Tidy and Comcare - [2002] AATA 297

DECISION AND REASONS FOR DECISION [2002] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/481

GENERAL ADMINISTRATION DIVISION      )
           Re      LORRAINE BARBARA TIDY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date2 May 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  .      (Sgd) K L Beddoe
  Senior Member

Decision No: 297/2002
CATCHWORDS
COMPENSATION – Commonwealth employee – -pre-existing injuries - whether compensated work related incident ongoing –- whether work-related incident a material contributing factor in current illness

Safety Rehabilitation and Compensation Act 1988 ss 4,14, 16,19

Australian Postal Corporation v Nadge (FC 940463 21/6/91)
Fitzgerald v Penn (1954) 91 CLR 268
March v Stamare [1990-1991] 171 CLR 506

REASONS FOR DECISION

2 May 2002 Mr K L Beddoe, Senior Member

The applicant sought compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act") from the respondent for multi level pain syndrome and fibromyalgia stated by the applicant to have been caused by an accident on 3 August 1996 (later amended to 12 June 1996), whilst the applicant was an employee of the Commonwealth. The application for compensation was received in Comcare on 1 August 1999. By a decision dated 27 October 1999, the respondent denied liability for compensation on the basis that there was insufficient evidence to establish that the applicant's myalgia and myositis condition, as it was identified by the respondent, occurred in compensable circumstances. A delegate of the respondent reviewed and affirmed this decision on 29 March 2000.
By application dated 20 May 2000 and received in this Tribunal on 31 May 2000, the applicant sought review of this decision. I heard the matter in Townsville on 21 March 2001. The applicant represented herself and Ms Ford of Counsel appeared for the respondent.
The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" documents and further documents were tendered and marked as exhibits as follows:

Exhibit 1 - Report by Dr Peter Stevenson dated 16 October 2000
Exhibit 2 - Statement by Mrs L Tidy (undated)
Exhibit 3 - Report by Dr Fairley dated 18 May 1984
Exhibit 4 - X-ray report by Dr Bowles
Exhibit 5 - Compensation claim in name of Mrs L Tidy dated 22 June 1996
Exhibit 6- Exert from medical records – Mrs L Tidy 27 August 1996 and 10 September 1996
Exhibit 7 - Townsville General Hospital Medical Discharge Summary
Exhibit 8 - Letter to Dr Green from Blue Nursing Health Assessment Service
Exhibit 9 - Report by Dr James to Dr Watson dated 2 December 1998
Exhibit 10 - Report of Dr Fitzgerald dated 17 June 1999; Report of Dr Hooper dated 20 April 1999
Exhibit 11 – Extracts from medical records
Exhibit 12 – X-ray Report– Dr Withey dated 24 June 1996

The applicant gave evidence in person as did Dr R Watson, General Practitioner and Consultant in Rehabilitation Medicine; and Dr Hadlow, Orthopaedic Surgeon. Dr P Stevenson, Consultant Physician gave evidence by telephone. At the conclusion of the hearing, Ms Ford provided a written submission and the applicant advised she would also provide written submissions within 14 days. The applicant later sought and was granted an extension of time within which to lodge her submissions and new evidence. I conducted a telephone directions hearing regarding this on 18 May 2001 after which both parties were given time to view all evidence provided. The applicant provided a report by Dr Waterhouse, Radiologist and Dr Cleeve, Radiologist dated 8 April and 13 December 1999 consecutively. In addition, she provide a further report by Dr Watson dated 30 April 2001.
I conducted a further telephone directions hearing on 27 June 2001 regarding the re-opening of the matter at which I directed that the respondent lodge and exchange written submissions and copies of documents to be relied on and the applicant be at liberty to make written submissions in reply. On 21 August 2001, the applicant confirmed that she would not be making any further submissions.
The applicant was born on 24 April 1957. On 20 July 1995, the applicant was involved in a motor vehicle accident in which she sustained a whiplash injury to her neck. She consulted a general practitioner, and was referred to Dr Watson, Rehabilitation Consultant. The applicant first attended Dr Watson on 28 May 1996.
The applicant made no claim for compensation for this injury as this was not considered by her doctor to be a work related injury.
On 12 June 1996, the applicant was employed as a civilian catering attendant by the Department of Defence and was working at Lavarack Barracks, Townsville, in this capacity. She completed an accident report in which she stated (PT4, page 1/8) that "The loaded trolley I was using collapsed because of a broken wheel. I instinctively lunged forward to save the load from falling". It was this action which the applicant claimed caused her to suffer lower back pain and a flare up of her pre-existing cervical pain for which she now claims compensation. Also stated in the report was that the trolley "was forever dropping it wheels and never got fixed". (PT5, Page 12/16).
The applicant attended Dr Hart on 21 June 1996 (PT6, page 19) with regard to this injury. She also continued to attend Dr Watson. A claim for lumbar back sprain L4/5 ligaments associated with the injury of 12 June 1996 was accepted by the respondent. Payments for incapacitation for employment were paid between 21 June 1996 and 30 July 1996. Medical expenses were also paid to cover the cost of the applicant's medical treatment between 21 June 1996 and 2 December 1996. The claim was closed as no claims were made from December 1996.
By reference to the applicant's claims for time off work (PT23), it is apparent that the applicant is seeking specifically compensation for loss of income for the following periods: 03 to 13 August 1996; 5 to 10 September 1996; 25 October 1996; 31 October 1996; 8 November 1996; 18 to 27 November 1996; 29 November 1996 to 14 January 1997; 22 January 1997; 18 March 1997; 30 March 1997; 2 April 1997; 17 April to 15 May 1997; 19 May to 10 October 1997; 30 October 1997; 7 November 1997; 12 November 1997; 17 and 18 November 1997; 17 January 1998 to 21 January 1998; 26 and 27 January 1998; 4 and 5 February 1998; 9 February to 17 March 1998; 18 March 1998 to 17 June 1998; 18 June to 31 December 1998; 1 January to 26 May 1999; and 27 May to 27 August 1999.
Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides for compensation for an employee where that employee suffers an injury which results in death, incapacity for work, or impairment. Section 4 defines "injury" as:
(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

In section 4 of the Act, "disease" is defined as:
(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

Section 19 of the Act provides for payment of compensation for injuries resulting in incapacity.
The main issue is whether the initial compensated work-related injury suffered by the applicant on 12 June 1996 continued to be a material contributing factor to the medical condition for which the applicant now claims compensation.
Medical Evidence
In the report prepared by Dr Watson dated 10 March 1997 (T11) he stated that he had been treating the applicant since 28 May 1996. The applicant had told him that she had been stable for about four to five months but had been "working and suffering". The applicant told Dr Watson that she experienced severe low back pain and the flare up of her pre-existing cervical pain problem with the sudden lunge and twisting needed to control the trolley.
Dr Watson noted in this report (T11) that the applicant had seen him on 4 November 1996 and told him that at the end of each 12 hour shift of restricted duties she had very significant pain which was chronically irritable. In addition, the applicant had an almost constant headache and a burning neck pain with restricted movement and referred pain to the right scapula. Dr Watson commented that when he saw her on 4 March 1997, the applicant was "obviously" not coping at work because of "a combination of chronic pain and deteriorating interpersonal relationship at home". The applicant stated that the latter problem had only arisen since the establishment of her chronic pain status and secondary irritability and exhaustion. Finally, Dr Watson opined that the applicant was capable of clerical duties but not heavy physically orientated work.
In a report dated 6 March 1998 (T15), Dr Watson stated that he "was sure that [the applicant's] ongoing chronic pain problems precludes her from her habitual work role …". Dr Watson reported that the applicant was put off work because of an epileptic seizure. He stated that the applicant had been off work since 10 February 1998 and was to remain unemployed unless a safer work environment could be found for her. Dr Watson indicated that he would provide a sick leave certificate for the applicant if no clerical role was found for the applicant. This certificate was signed by Dr Watson on 18 March 1998 (T16) and certified that the applicant "remains incapacitate by multilevel spinal pain". The certificate also stated that the applicant was to "continue off work until 18 June 1998".
A further report by Dr Watson dated 20 October 1998 (T17) noted that the applicant had Multi Spinal Pain Syndrome which had been recently associated with "generalised body pain, unrequited sleep and chronic fatigue". He described a major generalised Fibromyalgia Syndrome secondary to the original spinal pain problem. Dr Watson considered the applicant to be totally unemployable in the open market. He also considered her Fibromyalgia Syndrome to be complicated by a long-standing spinal pain problem.
By a letter dated 13 December 1999 (T32), Dr Watson advised that he had that day reviewed the applicant and commented that her "flareup in low back pain is refractory". He recommended she move temporarily to Melbourne to be cared for by her parents as she had not been able to attend to household administration during the previous month.
By letter dated 7 February 2000 (PT37), Dr Watson advised Comcare that the applicant's claim was not for myalgia and myositis but rather for chronic low back pain. He continued:
There is no intellectual or emotional basis for a statement that a work related injury of soft tissue type should have ever resolved fully in 12 months in that it is a statistical fact that a percentage will always become chronic for reasons yet not fully understood and if your client was asymptomatic in relation to her low back prior to the work related accident and has since been consistently severely handicapped by it there is no reason to suggest that after a particular time the ongoing handicapping pain is due to anything other than the ongoing effects of the accident in question."

In addition, Dr Watson stated;
In December 1999 an MRI of the lumbar spine was undertaken which showed pathological change at the L3/4 level which is consistent with her low back pain radiating into the anterior thigh, and only present from the time of the accident, and although this radiological finding can be seen in normal individuals on the grounds of probability I am sure that is related to the 1996 work related accident and is the cause of ongoing pain which because it has been present for three years without resolution inspite of reasonable conservative measures is now likely to be a permanent feature of her life. She certainly has a "chronic pain syndrome" but this term should not be used in a perjorative manner but rather to explain chronic ongoing pain which is all probability has a genuine organic basis"

Dr Watson noted his opinion that clinically the applicant had "findings which were consistent with generalised fibromyalgia condition which [had] not been present on previous examinations". Dr Watson considered this to be a secondary phenomena to the long standing lumbar spinal difficulties. Dr Watson disagreed with Dr Hadlow's conclusion that the applicant's symptoms ought to have resolved 12 months after the incident, however, he did accept Dr Hadlow's diagnosis of Chronic Pain Syndrome.
Dr Watson noted that the applicant had been dysphoric and depressed. He opined that he applicant's current emotional state was as a consequence of the chronic pain invalidity. He iterated that the applicant was unemployable due to the chronic pain.
At the hearing, Dr Watson gave evidence that from 1998, the applicant suffered from Generalised Fibromyalgia. He stated that currently, it was less of a problem although the applicant still suffered non-chronic spinal, cervical, lumbar and thoracic pain. He disagreed with Dr Stevenson's diagnosis (T29) that the applicant suffered from a back strain as a result of the trolley incident in 1996. He disagreed because of the unresolved nature of the pain. He also stated that he was not a specialist in orthopaedics.
In answer to a question by Counsel for the respondent, Dr Watson replied that, assuming a scenario in which the applicant reported that her back was much improved by August and excellent by October 1996, although her depression was worse, he thought it highly unlikely that the pain complained of after this was due to the accident. He added that the applicant possessed an "abnormal structure" but it was impossible to say whether this was "spontaneous" or trauma caused. Dr Watson believed that the applicant's neck pain had settled. He also restated that the applicant was not fit to perform her previous duties but could undertake clerical duties.
On 17 September 1999, Dr Hadlow examined the applicant, at the request of the respondent. Dr Hadlow prepared a report dated 4 October 1999 (T29) in which he noted (at page 2 – Subsequent Progress/Specialist Management:) :
"[The applicant] then entered a Rehabilitation Return to Work Scheme in early 1997 but found it too painful and took five months off in the middle of 1997. She subsequently resumed work but restricted herself, as she felt the duties were too heavy. [The applicant] ceased work in 1998. She admitted that during much of this time, she also had severe depression and was consulting several psychiatrists."
Dr Hadlow diagnosed the applicant (at page 5) to be suffering from:
"Chronic Pain Syndrome and depression, which is consistent with the stated cause of a fairly typical deceleration injury in a road traffic accident and subsequent unrelieved cervical pain, now chronic. This condition resulted from the 1995 accident, although [the applicant] stated she thought she had recovered.
The injury of 1996 when she slipped in the freezer, led to her back disability but again on her own report, there was no evidence of bony damage or malalignment and ligaments cannot be seen on an X-ray.
Her findings are inconsistent and there is no clinical evidence of significant musculoskeletal skeletal structural spinal injury. There was hyper-reactivity throughout the examination. I consider it likely that her main disability arises from a Chronic Pain Syndrome and depression, rather than anything else."

Dr Hadlow opined that the applicant would have suffered pain as a result of the 1996 injury, but as it would have been a soft tissue injury, it should have resolved fully within 12 months. He considered the presence of depression and Chronic Pain Syndrome may have led to the prolongation of non-muscular skeletal symptomatology. He did not consider the pain was consistent with the lumbar strain occurring in 1996.
Further, Dr Hadlow stated (paragraph 9) that the pain was not consistent with a lumbar strain occurring three years ago. Dr Hadlow opined in his report (paragraph 11) that:
"..the prognosis of Chronic Pain Syndrome in the presence of depression is poor and may be difficult to break the current cycle of disability. There is no indication for musculoskeletal, orthopaedic or invasive surgical management."
An appointment was organised for the applicant with Dr Stevenson on 10 October 2000. In his report dated 16 October 2000 (Exhibit 1), Dr Stevenson stated that the MRI scan of December 1999 showed age appropriate degenerative change to the L3/4 level. He stated that such a finding, found in at least 60% of the population who do not report pain symptoms, did not "satisfy standard medical criteria for causation and do not explain [the applicant's] pain" (paragraph 10.2, page 7). Nor could Dr Stevenson substantiate a diagnosis of Fibromyalgia according the formal American College of Rheumatology criteria, although he also stated that neither the reliability nor the validity of these tests had been established.
Dr Stevenson described Fibromyalgia as "not a discrete disease entity but represents a continuum in the normal human experience of aches, pains and tiredness. It can be a useful term to describe a loose syndrome of muscle tenderness and discomfort often associated with low grade psychological distress and sleep disturbance." He stated (page 10) that:
"it is not thought that minor musculoskeletal trauma causes fibromyalgia, because if it did obviously major musculoskeletal trauma would be a much more potent cause of fibromyalgia and would be seen dramatically and often by orthopaedic surgeons and critical care physicians, where in fact it is virtually unknown".

Dr Stevenson thought that there had been a non-specific thoracolumbar strain arising from the applicant's employment which would resolve in weeks or months, with a fairly generous margin of error (page 11, paragraph 10.6). He put more emphasis on activity avoidance and depression than on a consequence of trauma from the car accident to explain the applicant's current pain. He stated that muscle contraction during an episode of epilepsy was potentially more injurious to the back than one violent muscle contraction from trauma.
Dr Stevenson concluded that whether the applicant returned to work was more to do with her attitude of mind rather than any injury of her body. He stated that there was no irrecoverable pathology which would prevent her from returning to work and that the only evidenced based and effective treatment for Fibromyalgia is exercise.
In his oral statement, Dr Stevenson stated that his opinion, as outlined in his report that the applicant suffered from a back strain, would not alter if the action which caused the applicant's lower back injury in 1996 was a twisting rather than a pulling action. He opined that the pathological change to the applicant's facet joints in the lumbar spine was relatively new and usually attributed to degenerative change. He commented that the applicant's neck pain was better explained by a violent whiplash injury to the neck. He further stated that he could not see how the trolley incident as described could be responsible for the continuing pain in the applicant's back. He did not think the pain was a transfer of pain from the cervical pain. Dr Stevenson did not think that the discomfort of the earlier injury would result in injury to the lower spine.

Dr Green, Psychiatrist, wrote to Dr Fairley in a letter dated 20 November 1997 (Exhibit 8) regarding a consultation he had with the applicant on that day. In that letter, Dr Green stated at page 2, that the applicant told him she:
"has been thinking about leaving her husband and went to Melbourne for six months returning to Townsville September '97 for financial reasons and because her eldest child James aged twenty was retrenched from his job in Sydney and came to Townsville to be with his family."
Dr Green continued with:
"[The applicant] married at the age of nineteen years and the marriage has never been happy. The relationship with her husband has been particularly poor in the past ten years."
Exerts from Medical records (Exhibit 11) were provided by the respondent. These records do not provide any details of who wrote the notes or where they originated. These exerts show "neck and shoulders sore and stiff. Pain never settled since car accident. Headaches. Ref Dr Watson" (17 April 1996). Again on the last line of that exhibit is an entry the date of which is obscured except for "L 1999". The previous entry was 26 June 1996. This entry states: "neck the same. Rf Dr Gibberd".
At PT6 are other medical documents in a different format. At least one page (page 21) is headed "RACGP Health Record" and has the applicant's name hand-written on it. Another page of similar format is headed "Progress Notes". Separate page entries are provided for 28 May 1996 and 16 July 1996, and continuous page entries are provided the records of the applicant's appointments from and including 30 July 1996 to an entry in November 1996. In these entries there are no references to neck pain. References to her back during those visits (Exhibit 6) show that on consecutive visits by the applicant to the Medical Centre the applicant indicated that her back was "much improved" (August 1996) and was "not too sore" (10 September 1996) and "back excellent" (8 October 1996). Against the notes of 10 September 1996 was a comment regarding depression associated with marital problems. It is also noted against this entry was that the applicant had moved out of the marital bed.
Medical certificates prepared by Dr Favin of the Hermit Park Clinic state that the applicant was to work light duties of two hours per day until 4 August 1996 and then 4 hours per day until and including 12 August 96 (T9, T10).
Dr Kennedy, General Practitioner (of Hermit Park Clinic), provided a report dated 11 February 1998 (T14) in which she noted that the applicant had been treated for depression since November 1996 and was currently suffering from "chronic neck pain". On 26 October 1998, Dr Kennedy recommended sick leave from 24 February 1998 until 31 December 1998, on the basis of multiple medical problems - "epilepsy, multi-level spinal pain, factor v deficiency, depression" (T18).
A report of an X-ray examination of the applicant's cervical spine dated 11 June 1996 and signed by Dr Boles (Exhibit 4) states:
"No disc protrusion or spinal canal stenosis. The C4, C5, C6, C7 and C8 nerve root intervertebral foramen appear uncompromised. The facet joints and posterior elements are normal. No bone infiltration or destruction. No paravertebral soft tissue abnormality seen.
CONCLUSION: Normal examination.
A further report of an X-ray examination of the applicant's lumbar spine dated 24 June 1996 and signed by Dr Withey (Exhibit 12) provides :
"At the L3-4 disc level there is no disc herniation and no canal stenosis. The apophyseal joints appear normal.
At the L4-5 disc level there is no disc herniation or canal stenosis and the apophyseal joints appear normal.
At the L5-S1 disc level there is no disc herniation or canal stenosis. Minor degenerative changes beginning in the apophyseal joints bilaterally.
SUMMARY. There are no disc protrusions seen."

Dr Waterhouse, Radiologist, carried out radiological examinations of the applicant and in a report for Dr Ortega dated 8 April 1999 (folio 50A) noted no abnormality or degenerative changes in the lumbo-sacral spine area apart from degenerative changes at L4.
On 13 December 1999, Dr Cleeve, Radiologist conducted a further radiological examination of the applicant on behalf of Dr Waterhouse and provided a report dated the same day (folio 50A). Dr Cleeve noted bony degenerative change at L3-4 and 4- 5 (lumbar spine) disc spaces and saw no evidence of vertebral injury or neural arch pathology.
A MRI scan of the applicant's lumbar spine was conducted by Mr Haussmann, Radiologist on 10 December 1999. His report dated 13 December 1999 (T34) noted a narrowing and loss of signal at the L3/L4 level in keeping with early disc degeneration. Mr Haussmann noted there was no demonstrable significant disc protrusion and that all other intervertebral discs appeared normal.
The applicant submitted a further report by Dr Watson dated 30 April 2001(folio 54) in which Dr Watson stated at paragraph 2:
"The applicant's cervical spinal pain secondary to the 1995 motor vehicle accident was progressively improving and not causing any restriction to a highly physical work role prior to the work related accident in 1996 which caused the cervical pain syndrome to flare and a low back pain syndrome for the first time."

He further noted that the applicant was given a pethidine injection for the low back pain by Dr Hart, general practitioner at the time of the accident and was referred to an orthopaedic surgeon, Dr Gibbberd. Dr Watson reported that none of the applicant's pre-existing health problems, including her pre-existing cervical spinal pain by themselves would have prevented her unrestricted return to work and the applicant's absenteeism from work was caused by the lumbar pain suffered by the applicant.
In addition, he stated (at paragraph 6) that:
"naturally occurring disc degenerative change rarely occurs in isolation at the L3/4 level. This proven change on MRI in 1999 is consistent with the effect of the work related accident in light of no past history of low back pain or acute lumbar trauma and with the clinical symptoms and signs. On the grounds of probability there is a cause and effect relationship, particularly without accompanying degenerative changes at lower lumber motion segments."

Dr Watson explained that although it had been reported that the applicant had a soft tissue lumbar strain which should have settled over 12 months, the applicant did not have a simple lumbar strain thus explaining the cause of her prolonged painful disability. He also noted that the applicant still managed home duties and to exercise her (five) dogs though it was natural for pain sufferers to avoid severe pain increase if possible. He continued at paragraph 9:
"If she was depressed prior to the work related accident, it did not prevent unrestricted work. It became worse (or at least her coping ability deteriorated) following this accident. I do not consider this unusual. On the contrary it is my experience almost predictable, accompanying the inevitable psychosocial and financial stresses consequent on chronic pain and invalidity. There is nothing to suggest that depression or other emotional problems were or are a primary cause of her work absenteeism…."

Applicant's Case

In her submission dated 22 April 2001, the applicant states that the trolley accident of 12 June 1996 has caused her pain along the entire length of her spine and has "retarded the healing process to my cervical spine". The applicant states that she is seeking reimbursement of loss of salary and continued medical expenses for the periods of time she was unfit to work and until she is retrained and re-employed in the private sector. Her previous workplace, she stated, has now been taken over by civilian employers.
She submitted that the pain in her neck has never completely resolved. The applicant estimated that it was 85% resolved and she was controlling the pain with panadeine forte at the time of the trolley accident. It was only a few days after the accident that the applicant found she was in such discomfort that she was incapable of sitting up in bed. She stated that at this time, she required assistance from her husband to get out of bed, shower, use the toilet and dress herself. After returning to work on completion of her graduated return program, the applicant submitted that after a full day of work of strenuous lifting (over 5 kg) and labour intensive tasks, she experienced pain radiating up her back, across her shoulders and around the back of her neck. Her legs also ached from standing on a hard concrete floor all day. She submitted that the strenuous work hampered her complete recovery.
In addition, the applicant stated that she suffered RSI in her left shoulder and thumb (diagnosed around 11June 1996) because of her short stature (142cm) and the need for her to stretch to reach certain heavy posts and pans. The applicant referred to a letter by Dr Gibberd to Dr Hart (not provided) in confirmation of this statement.
The applicant contended that the diagnosis of Dr Hadlow was irrelevant as he seemed to have her confused with another person. During her appointment with him which was only 15 minutes long, her kept referring to her slipping in the freezer and did not appear to be interested in her answers to his questions as he interrupted her before she could complete these answers. In addition, she argued that he based his conclusion on the supposition that the injury "would have been of a soft tissue type and should have been fully resolved in 12 months". In addition, Dr Hadlow's statement that the depression and chronic pain syndrome was consistent with a lumbar strain having occurred three years earlier would have not been applicable had a MRI been carried out at the time of the injury.
It was submitted that the fact that Dr Stevenson could not detect Fibromylagia was understandable as the applicant had had three years of rest.
The applicant submitted that as Dr Watson had stated at the hearing, the x-ray taken shortly after the accident would not necessarily reveal any abnormality. However, she contended that had Dr Hart referred her for a MRI at the time, the results may have been different.
In answer to the respondent's reference to the applicant's comment that her back was "excellent" on 8 October 1996, the applicant stated that the question had been put to her in a full medical centre waiting room where people normally reply in a positive way. In addition, and she stated that "with a back injury you can have good and bad days" that "there is a certain stigma associated with work-related back injuries".
The applicant submitted that her husband has never stated that he was having any problems with their marriage. The comments made by her on 10 September 1996 to her doctor regarding depression and marital difficulties were as a result of her severe pain and irritability. Further, the applicant stated that on completion of her rehabilitation, she returned to work, but there were no light duties provided and "no heavy lifting" did not eventuate. As she had no one to help her with her duties and no one to turn to, she proceeded on leave without pay as her sick leave was exhausted.
It was contended that the applicant did not seek medical expenses or incapacity payments after December 1996 and during 1997 because she was optimistic that she could cope although this "was not to be".
The applicant also submitted that she had "worked all through my difficult medical history…"
In her statement (Exhibit 1), the applicant outlined that she took six months off work in 1997 to recover from anaemia and depression, the result of continued complications from a stomach stapling operation. The applicant stated that she went to Melbourne so that her parents could look after her.
In her submission, the applicant clarified this statement by contending that after her trolley accident, she was placed in a gradual return to work program. After this, she returned to full-time work of light duties. She contended that during this period she undertook her normal duties to retain her position at work. This exacerbated her condition so that she took leave without pay on the advice of her treating doctor, Dr Watson between April and September 1997 and returned to her parents in Melbourne to recuperate from depression. Her depression was the result of loss of income, lack of sleep and constant lower back pain. She stated that she is always anaemic.
She submitted further that financial pressure caused her to return to work in December 1997. However, by March 1998, she again took leave without pay.
The applicant stated at the hearing that the only pain she was feeling was a pain in the lower back. She denied having a number of illnesses in 1998 and 1999.
The applicant related that Dr Watson had told her that she had Fibromialgia Syndrome and prescribed strong pain relievers and anti-depressants. He advised her to lodge a Comcare claim as in his opinion she was unemployable.
Respondent's Case
The submissions for the respondent (dated 22 March 2001 and 13 July 2001) argue that on the evidence of the applicant's claim form signed 10 days after the trolley accident of June 1996 and on the applicant's current submissions, that the applicant's current memory of the events of that incident is flawed.
It was submitted for the respondent that most of the additional evidence put forward by the applicant was either irrelevant to the issue in dispute or alternatively did not assist the Tribunal in that such evidence did not change the material facts relied on by the respondent.
It was argued that in particular, Dr Watson's report dated 30 April 2001 contained errors. At paragraph "1", Dr Watson had stated that shortly prior to the work related accident, the applicant's "cervical spinal pain secondary to the 1995 motor vehicle accident was progressively improving and not causing any restriction to a highly physical work role prior to the work related accident in 1996…". However, just prior to the accident of 12 June 1996, the applicant had told her general practitioner that her neck and shoulders were sore and stiff and that the pain had not settled since her car accident in July 1995. In addition, it was contended that there was no evidence that, as stated in paragraph 4 of that report, that the trolley incident at work caused the cervical condition to flare nor the pain to increase.
Counsel for the respondent also argued that though the trolley incident happened on 12 June 1996, the applicant did not seek medical attention until 21 June 1996. Contrary to what Dr Watson stated in paragraph 3 of his document, the applicant was treated with Endone and was not referred to an orthopaedic surgeon until July 1996.
Reference was made to the doctor's statement at paragraph 9, that "there is nothing to suggest that depression or other emotional problems were or are a primary cause of her work absenteeism". It was submitted that the applicant's own statement (Exhibit 2) included a reference to the fact that she took six months off work in 1997 and went to live with her parents due to her being run down, depressed and anaemic, allegedly as a result of complications from a stomach stapling operation. Counsel alleged this time off work was actually related to the applicant's marital difficulties and depression.
Further it was contended that the applicant's husband and sons assisted her in her activities, contrary to Dr Watson's statement that the applicant did not avoid activity and continued to physically manage home duties and care for the five family dogs.
The respondent argued that the symptoms as a result of the motor vehicle accident of 1995 were significant as the applicant was absent from work for 10 weeks. It was submitted that because of this, Dr Watson's view that the 1995 injury did not cause incapacity could not be accepted. In addition, in view of that the fact that Dr Watson did not explain why Fibromyalgia was not related to the cervical spine injury and that Dr Watson's "thoughts" as he referred to them were based on assumptions which were contrary to the evidence, it was submitted that the opinion Dr Watson should not be relied on.
Dr Hadlow considered that the effects of the injury of 1996 should have been resolved within 12 months of the injury being sustained. Therefore it was argued for the respondent that the applicant no longer suffered from the effects of the 1996 injury or exacerbation of the 1995 injury.
Considerations
Dr Watson has diagnosed the applicant as suffering from Fibromyalgia secondary to lower back injury. He has also agreed with Dr Hadlow's opinion that the applicant's condition could be classified as Chronic Pain Syndrome. After considering the medical reports, I am not satisfied that the applicant is suffering from chronic generalised pain. However, I accept that the applicant, at the time of this application, was suffering a condition, one of the symptoms of which was varying degrees of pain. As such, I am of the opinion that the applicant was suffering from a "disease" within the meaning of section 4 of the Act.
I have noted that the applicant suffers from problems of memory. However, I am not satisfied that, apart from such considerations, the applicant was sufficiently consistent or accurate in the reporting of events and symptoms to be relied on as a witness without corroboration.
I have noted that the applicant's version of events has changed depending on the person to whom she is relating and the reason for the confidence. The applicant referred to her deteriorating marital situation in a consultation with Dr Watson (his report of 10 March 1997). At that time, Dr Watson recorded that the applicant stated that this problem had only arisen since the establishment of her chronic pain status and secondary irritability and exhaustion.
In her submission, the applicant states that the comments made by her on 10 September 1996 to her doctor regarding depression and marital difficulties were made as a result of her severe pain and irritability. However, in her discussions with Dr Green in November 1997, the applicant has indicated that her marital problems were of 10 years standing.
She has also provided different reasons for her travelling to Melbourne in 1997. To Dr Green in late 1997 she explained that it was associated with her considering leaving her husband. In her statement at Exhibit 4 she stated that she went to Melbourne so that her parents could look after her because she was "run down and anaemic". In her supporting evidence at T19, the applicant stated that Dr Watson had recommended she take the time off to recuperate from diagnosed depression and the lower back pain. Although Dr Watson's report at T32 indicates that he recommended time off for the applicant and that she return to her parents care in 1999, I have found no such reference to a similar recommendation by Dr Watson in 1997.
I have noted that the applicant was provided with a certificate for light duties of two hours per day from 31 July 1996 until 4 August 1996 and then four hours per day until 12 August. However, the applicant's leave records indicate that she took leave over this period (from 11 July to 30 July) and then took sick leave from 3 August to 13 August 1996. I draw no conclusion from these observations except that the applicant did not participate in the graduated return to work program.
I have noted that Dr Watson in particular has had to rely on what the applicant has related to him of her circumstances and symptoms in his diagnosis of her condition.
Dr Watson's report dated 10 March 1997 (T11) appears to be a compilation of his notes taken during consultations with the applicant which began in May 1996, that is, before the applicant sustained her back injury. It is therefore, reasonable to assume that Dr Watson first saw the applicant with regard to the problems she was having with neck and other pain associated with her motor vehicle accident of 1995 and not specifically for any back problem she may have sustained. That this is so is confirmed by the entry dated 17 April 1996 at Exhibit 11, although as I have indicated the origin and authority of this document has not been disclosed and therefore this document cannot be relied on.

From Dr Watson's initial report, I understand that the applicant reported that her neck problems had not been completely resolved at the time of the trolley accident and were aggravated by this incident. However, the only other evidence I have regarding neck pain is a reference to the applicant's leave records for the period 14 April 1996 to 17 April 1996 at which time the applicant took sick leave and gave the reason "neck pain".
No details of individual consultations between the applicant and Dr Watson are before me and Dr Watson has provided no clear indication in any of reports to indicate when she first consulted him about her back.
In the report of 10 March 1997, Dr Watson refers to the fact that the applicant saw him on 4 November 1996 and told him she had "very significant pain which was chronically irritable with very significant pain". In its context, this statement appears to relate to the applicant's neck condition and not to any pain the applicant might be suffering with respect to her back injury. The applicant refers to "almost constant headache and a burning neck pain with restricted movement and referred pain to the right scapula".
I note, that the applicant's medical records from her medical centre do not show any reference to neck pain from the time she attended Dr Hart on 16 June 1996 to 12 November 1996 when the records cease (T6). The applicant appears to have kept her concerns regarding her neck and back solely for her infrequent consultations with Dr Watson until she was referred to Dr Hadlow and Dr Stevenson.
The first reference to pain associated with the applicant's back is in that report of 10 March 1997 (at page 2) where Dr Watson states "...I believe she continues to have a very significant multi level spinal pain problems, predominantly lumbar…". This is not a clear reference, and is based on what the applicant has told Dr Watson, not from any medical assessment he has carried out. Indeed, in all his reports, Dr Watson makes no mention of clinical tests used to evaluate the applicant's condition. It therefore appears that Dr Watson has used the applicant's reported symptoms and history as the basis of his opinions and diagnoses.
Because of this I have concluded that Dr Watson was not provided with frank information from which he could draw an accurate conclusion as to diagnosis.
Despite the applicant advising Dr Watson, Dr Hadlow and Dr Stevenson that her symptoms of back pain have been present since the trolley accident, I note that the applicant first mentioned that her symptoms had been continuous (to Dr Watson) some three months after the closure of the applicant's rehabilitation file. This is despite the many opportunities the applicant has had to mention her pain to general practitioners she attended in the intervening period.
In particular, I note that Dr Watson believed that the applicant's back pain had been present consistently since the accident of 12 June 1996 (PT37 and oral evidence).
The applicant's contention that she thought she could cope and therefore did not seek further assistance with medical costs cannot be sustained when there is no reliable documented evidence of back pain in the relevant period to November 1996. In addition, from the evidence presented, I am satisfied that the applicant was not a person to refrain from seeking medical assistance or taking time off for recuperation from any ailment, whether it was for the pleurisy, heat exhaustion, stress, stress fatigue, sore back, or any other complaint. The applicant presented herself to this Tribunal as a person with a problem attributable to only one cause, the accident with the trolley in June 1996. However, after considering the evidence presented, I am aware that other factors have been present in the applicant's medical history which must be discounted if she is to succeed in this matter.
When asked during the hearing if his conclusion would alter if he was advised that the applicant's back was much improved by August and excellent by October 1996, although her depression was worse, Dr Watson thought it highly unlikely that the pain complained of after this was due to the accident.
This conclusion is supported, for different reasons, by Dr Stevenson and Dr Hadlow. I am aware that Dr Hadlow only examined the applicant in 1999 and made reference to the applicant "slipping in the freezer". I also accept that Dr Hadlow's comment that the injury was a soft tissue one which should have resolved within 12 months could be suppositional as he did not assess her at the time of the injury. However, I also note that Dr Hadlow drew his conclusions from a medical examination of the applicant which was fully documented. This physical examination of her showed no clinical evidence of significant musculoskeletal structural spinal injury.
In addition, although no medical evidence of a diagnosis of the injury the applicant sustained on 12 June 1996 has been provided, a claim for "lumbar back sprain L4/5 ligaments" associated with the injury of 12 June 1996 was accepted by the respondent (T43, page 112). I am satisfied that this was the initial diagnosis and injury sustained by the applicant.
Dr Stevenson stated that he could not support a diagnosis of Fibromyalgia, based on the tests he carried out on the applicant. However, as he stated that the reliability and validity of these tests have not been established, I do not rely on this diagnosis. However, he could not find, from the MRI scan, any support for the proposition that the applicant had sustained a long-standing injury causing back pain either from her car accident or from the trolley accident.
The MRI carried out in December 1999 indicates that the only physical explanation for the applicant's current back pain could be from a degenerative condition. The x-ray taken of the applicant's back contemporaneous with the trolley accident did not show any physical damage but did show minor degenerative changes beginning at the L5-S1 level. I am not satisfied that a MRI done at the time would have showed any other result as the L3/4 and L4/5 areas in particular were examined at that time. Further, the two radiological examinations carried out in April and December 1999 showed no abnormality apart from the degenerative changes at L4. These findings were supported by the results of the MRI scan conducted on 10 December 1999.
Because of this evidence, I am not satisfied that the changes indicated on the MRI's are related to the 1996 incident. My conclusion gains support from the fact that, despite Dr Watson's claim to the contrary in his letter of 7 February 2000 (T37), the applicant does not appear to have been "consistently severely handicapped by [the back pain]" since the trolley accident.
The certificate provided by Dr Kennedy recommending sick leave from 24 February 1998 until 31 December 1998 (T18), did so on the basis of multiple medical problems of which "multi-level spinal pain" was but one of four reasons given. The other reasons were epilepsy, factor v deficiency and depression. I assume from the address shown on this report, that Dr Kennedy is but one of a number of doctors with access to the applicant's medical documents held at the Hermit Park Clinic. The reference to "spinal pain" was not explained further, nor was any basis for this diagnosis provided.
Dr Kennedy's reference to the applicant's chronic neck pain in her report dated 11 February 1998 (T14) does not assist me in this matter. Again, no details were provided as to how this diagnosis was reached. Excerpts from the applicant's medical documents before me do not support such a comment.
For these reasons I am not satisfied that, during the period from 18 March 1998 until 31 December 1998, the applicant was incapacitated for work because of the effects of a work related incident of 12 June 1996.
From the evidence presented, I am satisfied that the applicant experienced symptoms of pain in the back and the neck at the time of the trolley accident in June 1996, but that these symptoms resolved and in the period from 8 September 1996 until at least 4 March 1997 the applicant's medical concerns were related to other matters. I am therefore satisfied that the applicant did not suffer continuing or ongoing incapacity as a result of the trolley accident.
For these reasons, the decision under review will be affirmed.

I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 March 2000
Date of Decision  2 May 2002
Applicant  In person
Respondent  Miss Ford of Counsel