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 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).

legislation

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;
…"

Section 14 of the Act relevantly provides:
Compensation for injuries
"14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."

Section 16 of the Act relevantly provides:
Compensation in respect of medical expenses etc.
"16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…"

evidence
cathryn wells

The applicant was aged 29 as at the date of the hearing, and was working for the Attorney General's Department as an administrative officer. Ms Wells told the Tribunal that as a child in 1975 she was involved in a car accident and suffered a laceration near the hairline of her forehead. She also fell into a swimming pool as a child, and received a laceration under her chin. She said that she fractured her wrist in 1988, and had a problem with her leg and back as a teenager that was treated by a physiotherapist.
The applicant recalled the incident at the end of 1995 in which she pulled a neck muscle at work. She said that she withdrew her claim for compensation in respect of this incident in January 1996 because she was led to believe by her physiotherapist that the injury had probably resulted from lifting heavy furniture when she was moving house the week before. In cross-examination she agreed that the 1995 injury was in the same region as that which is the subject of the compensation claim currently before the Tribunal, but said that she could not recall whether the pain she suffered in 1995 was the same or different from the pain she now experiences. She agreed that she had seen a physiotherapist for treatment following this incident, and was prescribed anti-inflammatory drugs.
In relation to the 1996 car accident, Ms Wells gave evidence that she rammed into the back of a car on her way home from work whilst travelling at a speed of about 60 to 70 kilometres per hour. The applicant said that on the night of the car accident she did not tell the doctors at Calvary Hospital that she had injured her neck, because the doctors had not asked her if she had injured her neck or had a neck problem. She said that she was in shock at the time and had a number of problems to contend with.
The applicant told the Tribunal that between the accident in 1996 and 1998 she did not suffer any other accidents or injuries to her body. She said that she did not raise compensation aspects relating to her neck in an email to Daniel Finn dated 31 January 1996, as she had no problem with her neck attributable to the car accident at the time. She agreed that between the time of the accident and the end of 1997, she did not complain to Dr Smethills of any problem with her neck.
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 evidence
dr 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.
Dr White said that there is a logical association between the type of trauma sustained in the car accident and the neck problems the applicant has had subsequently. He did not consider the applicant's childhood traumas to be at all associated with her current problems.
dr peter dewey
Dr Dewey, Orthopaedic Surgeon prepared two reports in relation to this matter, dated 17 February 1999 (T26) and 7 September 1999 (Exhibit R3). He said that he noticed very early degenerative changes in the 1996 x-ray at C3/4 and C4/5. He considered that the presentation of the applicant following the 1995 incident was consistent with degenerative neck problems, and said that such problems can occur in someone aged 25 (as the applicant then was). He said, however, that the degenerative change present in the 1998 x-ray was more than one would expect to see in a person of the applicant's age. He said that one would have to have a severely dominant injury to produce such demonstrative degenerative change within two years.
Dr Dewey said that heavy lifting may aggravate a degenerative condition to produce torticollis, and that if that had happened, one would expect to see symptoms within 16 to 24 hours. He said that the applicant's degenerative condition was naturally occurring, and because the applicant did not have significant lasting symptoms at the time of the car accident, he did not consider that it impacted the neck pathology.
dr howard galloway
Dr Galloway, Director of Medical Imaging at the Canberra Hospital, specialises particularly in musculoskeletal radiology and provided a report dated 6 April 2000 (Exhibit AB) following a request by the Tribunal (Exhibit AA). The report was based upon an examination of the 1996 and 1998 x-rays. He gave evidence that in both the 1996 and 1998 radiographs, there was normal overall bony alignment, the applicant's disc height was normal and he did not observe osteophytes or bony spurs. He said that he did not consider there to be any significant change in the condition of the applicant's neck as between the x-rays taken in 1996 and those of 1998.
Dr Galloway considered that the difference in his opinion and that of Dr White could be explained by the different perspective with which they approach the issue. He said that he assesses things specifically from the imaging findings, whereas Dr White, as a clinician, might approach the x-rays from the position of his clinical experience of the patient. Whilst Dr Galloway disagreed with Dr White that there is "obvious early osteophyte formation at C3/4 and at C4/5" (Transcript p119) when comparing the 1998 x-rays with those taken in 1996, he was not in major disagreement with him and considered that there is often a difference in perspective between clinicians and imaging specialists. In relation to the radiological report in 1998 of Dr Morwood (T8), he stated that the approach of Dr Morwood in those circumstances was different to the approach taken by himself, which was to objectively measure the x-rays. He said that a major complication in imaging of the neck and back is that there is a very poor correlation between an anatomical imaging demonstrated abnormality, and the degree and nature of a patient's symptoms. Dr Galloway in his report said "a substantial body of opinion, supported by a large quantity of recent high quality research, suggests that the substantiation of the causes of spinal pain is more appropriately made by spinal injection techniques rather than by imaging methods because of the extremely poor correlation between anatomical abnormalities and patient symptoms" (Exhibit AB).
respondent's submissions
Counsel for the respondent, Mr Watson, submitted that no incapacity has resulted from the motor vehicle accident of 1996, and that it was more probable than not that the applicant has an underlying susceptibility to neck injury.
Mr Watson submitted that the 1995 incident demonstrated the applicant's susceptibility, in the neck, to injury in simple circumstances. He submitted that the timing of the applicant's withdrawal of her compensation claim for the 1995 neck injury was crucial, being 14 days after the 1996 car accident. Mr Watson submitted that the withdrawal of the claim in those circumstances was evidence of an underlying susceptibility to neck injury in "simple circumstances", (Transcript p128) and was also evidence of the fact that there was no obvious neck injury in the car accident of 1996. He submitted that the applicant did not complain about neck pain until over two years after the 1996 accident, and he submitted that the symptoms in the applicant's neck since 1998 did not appear to be work related.
Mr Watson referred to Commonwealth v Butler (1958) 102 CLR 465 as an illustration of the application of principles of causation in compensation matters. He submitted that Dr White's opinion suffers from an improper reading of the x-rays. He resiled from reliance upon Dr Dewey's opinion in light of Dr Galloway's evidence, and did not seek to challenge the credibility of the applicant.
applicant's submissions
Ms Godtschalk submitted that the Tribunal should accept the applicant as a "witness of truth" who gave honest and credible evidence. She further submitted that Dr White's evidence still stands in a clinical setting, as he has knowledge of the medical history of the patient, conducted a clinical examination of the patient and was aware of the trauma resulting from the car accident. Ms Godtschalk submitted that Dr White, as supported by Dr Smethills, gave the most logical explanation for the applicant's condition, in that, on the balance of probabilities, there is clearly an association that can be made between the type of trauma sustained by the applicant in the 1996 car accident and the applicant's neck problems. She submitted that if Dr Galloway's evidence that there is no demonstrable radiological degenerative change in the applicant's neck is accepted, then a common sense clinical explanation must be given for a person of the applicant's age developing neck problems, and the car accident provided the most common sense explanation. She noted that Dr Galloway had indicated that there is often a poor correlation between what is present on x-rays and the symptoms actually experienced by a patient.
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.

In making these findings the Tribunal has drawn what it considers to be the inescapable inference that the probable explanation for the cause of the applicant's ongoing neck symptoms lies in the injury sustained in January 1996. The main thrust of the evidence of Drs White and Smethills points clearly in that direction, particularly the evidence regarding the nature of the car accident and the likely physical impact upon the applicant's cervical spine as a consequence.

The decision of the Tribunal is that the decision under review is set aside and in substitution therefore 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.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ................(Signed).............................
   D M Walkley (Personal Assistant)
Date/s of Hearing  6 March 2000 and 29 June 2000
Date of Decision  16 March 2001
Counsel for the Applicant        Ms Godtschalk
Solicitor for the Applicant         Gary Robb & Associates
Counsel for the Respondent    Mr Watson
Solicitor for the Respondent    Barker Gosling