Wells and Comcare - [2001] AATA 221

DECISION AND REASONS FOR DECISION [2001] AATA 221

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/124

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CATHRYN WELLS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date16 March 2001
PlaceCanberra

Decision The decision of the Tribunal is that the decision under review is set aside and in substitution therefor it is decided: 1. Pursuant to s.14 of the Act that the respondent is liable to pay compensation in accordance with the Act in respect of a flexion extension injury she sustained to the cervical spine on 17 January 1996 if the injury results in death, incapacity for work or impairment. 2. The respondent is to pay the applicant's costs reasonably incurred as agreed or in the absence of agreement to be taxed. 3. Liberty to apply.

............……(Signed)................……
DEPUTY PRESIDENT B H BURNS
CATCHWORDS
COMPENSATION – cessation of liability for damage to cervical spine – disputed radiological evidence – imaging expert called by the Tribunal – symptoms causally related to work related flexion extension injury to cervical spine – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 - ss4, 14, 16
Commonwealth v Butler (1958) 102 CLR 465
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538

REASONS FOR DECISION

16 March 2001 Deputy President B.H. Burns

This is an application by Cathryn Wells ("the applicant") for review of a reviewable decision made by Comcare ("the respondent") dated 24 March 1999 (T27), affirming a determination dated 10 September 1998 (T16). The decision determined that the respondent was not liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for degenerative damage to the cervical spine (cervical spondylosis without myelopathy).
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with exhibits tendered by the parties. The exhibits included a medical report by each of Dr Smethills (Exhibit A3), Dr White (Exhibit A4) and Dr Dewey (Exhibit R3). The Tribunal also separately tendered a medical report of Dr Galloway with the consent of both parties (Exhibit AB). In addition to the documentary evidence, the Tribunal heard oral evidence from the applicant and Drs Smethills, White, Dewey and Galloway. The applicant was represented by Ms Godtschalk, and the respondent was represented by Mr Watson, both of counsel.
At issue before the Tribunal is whether or not the respondent is liable under the Act to pay compensation and/or medical expenses to the applicant in respect of the abovementioned injury.
background
The Tribunal relevantly finds as fact the following which is not in dispute:
The applicant was born on 19 December 1970, and was aged 29 as at the date of the hearing.
On 26 October 1995 the applicant suffered a "stretched muscle – neck and upper shoulder" and took two days sick leave (Exhibit R4). She lodged a claim for compensation with her employer on 2 November 1995, but later withdrew this claim on 31…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wells and Comcare

Details

AGLC: Wells and Comcare [2001] AATA 221
Case: [2001] AATA 221
Decision Date: 16 March 2001

CaseChat Overview and Summary

The case of Wells and Comcare before the Administrative Appeals Tribunal involved a dispute over whether Comcare, the respondent, was liable to pay compensation and medical expenses to the applicant for an injury sustained in the course of employment. The applicant, born on 19 December 1970, had suffered a muscle strain in her neck and upper shoulder on 26 October 1995. She later withdrew a claim for compensation related to this incident. On 17 January 1996, the applicant was involved in a car accident, leading to a claim for compensation regarding a neck injury. Comcare initially declined the claim on 10 September 1998, which decision was affirmed on 24 March 1999. The applicant subsequently applied to the Tribunal for review of Comcare's decision.

The primary legal issue before the Tribunal was whether the applicant's cervical spine condition, diagnosed as cervical spondylosis, was causally related to the work-related injury sustained in the 1996 car accident. The Tribunal had to determine if the injury was an aggravation of a pre-existing condition or if it was a new injury arising from the accident. This determination hinged on the interpretation of statutory provisions under the Safety, Rehabilitation and Compensation Act 1988 and the weight to be given to the medical evidence presented by both parties. The case law references, Commonwealth v Butler and Adelaide Stevedoring Company Limited v Forst, provided guidance on how to approach medical evidence that is not definitive.

The Tribunal found that the applicant's cervical spine condition was indeed causally related to the 1996 car accident. The Tribunal accepted the evidence of Dr Galloway, an imaging expert, who provided an opinion that the changes seen in the 1998 x-rays were indicative of trauma, consistent with the 1996 accident. This was in contrast to the opinion of Dr Dewey, whose conclusions were rejected. The Tribunal found the applicant's evidence credible and reliable, and accepted it in full. Based on the evidence, the Tribunal concluded that the applicant's symptoms were a result of the flexion extension injury sustained during the car accident, which was a work-related injury. Therefore, the Tribunal set aside Comcare's decision and determined that Comcare was liable to pay compensation and medical expenses to the applicant.

The Tribunal ordered that Comcare pay the applicant compensation for the injury sustained in the car accident, along with associated medical expenses. The decision underscored the importance of medical evidence in determining the causal link between an injury and a subsequent condition, and highlighted the need for careful consideration of expert opinions in cases where definitive evidence is lacking.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At issue before the Tribunal is whether or not the respondent is liable under the Act to pay compensation and/or medical expenses to the applicant in respect of the abovementioned injury.background The Tribunal relevantly finds as fact the following which is not in dispute: The applicant was born on 19 December 1970, and was aged 29 as at the date of the hearing. On 26 October 1995 the applicant suffered a "stretched muscle – neck and upper shoulder" and took two days sick leave (Exhibit R4). She lodged a claim for compensation with her employer on 2 November 1995, but later withdrew this claim on 31 January 1996 (Exhibit R4). On 17 January 1996, at approximately 5.00pm, the applicant's vehicle collided with a stationary car (T30/62). The applicant was taken to Calvary Hospital where she was treated for a laceration to the forehead, soft tissue injury to the left knee and a graze to the left knee and right hip and certified unfit for work for 18 and 19 January 1996 (T31/66). Dr Smethills, General Practitioner, further certified the applicant unfit for work from 22 to 29 January 1996 (T33/68), and 31 January to 9 February 1996 (T36/71). On 31 January 1996 the applicant lodged a claim for compensation in respect of the injuries arising out of the car accident (T30). On 14 July 1998, the applicant lodged with her employer a fresh claim for compensation in respect to "degenerative damage in cervical spine" (T3/7). The applicant claimed that "due to a car accident in 1996 I now suffer a stiff neck which is due to degenerative damage" (T3/8). The applicant described the effects of the accident in that claim form as being: "have a constant ache and on occasions (3 since March 1998) my neck spasams (sic) and it stiffens up" (T3/8). On 10 September 1998, the respondent determined that it was not liable to pay compensation under the Act as there was insufficient evidence to establish that the applicant's "current condition for cervical spondylosis without myelopathy is part or a probable sequel to the injury… suffered on 17 January 1996" (T16/32). On 23 October 1998 the applicant requested a reconsideration of the determination made on 10 September 1998 (T20/36). On 24 March 1999 the respondent affirmed the determination made on 10 September 1998 (T27/52), considering that the condition suffered by the applicant was a disease rather than an injury, and that there was no connection between the disease and the applicant's work. On 23 April 1999, the applicant made an application to this Tribunal for review of the decision of 24 March 1999 (T1). Subsection 4(1) of the Act relevantly provides:"4(1) "injury" means:(a) a disease suffered by an employee; or(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;…"

Evidence

Evidence Before The Court

The applicant gave evidence that sometime in or about February 1998, she woke up and felt a stiffening in her neck which became progressively worse throughout the day, resulting in her attending a physiotherapist in the afternoon and using a heat pack. She said that she attended Dr Smethills who prescribed anti-inflammatories, which relieved the problem within a matter of days. In cross-examination she agreed that 23 March 1998 was the first time that she complained to Dr Smethills of a stiff neck. Approximately six weeks after that incident, she said that whilst visiting a friend on the south coast, her neck again became "frozen". She was in "severe pain" by the end of the drive home, and the pain went down her right arm. She had physiotherapy and painkillers once again. In approximately April 1998 she experienced the same pain and symptoms, and subsequently had x-rays taken of her neck. She told the Tribunal that Dr Smethills informed her that the x-rays showed "some problems" (Transcript p14) which could only be due to the car accident. Dr Smethills filled in the appropriate Comcare medical certificate that led to the claim for compensation being lodged. The applicant gave evidence that since the claim was lodged, there have been further incidents where the neck has frozen, and she continually has an aching neck and often wakes up with pins and needles in her fingers and hands.medical evidencedr robert smethills Dr Smethills has been the applicant's treating doctor since her birth. He prepared three reports in relation to the current matter, dated 20 July 1998 (T9), 1 October 1998 (T18) and 26 August 1999 (Exhibit A3). He said that he is in general agreement with the opinion of Dr White. He considered that the childhood accidents had nothing to do with the applicant's current neck problems, in that there were marked differences between the first set of x-rays taken at Calvary Hospital in 1996 and those of 1998. He told the Tribunal that he is not an expert on x-rays and would defer to specialist interpretation in that regard. Dr Smethills told the Tribunal that in his opinion the applicant would have suffered from a whiplash injury following the car accident, as she was concussed, had a laceration to the forehead and had soreness across the chest, all consistent with whiplash. He said that it often takes a couple of days for neck problems to emerge, and he was not surprised that a full range of movement was found upon examination at the hospital (Exhibit R5). As he did not see the applicant in relation to the 1995 incident, he did not consider it appropriate to proffer an opinion on that incident. dr owen white Dr White, Consultant Neurologist, prepared a report dated 7 May 1999 (Exhibit A4) in relation to these proceedings. He told the Tribunal that the 1995 incident "was insignificant in terms of long term sequelae" (Transcript p57) and did not consider that such a strain injury would cause problems of the sort demonstrated by the degenerative change shown in the 1998 x-rays. He considered that the 1996 x-rays were normal. He told the Tribunal that there were clear abnormalities present in the x-rays of July 1998, in particular, early cervical spondylosis of the C3/4 and C4/5 levels, and some osteophyte formation at C3/4 and C4/5. In relation to the osteophytes, Dr White was of the opinion that with a young person, osteophytes would be associated with trauma. He told the Tribunal that it is virtually unheard of to find degenerative change in someone of the applicant's age without either pre-existing trauma or some congenital pathology. He said that there is no indication of congenital problems in this case. He considered that the placement of the change at C3/4 and C4/5 was indicative of trauma being the cause of the problem.

Decision

Reasons for decision

Ms Godtschalk referred the Tribunal to Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 which proposed that when faced with medical evidence which is incapable of precision, the course of reasoning should combine common sense and logic. Ms Godtshalk submitted that on the facts of this case, based upon the applicant's history and the medical evidence of Dr White, the logical conclusion on the balance of probabilities is that there is a "causal connection between the work injury, the car accident and the applicant's present state." (transcript p.142).the tribunal's findings, reasons and decision The Tribunal found the applicant to be a most impressive witness. She was frank and honest in the giving of her testimony. The Tribunal gained the distinct impression that she, at all times, did her best to accurately relate to the Tribunal the events in question. The Tribunal has no hesitation in accepting her evidence. Dr Galloway was also an impressive witness, not only having regard to his impeccable credentials in the fields of diagnostic radiology, musculoskeletal radiology and musculoskeletal imaging, but in the objective manner in which he proffered his evidence and opinions. The Tribunal accepts his evidence without qualification (as did the parties) and particularly so as to his evidence concerning the x-rays taken of the applicant in 1996 at the time of her car accident and those taken in 1998. Dr Dewey's evidence as to the conclusions he drew from these x-rays is completely at odds with that of Dr Galloway's and is rejected by the Tribunal. The Tribunal formed the view that no reliance could be placed on the diagnostic opinions of Dr Dewey. Dr White was an impressive witness whose evidence as to what the 1996 x-rays showed was much in accord with the views of Dr Galloway. His evidence regarding the 1998 x-rays was, however, at variance with that of Dr Galloway. The Tribunal accepts Dr White's evidence to the extent that it is not inconsistent with that given by Dr Galloway. The remainder of Dr White's evidence is accepted by the Tribunal. He, in the opinion of the Tribunal, did his best to portray the applicant's situation in an objective fashion. Dr Smethills, who gave evidence, had the advantage of having seen the applicant in a clinical setting on many occasions from shortly after her car accident in 1996. He readily acknowledged that he was not an expert in radiological imaging and deferred to the experts in this field. He was frank and candid in the giving of his testimony. The Tribunal accepts his evidence to the extent that it is not inconsistent with that of Dr Galloway. The Tribunal makes the following findings of fact based on the accepted evidence and from the drawing of reasonable inferences from that evidence.1. On 17 January 1996 the applicant sustained a significant flexion extension injury to the cervical spine in a motor vehicle accident which arose out of or in the course of her employment for the purposes of s.6 of the Act.2. From time to time since 1998 the applicant has experienced significant restriction of movement of the neck and neck pain.3. The above symptoms are causally related (for the purposes of the Act) to the flexion extension injury which the applicant sustained on 17 January 1996.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.