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Administrative Appeals Tribunal of Australia |
Last Updated: 29 July 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) No A2002/114 | |
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Re |
KSENIJA MLADENOVIC |
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And |
COMCARE |
Tribunal |
Mr G A Mowbray |
Decision
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The Tribunal affirms the reviewable decisions of 13 March 2000 (A2000/119) and 27 February 2002 (A2002/114).
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..................[signed].............................
COMPENSATION - motor vehicle accident - accepted back condition - whether permanent impairment - claimed neck condition - whether suffered a neck injury
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24
Re Mladenovic and Comcare [2001] AATA 827
Comcare v Nichols [1999] FCA 209
14 July 2003 |
Mr G A Mowbray |
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1. These applications are for review of two decisions by Comcare denying claims made by Ms Ksenija Mladenovic in relation to injuries caused by a motor vehicle accident on her way to work. The first application (A2000/119) relates to denial of a claim for permanent impairment where Comcare has accepted liability for the injuries claimed. The second application (A2002/114) concerns Comcare's denial of liability for a different injury said to be caused by the same accident.
2. This matter was heard by the Tribunal on 2 and 3 April 2002. Ms Mladenovic was represented by Mr Ben Salmon QC. Comcare was represented by Ms Lorraine Walker. There was insufficient time on the allotted dates for closing submissions. Comcare's written submissions were received by the Tribunal on 24 April 2002, and Mrs Mladenovic's written submissions were received on 9 May 2002.
BACKGROUND
3. Ms Mladenovic was born on 12 February 1965 in Yugoslavia. She completed a Bachelor of Agriculture there and came to Australia as a refugee in 1992. She began working at CSIRO in 1993 on a series of contracts. By 1997 she was working in the Division of Entomology as a technical assistant.
4. On the morning of 7 January 1997 Ms Mladenovic had a single-vehicle accident on her way to work, losing control and colliding with a lamppost. On 16 January 1997 Ms Mladenovic completed a claim for rehabilitation and compensation for bruising to the right knee and right hand, low back strain and anxiety. Although the initial acceptance of this claim was not among the documents before the Tribunal, it appears that Comcare accepted the claim as "lower back strain, bruising right knee and right hand" on 31 January 1997.
5. A claim for permanent injury was completed on 22 February 1999, with Ms Mladenovic contending that as a result of her accepted injuries she suffered a permanent low back injury and right leg pain. The claim was disallowed by Comcare on 14 May 1999. Following a request for reconsideration this determination was affirmed in a reviewable decision on 13 March 2000. An application for review of this decision was made to the Tribunal on 6 April 2000. This is the subject of matter A2000/119.
6. A dispute arose between the parties as to whether the Tribunal could consider Ms Mladenovic's neck complaints. A hearing as to jurisdiction was held by Senior Member Kiosoglous on 12 July 2001. On 25 September 2001 the Senior Member decided that
"The Tribunal has no jurisdiction to take into account the applicant's neck condition in its review of the respondent's decision to deny liability for compensation for permanent impairment" (decision in Re Mladenovic and Comcare [2001] AATA 827)
7. As a result a new claim for compensation was made on 10 October 2001 for a neck sprain sustained in the motor vehicle accident. Comcare disallowed the claim on 15 January 2002. Following a request for reconsideration that disallowance was affirmed in a reviewable decision on 27 February 2002. The Tribunal received an application for review on 14 March 2002. This is the subject of matter A2002/114.
LEGISLATION
8. The following provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") are relevant
"4 Interpretation
(1) In this Act, unless the contrary intention appears:
...
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
"injury" means:
...(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
...
...
"permanent" means likely to continue indefinitely.
..."
"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.
..."
"24 Compensation for injuries resulting in permanent impairment
(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.
..."
ISSUES
9. There is no dispute that any injuries sustained in Ms Mladenovic's accident are compensable under the Act. There is also no dispute that she did in fact sustain injuries. The broad issue between the parties relates to the nature and duration of those injuries.
10. For the permanent injury claim the following issues are before the Tribunal
* whether Ms Mladenovic's accepted injuries of "lower back strain, bruising right knee and right hand" have resulted in an impairment
* if so, whether that impairment continues
* if so, whether that impairment is permanent
* if so, the degree of that permanent impairment.
11. For the claim for neck sprain, the following issues are before the Tribunal
* whether Ms Mladenovic has suffered a neck condition
* if so, whether that condition was work-related.
12. I note that in relation to the claimed neck condition there is some confusion within the primary determination and the decision under review whether the neck should be considered as a distinct injury arising from the motor vehicle accident or as a sequela of the previously accepted injuries. It seems, however, that the term "sequela" has been used somewhat loosely in this context to include injuries brought together under a single Comcare claim number. No evidence or argument was put before the Tribunal suggesting that the neck condition was a consequence of the accepted knee, hand and back injuries rather than a direct consequence of the accident itself.
13. I also note that although Comcare has not made any determination that Ms Mladenovic is no longer entitled to other heads of compensation such as medical expenses or incapacity for work under the Act, it quite clearly presented its case on the primary basis that she no longer suffers any physical consequences of the motor vehicle accident. This underlies both the denial of permanent impairment for a back injury and the denial of liability for neck sprain.
14. Acceptance of that underlying contention by the Tribunal would, of course, make the process of determining the issues before the Tribunal relatively simple. On the other hand rejection of that contention would not automatically mean Ms Mladenovic was entitled to the decisions under review being set aside.
EVIDENCE
15. The documentary evidence before the Tribunal consisted of documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, known as "T-documents", for both A2000/119 (Set 1, T1 to T321) and A2002/114 (Set 2, T1 to T18), Applicant's exhibits A1 to A7 and Respondent's exhibits R1 to R12.
16. Oral evidence was given by Ms Mladenovic, Dr James Cookman her general practitioner, Drs Peter Dewey and Max Wearne who are both consultant orthopaedic surgeons, Dr Alan Innes-Brown orthopaedic surgeon, Dr G. David Champion, a rheumatologist and specialist in pain management and Dr Ross Mellick consultant neurologist.
Evidence as to the nature and severity of the accident
17. There is a range of descriptions of the motor vehicle accident in the documentary evidence before the Tribunal. While they are generally consistent with one another it is instructive to compare the more detailed accounts and note the differences between them.
18. Ms Mladenovic described the accident in the following terms in her claim for rehabilitation and compensation (Set 1 T3)
"I had lost control over my car and hit the concrete light slab, knocked it down with front of my car then still moving went in the circle few times with the car then finally stop it."
19. On 21 January 1997 Peter Christian, who also worked at CSIRO's Division of Entomology, wrote an e-mail witness report (Set 1 T6) describing his arrival at the scene of the accident
"As I was being driven into work... on 7 January at [approximately] 8.50 a.m., opposite the Belconnen Soccer Club on Belconnen Way I saw a [car] by the side of the road with severe damage to its front. I also saw a person sitting by the side of the car, obviously in distress... On getting out of the car I saw that the person by the car was Ksenija Mladenovic. [I asked] if she was alright and she [replied] she was shaken but thought she was O.K. I asked if there was [anything] that we could do to help but she said that she had phoned her husband who was on his way to assist.
Approximately 20 metres behind the car was a lamp-post lying on the ground that [had] obviously just been hit. Ksenija told me that she had lost control of the car and hit the lamp-post.
I asked [again if] she needed any assistance, and although obviously in shock, she assured me that she would be alright until her husband arrived. We therefore left the scene of the accident at approximately 8.55 a.m."
20. The Australian Federal Police attended the scene of the accident. Their report of the accident was as follows (Set 1 T7)
"Vehicle was proceeding east on Belconnen Way from Companion Cres, driver appears to have gone to sleep, vehicle clipped left curb, went into right lane, veered left, mounted curb into ACTEW light pole No. 561312, which was knocked down, vehicle spun and returned to carriage way. Extensive damage to vehicle. Towed NOR Perfection Smash Repairs. Driver although probationary, is 31 years old. She has a young baby and was up a lot of the night. She was going to work when this happened. As she doesn't recall the [initial] happenings, and reacted poorly to situation, I believe that she had [dozed] off. As no other persons involved, caution for [negligent driving] issued. ACTEW attended and removed pole. Police provided traffic direction."
21. Dr Max Wearne recorded the following history given by Mrs Mladenovic (Set 1 T81)
"At approximately 8.30am on the morning of 7 January 1997 she was driving to work in her 1991 Toyota Corolla. She was wearing a seatbelt and her set was fitted with a headrest. It had been raining and the surface of the road was wet, however visibility was good.
Ms Mladenovic mentioned she had been driving for only seven or eight months and considered herself an inexperienced driver.
As she was driving she suddenly, and unexpectedly, sneezed. The car swerved and hit the kerb. She panicked and over-corrected the wheel which projected the car into the middle of the roadway. She then over-corrected again and the car headed back towards the footpath where it collided with and snapped off a concrete power pole. The car spun as a result. The vehicle was later written-off."
22. Dr G. David Champion recorded the following in his report of 1 July 1998 (Set 1 T141)
"Her motor vehicle accident was alleged to have occurred on 7.1.98 (sic) on her way to work. She lost control and is not sure why and crashed into a light pole. She thinks that she may have sneezed to have accounted for loss of concentration. She said that she did not fall asleep. She had been travelling at about 60 km/h. The experience was fearful and that while the car was out of control she thought that she might die. At impact she was restrained by her seat belt. There was no head injury. Later there were bruises at her right knee and right hand. She said that car was a "write off".. She felt badly shaken by the whole experience. There was no particular pain at first. Her husband came in response to her `phone call from an adjacent motel. He drove her home in his car. Later that morning she saw an adjacent general practitioner and was examined and reassured. She was in an excitable state."
23. Dr Owen White, a neurologist, recorded in his report (Exhibit R3)
"On January 7, 1997 she was the driver of a Toyota Corolla, wearing a seat belt with a head rest in place. The road was wet, she lost control, swerved and eventually struck a light pole, destroying the car."
24. Dr Alan Innes-Brown's report (Exhibit R4) provides the following description
"She said that on 7 January 1997 she was driving to work and was still a provisional driver, when her car hit the kerb and then veered across the road and hit a lamp post and then spun around. She said she was able to bring the car to a stop and that she was very shaken. She said that her seat belt was fastened. She said that her car could not be driven and was written off. She said her husband came to the scene and drove her home. She said at that stage she was not feeling any pain but that her husband insisted that she go to the 24 hours medical centre in Florey."
25. Dr Ross Mellick's report of 28 August 2000 (Exhibit R7) includes this description
"Mrs Mladenovic told me at the time of her visit that she had been involved in a motor vehicle accident which occurred on 7th January 1997. She was at that time in charge of a vehicle and wearing a seatbelt when she misjudged her distance from the curb and collided with a light pole. She remembers hitting the pole. There was no unconsciousness or amnesia and she was not bleeding from any site."
Ms Mladenovic
26. Ms Mladenovic gave oral evidence that in 1993 she had a fall in her shower which caused neck pain but not lower back pain. She went to see her general practitioner twice as a result. From September 1993 until 1997 she did not have any problems with her neck.
27. In cross-examination it was put to Ms Mladenovic that the doctor's clinical notes from 1993 recorded lower back complaints. She responded that her English had been poor at that time and she could easily be misunderstood. Although she was not sure what she had said she was sure her main concern was her head, as the fall had knocked her unconscious.
28. From about June 1995 to April 1996 Ms Mladenovic did not work and was on maternity leave. She returned to full-time work and had no neck or back problems during 1996.
29. On the day of the motor vehicle accident, 7 January 1997, she was taken by her husband to Florey Medical Centre. She was given two days off by Dr Cameron (Set 1 T4) and then returned to work. However she thought she had only been back a week before she stopped working again. She thought it unlikely she would have told the doctor her lower back was getting better two days after the accident, as she was sent to physiotherapy because she was not improving.
30. She acknowledged signing her claim for compensation and rehabilitation on 16 January 1997 (Set 1 T3). She could not recall whether she had had any problems with her neck then as she was experiencing so many new pains at the time. She remembered starting to have problems with her neck by about a month after the accident. She took longer showers because it felt stiff and she also felt numbness in her right hand.
31. She suffered the same problems now as she had at that time, although they were easier to deal with because she now knew what to expect with certain activities. Prior to her accident she had thought that people complaining of back pain were exaggerating, but she now understood discomfort which did not go away. Her back was worse than her neck and so bad sometimes that she did not notice her neck concerns.
32. Ms Mladenovic was asked about her consultations with several medical practitioners. She recalled seeing Dr Wearne and finding he did not behave like other doctors she had seen previously. She talked to him about her neck problems among other matters. She could not recall saying her neck was better, nor could she say what state her neck was in at that time as its condition fluctuated. She could be free of neck pain for up to two weeks followed by bad pain for a week.
33. Ms Mladenovic remembered being sent to Dr Brook for treatment in January or February 1998. She was given a cortisone injection in her back which she described as a long and very painful procedure. It caused a toothache-like pain in her right leg. For a while she could move better but in the long term the injection had no effect. She rejected a suggestion that the findings at the time of injection were normal. This was not what Dr Cookman had told her. She understood the effect of the injection on her pain was evidence of a correct diagnosis.
34. She recalled being sent to see Dr Champion for a "proper" spinal assessment to find out what was wrong with her. Ms Mladenovic described him as the only doctor who had spent time with her as a patient, in contrast to other doctors who had taken five minutes to examine her.
35. She remembered arguing with Dr Dewey, who she said was not sympathetic. For example he had made comments about paraplegics playing sport, when she had not been a sporty person even before the motor vehicle accident. It was at this time that she learnt the difference between a medico-legal appointment and a consultation for treatment.
36. Ms Mladenovic said she had begun to experience bowel problems and faecal incontinence a few months after the motor vehicle accident. She did not tell doctors about this problem at first, but it had continued to the present. She had felt uncomfortable telling doctors about this when they were strangers who she was only seeing for half an hour. She denied not telling Dr Cookman until September 2000 and thought it was more likely she had told him in 1998. She remembered that he had given her an anal examination that was "not nice".
37. Her back pain could be very sharp or constant and annoying. Although she felt stiff she could still bend if she needed to. In the morning the right side of her back normally was numb and then cold. Her neck would also feel stiff in the morning and would improve through the day or with a hot shower.
38. As well as pain in the mid-to-low back and neck, Ms Mladenovic said that at times she would suffer pain in the right leg and arm. Each of these appeared to be triggered by something, for example her position when sleeping. She was sure in her own mind that the arm pain was linked to her neck. The leg pain had first occurred at physiotherapy 1-2 months after the accident. It was sharp and repetitive and was affected by the weather. Her upper back could feel clenched and she would find it hard to move. She described herself as having lots of little symptoms that were making life bad.
39. Ms Mladenovic also gave evidence about her employment since the motor vehicle accident.
Dr James Cookman
40. Dr Cookman, Ms Mladenovic's general practitioner, gave oral evidence in addition to the many medical certificates and reports he had written that were before the Tribunal. On 7 July 1997 he responded to a series of questions sent to him by Comcare (Set 1 T34, the questions are at Set 1 T30)
"1. Ms Mladenovic suffers from right sided lower back and leg pain which is a direct result of sacro iliac disfunction (sic) because of the accident. I believe also that there may be some injury to the facet joints adjacent to this area. This diagnosis has been confirmed in consultation with Rehab Consultant, Dr Geoffrey Speldewinde. The sacro iliac joint is the joint between the sacrum and the pelvis. Injury to this joint causes pain and stiffness over the lower back and buttock.
2. ... There is no history of low back problems prior to this incident and I know of no other precipitating cause for her current symptoms.
...
5. My believe (sic) is that full recovery will occur. However, this is not yet the case and I am unable to say presently when full recover (sic) will occur. Certainly this patient remains incapacitated with her ongoing symptoms. It is my endeavour to work out a treatment program that will allow her to pursue her pre-injury career.
6. The current incapacitating factor is pain. Consequent upon this, there is limitation of movement of the lumbar spine and maintenance of some postures exacerbate (sic) the pain.
...
16. X-rays, CAT scans and MRI scans of this lady's lumbar sacral spine have been normal. This effectively rules out nerve entrapment or disc prolapse phenomena but these normal tests are not inconsistent with sacroiliac disfunction (sic).
17. I believe the prognosis is good and my expectation is that permanent disability will not result."
41. On 23 March 1998 Dr Cookman responded to a request for information from Comcare, who had sent him a copy of Dr Wearne's report (Set 1 T104)
"As you will see from my Comcare Certificates, I have over a period of time, listed amongst her problems as (sic) facet joint pain arising from the lumbar spine. The facet joints are the stabilising joints of the spinal column and when injured in the sort of accident that affected Ms Mladenovic, can become stiff and sore for a considerable period.
I have long believed that this has been a source of her problems and my therapeutic efforts have been directed towards alleviating this... She saw Dr Brook in early February this year, and he agreed that facet joint pain was a large part of her symptomatology.
As a result, Ms Mladenovic underwent facet joint injection administered by Dr Brook in early February 1998. Interestingly, this certainly reproduced her symptoms. This is generally an indication that the right area has been accessed.
... To my recollection, please correct me if I am wrong, none of the medico-legal specialists assessed the existence of facet joint pathology. I am extremely hopeful that the prognosis for this lady remains good and that with more time a good recovery will result."
42. Dr Cookman completed the medical section of Ms Mladenovic's compensation claim for permanent injury on 22 February 1999 (Set 1 T212). He diagnosed her current condition as "Regional pain syndrome with lumbar facet joint pain and disfunction" and "Nerve root pain [right] leg". He assessed her degree of impairment as 10 to 15% without stating which tables of the Comcare Guide he had considered.
43. In his oral evidence Dr Cookman was unable to find from his notes when he had first discussed Ms Mladenovic's neck problems with her, although he certainly recalled doing so. His referrals to specialists focused on her back condition. He also recalled discussing her right arm pain. He could not find any record of left-sided pain.
44. His initial diagnosis was of an acceleration/deceleration injury, often known as a "whiplash" injury in lay terms. This type of injury was commonly to the neck and upper back but could also occur in the lower back, as in Ms Mladenovic's case.
45. A facet joint injection was both therapeutic and diagnostic. Reproducing Ms Mladenovic's symptoms was as good an indication that the right site had been found as a successful injection.
46. The diagnosis he had given of regional pain syndrome remained his understanding of Ms Mladenovic's condition. Later investigation such as Dr Champion's review in February 2001 had borne this out. Given that imaging studies had not shown any abnormalities he understood the pain was coming from the nerves themselves. This was curious but a generally recognised phenomenon and it was Dr Champion's area of expertise.
47. Any chronic pain had psychological effects and consequences, but psychological factors did not necessarily cause the condition. Her leg pain was not sciatica, as that was the term used when there was a mechanical cause for the pain. He still thought there was facet joint dysfunction in the lumbar spine.
48. Dr Cookman remained uncertain which tables he had used to assess the degree of permanent impairment. He believed they had been for the lower back and lower limbs, but did not have the tables available to him now.
49. He did not know the cause of Ms Mladenovic's faecal incontinence. He thought it had first been discussed in September 1999, although his first note was in 2000. He did not recall performing any examination for this condition and denied carrying out a digital examination.
Dr Owen White
50. On 20 June 1997 Dr Owen White, a neurologist, reported that Ms Mladenovic had given a history of "some dull low back pain" after her motor vehicle accident on 7 January 1997 (Exhibit R3). In April 1997 she developed right heel pain which was quite acute. In June she complained of
"1. Low back pain radiating to the right leg and increasing when she lies down. This is associated with numbness and causes her substantial sleep disturbance.
2. She has had right sacro iliac region pain which has responded well to physiotherapy.
3. She has some persistent right heel pain. This has been diagnosed as plantar fasciitis by Dr Speldewinde."
51. Dr White said Ms Mladenovic appeared to have a soft tissue injury. He was optimistic that she would be able to return to her previous duties although that may not be for as long as twelve months. He did not believe at that time that she would have a permanent disability and his overall prognosis was for eventual improvement in her condition.
Dr Gytis Danta
52. Dr Danta, a neurologist, saw Ms Mladenovic on 13 November 1997 when she appeared normal on general examination (Exhibit A6). Straight leg raising was normal and there was no impairment of neck movements. There was no weakness or wasting of her muscles nor any reflex abnormality in the arms or knees. There was slight tenderness over the lumbo-sacral region diffusely.
53. He reviewed her on 24 November 1997 and noting "she had normal nerve conduction studies" reported "I do not think anything should be done since she is not all that disabled" (Exhibit R12).
Dr Max Wearne
54. Dr Wearne, a consultant orthopaedic surgeon, prepared a single report (Set 1 T81) after assessing Ms Mladenovic on 20 November 1997. As part of the history obtained from her he recorded that "her neck was now comfortable but she would experience occasional headaches with prolonged sitting". His summary and assessment included the following
"From Ms Mladenovic's description of her accident it appears to have been a violent one. For a light vehicle, such as a Toyota Corolla, to have snapped off a concrete power pool (sic: pole) I must assume that the impact was considerable.
For a novice driver the whole experience must have been terrifying but it is my impression that Ms Mladenovic escaped without any serious physical injury. From her description she sustained bruising and swelling of her right hand and right knee and it would be highly probable that she sustained soft tissue injuries to her back and neck at the time of the impact.
However, some ten months after the accident, I can find no clinical evidence of any serious injury to this lady's back, neck or limbs.
There is certainly no evidence of any nerve root entrapment at spinal level. I consider that she has now completely or almost completely recovered from her physical injuries and that the main impediment which prevents her from returning to the workforce is a psychological one.
In the long term I can see no reason why Ms Mladenovic should not make a complete recovery and have no residual problems.
[In response to specific questions as to diagnosis and cause of her condition] In the accident of 7 January 1997 I consider that Ms Mladenovic suffered bruising to her right hand and knee as well as soft tissue injuries to her back and neck.
While I consider that her current symptoms are mild, I consider that they are related to the incident of 7 January 1997."
55. In oral evidence Dr Wearne said he had specialised in orthopaedic medicine for 49 years. He confirmed that on examination he had found Ms Mladenovic to have full and free range of movement in both her neck and thoracolumbar spine. At the time of his examination she still required further treatment for the after-effects of her soft tissue injuries.
56. Dr Wearne had not seen anything on his examination to suggest Ms Mladenovic suffered from chronic or regional pain syndrome. She had appeared composed and did not appear to be in significant pain. His understanding of chronic/regional pain syndrome was that it was a vague term used for pain with no physical cause found. More recently it had been divided into two types. The first type, reflex sympathetic dystrophy, was real and treatable but there was no evidence Ms Mladenovic suffered from it. The second type had neither cause nor cure.
Dr Andrew Brook
57. When Ms Mladenovic saw Dr Brook on 2 February 1998 she gave a history of low back pain radiating into the sacrococxygeal region, pain in the right leg, intermittent cervical discomfort and a painful right arm with pins and needles (Set 1 T89). She also reported pins and needles in the right leg. Dr Brook's impression was that the lower lumbar spine was not functioning at all well and that she was getting intermittent mild L5 root symptoms on the right. This suggested that she had facet joint problems. He recommended a trial of injecting the facet joints.
Dr G. David Champion
58. Dr Champion, a rheumatologist and specialist in pain management, assessed Ms Mladenovic on two occasions and wrote to Dr Cookman following each assessment. The first report (Set 1 T141) is headed "Spinal Pain Assessment" and is dated 1 July 1998
"Diagnosis:
Post injury cervical spinal pain syndrome with deep somatic referred pain and secondary allodynia in the suprascapular regions bilaterally.Neuropathic symptoms, right C8/ulnar nerve of uncertain primary origin.
Post injury lumbar spinal pain syndrome with radicular symptoms and signs particularly right S1.
Right trochanteric bursitis syndrome.
Substantial pain related interference with capacity to work, domestic and recreational functions, quality of life, sleep, and relatively severe depression of mood.
On the evidence available the motor vehicle accident of 7.1.97 has been the sole or principal cause of these disorders.
Apparent anatomical origin of spinal pain:
Skeletal:
The neck pain referred to the suprascapular regions was associated with tenderness particularly at C4-5-6.Although she indicated back pain mainly in the mid lumbar region, the most tender vertebrae were L5 and L4 consistent also with the distribution of right leg symptoms.
Peripheral neuropathic:
She has neuropathic symptoms including pain and paraesthesiae which extend to the right little and ring fingers. There was abnormal mechanosensitivity of the ulnar nerve at the wrist and in the cubital fossa at the elbow, also positive responses to right upper limb neural tension testing. It was difficult to be sure where the C8/ulnar distribution symptoms have been primarily arising from the cervical spine, brachial plexus or more peripherally.There are intermittent, sometimes, really sharp and severe pains in the right leg with paraesthesiae projecting towards the foot, also some numb sensations in both feet. It was difficult to determine whether there was predominantly L5 or S1 dermatomal distribution, but the symptoms were of peripheral neuropathic category. Straight leg raising was abnormal, particularly on the right, producing pain down the leg at about 70 degrees. There were no neurological deficits, although plantar flexion was a little inco-ordinate and weak, possibly indicating some S1 involvement. Slump tests were positive consistent with intraspinal origin of some of her symptoms.
Other findings on examination:
There was deep tissue tenderness consistent with secondary allodynia in the suprascapular regions bilaterally and in her right low back, buttock and leg. Neck flexion activated not only neck, but also thoracic back pain. Slump tests provoked back and right leg pain consistent with the presumed intraspinal origin ie radicular pain. She was markedly tender to pressure over the right trochanter and could not rest on this side indicating probable involvement of the trochanteric bursa.
Pathology revealed by imaging and its apparent relevance to the clinical disorder:
...
Comment: The normal results are no surprise and we do not require the demonstration of pathology to account for her spinal and related symptoms.
...
Apparent causative and pathogenetic influences:
There were no significant spinal disorders or limb disorders before the accident. No pathology has been demonstrated as a consequence of the motor vehicle accident. The post injury pain disorders and other symptoms are the consequence of a range of mechanisms including apparent alteration of sensory processing in relation to the stressed regions of spine, peripheral neuropathic mechanisms notably in the right L5 and/or S1 radicular involvement, central sensitisation of nociception as evidenced by the regions of secondary deep allodynia, intermittent biomechanical aggravations at work and in her personal life, impaired sleep and psychosocial factors. These are, according to the evidence available at present, the consequence of the motor vehicle accident.
...
Expected outcome:
There are a number of prognostic indicators present which suggest that this disorder is not going to resolve satisfactorily in the natural course of event in the near future. She may well respond to a reasonable degree to treatment including the above mentioned suggestions. It is likely however that there will be long retained disability, though at a lower level than one would reasonable expect than she has experienced in recent months (sic). There will be long retrained (sic: retained) susceptibility to aggravation on relatively minor provocation. It is prognostically encouraging that she is working, even though it is only part time (and this is at the expense of her domestic activities, though fortunately she is receiving home help)."
59. Dr Champion's second report (Exhibit A7) followed a review of Ms Mladenovic on 2 February 2001. In his concluding assessment he stated
"Overall, there has been definite improvement since my previous examination of 1.7.98. This is improvement in reported symptoms and in observations on examination. I doubt there is much point in obtaining further imaging at this stage... Recent brain imaging research has emphasised that with chronic back pain it is not so much any pathology in the lumbar spine which is necessarily important, but changes in sensory function within the central nervous system, ie neurobiological sensory dysfunction which, together with psychosocial factors, lead to the disability. In Mrs Mladenovic's case, the psychological factors appear to be minimal at present...
...
Applying Table 9.6 [of the Comcare Guide] to the spine, she has minor restrictions of movement and that would be particularly the case on repetitive movement. Thus, in the cervical spine there is 5% whole person impairment. In the thoracolumbar spine, the disorder is more severe and equates to 10% whole person impairment on the basis that she has loss of less than half normal range of movement, and the loss of movement would particularly apply to repetitive movements. I have endeavoured to apply Table 9.5 to lower limb function, but I really cannot make sense of that Table in relation to her kind of lower limb symptoms and disability. For the most part I think she can manage grades and steps although there would be limits to the ability of her sustaining that. It may be reasonable to regard her as having 10% whole person impairment in respect of the legs, but opinion would vary because of the inapplicability of the system."
60. In his oral evidence Dr Champion stated he had been working in his field for 30 years and focussing on pain medicine for over 15 years. Pain medicine now accounted for about half of his practice and the majority of his research.
61. He acknowledged he was assuming Ms Mladenovic was reliable in her reporting of symptoms. There was no indication she was not genuine. At the first assessment she had appeared badly depressed. He queried the proposition that he had found no "objective" signs, which appeared to equate objective signs with imaging. There were many things that imaging studies would not show, and he was very experienced in conducting physical examinations.
62. He did not consider Ms Mladenovic's fall in 1993 to be significant to her current condition, as it had only caused pain for about 10 days.
63. When asked about the permanency of Ms Mladenovic's condition, he noted that it had already existed for 4 years at the time of his last assessment. There was good evidence that some disorders brought about by changes in neurobiology were irreversible. Factors tending towards permanency included
* female gender
* severe initial pain in the first couple of weeks
* strong psychological factors initially
* inability to work effectively in the first year
* involvement in the medico-legal process, regardless of the outcome.
64. Dr Champion considered it unrealistic to consider Ms Mladenovic's ability to perform a single movement when assessing her impairment. She would be unable to sustain repeated movement as a result of pain and was therefore restricted in her movement.
65. There was slight scope for further improvement if she managed her condition well, for example if she exercised and avoided aggravating factors, especially repetitive movement. Over time spontaneous pain would reduce but use-provoked pain would remain. Any stumble or twist would readily reactivate her pain.
66. Allodynia was an abnormal response to non-noxious stimulus such as pressure on the skin. With repeated pressing pain slowly increased in intensity, radiated and would continue after the pressure was removed. This sensation did not come from the nerves that normally carried pain signals, but from mechanoreceptors that had become sensitised. The initial injury caused a barrage of impulses or neurotransmitters, causing long-lasting changes in spinal cord function. This is what was meant by "central sensitisation of nociception".
67. Neuropathic pain, on the other hand, had its origin in the peripheral nervous system. In Ms Mladenovic's case either the right C8 or ulnar stretch nerve was affected (upper limbs), and the right L5 or S1 nerve (lower limbs). These pains were the result of mechanical injuries and not central sensitisation, although their existence could contribute to central sensitisation. Following a mechanical injury a whole nerve could become hyperexcitable. There was no history of an alternative explanation to the motor vehicle accident for mechanical injury. Ms Mladenovic's neuropathic pain had significantly improved at the time of his second assessment. In the lower limbs tenderness at L4 and L5 was consistent with the symptoms in the L5 or S1 dermatomes. The dermatomes overlapped, were not precisely defined and it was difficult for patients to be sufficiently specific as to where the symptoms occurred.
68. In relation to his diagnosis of right trochanteric bursitis, Dr Champion did not have a strong opinion as to whether the motor vehicle accident had caused this but there was no alternative explanation. It was probably caused by a direct blow to the upper right femur or sudden stress of the buttock muscle. Bursitis could occur without identifiable trauma, for example with a lot of walking up stairs or hills.
Dr Peter Blum
69. Ms Mladenovic saw Dr Blum, a consultant neurosurgeon, on 25 June 1999 (Set 1 T260). She appeared to have had a soft tissue injury originally in 1997, since which she had recurrent back pain which was spasmodic in nature and in the low back region. Dr Blum found the movements of her back were within normal limits. Straight leg raising was also normal with a little hamstring tightness and there were no neurological deficits. In his view she did not have any permanent disability at that stage.
Dr Peter Dewey
70. Dr Dewey, a consultant orthopaedic surgeon, saw Ms Mladenovic on 24 August 1999, describing it as a "re-assessment" in reference to Dr Wearne's earlier examination. In his resulting report (Set 1 T282) he recorded in response to direct questioning Ms Mladenovic saying her neck condition had settled. In his summary and assessment Dr Dewey wrote
"Ms Mladenovic was involved in a road traffic accident on 7 January 1997 and sustained a soft tissue injury to her lumbar spine, which has not yet reached finality... To some extent, it must be considered that Ms Mladenovic has an abnormal response to her injury, which is confirmed by her slightly exaggerated behaviour during the physical examination.
The overall long-term prognosis is eventually good. There was no indication for surgical intervention and only simple medical treatments are required, consisting of pain relief with analgesic medication and counselling to enable Ms Mladenovic to slowly understand, adapt and integrate her condition with a normal lifestyle.
...
In my opinion, Ms Mladenovic's present condition is a consequence of the motor vehicle accident described.
...
In my opinion, it is unlikely that there will be any permanent effect or damage caused by the motor vehicle accident and the overall long-term prognosis is good.
...
It is common for the symptoms of a soft tissue injury to the lumbar spine to be very slow to settle and it is impossible to put a time limit on the situation.
...
The overall long-term prognosis is good but recovery will be slow."
71. In oral evidence Dr Dewey stated that he had been an orthopaedic surgeon since 1967. His notes of the examination recorded Ms Mladenovic as saying her neck was "better". He considered this meant more than it having improved from some earlier point in time. She had answered a direct question and had not mentioned her neck herself.
72. Dr Dewey confirmed that at the time of his examination in his opinion Ms Mladenovic was still suffering a soft tissue injury. It would eventually get better in the absence of any evidence of a bony abnormality or damage to the spinal canal. An ongoing injury suggested her response to illness was not normal, equating to a regional pain syndrome. He emphasised he was not suggesting that Ms Mladenovic was malingering in any way. Rather she was having a common or normal difficulty coping with her problem. For people with regional pain syndrome the pain was very real and genuine.
73. He would not change his diagnosis if Ms Mladenovic's condition had not changed since his assessment. It was prolonged but would eventually resolve. He would continue to trace it to the motor vehicle accident.
74. Regional pain syndrome could last for many years, but Dr Dewey had not seen an example of it lasting for the rest of a patient's life. He could not recall seeing any assessment of regional pain syndrome in the Comcare Guide. The Guide could be used as an assessment tool if one was not looking at permanency, as the condition certainly restricted a person's function and day-to-day activities.
Dr Alan Innes-Brown
75. Dr Innes-Brown, an orthopaedic surgeon, prepared a single report (Exhibit R4) after examining Ms Mladenovic on 27 July 2000. He concluded
"The history and findings disclose that this woman could have sustained minor wrenching and contusion injuries in the motor vehicle accident in January 1997. All effects of this trauma should have resolved within the matter of a few weeks. My examination defines no basis of an orthopaedic nature to explain her claimed ongoing symptoms which were not convincing.
Some of her responses during the examination were inconsistent and suggest that she is endeavouring to exaggerate the level of her claimed ongoing symptoms.
She describes symptoms suggesting some anal incontinence which could be related to pelvic floor laxity associated with her previous pregnancies. I cannot see how the minor injuries sustained in the motor vehicle accident could be associated with this problem, but this is a matter outside my discipline and an opinion from an obstetrician or gynaecologist is indicated.
In my opinion she remains fit to carry out all work to be expected of a woman of her age and physique including her former work as a technical officer in the Department of Entomology."
76. He further stated that he did not consider that Ms Mladenovic had any disability associated with her employment with CSIRO or with the effects of the motor vehicle accident in January 1997. Nor had Ms Mladenovic suffered any impairment as the result of her employment with CSIRO.
77. In oral evidence Dr Innes-Brown said he had practised medicine since 1942. He no longer did clinical work. He could not and would not comment on Ms Mladenovic's veracity, that is whether she was malingering or lying. He was not prepared to say anything beyond that some of responses were exaggerated.
78. Regional pain syndrome was not a term he would use as it was not a condition of an orthopaedic nature. He emphasised his report was purely on the orthopaedic findings.
79. Dr Mellick, a consultant neurologist, completed two reports in relation to Ms Mladenovic. To understand part of his oral evidence it is necessary to set out some of the history he obtained from her as set out in the first part of his first report of 28 August 2000 (Exhibit R7). After describing the motor vehicle accident (see paragraph 25 above) he wrote
"Mrs Mladenovic said (sic) a general practitioner 2-3 hours after the accident and she told me that that doctor reassured her and said that she would be "...OK in 2 days...".
Mrs Mladenovic was away from work for 2 days and then resumed her normal employment. She worked for approximately a week in her pre-accident job as a technical officer. During that week she was working with another person who she was training... This work had been done the same way by Mrs Mladenovic for approximately 4 years. However, during the week after the accident she was training another worker who was from China and who, she said, was very small. This obliged her to bend very much more than usual.
She told me that she developed back pain and consulted her general practitioner again who advised her to stay at home... Mrs Mladenovic was told that the height of the bench was too low."
80. Dr Mellick's conclusion in that report included the following
"The symptoms described by Mrs Mladenovic at the time of her visit to me did not develop following the motor vehicle accident. The symptoms which she describes came on after a period of 2 days absence after the accident...
The history given to me by Mrs Mladenovic did not include any pattern of symptoms which raised the probability of an organic spinal cause and at the time of my examination showed no abnormal physical signs. There were, in fact, good and unrestricted spinal movements.
...
Mrs Mladenovic, accordingly, describes a number of symptoms which do not conform with an organic pattern. Those symptoms are unassociated with any features of organicity.
...
Mrs Mladenovic exhibits the phenomenon of Somatisation. This represents a complex inter-reaction of social, cultural and constitutional factors but does not arise as a result of any disordered anatomy, physiology, or specific medical illness.
...
I do not regard Mrs Mladenovic to have any "...impairment being the loss of use, damage or malfunction of any part of the bodily system or function...".
...
If musculoskeletal pain occurred at the time of the motor vehicle accident, the known natural history of that disorder is of improvement to full resolution over a circumscribed period and indeed Mrs Mladenovic told me that the general practitioner reassured her strongly and said that she will be okay in two days. That suggests that the opinion was given was in accord with the diagnosis of musculoskeletal strain of mild degree.
Subsequent history was recorded at the time of Mrs Mladenovic's visit to me. She describes widespread symptoms which are in no way consistent with musculoskeletal strain and underline an entirely separate aetiological mechanism from any musculoskeletal strain she might have suffered at the time of the accident."
81. On 27 August 2001 Dr Mellick completed his second report (Exhibit R8) which includes the following
"The physical examination... revealed no evidence of any cervical spine disorder.
...
My recent re-examination... did not identify any abnormal physical signs which might point to the presence of an organic disorder.
...
There is no indication that Mrs Mladenovic has any organic abnormality of her neck.
I would not regard there to be any "neck condition" which was aggravated, accelerated or caused by Mrs Mladenovic's employment."
82. In his oral evidence Dr Mellick was asked to comment on the diagnoses given by Dr Champion. He said that they were not orthodox diagnoses but rather descriptive paraphrases of pain in a particular distribution. They did not advance beyond documentation of Ms Mladenovic's symptoms.
83. There were many theories about the cause of pain. He agreed there were central mechanisms involved, but in his view this was another way of describing psychic or psychogenic processes. Regional pain syndrome could be divided into two categories. The first was clearly defined and did not apply to Ms Mladenovic. The second was simply a description of chronic pain without organic cause. He was not suggesting that the pain was not real to Ms Mladenovic.
84. In cross-examination Dr Mellick was adamant that no medical connection could be drawn between the motor vehicle accident and Ms Mladenovic's ongoing symptoms. He would not accept a connection on a "psychiatric" basis. In his view the accident was one of hundreds of trivial medical events in her life and caused no major emotional disturbance. She was not knocked unconscious, did not break any bones, was not admitted to hospital and required minimal treatment.
85. At one point Dr Mellick accepted a connection on what he called a "psychogenic" basis, which was merely a historical connection and not a medical one. She was not "wrong" to link her pain with the accident but it did not advance medical diagnosis any further.
86. Dr Mellick was also asked in cross-examination about his attribution of symptoms to Ms Mladenovic's work in the week after the motor vehicle accident rather than the accident itself. It transpired that he had taken the intial reassurance by a doctor that she would be "OK in 2 days" (paragraph 79 above) to mean that she was in fact OK when she returned to work a couple of days after the accident. He acknowledged that he had not asked her whether she was experiencing any pain when she returned to work. However it made no difference to his opinion on her current symptoms whether the accident or her work in the week afterwards was the cause of her initial symptoms. Neither could be considered an organic cause of her current symptoms.
CONSIDERATION OF ISSUES AND FINDINGS
The burden of persuasion
87. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.
88. In relation to claims to establish liability for an injury or to establish sequelae or permanent impairment flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the sequelae or the permanent impairment, and that they were work-related. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]
"However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element."
Does Ms Mladenovic have a permanent impairment
89. As I have noted above, there is no dispute that any injuries sustained in Ms Mladenovic's accident on 7 January 1997 are compensable under the Act. There is also no dispute that she did, in fact, sustain injuries. What is in dispute relates to the nature and duration of those injuries.
90. Ms Mladenovic gave evidence that
* she suffered from lower back pain which could be very sharp or constant and annoying
* although she felt stiff she could still bend if she needed to
* in the morning the right side of her back normally was numb and then cold
* at times she would also suffer pain in the right leg and arm which appeared to be triggered by something such as her position when sleeping
* the leg pain was sharp and repetitive and affected by the weather
* at times her upper back could feel clenched and she would find it hard to move
* her back pain was worse than her neck and so bad sometimes that she did not notice her neck concerns
* she had begun to experience bowel problems and faecal incontinence a few months after the motor vehicle accident.
91. The medical evidence includes the following
* in July 1997 Dr Cookman said that he believed Ms Mladenovic's prognosis was good and his expectation was that there would not be any permanent disability as a result of the accident
* he reiterated this in March 1998 when he stated that he was extremely hopeful that her prognosis "remains good and that with more time, a good recovery will result"
* however in February 1999 he diagnosed Ms Mladenovic as having "regional pain syndrome with lumbar facet joint pain and dysfunction" and "nerve root pain [right] leg", a diagnosis he confirmed in oral evidence
* Dr Cookman assessed Ms Mladenovic's degree of permanent impairment as 10 to 15 per cent, but was uncertain which tables he had relied upon. He believed they had been for the lower back and lower limbs
* Dr White found Ms Mladenovic to have a soft tissue injury when he examined her in June 1997. He did not believe that she would have a permanent disability and his overall prognosis was for eventual improvement in her condition
* in November 1997 Dr Danta noted that Ms Mladenovic was "not all that disabled"
* in November 1997 Dr Wearne was of the opinion that Ms Mladenovic had sustained soft tissue injuries to her back and neck in the motor vehicle accident. However, some 10 months after the accident he could find no clinical evidence of any serious injury to her back, neck or limbs and considered that she was almost completely recovered from her physical injuries
* Dr Wearne could see no reason why Ms Mladenovic would not make a complete recovery and have no residual problems
* he found that she had a full and free range of movement in both her neck and spine and did not see anything suggesting she suffered from a chronic or regional pain syndrome
* in February 1998 Dr Brook's impression was that Ms Mladenovic's lower lumbar spine was not functioning at all well and she was getting intermittent mild L5 root symptoms on the right, suggesting that she had facet joint problems.
* in July 1998 Dr Champion diagnosed, among other things, "a post injury lumbar spinal pain syndrome with radicular symptoms and signs particularly right S1", and right trochanteric bursitis syndrome. He did not expect this disorder to resolve satisfactorily in the near future, although Ms Mladenovic may well respond to a reasonable degree to treatment. Nevertheless, there would be "long retained disability"
* in February 2001 Dr Champion found there had been a definite improvement. Nevertheless, under table 9.6 there was a 10 per cent whole person impairment of the thoraco-lumbar spine. He had difficulty making sense of table 9.5. But although "she can manage grades and steps, although there will be limits to the ability of her sustaining that", he regarded her as having 10 per cent whole person impairment in respect of her legs
* Dr Champion noted that although there was slight scope for further improvement if Ms Mladenovic managed her condition well, the condition had already existed for four years at the time of his assessment
* Dr Blum did not find any permanent disability when he examined Ms Mladenovic in June 1999, observing that the movements of her back were within normal limits as was her straight leg raising
* in August 1999 Dr Dewey said that Ms Mladenovic had sustained a soft tissue injury to her lumbar spine which was unlikely to cause any permanent effect or damage. The overall long-term prognosis was good, but recovery would be slow as it was common for the symptoms of a soft tissue injury to take time to settle
* in oral evidence Dr Dewey suggested that Ms Mladenovic may now suffer from regional pain syndrome which could last many years, but he had not seen an example of such a syndrome lasting for the rest of a patient's life. It was not permanent
* when Ms Mladenovic saw Dr Innes-Brown in July 2000 he found she had suffered minor wrenching and contusion injuries which, in his view, should have resolved within a matter of a few weeks. There was no associated disability or impairment as a result of the motor vehicle accident
* when Dr Mellick examined Ms Mladenovic in August 2000 he found that her back condition was not connected to the car accident, but developed after she was instructing another worker during her employment. If there was any musculoskeletal pain at the time of the motor vehicle accident it would have improved "to full resolution over a circumscribed period"
* Dr Mellick did not think Ms Mladenovic had any impairment as understood under the Act, having found good and unrestricted spinal movements.
92. Section 24 of the Act relevantly provides
"(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."
93. The term "impairment" is defined in section 4(1) as
"The loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."
And "permanent" means "likely to continue indefinitely".
94. Mr Salmon for Ms Mladenovic submitted that the evidence established that she has a permanent disability to her back which constituted a permanent impairment under section 24 of the Act. The degree of impairment should be assessed having regard to Dr Champion's figure of 10 per cent and Dr Cookman's figure of between 10 and 15 per cent.
95. For Comcare Ms Walker contended that Ms Mladenovic had not established that in fact she continued to suffer the compensable effects of any back injury, whether lumbar or thoracic, which might have been suffered in the motor vehicle accident. Medical evidence, even taken at its highest, could not support a permanent impairment assessment which met the requirements of section 24 of the Act.
96. Comcare placed significant reliance on the medical evidence of Dr Mellick. Dr Mellick's conclusion, however, that Ms Mladenovic's back condition was never related to the motor accident but rather arose during her training of another worker, seems to me very unlikely. It finds no support from any of the other medical evidence. Furthermore I do not accept the characterisation of the motor vehicle accident as minor as put forward by Drs Mellick and Innes-Brown. Independent reports of the accident indicate the impact was sufficient to knock over an ACTEW light pole and the damage to Ms Mladenovic's car was severe.
97. In view of my conclusions below it is not necessary to reach a decision on Ms Mladenovic's current condition. However on the evidence before me I am satisfied that Ms Mladenovic suffered certain soft tissue injuries from the motor vehicle accident of 7 January 1997. These have been described by Comcare in its accepted claim as "lower back strain, bruising right knee and right hand". As Dr Dewey has said, "It is common for the symptoms of a soft tissue injury to the lumbar spine to be very slow to settle and it is impossible to put a time limit on the situation".
98. It is less clear what back condition Ms Mladenovic experiences today. The medical evidence suggests that the soft tissue condition has resolved. Dr Champion is adamant that she continues to suffer from "post injury lumbar spinal pain syndrome". Dr Champion is supported by Dr Cookman and possibly by Dr Dewey. Dr Wearne and Dr Mellick and probably Dr Innes-Brown disagree. I note that there is evidence the accident was psychologically significant. In Dr Wearne's words, "for a novice driver the whole experience must have been terrifying".. There is also evidence that psychological factors play a significant part in the development of pain syndromes. But again, for reasons given below, it is not necessary to give a concluded view on this.
99. Clearly the evidence does not allow me to make a finding that Ms Mladenovic has a permanent impairment flowing from the 7 January 1997 motor vehicle accident. The medical reports are replete with observations that prognosis was good, that Ms Mladenovic should make a complete recovery, that she should have no residual problems, that full recovery will occur, that she was not disabled, that she suffered no impairment as a result of the accident and that she would not have a permanent disability. The specialists accepted that recovery from a soft tissue injury may be slow and take time, but it would eventually resolve. It was not permanent. Furthermore radiological examination produced no abnormal findings.
100. Among the specialists only Dr Champion supported the case for permanent impairment and even his opinion is not clear-cut. He noted that there had been definite improvement between July 1998 and February 2001 and that there was still slight scope for further improvement if Ms Mladenovic managed her condition well. He also agreed that reference for psychiatric or psychological treatment would be useful, as would anti-depressant medication which appears not to have been utilised.
101. Dr Champion is supported by Ms Mladenovic's general practitioner, Dr Cookman, who assessed her for permanent impairment in February 1999. He could not point to the table on which he sought to rely and deferred to Dr Champion on both permanent impairment and diagnosis.
102. Dr Dewey, who accepted that Ms Mladenovic may now be suffering from regional pain syndrome traceable to the motor vehicle accident, was still adamant that though it may be prolonged it would eventually resolve. He had never seen an example of regional pain syndrome lasting for the rest of a patient's life even though it may cause functional loss before it did resolve.
103. Having regard to the legislative definitions of impairment and permanent and the factors set out in section 24(2) for consideration in determining whether an impairment is permanent, I cannot be satisfied on the balance of probabilities on all the evidence before me that Ms Mladenovic has an impairment that is permanent as a consequence of the 7 January 1997 motor vehicle accident. Indeed the evidence suggests that any impairments Ms Mladenovic has as a result of that accident will, if they have not already, resolve. They certainly cannot at present be regarded as permanent.
104. The reviewable decision of 13 March 2000 must be affirmed.
Did Ms Mladenovic suffer a neck injury from the motor vehicle accident
105. Ms Mladenovic's claim for rehabilitation and compensation of 16 January 1997 made no mention of any neck injury resulting from the accident. Nor did her doctor's certificate of 9 January 1997, two days after the accident. Following Senior Member Kiosoglous's decision on jurisdiction (see paragraph 6 above) Ms Mladenovic lodged a further claim for rehabilitation and compensation dated 10 October 2001 referring to a "neck and neck region (right side)" injury.
106. In her oral evidence Ms Mladenovic
* could not recall whether she had any problems with her neck when she lodged her first claim in January 1997
* remembered starting to have problems with her neck about a month after the accident
* said her back was so much worse than her neck that sometimes she did not notice her neck problems
* insisted she talked to Dr Wearne about her neck problems, although she could not say what her neck condition was like at that time. She could not recall saying her neck was better
* indicated that currently her neck would feel stiff in the morning and would improve through the day or with a hot shower
* asserted that the pain she suffered in her arm was linked to her neck.
107. The medical evidence includes the following
* Dr Cookman provided medical reports to Comcare in July 1997 and March 1998, neither of which referred at all to any neck pain or neck problems. Nor did he mention it in the medical section of Ms Mladenovic's compensation claim for permanent impairment in February 1999
* in his oral evidence Dr Cookman could not find in his notes when he first discussed neck problems with Ms Mladenovic, although he recalled doing so
* his initial diagnosis was of a whiplash injury which was commonly to the neck and upper back but could also occur in the lower back, as in Ms Mladenovic's case
* Dr White's report of June 1997 makes no mention of any neck condition
* Dr Danta saw Ms Mladenovic in November 1997 and makes no mention of any neck complaints, although he notes there was "no impairment of neck movements"
* in November 1997 Dr Wearne recorded that "her neck was now comfortable, but she would experience occasional headaches with prolonged sitting". He said that it was highly probable that she sustained soft tissue injuries to her neck at the time of the impact, but he could find no clinical evidence of any serious injury to her neck 10 months later. She had a full and free range of movement in her neck
* in February 1998 Dr Brook was given a history of intermittent cervical discomfort with a painful right arm with pins and needles
* Dr Champion's assessment in July 1998 included "post injury cervical spinal pain syndrome with deep somatic referred pain and secondary allodynia in the suprascapular regions bilaterally" and "neuropathic symptoms, right C8/ulnar nerve of uncertain primary origin"
* in Dr Champion's view the motor vehicle accident of 7 January 1997 was the sole or principal cause of this disorder. He did not consider Ms Mladenovic's fall in 1993 to be significant in her current condition
* Dr Blum's report in July 1999 makes no mention of any neck condition
* Dr Dewey reported that in August 1999 Ms Mladenovic told him her neck condition had settled when responding to a direct question from him. She had not mentioned her neck herself
* Ms Mladenovic told Dr Innes-Brown in July 2000 that "when she puts her chin on her chest, she has a pulling pain in the back of the neck". Dr Innes-Brown found a good range of active neck and shoulder movements on each side, but makes no further mention of any neck problems. In his view, at most Ms Mladenovic could have sustained minor wrenching and contusion injuries as a result of the motor vehicle accident which would have resolved within a matter of a few weeks
* when Ms Mladenovic saw Dr Mellick in August 2000 she told him that her neck was uncomfortable when she was in bed. There was also some stiffness when she woke in the morning. "This improves when she gets out of bed and is generally absent about 10 minutes after commonly disappearing when she has a hot shower. She said that symptoms of this type began, to the best of her recollection, in January 1998."
* Dr Mellick could find no evidence through physical examination of any cervical spine disorder, certainly no "neck condition which was aggravated, accelerated or caused by Ms Mladenovic's employment".
108. The definition of "injury" in section 4(1) of the Act relevantly includes
"An injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment"
109. Ms Mladenovic asserted that she suffered a compensable injury to her neck as a consequence of the January 1997 motor vehicle accident. In particular she relied on the evidence of Drs Champion and Cookman with some support from Dr Wearne.
110. Comcare submitted that there is no reliable evidence of an initial injury to the neck at all and insofar as Dr Champion's theory of pain related to this initial injury, it too was unreliable. In its view Ms Mladenovic's neck claim was a recent construct.
111. There is evidence before the Tribunal which suggests that at some stage Ms Mladenovic experienced neck problems. A number of the medical specialists refer in passing to a neck condition. Some refer to soft tissue injuries to the neck. However it is clear that these references result from the history obtained from Ms Mladenovic.
112. Dr Champion is the only specialist medical practitioner who provides a substantive diagnosis of a neck condition, that is, cervical spinal pain syndrome plus certain neuropathic symptoms from the right C8/ulnar nerve. This is based on his own examination of Ms Mladenovic and the history she gave him. Ms Mladenovic's general practitioner, Dr Cookman, supports Dr Champion.
113. On the other hand Ms Mladenovic's history as recorded by a number of the specialists makes no mention of any neck condition. Neither did her initial application for compensation and the later one for permanent injury. The first recorded mention of a neck condition appears to be Dr Wearne's report of his November 1997 assessment. Physiotherapy treatment notifications in June 1997, December 1997 and December 1998 make no mention at all of any neck condition. Furthermore, in December 1999 Ms Mladenovic's solicitor in a letter to Comcare commenting on Dr Dewey's report stated "Our client indicates that she has never had a problem with her neck". A review by Dr Champion under cross-examination of his recorded history did not disclose any claim by Ms Mladenovic of a neck injury at the time of the accident.
114. On the evidence it is possible that Ms Mladenovic has experienced neck pain at some stage, whether due to a soft tissue injury or a regional pain syndrome. But the evidence is not sufficient to persuade me on the balance of probabilities (see Nichols at paragraph 88 above) that she suffered or suffers from a neck condition. Indeed as I have pointed out Ms Mladenovic through her solicitors denied any neck problems. No record of any concerns about the neck appears in the reports of a significant number of the medical practitioners.
115. Furthermore even if I were to accept that Ms Mladenovic has or had a neck condition, the evidence does not allow a finding that the condition resulted from the January 1997 motor vehicle accident. I am not satisfied that any neck injury arose out of or in the course of Ms Mladenovic's employment. Ms Mladenovic is not entitled to compensation for any such neck injury.
116. The reviewable decision of 27 February 2002 must be affirmed.
Conclusions
117. In summary
* I am not satisfied that any back impairment Ms Mladenovic currently experiences as a consequence of the 7 January 1997 motor vehicle accident is permanent
* I am not satisfied that Ms Mladenovic suffers from a neck condition
* I am not satisfied that any neck condition Ms Mladenovic may have resulted from the January 1997 motor vehicle accident.
DECISION
118. The reviewable decision of 13 March 2000 on permanent impairment in application A2000/119 and the reviewable decision of 27 February 2002 on a possible neck injury in application A2002/114 are affirmed.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........[Trevor Mobbs]......................................
Associate
Dates of Hearing 2-3 April 2002
Date of Final Submissions 9 May 2002
Date of Decision 14 July 2003
Counsel for the Applicant Mr Ben Salmon QC
Solicitor for the Applicant Mr Bill Coombes, Higgins Solicitors
Counsel for the Respondent Ms Lorraine Walker
Solicitor for the Respondent Ms Kaveetha Kumar, Dibbs Barker Gosling
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