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Brackenreg and Comcare [2009] AATA 819 (23 October 2009)

Last Updated: 26 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5101

) No 2007/5276

) No 2008/0575

) No 2008/5877

GENERAL ADMINISTRATIVE DIVISION
)

Re
DEBORAH BRACKENREG

Applicant
And
COMCARE

Respondent

DECISION

Tribunal
M J Carstairs, Senior Member

Date 23 October 2009

Place Brisbane

Decision
In application 2007/5101, the Tribunal affirms the reviewable decision dated 15 October 2007.
In application 2007/5276, the Tribunal affirms the reviewable decision dated 16 October 2007.
In application 2008/0575, the Tribunal affirms the reviewable decision dated 22 January 2008.
In application 2008/5877, the Tribunal sets aside the reviewable decision dated 17 November 2008 and substitutes the decision that Comcare is liable to pay compensation for Ms Brackenreg’s tempo-romandibular joint dysfunction, and, under s 16 of the Safety, Rehabilitation and Compensation Act 1988, for the cost of an occlusal splint.

Either party may make an application in relation to the costs of the proceedings in application 2008/5877 within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the applicant’s costs in application 2008/5877 be paid in accordance with
s 67 of the Safety, Rehabilitation and Compensation Act 1988.


.....................[Sgd].....................

Senior Member

CATCHWORDS
COMPENSATION – motor vehicle accident – applicant suffered whiplash injury – respondent accepted liability for musculoligamentous injury to neck – whether applicant recovered from compensable injury – whether conditions of headaches, syringomyelia, and cervical disc degeneration related to the motor vehicle accident – Tribunal affirms reviewable decisions


COMPENSATION – gastritis – condition arising from use of pain medication – condition not compensable – Tribunal affirms reviewable decision


COMPENSATION – psychiatric condition – diagnosis – whether psychiatric disorder related to the motor vehicle accident – Tribunal affirms reviewable decision


COMPENSATION – dental problems sustained in the motor vehicle accident – later development of temporo-mandibular joint dysfunction – treatment by occlusal splint – Tribunal sets aside reviewable decisions


Compensation (Commonwealth Government Employees) Act 1971 (Cth), s29


Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16, 19, 24


Re Brackenreg and Comcare [1993] AATA 718

Re Brackenreg and Commissioner of Taxation [2003] AATA 824; (2004) 53 ATR 1116

Re Brackenreg and Comcare [2002] AATA 1325

Re Brackenreg and Comcare [2005] AATA 1121

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167

Fernandez v Tubemakers of Australia Pty Ltd [1975] 2 NSWLR 190


REASONS FOR DECISION


23 October 2009
M J Carstairs, Senior Member

  1. Deborah Brackenreg suffered a compensable injury to her neck as a result of a motor vehicle accident that occurred when she was on her way to work on 7 March 1984 (“the 1984 accident”). Ms Brackenreg’s utility was hit from behind, forcing it into the back of a vehicle ahead of her. She was 24 years old at the time; she is in her early fifties now.
  2. Ms Brackenreg lodged a claim within a month of the 1984 accident.[1] The injury for which Comcare accepted liability is described in the documents as a “Musculo-Ligamentous neck injury”[2] (“the compensable injury”). No question arises about the correctness of that description. It was based upon medical evidence from her general practitioner and confirmed by specialists. At the time of the claim, the connection between the compensable injury and employment was evident—at least as it related to the effects of whiplash.
  3. Over the last 25 years, this matter has been the subject of a series of further claims and a protracted history of appeals. It is salutary to look at the words Ms Brackenreg used to describe the compensable injury when she lodged her original claim. She stated that the injury was “whiplash, sprain shoulder, broken teeth”.[3]
  4. Ultimately, Ms Brackenreg was retired under the Public Service Act 1922 on medical grounds in April 1987. These grounds included conditions described as depression; hysterical conversion state; a soft tissue injury to the cervico-brachial region; and a tendon injury to her right index finger.
  5. Ms Brackenreg has been entitled to (and has been paid) compensation under a number of different heads available under relevant legislation. It seems that compensation continued to be paid to her until a determination was made on 8 June 1990[4] that the medical evidence did not support a finding that she remained incapacitated for work. However, a later determination reinstated her entitlements[5] until a reviewable decision dated 17 February 1993, which again decided that she was not incapacitated for work as a result of the compensable injury. The matter went to the Tribunal and on to the Federal Court; ultimately, on remittal to the Tribunal, the parties settled on the basis of partial incapacity.
  6. Incapacity payments came to an end in 1995 when Ms Brackenreg elected to redeem future (partial) incapacity payments as a lump sum, an option available under s 137 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”).[6] As a result of this redemption, Ms Brackenreg can make no further claim for incapacity payments with respect to the compensable injury, as presently described. I would also note that she is not seeking incapacity payments as she is now working full-time as a solicitor, having completed her Law degree and been admitted as a solicitor in 2007.
  7. Comcare also paid Ms Brackenreg, on an ad hoc basis, for outlays with respect to medical conditions that one would not expect to fit within the limited compass of the identified compensable injury to her neck. We know, for instance, that Comcare paid outlays for dental treatments and for treatment by psychiatrists[7] without any formal acceptance of liability for either dental or psychiatric conditions. Two previous decisions of the Tribunal, differently constituted on each occasion, concluded that those payments were made in error: see Re Brackenreg and Comcare [2002] AATA 1325 and Re Brackenreg and Comcare [2005] AATA 1121.

THE ISSUES

  1. What brings this matter to the Tribunal now is that, in 2006, the parties settled the second of Ms Brackenreg’s appeals to the Federal Court (from the decision in Re Brackenreg [2005] AATA 1121) on the following basis:[8]
  2. I have reservations about whether the parties, by agreement, could make reviewable a matter that the Tribunal has heard and determined. In Re Brackenreg [2005] AATA 1121, Senior Member McCabe finally determined as an issue that Ms Brackenreg no longer suffered ongoing effects of the compensable injury. The Heads of Agreement purports to allow the same question to be re-litigated.[9] I doubt the efficacy of the parties’ election—I doubt they can circumvent the finality of the Tribunal decision in that way.
  3. In ordinary circumstances, I would invite further submissions on what amounts to a jurisdictional problem. However, to do so now would lead to further costs and delay in a dispute that already has engaged the parties in litigation for over six years. There is no utility in this. I have decided, therefore, that I ought simply treat the matter before me (as it relates to whether the applicant continues to suffer the effects of the compensable injury) as a reviewable decision now made under s 64 of the 1988 Act, which the Tribunal can review despite it probably being beyond the powers of the delegate.[10]
  4. As now identified and agreed in Statements of Issues,[11] what is in dispute before me is:

Issue 1: Has Ms Brackenreg recovered from the compensable injury?

Issue 2: Is Comcare liable for Ms Brackenreg’s “degeneration of the cervical spine” (including at C3/4, C5/6 and C6/7)?

Issue 3: Is Comcare liable for a “syrinx condition”?

Issue 4: Is Comcare liable for “headaches”?

Issue 5: Is Comcare liable for Ms Brackenreg’s gastritis condition?

Issue 6: Is Comcare liable for Ms Brackenreg’s psychiatric condition?

Issue 7: Is Comcare is liable for “temporo-mandibular joint dysfunction”?

Issue 8: Is Comcare liable to pay medical expenses for an occlusal mouth splint?

  1. It should be noted that some of the above issues fall to be determined under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), as this was the legislation in force when the 1984 accident occurred. The remaining issues fall to be determined under the current legislation (the 1988 Act).
  2. Before considering the issues, I will discuss certain background matters and say something of the approach I have adopted in this case.

PRELIMINARY MATTERS

  1. At the hearing, Ms Brackenreg was represented by Mr Ian Morris of counsel; the respondent by Mr Ben Dubé. I note with regret the death of Mr Morris since the hearing, and place on record the Tribunal’s appreciation for his contribution in this case and in other appearances before the Tribunal.
  2. Given the time that has passed since the 1984 accident, it is difficult to determine certain contested factual matters. I shall mention some of these briefly. It was part of Comcare’s current case to suggest that the 1984 accident was “minor”, presumably to raise an inference that the accident was not capable of leading to the multifarious health consequences now claimed.
  3. Whether or not the accident can be described as “minor” cannot now be resolved with certainty. I emphasise that Ms Brackenreg has not overstated what happened in the 1984 accident (apart, perhaps, from one instance). It was a classic rear-end pile up, during which her stationary vehicle was forced into the car ahead of her. Ms Brackenreg gave a description of that accident to Dr A Bromwich, a Commonwealth medical officer,[12] soon after it occurred and continued to give much the same history when called upon to describe it later. Even the briefest perusal of the medical reports shows a degree of consistency and an absence of overstatement that confirms to me that she was not attempting to mislead doctors into believing the accident was more substantial than it was in fact.
  4. The 1984 accident can not be discounted as “minor”. Repair costs to Ms Brackenreg’s utility amounted to some $5,500, not a small amount in 1984, which suggests the vehicle sustained more than trivial damage. Of course, there is no measure that equates the extent of vehicle damage with the extent of injury that a person might concurrently sustain.
  5. Mr Dubé also urged me to make findings against Ms Brackenreg on matters of credit. He tendered considerable material that put Ms Brackenreg in a bad light. However, I regard that material as peripheral to the applications before me. It included records of her litigation with Charles Darwin University when she was completing her degrees, and information proving her then current employment with the Department of Defence, which she had failed to reveal to a previous Tribunal hearing when it would have been relevant to do so. In my view, the applications before me are to be resolved by considering the medical evidence without taking a “blanket view” of Ms Brackenreg’s credit. Issues going to her credit may, however, prove to be relevant in the context of past medical assessments—especially where doctors have questioned the veracity of her presentation, or where she evidently has given a selective account that might influence their conclusions.
  6. There is no doubt from Ms Brackenreg’s extensive medical history that a number of doctors have questioned the honesty of her clinical presentation and the extent of her symptoms. Those assessments speak for themselves. I note that the Tribunal in Re Brackenreg [1993] AATA 718 was “unimpressed” with Ms Brackenreg and considered her not to have been candid with her doctors. I would only observe that one cannot ignore that a large number of medical professionals over the years have raised concerns about the genuineness of her symptoms. In my experience, doctors do not do that lightly, and in making that kind of judgment they are exercising their clinical expertise. Repeated adverse conclusions of that kind should not be ignored.
  7. However, questions of “credit” did not loom as large as Ms Brackenreg’s limited ability to recall details and the sequences of events. She acknowledged that she has memory problems and referred in particular to a fall from her horse in 1991, when she fractured her skull and sustained a subdural haematoma. She lost her sense of smell and taste and had to re-learn certain language skills. From then on, I note, doctors began to comment on Ms Brackenreg’s delayed responses and other more unusual presentations in interviews. Mr Morris acknowledged that Ms Brackenreg’s memory is not reliable; she acknowledged this herself in her evidence. I note that she told Dr M Leong that she was unable to remember much of the 1984 accident, and had to rely on what she had been told and read.[13]
  8. In the end, I gained little assistance from Ms Brackenreg’s oral evidence because I am not confident of her ability to recall relevant events or symptoms. The ample medical evidence provides a sound basis for conclusions to be drawn.

APPLICATION 2007/5101

  1. In a number of ways, this application for review is the pivotal one. It contains four issues.

Issue 1: Does Ms Brackenreg continue to suffer the compensable injury?

  1. First, some of the medical history. The hospital records from the day of the 1984 accident indicate that Ms Brackenreg had a full range of movement of her neck and right and left shoulders. No abnormality showed on X-rays taken of her cervical and lumbosacral spine, and right shoulder. She was discharged, having been given aspirin and did not mention any particular problems to her general practitioner, whom she

saw on three occasions in the following month but then not for another three months (when she visited on an unrelated condition).

  1. As early as July 1984, within months of the accident, Dr Bromwich made the observation that “substantial functional overlay” had occurred and that he thought Ms Brackenreg (whom he described as having a vulnerable personality) might use her whiplash injury to avoid going back to her stressful job.[14] In December 1984, Dr F H Stewart, another Commonwealth medical officer, observed that Ms Brackenreg’s main problem was her mental outlook and that she might need sympathetic counselling if she was to return to work.[15] Clear medical opinion twenty-five years ago was that, although the compensable injury was a soft tissue injury and likely to resolve, there were other background issues. Ample contemporaneous reports suggest that the doctors were sceptical of Ms Brackenreg’s continued complaints of symptoms, especially in the context of her stated reluctance to return to work in the Treasury that she clearly was not enjoying.
  2. Dr Ohlrich, neurologist, examined Ms Brackenreg in August 1984 and said she did not appear to be in any distress. He observed that she seemed quite able to undertake a range of neck movements if her attention was sufficiently distracted, as compared to the more limited range she demonstrated when she was formally tested.
  3. At the end of 1984, Dr Stewart thought Ms Brackenreg was considerably improved and would soon be fit to resume sedentary work. He stated there was “certainly no question of invalidity”.[16] He doubted, however, that she was mentally ready to accept this. Later that month, he found her physical condition to be much improved and that she had only mild discomfort in the cervical region and an almost full range of movement. However, he again observed that her mental outlook was not such as to accept a return to work
  4. Dr Stewart again saw Ms Brackenreg, in May 1985, and she told him that she had “no particular problems.”[17] She agreed with Dr Stewart that she tended to lack motivation at work. Dr Stewart (who was reporting to her then employer) noted that Ms Brackenreg’s general practitioner had suggested that she see a psychologist. Dr Stewart agreed as there seemed to be other background (but unidentified) issues, unrelated to the 1984 accident.
  5. Ms Brackenreg was sent to Dr P L Reilly, neurosurgeon, in September 1985. He observed that she had only worked for about three of 18 months after the 1984 accident. By that time she had commenced studying part-time for her Bachelor of Arts. He observed that her symptoms seemed to have persisted beyond a reasonable time and that there was no evidence of abnormality of function. Early the following year, Dr D Millions, surgeon, agreed with those views, noting that the objective signs suggested there was nothing wrong. He acknowledged that symptoms of her type of flexion/extension injury can persist, but that her symptoms were lasting rather too long given the length of treatment and the rest she had enjoyed since the accident. He noted:
At this stage her problems are really quite subjective and there is no convincing objective evidence to substantiate her complaints of continuing disability.[18]

  1. Dr A Schmidt, orthopaedic surgeon, reported on 22 May 1986 that Ms Brackenreg should have recovered completely from her soft tissue injury but that there was a large psychological component overriding the physical component.[19]
  2. Dr F Wilson, orthopaedic surgeon, saw Ms Brackenreg a number of times. On the first occasion, in June 1986, he said Ms Brackenreg’s problem was likely due to a “ligamentous and discogenic strain” involving nerve root irritation. I note that in the same report, Dr Wilson mentions Ms Brackenreg having had another motor vehicle accident, in 1986.[20]
  3. Dr Schaeffer, neurosurgeon, reported on 12 March 1988 that he believed Ms Brackenreg’s disability had been temporary and that she had long since recovered. He described her then complaints as excessive and unsupported by true objective signs of disability. Dr Schaeffer commented that she was able to lead a normal lifestyle and had in fact been over-treated, since she appeared to be quite healthy:[21]
  4. Dr Schaeffer was critical of Dr Wilson diagnosing “discogenic” problems. He observed that it would be highly unusual for disc herniation to follow a soft tissue strain.
  5. Dr P Reilly, neurosurgeon, reported on 18 September 1992 that clinical examination showed “rather paradoxical findings which do not in my view point strongly to an organic basis.” Dr Reilly also noted that in June 1991 Ms Brackenreg had taken a fall from her horse and was found unconscious beside the highway. A CT scan revealed that she had fractured her skull. He also noted a later car accident in March 1992. Dr Reilly observed, as had Dr Ohlrich in 1984, that Ms Brackenreg turned her head easily in conversation, but during examination demonstrated a reduction by half in normal extension and flexion. He described her affect as “strange”.
  6. Dr Stevenson, consultant physician, reported on 29 December 1997 that he had “considerable difficulty in diagnosing any current medical condition ... attributable to her motor vehicle accident on 7 March 1984.”
  7. Associate Professor Burns, neurologist, reported on 5 March 2003 that he could find no neurological abnormality. The doctor said that he did not consider Ms Brackenreg to have any employment related condition and that the effects of any compensable condition had “long since ceased.” Associate Professor Burns reported that disc bulges were “incidental findings.”
  8. Dr T Blue, orthopaedic surgeon, examined and prepared two reports—in 2002 and 2004.[22] He also gave oral evidence at the hearing. In his first report, Dr Blue stated that his clinical examination revealed Ms Brackenreg had an almost full range of neck and shoulder movement and mobility, apart from a minor restriction of extension. He concluded, from an orthopaedic perspective, that Ms Brackenreg had made a full recovery from the initial whiplash injury. Dr Blue noted the evidence of C6/7 disc degeneration but concluded that it was not related to the 1984 accident.
  9. Dr Blue focussed upon various imaging in his second report, including
    X-rays, CAT scans, an MRI of Ms Brackenreg’s lumbar spine and seven MRIs of her cervical spine (the first MRI was taken on 12 September 1990). Dr Blue agreed that over a number of years there had been no significant changes to the syrinx that showed in her spine at C6/7. He said the MRIs revealed a gradual onset of age- related, naturally occurring cervical disc disease, with no connection to the 1984 accident.
  10. The question of whether Ms Brackenreg has recovered from the compensable injury (which, it will be recalled, is “musculo-ligamentous neck injury”) is to be decided on the balance of probabilities, taking into account the principles set out in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. It is a question to which the 1988 Act applies, but one that must be decided on the medical evidence.
  11. The evidence most supportive of the proposition that Ms Brackenreg continues to suffer from the compensable injury comes from her general practitioner, Dr G Chong Wah, who has treated Ms Brackenreg since about 1987. Dr Chong Wah has written extensively in support of her case, attributing all her conditions (in some way or other) to the 1984 accident, without, it seems to me, making mention of other events which ought to suggest themselves as having had a role to play. These events include her being involved in several other motor vehicle accidents and multiple falls from horses. The fall in 1991, when she fractured her skull, seems to me a significant omission from his evidence.
  12. The specialist medical evidence overwhelmingly leads to the conclusion that Ms Brackenreg recovered from the 1984 accident some time ago. In that regard I accept the evidence of Dr Blue, which is in accord with the prevailing opinions from the time of the accident—namely, that Ms Brackenreg sustained a soft tissue injury of a type from which people recover quite quickly (that is, in a matter of months rather than years except in the most unusual cases). In Dr Blue’s extensive clinical experience, he has only had one patient whose recovery took as long as five years. That, he explained, was truly the exception.
  13. Dr Blue’s evidence, given from an orthopaedic perspective, was confirmed by the neurologist Associate Professor Burns. He agreed that the effects of the compensable injury had ceased long ago.
  14. So, in this case, the preponderance of medical evidence (based on clinical examinations) was that there was little wrong with Ms Brackenreg. Numerous reports make the observation that she was freer in her movements when not under direct observation. Observations such as those are particularly within the expertise of clinical assessors.
  15. I have stressed already the importance of the medical evidence close to the time of the 1984 accident. The reason for this is that a number of other accidents occurred after the 1984 accident; other accidents about which Ms Brackenreg tells very little (if anything at all) when she attends at medical examinations. Those other accidents are such as to raise questions in reasonable minds concerning what part they might play in Ms Brackenreg’s symptoms. Of the later accidents, the 1991 fall from the horse suggests itself as of particular significance.
  16. I note that both Drs Reilly and Blue commented on the difficulties they experienced in taking a history from Ms Brackenreg. Dr Reilly observed in his report of September 1992[23] that Ms Brackenreg had a “rather strange” affect, with delayed responses to questions; Dr Blue, ten years later, confirmed this impression, noting additionally that Ms Brackenreg would break into giggling for no obvious reason during the interview.[24]
  17. Taking into account the medical evidence, the conclusion is inescapable that Ms Brackenreg did in fact recover from the compensable injury. The picture is blurred to some extent by Comcare’s vacillation about whether Ms Brackenreg was entitled to incapacity payments long after the 1984 accident, indeed, throughout the 1990s.
  18. The evidence shows that it is more likely than not that Ms Brackenreg recovered from the compensable injury within a couple of years of the 1984 accident. It would be most unsafe to conclude otherwise, when account is taken of the numerous other accidents that happened to Ms Brackenreg after the 1984 accident: Dr Fergus Wilson[25] mentions another motor vehicle accident in 1986; Dr Blue mentions at least two motor vehicle accidents in addition to the 1984 accident; and Ms Brackenreg acknowledged she had been involved in motor vehicle accidents in 1986, 1992, 1994 and 1998. She was also involved in more than one horse riding accident.
  19. I note that the Tribunal in Re Brackenreg [1993] AATA 718 observed there were also a number of serious incidents that took place before the 1984 accident.
  20. I therefore reach the same conclusion as did Senior Member McCabe in Re Brackenreg [2005] AATA 1121: the medical evidence does not support a conclusion that Ms Brackenreg continues to suffer from the effects of the compensable injury. I affirm the reviewable decision in that respect.

Issue 2: Is Comcare liable for Ms Brackenreg’s cervical spondylosis?

  1. Dr Dubois, diagnostic radiologist, reported on 7 March 2008 that the best evidence suggests October 1991 as the earliest date at which this degenerative disc disease became apparent.[26] Dr Dubois’ opinion was that the multilevel involvement at several points in the cervical spine suggested age-related degeneration rather than trauma. However, he said that in a case such as Ms Brackenreg’s (where several whiplash injuries were suffered in multiple motor vehicle accidents), it was likely that trauma had caused cervical spondylosis.
  2. The medical evidence presented in relation to Issue 1 (above) is relevant here also. In that material, the predominant opinion with respect to Ms Brackenreg’s neck was that it was better (at least functionally) within a couple of years of the 1984 accident. That was the conclusion reached in the reports of Dr Reilly in 1985 and Dr Millions in 1986. By 1986, Dr Schmidt also thought Ms Brackenreg was better, while noting psychological overlay.
  3. Dr Wilson, however, had identified what he described as discogenic pain. At the time Dr Schaeffer was dismissive of such a description, but some slight support was given to that description in the oral evidence of Associate Professor Burns. In assessing the matter at some distance of time after the 1984 accident, it is important to take into account other incidents, although Ms Brackenreg has always said far less about them than she does about the 1984 accident.
  4. Dr Wilson’s reports, it should be noted, do not offer an unwavering line of support for a link between Ms Brackenreg’s developing cervical spondylosis and the 1984 accident. In a 1987 report, he stated that her disc degeneration was “naturally occurring.”[27] He observed that her whiplash injury, which he described as minor, was only temporary but that Ms Brackenreg had a constitutional weakness in her neck to which the motor vehicle accidents were but incidents in a natural progression. Nevertheless, he concluded in a report in October 1990 that Ms Brackenreg was suffering from cervical spondylosis and “a degree of cervical syringomyelia ... the result of spinal cord damage from a whiplash injury to her cervical spine.”[28] He does not give any detailed reasoning in support of this conclusion.
  5. Dr Boyce was always supportive of a connection between the 1984 accident and the development of a cervical disc lesion, and confirmed this in his report of 1997.[29] However, he was of the opinion that the 1990 MRI scan of Ms Brackenreg’s cervical spine was completely normal apart from the presence of a syrinx. He stated that the first sign of an annular bulge was at C6/7 in 1991, and then at C5/6 in 1998. Dr Blue still maintains the opinion that these were the signs of slowly progressing, age-related, natural deterioration.
  6. There is no question that Ms Brackenreg suffers from the identified degenerative changes in her spine. Opinion is divided on whether the 1984 accident is causally implicated. Dr Blue thought not, based on the fact that if it was, the degenerative changes would have shown in three to four years, but there was no evidence of dehydration or annular bulging in the first MRI some six years after the accident, in 1990. I accept his evidence that, for the accident to be implicated on the balance of probabilities, the degenerative changes would have shown in the earliest MRI, in 1990. On the facts before me, it is more likely than not that the changes appearing from 1991 are simply age-related.
  7. In reaching that conclusion, I took into account that Dr Halcrow considered that it was “entirely conceivable” that the nature of Ms Brackenreg’s whiplash injury caused an acute disc injury, and his observation that whiplash injuries put particular pressure on C5/6 and C6/7, where Ms Brackenreg has developed degenerative changes. However in a case such as this, where several motor vehicle and horse riding accidents have occurred, it is unsafe to attribute this injury to the 1984 accident. Dr Halcrow’s evidence puts this as a conceivable possibility, but no higher than that.
  8. As Glass JA held in Fernandez v Tubemakers of Australia Pty Ltd [1975] 2 NSWLR 190, the evidence of a possibility can be sufficient but only if the materials justify an inference of probable connection. The evidence here, complicated by numerous accidents, does not do so. I find that the connection is not probable.
  9. Accordingly, I affirm that part of the reviewable decision rejecting the claim for cervical spondylosis.

Issue 3: Is Comcare liable for Ms Brackenreg’s syrinx condition?

  1. Sheppard J, in Brackenreg v Comcare [1995] FCA 1129 at [5], neatly summed up both the nature of this medical condition and the challenge posed by causation in the following words:
A syrinx may be described as a fistula which is an abnormal congenital or acquired communication between two surfaces or between a viscus or other hollow structure and the exterior. In some of the material before the Tribunal, the syrinx is described as a fissure in the applicant's cervical spine ... medical evidence was to the effect that the syrinx could be a naturally occurring phenomenon or it could be caused by trauma.

  1. The medical opinions in this matter have indeed focussed upon whether evidence exists of the 1984 accident causing trauma of a degree sufficient to implicate it in the development of Ms Brackenreg’s syrinx. This condition was first discovered in her spinal cord after Dr Boyce had commissioned a cervical MRI scan.
  2. Mr Morris acknowledged that the preponderance of medical evidence indicated the syrinx was not causing Ms Brackenreg any symptoms. So, in that respect, the condition would not sound in any present entitlement to compensation. Nevertheless, he submitted that the Tribunal ought to make a clear finding of liability to protect Ms Brackenreg for the future. So the question was whether, under the 1971 Act or the 1988 Act, there was an “injury”.
  3. It was tolerably clear from the medical evidence that the syrinx had changed little, if at all, since it was discovered by Dr Boyce, according to the results revealed in six subsequent MRIs.[30]
  4. Most doctors considered that the 1984 accident was not sufficiently traumatic to cause a syrinx. Dr Stephenson came to that conclusion as did other doctors:
  5. At its highest, the evidence is that a syrinx may be congenital or traumatic in origin, but we do not know what caused Ms Brackenreg’s syrinx and we can only guess when it developed. No MRI was performed before 1990. On the other hand, we do know Ms Brackenreg was injured in a number of incidents before 1990 that could be causally implicated: she was involved in another motor vehicle accident in 1986; fell from a horse as a child; and was thrown by a post-hole digger with sufficient force to require hospitalisation. There is any number of incidents that could be implicated if one accepted this was a traumatically caused syrinx.
  6. Is the state of the evidence sufficient for a decision-maker to be satisfied on the balance of probabilities, under either the 1971 or the 1988 Act, that the 1984 accident was responsible for this “injury”? I am quite satisfied that it is not. Even in Dr Halcrow’s evidence, which is the most favourable to Ms Brackenreg, he stated that we simply cannot know and that in his opinion any connection with the 1984 accident is only a possibility. Given that evidence, the respondent was correct to reject the claim for the syrinx. I affirm that decision.

Issue 4: Is Comcare liable for Ms Brackenreg’s headaches?

  1. A dispute arose between the parties because the respondent had not made a decision on headaches, but the parties then agreed there was no consequential jurisdictional problem standing in the way of this Tribunal reviewing the issue of headaches. That is clearly correct, taking into account the extended definition of “decision” in s 3 of the Administrative Appeals Tribunal Act 1975.
  2. In a report dated 28 December 1984, Dr Stewart, observed that Ms Brackenreg’s neck was much better and that she had a nearly full range of movement. He noted, however, that she told him she was still having recurrent occipito-temporal headaches.[32]
  3. Ms Brackenreg told Dr Ohlrich in August 1984 that her headaches had started some two months after the 1984 accident.[33] He described her as stating that her headaches started in her neck and radiated to the top of her head. She said that she experienced severe headaches about every three weeks but occipital headaches most afternoons. She acknowledged her previous history of migraines but said that these had been brought under control with migraine medication. I note she told Dr Reilly in 1985 that she had not had migraines for some two years. She appeared to be quite careful to present these headaches as identifiably different from her previously experienced migraines. However, Ms Brackenreg’s general practitioner, Dr Brownjohn, pointed out that Ms Brackenreg had a long history of headaches prior to the motor vehicle accident and that he did not think her more recent headaches could be attributed to the accident.
  4. Ms Brackenreg’s evidence in her Statement of Claim was that her headaches started on the day of the accident.[34] In her oral evidence, she said that before the 1984 accident she had suffered from migraine headaches but had been cured of them by a 9 month treatment programme using the drug Inderal. I have discounted much of what she said in her evidence about headaches as I do not accept she has any genuine recollection of when they started, or how she experienced them at, or soon after, the 1984 accident.
  5. Dr H R Schaeffer in 1988 appears to have been sceptical about Ms Brackenreg’s headaches. Ms Brackenreg described a pattern of headaches associated with vomiting, but Dr Schaeffer noted that she was very vague about how frequently they occurred. Dr Schaeffer made the general observation that his clinical findings were at odds with her extensive complaints. Dr Schaffer said he thought that she had got better long ago, being a young person with no more than soft tissue injury. It will be recalled that he described her current complaints as “unrealistic”;[35] he said he did not believe there was anything wrong with her.
  6. There is little in the medical records after the 1984 accident that sheds light on the complaints of headaches that Ms Brackenreg makes. To succeed in this claim, Ms Brackenreg needs to satisfy the provisions of the 1971 Act, as set out in s 29. This requires the evidence to support a conclusion that the 1984 accident, being an element of her employment, was a contributing factor to the contraction, aggravation or acceleration of disease (being a physical or mental ailment, disorder, defect, or morbid condition: s 4 of the 1971 Act).
  7. Diagnosing the presence of headaches, essentially a subjective symptom, relies upon the sufferer of the claimed symptoms giving an accurate account of both the symptoms and their onset. Ms Brackenreg was struggling to give an accurate account, due, no doubt, from her evident memory loss resulting from the fractured skull she sustained in the fall from a horse in 1991. But she nevertheless claimed to be able to recall, some 25 years after the accident, a certain definable, subtle difference between headaches that she had before and after the accident. I do not accept her evidence in that regard. Frankly, I found that part of her evidence unbelievable.
  8. I simply do not think that Ms Brackenreg can now be relied upon to give accurate evidence about when her headaches commenced. It is important to appreciate that she was regularly attending at Darwin Hospital for headaches in the years before the accident. This point was appreciated by Dr Goodman,[36] who observed in 1990 that there were episodes of migraine headaches well before the 1984 accident. He said that Ms Brackenreg may be psychologically or constitutionally predisposed to them and so they ought not be attributed to the accident. That clearly was the view taken by Dr Brownjohn.
  9. I would accord some weight to the opinions expressed by Dr Brownjohn. As her general practitioner at the time, he was in the best position to know her symptoms before and after the accident.
  10. There is, on the other hand, no persuasive medical evidence to suggest a link between the headaches and the 1984 accident. Again, such a link would be difficult to draw in a case such as this where there have been several intervening accidents. Furthermore, accepting the conclusion that Ms Brackenreg recovered from the compensable injury within a short time (a matter of years only), the case for any association between ongoing headaches and the compensable injury is weakened.
  11. Accordingly, I affirm that part of the decision under review as it relates to headaches.

APPLICATION 2007/5276

Issue 5: Is Comcare liable for Ms Brackenreg’s gastritis?

  1. Ms Brackenreg stated in her claim that she was first diagnosed with stomach ulcers in 1997-1999, as was revealed by endoscopy. Her claim was that she suffered with gastritis as a result of medications prescribed for her compensable injury.
  2. The medical evidence reveals that Ms Brackenreg’s gastritis was related to her use of naprosyn and other non-steroidal anti-inflammatory drugs (NSAIDs), which commonly induce symptoms of gastrointestinal upset.
  3. Dr Chong Wah advised Comcare on a number of occasions that Ms Brackenreg was suffering from dyspepsia as a reaction to NSAIDs used in treatment of her “neck condition”.[37] She told Dr P Stevenson[38] that she was treated with anti-inflammatory medication soon after the 1984 accident but I doubt this was true. These medications appear much later in her treatment. Dr Stevenson stated he would be very surprised if the substantial analgesia that Ms Brackenreg was taking when he saw her would be required either for a whiplash injury or syringomyelia.
  4. In 1997, Dr P Bade conducted a gastropscopy that revealed a normal oesophagus. However, there were signs of antral gastritis and gastric erosions, which were attributed to Ms Brackenreg’s use of NSAIDs. It is significant that by 2004, with treatment, Ms Brackenreg showed no current evidence of gastritis or upper intestinal abnormality. She was then using a proton pump inhibitor, which reduced the effects of the medication.[39]
  5. In an October 2004 report,[40] Dr Halcrow referred to Ms Brackenreg as having chronic pain syndrome since the 1984 accident. (I would note here in passing that Ms Brackenreg told him that she had been knocked out in the 1984 accident, which is not a claim that she had made to any other doctor in the previous 20 years.) Dr Halcrow noted that Ms Brackenreg had responded well to naprosyn and that the drug had permitted her to stop taking narcotic analgesics—although it had induced symptoms of peptic ulcer disease, or at least exacerbated the condition.
  6. Dr T Holt examined Ms Brackenreg in 2008 and requested a further gastroscopy, which showed no evidence of gastritis or reflux. Dr Holt observed that Ms Brackenreg had taken other pain killers after the 1984 accident and was commenced on naprosyn in the 1990s. Dr Holt refined to Ms Brackenreg having later suffered “a number of minor accidents” including suffering a fractured skull in a horse riding accident (which he incorrectly identified as occurring in 1992 not 1991).
  7. Dr Holt accepted that Ms Brackenreg had suffered with dyspepsia in the past, and held no doubts that this was induced by medication. He observed that anti-inflammatory tablets were a well recognised cause of gastric problems.
  8. Ms Brackenreg told Dr Holt that she experienced epigastric pain and nausea once or twice a month, but he could not identify a cause for such symptoms. Dr Holt thought unlikely any link with the 1984 accident. He did confirm that if the drugs had been prescribed for pain connected with the 1984 accident then it would follow that the gastritis was connected too. He noted that Ms Brackenreg was still taking proton pump inhibitors, and that taking this medication reduced adverse effects on her.
  9. For the respondent to be liable for Ms Brackenreg’s stomach problems there must be a link between her gastritis and the treatment she received in relation to the 1984 accident. Given the date of onset of Ms Brackenreg’s gastritis (the mid-1990s), this claim must be determined under the 1988 Act.
  10. I would also note that the claim is not defeated by evidence that Ms Brackenreg does not currently have gastritis. Properly understood, the medical evidence by way of recent gastroscopy is that the condition is in check. We are left in no doubt that the medication that Ms Brackenreg takes keeps any gastric upset in check.
  11. In determining this claim, account needs to be taken of the fact that Ms Brackenreg started to take naprosyn under Dr Boyce in the 1990s. She has said in the past that naprosyn was given to treat her condition of syringomyelia. That condition, however, has been shown to be symptom-free (in her case) and, in any event, one that is not compensable. The connection of gastric disturbance to the 1984 accident cannot be sustained through Ms Brackenreg’s syringomyelia. Nor can such a connection be sustained through her treatment for cervical spondylosis, as that too is not accepted as a condition related to the 1984 motor vehicle accident.
  12. The evidence I have accepted supports the conclusion that Ms Brackenreg recovered within a reasonable time from the compensable injury (soft tissue injury). Accepting that evidence, it follows she had recovered from the compensable injury before the long term use of NSAIDs became part of her regular treatment regime in the 1990s. I can only conclude, accepting the evidence of Dr Stevenson, that it was unlikely the compensable injury would have required substantial analgesia. I am not satisfied that the treatment (use of NSAIDs) that caused the gastritis problem was treatment provided in relation to any compensable condition. For that reason, I refuse the claim for gastritis.

APPLICATION 2008/0575

Issue 6: Is Comcare liable for Ms Brackenreg’s psychiatric condition?

  1. This issue related to a decision that Comcare was not liable for the applicant’s psychiatric condition. Ms Brackenreg maintains that she developed psychiatric problems shortly after the 1984 accident.[41] She said that she at first felt angry but the anger changed to depression when the treatments did not appear to work; when doctors did not believe her; and when her physical problems did not improve.
  2. Ms Brackenreg said that her condition was first diagnosed by Dr Markou, who prescribed medication some six years after the 1984 accident.[42] However, she had been seen earlier by Dr J Ridley, psychiatrist, who prepared a report in 1988 but had earlier assessed her in terms of her suitability for retention in the public service. It will be recalled that Ms Brackenreg was ultimately discharged from the public service on grounds that included depression and an hysterical conversion state. Dr Ridley’s overall conclusion in 1988 was that Ms Brackenreg suffered no psychiatric disorder, but had a histrionic personality, which would lead her to be quickly bored with routine and likely to overreact to stimuli.
  3. Dr Goodman, psychologist, saw Ms Brackenreg at the behest of Ms Brackenreg’s general practitioner, Dr Chong Wah, and identified Ms Brackenreg as having a narcissistic personality disorder with features including a grandiose sense of self-importance; a sense of entitlement; and an exploitative inter-personal approach. In addition, he thought she might have a somatoform pain disorder.
  4. Dr G Rice, psychiatrist and consultant in pain management, provided a rather damning assessment of Ms Brackenreg[43] and discharged her from the Wesley Pain Management Programme in 1991. Ms Brackenreg has explained this as a personality conflict. Dr Rice was adamant that that Ms Brackenreg was voluntarily restricting her movements. He did not consider that her claimed levels of pain were consistent with her ability to undertake activities such as horse-riding and scuba diving.
  5. Dr Rice concluded that Ms Brackenreg’s pain behaviour was being reinforced by her personality structure; by a conversion disorder; and, ultimately, by being paid compensation. Dr Rice recommended that she return to normal activity. It should be noted that her long-term psychologist in Darwin (Mr Milliken)[44] did not agree with Dr Rice’s unfavourable conclusions concerning Ms Brackenreg. Mr Milliken regarded Ms Brackenreg as essentially stable but assertive and overactive.
  6. However, Dr G Goodman, who treated Ms Brackenreg at the request of her general practitioner, also considered that Ms Brackenreg was exaggerating.[45] He queried malingering, and also considered that Ms Brackenreg’s narcissistic personality disorder was playing a role in her presentation. Dr Goodman finally settled his opinion on her as follows:
  7. Dr Goodman concluded that Ms Brackenreg’s successful achievement in her university studies suggested that she was capable of working and that she had used her “aggressive demanding and threatening” personal style to ensure her compensation payments continued.[46]
  8. Dr B Kenny, consultant psychiatrist, saw Ms Brackenreg in 1995. Dr Kenny noted no suggestion on the evidence before him that Ms Brackenreg had any significant problems until the 1984 accident. He thought in that regard that it was “most likely that Ms Brackenreg did/does experience the symptoms complained of and that they cause her considerable distress.”[47] He said hers was a common experience, where non-acceptance of the truth of symptoms leads to an aggravation of depressive symptoms.[48]
  9. However, Dr Kenny said Ms Brackenreg’s was a complicated case overlaid by other events, including: sustaining a significant injury to her hand in a dog fight; sustaining further injury in a 1991 fall; her marriage breakdown; and having been diagnosed with cancer.
  10. Dr L Marinovich wrote a psychiatric report in May 1999, when he was treating Ms Brackenreg. Dr Marinovich diagnosed Ms Brackenreg with a post-traumatic depressive illness dating from “the original head injury and concussion” in the 1984 accident. He observed that “all her physical injuries are a consequence of this accident had masked her psychiatric disturbance, which had grumbled along without being brought to Comcare’s attention.”[49]
  11. Dr B Timney examined Ms Brackenreg in February 2003. Ms Brackenreg told Dr Timney that her memory of the motor vehicle accident was affected by her head injury sustained in a fall from a horse. She could tell him little of that accident, stating that “it’s so long ago and so much has happened it’s not in my head anymore”, but she did recall that no-one seemed to take her complaints seriously and that people were suggested that it was “all in her head”, which at the time left her feeling irritable and depressed, in addition to her chronic pain. In Dr Timney’s assessment, she was not complaining of current depression or anxiety symptoms. Dr Timney said of her that, “the most striking aspect of her mental state was its apparent normality”.[50] She was, however, taking prothiaden and had been doing so since 1992. Dr Timney concluded that there was no evidence of any current psychiatric illness or diagnosis attributable to the 1984 accident.
  12. On 21 May 2007, Ms Brackenreg was interviewed by Dr M Leong. He found Ms Brackenreg to be extremely vague and uncooperative and demonstrably angry about the compensation process. He said he was unable to form a diagnosis but thought it possible that Ms Brackenreg had a chronic adjustment disorder with anxious or depressed mood after the 1984 accident. However, he said that such a condition would not have lasted long and would have been over by the time Ms Brackenreg saw Dr Ridley in 1986. In his opinion, non work-related factors had taken over, including marriage breakdown and other motor vehicle accidents.[51]
  13. When Dr M Nothling was asked to report on Ms Brackenreg in September 2008, he was sent some 50 medical and psychiatric reports, clinical records and some 11 other reports, mostly from psychologists.
  14. Dr Nothling, having taken an extensive history from Ms Brackenreg (as far as Ms Brackenreg was prepared to give it – she having told him that she was never fully honest when she was seeing a doctor once only) was of the opinion that she had suffered from an “anxiety disorder not otherwise specified”[52] before the 1984 accident and was still suffering from this condition at fluctuating levels, depending on what stressors she experienced. However, he said that she had no signs of either depression or anxiety at the interview.
  15. Dr Nothling could find no aspect of Ms Brackenreg’s psychiatric impairment that could be causally related to the 1984 accident. There may well have been an exacerbation of her underlying anxiety disorder symptoms, but this exacerbation was temporary and not a true aggravation.
  16. Dr Nothling stressed in his oral evidence the significance of Ms Brackenreg’s history of prior episodes when she reported to doctors with symptoms consistent with depression and anxiety and received treatment. That history, Dr Nothling said, showed a pattern for psychiatrists to draw upon to make conclusions about the presence of a disorder. Dr N McLaren has since early 2008 been Ms Brackenreg’s treating psychiatrist. Dr McLaren considered that the prothiaden previously prescribed was not suitable treatment for her condition, which he diagnosed as being an “adjustment disorder with depressed mood”. He said this condition was a normal reaction to continued adverse events[53] and was common in cases of chronic pain.
  17. Dr McLaren’s diagnosis includes the following findings:
  18. Significantly, Dr McLaren nevertheless concluded that Ms Brackenreg was capable of full-time work, taking into account that she had been able to achieve two university degrees and was then working 23 hours per week. She now is in full-time employment.
  19. Dr McLaren acknowledged in cross-examination that the conclusions he reached on causation in Ms Brackenreg’s case were made by relying on the history she had provided. He said that he had accepted that history as being true. Part of that history was that she had continued pain related to the 1984 accident. He explained in his oral evidence that his opinion that she had an adjustment disorder hinged upon her having experienced neck pain as a significant stressor. This underpinned his diagnosis that adjustment disorder dated from the time of the 1984 accident. However, he agreed that if the evidence in fact showed that the causal link was in some way broken, then his opinion would be concomitantly weakened.
  20. For the respondent to be liable for a psychiatric condition related to the 1984 accident, liability must arise under the 1971 Act. The respondent’s position is that Ms Brackenreg suffers from an underlying personality disorder, as evidenced in any number of psychiatrists’ reports since Dr Ridley first reported to that effect in 1984.
  21. The contest at the hearing was between Dr Nothling’s analysis and that of Dr McLaren. The former had the advantage of having access to all relevant medical and psychiatric reports since the 1984 accident, as well as records predating the accident, from hospital and other sources. On the hand, Dr McLaren had the advantage of more frequent exposure to Ms Brackenreg as her treating doctor. But the question before me required the commentating doctor to understand the case from a longitudinal perspective. For that reason I prefer the evidence of Dr Nothling, who had Ms Brackenreg’s entire medical history and who had examined all the medical reports. Dr McLaren was not in such an advantageous position.
  22. Dr Nothling noted Ms Brackenreg’s history of histrionic and narcissistic personality traits. He recorded and commented upon the unusual number of psychosocial factors that could be seen in her history, including: the early emergence of problems in her school years (she had to leave three schools and completed matriculation externally); her reported job dissatisfaction; her ongoing litigation in different arenas; and difficult interactions with medical practitioners. He also noted the unusually long list of her general medical conditions and of other incidents in her life involving trauma (injury to her) of some kind or degree.
  23. The conclusion as I see it is unavoidable: Ms Brackenreg is not suffering, and has not suffered, any psychiatric impairment that can be attributed to the 1984 accident. The circumstances of that accident may well have exacerbated some symptoms in an already vulnerable personality. However, I accept that the temporary exacerbation of those symptoms does not satisfy the definition of “disease” or “injury” in either the 1971 or the 1988 Acts.
  24. For these reasons, I am satisfied that the requisite causal connection between psychiatric injury and employment has not been made out. Therefore, her employment did not contribute to Ms Brackenreg’s psychiatric condition, however described.

APPLICATON 2008/5877

Issues 7 & 8: Is Comcare liable for “temporo-mandibular joint dysfunction” and for medical expenses for an occlusal mouth splint?

  1. The way this issue was presented at the hearing, Ms Brackenreg needed to show (consistently with tests under the 1971 Act to which I have already referred) that the circumstances of her employment were a contributing factor to the contraction of disease, its aggravation, acceleration or recurrence.
  2. We can infer from contemporaneous dental reports that, in the impact of the 1984 accident, Ms Brackenreg’s jaws must have come together with enough force to cause fractures in her teeth. However, she was able to go to work and it was only after that time that it was suggested she should be checked out at hospital. She did not require admission; precautionary x-rays were taken that revealed nothing of consequence. She was discharged to the care of her general practitioner.
  3. When Ms Brackenreg’s claim as it related to temporo-mandibular joint dysfunction was first rejected, on 28 June 2008, Ms Brackenreg wrote to Comcare noting that the condition had been diagnosed first by her general practitioner in the 1980s.[54] She suggested Comcare ought to accept joint dysfunction and the need for a splint upon the same reasoning it had accepted liability for fractured teeth. Ms Brackenreg observed that her dental specialists had identified the connection between her jaw and dental problems and the 1984 accident. So, indeed, had the specialist that Comcare had invited to comment on the claim.
  4. Ms Brackenreg is correct. Taking into account her dental history from the time of the motor vehicle accident, this claim ought to have been accepted. Indeed, the opinions of all relevant specialists lead to no other conclusion.
  5. It is salutary to keep in mind that the injury to her teeth was one of the three conditions referred to in her 1984 claim. We know that she presented promptly for treatment to her teeth because a dental surgeon, Dr K Smith, referred to her presenting at his surgery on 10 March 1984 (three days after the motor vehicle accident) with severe pain in the lower right quadrant. The nature of the first treatment, which was required to “tooth 16”, was a result of the severity of the damage to the lingual surface of the tooth, such that the nerve of the tooth lay exposed. This, said Dr Smith, was consistent with “a severe blow or heavy closure of the patient’s mouth as would be experienced in any forceful movement of the head.”[55]
  6. To my way of thinking, the delegate correctly interpreted the medical reports when she wrote to Ms Brackenreg on 21 July 1997[56] advising that dental work to teeth 16, 46 and 47 and the costs of treating facial and temporo-mandibular joint pain would be met by Comcare. The medical reports, drew a clear connection between Ms Brackenreg’s current dental problems and the 1984 accident. Reports to date show the validity of that ongoing connection.
  7. Various medical reports refer to Ms Brackenreg’s description of the circumstances of the injury to her teeth. When Ms Brackenreg reactivated the claim in relation to dental matters in October 2006, she made the following remarks with reference to the history of her mouth problems:
Jaw pain started within a few days after the accident. It has been exacerbated by dental work when teeth started falling out and I had to get them restored. I also had problems with nerves dying and getting infected and have needed antibiotics for teeth (amoxil). At one stage I had to go to dentist every day for pain relief injections in teeth and to get sedative dressings in teeth changed and antibiotic paste in teeth. I then had root canal work, originally by dentist and then endodontist to prepare teeth for prosthetics. My jaw also locks when a lot of dental work is done and a dentist had to unlock jaw. I need to take valium to help keep jaw relaxed for dental work. I have used antibiotics for mouth ulcers after dental work and also dental products to use after the gums are either lasered (Dr Maiolo) or cut and stitched (Dr Kadaicha – peridontist).

  1. The medical history provides clear support to Ms Brackenreg’s case with respect to this claim. The medical and dental history need only be briefly traversed to demonstrate that the evidence soon after the 1984 accident (and, importantly, before Ms Brackenreg experienced other traumas from vehicle and horse riding accidents) was in the her favour. The evidence showed a connection between the injury (and/or disease) and employment. Dr Smith wrote to the employer on
    5 September 1985,[57] reporting on the completion of root canal therapy and the rebuilding of an amalgam crown as “a direct result from the injury ... on 7 March 1984.”[58] It was likely, he said, that those teeth treated (46, 16 and 47) would become brittle and might require crowns at a later stage.
  2. A later report of Dr Smith indicated that as a result of the 1984 accident, all molar teeth on the right side had undergone trauma and required treatment due to a heavy impact. But, at first, only the three itemised teeth had presented with obvious complications.[59] Dr Smith then told Ms Brackenreg that other teeth may deteriorate as a result of latent nerve damage or fracture. At this stage another tooth (in addition, that is, to the first three identified) was compromised (the upper right second molar—tooth no 27). Dr Smith observed that this was not attributable to natural deterioration under normal function.
  3. Another dentist at the same practice, Dr P Bowden, prepared a report dated
    9 July 1990[60], stating that the history showed Ms Brackenreg was having trouble with tooth 16 in 1988 and again in 1990. Dr Bowden then removed the previous filling and applied a sedative, root filling the tooth once the infection settled. I note here that Ms Brackenreg was again seen to be referring to muscle pain in her jaw and discomfort on the left hand side of her face, which she attributed to the 1984 accident. Dr Bowden described it thus:
..at this appointment Deborah complained of pain in muscles, i.e. those that are classified as mechanical muscles that determine the movement of the lower jaw in relation to the upper jaw.

  1. Dr Bowden subsequently modelled an occlusal splint for Ms Brackenreg to wear at night. He restored tooth 47 at about this time. Dr Bowden then reported to the Territory Insurance Office (the then compensation provider) that the work involving tooth 16 and tooth 47 was in all likelihood related to the 1984 accident.
  2. In 1991, Ms Brackenreg’s dentists referred her to prosthodontist Dr C Maiolo to deal with her continuing facial pain. He diagnosed a synovitis in the left and right temporo-mandibular joints and muscle dysfunction. Dr Maiolo implicated the 1984 accident, amongst other possible causes, in the development of the disorder. Dr Maiolo commenced treatment for “tooth parafunction”, a term used to refer to movements, including grinding and clenching, that are considered outside the normal movements and lead to worn facets.
  3. For Comcare, the question of causation in relation to Ms Brackenreg’s teeth remained contentious, as appears from their follow up with Dr Maiolo in 1997. In answer to questions (with which I was not provided), Dr Maiolo said that:[61]
  4. I note that the delegates in the reviewable decisions before me, when refusing these parts of Ms Brackenreg’s claims, considered Dr Maiolo’s report to be unsupportive of any connection between Mr Brackenreg’s temporo-mandibular joint dysfunction and the 1984 accident. However, that is to misread Dr Maiolo’s report. He says there could be several causes of temporo-mandibular joint dysfunction, but one indeed was facial trauma. Overall, Dr Maiolo’s primary recommendation to Comcare was to review the reports of the examining dentists at the time of the motor vehicle accident.
  5. These reports, taken as a whole, support the conclusion that the 1984 accident was an identifiable mechanism of injury to Ms Brackenreg’s teeth and her later development of jaw problems. This conclusion was also the primary message conveyed in the report completed in 2007 for Comcare by Dr M Mandikos, specialist in prosthodontics and restorative dentistry. Dr Mandikos endorsed Dr Smith’s early prediction that Ms Brackenreg would likely require further treatment for the teeth affected in the 1984 accident. As he observed, no dental treatment lasts forever.
  6. It is evident from Dr Mandikos’ report that he believed that, taking account Ms Brackenreg’s presenting symptoms, the treatment provided to Ms Brackenreg by Drs Maiolo and Smith had been appropriate. Dr Mandikos considered those two dentists to have been in the best position to make such an assessment and he was quite prepared to adopt their findings. What one can take from Dr Mandikos’ report is that:
  7. As I interpret the evidence, rejection of this claim cannot stand. The evidence shows that :
  8. There is no doubt in my mind that Ms Brackenreg’s temporo-mandibular joint dysfunction was compensable under the 1971 Act, and indeed under the 1988 Act. Accordingly, I set aside the decision under review and substitute the decision that Comcare is liable to pay compensation for temporo-mandibular joint dysfunction.
  9. Ms Brackenreg is entitled under s 16 of the 1988 Act to the costs of medical treatment for temporo-mandibular joint dysfunction, including the cost of an occlusal splint. Dr Maiolo considered that the occlusal splint was a necessary part of Ms Brackenreg’s ongoing dental treatment, and would help manage pain.[62] Dr Mandikos made the further observation that the use of the splint at night would help protect the restorative work done on her teeth.

DECISION

  1. In application No 2007/5101, the Tribunal affirms the reviewable decision dated 15 October 2007.
  2. In application No 2007/5276, the Tribunal affirms the reviewable decision dated 16 October 2007.
  3. In application No 2008/0575, the Tribunal affirms the reviewable decision dated 22 January 2008.
  4. In application No 2008/5877, the Tribunal sets aside sets aside the reviewable decision dated 17 November 2008 and substitutes the decision that Comcare is liable to pay compensation for Ms Brackenreg’s temporo-mandibular joint dysfunction, and, under s 16 of the 1988 Act for the cost of an occlusal splint.
  5. Either party may make an application in relation to the costs of the proceedings in application No 2008/5877 within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the applicant’s costs in application No 2008/5877 be paid in accordance with s 67 of the 1988 Act.

I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.


Signed: ...........................[Sgd].........................................

Mátyás Kochárdy, Associate


Date of Hearing 28, 29, 30 April; 1 May 2009

Date of Decision 23 October 2009

Solicitor for the Applicant Hunt & Hunt

Counsel for Applicant Mr I Morris

Solicitor for the Respondent Mr M Hawker, Sparke Helmore

Counsel for the Respondent Mr B Dubé


[1] Exhibit R5, T4.
[2] Exhibit R5, T8 at folio 27.
[3] Exhibit R5, T4 at folio 17.
[4] Exhibit R5, T26.
[5] Exhibit R5, T50.
[6] Re Brackenreg and Commissioner of Taxation (2004) 53 ATR 1116.
[7] Exhibit R5, T106.
[8] See Application 2007/5101, T35: Heads of Agreement filed with the Federal Court on 3 August 2006.
[9] Application 2007/5101, T35 at folio 114.
[10] See Re Brian Lawlor Automotives and Collector of Customs (1979) 2 ALD 157.
[11] Exhibit A2 and Exhibit R6.
[12] Exhibit R5, T9.
[13] Application 2008/0575, T23 at 100.
[14] Exhibit R5, T9.
[15] Exhibit R5, T11.
[16] Exhibit R5, T11.
[17] Exhibit R5, T13.
[18] Application 2007/5101, T10 at 25.
[19] Exhibit R5, T19.
[20] Exhibit R5, T28. See also Exhibit R10 at Tag 5, report dated 29 January, 1987.
[21] Application 2007/5101, T13 at 33.
[22] Application 2007/5101, T22 and T26.
[23] Exhibit R5, T61.
[24] Application 2007/5101, T22.
[25] Exhibit R10, Tag 5.
[26] Exhibit R11.
[27] Exhibit R10, Tag 5.
[28] Exhibit R5, T33.
[29] Application 2007/5101, T19.
[30] Application 2007/5101, T29: Report Dr D Croser, radiologist, dated 16 November 2004.
[31] Exhibit R10, Tab 8.
[32] Exhibit R5, T11.
[33] Application 2007/5101, T7.
[34] Application 2007/5101, T31.
[35] Application 2007/5101, T13.

[36] Exhibit R5, T31.
[37] Application 2007/5276, T5 and T6.
[38] Application 2007/5276, T7.
[39] Application 2007/5276, T15.
[40] Application 2007/5276, T14.
[41] Application 2008/5877, T13.
[42] Exhibit A1, Attachment B.
[43] Application 2008/0575, T12.
[44] Application 2008/0575,T15 and T16.
[45] Application 2008/0575,T10, T11 and T13.
[46] Application 2008/0575,T13 at 48.
[47] Application 2008/0575, T16.
[48] Application 2008/0575,T16 at 58.
[49] Application 2008/0575, T17.
[50] Application 2008/0575, T19 at 75.
[51] Application 2008/0575, T23 at 118.
[52] As defined in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Text Revision.
[53] Exhibit A3.
[54] Application 2008/5877, T17.
[55] Exhibit R5, T10.
[56] Exhibit R5, T90.
[57] Application 2008/5877, T4.
[58] Application 2008/5877, T4.
[59] Application 2008/5877, T11.
[60] Application 2008/5877, T5: Report of Dr P Bowden, 9 July 1990.
[61] Application 2008/5877, T10.
[62] Exhibit A4: report dated 18 February 2009.

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