Toledo and Comcare [2009] AATA 57 (28 January 2009)

Last Updated: 28 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0196

DIVISION		)
	Re		MARIA TOLEDO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

J.W. Constance, Senior Member Dr P. Wilkins MBE, Member

Date 28 January 2009

Place Canberra

Decision

The reviewable decision of Comcare made 16 November 2007 is set aside. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) the matter is remitted to Comcare for reconsideration in accordance with these Reasons for Decision.

.

..............[signed]...........
J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – liability for injury previously accepted – cessation of payment - whether Applicant ceased to suffer effects of accepted injury – decision set aside.

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Commonwealth of Australia v Borg (1994) 20 AAR 299

REASONS FOR DECISION

INTRODUCTION

3. Ms Toledo has been employed by the Australian Taxation Office since 1989. In August 2003 she injured her face, teeth, right hand and right knee when she fell on her way to work. Comcare accepted liability to compensate her in relation to these injuries.
4. On 16 November 2007 Comcare decided to affirm an earlier determination that on 13 August 2007 Comcare was not liable to compensate Ms Toledo for medical expenses, loss of earnings or permanent impairment in respect of the injury to her right hand. This decision was made on the basis that Ms Toledo had ceased to suffer the effects of the injury to her hand and wrist. Ms Toledo seeks a review of this decision.
5. For the reasons which follow we have decided that the decision under review will be set aside.

THE ISSUE FOR DETERMINATION

6. The only issue for determination is whether Ms Toledo has suffered the effects of the injury at any time since 13 August 2007. The parties have agreed that if we decided this issue in favour of Ms Toledo we should remit the matter to Comcare for further consideration of her claims for treatment expenses, incapacity payments and compensation for permanent impairment. We are satisfied that this is an appropriate course.

FINDINGS OF FACT

7. Ms Toledo gave evidence. We are satisfied that she was an honest witness and we make the following findings of fact based on her evidence unless otherwise stated. We are satisfied of the facts found on the balance of probabilities.
8. Prior to 6 August 2003 Ms Toledo had been involved in several motor vehicle accidents, the last of which occurred in February 2003. As a result she suffered a number of injuries, some of which gave rise to symptoms in her right arm and hand. Between the time of the last accident and the time of the fall Ms Toledo suffered numbness and weakness in her arms and tingling in the third, fourth and fifth fingers of each hand. These symptoms were associated with neck pain. For some time immediately prior to 6 August 2003 Ms Toledo was unable to work full-time because of the injuries suffered in the motor vehicle accidents.
9. On 6 August 2003 Ms Toledo fell as she was walking in a parking area. As she stepped into a gutter she suddenly fell forward; she was unable to put her hands out in time to break her fall. She fell onto her right hand and hit her face on the ground. Immediately after she fell Ms Toledo noticed that her right thumb was inflamed and painful to the extent that she thought she had broken it. Later that day bruising appeared on her hand.
10. On the day of the accident Ms Toledo consulted her general practitioner, Dr Jamieson. He referred Ms Toledo for an x-ray of her thumb and prescribed anti-inflammatory and analgesic medication. He later referred her for physiotherapy to her right hand.
11. Within a few weeks of the fall Ms Toledo began to experience numbness and tingling in the area of her right thumb and her right index finger. She also suffered pain in her thumb. She was absent from work for one or two weeks after the fall.
12. In the following few weeks Ms Toledo found it increasingly difficult to move her thumb and to hold things. The pain and stiffness in her thumb increased. She continues to be unable to clench her right fist normally and suffers from stiffness and pain in the carpometacarpal joint and the metacarpal phalangeal joint of her right thumb. She has difficulty managing cooking utensils and carrying heavy trays and pots because of the pain. Also she has difficulty with household cleaning and she has assistance with household tasks and gardening. As a result of the motor vehicle accidents in which she as involved Ms Toledo did have difficulty with household tasks (including food preparation) prior to the fall.
13. Ms Toledo has not returned to full-time work. Writing and using her computer increases the inflammation and pain in her right thumb. This is relieved by rest. She continues to take anti-inflammatory and analgesic medication.

MS TOLEDO'S ARGUMENT

14. Ms Toledo claims that the injury she suffered to her right hand and wrist when she fell in August 2003 has not resolved and that she has continued to suffer symptoms of the injury ever since. She says that these symptoms are distinct from those suffered as a result of the injuries she suffered in the motor vehicle accidents.
15. In addition to her evidence as to her continuing symptoms Ms Toledo relies upon the evidence of her general practitioner, Dr Jamieson and Dr Fry, a surgeon with particular experience in hand surgery.

Dr Jamieson’s evidence

16. Dr Jamieson gave evidence. He has been Ms Toledo's general practitioner since 1984. His clinical notes of his consultations with her are before us.[1]
17. Dr Jamieson agreed that Ms Toledo had experienced problems with her right arm prior to the fall. However he said that in his opinion:
    • the symptoms she suffered after the fall were different to those suffered prior to it;
    • her symptoms arising after the fall have been consistent and are significant and continuing;
    • the pain she suffers in her thumb is a result of arthritis in the carpometacarpal and metacarpophalangeal joints;
    • the carpal tunnel syndrome experienced by Ms Toledo has been superimposed on the injury to her hand but has not removed the problems arising from the fall.

Dr Fry’s evidence

18. Dr Fry examined Ms Toledo in March 2008 at the request of her solicitors. He gave evidence and confirmed the contents of his report of 6 March 2008.[2]
19. In the opinion of Dr Fry, Ms Toledo suffered “probable aggravation of osteoarthritis by her fall, and some mild degree of muscular over use which can be incited by an episode of trauma, so this is probable as well.” [3] In his view the aggravation is continuing.
20. When he gave evidence Dr Fry said that a report of a regional bone scan of Ms Toledo's right wrist carried out on 19 August 2003 supports his opinion. In his view it shows radiographic changes consistent with arthritis in the area which one would expect to be stressed by a hyperextension of the wrist.[4] Further he said that if Ms Toledo had her hand between her chest and the ground when she fell and it was not hyper-extended then her wrist could still have been stressed.

COMCARE’S ARGUMENT

21. It was put on behalf of Comcare that by August 2007 Ms Toledo had recovered from any injury suffered to her wrist and hand, whether that injury was a soft tissue injury or an aggravation of a pre-existing condition of arthritis or a combination of both. Comcare relied particularly upon the evidence of Dr Kelman and Dr Preston and acknowledged that if we did not accept their evidence it would be very difficult for Comcare to succeed in having the reviewable decision affirmed.

Dr Kelman’s evidence

22. Dr Kelman, Orthopaedic Surgeon, assessed Ms Toledo on behalf of Comcare in May 2008. He gave evidence and his reports of 20 May 2008 and 19 August 2008 are in evidence.[5]
23. Dr Kelman diagnosed Ms Toledo as suffering carpometacarpal joint arthritis right hand and metacarpophalangeal joint arthritis right thumb[6] which manifested itself in the symptoms suffered by her in her wrist and hand prior to August 2003.
24. In his opinion “the effects of the injury of 6 August 2003 are probably spent and that she has now developed osteoarthritis” in the joints referred to.[7] Further in his view osteoarthritis of the carpometacarpal joint is usually the first joint to demonstrate degenerative disease because of the dominance of right hand activities and the type and anatomical shape of the joint. On the basis of his instructions he regarded the original injury as “superficial injuries to the right fingers”.[8]
25. Dr Kelman reviewed the bone scan. In his view the mild arthritic changes apparent on the scan would not have occurred as a result of an injury suffered only six days previously, although the changes may not have been symptomatic. Any significant bony injury would have been apparent on the scan.

Dr Preston’s evidence

26. At the request of Comcare Ms Toledo was assessed by Dr Preston, Consultant Rheumatologist, in September 2006. Dr Preston gave evidence and provided two reports.[9]
27. Initially Dr Preston’s diagnosis was that of carpo-metacarpal joint arthritis and that this was a major cause of the symptoms in Ms Toledo's right thumb.[10] In her report of 11 August 2008 Dr Preston stated:

Her fall may well have aggravated symptoms in the right thumb base ... but I feel this was unlikely to be continuing to contribute to her symptoms two years after the fall and that ongoing symptoms were due to her underlying arthritis, with progression associated with the natural process of aging and the underlying condition.[11]

28. Before she gave evidence Dr Preston reviewed reports by Dr Browne, Dr Roberts, Dr Tonkin and Dr Wheen. Based on these reports she formed the view that rather than the aggravation of osteoarthritis, the likely cause of Ms Toledo's hand symptoms was soft tissue injury. She referred to Dr Tonkin’s reporting (after he examined Ms Toledo in September 2003) that there was no evidence of CMC joint arthritis and to the report of Dr Roberts in December 2003 that the carpometacarpal joint was flexible and pain-free. In addition imaging about this time did not refer to problems in the carpometacarpal joint. The first reference to arthritis in the thumb was when Ms Toledo consulted Dr Wheen in April 2005.

Reports of Dr Billett and Dr Eaton

29. The reports of Dr Billett (6 June 2002)[12] and Dr Eaton (18 August 2002)[13] confirm that Ms Toledo suffered injuries and symptoms in her arms and hands prior to the fall.

Report of Dr Tonkin

30. In 2003 Dr Jamieson referred Ms Toledo to Dr Tonkin, a surgeon with particular experience in hand surgery. On 19 September 2003, Dr Tonkin reported that he found no evidence of arthritis in Ms Toledo's CMC joint but that he did not doubt that she was experiencing pain in the joint.[14] He noted that any significant structural anomaly was ruled out by the normal x-rays and MRI scan and the relatively normal bone scan. He was unable to make a diagnosis of her condition.

Report of Dr Roberts

31. Dr Jamieson also referred Ms Toledo to Dr Roberts, Orthopaedic Surgeon. On examination in late 2003 Dr Roberts found Ms Toledo's carpometacarpal joint to be “flexible and pain free”.[15] In his opinion at the time she had a soft tissue injury which would gradually improve with time.

Report of Dr Browne

32. In September 2004, on referral by Dr Jamieson, Dr Browne administered injections to Ms Toledo's right forearm. However he reported that she continued to have wrist pain accompanied by paraesthesiae and numbness of the index finger and thumb.[16] He referred Ms Toledo to Dr Wheen.

Report of Dr Wheen

33. On 5 April 2005, Dr Wheen reported that Ms Toledo had tenderness in her right CMC joint with some pain and crepitus.[17] He noted that the bone scan showed mild uptake in the lunate and plain x-rays revealed early degenerative changes in the CMC joint of the right thumb. In his opinion there was a degree of osteoarthritis within the thumb joint.

Report of Dr Griffith

34. Ms Toledo was assessed by Dr Griffith, Consultant Surgeon in September 2005 at the request of her solicitors. In the opinion of Dr Griffith Ms Toledo suffered a hyperextension impact injury of her wrist and the fall caused an aggravation of symptoms already present.[18]

Reports of Dr Macauley

35. Dr Macauley, Consultant Rheumatologist, assessed Ms Toledo in My 2008 at the request of the solicitors for Comcare. On 9 May 2008 he reported:

There is tenderness in the CMC joint of the right thumb and signs of median nerve compression ... I am of the opinion that Ms Toledo has two continuing problems related to the fall on 6 August 2003. [19]

He identified the relevant problem as:

A direct impact injury causing hyperflexion of the right wrist, sustaining soft tissue bruising and post traumatic synovitis. In addition she has aggravated asymptomatic degenerative arthritis of the 1st CMC joint.

In his opinion Ms Toledo still suffered from the effects of the fall onto her right hand and that the pain in her hand was causally related to the fall.

36. Having considered further documents relating to Ms Toledo's condition Dr Macauley reported that the symptoms in her hands of which Ms Toledo complained corresponded to cervical nerve root irritation and not her thumb.[20] He stated that:

It is difficult to give an opinion as to whether or not she would be currently suffering from [degeneratve arthritis of the first carpometacarpal joint] if not for the fall. It usually takes significant trauma to a joint for the development of degenerative arthritis.

REASONING

37. As the Tribunal has noted on many occasions, when the decision under review is a decision to cease payment of compensation in respect of an injury for which liability has been accepted, it is necessary that we be persuaded that circumstances have changed sufficiently to justify the cessation: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307. This does not mean that there is a burden of proof resting on Comcare.
38. In our view Ms Toledo's own evidence strongly supports the conclusion that we cannot be persuaded that circumstances have changed to the point that she has ceased to suffer the effects of the injury. We have accepted her evidence that following the fall she began to experience symptoms in her right wrist and fingers which were different to those experienced by her prior to the fall and that those symptoms were continuing. During the hearing Counsel for Comcare stated that Comcare did not suggest that Ms Toledo was trying to mislead the Tribunal in any way.
39. There is no doubt that Ms Toledo suffered symptoms in the third, fourth and fifth fingers of her right hand prior to her fall and we are satisfied that these symptoms were caused by the condition of her neck. However these symptoms are not the same as those she describes as commencing after the fall.
40. Ms Toledo's evidence is supported by her general practitioner, Dr Jamieson, who has the advantage of having treated regularly Ms Toledo over 24 years. We accept his evidence that the symptoms suffered by Ms Toledo after the fall are different to those of which she complained previously and are significant and continuing. This diagnosis is supported by Dr Fry and Dr Macauley.
41. We are not persuaded to accept the view of Dr Kelman that the effects of the injury are “probably spent”. He did not provide a satisfactory explanation as to why Ms Toledo continues to suffer the symptoms she has described if his view is correct. Nor did he explain at what point he considered that the effects of the injury ceased and the underlying arthritis became symptomatic. Further his acceptance of the injury as a “superficial injury to the right fingers” is not in accordance with the evidence which we have accepted.
42. Based on the reporting of Dr Tonkin and Dr Wheen who examined Ms Toledo within six months of the fall, Dr Preston formed the view that Ms Toledo’s symptoms were a result of a soft tissue injury. However, Dr Preston does not offer a satisfactory explanation as to why Ms Toledo has continued to suffer symptoms which first became apparent within several weeks of the incident and which are different to those previously experienced.
43. Having considered all of the evidence to which we have referred and taking onto account the differing opinions of the medical witnesses we are not persuaded that at any time since 13 August 2007 has Ms Toledo ceased to suffer the effects of the injury suffered by her in August 2003.
    

DECISION

44. The reviewable decision of Comcare made 16 November 2007 is set aside.
45. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) the matter is remitted to Comcare for reconsideration in accordance with these Reasons for Decision.
    

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.

Signed: ................................................................................................

Peter Horobin

Associate

Date of Hearing 8 & 9 December 2008

Date of Decision 28 January 2009

Counsel for the Applicant Lorraine Walker

Solicitor for the Applicant Bill McCarthy

Bradley Allen Lawyers

Counsel for the Respondent Ben Dube

Solicitor for the Respondent Tony Giugni

Australian Government Solicitor

---

[1] Ex.A22.
[2] Ex.A23.
[3] EX.A23 p.3.
[4] Transcript 9/12/08 p-4.
[5] Exs R1 and R2 respectively.
[6] Ex.R1 p.7.
[7] Ex R1 p.7.
[8] Ex.R1 p.9.
[9] Exs R12 and R13.
[10] Report dated 12/9/06, ex.R12.
[11] Ex. R13.
[12] Ex.R3.
[13] Ex. R4.
[14] Ex.R5.
[15] Ex.R6.
[16] Ex.R7.
[17] Ex.R8.
[18] Ex.R9.
[19] Ex.R10.
[20] Ex.R11.