Agar and Australian Postal Corporation
[2004] AATA 20
•14 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 20
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1998/1741
) N1998/88
GENERAL ADMINISTRATIVE DIVISION ) N2001/1476 Re NEERA AGAR Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date14 January 2004
PlaceSydney
Decision The Tribunal makes the following orders, findings and directions:
1. the reviewable decision dated 20 June 1995 is set aside;
2. the reviewable decision dated 22 June 1998 is set aside;
3. the Applicant is entitled to ongoing compensation in respect of her right ankle condition on and from the 20 June 1995;
4. the Applicant suffers from depression and anxiety as a result of her right ankle injury, experienced during the course of her employment on 7 September 1993 pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”);
5. the Applicant is entitled to reasonable medical treatment expenses pursuant to section 16 of the SRC Act;
6. the Applicant is incapacitated for work and is entitled to compensation pursuant to section 19 of the SRC Act on and from the 20 June 1995;
7. the question of the Applicant’s entitlement or otherwise to costs is reserved; and
8. liberty to either party to apply on seven days notice with reference to quantification of compensation.
[Sgd] R N J Purvis
Deputy President
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1741
GENERAL ADMINISTRATIVE DIVISION ) N1998/88
N2001/1476Re
NEERA AGAR
Applicant
And
AUSTRALIAN POSTAL
CORPORATION
Respondent
ORDER TO AMEND WRITTEN DECISION [2004] AATA 20
Tribunal The Hon R N J Purvis Q.C., Deputy President Date 11 February 2004
Place Sydney
WHEREAS:
1. The Tribunal released a written decision in this matter, which was dated 14 January 2004.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
NOW THE TRIBUNAL THEREFORE ORDERS that the decision should be read as follows:
1. The reference to matter number: N1998/88 should be removed from the front page of the decision as it was itself the subject of the decision of 7 May 1998.
[Sgd] The Hon R N J Purvis Q.C., Deputy President
CATCHWORDS
WORKERS COMPENSATION – whether compensation still payable – extent to which Applicant has suffered – assessment of medical evidence – whether Applicant presently suffers from medical condition – assessment of clinical history of Applicant – whether injury existed - affirmation that injury existed – review of reviewable decisions.
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988 sections 14, 16 and 19
REASONS FOR DECISION
14 January 2004 The Hon R N J Purvis Q.C., Deputy President the application
1. Pursuant to leave granted by the Tribunal on 7 December 2000 Mrs Neera Agar (“the Applicant”) lodged an application for review of the decision made by a delegate of the Australian Postal Corporation (“the Respondent”) on 20 November 1995. The latter mentioned decision terminated compensation payments to her in relation to injuries sustained while employed by the Respondent.
2. The circumstances in which the Applicant was injured, the injuries she experienced, the compensation paid and the considerations referable to the termination of payments were detailed and discussed in the Tribunal’s decision of 7 December 2000. They will not now be repeated. Likewise it is not necessary for there to be a recitation of the medical reports and assessments given and made by practitioners and specialists on behalf of both the Applicant and the Respondent up until the 30 November 1995 and from that time until when notice was given to the Respondent of intent to seek review in October 1997. To the extent that it may be necessary the decision of the 7th December 2000, the reasoning for such decision and the facts and findings of fact contained in it are deemed to form a part of these present reasons for decision. They will not, unless necessary to a present context, be repeated.
3. There is also before the Tribunal and being heard together with the above an application to review a decision of the Respondent of 22 June 1998 referable to a claim by the Applicant for compensation in relation to depression/anxiety.
the decision under review
4. On 20 June 1995 the Respondent wrote to the Applicant (T41/162) amongst other things stating:
“I am writing to advise that your entitlement to continuing compensation in respect of sprained right ankle and a left neck muscle strain has been reviewed.
As the available evidence does not satisfy me that there is liability to pay ongoing compensation I have determined that on and from 16/5/95 Australia Post will no longer be liable to pay compensation for your claim.
That decision was reached in accordance with the opinion of Orthopaedic Specialist Dr J Goldie, who examined you at the request of the compensation office on 16/5/95.
The doctor reported the following:
“Her present condition suggests she is recovering and has minimal impairment now. I would regard her as fit for her normal occupation. I would consider that the effects of the compensable condition have now ceased.”
Therefore the Specialist’s evidence indicates that there is no continuing liability for compensation and you were found fit for full duty.”
5. The Applicant sought a reconsideration of this decision and by a further letter of 30 November 1995 (T60/192) the Respondent advised:
“Having regard to the evidence before me I hereby affirm the decision of the delegate dated 20.06.95.
In particular I took into account the following evidence:
· I note on the accident report completed by yourself on 8. 9. 1993 you advised that you had “severe muscular pains and headache to your r/ankle and LHS neck bruising on entire LHS body” as a result of falling over on 7. 9. 1993 at 3.15 pm.
· I note that you were examined by Dr Artinian on 8. 9. 93 who certified that you suffered from a sprained right ankle and strain left neck muscle. He certified you as unfit for duty from 8. 9. 93 to 10. 9. 1993.
· He then certified you as “fit for normal duties from 13. 9. 93”.
…
· On report on 11. 11. 93 Dr N Thomson states in part -
“I feel that she has some ongoing lateral ligament sprain and also a fatty swelling over the lower part of the muscle compartment”.
“I would suggest that she have an even elastic support up the leg and continues with her physiotherapy. I believe that this should gradually improve and subside.”
· On 7. 10. 94 a Bone Scan by I L Brittain showed that “ankles and feet are normal “, and opined “Normal study”.
· On 24. 11. 94 Dr Slater advises -
“There was tenderness to palpitation with a positive Tinel’s sign over the superficial peroneal nerve where it exits the fascia on the right and I think Nerra’s symptoms are due to neuritis of the superficial nerve which was probably stretched at the time of the injury. The majority of the symptoms gradually resolve spontaneously. There was no evidence of peroneal tendon dislocation today.”
· On 16. 12. 94 Dr Kumar advises that -
“Employee is not totally incapacitated for work”
“As regard to prognosis, it is hoped that a spontaneous recovery will occur in next few months otherwise she may require surgery.”
…
I note the reports of Dr Goldie 16. 5. 95 and his comments regarding your fitness for your normal duties and his opinion that the effects of the compensible condition have ceased. Additionally I note Dr Crichton’s reports regarding ultrasound scans not showing any problem.
Therefore based on the evidence before me I am and on the balance of probabilities as opposed to possibilities I am not satisfied that there is sufficient evidence to indicate that you are still effected of a result of your right ankle and left neck condition, incident 7. 9. 93 and as such Australia Post is not liable to pay compensation in respect of such conditions.
…”
6. It is as to the latter mentioned decision that the present application primarily relates.
the hearing
7. At the hearing of this application the Applicant was represented by Mr John Dodd of Counsel, the Respondent by Ms Rhonda Henderson of Counsel.
8. There was introduced into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 to T199. Each of the parties caused to be tendered written material, which when admitted was marked accordingly, namely:
Exhibit No
Description
Date
A
List of medical reports (7) of Ken Crichton
Various dates
B
Report of Lucia V Rodrigues
6 April 2000
C
Report of J W Read
19 October 2001
D
Reports of Michael T Biggs
22 August 2002 and 27 June 2003
E
Reports of Michael Cousins
17 June 2003 and 6 April 2000
F
Report of Philip Sambrook
27 June 2003
G
Reports of Ken Crichton - all included in Exhibit A
Various dates
H
Report of Tania Rogers
30 August 1999
J
Report of Michael Houang
13 July 2001
K
Report of Kim Slater
11 June 2002
L
Report of Raymond Garrick
18 September 2002
M
Report of Tony Delaney
3 October 2002
N
Report of Nicole Cheetham
24 August 1995
O
Report of B Lamond
6 January 1997
P
Report of Brian Connor
20 November 1986
Q
Reports of Michael O’Shea (7)
Various dates
R
Chronological schedule
S
Academic record of Mrs Neera Agar of TAFE, Ultimo Campos
8 July 1995
T
Five medical certificates referring to Mrs Agar’s inability to attend appointments
Various dates
1
Reports of David Maxwell
10 February 2000 and 10 April 2003
2
Reports of Derek Lovell
11 February 2000 and 15 June 2001
3
Reports of Neil W McGill
15 July 2002 and 31 July 2002
4
Report of John H O’Neill
8 July 2003
5
Report of Mark Henschke
5 March 1997
9. The Applicant, Drs Ken Crichton, Michael O’Shea, Neil McGill, Derek Lovell, John O’Neill and David Maxwell gave oral evidence upon which they were each cross-examined.
an update to the factual situation - a subjective appraisal
10. At the time of the decision of 7 December 2000 the Applicant contended that her condition whilst at one time seeming to settle down had by then deteriorated, this compounded by depression and anxiety resulting from her injury and her perceived treatment from the Respondent especially the manager of the North Sydney office. She was, she said, suffering “continuing and significant pain and swelling in my right ankle… prolonged standing aggravates the condition…I have suffered physically, psychologically and financially.” (T85/239).
11. It is currently maintained on behalf of the Applicant, that having been extensively examined over a period of 10 years all diagnosis and complaints relate to the same area, that is her ankle. There is, it is said, a consistency of such diagnosis identifying compartment syndrome and/or neuritis or nerve injury.
12. The Applicant says that the pain has consistently been in the area of her right ankle, the pain and swelling being so located since the injury. Whilst she was working she found that provided she used a stool or avoided standing for a period the pain was lessened. She says that if she had been allowed to rest her foot and given a stool whilst working, she could have continued in her employment. But when walking for a long time, climbing steps or standing, pain is apparent with an associated swelling. She experiences numbness in the foot. In July 1998 Dr Lane operated upon her ankle with limited remedial effect. She was able to walk for longer without the consequential pain. Further surgery would only be as a last resort and after thorough pain management.
13. The symptoms indicative of her condition have always, she says, been the same. They have been consequential upon walking, climbing and standing. To avoid or lessen the pain and swelling she needs to rest and keep her physical activities to a minimum. She sits while gardening and rest whilst housekeeping, shopping and cooking. She uses an anti-depressant. The pain does not arise spontaneously but after a period of about 30 minutes activity.
14. Some criticism was levelled, on behalf of the Respondent, at the Applicant on account of her travelling outside of Australia since her accident and engaging in courses of study additional to the tertiary qualifications she already holds. She has accompanied her husband whilst he attended conferences in Japan and sabbatical leave in the United States and has travelled to India to visit relatives. It was implied that if she suffered as she alleges she would not have been able to engage in these activities. I do not see this criticism as being warranted.
15. I assess the Applicant to be a very determined and focused lady who displays an ability to suffer pain but experiences a greater difficulty in containing frustration and annoyance at the inability of the medical people to agree upon a diagnosis and settle on a program of pain control, if not a remedy. No inconsistency is here seen by me as is alleged on behalf of the Respondent.
16. It is in light of the above subjective situation that the medical evidence tendered before the Tribunal is to be assessed.
an objective medical appraisal
17. The Respondent contends that there was not in November 1995 and there is not presently a medical condition suffered and experienced by the Applicant which is attributable to any injury she experienced whilst in its employment.
18. It was primarily as a consequence of the report by Dr Goldie on 16 May 1995 that the Respondent resolved to terminate the compensation payments to the Applicant. Dr Goldie (T39/159) maintained that:
“…
DIAGNOSIS
She has a complaint of pain and swelling of the right lower leg. The present situation suggests that recovery is occurring and there is minimal impairment now.
…
1. She has subjective complaints of pain and swelling in the lateral aspect of the lower third of the calf of the right leg. Prognosis is considered to be favourable.
2. On the basis of her history the complaint relates to the injury on 7.9.93. Her present condition suggests she is recovering and has minimal impairment now.
…
4. She is not totally or partially incapacitated for work as a result of the injury on 7.9.93.
5. I would regard her as fit for her normal occupation.
6. I would consider that the effects of the compensable condition have now ceased.
…”
19. However as is noted in the decision of 6 December 2000:
“37. Drs Crichton, Delaney, Henschke, Lane, Garrick and the Respondent’s Dr Lamond all evidence continuing pain, suffering and disability and generally relate this situation to the Applicant’s initial injury. Dr Crichton in his report of 2 February 1998 states:
…The present pain that she suffers in the hip and buttock region is related to her initial injury and represents myofascial pain syndrome which has developed as a result of the anterior compartment pain that she was initially suffering. It is my opinion these are both of the same generation and Dr Raymond Garrick, a neurologist is also supportive of that in a report to me on 3 October 1997. On that basis I would not regard this a new injury but relating to her initial claim.
Her problem is quite perplexing. It is not a common problem but my experience with Mrs Agar through this time has indicated to me that she is quite genuine with the problem and remains keen to seek a solution. She is having surgery in late February and I would be interested to see her progress six weeks after that time (Exhibit E).
38. The Applicant herself in her affidavit evidence referred to her ongoing right ankle pain and the medical treatment she had sought in relation to it. The overwhelming medical evidence submitted from the Applicant’s treating medical advisers is to the effect that she has an ongoing problem with her right ankle the origin of which is the 1993 accident.”
20. Dr Lamond in his report of 6 January 1997 (T92/248) said
“…I persuaded her to let me examine it and there is minimal but noticeable swelling above the right lateral malleolus. There is tenderness in this region. Ankle movements were full.
ASSESSMENT OF OCCUPATIONAL CAPACITY:
Mrs Agar is fit for work, as long as she spends at least 50% of every day either sitting on a stool at the counter or in a sedentary position elsewhere.
…
RECOMMENDATION
1…it should be taken into consideration that she has a chronic condition which is aggravated by prolonged weight bearing…Her condition…may improve with appropriate working conditions.
…
4. At this time Mrs Agar cannot be considered to be totally incapacitated.”
21. It is necessary to further trace the clinical history of the Applicant to assess the various medical reports on examination and arrive at a correct or preferable decision in relation to the compensation claim.
22. In February 2000 Dr Crichton of the North Sydney Orthopaedic and Sports Medicine Centre stated with reference to the Applicant’s pain that “this has not changed in any significant way since her initial accident ”that is since 7. 9. 93” (T192/457). At the same time Dr D Maxwell an orthopaedic and spinal surgeon reported “no evidence of any persisting pathology” and was of the opinion that “her current symptoms are not directly related to the accident” (T193/461). In a report of April 2003 (Exhibit 1) Dr Maxwell stated that he did not consider the Applicant’s symptoms could be “logically explained on the basis of superficial peroneal nerve entrapment”… “there are non-organic factors” he said “influencing her symptom complex”.
23. The Applicant has continued to consult Dr Crichton. In June 2000 he reported upon an ultrasound scan performed by Dr Rod Lane. In such report he stated “the ultrasound appearances were supportive of a clinical diagnosis of right superficial peroneal nerve entrapment”. He further noted that the use of celestone chronodose in the injection seemed to improve her pain. Again in a report of June 2002 he confirmed his earlier observation. In September of that year further to a then recent consultation he noted attendances by the Applicant on Drs Kim Slater, orthopaedic surgeon, Dr Raymond Garrick, a neurologist and Dr Michael Biggs, a neurosurgeon and having read their reports concluded “there is a consistency in the diagnosis that the superficial peroneal nerve has a degree of entrapment and that there may have been a centralisation of her pain syndrome”.. He concluded that there “is now a definite consistency between specialists” that her problem is genuine and related to the superficial peroneal nerve. In December of that year, having again examined the Applicant Dr Crichton reported upon a diagnosis by Dr Kim Slater of a traction neuritis of the superficial peroneal nerve and noted that he “was hopeful that her symptoms would settle with further time”. The diagnosis he said “relating to some form of injury to the superficial peroneal nerve has been consistent through a series of carers”. He listed the “carers”, namely a sports physician, a foot and ankle surgeon, two neurologists, a vascular surgeon, a psychiatrist and a neurosurgeon. He confirmed his diagnosis that the Applicant suffered from neurophatic pain, which would appear to be related to the superficial peroneal nerve. He related the Applicant’s then condition to the accident at work. In February 2003 he provided a further report in which inter alia he stated:
“As mentioned in the initial report, Mrs Agar’s situation was complicated by depression and I believe therefore the depression made it not possible for her to work but more from a psychological point of view than a physical point of view…I would assess the percentage loss (lower extremity percentage loss) based on Table 9.5 as 10 %.”
24. In his evidence given at the hearing Dr Crichton said that the operative finding of Dr Lane was consistent with part of his diagnosis. Dr Crichton effectively made two diagnosis, anterior compartment syndrome and/or superficial peroneal nerve entrapment. With regard to the latter he said that it could be related to anterior compartment syndrome or be an entity on its own “related to where the nerve comes through the sheath over the muscle. So the superficial anterior nerve runs through the anterior compartment; if the compartment pressure is increased then the nerve can be secondarily irritated but also the nerve then comes through that sheath through a tiny hole and that has been an area that Mrs Agar has been consistently feeling as the origin of her pain and that is an area that the nerve can become entrapped” (Transcript p87).
25. Dr Crichton is of the view that the Applicant’s complaints are anatomically possible. With reference to the ultrasound he stated that it “allows you to define the anatomy so you can see the sheath of the muscle and you can see were the nerve is coming out and consistently that spot has been identified by Dr Read as the spot were the nerve comes out. So we have an acceptance that is the area that Mrs Agar has been …locating” (Transcript p87). When asked, “now doctor as far as the causation of the compartment syndrome and the nerve entrapment, is that consistent with in your view of the circumstances of the injury that this lady described to you as at September I think of 1993?” to which he replied:
“The mechanism of the injury would have put a tension force in that area and I suppose initially we thought it had just tractioned the nerve. It is more common to get an anterior compartment syndrome from an over-use activity, so, long distance running or something like that over a period of time, although it is described as a traumatic thing where the anterior compartment, which would be stretched in the mechanism that Mrs Agar described, can then become irritable and the true method - or the mechanism where anterior compartment syndrome develops in either of those situations is still not fully understood but it is certainly a documented syndrome that occurs”.
The problems experienced by the Applicant after walking leading to an increase in her symptoms is consistent with Dr Crichton’s diagnosis. “The action of walking seems to irritate both of those conditions”. With reference to the Applicant’s work with the Respondent, the recommendation made by Dr Lamond and the guidelines or work conditions prescribed relevant to her, Dr Crichton was of the view that provided she complied with the guidelines and if the assistance detailed in them was made available to her she would have been fit for her pre-accident employment. They were not however so made available.
26. It is true to say that a diagnosis of compartment syndrome can at times be difficult and Dr Crichton was of the opinion that the difficulty with both of the conditions described by him was “that there is not a concrete test” (Transcript p91). He confirmed however that the complaints made to him by the Applicant were consistent with the diagnosis that he made. His opinion as to the Applicant suffering from superficial peroneal neuritis was consequent upon “the Tinel’s test of the superficial peroneal nerve in the anterior compartment being positive but negative at the fabula head, which is where the common peroneal nerve is and the common peroneal nerve stretch was positive” (Transcript p100).
27. In his evidence given at the hearing Dr Maxwell reiterated what he had earlier stated, namely that the Applicant “didn’t have any evidence of anterior compartment when I saw her. It may have been that she - it was diagnosed previously but her symptoms and signs certainly weren’t typical of that when I saw her” (Transcript p171). When asked whether he gave consideration to a diagnosis of anterior compartment syndrome, he replied (T171), and “I’ve never seen an anterior compartment syndrome following a sprained ankle before. It must be extremely rare I would imagine if it did occur” (Transcript p173). When it was put to him “the fact of a partially beneficial result from the operation [Dr Lane] would appear to effectively reconfirm the diagnosis pre-operatively of this lady having suffered an anterior compartment syndrome?” Dr Maxwell replied “Yes, it may…it would tend to indicate that she may have had some benefit from the operation” (Transcript p175). Again when it was put to him “would a positive tinel sign provoking paraesthesia to the dorsum of the foot over a four centimetre area above and below Mrs Agar’s ankle scar be indicative of some neuropathic pain related to her peroneal nerve traction injury?” He replied “It may” (Transcript p176). He further indicated a lack of surprise when it was put to him that the Applicant was still being considered by Dr Garrick and Dr Biggs as a possible candidate for further surgery, particularly the superficial peroneal nerve. The guarded answers given by Dr Maxwell when measured against the well reasoned considerations of Dr Crichton leads me to prefer the diagnosis conducted by the sports medicine practitioner.
28. In October 2001 Dr J W Read (Exhibit C) issued a diagnostic radiology report noting “ultrasound appearances supportive of the clinical diagnosis of right superficial peroneal nerve entrapment”. In July 2002 Dr N W McGill (Exhibit 3), consultant rheumatologist, thought a diagnosis of superficial peroneal entrapment unlikely. He accepted however the comment made by Dr Chrichton to the effect that there is no definitive diagnostic test for either anterior compartment syndrome or superficial peroneal entrapment (Transcript p117). He further agreed that the observation made by Dr Lane at operation “that the muscle certainly was very tight and bulging outwards after the fascia was incised” was consistent with an anterior compartment syndrome (transcript p118). As to the likelihood of the Applicant experiencing a compartment syndrome, Dr McGill was at issue with the diagnoses of Drs Slater, Lane, Crichton, Garrick and Delany. He did not think that the presentation “has been by any means typical of compartment syndrome”, and stated that the Applicant “doesn’t fit for the symptoms of superficial perineal nerve entrapment…She has symptoms in areas that don’t fit for that syndrome and she has relatively few things that do fit for it” (Transcript p127). He did note that it was possible the result of the operation gave the Applicant some assistance to relieve the effect of the compartment syndrome. When asked why he disagreed with the view of Dr Garrick that “Mrs Agar continues to have neuropathic pain related to her old peroneal nerve traction injury” and Dr Biggs that “tenderness and a positive tinel sign over the scar over the anterior lateral calf and suspected some entrapment of the superficial peroneal nerve” Dr McGill replied “because the histories of the symptoms doesn’t fit the superficial peroneal nerve. If the superficial peroneal nerve is not working the articles that I referred to [Compression and Entrapment Neuropathies of the Lower Extremity - L F McCluskey and L B Webb; Nerve Entrapment’s of the Lower Leg, Ankle and Foot in Sport - P McCrory, S Bell and C Bradshaw; Nerve Injury associated with Plantar Flexion Inversion Ankle Sprains - D W Hayes, V J Mandracchia, G E Webb (Exhibit 3)] describe the electrical tests that can be done to assist it and so the suggestion that she is now developed a chronic pain syndrome is a move away from blaming the nerve and I think it’s a realisation that her symptoms don’t fall into or don’t fit within the syndrome of a superficial peroneal nerve”. He further said that “the articles that I have given actually refer to the importance of neuro-psychological testing in trying to make the diagnosis”. When it was put to Dr McGill that his particular speciality was as a consultant rheumatologist as opposed to a neurologist or neurosurgeon, he agreed that in the case of nerve injuries he would defer to people as well respected as Dr Garrick and Dr Biggs in that area. He said:
“I think that neurologists and neurosurgeons have greater expertise in neurological problems in general than rheumatologists; another reason that I carefully research the literature provided the articles I have. I think the people who wrote those articles have clearly a special interest in that syndrome and it is on the basis of the information provided in those articles that I made a lot of the comments that I have made today”.
He agreed that Dr Garrick was an “excellent neurologist” and Dr Biggs a “top neurosurgeon” (Transcript p136).
29. It is apparent that Dr McGill derived a measurable part of the evidence that he gave from the articles to which he referred. It is also clear that the evidence of Drs Garrick and Biggs is to be preferred.
30. Dr M T Biggs, the neurosurgeon, in August 2002 (Exhibit D) after examination “suspected” superficial peroneal nerve entrapment to be the relevant condition. In September 2002 (Exhibit L) Dr R Garrick, the neurologist spoke of the Applicant continuing “to have neuropathic pain related to her old peroneal nerve traction injury. It is possible that there is some continuing entrapment”. In the following month Dr T Delaney, a sports physician stated that he considered that the Applicant “has an entrapment neuropathy of the right superficial peroneal nerve” (p17 para 36).
31. Dr M O’Shea, consultant psychiatrist in the same month, apart from recommending that the Applicant attend the Royal North Shore ADAPT Pain Program in October 2002 tendered his opinion that (Exhibit Q):
“The current diagnosis is one of major depression in the context of chronic right leg pain.”
He continued by stating that that:
….
“Subsequent to the chronic leg pain, she has developed significant psychological suffering with significant depression requiring biological treatment and psychological treatment including meditation. Because of the chronicity of the pain now nine years in duration this does impact on Mrs Agar’s mood. There is a strong association between chronic pain and depression….The leg injury was sustained whilst at work in an accident. Therefore I believe that Mr [sic] Agar’s psychological injuries are of direct relation to the chronic pain suffered as a result of right leg injury….
As a result of Mrs Agar’s leg pain she would be unable to work as a counter officer which required standing for lengthy periods during any time from 1996 to date. Mrs Agar could have possibly worked in a position that did not require standing for lengthy periods such as a position where she could sit a desk and attend to tasks without standing all day…
Mrs Agar is likely to continue to require medical treatment for her depression and chronic leg pain. As the chronic leg pain is an ongoing disability which caused depression so is the depression likely to be a chronic condition…
My opinion regarding Mrs Agar’s capacity for work is that she could return to work in a position which would not put further stress on her right leg. I believe she would be able to return to work to perform at a desk job where she was performing tasks seated….
…Mrs Agar is likely to have chronic ongoing leg pain and it is unlikely that she will have surgery given that the information from the orthopaedic surgeon was that whilst the operation to release a trapped nerve might give her a 50% chance of improvement it might also worsen the pain…
As a result of her probably not having the surgery she will have chronic leg pain for the rest of her life…However, she continues to have depressive symptoms and continues to require anti depressant medication and continues to need meditation to stop her from worrying and having troubling thoughts and stress.
She is likely to have chronic depression because of her leg pain.
…
I believe she will continue to have problems with depression because of the leg pain….”
32. The Applicant had been a patient of Dr O’Shea since March 1997 and had in February 2000 been referred by him to Dr D Lovell, consultant forensic psychiatrist who was then of the opinion that she was suffering from dysthymia, a form of chronic depression. In June 2001 (Exhibit 2) after a further examination Dr Lovell expressed his belief that the Applicant did not then meet “the criteria for either major depression or post-traumatic stress disorder”, whilst displaying “some abnormal illness behaviours”.
33. In course of his evidence at the hearing Dr O’Shea said that his diagnosis of post-traumatic stress disorder “was in the sense of having symptoms of post-traumatic stress disorder following the trauma of what occurred at Australia Post”. When asked as to the relationship between his current diagnosis of depression and the original incident of 1993 resulting “in the orthopaedic or physical problems”, Dr O’Shea replied (Transcript p105):
“…I think there is a clear contribution that the accident that left Mrs Agar with a right leg pain, which appears to be chronic and allegedly permanent, that that accident which occurred when at work and falling into what I understand were some crates, or milk crates… that has been going on since…early in 1993 until today…so I believe the chronic right leg pain is genuine and caused by the work injury and the depression that occurred in the context of the chronicity of the leg pain and - I think what perpetuates the depression is the fact that having seen so many different people and try to rectify the problem that she has been given a range of answers which included an attempt to rectify it through the anterior compartment release by Dr Lane which led to some partial improvement for a period of time but not the full improvement and then there has been an ongoing recurrence…she is faced with a permanent disability which impacts on her quality of life. That quality of life is impacted upon and is a major stressor being a physical illness created by a work-related injury that then leads to chronic depression…”
34. Dr O’Shea stressed the link between “chronic pain given its frustrating and ongoing nature and depression as a mental illness” (Transcript p106). He continued (Transcript p107) by identifying problems that had “actually exacerbated Mrs Agar’s injury” referring to medical and surgical specialists and the conflicting opinions expressed by them. He further made mention of the recommendations to Australia Post relating to the Applicant’s work conditions and the attitude taken by the Post manager at North Sydney. He continued by saying (Transcript p107):
“…I think if she was to return to the workplace, she has a chronic injury, it would need to be in a capacity that actually addressed the initial problem, which was the chronic leg pain, so that she could tolerate that for a series of hours. It would even need to be in an area where she wasn’t standing for eight hours on her feet because she could not possibly tolerate that, so either in a role where she was sitting or only standing for short periods.”
He made reference to an increase in anxiety and agitation and a recurrence of some depressive symptoms in 2002 (Transcript p109). When asked as to the trauma being experienced by the Applicant, Dr O’Shea said (Transcript p112):
“Trauma is about something that is outside the realm of normal life experience. So whilst the accident wasn’t outside the realm of normal life experience an accident that causes a chronic leg pain that goes on for a decade and causes significant disability is beyond a normal life experience…The event was such that it caused what appeared to be just an ankle injury at the start but proceeded to be a chronic leg pain which is actually exacerbated and migrated over time, it had become worse over time, so I do think it is a trauma, I think it is actually quite a serious trauma for the level of impairment that Mrs Agar now has to contend with in her life and has done so over the last - nearly a decade…”
35. Dr Lovell (Transcript p 140) agreed that the Applicant’s chronic depression as diagnosed by him “could be related to those events in this lady’s life in terms of she having chronic pain and, secondly, in terms of her interactions with her employer…”. He thought that the condition experienced by the Applicant could be more appropriately described as “adjustment disorder with depression rather then a clear-cut major depression” (Transcript p143).
36. In June 2003 (Exhibit D) Dr Biggs, expressed the opinion that the Applicant “has sustained an injury to the superficial peroneal nerve as a result of her injury in 1993. She has gone on to develop a complex regional pain syndrome…unfortunately after this many years the chance of treating her chronic regional pain syndrome is extremely low” (Transcript p14).
37. Dr M Cousins , Director of the Pain Management and Research Centre, Royal North Shore Hospital also in June 2003 (Exhibit E) reported, after the Applicant had been examined by a physiotherapist, a clinical psychologist and himself, that:
‘Our impression was that:
1. The patient has suffered a superficial peroneal nerve on the right side, which has resulted in ongoing neuropathic pain. There appears to have been a lateral compartment syndrome. The patient now has significant signs of Complex Regional Pain Syndrome.
2. The patient is significantly deconditioned.
3. The patient appears to be depressed. The patient has quite substantial residual anger over her treatment by Australia Post. She would certainly be a candidate for our cognitive-behavioural programme ADAPT…”
38. In the same month as she was seen by Dr Cousins, the Applicant attended upon Professor P Sambrook of the Department of Rheumatology at Royal North Shore Hospital. He proffered a diagnosis to the effect that she had developed (Exhibit F):
“…a right anterior tibial compartment syndrome following the injury at work in September 1993 and this has been treated surgically with only partial improvement in her symptoms. Possibilities for the continuing symptoms include some further nerve entrapment eg superficial peroneal nerve, neuropathic pain or a ‘non organic’ psychiatric illness. In regard to the latter, there is a history of some depressive illness but this can be explained as a secondary phenomenon to her now chronic problems…
The chronic nature of her symptoms (now ten years) makes it unlikely she will have complete recovery and I think there is a strong possibility she will continued [sic] to be troubled by intermittent pain and swelling in the right lower limb…
As noted above under diagnosis, there is a clear history of a discrete injury and investigations and numerous examinations and opinions following that injury establish a clear relationship between the anterior compartment syndrome and the injury sustained in September 1993. Whilst the nature of the more chronic symptoms since surgery are arguable, there is a strong likelihood it is also a consequence of the initial injury…
Using the Comcare Guide to the Assessment of the Degree of Permanent Impairment and Table 9.2, I would grade her as having an impairment of about 10 %…”
39. Dr J H O’Neill, consultant neurologist saw the Applicant and reported in July 2003 (Exhibit 4). Whilst noting that she “has never had clear clinical or neuro-physiological evidence of a right superficial peroneal nerve injury as a consequence of the 1993 accident” and that as “pain extended proximally” it “would not be in keeping with a diagnosis of right anterior tibial compartment syndrome” did state that “his examination revealed non-organic weakness and sensory impairment in the right leg”. He was however “not convinced” that she had a “permanent injury” or that she had pain of a neuropathic type and a pre-existing nerve injury (Transcript 155). He did recognise it as amongst other difficult cases (Transcript p151). On the basis of the evidence before me extending back as it does to 1993, I am satisfied that there was such an injury.
decision
40. I have detailed in these reasons not all of the evidence given by the medical witnesses but have sought to indicate the degree of certainty in the various views and opinions expressed. There is no reason why any of the medical practitioners who have identified the Applicant’s condition should express a view favourable to her position other than one genuinely and reasonably so held. Some of the witnesses such as Drs Crichton, Garrick and Lane have particular professional interests in her condition. Dr Crichton has for many years been a medical practitioner attending to persons especially engaged in activities where injuries to the feet and ankles might be incurred. Dr Garrick, a neurologist has an expressed interest in peripheral nerve entrapment and Dr Lane has been researching the use of ultrasound regarding anterior compartment syndrome. On the other hand the opinion of Dr Maxwell as to the Applicant having experienced merely a sprained ankle is inconsistent with not only the Respondent accepting liability to June 1995 but the operation performed by Dr Lane in 1998, the clinical history over a 10 year period and the ultrasound appearances supportive of right superficial peroneal nerve entrapment. The criticism by Dr O’Neill of the ultrasound as not being diagnostic is an opinion inconsistent not only with that of Dr Read who carried out the ultrasound but others who used the impression in aid of their own diagnosis. Dr O’Neill did concede that the findings by Dr Garrick could be consistent with a diagnosis of neuropathic pain related to a peroneal nerve traction injury. Dr McGill based much of his evidence upon articles written by authors whose views and opinions whilst read were not tested by cross examination. He did concede that the findings of Drs Garrick and Biggs were consistent with a diagnosis of compartment syndrome. He also gave credence to the views of the neurologist and neurosurgeon.
41. With reference to the psychiatric evidence of Drs O’Shea and Lovell it would appear that their differences are more in degree. A diagnosis of major depression in the context of chronic right leg pain was measured against a diagnosis of dysthymia, a minor chronic depression characterised by anger and unhappiness. It is clear however that the Applicant has been and is depressed by the injury suffered in and the circumstances surrounding her employment and medical difficulties. Her condition is a response as submitted on behalf of the Applicant “to her long and chronic leg symptoms exacerbated by the unwillingness of her employer to accept that condition as genuine and provide suitable employment”.
42. On behalf of the Respondent and as earlier indicated in these reasons it was said that the injury experienced by the Applicant was minor and that her present pain and suffering is attributable to some cause other than the 1993 incident. Mention is made of the periods of time not worked by the Applicant, of her travelling and other activities. I do not see however in these submissions anything that detracts from the objective appraisal made of her by the practitioners and specialist whose evidence has been referred to earlier in these reasons. It is true to say, as was submitted on behalf of the Respondent that some of the medical witnesses have expressed some diffidence in the views expressed by them and that a diagnosis as to peroneal neuritis and anterior compartment syndrome has been made even be it, according to Dr Crichton, there is no definitive test which can be used to diagnose either condition. However, the diagnosis has been made and the relevant witnesses have clearly detailed the basis upon which they so acted. With confidence their views have been expressed. As earlier indicated I am of the opinion that the evidence of such as Dr Crichton, Dr Garrick and Dr Briggs is preferable to that of Drs Maxwell, O’Neill and McGill. As to the psychiatric condition of the Applicant, I prefer the evidence of Dr O’Shea to that of Dr Lovell even be it that Dr Lovell is in concurrence but to a lesser degree of disability.
43. I accept the evidence of the Applicant not only as to the original accident but as to the pain and suffering that she has experienced over a period of not less than 10 years. I accept that her conditions of employment and particularly the attitude taken by the Post Master at North Sydney were destabilising for her and together with the chronisity of her injury were material contributors to her present state of mind.
44. The findings made as relevant is the medical witnesses earlier identified are such as to satisfy me on a balance of probability that the diagnosis by Drs Crichton, Garrick, Biggs, Cousins and Sambrook should be sustained. The Applicant has been partially incapacitated for employment duties with the Respondent. The Respondent further failed to provide her with suitable restricted duties as and from March 1996.
45. It was submitted on behalf of the Applicant that the attitude displayed by the Respondent to her over the years and more particularly prior to her employment being terminated exacerbated her condition. Reference was made to the attitude displayed by representatives of the Respondent to her suffering, to her inability to continue with her work, to withdrawing the provision of a stool to her as indicated in the documentary material (see T-documents pages 147, 148, 156, 179, 202, 217, 236 and 257). It was the Respondent’s approach to her, the fact that they did not believe her and as submitted on her behalf “did not want to know her” that together with the rejection of her medical opinion was disadvantageous to her.
46. I am satisfied on the evidence that the injury experienced by the Applicant in 1993 whilst employed by the Respondent did result in compartment syndrome and/or peroneal neuritis. I am further satisfied that the psychiatric condition of the Applicant is consequential on one or other of the conditions identified, the chronic pain experienced by her, the lengthy period of time that she has experienced such condition, the treatment afforded to her and the effect of the non-acceptance of her condition by the Respondent.
47. I am further satisfied that if the Applicant had been provided with the recommended facilities that she would have been able to work full time at the stage when the Respondent retired her in 1999. The Respondent did fail to provide the Applicant with employment subject to the recommended restrictions compatible with her then medical condition.
48. For these reasons the Tribunal makes the following orders, findings and directions:
1. the reviewable decision dated 20 June 1995 is set aside;
2. the reviewable decision dated 22 June 1998 is set aside;
3. the Applicant is entitled to ongoing compensation in respect of her right ankle condition on and from the 20 June 1995;
4. the Applicant suffers from depression and anxiety as a result of her right ankle injury, experienced during the course of her employment on 7 September 1993 pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”);
5. the Applicant is entitled to reasonable medical treatment expenses pursuant to section 16 of the SRC Act;
6. the Applicant is incapacitated for work and is entitled to compensation pursuant to section 19 of the SRC Act on and from the 20 June 1995;
7. the question of the Applicant’s entitlement or otherwise to costs is reserved; and
8. liberty to either party to apply on seven days notice with reference to quantification of compensation.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: Neil Glaser
AssociateDate/s of Hearing 20 and 21 November 2003, 11 December 2003
Date of Decision 14 January 2004
Counsel for the Applicant Mr J Dodd
Solicitor for the Applicant Ms R James
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Mr G Jones
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