Young and Comcare
[2010] AATA 652
•30 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 652
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5915
GENERAL ADMINISTRATIVE DIVISION ) Re MARTIN ROBIN YOUNG Applicant
And
COMCARE
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date30 August 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
.................[signed]........................
Senior Member
COMPENSATION – neck sprain and thoracic sprain – previously accepted conditions – whether conditions have ceased to have effect
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19
Telstra Corporation v Hannaford (2006) 90 ALD 263
REASONS FOR DECISION
30 August 2010 G. D. Friedman, Senior Member
1. Martin Young worked for the Australian Taxation Office (ATO) and suffered an injury to his neck, shoulders and back after walking home from work on 7 October 2005 as part of a fitness and health awareness program. The respondent accepted liability to pay compensation for neck sprain and thoracic sprain.
2. Although Mr Young described ongoing pain, on 12 June 2009 the respondent was not satisfied that any of his current symptoms were related to the accepted conditions, and on 14 October 2009 made a reviewable decision that he was not entitled to compensation for incapacity or medical expenses (including chiropractic treatment).
LEGISLATIVE BACKGROUND
3. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16 of the SRC Act provides:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
Section 19 of the SRC Act provides:
19 Compensation for injuries resulting in incapacity
...
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…
ISSUES
4. The issues before the Tribunal are:
· Is Mr Young currently suffering from the accepted conditions of neck sprain and thoracic sprain sustained on or around 7 October 2005? If so:
· Is the respondent liable to pay Mr Young compensation under s 16 and s 19 of the SRC Act for the claimed conditions? If so:
· Does the treatment claimed by Mr Young constitute medical treatment and is it reasonable in the circumstances?
IS MR YOUNG CURRENTLY SUFFERING FROM THE ACCEPTED CONDITIONS OF NECK SPRAIN AND THORACIC SPRAIN SUSTAINED ON OR AROUND 7 OCTOBER 2005?
5. Mr Young told the Tribunal that he is still suffering from the accepted conditions that he sustained on Friday 7 October 2005. By way of background he stated that he left school after Year 11 and undertook a variety of jobs before studying Year 12 and a Bachelor of Business degree as a mature-aged student. He commenced with the ATO in 1981 and within seven years he had been promoted to Senior Investigator (Executive Level 1). He recalled that on 7 October 2005 he and a number of work colleagues were participating in a fitness campaign called 10,000 steps challenge that was designed to increase the level of physical activity and create awareness of the health benefits of daily activities, including work. His contribution was to walk home from work on that day, which was a distance of approximately 11 kilometres. He said that the journey took about one and a half hours and he carried an office-issued briefcase which weighed about six kilograms.
6. Mr Young said that over the course of the weekend he developed stiffness in his neck, shoulders and upper back, and by the following Tuesday the pain was such that he sought treatment from Dr C. Webster, whom he believed was a general practitioner but was in fact a chiropractor. He took eight days off work. He consulted Dr Webster frequently and was placed on a program of flexibility exercises, but the treatment had little lasting impact other than an easing of symptoms over the next few months.
7. Mr Young said that in early 2006 he developed pain in his forearms and wrists while performing exercises prescribed by Dr Webster. He said that this pain was exacerbated in June 2006 when he was required to undertake intensive computer training and handling of training notes, and led to a diagnosis of De Quervain’s tenosynovitis of the left wrist. Mr Young explained that he resigned from the Australian Public Service on 12 February 2007 shortly before his 55th birthday because this was most advantageous for his superannuation entitlements, and also because he had recently received an inheritance and was feeling tired as a result of working since he was seven years old. He lodged a claim for compensation for the left wrist condition and the matter was settled by consent at the Tribunal on 30 October 2008, with agreement that he ceased to suffer the effects of the wrist condition as at 1 July 2007.
8. Mr Young said that his pain was continuing and in August 2009 he consulted Dr S. Chiang, general practitioner, who carried out an investigation into his various conditions, and has administered regular acupuncture treatment for neck and wrist pain since then. Mr Young stated that he still suffers from headaches, neck stiffness and shoulder pain from the October 2005 incident, and pain in his forearms. He described difficulty in performing basic household tasks. The wrist pain has largely ceased. Mr Young was critical of the medico-legal assessments of him carried out by specialists on behalf of the respondent and said that their examinations had been cursory and sloppy. He urged the Tribunal to prefer the opinions of Dr Chiang and the other practitioners who have treated him and are more familiar with his symptoms and background.
9. Under cross-examination Mr Young admitted that he has a poor memory, but agreed that he had been involved in several incidents in the past, including an event in 2003 or 2004 when his car struck a kangaroo, and a recent motor vehicle accident, but that these had not resulted in significant injury. He also outlined sporting injuries in his youth, a broken collarbone in his 30s and a fractured sternum at school. He gave details of a home invasion in 2000, when he was assaulted and suffered injuries to his neck and shoulders. Mr Young agreed that he had first consulted a chiropractor in 1998 when he suffered neck pain, believing that the person treating him was a qualified medical practitioner.
10. Dr Webster told the Tribunal that Mr Young first presented on 11 October 2005 with symptoms of neck and shoulder pain, and was diagnosed with acute cervico thoracic strain with cephalgia. He said that Mr Young described lifting a heavy bag for several hours two days earlier, but gave no previous history of this type of pain or injury. Two days after the consultation he wrote a letter To whom it may concern in which he stated that Mr Young …has resumed spinal manipulative therapy for a chronic cervico thoracic strain. Under cross-examination Dr Webster agreed that he was not aware of Mr Young’s history of other injuries, and that the condition was acute, rather than chronic, at the time of presentation.
11. Dr P. Livis, chiropractor, told the Tribunal that Dr Webster referred Mr Young for acupuncture in about October 2005. In a report dated 14 May 2008 Dr Livis stated that Mr Young suffered from residual symptoms of repetitive strain/overuse to his forearm extensors and cervical spine. He reported that Mr Young’s health in the past has been good with no traumatic or pathological conditions of note as to contribute to his current status. Dr Livis concluded that Mr Young had suffered injuries as a result of work-related tasks and activities in 2005 and 2006. Treatment continued until September 2009. Under cross-examination Dr Livis agreed that he was not aware of prior injuries or medical conditions suffered by Mr Young.
12. Dr S. Chiang, general practitioner, told the Tribunal that Mr Young first presented to him on 18 August 2009 after consulting various chiropractors over several years. He said that he was the only medical practitioner to carry out a proper medical investigation by means of CT scans and x-rays, and he diagnosed a neck injury with discogenic abnormality. In a report dated 27 August 2009 Dr Chiang concluded that Mr Young was still suffering from severe pain and disability, and the neck and wrist conditions were chronic. Treatment included medical acupuncture and physiotherapy. Dr Chiang said he had no doubt that Mr Young’s previous work was the major factor, if not the sole determining factor, in his conditions.
13. Under cross-examination Dr Chiang agreed that when he first examined Mr Young in 2009 he was not aware of any medical symptoms or conditions prior to 2005, or x-rays, but maintained that his opinion was based on a totality of factors, including radiological reports, and he pointed to his long experience in workers’ compensation matters. Dr Chiang agreed further that he did not take a detailed history of the October 2005 incident and was not aware of the distance Mr Young walked, the weight of the briefcase or the hand used to carry the briefcase. He ruled out degeneration or other factors such as sleeping awkwardly after the walk as major contributing factors, given the circumstances and Mr Young’s age.
14. Mr N. Giovannucci, physiotherapist, told the Tribunal that Mr Young was referred to him by Dr Chiang on 12 August 2009 for treatment of pain arising from carrying a briefcase for one and a half hours in 2005, and repetitive overuse tasks at work in 2006. He said that Mr Young reported no history of musculoskeletal dysfunction or trauma, and he concluded that Mr Young had sustained an acute injury to his spine and upper limbs due to his employment, and the condition has become chronic. Under cross-examination Mr Giovannucci agreed that his findings were based on radiology, an examination and a history given by Mr Young. He agreed further that his conclusions might have been different if he had been aware of prior neck and shoulder symptoms arising from other events not related to Mr Young’s employment.
15. Ms P. Chin, Mr Young’s wife, told the Tribunal that Mr Young still suffers from headaches as well as neck, arm, shoulder, elbow and wrist pain since the 2005 injury. She said that often he is unable to perform simple tasks such as carrying shopping baskets or buckets of water, holding crockery or kitchen utensils, hanging washing on the line and applying medicinal cream to his neck. He suffers pain moving his head while driving a car. Under cross-examination she agreed that Mr Young had suffered head and neck injuries in the home invasion in 2000 and that he had required medical treatment.
16. In a report dated 15 October 1999 Dr D. Dahdah, chiropractor, stated that Mr Young had received treatment for a neck complaint linked to his use of the telephone, which he was required to operate on his left side because of hearing problems in his right ear. These consultations had commenced in July 1998. Records provided by Mr Young indicate that treatment by Dr Dahdah had ceased in May 2000.
17. In a report dated 8 April 2008 Dr T. Kostos, rheumatologist, stated that on examination he found slightly restricted neck movements with minor tightness and no associated local tenderness. Shoulders and elbows showed a full range of movement. There was poor flexibility in Mr Young’s forearms. Wrists showed no signs of De Quervain’s tenosynovitis, and x-rays showed minor narrowing of C3/4 and C4/5 discs, with early osteoarthritic changes. Dr Kostos concluded that Mr Young has been mistakenly convinced he suffered an injury. He identified constitutional disc degeneration and osteoarthritis in the cervical spine, and said that any current neck complaint is due to non work-related problems.
18. In a further report dated 4 August 2010 Dr Kostos said that he had examined extensive documentation including reports from Dr Chiang and various chiropractors. He said that Dr Chiang had mistakenly based his diagnosis of neck pain on the use of a CT scan. He added that the October 2005 incident had not caused the neck condition, because changes to the cervical spine had been noted on x-rays prior to the incident. He said that there may have been temporary aggravation of symptoms in 2005, but that this had resolved. Neck stiffness could have been related to headaches. In oral evidence Dr Kostos said that Mr Young gave no history of injuries or conditions affecting his neck or back that occurred prior to the October 2005 incident, and that any current pain might be related to pre-2005 injuries or the pre-existing spine degenerative condition. Alternatively there may be no apparent cause.
19. In a report dated 27 March 2009 Mr W. Wearne, consultant orthopaedic surgeon, stated that Mr Young reported no discomfort in his neck or shoulders while resting or performing light household tasks, but suffered pain in his shoulders and upper arms, as well as tightness in his neck, if he lifted heavy objects. There were no real problems with his wrists or forearms. On examination Mr Wearne found a normal range of movement in the neck and no tenderness, and concluded that there was no evidence of a neck sprain, thoracic sprain or of De Quervain’s tenosynovitis, so there was no relationship between any current condition and Mr Young’s employment. He was unable to make a specific diagnosis of any current condition. Mr Wearne noted that Mr Young had undergone 136 chiropractic sessions between October 2005 and December 2008, and that this form of treatment had no therapeutic benefit and was not required.
20. In a further report dated 21 April 2010 Mr Wearne stated that he had examined relevant clinical notes and reports by other practitioners. He said that if Mr Young had aggravated any pre-existing condition, all evidence of such aggravation had disappeared and was therefore temporary. He reiterated that Mr Young presently does not suffer from any recognisable pathological condition of his neck or thoracic spine. Mr Wearne told the Tribunal that during the examination Mr Young did not mention to him any injury or condition affecting the neck or shoulders that occurred prior to the October 2005 incident. He said that he had followed his usual practice of taking a history from the person being assessed and then carrying out a physical examination. Mr Wearne stated that Mr Young had not complained to him about any aspect of the assessment or examination.
21. In a radiological report dated 18 August 2010 Dr I. Clare stated that previous cervical spine x-rays of 27 July 1998 and 11 October 2005 were compared with a CT scan dated 13 August 2009. Dr Clare said that the 1998 x-ray showed slight degenerative change in C3/4 and C4/5 joints compatible with early degenerative disc disease. The 2005 x-ray showed a similar result. The CT scan of 13 August 2009 gave a similar result in respect of degeneration of the joints, but showed associated disc bulges at C3/4 and C4/5. Dr Clare concluded that there is evidence of longstanding mild C3/4 and C4/5 degenerative disc disease. The medical records also show evidence of osteoporosis of the lumbar spine.
22. The Tribunal takes into account the evidence given by Mr Young and his wife about pain that Mr Young experiences performing some household tasks and lifting heavy objects. The Tribunal notes that Dr Chiang considers himself to be experienced in workers’ compensation matters and that he emphasised his role in carrying out the only proper investigation of Mr Young’s symptoms. The Tribunal also takes into account that Dr Webster, Dr Livis and Mr Giovannucci supported Dr Chiang’s conclusion linking the current symptoms of pain to the October 2005 incident.
23. However Dr Chiang, Dr Webster, Dr Livis and Mr Giovannucci agreed in evidence that they did not take a history from Mr Young of medical conditions or injuries that occurred before the October 2005 incident, so the Tribunal places less weight on their conclusions than if they had access to a complete medical history. The Tribunal takes into account that of these practitioners Dr Chiang is the only one with medical qualifications, and that he practises as a general practitioner.
24. The Tribunal prefers the evidence from Dr Kostos, whose opinion as an experienced specialist rheumatologist is consistent with the radiological investigations which suggest disc degeneration and osteoarthritis causing neck pain or a stiff neck. The Tribunal also accepts the evidence from Mr Wearne, a specialist orthopaedic surgeon of many years’ experience, who found no neck sprain or thoracic sprain, consistent with the findings by Dr Kostos. Both Dr Kostos and Mr Wearne took into account comprehensive clinical notes and the opinions of other practitioners. After hearing evidence from Dr Kostos and Mr Wearne the Tribunal does not accept the assertion by Mr Young that either specialist or both acted unprofessionally in their role in providing independent medico-legal opinions or were in any way biased against him.
25. On the balance of probabilities the Tribunal finds that any pain currently experienced by Mr Young in his neck region is the result of osteoarthritis or degeneration of the spine that is unrelated to the neck sprain and thoracic sprain which were accepted conditions sustained on 7 October 2005. There may have been a temporary aggravation of symptoms of a pre-existing condition but the Tribunal is satisfied that any aggravation has now settled.
26. For these reasons the Tribunal finds that that the effects of the accepted conditions have ceased, and there is no need for the Tribunal to consider whether the respondent is liable to pay Mr Young compensation under s 16 and s 19 of the SRC Act for the accepted conditions or whether the treatment claimed by Mr Young constitutes medical treatment.
27. In Telstra Corporation v Hannaford (2006) 90 ALD 263 the Full Federal Court held that the Tribunal is empowered to make findings of fact that effectively undercut the findings of fact made in the original decision to accept liability under s 14 of the SRC Act in respect of a claim for compensation. In all the circumstances the Tribunal does not believe that there is any need to re-assess the acceptance of liability for the accepted conditions relating to the October 2005 incident.
DECISION
28. The Tribunal affirms the decision under review.
I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
Signed: …………………[signed]……………………………………
Grace Horzitski Associate
Dates of hearing: 20, 23 and 25 August 2010
Date of decision: 30 August 2010
Advocate for the applicant: Self-represented
Counsel for the respondent: Mr R. Seit
Solicitor for the respondent: Australian Government Solicitor
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