Tocade and Comcare (Compensation)

[2018] AATA 3863

Tocade and Comcare (Compensation) [2018] AATA 3863 (15 October 2018)

Division:GENERAL DIVISION

File Number:           2017/4321

Re:Julianne Tocade

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Rayment QC

Date:15 October 2018

Place:Sydney

The reviewable decision is affirmed.

....................................[SGD]....................................

Deputy President Rayment QC

CATCHWORDS

COMPENSATION – workers compensation - back and neck injury – whether the applicant has entitlement to compensation for medical expenses and incapacity payments – conflicting medical evidence – reviewable decision is affirmed

REASONS FOR DECISION

Deputy President Rayment QC

15 October 2018

BACKGROUND

1. Ms Tocade was formerly an employee of the Department of Defence and now lives in New Zealand. She is now aged 82 and is not employed. On 6 January 1984, Ms Tocade was attending a work-related function and had a fall. The well-known neurosurgeon, Dr David Bleasel, who examined Ms Tocade later in 1984 described the incident as follows:

   On the 6.1.84 she stepped backwards into a landing bay, fell down striking her head and flexing her head forwards as far as I can understand. She did not loose (sic) consciousness, she was able to get up and carry on. She was at a small reception or farewell party. She had not taken any alcohol and in fact was carrying a can of Coca Cola in her hand as she fell.

2. He also commented that brain-scans and x-rays were taken, and that the x-rays showed some spondylosis of the neck and also of the lower spine. He stated that she was obviously suffering from pain, the result of her injury. She reported that typing with her arms stretched out in front of her, very definitely aggravates her pain and caused pins and needle discomfort in the hands.

3. Dr A Gonski reported that the x-rays dated 10 January 1984 of the cervical region showed a gross spondylosis at the C5-6 level, which he said were in his opinion, present for a considerable time. Dr Bleasel reported in January 1985 that while changes of degeneration of the cervical vertebrae would be very likely, she was symptom-free before the fall, and the injury she described was a serious one and could easily lead to soft-tissue damage of the cervical spine sufficient to cause the symptoms which caused her to cease working.

4. In 1984, the Commonwealth began to pay workers compensation to Ms Tocade apparently on the basis that the fall had aggravated her pre-existing spondylosis and continued to pay compensation until 29 May 2017, when it was decided by Comcare that it was no longer liable to pay compensation for medical expenses and incapacity. Ms Tocade has brought these proceedings seeking review of the decision of Comcare, on internal review, to maintain the determination of 29 May 2017.

   MEDICAL HISTORY

5. By 1985, she had relocated to New Zealand and Dr Worth reported in July 1988 that the continuing symptoms of Ms Tocade were likely to be caused by momentary insufficiency in the vertebrae basilar system, secondary to the cervical spondylosis in her neck.

6. Ms Tocade herself gave evidence before me, stressing in particular that she was symptom-free in relation to neck pain in 1984 and suggesting that the pain she has experienced in her neck region has continued largely unabated since 1984. Her evidence appeared to me to be genuinely given. One medical note recorded an alleged involvement in a motor car accident, which she firmly denied when asked about it in cross-examination. I am not satisfied that any motor vehicle accident occurred, and I do not reject Ms Tocade’s evidence in that regard. The note is, in any event, out of accord with the history given to other doctors in the 1980s.

7. In 2005, when Comcare had Ms Tocade reassessed, the radiological report (summarised by Dr Grant) included a remark that there was prominent degeneration end plate and facet joint changes in the mid and lower cervical spine with exit foraminal narrowing bilaterally at C5/6 and C6/7 levels. The diagnosis of aggravation of cervical spondylosis (osteoarthritis of the neck spine) aggravated by the fall in 1984 was confirmed to Comcare, and payments of workers compensation continued at that time. Dr Grant expressed the view that the condition at that time was still affected by the fall, but that the contribution at the time of his examination would have been “miniscule”. By contrast, Dr Stewart Reid from the Ropata Medical Centre expressed the view that the fall still made a contribution to her condition.

8. In 2006, Dr Garesh Kanji supported that opinion, stating that Ms Tocade had degenerative changes in the cervical spine before she developed cervical spine pain, which, he said were unrelated to the degenerative changes. He expressed the opinion that degenerative changes are “the natural consequences of stress applied to the spine throughout life” and are suffered in 60% of women by age 49 and 95% of all people by the age of 70, and do not lead to chronic neck pain in any percentage approaching that of the degenerative changes. He concluded that the fall was the cause of the continuing pain suffered by Ms Tocade. Dr Kanji compared the fall to whiplash injuries, commenting that of the 14% of people who suffer pain from a whiplash injury indefinitely, no objective investigations for the source of pain had been found. He said that the history which she gave gives rise to the distinct likelihood that there was biomechanical force exerted against the cervical spine/head at impact, which fits into the description of a whiplash type of injury.

9. He mentioned one hypothesis that is popular in the United States and Australia, that motor vehicle accidents may cause trauma to the bones or capsule of the zygapophyseal joints of the cervical spine.

10. The Comcare documents include a copy of an article by Dr Speldewinde, a rehabilitation musculoskeletal and pain physician from Canberra, who stated that the then current literature supported a suggestion that cervical disks account for 20-25% of all chronic neck pain, a marked change from the view which prevailed in the 1990s when it was said that cervical discs caused 100% of cervical neck pain. That paper supported some of the views expressed by Dr Kanji.

11. Comcare evidently decided to continue to make payments to Ms Tocade in 2006.

12. In 2017, Dr Chris Masters from the Ropata Medical Centre reported to Comcare that after some 33 years, it is impossible to attribute what proportion of her current symptoms are attributable to her neck injury and what proportion is attributable to osteoarthritis independent of the fall. Following that report from Dr Masters, Comcare discontinued payments.

13. In a report dated 22 June 2017, Dr Kanji expressed the opinion that it was highly probable that the trauma sustained in 1984 resulted in disc damage, and that over the subsequent decades, the narrowing seen on her 2005 x-rays developed in consequence. He stated that “discs in themselves do not narrow unless they have been traumatised”. This is an opinion which he had not expressed in his 2006 report, although the materials placed before him in 2006 included Dr Grant’s report of the 2005 x-rays. In 2017, Dr Kanji had access to the 2005 x-rays themselves.

14. In the course of this review, Comcare retained Dr Blair Christian, a consultant occupational physician practising in New Zealand. Dr Christian gave evidence before me in support of the opinions he expressed in a report dated 8 May 2018 and was cross-examined by Ms Tocade by telephone from her home in New Zealand. Ms Tocade did not lead any fresh medical evidence on this review, or call any witnesses other than herself. That was explained by Ms Tocade to be because she could not afford the cost of obtaining any other evidence, including oral evidence from Dr Kanji.

15. Dr Christian stated the opinion that the injury suffered by Ms Tocade in 1984 was a central or left-sided cervical spine soft tissue injury, which is expected to resolve within some months. He thought that it did resolve within a few months. He thought that her more chronic long-lasting symptoms do not relate to the fall of 1984, and that it was very likely that the fall has led to the pre-existing spondylosis becoming symptomatic, and that a series of other unrelated ailments led to her now widespread pain. He referred to diagnoses of polymyalgia rheumatic and an auto-immune SLE-like condition and arthritis in both knees, leading to knee replacements. He said that the fall very likely did aggravate the cervical spine spondylosis. He added:

    It cannot be stated with any degree of certainty, but it is very likely that in the normal course of events, over that timeframe [the period of more than 30 years since the fall], and with the degree of spondylosis seen in 1984, that Ms Tocade would have developed a degree of neck ache and headache related to the osteoarthritis.

16. Dr Christian was unable to be more specific about the nature of the soft tissue damage which Ms Tocade suffered in his opinion, in particular, whether it was a muscle or a ligament tear. So far as I can see, the view that soft tissue injuries were the result of the fall of 1984 was not expressed by the doctors who examined her in 1984 or 1985. However Dr Kanji seems to accept that the injury was a soft tissue injury when he describes the injury as, or as akin to, a whiplash injury. Acceptance that a soft tissue injury is involved does not entail that the injury was or was akin to a whiplash injury.

    CONSIDERATION

17. The view that Ms Tocade’s injuries had resolved within a few months of January 1984 is out of accord with most of the other medical reports, and if such a view had commended itself to Comcare or to the Commonwealth, it would have led to Workers Compensation payments being discontinued some 34 years ago.

18. The statement of Dr Christian that the fall aggravated the pre-existing spondylosis appears to accord with the majority views expressed in the medical reports, and such a view must have been acted upon by the Commonwealth and in 2005, by Comcare.

19. He said that the evidence supports the view that Ms Tocade is no longer suffering directly from any presumed soft tissue injury which occurred in the fall of 1984. He expressed a preference for the view of Dr Grant and referred to a number of records which Dr Kanji was unable to review.

20. The evidence which the applicant submitted should be accepted is that of Dr Kanji. She said that it should be preferred to any other opinion expressed in the case. On the other hand, Comcare asked me to accept the evidence of Dr Christian. They are diametrically opposed. Dr Kanji stated that the injuries were or were akin to whiplash injuries, entirely unrelated to the spondylosis.

21. He later (in June and July 2017) ventured another opinion, that the trauma may have caused the narrowing of discs observed in the 2005 x-rays. He referred to the narrowing as at the C4/5, C5/6 and C6/7 discs. However, narrowing was observed at the C5/6 discs in the 1984 x-rays and, it therefore appears, existed before the fall of 1984. Narrowing of the C5/6 disc was mentioned in Dr Hedberg’s report of 21 June 1984 to the Commonwealth Medical Officer, and the x-rays in question were taken on 10 January 1984. Narrowing at C4/5 discs and C6/7 discs may be similarly unrelated to the fall of 1984, and I cannot be satisfied about this hypothesis advanced by Dr Kanji.

22. The view expressed by Dr Kanji in 2006 is that this injury was like a whiplash injury, and that Ms Tocade is one of the 14% of whiplash sufferers who suffer pain indefinitely by a mechanism which, according to Dr Kanji, is unknown. The further opinion expressed by him that the spondylosis is a separate, unrelated condition to the whiplash injury is one not shared by any other medical practitioner whose report I have seen. What may be described as the consensus view among those who wrote a report supporting the claim of Ms Tocade is the view that the fall aggravated her pre-existing spondylosis.

23. The view of Dr Kanji that the injury from the fall in 1984 was in the nature of a whiplash injury was not one which commended itself to any of the medical practitioners who examined her in the 1980s, including those who examined her in 1984. In 1984, she was examined by Dr Hedberg, a consultant orthopaedic surgeon, her general practitioner Dr Cameron, Dr Kevin Bleasel, a neurosurgeon, and Dr Gonski. If she had the symptoms of whiplash, those gentlemen would have been very likely to record that fact.

24. I therefore cannot be satisfied on the evidence before me that Dr Kanji’s reports are reliable.

25. The question remains whether what I have described as the consensus view of those reports favourable to Ms Tocade, to the effect that the fall aggravated her spondylosis, should be regarded as still affecting her current condition in 2018, some 34 years after her fall. I have referred in [14] above the view expressed by Dr Christian about this matter. He thought that a “degree” of neck ache and headache would have been experienced by the applicant today, because of her spondylosis alone, although the matter appears to be a matter of conjecture, as Dr Christian noted. In other words, what she suffers from today is consistent with the radiology even if she had not suffered the fall of 1984. On the basis of that evidence, I cannot be satisfied that Ms Tocade’s current condition in her neck region is due to the fall of 1984.

26. When cross-examined before me, Dr Christian agreed with Ms Tocade that whiplash involves a soft tissue injury and that an x-ray cannot identify ligament damage, although an MRI sometimes can identify it. He agreed that disc tear can be caused by trauma or can be part of normal ageing life. He expressed the opinion that rotator cuff syndrome and bursitis in the shoulder are relatively common at Ms Tocade’s age and noted that earlier medical reports from the 1980s were to the effect that there was no shoulder injury at all. That led him to the conclusion that the shoulder problems currently experienced by Ms Tocade have developed in the years since the fall. Dr Christian took issue with Dr Kanji’s report on grounds largely consistent with the conclusions which I have reached in these reasons.

    DECISION

27. I have endeavoured in [26] to give a brief summary of what I take to be the most important aspects of the answers given by Dr Christian in cross-examination and the evidence given by Dr Christian in cross-examination does not cause me to modify the finding made by me in [25]. The reviewable decision is therefore to be affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

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Associate

Dated: 15 October 2018

Dates of hearing:	14 and 21 September 2018
Date final submissions received:	27 September 2018
Applicant:	By telephone
Solicitors for the Respondent:	Ms A Bortone, Sparke Helmore Lawyers Ms A Fernandes, Sparke Helmore Lawyers