Alievska and Comcare
[2005] AATA 1179
•30 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1179
ADMINISTRATIVE APPEALS TRIBUNAL N° V2002/426
GENERAL ADMINISTRATIVE DIVISION
Re: MAZES ALIEVSKA
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date:30 November 2005
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
COMPENSATION ‑ claim for permanent impairment – motor vehicle accident five years prior – no organic reason for apparent physical disabilities – psychiatric impairment – second non‑compensable accident seven months later – whether actual permanent impairment – whether any condition attributable to first accident – credibility of applicant.
Safety, Rehabilitation and Compensation Act 1988 s 19
REASONS FOR DECISION
30 November 2005 Mr B.H. Pascoe, Senior Member
1. This is an application to review a decision of Comcare (the respondent), denying liability for permanent impairment compensation in respect of strained neck, back, right shoulder and trapezius muscles, headaches, deep vein thrombosis (DVT) of the right leg and pulmonary embolism and psychiatric condition.
2. At the hearing, the applicant Ms M. Alievska was represented by Ms A. Malpas of counsel and the respondent by Mr J. Lenczner of counsel. Evidence was given by nine medical practitioners, the applicant, her sister and the person involved in a motor vehicle accident with the applicant. Several further medical reports were tendered from medical practitioners not required for cross‑examination. The Tribunal had the documents provided by the respondent pursuant to s 37 of the AdministrativeAppeals Tribunal Act 1975 (the AAT Act).
3. This matter has a very long history. In 1995, Ms Alievska was employed with the Department of Employment Education and Training (DEET) as a temporary trainee. The contract was due to expire on 26 March 1996. On 9 February 1996, she was involved in a motor vehicle accident when her car was struck from behind while driving from her employment to her home. Ms Alievska submitted a claim for compensation for pain in the neck, right shoulder and lower back. The respondent accepted liability to pay compensation for incapacity and medical expenses. A return to work plan was prepared but not completed by Ms Alievska. She did not return to work after the accident. By reviewable decision dated 22 August 1996 the respondent determined to cease liability from 24 June 1996. An application for review of that decision was lodged with this Tribunal. On 26 September 1996, Ms Alievska was involved in another motor vehicle accident in which she was again struck from the rear. A decision of the Tribunal by consent of the parties under s 42C of the AAT Act was handed down on 26 June 1997 (T24) varying the reviewable decision to the extent of extending the period of liability for incapacity and medical expenses to 31 July 1996 (T24).
4. By claim dated 1 May 2001, Ms Alievska sought compensation for permanent impairment in respect of lower back pain, headaches, DVT R leg (sic) then pulmonary embolism, pain radiating into the legs from lower back (T31). By letter of 24 May 2001 and 19 December 2001, the respondent advised that as liability for previously accepted conditions: neck, back, shoulder and trapezius muscles had ceased from 31 July 1996, no liability for permanent impairment for these conditions existed. It further noted that no claim or liability for DVT of the right leg, pulmonary embolism or any psychiatric condition had occurred and no claim for permanent impairment could be considered for these conditions. An application was lodged for review of that decision but subsequently withdrawn as there was no reviewable decision.
5. By letter of 12 February 2002 (T43), the solicitor for Ms Alievska formally requested reconsideration of the determination of 19 December 2001. A reviewable decision of 22 March 2002 (T46) affirmed that determination denying liability for permanent impairment compensation. On 26 April 2002 an application for review of that decision was lodged with the Tribunal.
6. After some delay awaiting resolution of some legal issues involved, the application was first listed for hearing on 30 November 2004. Counsel for Ms Alievska immediately sought an adjournment on the basis that counsel had been inadequately briefed, because her instructor had not obtained the file from the firm of solicitors previously acting. The Tribunal agreed to the adjournment on the grounds that the applicant would not be adequately represented if the hearing proceeded. The hearing resumed on 23 and 24 May 2005, then 24 to 26 August inclusive and a final day on 14 September 2005. During the hearing it was said that Ms Alievska was claiming incapacity payments and medical expenses from 1996 and permanent impairment compensation. However, it became clear that the only decision properly before the Tribunal was that of 22 March 2002 denying liability for permanent impairment compensation. No claim or decision relating to incapacity payments pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) was before the Tribunal.
7. Ms Alievska presented as a severely handicapped lady, walking with difficulty and with the aid of a stick. Nevertheless, she appeared to cope without difficulty or signs of discomfort during an extended period in the witness box when giving her evidence. In relation to many aspects of her life, she displayed an unusual lack of memory. She was unable to recall the names, addresses or details of her role in any employment prior to her employment with DEET. While she remembered working at a K Mart at one time, she could not recall when, where or what her job was. She said she was staying with a cousin at the time but could not recall the name or address of the cousin, or the actual relationship. She was somewhat vague as to her responsibilities with DEET. She could not recall the date of her marriage or the dates of birth of her two children, now apparently aged 14 and 12. She could not recall if her husband was in employment when she was working at DEET. She was very vague in her knowledge of having had a legal firm act in relation to both motor‑vehicle accidents and denies knowledge of the 1996 application and consent decision of this Tribunal. Given her apparently clear memory of certain aspects of the February 1996 accident, the significant lapse of memory of most other parts of her life is relevant.
8. Ms Alievska said that she was driving from work to home on 9 February 1996. She was in the right‑hand lane of a four lane road with, she believed, two cars in front of her which were waiting to turn right. She said that a car behind struck the rear of her car. Ms Alievska could not recall if she had subsequently been able to drive her car or whether it was towed away. She believed that the damage was substantial and that the car was a “write-off’’. Her car did not strike the car in front of her. Ms Alievska conceded that she may well have yelled at the other driver. She accepted that a statement made by her to the police at Dandenong said that she drove home after the accident at 5.10pm, went to her family doctor for an examination and then reported the accident to the police at 7.45pm. The statement was signed by her at 9pm and Ms Alievska thought that she may have gone home while the statement was being typed. The damage to her car reported in the statement to police was noted as broken tail lights, damage to the boot and reversing light broken. It was put to Ms Alievska that the repair costs to her car totalled $2254, including $500 for muffler repairs and repairs to engine mountings, leaving approximately $1754 for repairs to body work and lights. She could not recall the repair costs.
9. The second accident on 26 September 1996 was also a rear‑end collision. In that accident, Ms Alievska received a broken wrist and accepted that she aggravated her back, head and neck. Her sister and two children were travelling in the car. Ms Alievska was aware that her sister was injured but could not recall the extent of the injuries. She now does not speak with the sister who blames her for the accident. One child re‑injured a previously broken leg and the other child was slightly injured. Ms Alievska accepted that they all went to hospital after the accident. She could not recall the extent of the damage to her car but could not disagree with an apparent repair cost of approximately $6000.
10. Ms Alievska said that she suffered ongoing pain in her back, neck and right shoulder which became progressively worse as a result of the February 1996 accident. She maintains that while there may have been some aggravation of these conditions as a result of the September 1996 accident, her ongoing problems were the result of the first accident. She said she has pain in both sides of her neck, extending into her arms, a burning pain in her back, pain and numbness in the left leg and has difficulty in walking, sleeping and sitting for prolonged periods. She said that she commenced to have difficulty with her periods and was prescribed the contraceptive pill by her doctor. In January 2001 she was hospitalised with a pulmonary embolism.
11. Ms Alievska maintained that she is unable to properly care for her children or perform normal household duties because of her physical problems. She relies heavily on her sister and other family members as a result of her need to spend much time in bed. She drives her daughter to school and sometimes collects her from school which is no more than 10 minutes travel time. On occasions she does her own shopping but said that she relies on her sister to do most of the shopping.
12. Ms Alievska could not recall any holidays since the first accident other than a few days at Phillip Island where she was driven by her brother. She said that she could not recall how many went, where they stayed or what they did. On the other hand, the evidence of her older sister, Ms T. Alievska, was that the brother had taken Ms Alievska with him, two or three times a year to his cabin at Eildon She recalled him having taken Ms Alievska to San Remo at Phillip Island and on other occasions, having taken her with him on his regular fortnightly fishing trips.
13. Initially Ms Alievska denied any history of headaches prior to the accident in February 1996. She maintained that she could not recall seeing a Dr S. Bambery in December 1995 in relation to frequent headaches nor seeing a neurologist, Dr I. Williams, in January 1996 and giving her a history of headaches since 1994. She could not recall being referred to the Eye and Ear Hospital by Dr Williams in January 1996 prior to the accident, nor having a CT scan to exclude the possibility of a tumour.
14. Ms Alievska was admitted to hospital in January 2001 for treatment of a pulmonary embolism. She believed that this condition was the result of her inactivity caused by physical problems. Also at this time she discovered that her husband was having an affair with another woman. She maintained that she had no knowledge of this affair prior to this time or how long it had been happening. Ms Alievska blamed this on the February accident as she maintained that as a result of her injuries, she had been unable to sleep with him. In her evidence she said that if it had not been for the accident, she would still have her husband and a good life. The evidence of her sister was that she had suspected Ms Alievska’s husband of having an affair for some months prior to the hospitalisation in January 2001. She was not aware of any problems in the marriage prior to the accident but that the marriage gradually fell apart after that time.
15. Ms Alievska consulted her general practitioner, Dr R. Thornton, on 9 February 1996 after the accident. In a report dated 15 September 2000 (Exhibit R7), Dr Thornton stated:
On 9th February 1996, I was consulted by Ms Alievska after she had been involved in a motor vehicle accident that day, when the vehicle in which she was travelling was hit from behind. She sustained a whiplash, or hyperextension neck injury and lower back strain. When I saw her some hours later, she was not in great distress and indeed, we discussed other problems, a skin condition and a referral to the Royal Victorian Eye and Ear Hospital for an ophthalmic problem.
I prescribed Codral Forte, an analgesic, and Valium as a muscle relaxant for the neck and back problem and reviewed her 3 days later on 12/02/96. By this time, her back pain was considerably worse, and she also complained of neck and right shoulder pain.
I considered Ms Alievska’s injuries were of a soft tissue nature and prescribed the non-steroidal anti-inflammatory medication, Brufen, certifying her unfit for work from 12-16 February 1996.
Ms Alievska did not return to this medical centre until 9/3/99, so I have no record of a further accident on 29/9/96, nor of any further treatment given.
16. Ms Alievska then consulted another general practitioner, Dr J. Turlakow, on 14 February 1996, complaining of headache, pain in the neck, right shoulder, right chest and vertebral column and anxiety and nightmares. He referred her to Mr M. Kahn, an orthopaedic surgeon. Mr Kahn took a history of an accident in which her car door was crushed and the car not driveable. After an X‑ray and an MRI scan, he diagnosed soft tissue injury and was concerned at an element of functional overlay.
17. Dr Turlakow referred Ms Alievska to a neurologist, Dr P. Billimoria. He examined her in 1996, 2003 and 2004. He could find no organic or physical injury and believed her problems were primarily psychological.
18. Ms Alievska has been examined over the years by many medical practitioners. It is sufficient to say that no medical examiner has been able to diagnose any organic reason for her apparent long term pain. Those that have found a percentage permanent physical disability have done so on the basis of the history given to them and accepting Ms Alievska’s statement on limitation of movement. Most have suggested the presence of a functional overlay or symptoms attributable to psychological problems. One impressive witness was Dr P. Stevenson, a consultant physician with 25 years experience in trauma care. He conducted several objective tests in June 1996 and was unable to diagnose a current physical injury. He considered that Ms Alievska’s symptoms appeared substantially in excess of what one would have expected from the February 1996 accident. He accepted that she may have sustained some soft tissue injury but considered it unusual that that such an accident would cause wide ranging and disabling symptoms which still incapacitated her from work four months later. He concluded that the major determinants of her presentation were psychosocial rather than reflecting tissue injury. He was unable to conclude reliably that she was suffering pain at all. He noted that she was using a walking stick in her wrong hand for the alleged problem with her leg.
19. Several practitioners were given a history of a major accident in which Ms Alievska’s car was a write off. Some who saw her after the second accident were not told of the second accident in September 1996. It is clear from the evidence, including that of Miss N. Carlow, the driver of the car which struck Ms Alievska’s car, that the accident in February 1996 was relatively minor. It appears that the February 1996 accident was more minor than the September accident which involved a significantly greater repair cost and clear injuries to passengers.
20. Ms Alievska was referred to a psychiatrist, Dr G. Conron by Dr Turlakow in January 1998. Dr Turlakow said that he had tried to refer her in December 1996 but that her husband had objected. Dr Conron diagnosed major depression and anxiety with some features of post traumatic stress disorder (PTSD). Dr Conron has seen Ms Alievska regularly since that time but does not believe that her condition has changed to any significant extent over the seven years. He said that he understood that her marriage was not particularly happy in early 1998. Dr Conron believed that the car accident was the precipitating event for the depression and that Ms Alievska had genuine pain notwithstanding the apparent lack of any organic reason. It was noted that Dr Conron was initially aware of only one car accident and it is not clear which accident he had noted in the history. He accepted that marital and other personal problems were a contributing factor in her condition. He acknowledged that he had never been able to obtain a clear picture of the pre-accident state of health of Ms Alievska.
21. Ms Alievska was examined by Dr R. Ratnayake in September 2003. She diagnosed a major depressive disorder but noted that Ms Alievska was uncooperative and displayed abnormal behaviour with no apparent motivation to get better. She did not believe that there could be any diagnosis of PTSD. In her report of 16 September 2003 (Exhibit R13), Dr Ratnayake said:
Ms Alievska has now become entrenched in the sick role. She displays abnormal illness behaviour in that she has repeatedly refused to accept psychiatric treatment in an inpatient setting. She has also refused the offer by Dr Conron, her consultant psychiatrist, to arrange more intensive physical and psychological treatment in a day program. She considers it shameful to be receiving psychiatric treatment and her attitude is preventing her from recovering from her depressive symptoms.
Once patients are firmly entrenched in a sick role, the gains from the sick role tend to prevent them from seeking appropriate treatment. Ms Alievska receives considerable attention from her mother and her sisters due to her sick role and has been relieved of all her responsibilities and indeed most household chores. The support given by her mother and her sisters tends to perpetuate her sick role and discourages her from becoming more independent.
Your overall prognosis of the patient’s condition.
In my opinion it is very likely that Ms Alievska would experience a considerable improvement in her pain symptoms after (sic) she relieved adequate treatment for Major Depressive Disorder. Her present dose of antidepressant appears to be inadequate. Also, her compliance with her medication is in doubt. However, if the obstacle of her possible non-compliance could be overcome and she was to receive adequate treatment, it is likely that she would experience an improvement in both depressive and pain symptoms within six months of commencing adequate treatment. It is likely that at that stage she would be able to return to gainful occupation at least on a part-time basis, however this would depend mostly on her physical condition.
22. It is necessary to note that Ms Alievska was a less than satisfactory witness. Her apparent lack of memory of many significant matters in her life is relevant to the acceptance of her evidence that the February 1996 accident was the sole cause of any current health problems. It is a matter of conjecture why, if her injuries were so significant and the effects continued unabated thereafter, that she waited until May 2001 to make a claim for permanent impairment. It is clear from the evidence that she has been very aware of her rights to litigation.
23. To find in favour of Ms Alievska, the Tribunal needs to be satisfied on the balance of probabilities that she suffers from the permanent impairment claimed and that any such impairment resulted from an injury which arose out of, or in the course, of employment with DEET. Clearly the vehicle accident of February 1996 was in the course of her employment and the respondent accepted liability at the time. However, that liability was accepted for soft tissue injury and, as at 31 July 1996, both parties agreed that the effect of that injury had ceased.
24. In relation to the claim of permanent physical impairment, the applicant relied primarily on the assessment of Mr Khan and a general surgeon Mr P. Mangos who assessed percentages of permanent impairment. In his oral evidence, Mr Khan accepted that he could find no organic explanation for the apparent pain and limitation of movement. He considered that it was more of a soft tissue problem on top of non-organic problems. He accepted also that his assessment was based on a subjective examination of movement and his understanding that the February 1996 accident involved a major collision and the car not being driveable. He accepted that he had provided a report to the Transport Accident Commission in March 1997 stating that the September 1996 accident was relevant to her condition. Mr Mangos had taken a history of a major accident in February 1996 and a minor accident in September 1996. The evidence of Mr Mangos was unsatisfactory as he appeared to have based his assessment on Ms Alievska’s description of her symptoms with little, if any, objective testing.
25. On the other hand, Dr Stevenson and Mr M. Shannon, an orthopaedic surgeon, were both strongly of the view that objective testing showed no physical impairment and any problems were psychosocial. Neither believed that the accident in February 1996 could have caused other than soft tissue injury which could be expected to resolve in a relatively short period. These views of two experienced practitioners lend credence to my views based on observation of Ms Alievska during an extended period in the witness box and the unreliable nature of her evidence. As a result, I prefer the evidence of those medical practitioners who were unable to establish an organic reason for her apparent disabilities and could find no permanent physical impairment.
26. It must be accepted that the somewhat bizarre behaviour of Ms Alievska indicates some psychiatric condition. Of the evidence of the psychiatrists provided, I prefer that of Dr Ratnayake who was of the opinion that Ms Alievska’s psychiatric condition is not permanent and could be adequately treated if Ms Alievska had the desire and will to do so. Whilst not dismissing the opinion of Dr Conron, it is relevant that he is her treating psychiatrist and as such, is concerned with supporting his patient.
27. Irrespective of the question of whether or not Ms Alievska suffers from any permanent physical or psychiatric impairment, I cannot be satisfied on the balance of probabilities that any physical or mental condition is the result of the accident in February 1996. I am satisfied that the accident involved a relatively minor rear-end collision and the majority of medical evidence points to a possibility of some upper body soft tissue injury which would have resolved in a relatively short period measured in days or weeks. I am satisfied also that the September 1996 accident was a more serious accident which is more likely to have caused injury or aggravated any residue of the prior injury. It would appear that this was recognised in 1997 by Ms Alievska and her then legal advisor, as she agreed with the respondent that the effects of the February 1996 accident had ceased by 31 July 1996. As far as her psychiatric condition is concerned, there were far more serious personal problems such as her husband’s unfaithfulness and their subsequent separation and her estrangement from her sister. In this regard it is noted that in a report of Dr Williams of 6 February 1996 following an examination of Ms Alievska on 29 January 1996. Dr Williams observes that Ms Alievska had considerable worries in her everyday life.
28. It is appropriate to comment on the claim for headaches, DVT of the right leg and pulmonary embolism. It is clear that Ms Alievska suffered from serious headaches well prior to the February 1996 accident and had been referred to specialists for that condition. In relation to the DVT and pulmonary embolism, the only possible connection sought to be raised to the February 1996 accident was a hypothesis that the blood clot could have been caused by inactivity resulting from physical pain. While I accept the argument that no previous claim had been made for these three conditions, it is unnecessary to consider it, as I am satisfied that there is no probability that these conditions are connected to a work‑related injury or incident. It is noted also, that much of the evidence referred to alleged problems with the neck, shoulders and arms but no claims in respect of these conditions were made. In any event, my views would be the same. It is not clear how these conditions became part of the reviewable decision when they were not included in the original claim. However, given my findings, nothing turns on this question.
29. It follows from the foregoing that the decision under review should be affirmed.
I certify that the twenty‑nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. Pascoe, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 23 ‑ 24 May 2005, 24 ‑ 26 August 2005
Date of Decision: 30 November 2005
Counsel for applicant: Ms A. Malpas
Solicitor for applicant Mulcahy, Mendelson & Round
Counsel for respondent: Mr J. Lenczner
Solicitor for respondent: Blake Dawson Waldron
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