Anthony Lord and Asciano Services Pty Ltd
[2012] AATA 545
•22 August 2012
[2012] AATA 545
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1267 & 3206
Re
Anthony Lord
APPLICANT
And
Asciano Services Pty Ltd
RESPONDENT
DECISION
Tribunal M D Allen, Senior Member
Dr M Couch, MemberDate 22 August 2012 Place Sydney The reviewable decisions are set aside and in lieu thereof the Tribunal substitutes its decision namely that the Respondent is liable pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988 to pay compensation to the Applicant for the injuries of Aggravation of Osteoarthritis Left Shoulder, Cervical and Lumbar Spondylosis, Facet Joint Degenerative Disease and Chronic Adjustment Disorder with Depressed Mood.
The Respondent is to pay the Applicant's costs.
..........[sgd]........................................................
M D Allen, Senior Member
CATCHWORDS
WORKERS' COMPENSATION - Whether Applicant had ongoing pain from work injuries or was malingering - Did Applicant suffer a psychiatric illness or was functioning within normal range - Decisions under review set aside.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988, s 16, 19, 29 and 39
REASONS FOR DECISION
M D Allen, Senior Member
Dr M Couch, Member
In this matter the Applicant sought review of two “Reviewable Decisions” made by the Respondent namely.
i.Matter No. 2011/1267 which sought review of a reviewable decision affirming a prior determination to cease liability pursuant to the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the injury described as “left rotator cuff strain” incurred on 23 February 2009, and the injuries described as “neck and back strain, scalp cut and shoulder strain” incurred on 10 July 2009.
ii.Matter No. 2011/3206 which sought review of a reviewable decision affirming a prior determination to reject liability to pay compensation for the injury described as “adjustment disorder, depression, stress and anxiety.”
The fact of injury occurring on the dates specified above was not disputed in these proceedings.
According to the Applicant’s evidence on the evening of 23 February 2009 he was working as a shunter at the Respondent’s Chullora terminal. In the course of his duties he had to manually turn a spindle to release a handbrake on a railway wagon. As he did so he felt a sharp pain like a tear in his left shoulder.
The second lot of injuries were incurred on 10 July 2009. The Applicant was descending from a crane by a ladder when his right shoulder gave way and he fell two to three metres to the ground. He fell heavily on his lower back and hit the back of his head.
Following his fall from the ladder the Applicant was unconscious for a period and was taken to Westmead Hospital. At that hospital he was examined and scans were taken. He recollects morphine being administered to him. He was released from hospital that evening.
On 23 February 2009 the Applicant reported his injuries to his shift manager. After initial treatment by paramedics, he was sent home with instructions to consult the Respondent’s nominated medical practitioner, a Dr Barlow. This he did the next day.
Dr Barlow referred the Applicant to Dr Breit, orthopaedic surgeon, and also for physiotherapy. An MRI scan of his left shoulder was conducted on 7 May 2009.
The Applicant did not continue to consult Dr Barlow but consulted his own general practitioner, Dr Au-Yeung. He had minimal time off work and returned to work on light duties.
Dr Breit, in a report dated 19 May 2009 to Dr Barlow, opined:
This gentleman’s MRI shows a lot of pathology. There is significant glenohumeral arthritis with full thickness cartilage loss, glenoid osteophyte and cyst formation, labral damage and some loose bodies.
The loose bodies are not symptomatic and his major problem is the glenohumeral arthritis and frayed labrum.
This is a work related problem by way of aggravation of a pre-existing condition and at this time the aggravation has not ceased.
…
Employment is another significant issue. This gentleman has significant arthritis and no matter what the outcome of this event, he may not return to pre-injury duties … He is no longer suitable for manual labour. Office work would be fine, I have no problem with him using a forklift, driving cranes of other vehicles but he certainly cannot return to the heavy aspects of his current employment.”
Dr Tej Dugal in a report dated 17 June 2009 stated that the Applicant had undergone a cortisone injection in the left glenohumeral joint.
On 10 November 2009 Dr Breit carried out an arthroscopic debridement of the Applicant’s left shoulder. In a report to Dr Barlow dated 17 November 2009 Dr Breit stated:
Last week I carried out an arthroscopic debridement. The shoulder was not as bad as I had expected. It was mainly a soft tissue debriement and there were no loose bodies. His rotator cuff was intact but the articular surface, particularly the humeral head is badly damaged and quite friable.”
According to the Applicant, following surgery, his left shoulder became worse. Now he experiences pain in his left shoulder “just about every day”. He no longer has a full range of movement in his left shoulder.
The Applicant said that as a result of his second work accident he hurt his head, neck, both shoulders, his right hip and leg. He denied that prior to this accident he had ever suffered any problems with his head, neck, right shoulder, back or right leg.
As a result of his second work injuries the Applicant said that the following parts of his body are affected namely:
Head: He has been getting headaches, and experiences dizziness and being light headed when getting up. His headaches commence when his shoulders start to ache, the pain going into his neck then into his head. He estimates that he gets headaches twice to three times a week.
Right Shoulder: He experiences pain in the right shoulder joint every day. He does not now have a full range of movement in his right shoulder.
Lower Back: His pain has gradually become worse, compared with the months after the fall. The pain is worse in cold weather, after standing for 15 to 30 minutes or sitting between 15 to 30 minutes. He experiences numbness around his right buttock extending down the inside of his leg to the right knee.
Subsequent to the arthroscopy of his left shoulder the Applicant was cleared to return to work on light duties. This he did until March 2011 when the Respondent informed him that light duties were no longer available. The Applicant ceased work and has not worked since that time. In May 2011 he was granted the disability support pension.
On 27 July 2009 the Applicant was referred for psychological assessment by his general practitioner. Psychologist, Ms Truong, in a report dated 29 July 2009 stated:
“In my opinion, Mr Lord presented with symptoms of an Acute Stress Reaction (ASR) manifesting with dissociative, re-experiencing, avoidance and hyperarousal symptoms. According to the DSM-IV, ASR is a transient condition that develops in response to a traumatic event with the disturbance lasting anywhere from 2 days to 4 weeks of the traumatic event. The diagnosis of Post Traumatic Stress should be considered if symptoms are still evident after four weeks. I believe his psychological condition is primarily due to his work related accident on 10/7/09.
Mr Lord appeared to have significant difficulties adapting to his physical condition and is also exhibited (sic) symptoms of Major Depression manifested in his severely depressed mood, irritability, anger and disturbed sleep, and Anxiety in his ruminative worries.
Following the report of Ms Truong the Applicant was prescribed antidepressants. His general practitioner also referred him to a neurologist, Dr Rail, who on 19 August 2009 noted that the Applicant was having physiotherapy and was on anti-depressants but stated that the Applicant’s EEG showed “nothing categoric”.
At the request of the Respondent the Applicant was examined by neurologist Dr O’Sullivan on 18 September 2009. In his report of 24 September 2009 Dr O’Sullivan opined:
The diagnosis is soft tissue injury to lumbosacral region causing back pain and pain down his right leg, which does not follow any particular dermatome, and is not associated with any significant organic pathology coming from his lumbosacral spine. In addition, he sustained soft tissue injury to the cervical region, which has caused him to develop some cervico-genic headaches.
…
The symptomatology he complains of is consistent with the history of the accident. I do think there is some elaboration in his symptoms and signs related to his depression. There appears to be some inconsistencies in his presentation in that he seemed to be able to walk when leaving my surgery, far better than when I observed him in my surgery. Also, he could walk quite freely, yet he could not lift either leg off the bed, which is not compatible with somebody being able to walk.
An MRI of the Applicant’s lumbar spine was carried out on 29 September 2009. The radiologist reported that no discrete neurological encroachment or disc protrusion was defined. On 14 October 2009 Dr Rail commented that the MRI scan had not shown anything significant. In a report dated 18 November 2009 Dr Rail stated that the Applicant’s back pain was caused by a paravertebral muscle spasm, but that he expected him to return to his pre-injury state in the “next couple of months”.
On 8 February 2010 Dr Rail wrote to the Applicant’s general practitioner stating that the Applicant continued to suffer pain through his back and legs, and that there was little further he could offer from a neurological point of view. He recommended referral to a pain management specialist.
Dr McGroder, occupational health physician, examined the Applicant at the request of the Respondent on 13 April 2010. In his report of that day Dr McGroder opined that the Applicant’s physical findings on examination were consistent with the history of the accident (sic) and that the Applicant had a five kg lifting limit but only if done at waist height. He stated that the Applicant would remain considerably symptomatic for a considerable period of time. He said that he was currently unfit for his pre-injury duties, and that whether he would ever return to those duties was problematical
A MRI examination of the Applicant’s cervical spine was undertaken on 6 May 2010. It demonstrated a small right posterolateral disc protrusion with adjacent osteophyte development, causing encroachment on the right anterolateral aspect of the theca and the cord, at the C5/C6 level, and at the C6/C7 level a right lateral bulging of the disc annulus without encroachment on the right C7 nerve root. Commenting on these findings, neurosurgeon Dr McKechnie on 2 June 2010 stated he would not recommend a surgical intervention, but that he had commenced the Applicant on Lyrica to see if it improved the neuropathic component of his pain.
The Applicant was again examined by Dr McGroder on 9 August 2010. In his report of that date Dr McGroder stated that the Applicant displayed significant restriction of range of movement and tenderness to light touch out of proportion to any underlying pathology. He opined that the overall diagnosis was that of abnormal pain behaviour.
Dr McGroder completed his report by stating that while there was no objective evidence of a condition that would suggest that the Applicant was unfit for work, he would never upgrade to a realistic rehabilitation programme or return to pre-injury duties.
In a further report dated 23 August 2010 Dr McGroder stated:
The fact that he has had shoulder surgery would suggest that he will not be returning to full pre-injury duties. He alleges significant symptoms involving his shoulder and whilst these cannot be quantified the fact that surgery has been carried out would exclude significant use of the left arm which was required as part of his pre-injury duties.
He is however, even allowing for his widespread subjective symptoms, fit for selected duties as outlined in Question 6. Under these circumstances the aim of rehabilitation should be to return to work with the same employer but on an alternate job depending on whether or not this is something that is available for him within the restrictions outlined in that section. It would appear clear from Mr Lord’s history so far that his symptoms will not change and this led to my comment with regard to a realistic rehabilitation program. Mr Lord is fit from a physical point of view to return to a rehabilitation program but I feel that barriers will be placed in front of his rehabilitation progress on an ongoing basis and this led to my comments with regard to whether or not the rehabilitation plan would be realistic. If he were well motivated he could return to full time alternate duties.
A psychological assessment of the Applicant was carried out by psychologist Dr McMahon on 6 September 2010. As a result of the tests carried out by him, Dr McMahon stated that the Applicant met the DSM-IV criteria for the diagnosis of Chronic Pain Associated with Both Psychological Factors and General Medical Condition adding:
There was clear and unambiguous evidence on psychometric testing of efforts to appear overly symptomatic, there was a medicolegal context, a marked discrepancy between Mr. Lord’s claimed stress and disability relative to objective evidence on examination, and external incentive by way of avoidance of work and other responsibilities. Therefore (Malingering(V65.2)) was coded on Axis I.”
The Applicant was examined at the request of the Respondent on 4 November 2010 by Dr Maxwell, orthopaedic surgeon. After examining the Applicant, and viewing imaging relating to the Applicant, Dr Maxwell opined:
Diagnosis – I belive he may have had an aggravation of the underlying arthritic changes of his left shoulder at the time of the alleged twisting incident in February 2009. I believe he may have sustained some soft tissue contusions when he fell. There is no evidence that he sustained a significant structural injury. I do not believe there is any evidence that he has any significant pathology in relation to his right hip. There is evidence of modified pain behaviour and evidence of fabrication of the physical signs.
Return to work – I do not believe there is any current relation between his symptoms and the alleged work related injuries. I do not believe the symptoms should prevent a return to work on sustainable duties and a rapid upgrading.
Dr Maxwell added:
I believe he needs to return to work for his mental status as he is becoming extremely depressed while not working. His wife has previously described him as a “workaholic”. He is now depressed from not working. Continuing to prevent him from returning to work I consider is causing significant psychological harm. There is no evidence that physical activity would be harmful from a physical prospective.
A further report dated 7 January 2011 was obtained from Dr Maxwell. In that report Dr Maxwell stated that he agreed with Dr Breit, that the Applicant did have osteoarthritis in his left shoulder and that it was pre-existing. He did however express the opinion that there was no benefit in reducing stress on a damaged joint, and that “There is no evidence that restricting physical activity increases degenerative change or in fact shortens of the time needed for a shoulder replacement”.
On the basis of the reports of Dr Maxwell and psychologist Dr McMahon the Respondent ceased liability in respect of the Applicant’s physical injuries with effect from 18 January 2011.
As stated above on 29 July 2009 psychologist Ms Truong had reported that the Applicant suffered from an acute stress reaction and symptoms of a major depression.
Because the Applicant’s depression continued he was referred for further psychological assessment. Psychologist Mr Lopez, after noting the earlier referral and report of Ms Truong of 29 July 2009, carried out psychometric assessments of the Applicant. He found that the assessments indicated that the Applicant was suffering from extremely severe levels of stress, anxiety and depression. He concluded his report by stating:
Mr Lord’s mental state is a consequence of his ongoing chronic pain and associated physical restrictions and it will take some time before he can fully implement the necessary cognitive skills to readjust. He feels worthless and consequently will need to develop a renewed confidence in himself and in his capacity to try something new and accept the changes that have arisen in his life.
The Applicant was then referred by his general practitioner to psychiatrist Dr Tsang. In a report dated 6 August 2010 Dr Tsang opined that the Applicant was suffering from an adjustment disorder with depressed and angry mood disturbances as a result of his pain and disabilities from work-related injuries.
On 31 May 2011 the Applicant made a claim for worker’s compensation for the condition described as “adjustment disorder with depressed mood and angry mood disturbances, depression stress and anxiety.”
Following the receipt of that claim the Applicant was again referred to Dr McMahon by the Respondent. In his report of 29 June 2011 Dr McMahon again repeats his earlier opinion that the Applicant is malingering.
For the purposes of these proceedings, the Applicant was examined by psychiatrist Dr Champion. In his report of 4 October 2011 Dr Champion opined that the Applicant was not suffering from any psychiatric illness as opposed to being unhappy because of lack of employment and degenerative pain.
In particular, given criticisms made by Dr Tsang, Dr Champion stated that he regarded the psychometric testing carried out by Dr McMahon as being appropriate, objective and comprehensive.
Dr Champion gave evidence in these proceedings and was cross-examined. Dr Champion again stated that in his opinion the Applicant’s presentation was in keeping with events rather than an abnormal reaction, and that his symptoms were consistent with the situation in which the Applicant found himself.
Dr Champion did concede however that when he saw the Applicant he was and had been taking anti-depressant medication.
Dr Tsang adhered to his diagnosis of an adjustment disorder with associated depression when giving evidence in these proceedings. He added to his prior criticisms of Dr McMahon’s testing by stating that the tests had to be validated against the population from which the subject was drawn. In addition, he pointed to the change in the Applicant from a person who had been an active person, described by his family as a workaholic and who had a good relationship with his partner and children, to one who was now unsociable, ill-tempered and prone to spend long periods alone in his shed.
The history described above by Dr Tsang was corroborated by the Applicant’s partner and his eldest child. Ms Evans, the Applicant’s partner of 21 years, stated that before his accidents the Applicant spent a lot of time at work and that he loved his job and providing for his family. He was involved with his children and their sporting activities and was a loving husband and devoted father. Since his accidents he had become very angry and moody and always seemed to be in a bad mood. The Applicant has closed himself off from the family and now spends a lot of time sitting alone in the garage. He barely talks to his partner and the Applicant sleeps in the garage apart from his partner. According to Ms Evans the relationship between her and the Applicant has got to the point where it barely exists.
Similar evidence as to a total change in the Applicant’s attitude to work and his family was given by his eldest son and a former work mate Mr Grey. In particular Mr Grey in a statement, which was admitted without challenge, stated that the Applicant had been a hard working employee who would always give 100 per cent, and was always willing to work overtime when required.
More telling was the evidence of the Applicant’s general practitioner Dr Au-Yeung. After stating that the Applicant was a relatively non-complaining man who, if a condition went away, did not worry about it, he said that in this year the Applicant had been in a very bad state, depressed and turning inward, with effects upon his family relationships.
Dr Tsang in his reports has made trenchant criticism of the tests used by Dr McMahon, and we are not convinced of their validity in assessing a person of the Applicant’s background. This being said, we do accept that the Applicant is exhibiting pain behaviour.
However, when the evidence of the Applicant and his family members is taken into account and more particularly the evidence of his general practitioner, we find that we are more persuaded by the opinion of Dr Tsang, supported as it is by the report of psychologists Ms Truong and Mr Lopez. We also note that when Dr Champion saw the Applicant he was on prescribed anti-depressants. We find that the Applicant continues to suffer from an ongoing chronic adjustment disorder with depressed mood caused by pain resulting from work injuries.
Rheumatologist Dr McGill examined the Applicant on 25 July 2011. In his report of that day he refers to the Applicant as being a poor historian and noted a disparity between his reported symptoms and pattern of behaviour on the one hand, and the lack of objective substantial abnormalities on examination and investigations.
Notwithstanding his reservations as to the Applicant’s presentation, Dr McGill in his report noted that the Applicant had bilateral shoulder osteoarthritis. As to the Applicant’s complaint of back and neck pain Dr McGill opined:
The injury he suffered in May 2009 would have likely caused head injury and a soft tissue strain of the neck and low back. The sensitive imaging studies that he had performed indicated that he did not suffer a disc protrusion nor is there evidence that he suffered any other substantial persisting soft tissue injury. I think the duration of the effect of the fall in May 2009 was probably in the order of three months, but it could conceivably have taken six months for his neck and low back to return to the pre-injury state.
The Respondent adduced in evidence a compact disc (CD) showing the Applicant carrying out various activities. This CD was also shown to Dr McGill and he stated that the images as observed on that CD were inconsistent with his examination of the Applicant.
We also observed the CD and find that the actions performed by the Applicant are more fluid than he claims to be able to perform, and the CD corroborates the opinions that refer to the Applicant engaging in what was described as illness behaviour.
Notwithstanding this finding, Dr McGill did accept that the Applicant did have a pre-existing osteoarthritis of the shoulders but, in his opinion, the injury of 23 February 2009 should have resolved. Cross-examined Dr McGill’s opinion was that the Applicant continues to suffer pain in his left shoulder from osteoarthritis but not from the accident. Dr McGill accepted that it was likely that the event of 23 February 2009 exacerbated the Applicant’s symptoms so that he became aware of those symptoms.
So far as the fall on 10 July 2009 is concerned Dr McGill accepted that it caused injury to the Applicant’s cervical spine, but stated that that injury had now resolved, and the state of the Applicant’s cervical spine was now the same as if the fall had not occurred.
So far as the Applicant’s lower back is concerned, Dr McGill stated that the Applicant has a relatively mild degree of degenerative change in his lumbar spine and that, when he saw the Applicant, the reporting and behaviour was not consistent with the radiology.
In evidence to the Tribunal Dr Maxwell, while stating that there is now pathology in the Applicant’s left shoulder which could cause pain to the level the Applicant describes, rejected the suggestion that the incident of 23 February 2009 could have caused pathological change. In his opinion at that time the Applicant already had degenerative changes in his left shoulder, and the symptoms were occasioned by that degenerative change.
Cross-examined Dr Maxwell conceded that shoulder osteoarthritis can remain asymptomatic for years, and that the Applicant may well have remained asymptomatic. Pressed regarding the Applicant’s lower back, Dr Maxwell reiterated his opinion that there was nothing wrong with the Applicant’s lower back. We note that this opinion is contrary to that of Dr McGill, who accepts that the Applicant does have a degree of degenerative change in the lower back, albeit relatively mild.
Rheumatologist Dr Reiter examined the Applicant at the request of his solicitors on 7 February 2012. In her report of that day Dr Reiter opined that the Applicant held the following conditions namely:
1. Left shoulder osteoarthritis, exacerbated by his injury on 23 February 2009. His left shoulder Osteoarthritis is a pre-existing condition, which is not work-related, but it has been exacerbated by the work-related injury of 23 February 2009.
2. Cervical and Lumbar Spondylosis and Facet Joint Degenerative Disease, with referred pain into his right hip and thigh area, exacerbated by the fall on 10 July 2009. His Cervical and Lumbar Spondylosis and Facet Joint Degenerative Disease are pre-existing conditions, which is not work-related, but it has been exacerbated by the work-related injury on 10 July 2009.
Dr Reiter disagreed with Dr Maxwell’s opinion that the Applicant should be upgraded to pre-injury duties. She would impose restrictions of no lifting greater than five kilograms, no lifting his left arm above shoulder height and no sitting, standing or walking greater than 30 minutes continuously.
Discussing the reports of other medical practitioners who had examined the Applicant, Dr Reiter agreed with Dr Breit’s opinions expressed in his report of 14 July 2011, and agreed with Dr McGroder’s opinion regarding the Applicant displaying significant restriction of range of movement, and tenderness to light touch which was out of proportion to any underlying pathology.
Whilst agreeing with Dr McGroder’s opinion regarding pain behaviour, Dr Reiter took issue with Dr McGill’s opinion, that the incident of 23 February did not cause a permanent aggravation or acceleration of osteoarthritic changes in the Applicant’s left shoulder. She also disagreed with Dr McGill regarding the presence of pain and disability due to an aggravation of the Applicant’s underlying condition of cervical and lumbar degenerative disc and joint disease, as a result of the fall on 10 July 2009.
Dr Reiter was cross-examined regarding her report. She stated that as regards the Applicant’s right shoulder, if he had experienced pain for six months prior to injuring that shoulder in the fall of July 2009, she would agree with Dr McGill’s opinion of pre-existing degenerative osteoarthritis. Questioned regarding the Applicant’s left shoulder, she stated that on surgery all that had been shown was an osteoarthritic joint that was becoming worse over time.
Questioned by the Tribunal as to where she and Dr McGill differed, Dr Reiter stated that you treat patients not x-rays and that, as regards trauma to joints, she has seen patients who have not recovered from trauma. She remained of the opinion that the fall on 10 July 2009 could have made minor degenerative changes in the Applicant’s spine symptomatic. More significantly she pointed out that in her experience genuine symptoms can co-exist with ove- restriction of range of movement and pain behaviour.
In her report of 7 February 2012 Dr Reiter stated she agreed with Dr Breit’s opinion in his report of 14 July 2011. In that report Dr Breit opined that the Applicant’s incapacities are due to permanent aggravation of his pre-existing conditions involving the cervical spine, the lumbar spine and the right shoulder. He was totally opposed to Dr Maxwell’s opinion that work was good for the Applicant’s shoulder and that he could return to manual labour.
Addressing Dr Maxwell’s opinion that the Applicant exhibited abnormal illness behaviour, Dr Breit commented that that was not the case when he originally saw the Applicant with respect to his left shoulder. He stated that when he saw the Applicant on 14 July 2011, the Applicant was depressed and the degree of restriction of movement was greater than he would have expected, but pointed out that the Applicant may have intercurrent psychological issues.
In evidence Dr Breit again rejected Dr Maxwell’s conclusions, stating that the Applicant should keep using the joint but realistically, and referred to Dr McGroder’s opinion, that the Applicant could work only on restricted conditions.
Questioned by the Tribunal Dr Breit stated that the February 2009 injury was caused by the exertion of a quite strong force. As to the Applicant’s complaints of ongoing pain, he stated that a very common effect of trauma can be that symptoms persist without any explanation. He also confirmed that it is possible to have x-ray changes without symptoms.
So far as the Applicant’s right shoulder is concerned, there is in the clinical notes of Dr Au-Yeung a notation dated 3 July 2006 that the Applicant had noticed a “click” in his right shoulder on and off for six months after straining his shoulder, and that the Applicant was prescribed anti-inflammatories. According to Dr Au-Yeung’s evidence the Applicant was referred for investigations regarding his right shoulder but did not go. There is however evidence of an x-ray of the Applicant’s right shoulder taken on 16 January 2006. We are satisfied that these symptoms, which led to the Applicant seeking medical attention, were symptoms of degenerative arthritis in his right shoulder. As Dr Reiter stated in evidence, if the Applicant had symptoms in his right shoulder for six months prior to injury, she would agree with Dr McGill’s opinion that the osteoarthritis of the shoulder was constitutional.
There is no evidence of the Applicant experiencing any symptoms of osteoarthritis in his left shoulder prior to the injury on 23 February 2009. It seems to us therefore that, unlike the Applicant’s right shoulder, it was the work injury that caused a hitherto asymptomatic osteoarthritis in the Applicant’s left shoulder to become symptomatic.
The Respondent submits that the Applicant, although receiving injuries in the two workplace accidents, is now exaggerating his symptoms as manifested by his pain behaviour, which behaviour has been commented upon by medical experts called by both parties to the proceedings. In addition, the Respondent submits that any pain the Applicant might now be experiencing is as a result of pre-injury degenerative changes and any pain and suffering as a result of his work injuries has now ceased.
For his part, the Applicant maintains that he has continued to suffer pain as a result of his work injuries and that this in turn has led to psychiatric illness.
Dr McMahon as a result of his psychometric testing concluded that the Applicant was malingering. DSM-IV relied upon by Dr McMahon defines malingering as “the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as … obtaining financial compensation”.
It is difficult to ascertain what the Applicant would gain by intentionally producing false symptoms of injury.
The Applicant stated that prior to the injury he worked long hours and welcomed overtime. Obviously any award for lost income under s 19 of the SRC Act would be less than the Applicant was able to earn in employment.
His wife, son and a workmate have given evidence that the Applicant was a person who liked being at work and had a strong work ethic. More telling is that his family members and his general practitioner speak of a total change in mood by the Applicant following his work injuries.
Having seen and heard the Applicant give evidence and be cross-examined, we are satisfied that, although he indulges in what has been described by experts called in this matter as “pain behaviour”, the Applicant does still suffer pain as a result of his work accidents. It follows therefore that we accept the opinions of Drs Breit and Reiter, that the Applicant is one of those persons who is outside the norm in that whereas pain might have been expected to resolve, in his case it has not. This ongoing pain has led to psychiatric illness as diagnosed by Dr Tsang.
For completeness sake we would mention evidence of a prior fall suffered by the Applicant in May 2005. We do not consider that this event played any part in his subsequent ongoing pain from work injuries.
As we accept the opinions of Drs Tsang, Breit and Reiter it follows that the decisions under review should be set aside. In lieu of those decisions the Tribunal substitutes its own decision namely that the Respondent is liable, pursuant to the provisions of the SRC Act, to pay compensation to the Applicant for the injuries of aggravation of osteoarthritis left shoulder, cervical and lumbar spondylosis, facet joint degenerative disease and chronic adjustment disorder with depressed mood.
There was no material placed before us to suggest that the Respondent should not pay the Applicant’s costs in these proceedings.
76. I certify that the preceding 75 paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member and Dr M Couch, Member.
...........[sgd].............................................................
Associate
Dated 22 August 2012
Dates of hearing 4, 5 and 6 July 2012 Counsel for the Applicant
Solicitors for the Applicant
Mr G Smith
Burke Elphick & Mead
Counsel for the Respondent
Solicitors for the Respondent
Mr D Richards
HBA Legal
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