Williams and Comcare
[2005] AATA 399
•5 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 399
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/26
GENERAL ADMINISTRATIVE DIVISION ) Re REBECCA WILLIAMS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member Date5 May 2005
PlaceSydney
Decision The decision of the Respondent on 27 October 2003 is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKERS COMPENSATION – permanent impairment – injured on journey to work - soft tissue injury – no permanent impairment – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s24 and 27
Administrative Appeals Tribunal Act 1975 s 37CASELAW
McDonald v Director General of Social Security (1984) 6 ALD 6
Musumeci v Department of Health (Northern Territory) (1990) 19 ALD 797REASONS FOR DECISION
5 May 2005 Mrs Josephine Kelly, Senior Member Introduction
1. On 25 June 1998, Ms Rebecca Williams, the Applicant, was injured when she was knocked down stairs at Town Hall station in Sydney on her way to work. On 5 August 1998, Comcare, the Respondent, accepted liability to pay Ms Williams compensation for a muscle strain to right side of neck and right trapezius muscle sustained in the injury (T22). (In this decision reference to documents included in the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act) and will be referred to using the document reference including the prefix “T”.)
2. Ms Williams is seeking review of Comcare’s decision to refuse her claim for compensation for whole person permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. (“the SRC Act”). The permanent impairment claim was for injury to her "soft tissue damage of right shoulder and neck”. The decision to refuse her claim for compensation was made on the basis of the report of Dr Stevenson [T62].
3. The primary decision was made on 22 May 2003. Following a request for reconsideration of that determination [T63], the reviewable decision affirming the primary decision of 22 May 2003 was made on 27 October 2003. The reason given was that Ms Williams’s complaints and presentation to medico-legal experts were inconsistent with the history of her medication and employment since 1998 [T69].
Issues
4. The issues in this case are:
· Does Ms Williams suffer from any permanent impairment, for which compensation is payable, as a result of her compensable condition of "muscle strain to right side of neck and right trapezius muscle".
· If the Applicant does suffer from permanent impairment as a result of her compensable condition, then does the impairment exceed the 10% under the Comcare Guide to the Assessment of the Degree of Permanent Impairment.
Background
5. Ms Williams was born on 28 November 1977. She commenced employment with the Department of Health and Family Services as an administrative assistant in 1998. When she was knocked down the stairs at Town Hall station in 1998, she did not notice any pain until she got to the ticket machine at the exit from the station when she noticed pain in her right arm and neck. She consulted Dr Anthony at Centrepoint Medical Centre on the same day. He diagnosed "soft tissue damage of right shoulder and neck" and provided a medical certificate certifying that Ms Williams was unfit for work from 25 June 1998 to 26 June 1998 inclusive. [T9]
6. Ms Williams consulted her general practitioner, Dr Cecilia Wee, on 28 June 1998. Dr Wee diagnosed Ms Williams as suffering from "muscle strain right sided of neck and right trapezius muscle" as a result of the incident. Dr Wee recommended analgesic treatment, heat and physiotherapy and referred Ms Williams for an x-ray of her neck. She certified that Ms Williams was unfit for work from 25 June 1998 to 3 July 1998 [T11].
7. An x-ray of the cervical spine performed on 4 July 1998 showed no abnormalities [T13].
8. Ms Williams consulted Dr Wee again on 3 July 1998 [T12], 7 July 1998 [T14], 10 July 1998 [T15] and 17 July 1998 [T17] in respect of "muscle strain right side neck and right trapezius muscle". Dr Wee provided medical certificates on those dates, and indicated on each certificate that Ms Williams’s injuries were "slowly resolving". Those medical certificates certified Ms Williams as being unfit for work from 6 to 26 July 1998. Dr Wee recommended a range of treatments including hydrotherapy, exercises, heat, Valium at night, liniment, Nurofen as required, physiotherapy and Mersyndol Forte.
9. A CRS Australia Workplace Assessment was performed on 21 July 1998 by Joanne Spring, physiotherapist. Ms Spring recommended a number of work station adjustments for Ms Williams, including the provision of an ergonomic chair, a document holder, a foot stool, and a telephone head set. The report noted that Ms Williams was keen to return to full time work, but was taking significant time off work to attend physiotherapy appointments on the Central Coast [T18].
10. A Return to Work Plan was formulated, which stated that Ms Williams was to return to work full-time for 3 days, and 2 days of 5 hours. She was to avoid prolonged sitting, sitting with her neck in sustained flexion or rotation and any heavy lifting [T19].
11. On 26 July 1998 Dr Wee provided a medical certificate which stated "resolving muscle strain right side neck and right trapezius muscle". She certified that Ms Williams was fit for suitable duties from 27 July 1998 to 9 August 1998, as per the Return to Work Plan [T20].
12. On 24 August 1998 Dr Wee completed a Medical Review Certificate which stated that "full recovery" was expected in relation to the Applicant's injuries, and that the Applicant had returned to full time pre-injury duties on 24 August 1998. Dr Wee recommended ongoing physiotherapy treatment once per week, to reduce pain and increase the range of motion of the neck [T25]. On 20 September 1998 Dr Wee provided a medical certificate in which she stated that the Applicant's right neck and right trapezius spasm had resolved and specified physiotherapy treatment to continue until 25 September 1998 [T26].
13. On 29 September 1998 Comcare extended liability for specific medical treatment, namely physiotherapy on a weekly basis, from 23 August 1998 to 23 September 1998 [T27].
14. Dr Wee saw Ms Williams next on 20 October 1998 (Exhibit R3). The clinical notes refer to her having broken up with her fiancé after a 9 year relationship and to adverse impacts that had had on Ms Williams’s mood, reduced appetite, insomnia and irritability. She was prescribed Zoloft. There was no reference to any pain in the neck or shoulder.
15. On 13 January 1999 Dr Wee provided a medical certificate in which she diagnosed that Ms Williams was suffering a recurrence of right neck and right trapezius [muscle] spasm and pain. That is, there had been no complaint by Ms Williams about her neck or shoulder from September until this date, which was after she had stopped working. The doctor recommended treatment with analgesic medication (Mersyndol Forte) and physiotherapy, and certified her unfit for work from 13 January 1998 to 27 January 1998 [T29]. Dr Wee’s clinical notes stated that Ms Williams’s job had ended and that she had seen a solicitor recently because she was not receiving payment from the insurance company. The doctor prescribed Mersyndol Forte and recommended Ms Williams restart physiotherapy.
16. Dr Wee provided further medical certificates on 27 January 1999 [T30] and 9 February 1999 [T31] in respect of continuing right neck and right trapezius pain. She also stated that Ms Williams was also suffering from right rhomboid pain. Ms Williams was certified unfit for work from 27 January 1999 to 10 March 1999 (although the doctor noted that Ms Williams was still unemployed). Dr Wee saw Ms Williams for the last time on 9 February 1999 when she noted that Ms Williams was “looking for rental Sydney feels unable to seek work pro temp include clerical” (Exhibit R3).
17. On 9 March 1999 Ms Williams commenced acupuncture treatment with Dr Robert Ng. She also received acupuncture treatments from Dr Ng on the following dates: 18 March 1999, 23 March 1999, 30 March 1999, 6 April 1999, 15 April 1999, 21 April 1999, 30 April 1999 [T32]. Dr Ng became Ms William’s general practitioner after she moved to Sydney in February. His clinical notes beginning 23 February 1999 were in part of Exhibit R3. In that note is the first reference to a sore right shoulder and lower back.
18. On 8 March 1999 Ms Williams commenced massage treatment with Jeffrey Stewart, massage therapist. She also received treatments on 16 and 23 March, 1, 13 and 21 April 1999 [T32].
19. On 24 May 1999 Dr Ng provided a report to Comcare. He said that Ms Williams had developed a sore left shoulder, thoracic spine and lower spine as a result of favouring her right trapezius muscle which was injured on 25 June 1998. He also reported that she was suffering from depression and had been taking Zoloft anti-depressant medication, but was now taking Tofranil. In addition Ms Williams was taking Valium and Mersyndol Forte for pain and receiving massage and acupuncture treatment. On examination Dr Ng stated that Ms Williams was tender across her shoulders over her trapezius muscles, between her shoulder blades, mid thoracic spine, generally over her cervical facet joints and also over her lower back. Range of movement of the neck was limited to 50%, and flexion, extension and general range of movement of the right shoulder was also limited. Dr Ng diagnosed soft tissue injury to the cervical, thoracic and lumbar sacral spines. The history Dr Ng took from Ms Williams was that her symptoms from the initial injury in 1998 had not resolved when she moved to Sydney. However, he expected her to make a "reasonable recovery" from her injuries [T33]. This was followed by a report dated 30 June 1999 in which Dr Ng predicted that Mr Williams would make a full recovery from the soft tissue injuries to her cervical, thoracic and lumbar sacral spines [T34].
20. On 3 August 1999 Comcare accepted liability to pay for weekly acupuncture for Ms Williams’s accepted condition up to and including 30 June 1999 [T35].
21. Dr Ng’s notes during 1999 reflect that Ms Williams was working from 31 May of that year and that on 24 July she was coping although in pain. She continued to take medications including Panadeine Forte, Valium and something for insomnia. On 30 August 1999 the doctor reported that Ms Williams “fell backwards yesterday” and had a sore lower back. She continued to see Dr Ng and continued to report pain in right shoulder and neck and medication continued. She also had various therapies including massage.
22. She saw the doctor again in October and December 1999. On that latter occasion the doctor noted that her back was sore with work and “getting worse”.
23. In 2000, Ms Williams saw Dr Ng once in each of January, August, October and November. In January Dr Ng noted that she was working and “on hols – better”. In November she was working full-time although she was a temp. During that year there were various medications prescribed.
24. The doctor’s records for 2001 show Ms Williams attended on 16 February 2001, 8 March 2001, 23 March 2001, 18 April 2001 and 9 July 2001. There is nothing further until 30 January 2002, when the record keeping apparently became computerised. In 2001 medications continued to be prescribed, and it appears Ms Williams saw Dr Sollomon and a surgeon, psychiatrist and pain specialist. There is no report from Dr Sollomon in evidence. The 9 July note says “Comcare paying again”.
25. On 30 January 2002. The notes included
“PAIN BAD”, “TAKES A LOT OF PAIN TABS SAME AREAS – ON NECK AND LOWER BACK AND RT BUTTOCK BROKE UP WITH BOY FRIEND TONSILLITISCRIPTS”
26. In April 2002 Ms Williams found out something which caused her great emotional upset. She was working 16 hours a day according to Dr Ng’s clinical notes. The prescription of various medications continued until the last entry on 30 March 2004. The doctor noted on 2 February 2004 that she was off work and had pain in her neck, thoracic and lower back, upper limbs. On 30 March he noted “pain in neck and upper back worse also headaches”.
The Evidence of Ms Williams
27. Ms Williams gave evidence. She described how she was injured and the history of her medical treatment, her condition and her employment. I do not repeat her evidence where the subject matter has been dealt with above.
28. She said that she had been keen to get back to work after she was injured because she wanted to keep the promotion she had attained before the fall, and to be kept on after December. However, she lost her job in that month because her work needed someone full-time. She was attending physiotherapy on the Central Coast twice a week, suffering headaches, and was having days off. She was doing most things, except perhaps lifting. When she left her employment she had problems in her neck, shoulder and lower back.
29. Mr Elliott cross-examined Ms Williams about what happened in the second half of 1998. It became apparent that she had been on a contract that ended on 11 December 1998. She did not accept that she had returned to full duties in August 1998 and thereafter had no more time off until she left. She maintained that she continued to attend physiotherapy treatment and had days off. When it was suggested to her that physiotherapy treatment ended in September as noted by Dr Wee, she said that she thought “it had been longer”. She said that Dr Wee had not provided a medical certificate for her from September until she left work because she did not ask for one. Some days she had a headache and would throw-up and her supervisor would send her home. She also said that she asked for the physiotherapy to stop because she could do the exercises at home. That meant that she did not have to leave work early. She said she relied on people at work, for example to lift boxes for her. Ms Williams explained Dr Wee’s note of 24 September 1998 which stated that the shoulder and neck spasm had resolved, saying “I probably told her I was feeling better”. When challenged about there being no complaint by her to Dr Wee from September until January, Ms Williams said that Dr Wee had left the medical centre and that she was having massage. She also denied that she had suffered depression before moving from the Central Coast contrary to Dr Wee’s note of 20 October 1998 which described her break up with her boyfriend and prescription of Zoloft.
30. In her evidence in chief, Ms Williams said that she took five months off after finishing work and moved to Campbelltown in February 1999. During that time she did not risk doing things that would hurt her and had pain free days but not many of them. From about June 1999 for two years she worked for an agency called Kelly’s doing temporary work to enable her to take time off when it suited her.
31. Ms Williams worked for Telstra from sometime in 2001 or the beginning of 2002 for a year to eighteen months. She called customers and went out to visit them which involved driving. She sometimes travelled to the country. She got tired and suffered headaches driving around as she was using her arm and neck. By late 2001 she was sore in the lower back, neck, and shoulders. At some stage she asked to be taken off the road, and gave up that job because it was too hard. Ms Williams had taken the position in order to stay away from home because she was having personal difficulties. She took time off at her own cost because she was on contract. She has not worked since then because she is trying to get better to go back to work. She does not like being out of the workforce. She liked having her mind active and keeping busy and financially, there were not many things she could do.
32. Ms Williams said that she had had a headache every day for the last six years. They varied in intensity. On a good day they stayed in the base of her neck but on other days they would extend over her head to her eyes. On other days, she suffered migraine which included nausea. Sometimes they had gone by lunchtime but other days they got worse during the day. Her neck is always sore although she is not in constant agony. She suffers pain from her neck to her shoulders and between the shoulder blades. The neck and shoulder pain is always there although it varies in intensity and extent, as does the pain between her shoulder blades. In cross-examination she conceded that there were days when she did not have a great deal of a problem but there are other days when she cannot do anything. She described the lower back pain she suffers as being just above the tail bone and across. That pain varies in intensity but does not extend into the buttocks but does extend into the legs, particularly the right leg. When she was working in the city she took time off every so often.
33. At the time of the hearing she was having acupuncture, massage and chiropractic treatment. The latter treatment helps her lower back, neck and headaches. Massage also helps.
34. Ms Williams said that Comcare had paid her medical bills until September 2001. She stopped sending in invoices because she got part payment and a request about her sleeping tablets and tape for her back. The last acceptance of liability in evidence is for 8 sessions each of massage and chiropractic to be concluded within two months. Liability was accepted up to and including 12 December 2001 (T50, dated 12 October 2001).
35. She said that Dr Bornstein saw her only for 20 minutes. She found Dr Youssef a nice man and she was feeling good the day she saw him. She has not had an MRI scan because it is not cheap and she understands that it will not show muscular problems. She has had no specialist treatment.
36. Ms Williams got rid of her horses two years after her accident because of her neck and shoulder problems. She could not ride because she could not use her arms to restrain them and she had difficulty carrying bails of hay, buckets of lucerne. putting on rugs and filing hooves. She has two large dogs she used to walk and take 4-wheel driving. Now she is confined to playing with them in the backyard. She also has problems swimming and dancing.
Other Medical Evidence
37. A report from Dr Dent, psychiatrist, dated 24 August 2000 (although he had seen Ms Williams on 16 March 2000), was in evidence (T37). It was provided at the request of her solicitors. He found that Ms Williams was suffering from chronic pain disorder and recommended referral to a multidisciplinary pain management facility. He also diagnosed mild chronic adjustment disorder and specific phobia of a situation type and indicated a course of treatment he would provide if he were her treating doctor.
38. Dr Browne provided a report to Ms Williams’s solicitors dated 30 August 2000 (Exhibit A2). He noted that on examination the “cervical spine was restricted in range of rotation and lateral flexion with pain at the extremes of range by approximately 30%. At the right shoulder, there was painful internal rotation … There was also tenderness in the trapezius regions.” There were normal findings for the left shoulder, hands, thoracic spine movements, and the lumbar spine had a full range of movement possible. Dr Browne diagnosed:
“1. Mechanical cervical spine pain syndrome
2. Soft tissue injury to the right shoulder.”
39. Dr Browne found that the injury to her spine “would tend to make it difficult for her to continue to work in a seated position with the need to maintain her neck in fixed postures.” He also expressed the view that her social and sporting pursuits have been affected and that this has led to “significant suffering and loss of enjoyment of life.” He assessed “that there is a 10% permanent impairment of the neck and 10% loss of efficient use of the right upper limb at or above the elbow and including any loss below the elbow.”
40. Two reports from Dr Wallace, orthopaedic surgeon, dated 14 August 2003 were in evidence (T64 and T65). Dr Wallace saw Ms Williams at the request of her solicitors. Dr Wallace noted that Ms Williams had not worked “for the last two month due to depression”. He found that she had suffered a significant musculoligamentous strain at her cervical and lumbar spine and rotator cuff strain of her right shoulder as a result of the 1998 injury. He found that she would be unfit to return to full pre-injury duties but could manage permanent light duties on a part-time basis. He found the following whole person impairments according to the Comcare tables as a result of the injury: 5% to her cervical spine (9.6); 10% impairment according to Table 9.1 (regarding her right shoulder injury), 10% according to Table 9.6 in respect of lumbar spine, and using the Combined Values Tables, 23%.
41. Dr Stevenson provided a report to Comcare dated 9 May 2003 (T61). Ms Williams’s complaints of pain were similar to those given to other doctors – right and left sides of the neck, back of the head, headaches every day, and lower back pain. He concluded that the employment contribution to what was a soft tissue injury was temporary the “natural history is spontaneous improvement within weeks”.
42. In his report dated 9 March 2004 (Exhibit A1), Dr Berry (general surgeon) comments on the findings of Dr Glasson’s report of 16 February 2001 (T39). Dr Berry stated that Mr Glasson’s finding of the possibility of a T1/2 disc lesion extending to the left “is extremely doubtful.” This was based on the doctor’s experience that it is unusual for a disc to be damaged and that if the injury existed it is against the patient’s right sided symptoms.
43. He noted when commenting on Dr Stevenson’s report that “it would appear that the patient is giving a consistent history to the doctors she sees and she has consistently complained of ongoing pain in the neck, right shoulder and back.” His findings on examination of Ms Williams’s back were not the same as Dr Stevenson who found the movements in her back were near to normal, and acknowledged the difficulty of interpretation with soft tissue injuries. Dr Berry also acknowledged that Dr Stevenson is correct when he said that most soft tissue injuries settle within 6-12 weeks. However, Dr Berry comments that such injuries can also give prolonged disabling pain. He comments that factors including the injury itself, treatment of the injury by various people and the seeking of compensation are reasons why this type of injury is causing disabling pain. He continues to note that he has found “this young woman quite genuine and reasonable” and then concluded that there is no suggestion that she is malingering and thus “the patient appears to have the symptoms and disabilities that she claims.” Once he has accepted that she does have the symptoms then the patient has pain in the neck, right shoulder and back. Dr Berry acknowledged that the reason why it is continuing is unclear and “given the length of time that the situation has been going, it is unlikely to be resolved in the foreseeable future.” In conclusion Dr Berry states that “I can see no reason at this stage, despite the fact that a true pathological diagnosis can’t be made, that the patient can not be considered to have a definite permanent impairment involving the neck, the right arm and the back.” There were also in evidence reports of Dr Berry dated 23 October 2000 (T38) and 4 February 2003 (T52) and 27 February 2003 (T55).
44. Dr Youssef prepared a report dated 24 June 2004 (Exhibit R1). He took a history of Ms Williams’s ongoing treatment with physiotherapy, acupuncture and chiropracty. He reported to the Respondent’s solicitors that Ms Williams claimed that she experienced lower back pain and headaches, in addition to her other symptoms, from around 2000. He said that Ms Williams described experiencing headaches over the front of her head and the base of her neck which were present every single day and can pound like a migraine. Occasionally she experienced massive migraines in which she became nauseated. She “experiences pain in the whole of the right shoulder and in between the shoulder blades” and also complained of lower back pain. She was on eight to ten Panadeine forte a day, Mirtazone every night and 10mg of Valium twice a week.
45. Ms Williams told Dr Youssef that she was “able to shower and dress herself although occasionally she has problems removing her bra. She does approximately one third of the cooking and her partner does the remainder. They share the cleaning although she does not clean bathrooms or vacuum. She is able to do the ironing. She goes shopping for clothes in her own but all of the food shopping is done with her partner (unless she only has to pick up one or two small objects).”
46. She was also able to drive a manual car and drove without difficulty unless she was having a bad day. She no longer participated in any sport or exercise and this left her frustrated. She had no problems with physical intimacy with her partner.
47. The doctor noted that Ms Williams was able to sit comfortably throughout the 55 minute interview and she was able to dress and undress herself without difficult. He found her gait and posture normal and that she was able to hop on either leg, walk on her toes and squat and arise from a squatting position without any difficulty.
48. “There was a full range of movement in the neck although she did complain of mild pain on rotation and lateral flexion.” There was no tenderness on the thoracic or lumbar regions however there was some variability in range on movement in the lumbar spine. This was indicated by when she was standing that she was only able to flex 50% of normal but when seated up on the bed she was able to lean forward and touch her ankles.
49. Dr Youssef found that there was no upper limb wasting based on the maximal arm and maximal forearm circumference tests that were performed. He noted that the applicant “complained of mild pain on internally rotating the right shoulder and there was a minor limitation in this movement.” The remainder of the right shoulder movement was normal and the remainder of the musculoskeletal examination of the upper limbs was completely normal with a normal and pain free range of movement in all upper limb joints.
50. Dr Youssef commented on the report of Dr Berry dated 23 October 2000. He noted that Dr Berry found diffuse tenderness over the shoulder with discomfort on abduction and internal rotation and commented that “this was not evident today.” Dr Berry had also noted that on 23 October 2000 Ms Williams was tender in the mid thoracic and lower lumber spine. Dr Youssef commented that “this was not evident today.”
51. Dr Youssef reported that for the natural course of a soft tissue injury, “I would have expected her symptoms to completely resolve within two to four weeks of the incident.” There was no evidence of any fractures and no symptoms in the patient to suggest cervical radiculopathy. He stated that on examination “I could find no significant abnormalities in any part of her musculoskeletal system” and “I am unable to find any objective evidence of a physical disorder.” He did note that there were some signs of non-organic disease, which was indicated by the complaint of pain on downward pressure on the top of the skull. He also remarked that Ms Williams’s speech was slurred on at least two occasions due to her intake of Panadeine Forte and expressed some concern about her intake of opiate analgesic. He concluded that there is no physical reason “why she cannot return to full time work and, in fact, she has demonstrated an ability to work after the accident.” She did sustain a soft tissue injury related to the incident in 1998 but it was “transient. There was no permanent physical disorder.” Further, he found that Ms Williams does not require medical treatment for the condition and recommended “a regular and self directed exercise programme in order to lose weight.”
52. Dr Bornstein prepared a report dated 23 June 2004 (Exhibit R2). When he saw Ms Williams, she complained that her right shoulder was sore and it radiated to her neck. The doctor found that there was a full range of motion in the cervical spine and no muscle spasm in the paravertebral or trapezius muscles. The neurological examination of the upper limbs was completely normal and the sensations in the upper limbs were normal. No wasting in the upper limbs was present. “The examination of the back was entirely normal.” There was nothing to suggest any nerve root involvement and there was “no loss of lordosis, spinal list or muscle spasm in the back.” Dr Bornstein’s opinion was that “I can find nothing of an objective nature that would substantiate her on-going complaints of pain relating to her fall down the stairs in June of 1998.” He concluded “I found no evidence that she was suffering from an injury at this time, nor does she suffer from a disease or an aggravation of a disease at this time.”
53. The Tribunal had the benefit of oral evidence from Doctors Berry and Youssef.
Conclusion
54. I prefer the opinions of Drs Youssef and Bornstein to the opinions expressed by Dr Berry and other doctors who supported Ms Williams’s case and who relied on the history and complaints of pain, restriction and so on provided by Ms Williams. The clinical notes of Dr Wee support a finding that the shoulder and neck injury suffered by Ms Williams had resolved by the end of September 1998. That is consistent with the course of a soft-tissue injury such as Ms Williams suffered, as Doctors Stephenson, Youssef and Bornstein stated and as Dr Berry acknowledged.
55. The inconsistencies referred to above between Ms Williams’s evidence and Dr Wee’s clinical notes exemplify the difficulty I have accepting Ms Williams’s evidence. I find her evidence unreliable and prefer Dr Wee’s contemporaneous notes. Another example is that Dr Wee saw Ms Williams twice in 1999, contrary to Ms Williams’s evidence that the doctor had left the practice after September 1998 as the explanation why there was no further reference by Dr Wee to her neck or shoulder condition in 1998.
56. The first evidence of pain or injury to Ms Williams’s lower back was in Dr Ng’s clinical note dated 23 February 1999. I do not accept that such pain was masked by her concern with her other pain as was suggested by Mr Barter who appeared for Ms Williams. Dr Wee saw Ms Williams repeatedly following the fall until that time. I do not accept that lower back pain resulted from what was a soft tissue injury to the right side of her shoulder and neck. Ms Williams’s complaints varied over time to include both shoulders as well as her lower back.
57. I do accept that there has been consistency of complaints, various therapies and medication after January / February 1999, however, I am not persuaded that those complaints arise from the 1998 injury. While in some cases it may be as Mr Barter argued that the length of time that the symptoms have continued is a clear indication that the impairment is permanent (McDonald v Director General of Social Security (1984) 6 ALD 6, given my finding, that does not arise in this case. Nor does his argument that it is unnecessary to find objective evidence in support of any particular diagnosis for a condition once it is accepted that the applicant is in genuine pain (Musumeci v Department of Health (Northern Territory) (1990) 19 ALD 797.
58. I find that Ms Williams does not have a permanent impairment arising from the 1998 injury.
Decision
59. Accordingly, I affirm the decision under review.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 6 December 2004, 7 December 2004
Date of Decision 5 May 2005
Counsel for the Applicant Mr G Barter
Solicitor for the Applicant Nevill & Edwards
Counsel for the Respondent Mr G. Elliot
Solicitor for the Respondent Phillips Fox
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