Titterington and Telstra Corporation Ltd - [2002] AATA 1014

DECISION AND REASONS FOR DECISION [2002] AATA 1014

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1140

GENERAL ADMINISTRATIVE DIVISION          )
           Re      RODNEY TITTERINGTON
  Applicant
           And    TELSTRA CORPORATION LTD
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date25 October 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) K L Beddoe
Senior Member
CATCHWORDS
WORKERS COMPENSATION – liability – back injury - whether applicant suffering from a compensable injury – whether injury is of a degenerative nature
Safety Rehabilitation and Compensation Act 1988
Health Insurance Commission v Van Reesch (1996) 45 ALD 302

REASONS FOR DECISION

25 October 2002 Mr K L Beddoe, Senior Member

This application relates to a decision of the respondent's insurer, dated 4 August 2000, which determined that Telstra was not liable to pay compensation to the applicant in respect of a cervical spine condition. That decision was affirmed on 29 September 2000, following an internal reconsideration. The applicant sought a review of that decision by this Tribunal.
This matter was heard in Brisbane on 18 and 19 July 2002. In addition to the "T"-documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the Tribunal had before it the following exhibits:

Exhibit A: A bundle of documents including a letter from Dr Splatt dated 24 June 1988; an application for leave completed by the applicant; and details of incapacity payments received and medical expenses incurred by the applicant;
Exhibit B: Clinical notes of Dr Todman;
Exhibit C: Report of Dr Tomlinson dated 29 January 2001;
Exhibit 1: Clinical notes from Stafford Medical Centre;
Exhibit 2: Letter from Dr Todman dated 24 November 2000;
Exhibit 3: Report relating to CT Scan by Dr Thorn dated 17 January 2000;
Exhibit 4: MRI Report dated Dr Anderson dated 18 May 2000;
Exhibit 5: Report of Dr Martin dated 27 April 2001.

Mr Smith of counsel appeared at the hearing for the applicant, and Ms Ford of counsel for the respondent. The Tribunal heard evidence from the applicant and a number of medical witnesses.
Factual Background
I make the following findings of fact:
(a)      On 21 March 1979, the applicant was sitting on a draftsman's chair at work when the back of the chair broke free. The applicant fell to the ground, landing heavily on a concrete floor. The applicant sought compensation for a "soft tissue trauma back" (T9, folio 22), for which liability was accepted for a closed period (to 18 July 1979) (T20, folio 33). As a result of this injury, the applicant was absent from work for various periods between 21 March and 17 July 1979.
(b)      On 28 April 1980, whilst removing equipment from the side of a work van, the applicant hit his elbow on the sliding door of the vehicle. The applicant claimed to have suffered an injury to his elbow and an aggravation of his former back and neck injuries. The applicant sought compensation in respect of his "left arm and neck" (T26, folio 43). Liability was accepted for this injury for a closed period (to 23 May 1980) on 19 December 1980 (T36, folio 56).
(c)       In July 1980, the applicant claimed to have suffered a re-occurrence of the injury to his neck whilst off duty. On 30 July 1980, the applicant was referred to Dr Blue for an assessment of his fitness for duty, and to assist the respondent in determining this further claim for compensation. Dr Blue reported to the respondent on 6 August 1980. He opined:
"EXAMINATION
There is no cervical deformity and a full range of cervical movement. Neurological examination of his upper limbs is normal. There is no wasting of his left hand's interossei and Froment's test is negative. X-rays of his cervical spine are normal. There is a full range of movement of his left elbow and wrist and no tenderness over his ulnar nerve.
OPINION
The incidents of March 1979 and April 1980 have not produced any permanent disability or loss of function nor predisposition towards same. There are no work restrictions and no treatment is indicated. His recent work absence is not related to either of the aforementioned incidents."

(d) Given Dr Blue's opinions, the respondent referred the claim for re-occurrence to the Commissioner for Employees Compensation with a recommendation that the claim be disallowed (T37, folio 57). The Commissioner recommended that liability be accepted for the following reasons:

"§ Dr T. Blue did not see the claimant until 30.7.1980 and apparently could not then find objective evidence of any liability.
§Dr D. Pincus saw the claimant at the time when there was, presumably, objective evidence of disability, and Dr Pincus' certificates indicate that he believed there was a compensable relationship.
§The C.M.O., Dr Wydell, saw the claimant on 16.7.1980 and recorded that the claimant complained of neck pain. That doctor found a definite audible click on certain of the claimant's neck movements and a diminished grip in the claimant's left hand.
§The history of onset of pain is consistent with a relationship between the employment and the outstanding medical expenses and incapacity for work.
…
3.Although Dr. Blue saw the claimant on 30.7.1980 and stated that there was then no work restriction, Dr Pincus had seen the claimant on 28.7.1980 and certified him as unfit for 5 days. It was not until Dr Pincus had seen the claimant on 31.7.1980 that he certified him as fit from 1.8.1980. It is therefore considered that liability can be extended up to and including 31.7.1980 on the basis that the claimant was simply following his doctor's instruction and had then no cause to believe that his absence would not be compensable."

Liability for the injury was accepted on 7 May 1982 for the period 28 July 1980 to 31 July 1980 (T40, folio 63).
(e)      On 7 September 1984, the applicant tripped on uneven ground in a car park and re-aggravated his injuries to his left shoulder and neck. He lodged a claim for compensation in October 1984 for strained neck muscles, which was accepted on 27 November 1984 (T44, folio 73).
(f)       The applicant lodged a claim for compensation on 1 December 1986 for an injury to his back, neck and shoulder that occurred on 17 October 1986. The applicant claimed that this injury was a re-occurrence of a workplace injury he suffered in 1979.
(g)      The respondent commissioned a report from the applicant's treating medical practitioner in relation to this claim. That report was provided on 10 April 1987. Dr Pincus stated:

"Mr Titterinton (sic) did not consult me for any incident on 7 September, 1984 but consulted me on 24 October, 1986, with left shoulder pain. Examination revealed increased tone of some of the posterioe cervical muscles and a tender area in the left trapezius. I injected this area with a steroid injection and manipulated Mr. Titterington's cervical spine.
I consider that Mr. Titterington has cervical spondylosis. He has a soft tissue lesion or lesions of the cervical spine, with recurrent episodes of pain in the neck, arms and shoulders referred from the cervical spine. This clinical state is consistent with the history of injury to the cervical spine as described as having occurred in 1979."

(h) The applicant suffered a further re-occurrence of his existing injuries in June 1988. He was declared unfit for work for a period of two weeks from 21 June 1988.

It would appear that no decision was made by the respondent in relation to the applicant's claims for compensation from the incidents in 1986 and 1988.
(j) On 9 May 2000, the applicant sent a workers compensation medical certificate to the respondent relating to a neck injury that was caused by "work". He requested that the respondent re-open his previous claim file. The applicant alleged that this injury was a re-occurrence of the injury he suffered in 1979 and 1980, and was caused by normal day-to-day work activities (T58, folio 98). The respondent arranged for the applicant to be examined by Dr John Watson on 19 July 2000. The doctor provided a report to the respondent on 24 July 2000 (T67, folios 111-114), in which he opined:
"This patient has a long history of cervical neck pain which he directly attributes to an incident which occurred on 21.3.79. The history initially suggests that he had damaged his foot and elbow, and had a soft tissue injury to the lower back. There was no evidence at that time that he was experiencing neck pain. He subsequently experienced a further incident on 28.4.80 when he hit his left arm on a vehicle's sliding door.
A report has been made available from Dr Blue dated August 1980 and he could find no objective clinical evidence of pathology at that time.
The incident of 28.4.80 has been reported on as only injuring his left elbow and his back.
If these injuries did take place on 21.3.79 and 28.4.80 they appear to have been minor and when reviewed subsequently by Dr Blue in August 1980 there was no evidence of compression of the spinal cord and no evidence of pathology. He had no evidence of neurological compromise involving the left upper limb and I would suggest the incidents of 1979 and 1980 have not produced any permanent disability or loss of function, and I would agree with the report submitted by Dr Tony Blue.
He has subsequently experienced ongoing pain and is developing degenerative changes. He has undergone investigations which have included a CT and MRI. Again, degenerative changes have been demonstrated, maximum at C5/6 and C6/7. There is no history of further incidents in relation to the last three months, and I would suggest the presentation is constitutional in nature and that degenerative changes are giving rise to the present subjective symptoms of pain. However, they are unrelated to the incidents he describes in 1979 and 1980.
…
The patient does have degenerative changes which I believe are constitutional in nature and unrelated to his occupation.
If aggravating factors did take place in 1979 and 1980, these have long ceased to be the reason for this patient's persistent cervical neck pain and I believe that the present pain in the cervical spine is directly related to general wear and tear and are constitutional in nature and unrelated to the incidents he describes."

The respondent also received a report from Dr Tomlinson dated 3 August 2000 (T68, folios 115-117). In that report, Dr Tomlinson stated:

"Mr Titterington has a left sided cervical radiculopathy. His symptoms are consistent with a left C7 radiculopathy. Imaging however demonstrates changes at both the C5/6 and C6/7 levels. Arrangements have been made for Mr Titterington to undergo diagnostic nerve root blocks in order to determine the symptomatic level or levels. This is important if Mr Titterington wishes to proceed with surgical therapy. It is too early to determine his final prognosis."

(k) On the basis of these medical reports, the respondent determined that it was not liable to pay compensation to the applicant in respect of this injury. That decision was affirmed on 4 August 2000, following an internal review.
Evidence Before the Tribunal

The Tribunal heard oral evidence from the applicant, Dr Francis Tomlinson, Dr John Watson and Dr Bruce Martin.
the applicant's evidence
The applicant gave evidence. He stated that he had worked for the respondent and its predecessors since 1961, and had approximately fifteen years service. The applicant took a redundancy payment in 2000.
Mr Titterington recounted the events surrounding his accident in 1979. He stated that he had been supervising a class of trainees, who were practicing telephone installations. He saw a chair in the corner of the training area and went and sat on it. He stated that when he leant back on the backrest of the chair it collapsed and sent him tumbling to the floor. As a result he suffered grazing on his elbow, and pain in his shoulder, back and neck. He stated that he did not injure his lower back in the accident, nor had he ever suffered lower back pain.
The applicant completed an accident notification form immediately after the incident (T5, folio 16). He then went to Dr Michaux's rooms for treatment. Dr Michaux prescribed Voltaren for the pain and gave the applicant an injection of cortisone in his left shoulder area.
Mr Titterington underwent physiotherapy every day after the accident, for a period of five days. He continued to see the physiotherapist, Mrs Judith Thurgood, over the following months, and years, as needed. He was also referred to Dr Toft, an orthopaedic surgeon.
The applicant gave evidence regarding the circumstances surrounding his second accident, which occurred in April 1980. He stated that he had been working in the field as a cable joiner. He was taking testing equipment out of his work vehicle when he swung his arm around and knocked his left elbow on the vehicle. He stated that the incident had caused damage and pain to his elbow, and had re-triggered the pain in his neck and shoulder area.
Following the accident, the applicant saw Dr Pincus, who treated him with manipulation. Dr Pincus recommended that the applicant be fitted with a specially made cervical collar. The applicant stated that he wore the collar for a "considerable period", and that he still wears the collar now, when he suffers particularly bad pain in his neck.
The applicant stated that he could not recall what had happened to cause the flare up of his injury in 1988. He stated that he had sought treatment from Dr Pincus in relation to the problem, and had received manipulation.
Mr Titterington was questioned about his appointment with Dr Blue, which led to the doctor's report dated 6 August 1980. He said that he had only seen Dr Blue for a short period of time ("Probably 5 to 7 minutes or 10 minutes, I'm not quite sure, but it wasn't a long period") and that his examination had consisted of a brief test of the applicant's grip.
The applicant also stated that he did not recall Dr Martin ever asking him whether he had struck his head when he fell from the chair in 1979, and stated that it would have been a lie if he had said that.
He stated that he has on-going pain from his neck, back and shoulder, and that he takes Voltaren for the pain as needed. He stated that, prior to the incident in 1979, he had not experienced pain in his neck, shoulder or back, with the exception of minor aches and pains.
Mr Titterington was cross-examined at length about his medical history prior to the incident in March 1979. He was questioned about treatment he received from Dr Pincus for shoulder pain in 1970; bach ache in the thoracic spine in 1971; pain in the trapezius muscle in 1971; and neck problems in 1974 and 1976. In particular, in September 1974, the applicant had presented to his doctor with a complaint of chest pains. The respondent raised the fact that the clinical notes from Stafford Road Clinic (Exhibit 1) revealed that Dr Pincus had believed that the applicant was suffering from neck problems at the C6/C7 level, the level at which the applicant now has degenerative changes. The applicant could not recall any of the treatments or injuries raised by the respondent in cross-examination.
The respondent also raised treatment the applicant had received at the Royal Brisbane Hospital for an injury to his forehead after being hit by a cricket bat in November 1979. The applicant stated that he did not recall suffering any neck pain after this incident, just headaches and nausea.
In cross-examination it was put to the applicant that he had not injured his neck in his fall from the chair in 1979. The respondent noted that all forms completed by the applicant after the accident referred to injuries to his back or shoulder. The respondent suggested that the applicant had had problems with his neck prior to the accident and that he had not mentioned any neck problems to the doctors who examined him shortly after his accident. The applicant explained that he had always referred to his neck as his back and considered them to be one and the same thing.
The respondent suggested to the applicant that in April 1980, Dr Pincus had thought that the applicant was suffering from cervical spondylosis, a naturally occurring degenerative condition. The applicant did not recall Dr Pincus telling him that he believed him to be suffering from cervical spondylosis, however he did agree that his condition has gradually become worse over time.
It was also suggested to Mr Titterington that his neck complaint was not greatly interfering with the quality of his life or his ability to work. In particular, he agreed that he was able to complete paving work at his matrimonial home and that he was able to load and unload his personal belongings from a truck when he moved out of the matrimonial home. However, he stated that he had adopted a method for laying the pavers, which had minimised the pain, and that he had not carried heavy items when moving his belongings.
The applicant stated in his evidence that he had had one successful and two unsuccessful nerve-blocking procedures in his neck. The successful procedure, performed by Dr Ferguson, had provided him with relief from pain for about six to seven months.
evidence of dr tomlinson
Dr Tomlinson is a neurosurgeon who examined the applicant and provided several reports in relation to this matter. Dr Tomlinson stated that the applicant's symptoms of neck pain are consistent with compression of the cervical ring in the neck. The doctor agreed that such symptoms could be caused by a fall from a chair in the same manner as the applicant's accident.
Dr Tomlinson considered that the various diagnoses made in relation to the applicant in the months following his accident were consistent and compatible with his diagnosis of nerve root irritation at C5/6. The doctor considered that the fact that the applicant had complained of paraesthesia after his fall in 1979 was particularly important in demonstrating the consistency of his condition; that is, paraesthesia is consistent with irritation of the nerve root.
The doctor considered that the second injury the applicant suffered when he hit his arm on the door of his work van would have caused an aggravation to his condition. He considered that the existence of paraesthesia was the key piece of information connecting the initial injury to the applicant's current condition.
Under cross-examination, Dr Tomlinson stated that he would not consider the degenerative changes in the applicant's spine to be the cause of his neck pain. The doctor is of the view that the term "cervical spondylosis" is used very loosely and can refer to the presence of some degenerative changes in any part of the spine or neck. He considered that the compression of Mr Titterington's nerves was being caused by a disc injury occasioned in his fall in 1979, and not the degenerative changes in his spine.
The doctor agreed that there may be four causes of nerve root pain: (1) a frank injury to the nerve root whereby a disc protrusion injures the nerve before the disc protrusion retracts; (2) the existence of some residual material from a disc protrusion that does not retract but which is too small to be detected on an MRI scan; (3) a combination of these two causes; or (4) degenerative changes in the spine. The doctor stated that he believed the cause of the applicant's pain was his accident in 1979, which had caused a disc protrusion, which injured the nerve before retracting. He did not believe that the degenerative changes in the applicant's spine were the cause of his nerve root pain.
Dr Tomlinson was questioned about whether any pain the applicant suffers from his nerve root irritation would be ongoing and continuous. The doctor explained that it would be possible for the applicant to experience periods where he suffered little pain. The doctor opined that if the original injury had caused a disc protrusion, which was irritating the nerve root, once that protrusion had retracted the pain would decrease. The pain would increase again if the applicant suffered more narrowing or degenerative changes, or if he exacerbated the injury or the disc protruded again.
evidence of dr watson

Dr Watson is an orthopaedic surgeon who has provided a report in relation to Mr Titterington (T67, folio 111). He was called to give evidence by the respondent.
Dr Watson disagreed with Dr Tomlinson's diagnosis of the applicant's condition, stating that there was no evidence to support Dr Tomlinson's findings. The doctor opined that the applicant was suffering from a degenerative cervical spine condition, which was evidenced by the MRI and CT scans performed on the applicant. Dr Watson did not consider that the existence of paraesthesia in the applicant's symptoms would necessarily mean that he was suffering from a nerve root injury. He considered that the paraesthesia could have been caused by a minor irritation of the nerve root due to his cervical spondylosis. The doctor considered that the applicant's symptoms are compatible with degenerative changes in the spine and not with a frank injury to the nerve root.
Dr Watson stated that, had the applicant suffered a disc protrusion or other nerve root injury in the fall, he would have expected him to have complained of neck injury at the time, and that the pathology in the neck would have been detected earlier than three months after the accident. The doctor considered that if the applicant had suffered a disc injury at C5/6 in the fall he would have experienced significant pain and that such an injury would have been evident on the MRI and CT scans.
Under cross-examination, counsel for the applicant suggested to Dr Watson that the applicant's CT scan was not sufficiently clear to allow the detection of a small piece of material that may be affecting the nerve root. The doctor did not agree that the scan was compromised and stated that, having regard to all the material before him, he had been able to make an appropriate judgment as to the applicant's condition by reference to the scan.
Dr Watson was questioned about his reference in his report (at page 3) to the initial history of the applicant's injury suggesting that he had suffered a "soft tissue injury to the lower back". The doctor couldn't recall whether he had been told by the applicant that he had suffered an injury to his lower back, or whether he had read it in some of the material. However, Dr Watson would not agree that the reference to a lower back injury was an error on his part. He stated that what was written in his report is what he believed to be true. He reluctantly conceded that it was possible that the applicant could have injured his neck in the fall from the draftsman's chair, but opined that the injury would have been minor.
The doctor conceded that he is not an expert in nerve root pathology, nor does he have any expertise in the are of electrophysiological studies. Dr Watson agreed that the electrophysiological studies performed by Dr Tomlinson showed evidence of denervation in the left triceps muscle indicating nerve root irritation, consistent with left C7 radiculopathy. Dr Watson further agreed that if a nerve root block had provided some relief from pain and symptoms then the patient would be suffering from a nerve root problem. The doctor stated that he did not dispute that the applicant was suffering from a nerve root problem, but said that he did not believe that it was possible that the symptoms the applicant is now suffering from could be related to his accident in 1979.
Dr Watson stated that there was no evidence to support the opinion expressed by Dr Tomlinson that the applicant's nerve root problem was the result of his fall in 1979, nor that he had suffered a neck injury in the fall. The doctor did not dispute that the applicant has radiculopathies related to C7, but opined that this was caused by the patient's age and not by the accident. He considered that any injury to the neck occasioned in the fall would have been of a temporary nature.
evidence of dr martin
Dr Martin is an orthopaedic surgeon practicing at the Wesley Hospital. He examined Mr Titterington in April 2001 and provided a report to the Tribunal (exhibit 5).
Dr Martin has diagnosed Mr Titterington as suffering from C7 radiculopathy. He opined that the most likely cause of this nerve root problem would be degenerative change of the C6/C7 disc level, causing the narrowing of the relevant nerve root canal and irritating the nerve root. Dr Martin stated that such irritation, from the narrowing of the canal, could cause pain down the arm, similar to the pain Mr Titterington complains of.
The doctor was of the view that the applicant was suffering from advanced degenerative changes. He considered that the applicant's medical history, in relation to neck complaints before and after the fall in 1979, was consistent with cervical spondylosis. Dr Martin stated that symptoms of cervical spondylosis occur over a number of years and that a history of intermittent symptoms with various episodes of pain is consistent with a fairly long history of cervical spondylosis.
Dr Martin did not consider that the applicant's fall from the chair in 1979 had contributed in any way to the condition the applicant now suffers from. The doctor stated that he would have expected the applicant to have complained of neck pain immediately after the accident. He considered that the fact that the neck did not dominate the applicant's symptomatology indicated that it was unlikely that the applicant had suffered a neck injury in his fall. Although, in cross-examination, he did agreed that it is possible for a person to suffer referred pain from a cervical spine injury in the scapular area, and therefore not complain of neck injury immediately after an accident.
The doctor stated that the physiotherapy treatment that the applicant had received to his neck in the months after the fall would have been for the treatment of symptoms of cervical spondylosis. The doctor agreed that even if the applicant had injured his neck in the fall in 1979 the symptoms he now suffers from are unrelated to the injuries he sustained in the fall. For his current symptoms to be related to the fall, the doctor considered the applicant would have needed to have suffered disc injury at two levels. To cause such an injury, significant force would need to be involved. The doctor did not consider that a fall from a chair, one metre above the ground, would have caused sufficient force to render such an injury to the neck.
In cross-examination, counsel for the applicant suggested to Dr Martin that the applicant's complaint of paraesthesia of the left upper limb following his fall was significant and evidenced that a neck injury had occurred. The doctor agreed that irritation or compromise of conduction in the nerve normally causes paraesthesia, but he considered that if the applicant had suffered a direct nerve injury it would have been more likely to have occurred at the elbow level, at the ulna nerve.
Dr Martin agreed under cross-examination that the fall from the chair was a heavy fall and that he had down played the nature of the accident in his evidence in chief. But the doctor stated that there was no contemporaneous basis to suggest a significant neck injury had occurred as a result of the applicant's fall from the chair.
The doctor agreed that it was unlikely that the applicant would have been treated for neck pain by a physiotherapist on twenty-four occasions in the months following the accident, unless he was suffering from neck pain. The doctor further agreed that when a patient presents with complaints of pain in the base of the neck, has an audible click on certain neck movements and has diminished grip in the left hand, an investigation should be conducted to determine whether an injury to the neck exists.
Dr Martin accepted that it is possible that there could be some residual disc material causing irritation to the applicant's nerve root that could not be identified on the CT and MRI scans. However he did not considered that such a proposition fitted with the clinical presentation or the sequence of events in this case. He opined that if a piece of cervical spine had been displaced by the fall it would only have occurred due to the presence of pre-existing weakness in the applicant's cervical spine due to degenerative changes. However, the doctor would not agree that the applicant's fall from the chair in 1979 could have aggravated his pre-existing cervical spondylosis.
Consideration
Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that the Commonwealth is liable to pay compensation for an injury suffered by an employee which results in death, incapacity for work, or impairment.
The respondent argues that the applicant is not entitled to compensation under the Act as his current pain and incapacity is caused by a degenerative condition and not as a result of his fall from a draftsman's chair in 1979.
The applicant submits that the current symptomatology suffered by the applicant is causally related to his fall in 1979. The applicant contends that he suffered a disc injury in the fall, which has resulted in ongoing pain caused by irritation to the nerve root either due to a disc prolapse or from a fragment of material dislodged in the fall. Alternatively, it has been suggested that the applicant's fall exacerbated his degenerative condition causing ongoing pain. Either way, the applicant contends that the current symptoms suffered by the applicant were caused by his fall in 1979.
The doctors who gave evidence in this matter all agreed on one issue – that the applicant is suffering from nerve root irritation, however they believed that there is a different cause for this condition. Doctors Watson and Martin considered that the applicant's fall from the draftsman's chair would not have caused a frank injury to the applicant's nerve root. They opined that if such an injury had occurred, the applicant would have complained of neck injury immediately, although Dr Martin did concede that it was possible for a person to suffer referred pain in the back from a neck injury. Both considered the fall to have been relatively minor and incapable of causing a frank injury to the nerve root.
Doctors Watson and Martin both believed the applicant's nerve root irritation to be caused by degenerative changes in his cervical spine at level C6/7 and not by his fall in 1979. Dr Martin considered the applicant to be suffering from an advanced degenerative condition, which he stated is evidenced by the CT and MRI scans, as well as the applicant's history of neck complaints prior to the accident in 1979. Dr Martin considered that the pain the applicant was suffering down his arm could have been caused by the degenerative changes in his cervical spine.
Whilst Dr Martin conceded it was possible, only Dr Tomlinson was of the view some material may have broken away from the cervical spine in the applicant's fall, that was undetectable on the MRI and CT scans, which was causing the irritation of the nerve root. Dr Martin opined that if this had occurred, it would only have happened due to the weakening of the applicant's cervical spine caused by his pre-existing degenerative condition. However, he did not consider that such a diagnosis fits with the clinical presentation or sequence of events in this case. The Tribunal prefers the evidence of Dr Martin on this issue. It seems unlikely that the existence of some material irritating the nerve root would have gone undetected for over twenty years.
On the material before it, the Tribunal finds that the applicant is suffering from cervical spondylosis, a degenerative condition, in his cervical spine at the C6/7 level. The Tribunal is satisfied that the applicant was suffering from this condition prior to his fall from the draftsman's chair in 1979.
The Tribunal is satisfied that the applicant suffered neck pain as a result of the fall in 1979. In making this finding, the Tribunal has given no weight to the opinions expressed by Dr Blue in his report dated 6 August 1980. The Tribunal accepts that the applicant would not have received physiotherapy to his neck unless he was suffering from neck pain. The Tribunal has also had regard to the opinions of Dr Tomlinson that the applicant's paraesthesia was consistent with a neck injury.
Therefore, the issue for the Tribunal to resolve is whether the applicant's current neck pain is causally related to the injury he sustained in the fall in 1979, or whether the applicant's current neck pain is caused by his pre-existing degenerative condition.
In Health Insurance Commission v Van Reesch (1996) 45 ALD 302 at 307-308, the Federal Court held that it was possible for a person with a pre-existing back condition to suffer a compensable injury, where the injury was not an inevitable consequence of the pre-existing condition. The Court held that the presence of the condition did not preclude an applicant relying upon a particular event, which they say led to personal injury, in a claim for compensation.
Therefore, the Tribunal must decide, on the medical evidence before it, whether the applicant's injury to his neck is a compensable injury despite the existence of degenerative changes in his cervical spine.
As discussed in paragraph 4 of these reasons, as a result of the fall in 1979, the respondent accepted liability for a "soft tissue trauma back" injury to the applicant for a closed period. Following the second injury in 1980, the respondent accepted liability for a closed period for an injury to the applicant's "left arm and neck". The respondent then accepted liability for re-occurrence injuries that occurred in 1980 and 1984. Further re-occurrences allegedly occurred in 1986, 1988 and 2000. The respondent denied liability for the final claimed re-occurrence, which occurred in 2000. It is this decision which is the subject of this review.
The Tribunal is not satisfied that the applicant was being completely frank in his evidence. Particularly, the Tribunal found it surprising that the applicant had very little recollection of his history of neck complaints prior to the accident in 1979. But in other respects, the Tribunal found the applicant to be an honest and reliable witness.
On the medical evidence before it, the Tribunal is satisfied that the applicant's current neck pain is the result of degenerative changes in his cervical spine. The Tribunal is satisfied that any injury sustained to the applicant's neck in 1979 has ceased to be the reason for his current pain. The Tribunal may have reached a different conclusion if the applicant was relying on a particular incident or accident which he claimed had aggravated his condition in 2000. But on the evidence before it, there is no incident that the Tribunal can point to that may have caused an injury to the applicant's neck which was an unexpected consequence of his degenerative condition. The Tribunal would expect that a person suffering from cervical spondylosis may suffer pain in the performance of day-to-day activities. Such pain would not be an unexpected consequence of his degenerative condition.
The Tribunal considers that, more likely than not, the applicant's fall in 1979 aggravated his existing degenerative condition causing pain and paraesthesia due to an irritation of the nerve root. However, the Tribunal considers that such an injury would not have been ongoing and permanent in nature. The Tribunal is satisfied that the applicant's pain is derived from his degenerative condition and is not causally related to an injury he sustained more than 23 years ago.
Accordingly, the Tribunal affirms the decision under review.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member
Signed:         Denise Burton
  Administrative Assistant
Dates of Hearing  18 and 19 July 2002
Date of Decision  25 October 2002
Counsel for the Applicant        Mr Smith
Solicitor for the Applicant         Kelly & Agerholm
Counsel for the Respondent    Ms Ford
Solicitor for the Respondent    Sparke Helmore