Thompson and Comcare
[2004] AATA 96
•4 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 96
ADMINISTRATIVE APPEALS TRIBUNAL ) N° V2002/506
GENERAL ADMINISTRATIVE DIVISION ) N° V2002/1316 Re
DAVID THOMPSON
Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member J.R. Dwyer
Miss E.A. Shanahan, Member
Date 4 February 2004
PlaceMelbourne
Decision 1. In matter V2002/1316, the Tribunal sets aside the decision under review. In substitution, the Tribunal varies the determination made on 9 October 2002 to provide:
(i) Mr Thompson continues to suffer from discogenic pain, which is contributed to in a material way by his employment; and
(ii) Accordingly, he continues to be entitled to compensation for incapacity under s 14, and to compensation for medical treatment under s 16, of the Safety, Rehabilitation and Compensation Act 1988.
2. The Tribunal orders, under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the costs incurred by Mr Thompson in this proceeding are to be paid by Comcare.
3. In matter V2002/506, the Tribunal affirms the decision under review.
[sgd] Mrs Joan Dwyer
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – low back discogenic pain – compensable back injury in 1992 – series of further incidents of back pain and injury in compensable and non-compensable circumstances – finding that continuing discogenic pain in October 2002 still contributed to by compensable injuries – low back discogenic pain a “disease” and “injury” as defined in s 4(1) of Safety, Rehabilitation and Compensation Act 1988 – continuing entitlement to compensation – decision set aside.
WORKERS’ COMPENSATION – entitlement to compensation for permanent impairment –impairment not permanent at time claim lodged – nor on evidence at time of hearing – appropriate to consider whether reviewable decision was correct at time it was made – decision affirmed.
WORKERS’ COMPENSATION – costs – one decision under review set aside – other decision under review affirmed – costs incurred in relation to decision set aside – order that applicant’s costs be paid by respondent.
Administrative Appeals Tribunal Act 1975 (Cth), s 37.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 4, 24, 27.Re Spreadborough v Comcare (1997) 47 ALD 785
REASONS FOR DECISION
4 February 2004 Senior Member J.R. Dwyer
Miss E.A. Shanahan, Member
INTRODUCTION
1. This hearing was a review of two reviewable decisions made by the Comcare under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. The first reviewable decision was made on 10 April 2002 (V2002/506, “the permanent impairment matter”). It affirmed a decision made on 16 January 2002 rejecting Mr Thompson’s claim for compensation for permanent impairment, under s 24 of the Act, resulting from a compensable back injury sustained on 6 April 2001.
3. On 12 April 2001, Mr Thompson lodged a claim for compensation in respect of the incident on 6 April 2001. On that form he described the incident as follows:
I was pouring boiling water into a cup of noodles when the witness (1) kicked me in the back of my left knee.
4. On 10 May 2001, Comcare advised Mr Thompson that his claim relating to “aggravation of displacement of intervertebral disc-lumbar”, the injury sustained as a result of the incident on 6 April, had been accepted as compensable.
5. Mr Thompson’s claim for compensation for permanent impairment was lodged on 16 November 2001. It was rejected on the ground that his doctor had stated, in part C of the claim for permanent injury, that he expected that the condition would stabilise in “1-2 years". That determination was affirmed at review on 10 April 2002.
6. In matter V2002/1316 (“the cease benefits matter”) the applicant has sought review of a reviewable decision of 27 November 2002. That decision affirmed a primary determination made on 9 October 2002 that, from 4 October 2002, Mr Thompson was no longer entitled to compensation in respect of the injury described as “aggravation of displacement of intervertebral disc-lumbar”. The reasons set out in the reviewable decision were as follows:
Having regard to the totality of the medical evidence currently available to me, I am satisfied the employee suffers lumbar degeneration that has not been caused or contributed to in a material degree by his Commonwealth employment.. I am also satisfied the employee suffered temporary aggravations of his underlying condition as a result of the incidents on 12 May 1992, 21 December 1995, 7 February 2001 and 6 April 2001 and that by November 2001 the work aggravations had ceased. I note the employee suffered a further debilitating aggravation on 6 April 2002 while at home that resulted in his hospitalisation under the care of Mr Wilde and I am satisfied that aggravation is a new injury that occurred in non-compensable circumstances.
THE HEARING
7. At the hearing, Mr M Gorton of Counsel appeared for Mr Thompson, and Mr I Gourlay of Counsel appeared for Comcare. Mr Thompson gave evidence, as did his partner, Ms Offen. Evidence on his behalf was also given by Mr King, an orthopaedic surgeon, Dr Brown, a treating chiropractor, Mr Johnson, one of Mr Thompson’s treating surgeons, and Dr Taverner, a treating anaesthetist who specialises in pain management. The respondent called Mr Shannon, an orthopaedic surgeon. The Tribunal had before it the documents (the “T‑Documents”), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, in each matter (T-PI and T-CB) and a volume of medical reports prepared by the applicant’s solicitor and referred to as the “Tribunal Book” (TB). Further documents were taken into evidence as exhibits during the hearing.
THE ISSUES
8. The Act provides in s 14(1) that compensation is payable in respect of an “injury” if it results in incapacity for work or impairment. Section 14(1) reads:
14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term “injury” is defined in s 4(1) of the Act as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The terms “disease” , “ailment” and “aggravation” are also defined in s 4(1). The definitions provide:
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
aggravation includes acceleration or recurrence.
9. There was no dispute that Mr Thompson does suffer from continuing low back discogenic pain. That was accepted by the respondent’s witness Mr Shannon (TB p141) and by Mr Talbot, a Consultant Orthopaedic Surgeon engaged by the respondent, in his report of 23 July 2002 (TB p134). However, Comcare, as set out in paragraph 6 of this decision, submitted that the ongoing pain was the result of an underlying degenerative condition, and that although Mr Thompson had suffered compensable aggravations in three separate incidents at work on 12 May 1992, 7 February 2001 and 6 April 2001, characterised as “lumbar back strain” in 1992 and as “aggravation of displacement of intervertebral disc-lumbar” in 2001, they had been temporary aggravations only, and had ceased to affect the underlying condition by 4 October 2002 (T-CB 53 p99). The respondent further submitted that the aggravation on 6 April 2002 did not arise in the course of employment and was not an “injury” as defined in the Act.
10. The respondent faced some difficulty in that no medical witness had clearly expressed the opinion that the compensable aggravations had a temporary effect only. Mr Shannon did write in his report of 8 October 2002 (TB p144):
4.He was suffering from a pre-existing condition on 07/02/2001 and 06/04/2001, but this condition could have been aggravated, and the aggravation was temporary.
However, he also wrote with regard to the impairment assessment, in the same report,
11.I do not believe that he has impairment to which employment is materially contributing, but he does have impairment in the low back. This is appropriately assessed under Table 9.6 at a maximum of 10% (loss of less than half the normal range of movement).
12.At a maximum, half of this impairment is reasonably attributable to his employment.
11. The respondent’s decision to cease compensation purported to rely on the opinion of Dr Talbot (T-CB 53 p98). However, Dr Talbot’s report of 23 July 2002 (TB p 134-140), following his medical assessment of Mr Thompson on 17 July 2002, did not state that Mr Thompson’s condition was not contributed to by the three relevant work related incidents. He said that the incidents were aggravations of a pre-existing problem.
12. Two issues which require determination are:
(i)The nature of Mr Thompson’s low back pain prior to 12 May 1992, when the first compensable injury occurred; and
(ii)Whether the incidents which occurred at work had ceased to contribute to Mr Thompson’s low back condition by 4 October 2002.
13. Before deciding those issues, it is helpful to set out a history of relevant incidents from the first compensable back injury in 1992 to the last incident in April 2002:
(i)Mr Thompson injured his back, when moving furniture in the furniture store at Airservices Australia, on 12 May 1992. His claim for compensation in respect of that incident was accepted by Comcare. Mr Thompson had medical and chiropractic treatment for a short time after that incident. On the day of the incident he reported it to his supervisor and saw a doctor (T-PI 8 p31). He also took things easy at work that day (T-PI 9, p32). He was certified unfit for work for one day on 13 May 1992 and claimed for three chiropractic treatments (R2).
(ii)In July 1997, Mr Thompson injured his back again at home. He was bending over to put his computer and his lunch in his briefcase, in order to go to work, when his back went into spasm. Although Mr Thompson said he had been working at home with permission at the time, no claim for compensation was lodged in respect of that incident, and it is not compensable.
(iii)While on holiday in Queensland in January 2001, Mr Thompson’s back “seized up” again while he was putting on his bathers. He attended a doctor in Queensland, but returned to work on 23 January 2001 on the expiry of his recreation leave.
(iv)The next incident occurred on 7 February 2001. Mr Thompson was teaching a professional development course at Airservices Australia. Another employee came up behind him and gave him a “knee drop”, i.e. he was struck in the back of both knees causing them to buckle under him. He suffered pain and was off work until 22 February 2001 (R3 and T-CB 12). The clinical notes of Dr Brown (A2) show that he had a relapse on 3 March 2001. He had very frequent chiropractic treatment during February and March 2001, until 2 April, when Dr Brown noted, “Good. Moved very easily”.
(v)Unfortunately, on 6 April 2001, another fellow employee kicked Mr Thompson in the back of his left knee. He again suffered severe pain in his back. Not surprisingly, he was also extremely angry that he had again been injured as a result of the action of a fellow employee. He had asked for preventative action to be taken in respect of the “knee drop” in February, but this had not occurred. After the April 2001 incident, a notice was distributed pointing out the danger of such behaviour (T-CB 13). Mr Thompson had rehabilitation treatment under Dr Widjaja from April to October 2001 (TB pp160-165).
(vi)On 6 April 2002, Mr T had an acute exacerbation of pain at home when he bent to pick something up from the floor. He was admitted as an in‑patient from the Accident and Emergency Department at Epworth. Mr Wilde took over his care, as Mr Johnson was away at the time, and arranged for a lumbar MRI. It was reported as demonstrating internal disc derangement at L3/4 and L4/5 without significant prolapse. Mr Wilde referred Mr Thompson back to Dr Widjaja and also to Dr Taverner who saw him on 20 June 2002. Again the recovery was prolonged and very difficult.
Issue 1: The nature of Mr Thompson’s low back pain prior to 12 May 1992, when the first compensable injury occurred
14. Mr Gorton, at the commencement of the hearing, tendered a report dated 1 December 2003 from Dr Brown, a chiropractor (A1). Dr Brown wrote that he had been treating Mr Thompson since February 1991, and that, although he had required treatment for back problems prior to 12 May 1992, when the first compensable incident occurred, “his symptoms were greatly increased” from that time (A1 p2). In his report, Dr Brown referred to X-rays of the lumbar spine which he had requested in January 1992. He wrote that the X-rays demonstrated minimal degenerative narrowing of the L3-L4 and L4-L5 disc spaces. Dr Brown referred to “aggravations” which occurred in 1997, and in December/January 2001, in non-compensable circumstances. He also wrote that two further incidents which did occur at work in 7 February and 6 April 2001 “saw a vast escalation of his symptoms including extensive sciatic nerve irritations to the foot” (A1 p2).
15. The report of the X-rays on 13 January 1992 was as follows:
LUMBO-SACRAL SPINE
There is slight lumbar scoliosis convex to the left in the lower lumbar region. There is minimal narrowing of L3-L4 and L4-L5 disc space with osteophytic lipping of the adjacent lumbar vertebral margins. No bone or joint injury is seen. There is minimal spondylolisthesis of L5 relative to S1.
16. In his evidence, Mr Thompson said he had gone to a chiropractor on a regular basis for a normal physical maintenance regime. He said he had pain in his spine but no major aches or pains. He said there was never any lower back pain of any concern prior to 1992.
17. When Mr Gourlay attempted to explore the nature of any pain in the lumbar spine prior to 1992, Mr Thompson at first seemed reluctant to concede that, as Dr Brown’s report clearly stated, he had experienced episodes of pain in the lower back prior to 1992.
18. Dr Brown’s clinical notes show that Mr Thompson had required treatment with anti-inflammatory medication for low back pain in April 1991, after he had changed a bicycle wheel. There was a further record of low back pain in September and October 1991. When Mr Thompson complained of further lumbo-sacral pain on 13 January 1992, Dr Brown arranged for X-rays to be taken. They showed mild degenerative changes.
19. Mr Thompson’s evidence was similarly unhelpful on the question of whether he told doctors, in 1997, that he had been having difficulty with his lower back for 15 years. Both Mr Johnson and Mr Turner examined Mr Thompson as treating orthopaedic surgeons after the July 1997 incident. Both of their reports indicate that Mr Thompson told them then that he had been having intermittent back pain for approximately 15 years, i.e. since about 1982, but that previously the episodes had been quite brief and had caused little interruption to his day to day life (TB p187 and p 175 respectively).
20. When Mr Gourlay put that history to Mr Thompson, he denied that that it was accurate. He said that perhaps Mr Johnson had misunderstood what he had said and had then provided that incorrect history to Mr Turner. Another possibility he raised was that perhaps he himself had given an incorrect history, because he was confused as a result of the Pethidine he was taking while an inpatient at Bethesda Hospital, where he was seen by Mr Johnson and Mr Turner.
21. However, as the Tribunal pointed out during the hearing, the report of Ms Karabinis, an occupational therapist (T-CB8), records that the same history was given to her by Mr Thompson on 17 September 1997, when she visited him at his home. Further, Dr Brown in his initial consultation on 22 February 1991 obtained a history (R2) that Mr Thompson had been troubled by intermittent acute low back pain in the past, but that chiropractic treatment had given him good relief.
22. We find that for approximately ten years prior to May 1992, Mr Thompson had on occasions had episodes of acute low back pain which had led him to seek chiropractic treatment, from Dr Brown and before that from another chiropractor. They had caused little disruption to his day to day life and he had managed his condition with chiropractic treatment.
Issue 2: Whether the incidents which occurred at work had ceased to contribute to Mr Thompson’s low back condition by 4 October 2002
23. As to the first incident of 12 May 1992, Mr Thompson said that it took some days or weeks after he returned to work, before the symptoms completely went away (trans, p13). That is also the history Mr Thompson gave Mr King (TB p108). However, in cross‑examination he said he was never pain-free after 12 May 1992. Ms Offen also said that after the 1992 incident Mr Thompson did occasionally require medication for back pain.
24. The effects of the incident which occurred at home in July 1997 were very severe. Mr Thompson was referred by Dr Kiley to Mr Johnson. He was admitted to Bethesda hospital from 31 July to 8 August 1997, where he had bed rest and an epidural injection (T-CB3). After some time resting at home, he was admitted to Cedar Court Rehabilitation Hospital on 29 August 1997 (TB pp36 and 121). A lumbar myelogram was performed on 26 August 1997 (TB p 59). The report concluded
Mild to moderate diffuse disc bulging at the L4/5 level with mild underfiling of the left L5 root.
25. Mr Thompson returned to work on a Gradual Return to Work (“RTW”) Program, working from home some of the time. He had returned to full-time duties by 14 October 1997, but may have been working some days from home at that time.
26. Mr Thompson said that after the 1997 incident he had episodes of low back muscle spasm every 12 to 18 months. He said he would attend his doctor and would be prescribed Panadeine Forte for pain and Valium as a muscle relaxant. However, he also said that until 2001, he could lead a full life including ride his bicycle, walk on uneven ground and body surf (trans, p19). That is supported by a reference in Dr Kiley’s notes in 1999 to Mr Thompson spending long hours over the weekends on house renovations (R1 p1).
27. Ms Offen confirmed Mr Thompson’s evidence that after the 1997 episode he had flare ups of his back condition, when the back went into spasm. She said he treated his back spasms with the application of ice and sometimes had to take anti‑inflammatories or muscle relaxants which were prescribed for him. She said the pain was worse after 1997 than it had been between 1992 and 1997.
28. The incident which occurred on 7 January 2001 was relatively minor. Mr Thompson attended a doctor in Queensland. He continued with his holiday and lost no time for work. We do not find that it is relevant to our decision.
29. Mr Thompson said that the first of the “knee incidents” which occurred on 7 February 2001 caused “massive muscle tightness and pain”. He said his back was completely jammed up and he had a high level of pain.
30. It is difficult to separate out the effects of that incident from the much more severe similar incident which occurred on 6 April 2001. While recuperating at home after that incident, Mr Thompson’s condition deteriorated leading to his admission to Epworth Hospital on 24 April 2001. Mr Johnson saw Mr Thompson that day and reported (TB p122):
At the time of admission he was complaining of continuous low back pain that radiated into the right leg to the front of the shin with paraesthesia in the foot. This was worse with sitting and relieved by lying.
He said that the pain was very sever and he could only sit for 2 minutes and walk for 20 minutes.
His general health was satisfactory.
On examination at that time he was extremely uncomfortable. Reflexes and motor power were normal but there was subjective sensory alteration in the right calf and great toe. The plantar reflexes were downgoing and there was no clonus in the feet.
31. After discharge from Epworth Hospital Mr Thompson underwent rehabilitation treatment until 17 October 2001 (TB p 160).
32. Mr Thompson and Ms Offen went to Queensland from 12 to 18 April 2001. He said that this was to get away from Melbourne because of his distress after the second workplace injury on 6 April. Mr Thompson’s recovery from the April 2001 incident was slow and difficult, and was complicated because he became depressed. An MRI scan showed degenerative change at the L3-4 and L4-5 levels, but without major prolapse or nerve root compression (TB pp120-122). Mr Johnson did not think surgical treatment was appropriate.
33. In June 2001, Mr Thompson was referred for psychiatric treatment, first to Dr Okalyi and then to Dr Das. He was prescribed anti-depressant medication and remained under the care of Dr Das for the remainder of that year and into 2002. In July 2001, Mr Thompson and Ms Offen again went to Queensland for a short break. He said this was because of his depression. He went to have a “break away” , as recorded in Dr Brown’s clinical notes.
34. Dr Widjaja's report (TB pp160‑165) states that Mr Thompson had made much improvement during his time as an outpatient at the Victorian Rehabilitation Centre, by the time of discharge on 7 October 2001. However at that time he was still only working four days a week at work. Further, he was still being treated for depression. Dr Widjaja reported that Mr Thompson had told him he still had occasional pain, but was not requiring analgesics.
35. Mr Thompson said at the hearing that, although he was back at work on a RTW program, which allowed him to work one day from home, he was not pain free. Further, after April 2001, he was never able to resume his recreational bike riding and body surfing. He had difficulty walking on uneven ground and could not do any household maintenance or vacuuming or any tasks which required bending. He can no longer mow the lawn or trim the garden. Ms Offen gave a similar account of Mr Thompson's restricted activities. She said, as to the period October 2001 to April 2002, that Mr Thompson's back "wasn't good at that time at all" (trans, p152).
36. We note that Mr Wilde, in his report of 19 April 2002, said that the history he obtained when treating Mr Thompson for the April 2002 incident was that prior to 6 April 2002, Mr Thompson had been experiencing chronic pain but "he soldiered on, indeed was even working part‑time" (T-PI 48 p133).
37. Mr Thompson's evidence was that he did not ever "completely recover" from the April 2001 incident. He continued to have a back which gave him occasional pain, and he was restricted in many activities. He kept to an exercise program in order to maximise his recovery. His evidence was that something happened in April 2001 which had never happened before, and that he never recovered to the degree he had in the past.
38. The incident on 6 April 2002 occurred when Mr Thompson squatted down, in the manner he had been told to use, to pick up a piece of paper from the floor at home. He had what he described as a massive spasm in his back, which required that he have assistance to straighten up. Although he treated it with ice and pain‑killers, the next morning he could not move and was taken by ambulance to the Epworth Hospital Accident and Emergency Department.
39. After the April 2002 incident, Mr Thompson said that he found it difficult to get any relief from his back pain. The medication prescribed by his treating general practitioner, Dr Kiley, did not help significantly. He resorted to taking more pain‑killers and to self‑medicating with alcohol. Eventually he realised that was a downhill spiral. He asked for another referral and was referred to Dr Taverner.
40. Dr Taverner arranged for investigations and treatment as described in his detailed reports of 21 September 2002 (TB pp62‑65), 16 February 2003 (TB pp68‑71), 11 May 2003 (TB p106) and 15 August 2003 (Exhibit A3). Dr Taverner, at his first consultation with Mr Thompson on 20 June 2003, formed a working diagnosis that he suffered discogenic pain arising from the L3/4 and L4/5 intervetebral discs with a component of sciatica affecting the right leg.
41. Dr Taverner's first treatment recommendation was that Mr Thompson undergo an epidural neuroplasty and steroid injection for the right sided sciatica. Those procedures were performed on 29 July 2002. Dr Taverner reported that the epidurogram demonstrated L3/4 and L4/5 subligamentous disc protrusions (TB p63).
42. On review on 15 August 2002, Mr Thompson reported a dramatic reduction in pain. At review on 16 September 2002 he had returned to work three days a week but said he found this tiring.
43. Dr Taverner recommended performing a lumbar discogram and three level discography to establish a diagnosis and consider Mr Thompson's suitability for intradiscal electrothermal annulaplasty (IDETA) which is a new treatment still in the experimental stage.
44. The IDETA was performed on 9 December 2002 (TB p70). Mr Thompson had a long recuperation period at home. There was a complication when he developed meningitis‑like symptoms which prolonged his recovery. However, by 10 April 2003 he had returned to work on a restricted basis, working 2 days at work and one day at home (TB p106). By 15 August 2003, Mr Thompson was working 5 days a week including one day at home, carrying on approximately a 70% time load. He had made excellent progress (A3).
45. At the time of the hearing Mr Thompson was still working four days a week at the workplace, and one day from home. His level of incapacity was much less than it had been prior to the IDETA.
The Medical Evidence
46. In order to decide the significance of the compensable and non-compensable incidents causing back pain, it is necessary to consider the medical evidence. We regard Dr Brown's evidence as very important, because he was the only person who treated Mr Thompson throughout the relevant period. He saw Mr Thompson before the first compensable incident in May 1992, and after the last relevant incident in 2002. We find his clinical notes, together with his evidence, provide a detailed picture of the development of Mr Thompson's back condition over the relevant period. As Mr Johnson pointed out, none of the other medical witnesses have seen Mr Thompson throughout that period. Without that continuity of treatment they cannot say what the effects of each of the relevant incidents have been.
47. Dr Brown's summary of the effect of the incidents was as follows (trans, p163):
[W]hen I saw him right at the start he was, you know, complaining of general back problems and neck problems which I treated. After '92 his condition became worse. Now, he recovered from that terrible pain but never recovered to the extent he was probably pre '92 and then with each subsequent event, whether it be the '97 episode which I don't think I had the aetiology of that one, and with the one over the Christmas break 2001, and then with the last two where he was hit in the back of the knee, he has deteriorated at a far greater pace and doesn't ever bounce back to what he was previous to the injury. So I suppose you could describe it like he is on a bit of a slide from '92 and he has a bit of a gradual slide down and he hovers around a little bit until '97 in which case he dips a bit more and then he hovers around that level, a little bit better, a little bit worse, and then over the Christmas break he has another bad episode and then … severely worse after the 2001, you know, the two in February and April 2001.
Yes. And you say he was severely worse after those two events and has that remained the case? --- Well, it remained the case that I felt as though I wasn't able to give him the relief, the sustained relief that he had had from treatment previous to those injuries. Previous to those injuries, particularly in the 2001, the February and the April one, you know, he was at least manageable even though he was still worse than when I first seen him, but he was getting to the stage where he was just on a lot of medication. He was depressed about it.
…
48. Dr Brown was quite clear in his evidence that, although Mr Thompson did have some acute low back pain prior to May 1992, after that date the problem became more severe. His notes provide some detail. He saw Mr Thompson on 13 May 1992, when he took a history of furniture falling on the right kidney area the day before. Mr Thompson had seen a doctor and was taking Brufen and Mersyndol, applying ice and doing stretching exercises. Dr Brown noted that Mr Thompson was bruised and tender down his right lower back. According to Dr Brown's clinical notes the lower back was improving by 25 May 1992. Lower back twinges are mentioned in September 1992 and right side low back pain is recorded for a number of attendances in February 1993. In August, September and October 1993, Mr Thompson reported that the lumbar sacral area was "grabbing" or aching. In December, after a car accident, there were some symptoms in the buttocks and legs as well as in the head and arms. Stiffness in the right side at L5/S1 is noted in February 1994. In April and May and again in August and October 1995, there are a references to lumbosacral pain and stiffness. In December 1996, there was an incident of low back stiffness and pain after lifting an object, and another incident with a lot of spasms later that month after onset in a pool.
49. In cross‑examination, Dr Brown said that the character of Mr Thompson's low back pain after May 1992 was not different from before that incident "but it was more severe". He said he did not think it was necessary to obtain further X‑rays or a CT scan because it was a soft tissue type injury.
50. After the 1997 incident Dr Brown's notes refer to the history of medical treatment. He notes continuing stiffness. In November 1998 there was reference to Mr Thompson wearing a lumbar support when gardening. There are continuing references to tenderness or stiffness or mobilisation of the lumbosacral area through 1999 and 2000, and a reference to Mr Thompson taking Naprosyn and Valium in June 1999.
51. Dr Brown saw Mr Thompson on 8 February 2001, the day after the first kneeing incident. He recorded that Mr Thompson was "nervy/teary" and had generalised stiffness and was difficult to adjust. He saw Mr Thompson on 15 occasions during February and March 2001 for treatment, particularly of the right lumbosacral area. The notes refer to tightness in the right thigh, pain in the right leg and buttock pain radiating to the right leg. Right sciatica is also mentioned. Dr Brown noted a relapse on 5 March 2001, with “pain in [the] right leg to ankle” requiring anti-inflammatory medication and ice treatment.
52. On 2 April 2001, Dr Brown recorded "Good ‑ moved very easily”. Unfortunately the next entry is one week later. It contains the history of the second kneeing incident on 6 April. Mr Thompson was noted to be very stiff and there is a note that he wants to see Mr Johnson again.
53. Dr Brown's notes refer to hospitalisation and rehabilitation following the April 2001 incident. During the period after Mr Thompson was discharged from rehabilitation in October 2001, Dr Brown continued to note stiffness in the lumbosacral area and he performed full spinal manipulations. There was a flare up with right lumbosacral pain in January 2002, and on 30 January Mr Thompson came back from a trip to Queensland very stiff.
54. Mr Johnson's evidence was important because he was the treating surgeon in respect of the 1997 and April 2001 incidents. Mr Johnson said that if Mr Thompson had not recovered since the 2001 incident to the level he was at before those incidents it would indicate that they were "at least a contributing factor to the deterioration" (trans, p183). Mr Johnson said that the history Mr Thompson gave him was that the two kneeing incidents were related to an exacerbation of the problem. On that basis he said their effect was not transient. He added (trans, p191‑192):
…If you have got a person who is reasonably well and coping and there is then an incident and subsequently they are much worse and persistently worse, then irrespective of the investigations, the exact diagnosis, it is reasonable and common sense basis that those incidents have been responsible for the deterioration.
55. Mr Johnson said that he did not know the exact cause of Mr Thompson's pain. He said that if he did he would operate on him. He explained that, in looking at the effect of particular incidents, he thought it was appropriate to consider whether, if there were a graph of the level of pain over time, it would show permanent significant increase in the level of pain and disability after particular events, or would just show gradual slow degeneration (trans, p197). He said he could not comment on that because he had not seen Mr Thompson over the whole period.
56. As set out earlier Dr Brown, who has seen Mr Thompson over the whole period, used the same metaphor and said there had been dips below the gradual slide in 1992 and 1997. Then Mr Thompson had become severely worse after the 2001 incidents so that Dr Brown could no longer manage to give him relief and he had become depressed and dependant on pain medication.
57. Mr Johnson said that he agreed with Mr King's comment on one part of his report of 26 March 2002 (TB p122). He said that when he wrote that the incidents in 2001 did not cause "any actual damage to the spine”, it was more accurate to say that they had caused damage which resulted in an exacerbation, even though he did not know what the actual damage was, or whether it was temporary or permanent.
58. The Tribunal asked Mr Johnson to look at Dr Brown's notes of attendances in early 2002, before the incident on 6 April 2002. Those notes include references to right leg pain, lumbo‑sacral stiffness, spasm in the lumbo‑sacral area and sciatica. Mr Johnson said (at trans p202):
The symptoms described in that early part of 2002 sound very similar to what his symptoms have been at other times, but they are of a lesser degree.
[A lesser degree?] Well, from when I have seen him, when he has been in hospital. What I can't comment on is has the background level of pain and disability when he is well been permanently worse since that incident in 2001?
59. Mr King saw Mr Thompson to provide a medico‑legal opinion in July 2002. He obtained a history that, prior to 1992, Mr Thompson did his work without trouble "apart from occasional mild back discomfort". Mr King had an accurate history of the May 1992 incident. He wrote that Mr Thompson was seen by his local doctor and off work for one to two days and the symptoms then settled completely.
60. It was Mr King's opinion that Mr Thompson had sustained an acute injury to a lumbar disc on 12 May 1992. He based that opinion in part on the history that Mr Thompson had never had "any significant problems with backache in the past". He noted that there had been backache, but not significant problems, before May 1992. He did not regard the evidence of chiropractic treatment as contradicting that history. He considered that the July 1997 incident had caused further damage to the lumbar discs. Mr King was of the opinion that the disc bulging shown on CT scan was associated with mild but definite nerve root irritation resulting in right sided sciatica.
61. Mr King saw Mr Thompson again in 2003. At that time he examined the films of a lumbar discogram and CT scan carried out for Dr Taverner in September 2002. Mr King said they showed "significant abnormalities in the L3‑4 and L4‑5 discs and mild abnormality at the L5-S1 disc", although Mr Shannon said that the radiologist had reported that the L5-S1 disc was normal. There was a difference between Mr King and Mr Shannon as to whether or not the L5‑S1 disc was normal. Mr Shannon accepted the radiologist's report. It was Mr King's opinion that the film showed "mild but definite abnormality of the L5‑S1 disc". Mr King noted that the radiologist had reported quite severe reproduction of pain at all three levels.
62. Although Mr King had been given a history of only one to two days of incapacity after the May 1992 incident, and symptoms settling completely after a few weeks, he saw it as a significant incident. He explained that that was because having furniture fall on you is an acute injury, a specific incident of trauma, rather than part of the normal ageing process. Mr King said he saw the two kneeing incidents as "further episodes of superimposed trauma", in someone who already had trouble with his back. Mr King said that the fact that Mr Thompson's condition was seen as sufficiently serious to warrant rehabilitation from May to October 2001 emphasised the seriousness of the April 2001 incident. Mr King also placed emphasis on the fact that Mr Thompson never got back to normal full‑time duties but continued, as R3 shows, on a RTW program until April 2002, when he again injured his back.
63. Mr King did not accept the view put forward by Dr Taverner that annular fissures or tears are themselves painful. He said they show wear and tear and allow disc protrusions. Dr Taverner, who gave his evidence later, was persuasive in saying that annular fissures and tears are now accepted as sources of disc pain.
64. In dealing with the April 2002 episode, Mr King said that the explanation of pain being precipitated by picking up a piece of paper is that it was “stress superimposed upon an ordinary abnormal and troublesome spine which has made him far more vulnerable” (trans p92).
65. As to the significance of the pre‑1992 low back pain treated by Dr Brown, Mr King said (at trans p100):
This chap was dropping in to see his chiropractor for a bit of adjustments is what the term is I believe, for nuisance factor discomfort in his back. From 1992 onwards that changed on the history I obtained. So what is stated here is quite capable with the history he gave me. If you were to produce evidence for me to state that in actual fact prior to 1992 he was having significant bouts of back pain which were keeping him off work and he was on analgesics and what not that would be different, but you haven't put that to me.
66. Mr King said that he accepted that the 2002 episode was significant, but so were the other episodes. Mr King said of all the incidents (trans pp108‑109):
Look, from a clinical point of view I would have thought there was no doubt that they are all linked. I mean it is not a legal point but from a clinical point of course they are linked, obviously.
…
Look, they are escalating things, episodes, and they are very similar. Particularly the kneeing where he ended up in hospital and the second one where he ended up in hospital with the same symptoms and he had morphine again, from a clinical point of view, yes, of course they are linked but they are separate episodes. But they are separate injuries but is a reasonable I would have thought to the condition that he wouldn't have had such a severe reaction to knee episode, number 2 and picking up paper, number 1, if he hadn't had previous injuries. He could have got it out of the blue but this is a clinical progression from '92 onwards. It is never clear cut, but I would have thought that to a condition, yes, sure, they are connected. They are separate though.
…The actual incidents and injuries are separate but if it were not for the pre-existing problem then I do not think that it would have had this escalating effect as each time got worse.
67. Dr Taverner gave evidence about his treatment of Mr Thompson from June 2002. That treatment included the IDETA referred to earlier. Dr Taverner said he only performed the IDETA after disc stimulation at lumbar discogram and CT discography (TB p67) had demonstrated that the L3‑L4, L4-L5 and L5-S1 discs were painful with concordant pain. He explained that means pain of the same nature as that of which the patient complains. Dr Taverner said that he would not perform on IDETA unless investigations also showed one disc which had a negative response to stimulation. It was for that reason that he arranged for a second lumbar discogram, which was negative at L2-L3 (trans, p125). He said IDETA is a therapeutic treatment, but it is not yet proven. He referred to one published article about a randomized trial – Pauza, K., Howell. S., Dreyfuss, P., Peloza, J., Park, K., “A randomized, double-blind, placebo controlled trial evaluating the efficacy of Intradiscal Electrothermal Anulplasty (IDETTM) For the treatment of chronic discogenic low back pain: 6 month outcomes” (TB p101-5).
68. Dr Taverner said that he thought the most likely cause of pain was the annular tears at L3-4 and L4-5. He was of the view that the L3‑4 subligamentous disc bulge, beneath the posterio‑longitudinual ligament was also likely to cause pain. Dr Taverner produced articles supporting his opinion that annular tears are a source of pain – Endres and Bogdyk, "Practice guidelines and protocol - Lumbar Disc Stimulation” (TB pp81‑100 at p84); and Merskey and Bogdyk “Classifications of Chronic Pain” (TB pp78‑79).
69. Dr Taverner explained that the rationale behind the IDETA process is that it is a type of denervation. It reduces pain by stopping the nerves carrying the pain signal.
70. Dr Taverner said that when he saw Mr Thompson he had no doubt as to the degree of pain of which Mr Thompson was complaining. He said that the history of episodes of back pain with decreasing time between episodes is very common. Each event applies forces which lead to further tears in the annular fibrosis. He said there can be local pain from inflammation and pain in the remaining lamellae fibres which have to carry more strain than otherwise and thus produce pain (trans, p132)..
71. Dr Taverner did not accept Mr Shannon's opinion that internal disc disruptions or annular tears are a form of degenerative change, particularly where there is a history of trauma (trans, p134). He said that such lesions may, but not do not necessarily, heal. If the pain continues, they have obviously not healed.
72. Dr Taverner said he thought the May 1992 incident had been the precipitating event. He pointed out that the disc narrowing seen in the X‑rays in January 1992 was not the cause of the problem, as it had not progressed over the 10 years between the January 1992 X‑rays and the 2002 investigations. He said events may cause a progressive step up of a tear. He referred to the April 2002 event as part of a “progressive step-wise progression of a tear into an area which becomes more innervated” (trans, p146). He said there was a "continuum of events" (trans, 154). He saw the reference to sciatica after the April 2002 event as significant. We note that Dr Brown notes sciatica after the February 2001 incident (A2 entry 19.2.01).
73. Mr Shannon was called by the respondent. He said that he thought the 1992 event was certainly an aggravation of degenerative disc changes. He said the condition existed prior to 1992, but was aggravated by that incident. He said that the 1997 incident was more a manifestation of disc degeneration than itself a provoking incident. He acknowledged that the February and April 2001 incidents were significant flare‑ups. He said that the April 2002 event was again a trivial event which was another manifestation of a deteriorating situation.
74. Mr Shannon said that, although the disc degeneration was apparent, nothing on investigation explained the level of pain Mr Thompson was experiencing. He said the three work‑related incidents which caused a flare up may have contributed to an acceleration of the disc degeneration. He said that, as a maximum, you might concede that half Mr Thompson's impairment is due to the three employment related episodes.
75. Mr Shannon could not explain how he reconciled that view with his expressed opinion in his report that the aggravation of disc degeneration related to employment was temporary, or with the view that employment was not materially contributing to Mr Thompson's impairment. He seemed to be saying that he thought Mr Thompson's condition had recovered from each of the employment-related aggravations, but he could not be sure of that. That was why he suggested accepting that half the impairment was employment-related.
findings
76. We accept Dr Taverner's evidence and find that Mr Thompson suffers from discogenic pain resulting from internal disc disruption. We accept Dr Brown's evidence and find that Mr Thompson's low back pain has not simply gradually deteriorated since he first saw him in February 1991, but has deteriorated significantly at the time of each of the incidents (i) to (vi) set out in paragraph 13 above. We also find, on the basis of Dr Brown's evidence and clinical records that, although there was some recovery after each of those events, Mr Thompson never recovered to the level he had been at before the last event.
77. The evidence and records of Dr Brown establish that Mr Thompson did have some back pain prior to May 1992. We find that back pain had been a problem on and off for about 15 years before 1997, as Mr Thompson told Mr Johnson, Mr Turner and Mr King. But we find that the back pain prior to 1992 had not been as severe as after 1992, and it became more severe again after the 2001 incidents. We do not accept Mr Thompson's evidence that he was never pain free after 1992, but we do find that, even though Mr Thompson made a good recovery after that incident, it did cause some disc damage, as explained by Mr King and Dr Taverner, and made the back more vulnerable to episodes of back pain.
78. We find further that both the February 2001 and the April 2001 kneeing incidents caused further disc damage resulting in further exacerbations of pain. Even though the effects of the February 2001 incident were overtaken by the April 2001 incident, Dr Brown's notes show that it was the cause of a marked flare up of symptoms with sciatica and then, after some initial improvement, a relapse in early March. The April 2001 incident required medical treatment, hospitalisation and rehabilitation therapy until October that year. We find that, although Dr Widjaja in his final report of 19 October 2001, referred to Mr Thompson as “doing well" and as having "occasional pain" but requiring "no analgesics" and said that he had "resumed his normal activities around the house", Mr Thompson had not fully recovered from the April 2001 incident at that time. We find that Dr Brown's clinical notes for early 2002, show a continuation of symptoms until the April 2002 incident. There was no complete recovery after the February and April 2001 incidents.
79. We find that the two events in July 1997 and April 2002 were severe flare ups of Mr Thompson's condition. As Mr Shannon said, they were themselves trivial in nature with no event to cause or provoke pain. They show how vulnerable Mr Thompson's spine was. They are different from the three work related events where there was identifiable trauma caused by the falling of a desk onto Mr Thompson, and by the two kneeing incidents. We find that the April 2002 event was not a "new injury", but was a manifestation of how vulnerable Mr Thompson's back had become as a result of all the earlier incidents, superimposed on a vulnerable back. We find that the three compensable events were not temporary or transient in their effects. We find that they are still contributing to Mr Thompson’s low back discogenic pain.
80. Thus we find that Mr Thompson's low back discogenic pain is a "disease" within the meaning of that term in s 4(1) of the Act. Accordingly that "disease" is an "injury" as defined in s 4(1) of the Act and Mr Thompson is entitled to compensation in respect of that injury under s 14 of the Act.
81. In matter V2002/1316, the decision under review will be set aside. In substitution we will vary the determination made on 9 October 2002 to provide:
(i)Mr Thompson continues to suffer from discogenic pain, which is contributed to in a material way by his employment; and
(ii)Accordingly, he continues to be entitled to compensation for incapacity under s 14 of the Act and to compensation for medical treatment under s 16 of the Act.
PERMANENT IMPAIRMENT
82. The claim for permanent impairment under s 24 and s 27 of the Act was lodged on 16 November 2001 (T56).
83. Sections 24(1) and (2) of the Act provide as follows:
(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.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
84. Bearing in mind the requirements of s 24(1) and (2), the decision which was made by Comcare on 16 January 2002 was clearly correct. The part of the claim form completed by Mr Thompson’s doctor, asks "If the impairment is not yet permanent at what time would you expect it to stabilise?" (T56 p95). Dr Kiley answered that question "1-2 years".
85. Similarly the reviewable decision affirming that rejection, made on 16 January 2002 (T62 pp112‑3), was also clearly correct.
86. Dr Taverner performed the IDETA on 19 December 2002 (TB p70), after the claim for permanent impairment was lodged. In his evidence he addressed the question of stabilisation and said that typically people reach a recovery plateau six to nine months after treatment. He said that he thought Mr Thompson's condition had probably stabilised but there could be a slow plateauing small improvement.
87. In regard to the claim for permanent impairment, Mr Gourlay pointed out that this matter is very similar to the situation in Re Spreadborough v Comcare (1997) 47 ALD 785. The Tribunal, in reviewing a decision as to permanent impairment, explained that both the original determination rejecting the claim and the reviewable decision affirming that decision were correct when made, as Ms Spreadborough was still undergoing treatment at that time and her condition had not stabilised. However, by the time the matter came on for hearing, the position had changed and her impairment had become permanent.
88. The Tribunal in Spreadborough invited the parties to make submissions as to whether or not it should decide the issue of entitlement to compensation for permanent impairment. The applicant's Counsel submitted that the Tribunal should decide the issue as to impairment, on the evidence before it as at the date of hearing. The respondent, Comcare, chose to make no submission on the issue. The Tribunal concluded on that issue (at paras 29‑33):
29. In this matter I am not reviewing a decision that Ms Spreadborough was not ever going to be entitled to compensation in respect of permanent impairment. The reviewable decision simply postponed a determination on that issue, on the ground that taking into account the factors to which regard must be had, as set out in s 24(2) of the Act, Ms Spreadborough’s impairment was not permanent at the time the decision was made. The decision is therefore correctly characterised, like that in Hospital Benefit Fund [(1992) 28 ALD 50], as a review of a decision made by reference to a particular point of time.
30. Section 24 of the Act requires that a decision be made as to whether or not an impairment is permanent, and specifies factors to which regard must be had in making that decision. Section 43(6) of the Administrative Appeals Tribunal Act 1975 provides:
”s.43 (6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”
31. Although Mr Gourlay did not make any submission contrary to those of Mr Moulds I have difficulty in seeing how I can determine that as at 30 May 1996 Ms Spreadborough had a permanent impairment. Taking into account the improvement in Ms Spreadborough’s condition as a result of Dr Blombery’s treatment between November 1995 and 30 May 1996, and taking into account the fact that Dr Blombery had stated that phentolamine infusions offered a means of keeping Ms Spreadborough “in a relatively pain free state until the disorder eventually burns itself out”, I am satisfied that it was not clear as at 30 May 1996 whether or not the impairment was permanent.
32. In Re O’Maley and Comcare (AAT No. 11593, 6 February 1997, unreported) the respondent sought to argue that Mr O’Maley’s impairment was not permanent because a psychiatrist who had seen him at the request of Comcare wrote that 12 months treatment with a particular medication might assist in reducing the intensity of his depression. Mr O’Maley had not been advised of the proposed treatment and had continued with treatment from his treating doctor. The Tribunal found that his condition had stabilised and it was not appropriate to postpone a decision as to permanent impairment for 12 months after the hearing to try the treatment suggested by the respondent’s psychiatrist. This matter is clearly distinguishable. Here the treatment which Comcare considered showed that Ms Spreadborough’s impairment was not “permanent”, was that currently being undertaken by her own treating specialist at Comcare’s expense in the hope that it would maintain her in a relatively pain free state until the disorder burnt itself out. If it had the desired result it would have shown either that Ms Spreadborough had no permanent impairment or that the permanent impairment was less severe than the impairment before the treatment.
33. However Mr Gourlay has not submitted that I should approach my task bearing those concerns in mind. His client, perhaps because of the beneficial nature of compensation legislation, has chosen not to respond to my invitation to make submissions on the issue. In those circumstances it seems appropriate, in the light of what was said by Wilcox J in Commonwealth v Ford (1986) 65 ALR 323 at pp329–330 to proceed to review the decision as to permanent impairment as at the date of hearing as requested by Mr Moulds. Wilcox J referred to the inappropriateness of the Commonwealth adopting a highly technical approach to the interpretation of remedial legislation.
89. In this matter, Comcare contended that the Tribunal is restricted to considering only whether at the time of the primary decision, Mr Thompson had a permanent impairment resulting from a compensable injury. The parties agreed that if we found for Mr Thompson on that issue we should remit the matter to Comcare for assessment of the compensation payable.
90. Dr Taverner's evidence on the issue was by way of an aside. He has not recently re‑examined Mr Thompson in order to give a considered opinion on the issue of permanent impairment. The evidence before us does not satisfy us that Mr Thompson’s impairment is now permanent rather than still slowly improving. As the matter would be remitted for assessment in any event, we consider the question of whether or not Mr Thompson's impairment is now permanent should be decided with a medical opinion addressing that issue.
91. We will affirm the decision in the permanent impairment matter. A further claim for permanent impairment should be lodged with a medical opinion supporting that claim.
COSTS
92. We will make an order for costs under s 67(8) of the Act, even though we are setting aside one decision and affirming the other. We do so because almost all the evidence before us addressed the issue of cessation of compensation. The costs of the hearing and the preparation for hearing were incurred in respect of that matter and not in respect of the permanent impairment matter.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer and Miss Shanahan, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 4 December 2003, Friday 5 December and Friday 19 December 2003
Date of Decision 4 February 2004
Counsel for the Applicant Mr M Gorton
Counsel for the Respondent Mr I Gourlay
0
1
0