Yates and Comcare (Compensation)

Yates and Comcare (Compensation) [2023] AATA 32 (19 January 2023)
Division:GENERAL DIVISION
File Number(s): 2019/7718 & 2020/2574
Re:Yvonne Yates
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Dr I Alexander, Senior Member
Date:19 January 2023
Place:Sydney

The decision under review for AAT no. 2019/7718 is affirmed.
The decision under review for AAT no. 2020/2574 is affirmed.
..................................[SGD]......................................
Dr I Alexander, Senior Member
Catchwords
COMPENSATION – workers compensation – whether Comcare is liable to pay compensation for injuries resulting in permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – relevant law, policy and evidence considered – decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Lees v Comcare [1999] FCA 753
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Woodhouse v Comcare (2021) 285 FCR 14
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Dr I Alexander, Senior Member
19 January 2023
INTRODUCTION

On 27 March 2010, Ms Yates (the Applicant), in the course of her employment with the Australian Customs and Border Protection Service, ‘fell going up the stairs’ and, on 7 April 2010, she lodged a claim for worker’s compensation.
On 14 May 2010, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare accepted liability for the following conditions:
(a)Right knee condition: sprain of unspecified site of knee & leg (right) (knee only)
(b)Right shoulder condition: sprain of shoulder & upper arm (right)
(c)Right foot condition: foot sprain (right)
(d)Right ankle condition: ankle sprain (right)
(e)Cervical spine condition: neck sprain (right)
The decision to accept liability was based on medical evidence which consisted entirely of Ms Yates’ self-report of nonspecific ill-defined ‘pain’ in the right shoulder, knee, neck and ankle, with no formal clinical assessments.
On 10 March 2011, Comcare determined that compensation was payable under section 16 of the Act for ‘Psychology – 6 sessions, for pain management only’.
On 19 April 2012, Comcare accepted liability for:
(a)Sciatica of the right leg: sciatica (right)
(b)Psychiatric condition: depressive disorder
On 21 November 2018, Ms Yates lodged a claim for permanent impairment (PI) and non-economic loss (NEL) with respect to ‘Major Depression’.
On 3 April 2019, Ms Yates lodged a claim for PI and NEL with respect to her right and left shoulders, right and left knees, neck and cervical spine, lumbar spine and chronic depressive disorder.
On 6 August 2019, Comcare determined as follows:
(a)The Applicant’s current right knee, cervical spine, left shoulder, left knee and lumbar spine conditions were unrelated to the workplace incident and so liability was denied under sections 24 and 27 of the Act; and
(b)Liability was accepted in respect of the right shoulder condition; however only at 5% PI and therefore liability was not payable as the condition did not meet the required 10% in accordance with paragraph 24(7)(b) of the Act.
On 3 September 2019, Ms Yates requested a review of the determination dated 6 August 2019. By reviewable decision dated 1 October 2019, Comcare affirmed the determination dated 6 August 2019.
On 12 November 2019, Comcare denied liability to pay compensation for PI and NEL for the accepted ‘depressive disorder’ on the basis that the injury resulted from chronic pain, a condition for which Comcare is not liable.
On 26 November 2019, Ms Yates applied to the Tribunal for a review of the reviewable decision dated 1 October 2019 (AAT no. 2019/7718).
On 13 February 2020, Comcare affirmed the determination dated 12 November 2019 on the basis that Ms Yates no longer ‘continued to experience the effects’ of her compensable depressive condition.
On 4 May 2020, Ms Yates applied to the Tribunal for review of the reviewable decision dated 13 February 2020 (AAT no. 2020/2574).
The initial hearing, on 9 to 11 May 2022, was adjourned on Day 3 to allow for further consideration of new evidence by Ms Yates’ counsel. The hearing resumed on 21 September 2022 and in a letter, dated 19 September 2022, Ms Yates informed the Tribunal that she was withdrawing her claims in respect to the left shoulder and left knee.
All parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) provides that Comcare is liable to pay compensation in respect of an ‘injury suffered by an employee if the injury results in death, incapacity for work, or impairment’.
‘Injury’ is defined in subsection 5A(1) to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;…
[emphasis added]
‘Disease’ is defined in section 5B:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
‘Ailment’ is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 14 of the SRC Act creates a liability in Comcare in respect of injuries suffered by employees which result in ‘death, incapacity for work, or impairment’. However, the liability created by section 14 ‘is qualified ... That is, it is a liability limited in its extent by other provisions of Part II of the Act’.[1]
[1] Lees v Comcare [1999] FCA 753, [27].
Section 24 of the SRC Act provides that:
(1)       Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)       For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)       the duration of the impairment;
(b)       the likelihood of improvement in the employee’s condition;
(c)       whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)       any other relevant matters.
(3)       Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)       The degree of permanent impairment shall be expressed as a percentage.
(7)       Subject to section 25, if:
(a)       the employee has a permanent impairment other than a hearing loss; and
(b)       Comcare determines that the degree of permanent impairment is less than 10%; an amount of compensation is not payable to the employee under this section…
Section 27 of the SRC provides that:
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment…
ISSUES
There is no dispute that Ms Yates suffers widespread osteoarthritis and degenerative change in her spine, both knees and both shoulders and has needed significant treatment with physiotherapy, multiple steroid injections, opioid and other analgesia as well as, several surgical procedures with varying success, over a period of about 20 years.
There is no dispute that Ms Yates currently suffers permanent impairment which limits her mobility and function and that she continues suffer pain and other mental health symptoms.
Ms Yates contends that she has permanent impairment with respect to her cervical spine, lumbar spine, right knee, and right shoulder and her mental health, which she attributes entirely to ‘injuries’ she suffered at the time of her fall in March 2010.
There is evidence before the Tribunal that, prior to March 2010, Ms Yates had pre-existing osteoarthritis and degenerative conditions of her cervical spine, lumbar spine, right knee, and right shoulder and had already undergone surgical treatment for her right shoulder and lumbar spine.
Ms Yates contends that, at the time of fall in in 2010, she suffered aggravation of her various pre-existing osteoarthritic and degenerative conditions.
With respect to Ms Yates’ physical conditions the Respondent contends that the primary issue for the Tribunal is to determine whether her ‘physical conditions are compensable injuries within the meaning of s 14 of the Act’ and that the cause of Ms Yates’ physical conditions, and her present degree of impairment ‘is the fact that she suffers from underlying, degenerative conditions in those locations, which are constitutional in origin’.
Ms Yates also contends that her current chronic depressive disorder is causally related to the ‘injuries’ she suffered in March 2010.
With respect to Ms Yates’ mental health condition there is no dispute that she suffers from ‘depression’ which has been significantly contributed to by her physical conditions and, therefore, is a secondary condition to her physical conditions.
The Respondent contends that if Ms Yates’ physical conditions are held never to have been compensable injuries, or if they are held to no longer be compensable injuries because any aggravations caused by the fall have long since resolved then it must follow that Ms Yates’ ‘depression’ never was, or no longer is, a compensable injury.
There is no dispute that Ms Yates’ pre-existing conditions of the cervical spine, lumbar spine, right knee, right shoulder are physical ‘ailments’ for the purposes of the SRC Act.
Therefore, the definitive issue for the Tribunal is whether, in March 2010, Ms Yates suffered an aggravation of her pre-existing ‘physical ailments’ that was contributed to, to a significant degree by her fall at work.
If so, the Tribunal must decide whether Ms Yates suffers permanent impairment that can be attributed to the effects of the aggravation of her ‘pre-existing ailments’[2] and, if so, the degree of permanent impairment.
[2] Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, Part 1 Section 4, page 23 (Comcare Guide).
Relevantly, the AAT has the power ‘to make subsequent findings of fact in relation to the circumstances the subject of decision-making under [ss 24 and 27] of the SRC Act … where the determination of the first instance decision-maker… made under the auspices of s 14 of the SRC Act remains in operation…’[3]
[3] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [57] (Conti J).
Therefore, in circumstances when undertaking a review as to whether any compensation should be payable under sections 24 or 27 of the SRC Act, the Tribunal is empowered to ‘undercut the necessary findings of fact made in the initial or original decision’[4] under section 14 of the SRC Act to accept liability for compensation. The power is not limited by the fact that the section 14 decision remains in force ‘to the extent that it had not been actually reversed and had not been the subject of any adverse review per se by the AAT.’[5]
[4]Ibid, [59] (Conti J).
[5] Ibid.
THE INCIDENT
In a report, dated 27 March 2010, it was noted that the incident occurred at 9.30am and was described as:
Trip and fell going up the stairs, baggage hall…I was on my way to the basement with another officer … Fell and injured right knee, right foot and left arm. The other officer had to help me to get up. Presently my right knee and right foot are swollen and feel pain in my back and right shoulder. I will attend a medical centre to ascertain what is the problem.
[emphasis added]
On 28 March 2010 at 5.55pm Ms Yates was seen by Dr Muniruzzaman, GP, who noted, inter alia, as follows:
CC: pain in R shoulder, R elbow, R wrist, R knee and R arm for 1/7
HO; Fall while going upstairs at work in the airport
Did incident report at work, and work cover cert
Requested x-ray for all pain area in case she needed for future
OE: vey obese …
Joint exam. Unremarkable except a mild limitation of ROM R shoulder
[emphasis added]
Dr Muniruzzaman noted that diagnostic imaging was requested for the right shoulder, cervical spine, right elbow, right wrist and right knee.
In her compensation claim form, dated 7 April 2010, Ms Yates described the incident as: ‘Walking up the stairs, tripped on the rubber edge of the last step…Tripped and fell’ and stated that she was injured by ‘the step and the hard floor’. [emphasis added]
Ms Yates described the ‘diagnoses’ of the injury she was claiming as ‘Waiting for x-ray and further tests to determine extent of injury inflammation [sic] of the right foot, right knee, right arm, right shoulder and neck’. [emphasis added]
In response to a request from Comcare, with respect a specific diagnosis of the condition suffered by Ms Yates, Dr Cyrtra, GP, provided a handwritten response, dated 12 May 2010, as follows:
Rt shoulder, Rt side neck pain ? Strain ? Tendinopathy + Rt Knee pain, Rt ankle pain Strain ? following a fall.
Patient needs to have XR & US Rt shoulder to make a specific diagnosis
In a letter, dated 18 June 2010, Dr Garvan, orthopaedic surgeon, noted that Ms Yates told him that:
… she tripped on the rubber edge of some stairs when she was walking upstairs at work. She fell onto her right elbow and onto her right knee and twisted her right foot … [and that she had] noticed that her right knee is painful when she walks up and down stairs and she experiences pain at the front of the right knee.
[emphasis added]
On examination of the right knee Dr Garvan noted:
… a moderate valgus deformity and the range of movement of the right knee was from a few degrees short of full extension to 130 degrees of flexion……a mild effusion present ……and clinically the knee appeared stable.
After reviewing x-rays and MRI of the right knee, which revealed significant osteoarthritis and degenerative change, Dr Garvan told Ms Yates and that it was most likely that she suffered ‘an aggravation of her right knee pre-existing osteoarthritis’ that would ‘normally resolve over a period of 3 months form the time of the injury’.
Dr Garvan also noted the presence of soft tissue mass lying above the femoral condyle surrounding the lateral head of the gastrocnemius tendinous insertion and recommended a needle biopsy under ultrasound control.[6]
[6] Ultrasound Guided Biopsy performed on 21 June 2010.
In a letter, dated 24 June 2010 Dr Garvan stated that he had reviewed Ms Yates and informed her that the biopsy showed a ‘tiny group of xanthoma cells’ with no evidence of malignancy. He also stated that he explained to her that she does have evidence of significant osteoarthritis affecting her right knee and has ‘suffered an aggravation of her right knee osteoarthritis in the fall at work’. He injected the right knee with Celestone and Lignocaine because Ms Yates was still experiencing symptoms.
In a rehabilitation services report, dated 29 June 2010, it was noted that Ms Yates reported that she had fallen going up a small flight of stairs and ‘onto her right outstretched arm and onto her right knee’ but ‘got up and kept walking and finished her shift.’ [emphasis added]
In an employee health assessment report, dated 4 November 2013, Dr Frean, occupational physician stated, inter alia, as follows with emphasis added:
Ms Yates told me that on 27 March 2010 she fell forwards down five or six stairs at work. She landed on both elbows and knees and sustained injuries to both knees, ankles and shoulders. [7]She was able to continue working with some difficulty through that day, but the pain and stiffness worse at the end of the day. The following day she consulted her General Practitioner, … and was referred for x-rays of the shoulders, knees, and ankles. No specific bony injuries were found and she was diagnosed with multiple strains. She was put off work for around two weeks and then commenced a return to light duties.
She continued working on modified duties for around twelve months. During this time she was referred to an orthopaedic specialist due to ongoing pain and stiffness in the right knee…
She continued to complain of persistent pain and limitation of function of the right shoulder … She was referred to an orthopaedic surgeon … On 5 August 2010 she underwent a right acromioplasty and rotator cuff repair … Ms Yates told that she made a slow recovery following the surgery and required eight cortisone injections into the right shoulder over a six month period.
Her right knee and right shoulder symptoms gradually improved and she able to return to her normal duties in April 2011.
Ms Yates reported that from around 2011 she began to experience increasing low back pain…
[emphasis added]
[7] This is the first time Ms Yates reported that she fell down the stairs.
In a report, dated 27 September 2014, Dr Jacobs, consultant psychiatrist, recorded that Ms Yates told him that:
She tripped and fell down steps backwards and landed on her front and hit her back. She said both her knees were injured and both her shoulders were injured. She said she suffered major injuries to her right knee, right shoulder and her back. She didn’t go to hospital immediately but felt sore all over. She stayed at work. She felt it was mainly soft tissue damage.[8]She said however both her knees became swollen and she couldn’t move her right arm…
[emphasis added]
[8] This description of the incident is not consistent with contemporaneous records.
Ms Yates’ Evidence
In a written statement, dated 1 June 2021 Ms Yates recorded, inter alia, as follows with emphasis added:
My name is Yvonne Yates and I am 65 years old. I currently do not work. As of 5 August 2016, my employment was terminated by the Department of Immigration and Border Protection …
…
In May 2007, I had an elective decompression of Lumbar Spine… After a period of time … I was able to return to a normal and functional life… I was fully functional at work…
…
On 27 March 2010, I was at work and walking up the stairs leading to the basement at the airside terminal… While walking up the stairs, my rubber soled shoe caught on the rubber strip of the stairs, I lost my balance, and fell down a number of steps. As a reflex trying to protect my face, I fell hard on my right arm and right knee.
I had to be helped getting up from the ground. In spite of feeling in pain, I continued on with my duties at work. Later that day … I was not feeling well. I went and saw my supervisor. I explained what had happened and showed her that my right leg was swollen, and my right arm and back were sore. At the time, I did say to my supervisor that I would seek medical advice depending on how I felt in the following days. My supervisor directed me to directed me to fill out an incident report.
On 7 April 2010, I was still feeling unwell. After attending my General Practitioner … I lodged a Workers Compensation claim stating the following ailments; right foot, right knee, right arm, right shoulder, and neck.
On 14 May 2010 Comcare accepted liability …
I continue to experience constant pain, difficulty sleeping and limited physical ability as a result of the injuries I suffered at work on 27 March 2010.
[emphasis added]

In her evidence in chief, at the hearing, Ms Yates confirmed that her written statement was true and correct to the best of her knowledge. She confirmed that she worked at Sydney International Airport and that her employment was terminated on 5 August 2016 and, since that time, she has not had any other employment.
When asked whether between 2001, when she started her employment, and 27 March 2010, when the suffered her fall, she had experienced any problems with any part of her body Ms Yates said, ‘None at all’. When reminded by counsel, she conceded that in 2007 she had undergone ‘back surgery’. She explained that this was caused by ‘being quite overweight and having twins … That put a strain on my back, but it wasn’t severe’.
When asked whether she had any further back problems that caused her to seek treatment, caused pain or made her to take time off work before the incident Ms Yates said, ‘No’. [emphasis added]
When asked by counsel whether, in subsequent consultations with doctors, she always told the truth about her medical conditions, Ms Yates said, ‘I did. I had no reason not to tell the truth’. [emphasis added]
When asked by counsel whether she could recall any problems with her right or left shoulder before March 2010, Ms Yates said ‘No’.
When asked whether she is currently having any active treatment from a medical practitioner Ms Yates stated that, apart from medication, she was ‘not having any medical treatment’. [emphasis added]
On further questioning by counsel Ms Yates denied having any problems with her cervical spine, right knee or right shoulder before March 2010.
When asked by the Tribunal to confirm that the only significant medical problem she had between 2001 and March 2007 was with her back she said ‘I also said that I have fallen on … fracturing my arm … [Apart from that?] ... Nothing’.
In cross examination Ms Yates was asked whether she was able to recall that, in January 2010, she had consulted her GP complaining of low ‘back pain’ and not ‘sleeping well’ and being referred for a CT scan of the lumbosacral spine. Ms Yates stated that she did not recall.
Ms Yates was asked by counsel whether she was able to recall seeing Dr Orchard in 2002, because of ‘right shoulder pain for the previous nine months.’ Ms Yates said that was able recall his name but did not remember ‘what transpired’ and did not recall ‘what the outcome was.’ She was then asked if she could recall being referred to Dr Biggs, a shoulder surgeon. Ms Yates said that she did recall that but he ‘just cleared some scar tissue that occurred when I had fractured my arm’. However, on further questioning she conceded that Dr Biggs performed an arthroscopy on the right shoulder.[9] [emphasis added]
[9] DHS Information report: 17 June 2002 – Item No. 48951H Shoulder, Arthroscopic division of caraco-acromial ligament.
On further questioning, when asked whether she could recall having a CT and MRI scan of the cervical spine in 2003 Ms Yates said could not recall.
When asked by counsel why, in her claim form, she had not mentioned her back as a part of the body causing her trouble after the fall, Ms Yates conceded that she had not experienced pain in the back at the time of fall but that ‘It happened afterwards… After I had several procedures…’ [emphasis added]
When asked about the procedures, Ms Yates said ‘After I hurt my shoulders and … knees … It was a consequence of the fall but it was just that the overall pain was concentrated at the time at my limbs, but all of my body was sore… The truth is, when I filled this form, I didn’t know what was the extent of whatever had happened to me’.
In response to a question from the Tribunal, about the description of the fall, as recorded by Dr Jacobs in in his report of 24 September 2014, where he noted that she had ‘tripped and fell down steps backwards and landed on her front and hit her back’ Ms Yates stated that ‘I don’t know what I told him but the event of my fall was traumatic. At the time, I didn’t know what I hurt or what I didn’t hurt. It became evident a few weeks after … It was only when went home and I wasn’t moving that I became evident that all my body was sore.’
MEDICAL EVIDENCE
Spine
Ms Yates’ Medicare Patient History Report (MPHR) reveals that, in May 2003, she was seen by Professor Cumming who arranged a CT scan of the scan of spine[10]. The details of the consultation and imaging report are not available to the Tribunal.
[10] Ibid: Item No.56233.
Ms Yates’ MPHR reveals that, in July 2003, she was seen by Dr Johnston who arranged for an MRI of the for ‘Cervical Radiculopathy’[11] and ‘Derangement of shoulder’[12].
[11] Ibid: Item No.63173.
[12] Ibid: Item No. 63325.
The MPHR also reveals that August 2003 Ms Yates was seen by Dr Sheehy, neurosurgeon, who arranged a CT scan of spine, cervical region.[13] The details of the consultation and imaging report are not available to the Tribunal.
[13] Ibid: Item No. 56220.
An MRI of the lumbar spine performed on 16 May 2007 is reported as showing ‘Advanced bilateral L4/5 and L5/S1 facet joint osteoarthrosis…’
In a letter dated 17 May 2007 Dr Sheehy, neurosurgeon, stated inter alia the following:
Mrs Yvonne Yates has attended the rooms on 16/05/2007 complaining of low back discomfort which radiates into the buttocks, posterior thighs and calves…
…
She is considerably heavier than ideal for her height. Her weight has been increasing recently as she has become more and more inactive because of the pain …
Her CT and MRI scans show a central canal stenosis at the L4/5 level due to congenitally short pedicles, facetal arthropathy and ligamentum flavum hypertrophy. She does have the site separation in the facet joints at the L4/5 level and a very early spondylolisthesis. [emphasis added]
Management issues here will involve weight loss. She should be managed with a decompression of her lateral recess … If her weight persists at this level, it is likely over the years that she will wear the level further and fusion will be required … While decompression alone is reasonable, weight loss will be important together with increasing physical activity to help protect her spine on the longer term …
[emphasis added]
In a letter dated 4 June 2007 Dr Sheehy stated that ‘Operative decompression was performed under general anaesthesia on 31/05/2007’.
Summonsed Australian Health Care Centre practice records reveal that, from February 2000 to September 2009 nearly all consultation dates are recorded without clinical details apart from ‘Prescriptions printed’. Relevant extracts from January 2010 to January 2020 are as follows:
·06/01/2010 – BACK PAIN NOT SLEEPING WELL
·22/01/2010 – Diagnostic Imaging requested: CT L/S SPINE – laminectomy 14/5 2007… Medical Certificate.[14]
[14] Unfit for work 23-25 January 2010.
…
·25/01/2010 – L4/5 SPONDYLOLITHESIS ? FROM MANIPULATION RE ADVISED WT REDUCTION SWIM +++
…
·08/03/2010 – Diagnostic Imaging requested: CT THORACIC SPINE - OSTEOPOROSIS/VERTEBAL NERVE ROOT IMPINGEMENT
…
·17/03/2010 – Letter Created – re. Ref Letter – Standard to DR IAN PORTEK.[15]
[15] Referral letter dated 17 March 2010: … please review … has some chronic lbp, see ct …
…
·02/07/2010 – REQUEST REDUCTIL[16]
oWeight: 97Kg
oDISCUSS RE DIET AND EXERCISE
·No consultations until 26 May 2011 – medical check up HAD GOR OA[17] HRT
…
·10/01/2012 – LOW BACK PAIN HAD LAMINECTOMY 2007… Examination: NO TENDERNESS ROM REDUCED
·30/03/2012 – PROBLEMS 1 OBESITY 2 OA IN CERVICAL AND LUMBAR SPINE … DIGESIC TABLET…
[16] REDUCTIL is used together with diet and exercise to treat obesity.
[17] Osteoarthritis.
Summonsed Miranda Medical Centre practice records reveal that the first consultation was with Dr Muniruzzaman on 28 March 2010[18]. Relevant extracts of subsequent consultations with Dr Cyrta are as follows:
[18] See supra para 38.
·12 /04/2010 – Fell at work on stairs on 27/3/10, Landed on her right knee, Rt arm, Co rt knee, rt foot/ankle pain, rt shoulder/arm pain. RT shoulder pain on abduction, internal rotation, RT ankle swelling … MVT fine with some pain Rt kne[e] bit tender anteriorly…
·21/04/2010 – Rt shoulder pain, rt side neck pain, Rt knee pain following a fall … Diagnostic Imaging requested …
·21/05/2010 – An injury to RT knee, ankle, Rt [shoulder], pain rt side neck … Physio …
·26/05/2010 – Diagnostic Imaging requested: MRI neck[19], rt shoulder, Rt Knee, rt ankle.
…
·26/08/2011 – Lt/Rt shoulder, neck, LBP[20] Had RT lower limb referred pain.
·27/10/2011 – … RT, LT shoulder pain, RT knee pain, LBP, neck pain Exacerbation of Shoulders pain …
·23/03/2012 – … Rt shoulder pain, LT shoulder pain Neck pain[21], LBP rt sciatica, Rt Knee pain, depression…
[emphasis added]
[19] No record of MRI of cervical spine.
[20] LBP – this is the first complaint of LBP since 27 March 2010. This is in the context of a complaint generalized musculoskeletal pain with no meaningful clinical assessment.
[21] This was the last recorded complaint of ‘neck pain’ until January 2015.
A CT scan of lumbar a spine performed on 23 January 2010 is reported as showing:
… 3 mm anterior displacement of L4 on L5…central disc herniation at this level without causing significant canal stenosis. Partial laminectomy at this level … Osteoarthritic changes are present in the facet joints at L3/4, L4/5 and L5/S1 levels with bony hypertrophy causing narrowing of the corresponding intervertebral foramina bilaterally. These changes are most marked at the L4/5 level.
[Emphasis added]
A CT scan of the thoracic spine performed on 9 March 2010 is reported as showing degenerative disc disease from T4 to T12 more marked from T9 to T11 where ‘some of the anterior osteophytes have fused suggesting that the changes are longstanding.’
An X-ray of the cervical spine performed on 24 June 2010 is reported as showing ‘moderate degenerative spondylotic changes noted throughout the cervical spine from C4 and to C7 with large anterior flowing osteocytes. There is mild degenerative narrowing of the C6/7 disc space … There is some ossification within the ligamentum nuchae at the C6 level’.
In a report, dated 22 February 2011, Dr Rosenthal, occupational physician stated, inter alia, as follows with emphasis added:
I have noted that Ms Yates had a back condition where she stated that she had back surgery in 2006 which I understand was a laminectomy [sic]…
…
In regards to her back, she reports no symptoms. She did lose 27 kg in weight and was doing regular pool work for back maintenance but has stopped since her fall…
…
Examination of the back revealed a full range of movement with normal straight leg raise and no neurological deficits in the lower limbs.
[emphasis added]
I note that Dr Rosenthal did not report any symptoms or impairment with Ms Yates cervical spine.
An MRI of the lumbar spine performed on 10 August 2011 is reported as ‘[T]he L4/5 disc shows minimal forward slip with previous laminectomy with postoperative fibrosis … The facet joints show moderate arthropathy with minimal forward slip and the foramina are adequate’.
A CT scan of the lumbar spine performed on 17 January 2012 is reported showing ‘right L4 foraminal compromise ... due to facet joint hypertrophy … [with] Quite florid facet joint degenerative change noted at the lower three lumbar levels bilaterally’. [emphasis added]
In a letter dated 23 January 2012 Dr Sheehy stated, inter alia, as follows:
I’ve seen Mrs Yvonne Yates for review …
She told me of the successful outcome following the decompression of her left L5 nerve root at the L4/5 level approximately four years ago … She was well for three years following the surgery and continues to be well in regard to left leg pain, but following a fall in March, 2010 on stairs at the airport, she developed an injury to her neck, shoulder and back. Attention was initially directed to the shoulder, which has improved, and she came to investigation of her right knee in September. Following the arthroscopy, there was a significant exacerbation in her back and right leg pain …
…
She has been further investigated with a CT scan … She does have bone encroaching the exiting right L4 nerve root in the lateral recess and also bony overgrowth encroaching her L5 nerve root …
I’ve recommended minimalist interlaminar decompression…
[emphasis added]
In a letter dated 4 May 2012 Dr Sheehy stated that on 3 May 2012 Ms Yates was admitted for ‘elective decompression of her lateral recesses at the L3/4 and L4/5 levels’. Dr Sheehy stated that once the L4 nerve root became free in the L3/4 lateral recess:
… [t]he nerve was then followed into the neural exit foramen which was the major point of compression. The nerve was caught by overgrown facet and thickened ligamentum as it went into the nerve canal and all of this overgrown material was cleared away to effect decompression ... [emphasis added]
An MRI of the lumbar spine performed on 12 July 2012 is reported as showing: ‘mild right bony lateral recess stenosis (at the level of L5 pedicle) primarily due to severe facet arthrosis Minimal right L5 neural oedema suggesting mild neural impingement’ and ‘expected post-surgical changes with peridural scarring in the right lateral recess’.
In a letter dated 4 August 2012, Dr Sheehy reported that he had reviewed Ms Yates’ most recent MRI and concluded that she does have ‘adequate wide decompressions of the L3/4 and L4/5 facet joints and the radiologist comments that there is some oedema in the right L5 nerve root and for this reason despite the exit canal being of inadequate dimensions I have suggested a peri-radicular nerve block…’
In a letter dated 20 October 2012, Dr Sheehy stated that Ms Yates reattended complaining of ongoing pain on the lower back and right leg. He noted that Ms Yates had ‘tried hard with weight loss and had lost 5kg in recent times’ and suggested that she needs to be considered for spinal fusion.
In a letter dated 3 December 2012 Dr Bentivoglio, neurosurgeon, after reviewing Ms Yates history and the recent MRI scan, commented that ‘I am sure that the degenerative slip that she has at L4-5 will slowly but surely progress with time’. [emphasis added]
In conclusion, Dr Bentivoglio, stated as follows:
Unfortunately, because she has had previous removal of the lamina and spine at L3 and L4 it makes the use of intraoperative navigation very difficult and inaccurate especially for the lower lumbar region…. At the very most I would only consider an L4-5 fusion … if it was thought that a redecompression would benefit her.
In a letter, dated 19 February 2013, Dr Sheehy stated inter alia as follows:
I initially saw this patient in August 2003 regarding pins and needles affecting her right arm with radiation to the right thumb. There had been some pain in the right arm and this had occurred more at the time of a fall approximately two years previously when she sustained a right humeral fracture …
She reattended in May 2007 complaining of low back discomfort … I advised weight loss, decompression of her lateral recesses and warned her that fusion may prove to be necessary as time passed if she weren’t to become lighter.
…
She reattended in December 2011 complaining of more pain in the right leg than the left which had been the major symptom on the earlier occasion. She told me that she had been well for three years following her original surgery … but it was following a fall in March 2010 on stairs at the airport she developed an injury to her neck, shoulder and back…
Her MR demonstrated compression of her L4 nerve root in the L4-5 exit foramen … a lateral recess at L3-4 and L4-5 was decompressed … on 30/5/ 2012. I concurrently decompressed her L4-5 foramen on the right.
Her left leg continues to be pain free but the problem is persisting pain in the right leg … There have been multiple periradicular and facet joint injections which have not proved relief … the recently performed MR demonstrates compression of the L5 nerve roots in the lateral recesses at the L4-5 level due predominantly to the spondylolisthesis[22].
I feel that it is the spondylolisthetic segment that is contributing as much to the problem as anything else and I have suggested revision decompression of her L5 nerves and concurrently fusion at the L-4-5 level…
[22] L4/5 spondylolisthesis was present prior to the fall in March 2010.
In a letter dated 7 March 2013, Dr Sheehy stated that Ms Yates was admitted for ‘elective fusion and decompression’.
A lumbar spine CT scan performed on 11 June 2013 is reported as showing ‘disc replacement and pedicle screws in situ. Advanced L5/S1 facet disease with degenerative spondylolisthesis’. [emphasis added]
In a letter, dated 1 August 2013, Dr Winder, neurosurgeon stated that Ms Yates was recovering slowly from her fusion which was complicated because ‘she developed reactive arthritis which required a total knee replacement’[23] and as such was currently limping which was impacting on her recovery.
[23] 6 June 2013: Dr Dixon - right total knee replacement.
In a letter, dated 4 February 2014, Dr Sheehy noted that approximately twelve weeks after her spinal fusion Ms Yates she had her left knee replaced and had been in and out of a rehabilitation program over the last few months. He raised concerns about Ms Yates’ hips and stated that he was ‘fearful that the osteoarthritic condition which affects her lumbar spine and knees may have started to affect her hips’ and that she also had ongoing symptoms referable to her lumbar spine.
In a letter dated 7 November 2014 Dr Sheehy noted that Ms Yates continued to complain of ‘persisting radicular pain in either leg’.
In a letter dated 28 January 2015 Dr Sheehy noted that Ms Yates’ low back and leg symptoms had improved after she been prescribed antidepressant medication and Oxynorm[24]. However, Ms Yates now complained of ‘pain radiating into both arms and forearms and feeling weakness and a tendency to drop things in both hands’. On examination Dr Sheehy found no abnormality of ‘tone, bulk or power in the upper limbs and the reflexes were quite symmetrical and normal’.
[24] Oxynorm: oxycodone – opioid analgesic.
An MRI of the cervical spine performed on the 18 February 2015 is reported as showing ‘High grade right C5/6 foraminal stenosis with evidence of impingement of the right C6 nerve root in the floor of the foramen. Moderate left C5/6 foraminal stenosis without definite impingement of the left C6 nerve root … Mild to moderate degenerative spondylosis in the lower cervical spine with DISH[25]extending from C4 to T1’.
[25] DISH – diffuse idiopathic skeletal hyperostosis extending from C4 to T1.
In a letter to Comcare dated 11 March 2015 seeking approval for ‘decompression of her C6 nerve roots’. In support of the claim Dr Sheehy stated, inter alia, the following:
I am unaware of any existing injury to Mrs Yates’ cervical spine before the 27th March 2010. I note that her plain x-ray undertaken in June 2010 demonstrated degenerative change consistent with her age …
Pain radiating into the arm has been a problem for several years. The concurrent injury to the shoulder has confused the diagnosis, but it is clear after surgical intervention that her shoulders are quite satisfactory….
…
Symptoms have been present since the time of the injury. There was some initial confusion concerning the responsibility of shoulder versus the cervical spine and the etiology of these symptoms, but the cervical causation is becoming increasingly clear as time passes.
[emphasis added]
In a letter dated 15 May 2015 Dr Sheehy reported that on 14 May 2015 elective decompression of the C6 nerves was performed.
In a letter, dated, 14 August 2015, Dr Sheehy stated that Ms Yates continues to experience ‘pain in her neck wound and also across the top of both shoulders’ and at times experiences ‘paraesthesia in her left arm’.
In a letter dated, 18 December 2015, Dr Sheehy reported that two weeks ago Ms Yates had a fall at a railway station and injured her neck and left arm.

In a letter dated 19 January 2016 Dr Sheehy reported that Ms Yates continued to experience left sided neck pain with radiation to the arm. On examination of her arms there was no focal deficit affecting her arms with normal strength and reflexes.
Right Shoulder
In a letter to Dr Biggs, shoulder surgeon, dated 25 March 2002, Dr Orchard, sports medicine physician, stated as follows:
Thanks for seeing YVONNE YATES who has had chronic right shoulder pain for the last 9 months, which appears to be due to supraspinatus pathology. I have given her two subacromial cortisone and local injections which have only given temporary relief.
[emphasis added]
Ms Yates’ MPHR reveals that she was seen in consultation with Dr Biggs on 9 April 2002 and on 17 June 2002 he performed a surgical procedure, presumably on the right shoulder, with a Medicare item number described as ‘Shoulder, Arthroscopic division of coraco-acromial ligament’.
I note that the Tribunal has not been provided a with any clinical, or any other, information about this procedure.
An MRI of the right shoulder performed on 4 June 2010 is reported as showing ‘Partial thickness tear supraspinatus’, ‘Tendonopathy of the long head of the long head of biceps tendon and subscapularis’ and ‘SLAP type labral tear’. It is also reported that there is ‘minor acromioclavicular joint degeneration’ and a ‘Type II acromion without significant anteroinferior acromial spurring.’
In a letter, dated 24 June 2010, Dr Goldberg, orthopaedic surgeon, stated, inter alia, as follows:
She is a 54-year-old right-handed customs officer who fell at work three months ago injuring her right shoulder. Since then she has had shoulder pain with movements … as well as weakness and loss of motion.
She has separate symptoms referable to her neck
…
On examination her shoulder was wasted and quite tender. Movements were limited as was power …
Her neck was tender with limited movement
…
X-rays of her neck reveal significant arthritic change.
… Ms Yates has a near full thickness rotator cuff tear of the right shoulder with labral tear and biceps tendonitis. She also has cervical spondylosis… [emphasis added]
The patient would best be served by arthroscopic rotator cuff repair. She may need some surgery to the biceps tendon and labrum as well. I have explained the surgery fully … as well as the six to nine months rehabilitation involved … The patient is also aware that although surgery gives a good shoulder in most cases, because of the degeneration in the rotator cuff it will not give the patient a normal shoulder. [emphasis added]
In a surgeon’s report, dated 5 August 2010, Dr Goldberg recorded details of the operation as ‘R shoulder arthroscopy, biceps tenodesis no 8 screw fixation, acromioplasty, trans tendon rotator cuff repair with x1 suture’.
In a letter, dated 22 November 2010, Dr Goldberg reported that following her surgery Ms Yates ‘is progressing extremely well’.
In a letter dated 10 February 2011 Dr Goldberg reported that given the pathology Ms Yates’ shoulder ‘is making steady progress’ but she still has ‘some discomfort’. He also noted that ‘Her movements are about 70% normal and her power is near normal’.
In his report of 22 February 2011, Dr Rosenthal, noted that Ms Yates’ right shoulder was still ‘painful and stiff’ with some reduced range of motion, but it was ‘not particularly bothering her with the majority of her activities’. On examination he noted ‘reduced range of motion of abduction to 130 degrees and flexion to 150 degrees’ with the remainder of shoulder movements in the e normal range.
In a letter, dated 2 June 2011, Dr Goldberg reported that Ms Yates’ shoulder ‘continues to improve’ with about 80% of normal movement and power ‘very good’. However, he noted that her left unoperated shoulder ‘is causing her increasing concern’ and organised an MRI of the left shoulder.
In a letter, dated 24 June 2011, Dr Goldberg reported Ms Yates’ rehabilitation consultants made her lift more than 5kg which has aggravated her shoulder and exacerbated her tendinitis.
In a letter, dated 5 August 2011, Dr Goldberg stated that because Ms Yates had developed some discomfort after lifting more than 5kg he arranged for an MRI which ‘confirmed that there was a residual 1mm tear in the supraspinatus which is the position where the transtendonous anchor is inserted into the rotator cuff’. He stated that ‘This is nothing to be worried about. The rest of the rotator cuff has healed well to the bone but there is still some mild residual tendonitis. Unfortunately, the actions by the rehabilitation provider have aggravated her shoulder.’ [emphasis added]
In January 2012 Ms Yates was referred to Dr Harper, shoulder surgeon, who in a letter, dated 30 January 2012, stated, inter alia, as follows with emphasis added:
…Yvonne Yates … presented with a long history of bilateral shoulder pain. She had right shoulder arthroscopic rotator cuff repair, acromioplasty and long head of biceps tenodesis of the right shoulder in August 2010. Unfortunately she had residual right shoulder pain. She also developed left shoulder pain during recovery from her right shoulder surgery… She had returned to work on normal hours …
On examination she localised her pain over the lateral aspect of both shoulders …
I reviewed pre-operative and post-operative MRI scans of the right shoulder. The post-operative films showed a healed but thinned supraspinatus tendon repair with adequate acromioplasty and long head of biceps tenodesis. The left shoulder MRI scans showed subacromial bursitis, … supraspinatus tendon abrasion with underlying tendinosis … also AC joint osteoarthritis with subchondral cysts and bone oedema.
Yvonne Yates had left shoulder AC joint arthritis that had not responded to non-operative treatment. I had no further solution for her right shoulder pain. I recommended she consider left shoulder arthroscopic acromioplasty, distal clavicle excision +/- long head of biceps tenotomy.
[emphasis added]
In a letter, dated 1 March 2012, Dr Goldberg reported that Ms Yates’ condition is deteriorating as ‘Both shoulders are now tender, and she is now developing secondary symptoms referable to her cervical spine’ however, ‘Her clinical examination remains unchanged’. He also stated that further surgery is unlikely to help and recommended consultation at Prince of Wales Pain Management clinic.
In a letter, dated 8 March 2012, Dr Harper reports that Ms Yates associated the exacerbation of her left shoulder pain to increased use while recovering from right shoulder surgery. He stated that her current diagnosis is ‘left shoulder impingement secondary to acromial spur and subacromial bursitis with AC joint osteoarthritis’ and commented that ‘She has no specific medical condition that predisposed her shoulder pathology’ and that planned surgery is ‘arthroscopic subacromial decompression and distal clavicle excision.’[26]
[26] Left shoulder arthroscopic acromioplasty and AC joint excision was performed on 24 July 2012.
In a letter, dated 6 August 2012, Dr Harper stated that two weeks after her left shoulder surgery Mr Yates had minimal pain, a functional range of motion and the wounds had healed. He also noted that Ms Yates had ‘ongoing right shoulder pain and loss of function two years post-rotator cuff surgery’ and had ‘exhausted post-operative rehabilitation’ and recommended she obtain a right shoulder MRI scan to see if there are any mechanical causes for her ongoing pain.
A right shoulder MRI performed on 13 August 2012 is reported as showing:
Intact arthroscopic repair of previously demonstrated articular surface partial thickness tear of the supraspinatus tendon.
Moderate infraspinatus tendinosis with tendon thickening …
No subacromial bursopathy.
Status post prior acromioplasty with flat undersurface of the acromion …
Quiescent appearing AC joint OA.
Intact biceps tenodesis.
[emphasis added]
In a letter dated 20 August 2012, Dr Harper stated, inter alia, as follows:
I reviewed Yvonne on 20 August 2012 … She had previous right shoulder arthroscopic rotator cuff repair … The surgery was complicated by a chronic regional pain syndrome with hand sweating and colour changes. She continued to have significant right shoulder pain …
MRI scans showed intact anterior supraspinatus repair with one anchor and intact biceps tenodesis. The the previous acromioplasty was adequate …
I reassured Yvonne that there was no acute need for right shoulder surgery… I outlined the poorer results with revision surgery and the risk of reactivating her chronic regional pain syndrome.
[emphasis added]
In a letter dated 22 October 2012 reported that three months after her left shoulder surgery Ms Yates had minimal pain and had restored a functional range of motion. He also commented that Ms Yates had commenced physiotherapy on her right shoulder and based on a recent MRI there were ‘no reliable surgical targets’ and suggested non-operative treatments. [emphasis added]
Ms Yates did not consult Dr Harper again until February 2014 and, in a letter dated 3 February 2014 Dr Harper noted that in Ms Yates’ last review in October 2012 there were ‘no clear surgical targets for revision right shoulder surgery’. On examination he noted that Ms Yates ‘was tender over the right AC joint’ and localised her pain over ‘the anterior aspect of the shoulder’ with ‘sharp pain radiating down the lateral aspect of the arm’. She had active elevation to 100 degrees, normal power of internal and external rotation and positive impingement signs. A repeat right shoulder MRI was recommended.
In a letter dated 5 March 2014 Dr Harper stated inter alia as follows:
She returned with right shoulder MRI scan. She continued to have right shoulder pain and loss of function She was tender over the right AC joint and had restricted elevation to 120º. Her impingement signs were positive.
The MRI scan showed and intact supraspinatus tendon repair. There was partial thickness tendon abnormalities and delamination of the posterior supraspinatus and infraspinatus insertions. There was AC joint arthritis with capsular distension and subchondral cysts.
Yvonne had chronic right shoulder pain three years post right shoulder arthroscopic rotator cuff repair, acromioplasty and long head of biceps tenodesis. She was reluctant to accept her current level of pain and dysfunction. She had exhausted nonoperative treatment options. Her pain could possibly be improved with arthroscopic subacromial decompression, distal clavicle excision and release of rotator interval and subacromial adhesions.
[emphasis added]
An operation report, dated 8 April 2014, confirmed a procedure as ‘Right Shoulder Arthroscopic acromioplasty and AC jt excision + release adhesions /rotator interval’. Operation findings included ‘AC jt arthritis … supraspinatus repair intact, subacromial adhesions … excessive scar response globally’.
In a letter, dated 13 November 2014, Dr Harper reported that seven months after the revision operation Ms Yates was still troubled by chronic pain. She had ‘shoulder elevation of 130º without pain’. She also had recently experienced ‘shooting pain from her shoulder to the left hand that was not reproduced by shoulder movement’.
Dr Harper stated that if Ms Yates left upper limb neuralgic symptoms continued, she may require nerve conduction studies and cervical spine assessment.
In a letter, dated 14 October 2019, Dr Harper reviewed Ms Yates because she had had developed ‘pain and weakness’ in her left shoulder after she had a fall where she injured the shoulder. On examination Dr Harper reported ‘reduced bilateral forward elevation to 130º … symmetrical external rotation in adduction to 30º … had preserved power of bilateral shoulder internal and external rotation’. [emphasis added]
Dr Harper concluded that Ms Yates had most likely sustained a ‘left shoulder rotator cuff contusion’ and recommended that ‘she exhaust nonoperative treatments’. [emphasis added]
Right Knee
An MRI of the right knee performed on 4 June 2010 is reported as showing:
… lateral joint line osteophytes and partial lateral meniscal extrusion. There is cartilage thinning particularly posterolaterally involving the lateral femoral condyle where there is a Grade III lesion with subcortical cyst formation … a similar lesion opposite in the tibial plateau … There are changes of popliteus tendonopathy …
The medial meniscus is intact…
There are changes of patellofemoral joint osteoarthritis … there is Grade IV cartilage loss involving the lateral patellar facet … There are large osteophytes around the articular margin of the patella…
…
There is a soft tissue mass 2.5 cm in height and 17 mm in transverse diameter lying above the lateral femoral condyle and surrounding the lateral head of the gastrocnemius tendonous insertion…
In July 2010 Ms Yates was seen by Dr Dixon, orthopaedic surgeon and in a letter, dated 26 July 2010 he reported that following a fall at work she had anteromedial pain in the right knee that has persisted despite having physiotherapy. He also noted that she had a biopsy taken of ‘her lesion which came back as showing Xanthoma with no sign of malignancy.’
On examination of her right knee, Dr Dixon noted that Ms Yates had ‘tenderness along the joint line as well as over the medial patella facet’ and that the knee was ‘stable to cruciate and collateral ligament testing’ but described no other abnormality.
On reviewing the MRI of the right knee, Dr Dixon noted evidence of a ‘chondral body’, which was unreported, and ‘compartment osteoarthritis as well as patellofemoral osteoarthritis’, and stated as follows:
In view of the fact that Yvonne’s right knee symptoms are not settling despite non-operative intervention and especially in view of the fact that her symptoms were not present prior to her fall, it would be worth doing an arthroscopy of her knee to firstly address the chondral loose body and flap and to further assess the knee.
In an operation report dated 13 October 2010 Dr Dixon reported the operative findings on 30 September 2010, inter alia, as follows:
… a small medial meniscal tear … Grade II change medially … The ACL was intact. Laterally there was extensive tearing of the lateral meniscus and Grade III change over the lateral tibial plateau and Grade II change on the lateral femoral condyle. The patellofemoral compartment showed moderately extensive Grade IV change particularly of the lateral patella facet with overhanging patella and osteophytes along the lateral margin …
[emphasis added]
In a letter dated 14 October 2010 Dr Dixon reported that Ms Yates is ‘two weeks post right knee arthroscopy, chondroplasty and lateral release as well as removing lateral patellofemoral spur’. He stated that was obviously ‘a bigger procedure than a routine arthroscopy’ and that this means that ‘her knee will stay swollen and require further physiotherapy than a routine arthroscopy’.
In a letter dated 16 November 2010 Dr Dixon stated that Ms Yates is now six weeks post-surgery and ‘Her knee is certainly improving but the accommodation of both her knee and her shoulder, obviously the process is going to be a little bit slower than normal’. [sic]
In a letter dated 12 January 2011 Dr Dixon reported she is now three months post-surgery and stated ‘She does have quite advanced patellofemoral osteoarthritis which is the reason why she is having her surgery but the very nature of this does slow up the recovery process also’. [emphasis added]
Dr Dixon injected Ms Yates’ right knee with cortisone and discussed with her that in the future she may need to consider total knee replacement surgery.
In a letter dated 22 February 2011 Dr Dixon noted the Ms Yates was now about five months post knee surgery and ‘Her knee is not settling as well as we would like but she does have quite extensive osteoarthritis which is known’ and that ultimately, she is heading towards a total knee replacement. [emphasis added]
In a letter dated 24 June 2011 Dr Gibbs, sports physician, reported that it is nine months since Ms Yates underwent arthroscopic debridement surgery of the right knee ‘which unfortunately has not proved any relief with regard to her knee symptoms.’ He noted that she currently has knee pain, giving way with walking, needs strong analgesia and NSAIDs, and has been recommended to undergo total knee replacement surgery.
In a letter dated 22 May 2013 Dr Turnbull, orthopaedic surgeon, stated inter alia as follows:
I saw Yvonne today. She presents with problems with her right knee.
She had an arthroscopic procedure on her knee three years ago by Michael Dixon.
He x-rays show lateral compartment osteoarthritis which is quite marked. She has noticed increasing pain in her knee since her arthroscope but recently developed an acute pain due to a spontaneous bleed secondary to the arthritis.
The knee was aspirated last week, but it didn’t help much, so I have not repeated it today.
The hemiarthrosis will resolve. She needs to keep herself comfortable and some ice on the knee until it settles. She needs to consider a knee replacement …
[emphasis added]
In a letter dated, 28 May 2013, Dr Dixon confirmed that Ms Yates requires a right total knee replacement.
An x-ray of the right knee performed on 29 May 2013 is reported as showing: ‘Degenerative changes … with joint space narrowing, sclerosis and osteophyte formation, particularly involving the lateral compartment of the knee joint and the patellofemoral joint. There is large joint effusion. The appearances are consistent with osteoarthritis’. [emphasis added]
In an operation report dated 6 June 2013 Dr Dixon confirmed that on 31 May 2013 a right total knee replacement was performed.
On 14 December 2013 Dr Dixon performed a left total knee replacement for ‘osteoarthritis’.[27]
[27] Kareena Private Hospital Doctor Referral Form dated 12 November 2013.
Mental Health
In June 2012 Ms Yates was referred to Dr Lewin, psychiatrist, and in a letter to her GP, dated 19 June 2012, he stated, inter alia, as follows with emphasis added:
Thank you for referring Mrs Yates for psychiatric care… Mrs Yates is receiving complex surgical treatment following a fall which was considered to be a work-related condition. I was notified that treatment was being undertaken under the ComCare system and that that they had accepted liability for my involvement up to 30/7/2012.
I note that Mrs Yates presented with a problem most unlikely to resolve prior to that date.
…On 3/5/2012 she underwent lumbar laminectomy.
Mrs Yates related the physical condition to a fall in the workplace in March 2010. She subsequently reported shoulder, neck, arm and leg pain symptoms. She described intense distress associated with the medico-legal process. In August 2010 Mrs Yates underwent acromioplasty with limited benefit. In September 2010 she underwent arthroscopy … She was advised to undergo further surgery, but she was reluctant to proceed with total knee replacement…
Overall, Mrs Yates reported no benefit from surgical treatment involving knees and shoulders…
Mrs Yates presented with widespread pain, involving the right elbow, the right shoulder, the right wrist, the right knee, the left shoulder as well as low back pain… Despite multiple physical treatments … she has had at best temporary relief. It is clear that a chronic pain problem is evolving.
At the present time Mrs Yates is taking Tramadol and Endone in the aftermath of the spinal surgery …
In response to pain symptoms, Mrs Yates has limited her range of activities…
Mrs Yates also described conflict in the workplace … feels that her supervisor is grossly unsympathetic … is currently facing investigation under the Employer’s Code of Conduct…
Mrs Yates also reported depressive symptoms, describing intense distress and feeling frustrated, useless and troubled …
…
Apart from the medical consequences of the fall at work, Mrs Yates has enjoyed excellent health. There is no other chronic illness. In particular, she did not experience any delay in recovery in the past … Her current difficulties with chronic pain have evolved in the context of worry about the workplace problems, concern about the progress of her surgical treatment and emerging depression.
…
It is clear that the pattern of pain symptoms is no longer explained upon the basis of a single, discreet physical diagnosis …
Mrs Yates has developed a chronic pain condition … I am concerned about her growing reliance upon narcotic analgesia …
I diagnosed a Major Depressive Episode …
… I believe it is important to manage the psychiatric symptoms within the context of the range of persisting physical complaints … At the present time Mrs Yates has a pattern of catastrophic thinking about pain and she seeks relief rather than techniques of managing these complaints.
… Antidepressant medication will be prescribed once the narcotic analgesia has ceased, but I do not regard this as a primary intervention.
[emphasis added]

In a letter dated 17 June 2013, Dr Lewin reported a psychiatric diagnosis as Chronic Pain Disorder Partially treated Major Depressive Episode with secondary anxiety [emphasis added] and stated, inter alia, as follows:
Mrs Yates attended for review … Her main focus at this stage is upon a planned graded return to work. Her depressive symptoms are of moderate intensity … she continues to be troubled, and she noted sleep disturbance, irritability and agitation. … Her mood state is sometimes responsive to circumstances…
She has a continuing somatic focus and fluctuating levels of pain. She has recently come under the care of a pain specialist, Dr Woods, at Prince of Wales Hospital.
In a letter, dated 13 September 2013, Dr Lewin stated, inter alia, as follows:
Mrs Yates returned to my care about six weeks ago after a gap of almost twelve months. In the meanwhile, she underwent knee replacement surgery. She described a complicated surgical course. In March 2013 she completed a spinal fusion.
Mrs Yates returned with a worsening of depressive symptoms in the context of a perception of treatment failure … There were many worries about side effects and a range of somatic complaints.
In the short time since then, there has been considerable progress … she now talks of the future and speaks of her plans for recovery… She has followed the advice you have given her about the management of narcotic analgesia … she has ceased both Endone and Tramadol…
… Mrs Yates plans to progress her physical rehabilitation using hydrotherapy and core strengthening exercises whilst relying on paracetamol and Lyrica for pain relief.
We discussed the pros and cons regarding the use of antidepressant medication … Mrs Yates is not expecting further spinal surgery. Therefore, it is quite possible that her depressive symptoms will improve without pharmacotherapy …
In a letter, dated 19 December 2013, Dr Lewin stated, inter alia, as follows
I reviewed Mrs Yates on the fifth day post-surgery … following the second total knee replacement procedure. I noted that she was walking with minimal assistance. She reported that the pain symptoms in the knees had settled, that she felt optimistic regarding her progress and that she was looking forward to the future.
There were no reported depressive symptoms. She said that her mood state had stabilised. Mrs Yates did not report anxiety symptoms either.
[emphasis added]
In a letter of referral to a clinical psychologist, dated 31 January 2014, Dr Lewin stated, inter alia, as follows:
Thank you for agreeing to see Mrs Yates … She has recently undertaken surgery and reports a number of difficulties in managing pain symptoms and narcotic analgesic medication in the aftermath. Over the last six months, I have managed her case with respect to a major depressive condition and pain problem.
We are entering a rehabilitation phase and Mrs Yates looks forward to her eventual return to work.
I have recommended her referral … for cognitive behaviour therapy in support of rehabilitation goals.
Underlying the long-term difficulties with pain, there have been various psychosocial difficulties. We decided to put these matters largely to one side whist dealing with the acute issues last year. These matters, regarding her marriage and her childhood experience, will require further exploration.
In a letter dated 21 August 2014 Dr Lewin stated that Dr Woods, pain specialist, had recommended that Ms Yates see Dr Jacobs, a psychiatrist associated with the Prince of Wales Hospital and therefore, as it would not be appropriate to be under the care of two psychiatrists, he would withdraw from her treatment at this stage.
In a report dated 27 September 2014, Dr Jacobs, psychiatrist [28], recorded that Ms Yates told him that:
She tripped and fell down steps backwards and landed on her front and hit her back. She said both her knees were injured and both her shoulders were injured. She said she suffered major injuries to her right knee, right shoulder and her back. She didn’t go to hospital immediately but felt sore all over. She stayed at work. She felt it was mainly soft tissue damage. She said however both her knees became swollen and she couldn’t move her right arm…
[emphasis added]
[28] Psychiatrist associated with the pain service at Prince of Wales Hospital.
After reviewing a comprehensive medical history and clinical examination Dr Jacobs concluded that Ms Yates had a diagnosis of ‘probable Fibromyalgia and major depression’.
Medicolegal Reports
Dr Gorman, General Physician, Pain Management Specialist
In a report to Comcare, dated 6 June 2016, Dr Gorman stated that he understood that on 27 March 2010 Ms Yates ‘tripped on the rubber edge of some stairs when she was walking upstairs at work’ and fell ‘onto her right elbow and right knee and twisted her right foot’.
After reviewing Ms Yates’ full medical history and performing a physical examination Dr Gorman’s, response to specific questions provided by Comcare, are, inter alia, as follows with emphasis added:
The main objective clinical findings are the limitations in shoulder movement and the mild limitations in knee movement.
She had some reduction in cervical spine movements but had good lumbar spinal movements...
…
With regard to the cervical spine, the restriction in cervical spine movement is consistent with degenerative disease…
…
I certainly agree with Dr Jordan Wood, Pain Specialist, who does not focus on the specific areas of abnormality but describes her as having “widespread musculoskeletal pain”. I believe this is the best description. I also note that Dr Jacobs (Psychiatrist) … that she has clinical features of “fibromyalgia”. I agree with this and this helps explain why the multiple surgical procedures have not resulted in any sustained improvement.
… I would not necessarily disagree with any of the previous diagnoses. However, … the lack of sustained functional improvement is because of the development of the feature of fibromyalgia and a “chronic pain” syndrome (with features of widespread pain, inactivity, deconditioning, depressed mood and opioid use).
At this stage, a long period after her initial injury, it is extremely hard to assign causation…
… I do not believe that the fall could be considered to have been causative of any lumbar spine problem …
I note that she did have degenerative disease in the cervical spine and presumably the fall may have aggravated that …
… I believe her employment is a significant material and contributing factor to the right shoulder problems …
… it certainly caused aggravation, acceleration and degeneration of her right knee osteoarthritis and her cervical spondylosis.
[emphasis added]
Dr Fearnside, Neurosurgeon
Extracts from a report by Dr Fearnside, dated 25 July 2017, are as follows with emphasis added:
On 27/3/10 … Ms Yates was working at the international terminal … She was ascending a flight of stairs, the stairs having rubber edges when she tripped on one of the edges and fell backwards down six or seven stairs.
The injuries she sustained were:
Cervical spine.
Lumbar spine.
Right shoulder.
Right knee.
With difficulty, she was able to rise and with some generalised pain, continued working that day although she felt unwell … she reported the incident to her supervisor because she was experiencing pain in her right knee and right shoulder. She was able to complete the shift.
She saw a general practitioner … and was sent for some X-rays. She was prescribed analgesia and understood that the doctor thought that the injury was muscular.
She later saw her family doctor… and was sent either for a CT or an MRI scan of her right shoulder and right knee. She was treated with analgesics … Symptoms persisted. She was referred to Dr Garvan, orthopaedic surgeon for treatment of her right knee. A cortisone injection provide no relief. She was referred on to Dr Michael Dixon, orthopaedic surgeon for a second opinion. He arranged an MRI scan of the right knee and recommended an arthroscopy of the knee which was performed on 30/9/10. [29]
[29] The MRI scan was performed on 4 June 2010 and had been seen by Dr Garvan who did not recommend surgical treatment.
For her right shoulder, she saw Dr Jerome Goldberg in August 2010. She said that she understood an MRI scan of the right shoulder showed a rotator cuff injury. On 5 /8/10 she underwent a right shoulder arthroscopy, rotator cuff repair and an acromioplasty.
With regard to the injury to the low back on 27/3/10, Mrs Yates developed low back pain and right sciatic pain. There was a prior history of a low back condition and she had undergone surgery in 2007 … Following the surgery the symptoms resolved ….
Following the fall on 27/3/10 she experienced a recurrence of back pain and right sciatica[30]… She consulted her treating neurosurgeon Dr John Sheehy who, … recommended surgical treatment. [31]
Mrs Yates was admitted … on 7/3/13 underwent pedicle screw fusion at L4/5 and decompression of L5/S1 and L4/5.[32]
…
For her neck, she experienced pain in the neck from the time of the fall. She said there was no prior history of any symptoms referable to her neck pre-dating the subject accident.[33] Following the fall on 27/3/10 she developed brachial radicular pain worse in the right arm than the left radiating to the second through fourth fingers of each hand. These symptoms have been present from the time of the fall.[34]She saw Dr John Sheehy … [who] ordered an MRI scan of the cervical spine and subsequently surgery.
General Health
Otherwise she had enjoyed good health and took no medications for other conditions. There was no prior history of any injury or disorder affecting her neck, shoulders, or knees.
… She said that she had a good result from the surgery in 2007 and at the time of the subject accident in March 2010, she had no low back or leg pain.
[30] GP records indicated recurrence of low back pain with CT scan review in January 2010 prior to the fall.
[31] Dr Sheehy: 23 January 2012 almost 2 years after the fall.
[32] Dr Sheehy: 3 May 2012 – elective decompression L3/4 and L4/5.
[33] Supra imaging for cervical spine in 2003.
[34] Dr Sheehy 28 January 2015 – date of first complaint almost 5 years after the fall.
Opinion
As a result of the fall on 27/3/10, Mrs Yates sustained injuries to her neck, low back, right shoulder and right knee.
I will confine my comments to the injuries to her neck and low back. The injuries to her shoulders and knees are outside my area of expertise …
With regard to the neck, unfortunately, there were no reports of radiological investigations of her neck [35]and there were no contemporaneous reports from Dr Sheehy … Prior to the subject fall, there was no history of any injury or disorder affecting her neck and the symptoms of which she complains and the need for surgery was a consequence of the fall on 27/3/10.
With regard to the low back, while there was a prior history of an L4/5 decompression, by her account (and Dr Sheehy 20/3/12) Mrs Yates had a good result from the surgery in 2007. The fall on 27/3/10 caused a fresh injury to the low back. There was no contemporaneous reports from Dr Sheehy or Dr Winder regarding the surgery. …The injury to her lumbar spine was an aggravation of the pre-existing lumbar spondylosis.
Cervical spine
WPI is 15%
Lumbar spine
WPI is 28%
[35] Cervical spine x-ray see supra and MRI supra check.
In a supplementary report, dated 8 October 2020, Dr Fearnside in reviewing the report of Dr Allen, dated 11 July 2019, he stated, inter alia, as follows:
My interpretation is a little different to that of Dr Allen because for the neck, Mrs Yates had no prior history of any injury nor disorder of her neck prior to 27/3/10. Accepting that she did, on balance, have some cervical spondylosis which would be unsurprising in a woman of her age, following the fall, there was ongoing neck and bilateral arm pain which eventually required a cervical foraminotomy.
For the low back, she had a good recovery from … operation in 2007 and said that the symptoms resolved completely … Following the fall on 27/3/10, she experienced recurrence of back and right sciatic pain …
I remain of the view that that the fall on 27/3/10 aggravated the cervical and lumbar conditions and was responsible for the need for further treatment.
Dr Harrison, Orthopaedic Surgeon
In a report, dated 17 October 2017, Dr Harrison recorded stated inter alia as follows with emphasis added:
On Saturday, 27 March 2010 … while working at the International Terminal … she was descending a flight of stairs but tripped on the rubber edge protector of one and fell awkwardly, ending up rolling backwards down some six to seven stairs she recalled. Embarrassed and in pain she got to her feet and carried on … but finishing her shift unwell with a lot of pain around her right knee and right shoulder, in particular.
She saw her general practitioner in Miranda and some x-rays were arranged of those injured areas … ultrasound of the right shoulder in late May … x-rays of her right knee and ankle were done, followed by MRI studies of her left shoulder and right knee as she continued to experience pain around those regions.
…
She was seen by Dr J Garvan, an orthopaedic surgeon … who assessed her and on 18 June 2010 gave her an injection of Cortisone and local anaesthetic into her right knee, which had arthritic changes evident on plain film studies and that was only of moderate relief.[36]
She developed an awareness of neck pain, lower back pain, persisting right shoulder and right knee discomfort and further specialist advice was sought.
[emphasis added]
[36] See above biopsy from 21 June for soft tissues mass.
After reviewing her medical history, and recording the findings of his physical examination, Dr Harrison stated that, ‘As a sequel to a fall down stairs on 27 March 2010, this lady injured her neck, shoulders, lower back and knees in particular’ and she has had ‘ongoing problems that have accumulated, despite well-meaning efforts at operative interventions on her different, injured areas at times’.
In answer to specific questions Dr Harrison stated, inter alia, as follows with emphasis added:
Based on the history I obtained from her here today, in my opinion that accident was substantially responsible for the problems as they have affected her neck, both upper limbs at the shoulders, her lumbar spine and both knees.
…
The accident had an effect on those and certainly pre-existing degenerate changes in her lumbar spine were present preceding and following surgery done on that area in 2007 which was clinically effective in relieving sciatic discomfort, but not all her back pain. [sic].
She had no significant complaints of discomfort with reference to her neck or shoulders at that time, as I understand.
…
The fall certainly had an effect upon her ongoing permanent disability as remains
…
A 51% Whole-person impairment affecting her as a consequence of that accident on 27 March 2010.
[emphasis added]
Dr Allen, Orthopaedic Surgeon
In a report, dated 11 July 2019, Dr Allen stated, inter alia, as follows with emphasis added:
On 27 March 2010 Ms Yates fell whilst descending some stairs and fell onto her right elbow and right knee. She said she twisted her right foot at that time.
Ms Yates continued working for a further two days and then sought medical attention.
…
Ms Yates further reported that she had symptoms in her shoulder at that time and had also stirred up her back.
…
Regarding her shoulder; there were no clinical notes from Dr Goldberg other than an operation note dated 5^th August 2010 in which Dr Goldberg reported that he has performed a right arthroscopic rotator cuff repair and acromioplasty with a biceps tenodesis.
Form this it is inferred that she may have sustained a rotator cuff injury on the right side as a consequence of her fall.
The general practitioner, when he initially saw her, diagnosed her with a “sprain” of her right knee and right shoulder.
Over the years her various musculoskeletal conditions have evolved and required treatment.
…
Over the passage of time the right knee continued to deteriorate and she underwent approximately ten plasma injections ... which gave her no benefit. This culminated in a right knee replacement for osteoarthritis.
It appears that an arthroscopy of the right knee had been performed in late 2010. Dr Dixon … documented in a correspondence dated 11 January 2011 that she had “quite advanced patellofemoral arthritis which is the reason why she is having her surgery”. He thereby indicated that there was well-established osteoarthritis in the knee which would have predated her fall.
The right knee replacement was performed in mid-2013 and, on the basis of the medical records and the history presented to me the need for the surgery cannot be ascribed to the incident in 2010. The reason for surgery appears to be pre-existing osteoarthritis to the right knee.
With respect to the lumbar spine she continued to have progressive deterioration of her lumbar spondylosis which culminated in two further surgeries on her lumbar spine …
Once again, this surgery on the lumbar spine and the underlying pathology cannot be ascribed to the incident in 2010 as she had already well-established osteoarthritis of the lumbar spine which had previously required surgery.
In 2012 she began to develop symptoms in both her hands with numbness bilaterally. This was ascribed to cervical spondylosis and she underwent a C5/6 fusion of her cervical spine in 2013. She reported some benefit from this. Once again, this cannot be ascribed to the accident in 2010 as this is a degenerative condition.
…
A further right shoulder surgery was performed by Dr Harper in April 2014. The indication for the revision surgery is not clear from the correspondence provided.
Dr Allen summarised, inter alia, as follows:
Ms Yates has multi-joint degenerative osteoarthritis affecting in particular her cervical and lumbar spine as well as both knees. She has previously had surgery on her lumbar spine and subsequently had surgery on a number of other joints.
There has been a rotator cuff tear of the right shoulder which has been ascribed to her accident in 2010. In the absence of any evidence to the contrary I must conclude that the rotator cuff tear which occurred and for which she had surgery following her accident in 2010 was a consequence of the fall at that time.
…
With respect to the cervical spine, this condition cannot be ascribed to the fall and is due to her degenerative cervical spondylosis.
Symptoms related to the neck evolved some months following her accident and cannot be ascribed to the accident.
With respect to the lumbar spine, there is well-established documentary evidence of pathology in the lumbar spine which predates her fall.
At best there have been temporary exacerbation of symptoms in the lumbar spine, but such an exacerbation would have expected to be settled within 6 to 12 weeks and the ongoing symptoms and need for further surgery relates to the progression of pre-existing degenerative lumbar spondylosis which has progressed in line with the natural history of the condition.
The effects on her lumbar spine of the fall in 2010 have long since ceased.
I cannot ascribe any current symptoms in the right foot and ankle to the fall in 2010. At best she may have had a transient strain which has long since settled.
…
With respect to the right knee, at best she may have had an exacerbation of right knee symptoms but there is well-established documentary evidence that pathology existed in the right knee prior to her fall.
Dr Allen commented that the prognosis of Ms Yates’ various degenerative conditions is ‘gradual ongoing deterioration … in line with the natural history of degenerative joint disease.’ With respect to the right shoulder, he noted that rotator cuff tear was ‘now treated surgically and considered stable and stationary’.
In response to a question as to whether Ms Yates suffers any impairment because of her compensable conditions, Dr Allen stated, inter alia, as follows:
Yes. Any such impairment relates only to the right shoulder.
As far as the other joints are concerned there is no rateable permanent impairment for those areas as the injuries in these areas have been superseded by the progression of her underlying constitutional degenerative osteoarthritis which is the cause of her current impairment …
Right shoulder impairment = 5% whole person impairment
Abduction 130º … 1%
Forward elevation 130º …2%
Extension 40º … 1%
Adduction 30º … 1%
External Rotation 80º … 0%
Internal Rotation 80º … 0%

This clearly suggests that Ms Yates continued to suffer pain for an undefined period following the surgery. This would not be unusual as it is well established that ‘sciatic pain’ from nerve compression is different from non- specific low back pain.
During her evidence in chief, Ms Yates denied having had any problems with her he cervical spine or right shoulder prior to the fall in March 2010.
In cross examination, Ms Yates said that she could not recall that in early in 2010, prior to the fall, she had attended her GP complaining of low back pain affecting her sleep, was certified unfit for work for four days and referred for a lumbar CT scan and review by a rheumatologist. She was also unable to recall that in 2003 she had undergone imaging investigations of her cervical spine.
When asked by counsel whether she could recall seeing Dr Orchard in 2002, for Ms Yates said, that she did recall his name but not what ‘transpired’ or the ‘outcome’. However, when prompted by counsel, Ms Yates agreed that that she had been referred to a shoulder surgeon who had performed an arthroscopy of the right shoulder.
In his submissions, counsel for Ms Yates referred to the description of the fall, she had provided in her statement of 1 June 2021 and asserted that ‘The important feature of the fall is that the Applicant was walking up the steps, but after she tripped, she fell down the steps.’
The difficulty with this submission is that this description is inconsistent with the original description of the fall, which did not mention falling or rolling down steps. Perusal of the documentary evidence reveals that the change in the description of fall was first noted by Dr Frean, in his report of 4 November 2013, where he stated that, ‘she fell forwards down five or six stairs’. Thereafter, Ms Yates’ description of the fall varied with each practitioner, however, rolling or falling down the stairs remained as a constant feature.
Counsel sought to minimise the difference in the descriptions by asserting that some practitioners recorded an ‘inaccurate history’. In my view, it seems more likely that Ms Yates had provided an ‘inaccurate history’. At the hearing, when asked for clarification by the Tribunal, I found her explanation to be defensive and unconvincing.
Ms Yates’ failure to reveal her relevant past medical history and a confused account of the incident in 2010, in my view, raises concerns about the reliability of other aspects of her reported history.
Right Knee
I accept that following the fall in March 2010, Ms Yates suffered pain in the region of the right knee. On consideration of the limited medical evidence in the immediate post incident period, in my view, it’s not clear whether the cause of the pain was soft tissue strain, bruising surrounding the knee joint or an aggravation of the pre-existing degenerative osteoarthritis of the knee joint.
It is clear, however, that MRI of the right knee performed about two months after the fall revealed significant degenerative change and osteoarthritis. It also revealed a swelling above the lateral condyle which may have accounted for some of swelling that had been reported by Ms Yates.
When Dr Dixon saw Ms Yates in July 2010, and reviewed the MRI, he obviously considered that early arthroscopic surgery was indicated and subsequently performed the operation in October 2010.
The operative findings confirmed that there was significant degenerative change and osteoarthritis in the knee and in a letter, dated 14 October 2010, two weeks post-surgery, Dr Dixon stated that the operation had been ‘a bigger procedure than a routine arthroscopy’ and that this meant that ‘her knee will stay swollen and require further physiotherapy than a routine arthroscopy’.
Ms Yates postoperative recovery was clearly progressing very slowly and, in a letter, dated 12 January 2011, three months post -surgery, Dr Dixon explained that ‘She does have quite advanced patellofemoral osteoarthritis which is the reason why she is having her surgery but the very nature of this does slow up the recovery process’. [emphasis added]
In my view, Dr Dixon appears to defend his decision to recommend early surgical treatment and Ms Yates slow post-operative recovery on the basis of the nature and severity of her pre-existing degenerative disease and not to any purported injury at the time of the fall.
In a letter dated 22 February 2011, about five months post-surgery, Dr Dixon states that ‘Her knee is not settling as well as we would like’ and emphasises that Ms Yates has ‘quite extensive osteoarthritis’. He also states that ‘Ultimately she is heading towards a total knee replacement’ and because of her relative youth he will be guided by Ms Yates’ ‘desire to proceed with surgical intervention’.
In a letter dated 22 May 2013, about three years post-surgery Dr Turnbull, stated that Ms Yates’ x-rays shows ‘quite marked’ lateral compartment osteoarthritis. He also noted she has noticed increasing pain in her knee since her arthroscope but recently developed ‘an acute pain due to a spontaneous bleed secondary to the arthritis’.
Dr Turnbull stated the knee was aspirated which ‘didn’t help’, that the ‘hemiarthrosis’ will resolve and recommended that Ms Yates, needs to consider a knee replacement.
On the 31 May 2013 a right knee replacement for ‘osteoarthritis’ was performed by Dr Dixon.
I my view, the above evidence supports a conclusion that Ms Yates continuing impairment and need for a total knee replacement is result of the natural progression of her right knee degenerative condition and not the result of any injury or aggravation of her pre-existing condition sustained at time of the fall in 2010.
Therefore, I am satisfied that Ms Yates impairment, with respect to the right knee, is entirely attributable to her pre-existing condition and the natural progression the condition, and therefore, the assessment for permanent impairment is nil.
This means that Comcare is not liable to pay compensation under sections 24 and 27 of the SRC Act.
Right Shoulder
A right shoulder MRI performed on 4 June 2010, more than 2 months after the fall on 27 March 2010, revealed significant degenerative change in the right shoulder, in particular, a partial thickness supraspinatus and minor acromioclavicular joint degeneration.
On 24 June 2010, after reviewing the MRI, Dr Goldberg noted a ‘near full thickness rotator cuff tear’ and recommended early ‘arthroscopic rotator cuff repair’ which was performed on 5 August 2010. In the operation report it is noted that there was a ‘trans tendon rotator cuff repair with x1suture’.
I note at this point Dr Goldberg did not appear to know that Ms Yates had previous surgical treatment of the right shoulder.
In a letter, dated 10 February 2011, Dr Goldberg noted that given the pathology Ms Yates shoulder was ‘making steady progress’.
In a letter dated 22 February 2011, Dr Rosenthal noted Ms Yates’ shoulder was still painful and stiff with some reduced range of motion which was ‘not particularly bothering her with the majority of her activities’. On examination he noted reduced range of motion of abduction to 130º and flexion to 150º with the remainder of the movement in the normal range.
In a letter, dated 2 June 2011, about 10 months post-surgery, Dr Goldberg reported Ms Yates’ shoulder continues to improve with about 80% normal movement and good power. He also noted that Ms Yates’ unoperated left shoulder was causing concern and he organised a left shoulder MRI.
In January 2012, Ms Yates was seen by Dr Harper who noted, in his letter of 30 January 2012 that she presented with a ‘long history of bilateral shoulder pain’ and unfortunately following the operation in August 2010 she had ‘residual right shoulder pain’.
On review of pre-operative and post-operative MRI scans Dr Harper stated that the post-operative films of the right shoulder showed a ‘healed but thinned supraspinatus tendon repair with adequate acromioplasty and long head of biceps tenodesis’ and added that he had ‘no further solution for her shoulder pain’.
With respect to the left shoulder, Dr Harper noted that the scan showed several degenerative changes including ‘AC joint osteoarthritis with subchondral cysts and bone oedema’. He recommended that Ms Harper consider ‘left shoulder arthroscopic acromioplasty, distal clavicle excision +/- long heads of biceps tenotomy’.
I note that, in his review of the right shoulder MRI scans, Dr Harper did not report the presence of significant AC joint osteoarthritis and did not recommend arthroplasty of the right AC joint as treatment for Ms Yates residual right shoulder pain
In a letter dated 6 August 2012 Dr Harper noted that Ms Yates had ongoing right shoulder pain and recommended an MRI scan to see if there is any mechanical cause for ongoing pain.
The report of a right shoulder MRI scan, performed on the 13 August 2012, is reported as showing, inter alia, an ‘Intact arthroscopic repair of the … supraspinatus tendon … No acromial subacromial bursopathy … Quiescent appearing AC joint OA’.
In a letter, dated 20 August 2012, Dr Harper noted that Ms Yates continued to have significant right shoulder pain but reassured her that there was ‘no acute need for right shoulder surgery’.
In a letter, dated 22 October 2012, Dr Harper noted that Ms Yates had commenced physiotherapy on her right shoulder but emphasised that based on a recent MRI there ‘were no reliable surgical targets’ and suggested non-operative treatments.
Ms Yates did not consult Dr Harper again until February 2014 and, in a letter dated 3 February 2014, almost 4 years after the fall In March 2010, he noted that on examination Ms Yates was tender over the right AC joint and had restricted elevation to 100º with positive impingement signs. He recommended a repeat right shoulder MRI.
In a letter dated 5 March 2014, Dr Harper noted that Ms Yates had right shoulder pain and loss of function with a tender AC joint, restricted elevation to 120º and positive impingement signs.
Dr Harper reported that the recent MRI showed an ‘intact supraspinatus tendon repair’ and ‘AC joint arthritis with capsular distension and sub-chondral cysts’. He stated that Ms Harper’s pain could possibly be improved with ‘subacromial decompression’ and ‘distal clavicle excision’. The operation was performed on 8 April 2014.
In a letter dated 13 November 2014 Dr Harper reported that 7 months after the revision operation Ms Yates was still troubled by chronic pain but had ‘shoulder elevation of 130º without pain’. However, Dr Harper noted that she recently she had shooting pain from her ‘shoulder to the left hand’ that was not reproduced by shoulder movement and suggested consideration of nerve and cervical spine assessment.
Ms Yates did not see Dr Harper again until October 2019 when she presented with pain and weakness in her left shoulder following a fall. On examination Dr Harper noted ‘reduced bilateral forward elevation to 130º … symmetrical external rotation in adduction to 30º … had preserved power of bilateral shoulder internal and external rotation’.
I note at his point that Ms Yates appears have maintained forward elevation (flexion) of the right shoulder at 130º since November 2014.
On consideration of Ms Yates’ past history of a degenerative right shoulder condition requiring surgical treatment and the lack of any pre-incident imaging, it is difficult to interpret the relevance of the post incident imaging findings.
However, for present purposes, I accept that at the time of the fall in March 2010, Ms Yates suffered pain in the right shoulder and that the MRI and operative findings of a partial tear of the supraspinatus tendon is evidence of an aggravation of her degenerative condition.
It is clear from the evidence that Ms Yates progress following the arthroscopic surgery August 2010 was slow and she continued to experience residual pain for reasons that are unclear.
However, as reported by Dr Harper in January 2012, that a right shoulder MRI scan showed ‘a healed but thinned supraspinatus repair’ and in October 2012 that there were ‘no reliable surgical targets’ clearly indicating that element of her condition had been repaired, therefore I am satisfied that she no longer suffered the effects of the aggravation.
When Ms Yates represented in February 2014, almost four years after the fall at work, there had been significant progression of the degeneration change in her right shoulder with the acromioclavicular joint.
Relevantly, an MRI scan showed an ‘intact supraspinatus repair’ but also significant degenerative change in the acromioclavicular joint that had not been there previously. As a result of the change in the acromioclavicular joint Dr Harper recommended and then performed a ‘subacromial decompression’ and ‘distal clavicle excision’, that is an ‘arthroplasty’ of the acromioclavicular joint.
On consideration of above evidence, I am satisfied that the change in the acromioclavicular joint and the need for arthroplasty is the result of the natural progression of Ms Yates’ pre-existing degenerative disease.
Therefore, I am satisfied there are no permanent effects of the ‘aggravation’ of her right shoulder condition. I am also satisfied that any impairment of the right shoulder which Ms Yates now suffers is entirely attributable to the natural progression of her pre-existing condition.
Therefore, the assessment for permanent impairment for the right shoulder condition is nil, which means Comcare is not liable to pay compensation under section sections 24 and 27 of the SRC Act.
Lumbar Spine
The available evidence clearly demonstrates that Ms Yates’ pre-existing lumbar spine condition was not asymptomatic in the months prior to her fall in March 2010.
In the post incident GP records and the correspondence to Comcare there is no mention of the lumbar spine or low back pain. Also, there is no mention of the lumbar spine in the initial compensation claim.
Dr Garvan, in June 2010, did not mention any lumbar spine symptoms.
In February 2011 Dr Rosenthal noted that ‘In regards to her back, she reports no symptoms’ and on physical examination noted ‘full range of movement with normal straight leg raise and no neurological deficits in the lower limbs’.
In January 2012, almost two years after the fall in 2010, Dr Sheehy stated that following the fall Ms Yates developed an ‘injury to her neck, shoulder and back’ and then described the findings of lumbar spine as ‘bone encroaching the exiting right L4 nerve root in the lateral recess and also bony overgrowth encroaching her L5 nerve root’.
In April 2012 Comcare accepted liability for ‘sciatica of the leg’.
On my reading of the available evidence, there is no convincing evidence to support Ms Yates’ claim that she suffered an injury or aggravation of her pre-existing lumbar spine condition at the time of the fall. In her oral evidence when asked why she had not mentioned her ‘back’ in her initial claim she conceded that she had not experienced pain in her back at the time of the fall but that ‘It happened afterwards … After I had several procedures’.
Furthermore, I note that in 2007 the need for surgery was related to degenerative disease in the lumbar spine at the at L4/5 level. The proposition that, two years after a fall with no evidence of pain or injury, bone encroachment and bony overgrowth at the L4/L5 level of the lumber spine was not result of the natural progression of the degenerative disease but the result of an injury at time of the fall in March 2010, I find implausible.
On the available evidence. I am satisfied that Ms Yates did not suffer an aggravation of her pre-existing lumbar spine condition in March 2010, and therefore did not suffer an injury for the purposes of section 14 of the SRC Act.
I am satisfied that Mr Yates’ current permanent impairment of the lumber spine is entirely attributable to the natural progression of her pre-existing condition. This means that Comcare is not liable to pay compensation under sections 24 and 27 of the SRC Act.
Cervical Spine
When Ms Yates was seen by her GP, two days after the fall in March 2010, the brief consultation record did not mention any ‘neck pain’ but he did request cervical spine imaging.
In a consultation record dated 12 April 2010 Dr Cyrtra did not record symptoms with respect to the neck or cervical spine noted.
In a consultation record, dated 21 April 2010, Dr Cyrtra noted ‘rt side neck pain’ with no record of a formal clinical assessment or physical examination.
In a letter to Comcare in May 2010 Dr Cyrtra noted a diagnosis as ‘Rt side neck pain’ again without clinical details.
An X-ray of the cervical spine, performed on the 24 June 2010, it is reported as showing ‘moderate degenerative spondylotic changes noted throughout the cervical spine from C4 and to C7 with large anterior flowing osteocytes …mild degenerative narrowing of the C6/7 disc.’ I note there is no record of a cervical spine MRI in the immediate post incident period.
In his letter, dated 24 June 2010, Dr Goldberg noted that Ms Yates had 'separate symptoms referable to her neck … Her neck was tender … [and] X-rays of her neck reveal significant arthritic change … She also has cervical spondylosis’. Clearly Dr Goldberg did not identify any confusion with neck pain and shoulder pain.
In a report, dated 22 February 2011, Dr Rosenthal did not mention any symptoms or impairment with respect to Mr Yates cervical spine.
Between March 2010 and March 2012 there were several entries in the GP practice records noting ‘neck pain’. During that time there was no formal clinical assessment or further investigation of the ‘neck pain’ to explain the cause of the pain. Also, there were no further reports of ‘neck pain’ until 22 January 2015, almost 5 years after the fall.
In a report, dated 4 November 2013, Dr Frean did not report any symptoms with respect the cervical spine.
In a letter, dated 13 November 2014, Dr Harper noted that Ms Yates ‘recently experienced shooting pain from her shoulder to her left hand’ that was not reproduced by shoulder movement. He speculated that the cervical spine was the cause of this ‘neuralgic’ pain.
In a letter, dated 28 January 2015, almost 5 years after the fall in March 2010, Dr Sheehy noted that Ms Yates presented with ‘pain radiating into both arms and forearms’.
A cervical spine MRI performed on 18 February 2015 is reported as showing ‘…right C5/6 foraminal stenosis with evidence of impingement of the right C6 nerve root … left C5/6 foraminal stenosis without definite impingement of the left C6 nerve root …’
In a letter dated, 11 March 2015, Dr Sheehy stated that he was unaware of any existing injury to Ms Yates’ cervical spine 27 March 2010 and that ‘Pain radiating into the arm has been a problem for several years … [and] Symptoms have been present since the time of the injury’. He suggests that there was initial confusion with respect to the shoulder or cervical spine to these symptoms.
I find Dr Sheehy claims problematic. He simply assumes that Ms Yates suffered an injury to her cervical spine in March 2010 but provides no explanation to support his assumption. Also, on my reading of the available documentary evidence, I find no support for the claim that Ms Yates suffered ‘pain radiating into the arm’ for several years since the fall in March 2010 and the ‘initial confusion’ about the cause of her symptoms.
In June 2010, Dr Goldberg recognised that Ms Yates had cervical spondylosis and noted that she had ‘separate symptoms’. There were no subsequent reports of ‘pain radiating’ into an arm until November 2014, when Dr Harper was able distinguish shoulder pain and from other pain radiating into the left arm.
On consideration of the evidence set out above I accept that following her fall in March 2010 Ms Yates experienced ‘neck pain’. The difficulty is that there was no proper clinical assessment of the pain.
I am satisfied that there is insufficient evidence to support a conclusion that Ms Yates, at time of the fall in 2010, suffered an injury to her cervical spine or aggravation of her pre-existing degenerative cervical spine condition.

Therefore, I am satisfied that Mr Yates’ current permanent impairment of the cervical is entirely attributable to the natural progression of her pre-existing condition. This means that Comcare is not liable to pay compensation under sections 24 and 27of the SRC Act.
Mental Health Condition
There is no dispute that the Ms Yates currently suffers from a depressive disorder. There is also no dispute in the expert evidence that the depressive disorder is secondary to her the nature and consequences of her various physical conditions.
In light of my findings above, I accept that the fall in March 2010 and the aggravation to her pre-existing right shoulder condition did contribute to Ms Yates mental health disorder, however, and I am not persuaded that fall contributed to the condition to a significant degree.
As noted by Dr Skinner in her report dated 17 September 2021, the correspondence of Dr Lewin, Ms Yates’ initial treating psychiatrist, indicted ‘she suffered a remission with treatment and was almost symptom-free in 2013. Her condition was in remission for a period in 2014. It seems that her condition deteriorated as her physical problems continued and became worse…’
The evidence, in my view, supports a conclusion that that the deterioration in Ms Yates’ mental health condition in 2014 and the persistent ongoing effects are the result of her pre-existing constitutional multi-joint degenerative conditions.
I note that in Woodhouse v Comcare (2021) 285 FCR 14 at [89], Derrington J, in the Full Federal Court explained that:
Section 14 only imposes liability on Comcare where, amongst other things, the ailment in respect of which the claim is made remains an “injury”. In the case of an ailment said to constitute an “injury” on the basis that it is a “disease”, the ailment must be one which continues to owe its existence to the contribution to, in a material degree, the employee’s employment … In those unusual cases, such as the present, where the disease persists but only by reason of factors unconnected to the contribution of the employment, Comcare’s liability will have ceased.
On consideration of the available evidence, I am satisfied that, Ms Yates’ ‘depressive disorder’ only persists by reason of her pre-existing constitutional multi-joint degenerative conditions and the natural progression of these conditions and, therefore, is unconnected to her employment.
It follows that Comcare is not liable to pay compensation under sections 24 and 27of the SRC Act.
Expert Evidence
In reaching my decisions I have particularly focussed on the contemporaneous documentary records of Ms Yates’ various physical conditions.
In the context of an evolving narrative over a 20-year period, which was not always reliable, I found the ‘expert’ evidence, with respect to the issue of contribution of the fall in 2010 to Ms Yates’ various pre-existing degenerative conditions, somewhat problematic.
It is submitted, on behalf of Ms Yates, that the written evidence of Dr Allen, on which the respondent relies, should not have been admitted, or alternatively, that most of his evidence should be rejected.
It is submitted that the Tribunal should prefer the untested opinions in the written reports of Drs Gorman, Harrison, and Fearnside.
In a somewhat lengthy submission, which I do not intend to address in detail, counsel for Ms Yates was very critical of Dr Allen’s evidence and attacked his credibility and professional expertise as an independent expert.
Notwithstanding counsel’s submission, in making my decisions, I have preferred the written and oral evidence of Dr Allen, which was tested at length in fairly robust cross examination.
I accept that some aspects of his evidence may be seen as problematic. However, on consideration of the whole of his evidence, in my view, Dr Allen provided, with appropriate reasons, a comprehensive and coherent assessment of the relevant issues which was also most consistent with the contemporaneous documentary evidence.
I reject the suggestion that Dr Allen was not a credible witness and, I am satisfied that he had the relevant expertise to support his opinions as independent expert.
In his report dated 6 June 2016, in response to a question form Comcare, with respect to the causes of Ms Yates’ claimed injuries, Dr Gorman stated that it was ‘At this stage, a long period after her initial injury, it is extremely hard to assign causation’. He then went on to express very brief and somewhat ambivalent opinions about the contribution of the fall to Mr Yates’ pre-existing physical conditions.
Dr Gorman did not, in my view, provide a satisfactory analysis or explanation for his opinions and therefore, I have placed little weight on his evidence with respect to the issue of contribution by Ms Yates’ employment.
In his report, dated 25 July 2017, Dr Fearnside, in expression his opinions, assumes that Ms Yates ‘fell backwards down six or seven stairs’, and ‘sustained injuries to her neck, low back, right shoulder and right knee’, but does not describe the nature or severity of any of the injuries.
With regard to Ms Yates’ lower back, Dr Fearnside reported that as a result of the fall in March 2010 she experienced ‘a recurrence of back pain and right sciatica’ but did not identify when the recurrence occurred.
The available documentary evidence clearly demonstrates that Ms Yates had a recurrence of her back pain prior to the fall in March 2010 and, in her own evidence at the hearing she conceded that she did not suffer back pain at the time of the fall or immediately thereafter. The evidence also indicates that the recurrence of back pain occurred in early 2012 about two years after the fall.
With regard to Ms Yates’ neck, Dr Fearnside reported that there was no prior history of neck symptoms before the fall in March 2010 and, following the fall she developed ‘brachial radicular pain worse in the right arm than the left’ and that these symptoms ‘have been present from the time of the fall’.
The difficulty is that there is no corroborating evidence to support this claim, particularly as the first recorded complaint of bilateral ‘brachial radicular pain’ was in January 2015, almost 5 years after the fall.
In a supplementary report, dated 8 October 2020. Dr Fearnside reported he same history as in his earlier report and reaffirmed his opinion that the fall in March 2010 ‘aggravated the cervical and lumbar conditions and was responsible for the need for further treatment’.
It is clear, in my view, that Dr Fearnside’s opinions with respect to the contribution of the fall to 2010 to Ms Yates pre-existing cervical spine and lumbar physical conditions are based on an unreliable history and, therefore, I have placed less weight on his untested evidence.
In his report, dated 17 October 2017, Dr Harrison assumes that Ms Yates suffered ‘pain around her right knee and right shoulder’ after ‘rolling backwards down some six to seven stairs’ and subsequently ‘developed an awareness of neck pain, lower back pain, persisting right shoulder and right knee discomfort’.
In response to a question from Comcare about the contribution of the fall in 2010 on Ms Yates’ pre-existing physical conditions Dr Harrison expresses an opinion ‘Based on the history I obtained from her here today’ that the ‘accident was substantially responsible for the problems as they have affected her neck, both upper limbs at the shoulders, her lumbar spine and both knees’.
Dr Harrison, in my view, does not provide any analysis or persuasive reasons to support his opinion and, therefore, I have placed less weight on his untested evidence.
CONCLUSION
For reasons set out above I am satisfied that that Ms Yates’ permanent physical impairments are entirely attributable to her pre-existing constitutional conditions and to the natural progression of these conditions.
This means that Comcare is not liable to pay compensation under sections 24 and 27 of the SCR Act in respect of the claimed conditions.
DECISION
The Tribunal finds that, as 6 August 2019, Comcare is not liable to pay compensation pursuant to sections 24 and 27 of the SRC Act in respect of Ms Yates’ right knee, right shoulder, cervical spine, and lumbar spine conditions.
The decision under review for AAT no. 2019/7718 is affirmed.
The Tribunal finds that, as 12 November 2019, Comcare is not liable to pay compensation pursuant to sections 24 and 27 of the SRC Act in respect of Ms Yates’ depressive condition.
The decision under review for AAT no. 2020/2574 is affirmed.

I certify that the preceding 345 (three hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

..................................[SGD]......................................
Associate
Dated: 19 January 2023

Date(s) of hearing: 9 - 11 May 2022 & 21 September 2022

Date final submissions received: 19 October 2022

Counsel for the Applicant: Mr L Grey

Solicitor for the Applicant: Mr M Taylor, Leigh Virtue & Associates

Counsel for the Respondent: Ms S Patterson

Solicitors for the Respondent: Ms K Gawidziel & Ms N Donaghy, AGS

[2023] AATA 32

19 January 2023

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Appeal

Expert Evidence

Date(s) of hearing:	9 - 11 May 2022 & 21 September 2022
Date final submissions received:	19 October 2022
Counsel for the Applicant:	Mr L Grey
Solicitor for the Applicant:	Mr M Taylor, Leigh Virtue & Associates
Counsel for the Respondent:	Ms S Patterson
Solicitors for the Respondent:	Ms K Gawidziel & Ms N Donaghy, AGS