. [SGD] Dr J D Campbell Member
CATCHWORDS
WORKERS’ COMPENSATION – Work related back injury in 1968 - Return to work and other activities for approximately 35 years - Complaint of low back pain 2003/2004 - Degenerative condition lumbar spine and osteopenia - Claim for compensation for work contributed to current low back condition – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 24, 27, 124
Commonwealth Employees’ Compensation Act 1930-1970 sections 9, 12, 16 and the Third Schedule Part II
REASONS FOR DECISION
1 December 2005 Dr J D Campbell, Member 1. Mr Stone was born on 22 March 1920. In 1968 Mr Stone was a class 6 Clerical Officer employed by the Department of Trade, now incorporated within the Department of Foreign Affairs and Trade. Mr Stone commenced employment with that Department on 23 December 1965, having previously served with the RAAF from 1939 – 1945, and later employed in the records and education section of the RAAF between 1950 – 1965. Mr Stone left the employment of the Department of Trade on 4 July 1980.
2. On 20 December 1968 Mr Stone stated that he was sitting working at his desk when a cabinet full of books toppled and struck him on his back. Mr Stone was admitted to Canberra Community Hospital on 20 December 1968, where he was treated with bed rest and physiotherapy for a compression fracture of the upper surface of the body of the first lumbar vertebra with minor wedging. Mr Stone was discharged on 4 January 1969 and returned to work on full duties.
3. Mr Stone lodged a claim for compensation on 16 August 2004, in which he claimed that degenerative changes to his lumbar spine and osteopenia together with intermittent low back pain had been contributed to by the incident in 1968. Mr Stone’s claim was rejected on 13 October 2004, with this decision being affirmed by reconsideration on 6 January 2005.
issues
4. The relevant issues in this matter are:
(a) What are the diagnoses of Mr Stone’s low back conditions; and
(b) Should Mr Stone’s claim for compensation be admitted pursuant to section 16(1) of the Commonwealth Employees’ Compensation Act 1930-1970 (“1930 Act”); and if so
(c) Has the work related injury of 20 December 1968 made a contribution to the causation of the current conditions; and if so
(d) Is Mr Stone entitled to compensation?
findings
5. For the reasons stated later in this decision, I make the following findings:
(a) The diagnoses of Mr Stone’s low back conditions are degenerative changes to the lumbar spine (lumbar spondylosis) and osteoporosis of the lumbar spine.
(b) That there remains a significant issue in relation to whether or not Mr Stone’s claim for compensation should be admitted pursuant to section 16(1) of the 1930 Act. With the evidence currently before the Tribunal, I consider that Mr Stone’s claim for compensation should not be admitted pursuant to section 16(1) of the 1930 Act.
(c) That it is possible but not probable that Mr Stone’s injury in 1968 made a contribution to the causation of his lumbar spondylosis and osteoporosis; and
(d) That even if Mr Stone had been successful in his claim, no compensation would have been paid for incapacity (as he is not suffering any incapacity for work) nor would he have been entitled to payment for impairment under the 1930 Act or permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (“1988 Act”).
consideration and findings
6. A telephone hearing was initially held with Mr Stone on 1 August 2005. This hearing was adjourned to allow Mr Stone to consider his position. Mr Stone later advised that he was seeking an opinion from Professor Ghabrial, a Consultant Orthopaedic Surgeon. His report was forwarded to the Tribunal in early October 2005. At a directions hearing on 21 October 2005 Mr Stone requested that the matter be finalised with the material in existence and without recourse to a further hearing, in the view of the apparent costs and difficulties associated with what appeared to be a less than positive likely outcome as regards the payment of any compensation.
mr stone’s low back conditions
7. Mr Stone detailed to the Tribunal that he was transferred by ambulance to Woden Hospital (“Canberra Community”) on 20 December 1968 following his injury at work. He remembers that “he did well” after admission and within a few days his mobility and flexibility were restored. He remained in hospital for 14 days as there was no one at home to look after him. Mr Stone stated that he returned to work on full duties, and that “he felt alright” as evidenced by the fact that he was back playing tennis on a weekly basis after one month, as well as undertaking other activities including walking, dancing and yoga.
8. Clinical notes from the Canberra Community Hospital reveal that a plain X-ray of the lumbar and thoracic spine taken on 20 December 1968 demonstrated “a compression fracture of the upper surface of the body of the 1st lumbar vertebra with minor wedging. There is possibly also a compression fracture of the upper surface of the body of 11th [thoracic] and a further lateral film of this area would be advisable. There is no appreciable narrowing of any of the dorsal or lumbar disc spaces” (Dr Pinner, Consultant Radiologist).
9. After discharge Mr Stone detailed a trouble free lower back symptomatology until some three or four years prior to the hearing, when he experienced intermittent low back pain associated with a worsening kyphosis, but not experiencing any problems with flexibility of low back movements. Mr Stone detailed his work activities following his cessation of work with the Department of Trade in July 1980 to include accounting work in the motor industry, and life assurance work for three years. Since 1995 Mr Stone stated that he had several temporary positions, has been studying Japanese and has taught English in Japan annually on several occasions.
10. Mr Stone was also particular in detailing that he left the Department in 1980 both because he was disgruntled over a failure to secure promotional opportunities and his wish to move to Nelson Bay to live. Mr Stone also stated that he had no other problems with his back until those of which he now currently complains and during his earlier years he had undertaken such sporting activities as soccer, Australian Rules and swimming.
11. In a report dated 16 August 2004 (T10) Dr Clark, treating General Practitioner, noted that he had referred Mr Stone to John Ivancic, a Chiropractor on 1 July 2004. A plain X-ray of the thoracolumbar spine taken on 5 July 2004 was reported by Dr Le Roux, Consultant Radiologist, as showing “anterior wedging denoting a previous compression fracture of L1. Moderate signs of spondylosis. Dextroscoliosis of the thoracolumbar spine”. Dr Le Roux also noted some verbal body osteopenia (T7).
12. On 22 July 2004, Dr Wierna, Consultant Radiologist, reports that a CT examination of the L4 and L1 vertebral levels reveals “spondylotic changes at both scanned levels seen on an osteoporotic background. The sclerotic focus within L4 is due to a dense spur on the right lateral aspect of the vertebral body” (T8).
13. In a report dated 3 August 2004 (T9), Dr Epstein, Consultant Endocrinologist, reported that, after reviewing the various X-rays and the results of a bone scan dated 30 July 2004 (T18), Mr Stone was suffering from spinal osteoporosis.
14. In a report dated 5 May 2005 (Exhibit R2), Dr Maxwell, Consultant Orthopaedic Surgeon, concluded having reviewed the clinical history and examined Mr Stone that Mr Stone was suffering from:
· Degenerative changes in the lower lumbar spine, namely lumbar spondylosis
· Osteoporosis
· Slightly increase dorsal kyphosis due to the old compression fracture
15. In a report dated 29 September 2005 Professor Ghabrial concluded that Mr Stone has some degenerative changes in his lumbar spine (lumbar spondylosis), osteoporosis and altered mechanism of the spine (dorsal kyphosis).
16. In the light of such evidence I conclude that Mr Stone:
(a) suffered a wedge fracture to his L1 vertebral body as a consequence of the work related incident on 20 December 1968;
(b) following hospitalisation and rest for a fortnight after the injury in 1968, Mr Stone regained full function of his lower back and was without any low back symptoms for approximately 35 years;
(c) that onset of intermittent low back symptoms commenced prior to him seeing Dr Clark on 1 July 2004 and that his current low back symptoms are due to degenerative changes in his lumbar spine (lumbar spondylosis). I would also conclude that Mr Stone has a dorsal kyphosis and suffers from spinal osteoporosis.
admissibility of claim
17. The incident occurred on 20 December 1968. The incident occurred at work (per hospital notes and Mr Stone’s evidence). Mr Stone was taken by ambulance from his place of work to the hospital. Mr Stone speaks of enquiries being conducted as to the cause of the accident upon his return to work. From this material it would appear that the employer could be said to have been served with notice of the accident.
18. In relation to section 16(1) of the 1930 Act there remains the issue of whether a claim for compensation was lodged within the necessary six month time frame. It is evident from the material before the Tribunal that Mr Stone did seek legal advice from Abbott Tout Creer & Wilkinson Solicitors (T4, T5). It is also evident from Mr Stone’s evidence that he did not recall lodging a claim for compensation and that he had formed a view that Abbott Tout Creer & Wilkinson were acting for both him and the Department. Nevertheless I also note that Mr Stone is also of the view that he may have made a claim for compensation or alternatively he was orally advised by his solicitors that he could lodge a claim if his back condition deteriorated. Mr Stone also acknowledges that such a claim may not have been pursued because of an absence of lump sum payments pursuant to the 1930 Act for back impairments.
19. I also note that the Department has destroyed Mr Stone’s employment records once he turned 75 years of age. Further I acknowledge the core of the Respondent’s argument that they are prejudiced by the late claim (2004) in the absence of a claim having not been made within the six months period as required. Further I acknowledge the Respondent’s argument that Mr Stone has not detailed any material or circumstance either pointing to a mistake or any other reasonable cause, as to why he did not lodge a claim within the six month time frame. Such matters are particularly relevant in the light of circumstances that Mr Stone had sought and received legal advice at that time.
20. I acknowledge that without further enquiry I am unable to take this issue further. As it stands the Respondent’s submissions on this issue remain essentially unchallenged by Mr Stone, and without further material from him the issue of admissibility of his claim under section 16(1) of the 1930 Act would be denied.
issue of contribution
21. If, in the circumstances, Mr Stone’s claim for compensation for his low back injury in 1968 had been admitted, there is little doubt that the compression fracture of his L1 vertebral body resulted from an accident in his workplace. As such it is evident that such circumstances would satisfy the ‘arisen out of or in the course of employment’ requirement in section 9 of the 1930 Act, and that fracture of his L1 vertebral body would have been accepted as compensable under the 1930 Act. Such acceptance of liability would have resulted in compensation payments for limited medical expenses and incapacity payments pursuant to the 1930 Act. Further it is to be noted that no compensation is payable for back impairment pursuant to section 12 of the 1930 Act, and The Third Schedule Part II of that same Act.
22. In addressing Mr Stone’s current conditions, namely lumbar spondylosis and osteoporosis in relation to liability to pay compensation, it is necessary to find on the balance of probabilities that the cause of the two current disease processes have been contributed to in a material degree by his employment. In this matter this translates to whether Mr Stone’s two disease conditions of lumbar spondylosis and osteoporosis have been contributed to in a material degree by his fractured L1 vertebral body, in the circumstances where liability to pay compensation for that latter injury has been accepted.
23. In addressing this issue, I note the following opinions:
(a) the opinion of Dr Clark in his report of 16 August 2004, that it was a reasonable theory that Mr Stone’s current low back pain may have been related to his back injury in 1968.
(b) the opinion of Mr Ivancic in his two reports dated 19 August 2004 (T11) and 4 August 2005 that “it can be successfully argued that as a result of previous trauma and biomechanical dysfunction, that this has predisposed him to the excessive degenerative changes in his lumbar spine”.
(c) the opinion of Professor Ghabrial detailed in a brief report of 29 September 2005 “that with altered mechanics of the spine, as in his case, degenerative changes could occur over a number of years”. Professor Ghabrial also believes osteoporosis has aggravated the problem, namely the back symptoms.
(d) the opinion of Dr Maxwell in his report of 5 May 2005 (Exhibit R2) that:
·The fracture at L1 had settled.
·The recent low back symptoms are due to his underlying degenerative changes of his lower lumbar spine.
·In the absence of stress fractures osteoporosis is not itself a normally painful condition.
·He has a slightly increased dorsal kyphosis due to his compression fracture.
·That the diagnosis of his condition is mild back pain secondary to spondylosis.
·That the spondylosis is essentially degenerative, with the spondylosis not being caused or contributed to either by the nature and conditions of his employment nor the specific work related injury of 20 December 1968.
·That the fact that Mr Stone had been virtually asymptomatic for 35 years indicates that the effects of the 1968 accident had resolved.
·That the effects of the injury to the thoracolumbar spine would have ceased when he became asymptomatic (two to three months after the original injury in 1968).
24. In addressing the issue of contribution I note that Dr Clark expresses his opinion in terms of “may”, connoting a possibility. Similarly I note Professor Ghabrial expresses his opinion in terms of “could” - again connoting a possibility. Again I note Mr Ivancic expressing his opinion in terms of ’it could be argued’, again raising a possibility.
25. While each of the three opinions referred to in the previous paragraph raise the contention of the possibility of a contribution, I am satisfied that the raising of a possibility does not meet the requirements of being satisfied on the balance of probabilities, that is it is more likely than not that a contribution was made. In noting the history narrated by Mr Stone and the opinion expressed by Dr Maxwell, my finding that on the balance of probabilities Mr Stone’s back injury in 1968 has not made a contribution in a material degree to his current diseases in 2004 has been reinforced. In so stating, I note and acknowledge the reasoning nominated by Dr Maxwell, which has been described in some detail in his report. I also would comment that the lack of clinical analysis and detail in Professor Ghabrial’s report did little to assist me in developing an understanding of the clinical particulars necessary to promote resolution of the compensation questions in issue. I also note Mr Stone’s age, being in his early 80’s, at which time his current complaints of low back pain commenced.
26. In such circumstances I conclude that liability to pay compensation for the lumbar spondylosis and osteoporosis does not exist on the material currently before me.
payment of compensation
27. In circumstances where liability to pay compensation had been determined, the amount of compensation payable would be assessed pursuant to section 124 of the 1988 Act. In essence this section determines that the amount of compensation payable to Mr Stone is under the 1930 Act.
28. In assessing the issue of incapacity payments I note the history of Mr Stone’s current activities and the opinion of Dr Maxwell that Mr Stone does not have incapacity for work as a result of his workplace injury. In particular I note the travel and employment activities of Mr Stone and his own opinions regarding his incapacity for work over the last five years. As a consequence I would conclude that Mr Stone does not suffer any incapacity for work as a consequence of work related conditions in circumstances as specified.
29. In assessing the issue of payments for medical treatment I note that Dr Maxwell is of the opinion that Mr Stone does not require any ongoing medical treatment as a result of the injury sustained on 20 December 1968. Similarly I note that Professor Ghabrial is of the opinion that treatment is not necessary for his back problem apart from physiotherapy and mobilisation exercises. In such circumstances, if liability had been accepted, payment for ongoing necessary medical treatment may have been payable in accordance with section 124 of the 1988 Act.
30. In relation to the issue of lump sum payment for impairment or permanent impairment, Mr Stone would have had to demonstrate that his 2004 low back condition was a new condition and not a deterioration of the 1968 condition for a lump sum payment to be considered under the 1988 Act. In such circumstances it would be necessary for Mr Stone to demonstrate that he had an increase 10 per cent whole person impairment post 1988. Such circumstances and material currently before the Tribunal, would not allow me to make any findings on any of these issues as the material does not canvas such matters.
31. Finally I would again repeat that lump sum payments for back spinal conditions impairments were not payable under the 1930 Act and hence Mr Stone would not receive a compensation payment for impairment to his back under the 1988 Act, as the matter now stands.
summary
32. I have detailed as best I can the difficulties facing Mr Stone as a consequence of analysing the material currently before me. Unfortunately there are a significant number of hurdles for Mr Stone to overcome, and even if he were successful in so doing his entitlements to compensation payments for incapacity and impairment would be nil, unless further evidence was adduced to permit findings that the lumbar spondylosis and osteoporosis were new conditions post 1988, that the assessment of any permanent post 1988 impairments was greater than 10 per cent and that the original 1968 injury had on the balance of probabilities made a material contribution to the two post 1988 diseases.
determination
33. The decision under review is affirmed.
I certify that the preceding 33 paragraphs are a true copy of the decision and reasons for decision of Dr J D Campbell, Member:
Signed: A. Garcia
..................................................................................……………………………….Associate
Date of Hearing 1 August 2005
Date of Decision 1 December 2005
Representative of the Applicant self represented
Counsel for the Respondent Mr A. Reilly
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