Arnephy and Telstra Corporation Limited
[2005] AATA 1175
•29 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1175ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1199
Nº V2004/312
GENERAL ADMINISTRATIVE DIVISION
Re: PAULA ANNE ARNEPHY
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Regina Perton, Member
Date:29 November 2005
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and substitutes decisions to reinstate the applicant’s entitlements to compensation benefits from 9 February 2004 and to psychological treatment from 11 July 2002. The respondent is to pay the applicant’s costs.
.
(sgd) Regina Perton
Member
COMPENSATION - spider bite – chronic regional pain syndrome - whether incapacity to work – whether incapacity due to workplace injury - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14, 16, 19
REASONS FOR DECISION
29 November 2005 Regina Perton, Member
1. Paula Anne Arnephy (the applicant) was at work as a sales consultant for Telstra Corporation Limited (the respondent) on 2 July 2001 when she was bitten on the hand by an insect, presumed to be a white tail spider. Within minutes, her dominant right hand was swollen, red and itchy. She reported the injury to her supervisor and sought medical treatment. She returned to work on modified duties for a few months but has not worked at all since January 2002.
2. The applicant has been assessed and/or treated by a large number of health professionals following the injury. Several practitioners have diagnosed her as suffering from chronic regional pain syndrome. She has also been treated for the consequential effects of her prescribed medication, which includes morphine. She has also obtained psychological treatment.
3. On 3 August 2001, the applicant submitted a claim for compensation. On 6 August 2001, the respondent accepted liability to pay compensation in respect of spider bite to R [right] hand/wrist. On 18 September 2001, the respondent determined that it was no longer liable to pay compensation for the injury from that date. In a reviewable decision dated 17 October 2001, the respondent varied the determination and stated that it was not liable to pay compensation for spider bite to R [right] hand/wrist and myofascial pain syndrome. The applicant lodged an application with the Tribunal seeking review of the decision (V2001/1463). On 22 January 2002, the respondent made a further determination on its own motion and stated that it continued to be liable to pay compensation for spider bite to right hand/wrist and for myofascial pain syndrome resulting from the injury.
4. On 11 July 2002, the respondent determined that it was not liable to pay compensation in respect of Psychological Counselling and treatment in relation to depression and emotions as a consequence of the applicant’s physical injuries. On 24 September 2002, the respondent affirmed the determination. On 6 November 2002, the applicant sought review of this decision by the Tribunal (V2002/1199).
5. On 9 February 2004, the respondent determined that it would cease liability to pay compensation to the applicant in respect of incapacity benefits and medical expenses with effect from that date. On 3 March 2004, the respondent affirmed the determination. On 10 March 2004, the applicant sought review of this decision by the Tribunal (V2004/312).
6. The Tribunal must decide whether the applicant is still entitled to the incapacity benefits and the other payments that have now ceased. In doing so, it needs to determine:
·Does the applicant have a medical condition or impairment that prevents her working for the respondent?
·If she does, is her condition a consequence of the work-related injury and/or the treatment she received for that injury?
·If so, should the respondent resume incapacity benefits and reimburse medical expenses?
·Should the respondent resume payment of compensation for psychological counselling and treatment?
7. The applicant and witnesses gave oral evidence at the hearing on 13 December 2004, 23 February 2005, 24 February 2005 and 25 February 2005. Mr M. Carey of counsel represented the applicant and Mr J. Ferwerda of counsel represented the respondent.
8. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T1-T59 and T1‑T10), plus 8 exhibits (Exhibits A1‑A8) lodged by the applicant and 10 exhibits (Exhibits R1-R10) lodged by the respondent.
RELEVANT LEGISLATION
9. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
10.Injury is defined in s 4(1) of the Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
11.Section 16 of the Act provides:
16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment
…
12. Section 19 of the Act sets out the manner of payment of an employee who is incapacitated for work as a result of an injury.
APPLICANT’S BACKGROUND
13. The applicant, who was born in Tasmania on 16 October 1969, commenced work with the respondent in about 1999. She was employed as a permanent part‑time sales consultant for 30 hours per week over 4 days. Her duties involved answering telephone calls for residential connections and operating a computer terminal.
14. The applicant completed her secondary schooling in 1987. She has three children born in June 1988, February 1992 and December 1994 respectively. The applicant’s first job was with the Commonwealth Bank where she commenced in 1989 working full-time. She took maternity leave at the time of her second child’s birth in early 1992. In July 1994, while she was pregnant with her third child, she was held-up at gunpoint while at work. The applicant took about two weeks leave from work and saw a psychologist regularly over the next eight months to assist her in dealing with the nightmares and flashbacks from the hold-up. She took maternity leave from October 1994 to April 1995. She resigned from the bank a month after her return. The applicant then remained at home with her children until the youngest started kindergarten. She started work with the respondent in 1999.
EVIDENCE
The applicant
15. The applicant provided a comprehensive written statement dated 13 December 2004 (Exhibit A1). According to that statement, on 2 July 2001, while at work, the applicant felt an itch on her right hand. There was a red mark on her right hand. Within a short time, the red mark spread and her hand became swollen. Her supervisor suggested she see a doctor near her workplace. The doctor gave her a medical certificate stating she was unfit for work due to a suspected insect bite on her hand. She returned to work briefly that day but went home soon after as she was in pain. During the afternoon, the pain and swelling became worse and she was taken to her usual medical clinic and she was seen by Dr Roth, the doctor on duty. She saw Dr Voon, her regular general practitioner, the next day Dr Voon referred her to the emergency department of the nearest public hospital. She was treated with antibiotics and Voltaren which had little effect. She was subsequently treated with intravenous antibiotics and was given a splint for her hand. She attended the hospital in the following days as the pain and swelling persisted. She was unable to work. She was given further medication that eased the swelling but not the pain.
16. With the problem persisting, Dr Voon referred the applicant to a rheumatologist, Dr Mark Patrick, whom she saw on 18 July 2001. By that time, the swelling had subsided. She was prescribed Zoloft and Tegretol. She saw Dr Patrick again, a week or two later, and he suggested she return to work but not use her right hand. The applicant resumed work for 6 hours per day, 3 days a week, assisting other staff as well as she could. She was seeing a physiotherapist three times each week but this did not provide long-term relief. The applicant was not satisfied with Dr Patrick’s response to her injury. In September 2001, she saw Dr Marie Feletar who diagnosed possible tenosynovitis and sent her for an ultrasound of her hand. She was eventually referred to Dr Peter Blombery, vascular physician. Dr Blombery prescribed Tegretol and Endep and performed a nerve block.
17. By December 2001, the applicant reduced her working hours to two days per week because of the increasing pain. She developed a rash on her right arm and right side of the body. She went into hospital for two days and was given morphine for the pain. She returned to work in mid‑January 2002 but only lasted two weeks and has not worked since then.
18. In early February 2002, Dr Blombery performed guanethidine blocks which helped for a time. The applicant was advised to continue on her medication. However, by March 2002, the swelling and pain returned. Dr Voon gave her pain‑killing morphine injections. She saw Dr Blombery again and he added Oxycotin to her medication. The applicant felt she was not getting any better and went to see Mr John McCaffery, a psychologist, for counselling. She had five sessions with him between 4 April 2002 and 27 June 2002. She believes the sessions helped her. She saw Mr McCaffery a few times in 2003 but the respondent did not reimburse her and an account of around $2000 remains outstanding.
19. The applicant saw Dr Voon frequently for morphine injections; but they proved insufficient and she took oral medication to assist with the pain. Dr Blombery put her on slow release morphine tablets, as well as Neurontin. By May 2002, the applicant developed severe constipation and was admitted to a private hospital for a five day stay. Dr Luke Crantock, a gastroenterologist, treated her for the constipation and associated her condition with the use of morphine. She continues to suffer from constipation and takes various medications as a result.
20. In June 2002, the applicant was referred to the Caulfield Pain Management Clinic, which she attended twice. She stated that she did not appreciate the clinic’s suggestions that she change her doctors and specialists and found its location inconvenient. She subsequently returned to her own doctors. In July 2002, the applicant was admitted to a private hospital for 10 days for a Lignocaine and Ketamine infusion. She experienced limited relief. After two months, her pain was as severe as it had been prior to the procedure. The applicant was also having physiotherapy three or four times per week. She also received some domestic assistance for two hours per week. By this time, the applicant was taking Neurontin, Tegretol, Oxycontin, Panadeine Forte, Mobic tablets and Valium.
21. In January 2003, the applicant’s condition worsened with ongoing pain and swelling of the right hand. She was admitted to hospital for four or five days. She saw Dr Blombery again and with treatment, her condition improved again. Between February and July 2003, things settled down somewhat. Some days were worse than others. She continued to receive assistance with domestic tasks. She also continued to take the medications prescribed including the oral morphine. In July 2003, the pain in her right hand and wrist worsened. Dr Voon gave her morphine injections every two to three weeks. The applicant went to see Mr McCaffery again for further counselling. She also went to see Dr Blombery again. He suggested another drug, Trileptal instead of Neurontin.
22. Over the Christmas-New Year period of 2003/2004, the applicant went on holidays with her family to Echuca. Her pain and swelling increased and she was admitted to Echuca Hospital for four to five days. After being discharged, she returned home. Dr Voon referred her to Dr Blombery again. By the time she saw him in February 2004, she felt better and was willing to try a return to work. However, her symptoms flared up again after that. Dr Voon would not clear her for work at that time due to the severity of her symptoms. She saw Dr Blombery again in March 2004 and he increased her medication.
23. In May 2004, the applicant developed regular episodes of blacking out. She saw Dr Simon Bower, a neurologist. The episodes are now less frequent, occurring when she is in pain or tired. She had a severe blackout in October 2004 which took some time to get over. In July 2004, the applicant saw Dr Clayton Thomas who is more conveniently located than Dr Blombery. The applicant was concerned that her medication might be causing the blackouts and decided to try easing down on the Trileptal. However, her pain then increased and she went back onto the medication. In August 2004, the applicant developed a rash over much of her body and went to see Dr Peter Briggs, a haematologist and to a dermatologist. They recommended various creams and antibiotics.
24. By November 2004, the applicant was taking a range of medication – Trileptal, MS Contin, Efexor, Prodaine, Mobicol, Durelax, Actilax, Microlax, Maxilon and antibiotic preparations.
25. The applicant now avoids driving except for short trips to the children’s school. Her husband does most of the driving. On good days she drives to the shops. She still has occasional blackouts and memory lapses. She does little around the house as she always feels tired. Her husband does most of the housework. She does not socialise much. She cannot work as she is scared of the blackouts which started in May 2004. Her medication makes her feel tired and unable to concentrate.
26. In oral evidence, the applicant initially said that she had not had any psychological or psychiatric treatment prior to 2001, except for the counselling sessions with Mr McCaffery for several months after the bank-hold up in 1994. She expressed the opinion that she had recovered from the after effects of the hold-up at that time. She said that prior to the spider bite, she had felt well and enjoyed work. She won employee awards and received good customer feedback. She said she was not on any medication, had no trouble with her stomach or bowels and was experiencing no emotional difficulties. After the bite, she resumed work fairly quickly on restricted duties as she could not use her right hand due to the pain. The applicant said that she went to see Mr McCaffery again because she was feeling depressed and could not cope at home.
27. The applicant said that her symptoms fluctuate and that she has good days and bad days. She stated that she did not know exactly what triggered the bad days although sometimes it was through use of her right arm. She described the medication she is still taking and the health setbacks she has experienced despite an expressed willingness to return to work. She said that her husband is now at home caring for her full-time. She said that on a good day she can cook, provided someone else chops the vegetables. On a good day she can also go to the shops or drive a car two or three kilometres to pick the children up from school. However, on a bad day she will spend the day in bed, unable to do anything much.
28. Under cross-examination the applicant indicated that the nerve blocks and physiotherapy had helped for a couple of months but then her condition deteriorated again. She said that for a little while the colour of her hand improved and she had some movement in her fingers. She said she still experiences pain when she uses her right hand too much. The applicant confirmed she is still taking all her medication, but said that she resisted an increase in her morphine intake. She stated she is still having morphine injections.
29. In relation to driving, the applicant said that she only picks the children up from school when her husband is unable to do so. She also drives to the supermarket about once a week. She said that she had not been told by Dr Voon that she should not drive. When asked if she had received an explanation of the effects of morphine on driving, the applicant said that the pharmacist had explained it makes one drowsy. She later qualified her comment, saying that Dr Voon had said not to drive after a morphine injection. The applicant said that she does not use public transport. In her area only a bus is available and it is not practical to use it. She was asked to comment on a letter from Dr Voon to GIO Insurance Company dated 5 August 2002 (T51), in which he stated that the applicant is unfit for driving or use of public transport because of the severe pain she is experiencing in her right arm and hand. She expressed surprise at the comment and said that she did not know he had written that. She stated that she had not discussed driving with Dr Blombery nor was she aware if he knew she drove to the supermarket.
30. The applicant was asked in detail about her knowledge of the effects of morphine. She stated that she would like to stop using morphine as she was concerned about becoming addicted, but that it seemed to help her. She said that she does not know if all the drugs she is taking are in fact helping her but she continues to take them daily. The applicant said that she had changed from Dr Blombery to Dr Thomas as she felt more comfortable with him.
31. The cross-examination was interrupted to view surveillance videotapes.
Surveillance tapes
32. The respondent produced surveillance videotapes. The filming took place on 30 September 2003, 2 October 2003, 27 October 2003 and 5 November 2003 (Exhibits R1‑R2). The tapes were shown during the applicant’s cross‑examination. The videotapes show the applicant driving her car to the service station and shopping centre with her children. The applicant’s right hand was bandaged on all days. She was observed smoking and carrying groceries with her right hand. Those groceries included a pack of eight small soft drink bottles which she transferred from her right hand to her left to put them away. She opened the car door using her left hand on one day and the right another. She used her left hand to operate the petrol pump, push the grocery trolley, tidy her hair and to express herself non-verbally. She held the steering wheel with both hands.
Applicant’s evidence after surveillance tapes
33. The applicant was cross-examined on the contents of the videotapes. She said that the shopping she was doing when filmed was a little shop rather than the larger undertook weekly. She said that she wears a crepe bandage to keep her hand warm. She said that it does not restrict her movement. She did not accept Mr Ferwerda’s suggestion that it was the bandage that limited her ability to use her right hand rather than her medical condition. The applicant said that she changed the bandage daily and that Dr Voon had suggested she wear it for warmth and to reduce swelling.
34. The applicant challenged Mr Ferwerda’s suggestion that she told her doctors in 2002 that she does not drive a car and said that she did not drive for most of 2002 although she resumed late that year. She said that she had used cab vouchers in 2001 to see medical specialists at Dr Voon’s direction. Mr Ferwerda referred to a report by Dr Norman Lewis, psychiatrist, dated 6 June 2002 (T44) in which he stated that the applicant had told him that she does chores around the house only with one hand; that she is taken shopping by a friend and that she cannot push a trolley with one hand. He suggested that the applicant had deliberately portrayed herself as incapacitated in relation to the use of her right hand when that was not the case. The applicant stated that she was incapacitated to that degree in 2001 and had told him that. In his report, Dr Lewis stated that the applicant had not seen a psychiatrist or psychologist prior to seeing Mr McCaffery in 2001 and that she had not suffered from post-natal depression. On being questioned on her lack of candour with Dr Lewis, the applicant conceded that she had not told Dr Lewis about being counselled after the bank hold-up.
35. The applicant stated that the activities she had undertaken on the videotapes were typical of what she could do on a good day during 2002 and 2003. Mr Ferwerda referred the applicant to various medical reports prepared during 2002 and 2003 in which the descriptions of her ability to use her hand contrasted with her activities on the videotapes and her earlier evidence of what she could do on those days. Amongst those was a report dated 23 June 2003 by Dr W.A. Kemp, consultant rheumatologist (T3). Dr Kemp, who had already been treating the applicant for some time, stated that the applicant …has had an apparently useless and painful right hand and arm for two years. The applicant responded that she was going through a bad period when Dr Kemp prepared the report. The applicant was also referred to a report of Dr Michael Epstein, consultant psychiatrist, dated 30 April 2003 (Exhibit A8), in which he stated that she had little use of her right hand and that she does not drive. The applicant responded that she was not able to use her right hand at that time. She could not recall telling Dr Epstein that she did not drive.
36. Mr Ferwerda also referred to the notes of Mr Ken Coles, rehabilitation consultant, who had noted on 27 October 2003 that the applicant had told him that she had no use of her right hand and could not drive (Exhibit R3). The applicant conceded that she may have said so but denied that she had lied as her condition did fluctuate. In re-examination, the applicant stated that she had spoken to Mr Coles three times in person but on numerous occasions by telephone. As well as her condition, they also discussed basketball and a range of other matters. The applicant said her condition fluctuated during the different periods she spoke to Mr Coles. She could not recall the exact conversations.
37. Mr Ferwerda referred to a number of personal and medical stressors experienced by the applicant as well as the bank hold-up. These included post-natal depression (for which the applicant eventually admitted that she had significant psychiatric help), a cancer scare and the pregnancy of her 15-year-old, then schoolgirl, daughter. The applicant suggested that the cancer scare was very brief, that she was happy about her daughter’s baby and that she had not thought to mention the post-natal depression to every examining medical practitioner.
38. The applicant indicated that since February 2004, when her payments ceased, she and her husband were required to meet the cost of her medication, which was over $1000 per month. She said that her husband has now left the workforce and is on a carer’s pension. She is also on a Centrelink benefit and the cost of the medicine is met through her health care card.
Dr Blombery
39. Dr Blombery provided a written report dated 24 September 2004 (Exhibit A2). The Tribunal also had before it earlier reports and letters he prepared during 2002. In the report of 24 September 2004, Dr Blombery, who re-examined the applicant on 11 September 2004, provided a history of her condition during various consultations. He described the medication prescribed and treatments undertaken. His final opinion was as follows:
…
Mrs Arnephy, when I last saw her, had ongoing features of complex regional pain syndrome type 1 affecting the right hand and wrist. The symptoms fluctuated in severity quite markedly and improved significantly from time to time. There was then often an increase in the severity of pain which persisted for a period of time. This fluctuation in the severity of symptoms has characterised the course of her problem over the past two to three years. When I have seen her, her hand has been variably functional. On the most recent occasion, she had very poor function of the hand but I have seen her on previous occasions with much better function of the hand and this correlates her descriptions of the severity of the symptoms.
In regard to the surveillance report of Maurice Kerrigan and Associates, I note that the first surveillance was done in late September and early October 2003. It is of note that I saw her on the 28th October 2003. Looking at my notes on that occasion, she said her symptoms had flared up about 3 weeks beforehand, i.e. about the 7th October. She said that prior to that, she had been good for a…time when the surveillance was recorded. Even when the surveillance was recorded, it was noted that she wore a bandage on her right wrist. It is then noted in the report of the 17th November 2003 a surveillance was conducted on 27th October, that on page 2 "the claimant was seen to move with obvious restriction limiting the use of her right wrist, which was bandaged at all times". This correlates with the deterioration noted on examination.
There may be some functional amplification of her symptoms when she sees doctors but as I stated above, I noted that her symptoms did fluctuate quite markedly from time to time. I feel that the findings on the surveillance video are not inconsistent with my observations on examination around the same time.
In regard to your particular questions:
a)whether the effects of the condition you previously diagnosed are continuing? - Yes
b)whether the condition is such that it would benefit from further medication and/or active medical treatment – yes. She will require ongoing overall management of chronic pain including the medications that she has been currently prescribed.
c)Whether condition continues to result in a reduced capacity for employment – it is my opinion that her capacity for employment continues to be reduced. When she is not having a flare up of pain, she may be able to perform light duties using her left hand but when she has quite severe pain, she would not be able to work at all. It would be difficult for an employer to employ a person on this basis, where she would be present for some period of time and absent for other periods of time in an unpredictable manner. Effectively therefore she appears to be unfit for any form of employment.
My opinion in regard to this has not significantly changed by the surveillance report.
…
40. In his oral evidence, Dr Blombery indicated that he has been practising as a consultant physician for about 30 years. He first saw the applicant on 4 December 2001 and treated her up until 2004. He confirmed his diagnosis as complex regional pain syndrome, type 1, and described its characteristics. He stated that after a trauma, which may be minor to major, the actual underlying condition heals or settles down but the patient has ongoing pain. The person also experiences changes in temperature and colour, and often experiences sweating or swelling of the affected part as well as the ongoing pain. He indicated that it is common for the condition to fluctuate. He also indicated that if a person is treated within the first two months or so of the onset of the complex regional pain syndrome, the symptoms resolve; but that in those situations, such as the applicant’s, where the treatment starts late, a hard core of patients may prove more resistant to treatment; and the success rate was less than 50 per cent. He also indicated that some patients, however, responded to later treatment and it was worthwhile continuing to treat them with various nerve blocks or other procedures.
41. Dr Blombery described in detail the treatments the applicant had undertaken and the fluctuation in her condition. He said that when the applicant was feeling better she did not come in for appointments. She would see him when her condition deteriorated, generally after a call from Dr Voon saying that the applicant was having a lot of morphine injections. Dr Blombery said that the applicant would have been able to use her arm to a moderate degree when she was in an improved period. However, the use of the arm could then be the cause of a subsequent flare-up. He said that the applicant would have been able to drive during her better periods.
42. Dr Blombery indicated that the applicant was taking slow release morphine tablets; and that most persons who became used to this medication would be able to drive quite safely. It was a different situation if a person was suddenly given a dose without having taken it for a time.
43. As to the bandage, Dr Blombery said that bandaging and holding her hand immobile in front of her was commonly seen in a person with a chronic pain problem in her hand. It was as if she was guarding the hand.
44. In relation to the applicant's psychological well-being, Dr Blombery said that almost all patients with chronic pain for a few months developed a secondary depression and anxiety for which treatment by an appropriately qualified professional was required. That depression also exacerbates the pain felt by the patient.
45. Under cross-examination Dr Blombery stated that there is evidence that the applicant has an organic condition namely sensitisation of her pain nerve pathways, changes in temperature and colour of her hand, caused by over activity of the sympathetic nerves. He acknowledged that her condition was not typical of chronic regional pain syndrome, in that changes in colour at the back of her hand were somewhat unusual and so was the localised hard swelling there. However, he said that her other symptoms were typical.
46. Mr Ferwerda asked Dr Blombery if other stressors, rather than the spider bite, may have caused the reaction. Mr Ferwerda indicated that the applicant had expressed a concern to a hand therapist in November or December 2001 about lumps on her body that could be cancerous. Dr Blombery acknowledged that other stressors could make pain worse. However, he noted that the applicant had not been in any pain prior to the bite. He also stated that psychological profiles done on persons suffering from the same condition as the applicant showed no evidence of any pre-existing psychopathology in any of the sufferers. Depression occurred afterwards. There was considerable discussion on the impact of other stressors and the need for a multi‑faceted medical approach.
47. Dr Blombery said that he prescribed anti-depressants for the applicant in December 2001. He said that they were prescribed for pain rather than for treatment of depression. Dr Blombery said that he dealt only with the area in which he practised. Referrals for psychiatric assistance were the province of her general practitioner, Dr Voon. He concurred with Mr Ferwerda’s comments that the psychological state of a person can affect pain levels. However, he disagreed that her possible concerns about cancer may have explained her presentation to him, stating that the applicant has an underlying condition.
48. Mr Ferwerda questioned Dr Blombery about the degree to which a person can induce symptoms such as a change of colour or coldness of the hand and whether he had concerns about the possibility of lumps on her hand being self-inflicted. Dr Blombery confirmed that in around January 2003, he had expressed that concern to Dr Voon. He also conceded that he, like other doctors, was reliant on a patient telling the truth. He stated that the blueness and coldness of the applicant’s hand would not be something that could be entirely self-induced. He stated that such coldness and mottling of the hand does not arise due to immobilisation alone. He confirmed that sometimes he would not see the applicant for months at a time but that it was not unusual for there to be fluctuations. He said that her hand was always bandaged and acknowledged that this could be part of her reaction to the pain syndrome. He also conceded that it was possible that the bandaging could have a negative effect on the applicant.
49. In relation to the applicant’s use of morphine, Dr Blombery concurred with Mr Ferwerda’s comment that she appeared to be dependent on its use. He indicated that Dr Voon provided the morphine injections. He stated that the amount that the applicant was taking orally was a moderate dose. He also indicated that he had no record of what caused her symptoms to flare up but said that there could be many causes. In response to questions as to whether he had asked the applicant if she could do a range of activities including driving, he said he had not asked anything specific but that he would not have been surprised if she was driving.
50. As for the surveillance tapes, Dr Blombery said that he was not surprised that she engaged in the activities shown as he only saw the applicant when her condition was exacerbated. He also indicated that the applicant had not told him that she did the shopping, drove the car or had any personal problems. He said that issues relating to stress were not his province and that the applicant had been seeing a psychologist. Dr Blombery said that he had no record of having seen any wasting of her arm in his examinations.
51. Mr Carey reminded Dr Blombery of a letter he wrote to Dr Voon on 17 February 2004, in which he stated that the applicant’s pain had reduced due to her use of Trileptal, that she was driving a car again and that she had reduced her dose of morphine. Dr Blombery also stated in the letter that he had seen swelling on her hand under the bandage. He said that his observations were consistent with the nature of her condition and the intermittent exacerbations.
Dr Voon
52. In a written report dated 6 September 2004 (Exhibit A3), Dr Tim Voon, general practitioner, stated that the applicant is still unfit for all employment. He provided a list of the medications that the applicant was taking and indicated that every few months, she required a morphine injection when her right arm regional pain syndrome is aggravated by the cold or movement. Dr Voon indicated that he had referred the applicant to Dr Blombery as a pain management specialist, Dr Thomas for rehabilitation, Dr Crantock for chronic constipation (which occurred as a result of opiate medications) and Dr Jennifer Harmer, rheumatologist. He attached their reports to him. He stated that the applicant was admitted to Echuca Hospital in January 2004 as there was a flare up of cellulitis in her right forearm. He also stated that the applicant’s right arm required ongoing medical treatment. He commented that she is in constant pain and requires analgesia and ongoing specialist care. He stated that it is unlikely that she will be able to work in any form again. He stated that the applicant’s symptoms can be variable with cold weather making her pain and disability worse and an improvement in the warmer months.
53. In oral evidence Dr Voon recounted the history of the applicant’s illness and said that he sees her at least once a month. He gave his opinion that she is still suffering from chronic regional pain syndrome which had its origins in the spider bite. He said that her pain fluctuates, allowing her to do shopping, lift items and drive at certain times. At other times, when the condition is severe, she is unable to use the right hand and the area becomes swollen and red. He indicated that he prescribes medication for the applicant but only on the advice of the specialists. He said that he had authority to prescribe opiates for her. He said that there had been attempts to cut down on her opiate usage, but when it is reduced, the pain flares up again and the original level is again prescribed. He described the circumstances in which he gives the applicant morphine injections. He also described the referrals to specialists and the treatment given by them.
54. Under cross-examination Dr Voon confirmed that it was still his opinion that the applicant had become depressed due to the chronic pain. He indicated that he did not think that there were any other factors apart from the chronic pain causing the depression. Dr Voon did not accept Mr Ferwerda’s suggestion that the applicant may have induced the condition of her hand herself. Mr Ferwerda drew Dr Voon’s attention to a letter written by Dr Blombery (check date of letter) in which he suspected that the colour change of the applicant’s hand on one occasion might have been self‑induced. Dr Voon stated that he had questioned the applicant about it and did not believe that the suspicion was warranted. Dr Voon said that the condition of the applicant’s hand varied; that at times it was white in appearance and not swollen; but when flare-ups of pain occurred, it was red and swollen.
55. Mr Ferwerda queried Dr Voon about a number of stressors that the applicant had experienced including a possible cancer scare in late 2001, possible financial problems in her marriage, her daughter falling pregnant in her teens and other issues. Dr Voon indicated that he did not believe the applicant was depressed because of any of those factors; rather it was the pain in her hand that was causing the difficulties. Dr Voon confirmed that at some stage the applicant was able to swing her arm and use the wrist when she was not having a flare-up of the condition. He indicated that his comment in his February 2004 report remained valid. He said that she is in constant pain, but that it varies in severity. Mr Ferwerda referred Dr Voon to his clinical notes (Exhibit R8), to an entry dated 12 January 2004 by a temporary nurse at the clinic, concerned that a wound looked like it was self-inflicted. Dr Voon said that he had seen the applicant a week earlier and she had had blisters from an infection contracted during her holiday to Echuca. He was adamant that the wound was not self-inflicted. Dr Voon said that he had seen the applicant over four to five years and the nurse had only seen her once. He also indicated that Dr Blombery no longer held the suspicions he expressed in early 2003.
56. In relation to a request from the applicant, that he write to the insurer for household help for the applicant on 30 September 2003, Dr Voon could not recall, nor had he noted, whether her condition was particularly bad at the time of writing. He said that he assumed it was. His next consultation in the medical records was on 14 October 2003, when he noted she was in pain and she was given a morphine injection. He reiterated that the applicant would usually see him when there was a flare-up of pain.
Dr Thomas
57. Dr Thomas, Consultant in Rehabilitation and Pain Medicine, provided a written report dated 28 November 2004 (Exhibit A4). Dr Thomas indicated that he had seen the applicant on 27 July 2004 and 9 November 2004. He stated that her problem was extraordinarily complex. He expressed the view that the spider bite led to the development of Complex Regional Pain Syndrome. He stated that there were some features which were atypical of the condition. He described his examination of her as follows:
On examination she had considerable wasting of the forearm musculature.
She had clawing of her hand. It was certainly not possible for me to stretch out the affected area, not because of pain, but by apparent dystonia.
…
Between the fingers there was evidence of sweat, but otherwise the colour appeared normal…
58. Dr Thomas went on to state:
Diagnostically, the problem looks like Complex Regional Pain Syndrome affecting the right wrist and hand. In addition, there did appear to be a dystonia of the right forearm muscles where she was unable to use the hand at all and the hand appeared to be quite frozen.
The episodes of collapse were probably multi factorial and did not seem to represent epilepsy.
The patient is also quite dependent on medication to stabilise her pain.
At the time that I initially saw her I did not address the issue of work with her, but would clearly be concerned about her inability to use the right hand in an ongoing longer term manner.
I would not like to suggest that this woman return to work at this particular stage and currently, I think she is totally incapacitated. Her situation will need to be considerably better before any consideration of a return to work takes place.
I think at any time in the short, medium or longer term, the use of the right upper limb in the return to work would be problematic in view of the significant wasting, probable contracture and associated pain and dysfunction.
She does however strike me as an articulate woman who may be able in the longer term return to some part time work, which does not involve the repetitive use of the right hand and wrist.
59. In oral evidence Dr Thomas confirmed that he maintained the views he had expressed in the written report. Under cross examination he stated that he had not seen the applicant since 9 November 2004. He said that she had cancelled an appointment scheduled for 11 January 2005. He indicated that this was not a typical case of complex regional pain syndrome, but that he had no doubt that she is suffering from that condition. He stated that most studies show no correlation between the condition and personality types. He also indicated that there are some people he sees who have got a disuse problem but not complex regional pain syndrome. He stated that the applicant is not in that category. Dr Thomas said that the applicant’s disuse of her hand is clearly the sequel of a complex regional pain syndrome. He also expressed the view that her problem is not the result of psychological factors. Dr Thomas expressed surprise when informed of the activities that the applicant had undertaken in the surveillance videos. He indicated that the condition fluctuates but had not expected the degree of fluctuation that Mr Ferwerda had described.
Mr McCaffery
60. Mr McCaffery, psychologist, provided a written report dated 26 March 2003 (Exhibit A6). He indicated that the applicant had been referred to him by Dr Voon and had attended five sessions of treatment between 4 April 2002 and 27 June 2002. Mr McCaffery was of the opinion that during the five sessions, she was showing an excellent affinity for the psychological approach. Mr McCaffery’s assessment and opinion was that:
Mrs. Arnephy gave every impression of being totally subject to the unpredictable course of her pain condition
…
Mrs. Arnephy believed she had been bitten by a white tail spider at work and as a result developed a pain condition in her right hand and arm, which was providing constant pain and dysfunction. She had attempted return to work but needed to stop. Her psychological state had elements of depression, anxiety, confusion and distraction because of resistant pain. She was coping as best as she could yet I considered Mrs. Arnephy was in direct need of supportive psychological counselling for pain management and general adjustment. The decision by her insurer to prevent psychological treatment committed Mrs. Arnephy to further stress in that she would have to manage with her own emotional resources which were already strained…
61. In his oral evidence Mr McCaffery confirmed that he had treated the applicant after the bank hold-up for several sessions and then again in April 2002. He confirmed that he had seen her five times in 2002 and again in July 2003, twice in October 2003 and again on 6 February 2004. He indicated that his opinion had not changed since the date of his written report. Mr McCaffery stated that he had treated many patients with chronic regional pain syndrome and that the condition doesn’t play by clear rules for the patient and so they are always guessing how they will be on any one day. He indicated that as a psychologist he was not curing the condition, rather helping the person manage and adjust to a reality.
62. In cross‑examination Mr Ferwerda made Mr McCaffery aware of written comments made by Dr Blombery in January 2003 and the nurse in Dr Voon’s surgery in January 2004 concerning the possibility that the applicant’s hand injury was self-induced. Mr Ferwerda also queried the impact of other stressors on the applicant, including the suggested cancer scare, post-natal depression, and the circumstances of the birth of the applicant’s grandchild. Mr McCaffery said he was aware of some of those matters. He said these did not alter his view of the applicant or of her condition. He maintained the view that she suffers from chronic regional pain syndrome; which in his experience, is a difficult condition for any sufferer to deal with. He was satisfied that she is now able to cope with other stressors better than she would have ten years ago.
Dr Epstein
63. Dr Epstein provided reports dated 30 April 2003 and 2 December 2004 (Exhibits A8‑A7). Dr Epstein’s description of the applicant’s then condition and his opinion in the earlier report are as follows (Exhibit A8):
…..
CURRENT CONDITION
She has pain and tenderness involving the whole of the right upper limb with swelling involving the right hand. She wears a firm crepe bandage over the right hand and forearm which reduces swelling and keeps her hand warm.
…
She feels exhausted. She does some housework using the left hand but avoids mopping, sweeping, vacuuming and cleaning the toilet and the bath. She does some light cleaning and cooking. She does not drive as she feels she is not safe.
She feels helpless, hopeless, useless, worthless, and tearful and her self-esteem and self-confidence is low.
She is bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated, and unsociable. She is uneasy away from home. She is very worried about her future and feels that her life is on hold.
…
OPINION
Paula Arnephy appears to have been the victim of a spider bite during the course of her work on 2nd July 2001. As a result she has developed a complex regional Pain Syndrome and has developed a chronic Adjustment Disorder with depressed mood and anxiety arising out of continuing pain, discomfort and disability. She has been deeply frustrated by this illness because she cannot find adequate answers to bring about any improvement in her symptoms. She is also frustrated because she believes the attitude of some is that her symptoms are fictitious.
In my view she does require further psychiatric or psychological treatment to help her deal with the profound effect this injury has had on her life. She is a woman who has had a good work record and has coped well with a previous work-related incident and had returned to work with the assistance of psychological treatment. I anticipate that psychological treatment now will help her come to terms with the effects of this situation.
….
In my view that leads to a psychiatric impairment of 20% arising from this injury. The impairment which is not secondary to physical injury is 0%.
64. In his report of 2 December 2004 (Exhibit A7), Dr Epstein gave the following opinion:
…When I last saw her I stated that she suffered from a complex regional Pain Syndrome and has developed a chronic Adjustment Disorder with depressed mood and anxiety arising out of chronic pain, discomfort, a disability. Since then her condition has worsened, in part because of the development of what appeared to be pseudo seizure like behaviour, chronic constipation which has required hospitalisation now on tow occasions, and she has become increasingly unable to function at home and her husband has been obliged to cease work to look after her on a full-time basis.
She has not had any recent psychiatric or psychological treatment and in my view requires such treatment. I remain very concerned about her future. Psychiatric or psychological treatment may not lead to any marked improvement in her condition but may prevent what appears to be further deterioration.
Her current work capacity is nil. Her quality of life has diminished markedly affecting her work capacity, her relationships, and her recreational enjoyment.
Her prognosis is poor.
65. Under cross-examination Dr Epstein conceded that the applicant had not given him all the details of her past treatment and said he would have expected the applicant to have advised him of her psychiatric treatment for post-natal depression and other matters. However, he expected that any pre-existing condition would have settled well before the applicant suffered from her current condition. Dr Epstein commented that he was not aware that the applicant could use her right hand, as the impression he had been given was that she had little use of it. He indicated that he did not form the view that the applicant was dependent on opiate medication as she had been on the same dose for quite a while.
Ms Olsen
66. Cindy Olsen, the applicant’s cousin, is a hairdresser. She provided a statement dated 22 February 2005 (Exhibit A5) in which she stated that she has been washing the applicant’s hair weekly as the applicant had been having difficulty in washing her hair properly since the spider bite.
67. In oral evidence, Ms Olsen stated that she saw the applicant once a week to wash and/or colour her hair. She stated that the applicant’s condition varied. On some occasions, the applicant was able to have a good conversation and on other days she was in bed and not able to get up. She stated that she had seen the applicant drive, but that it was usually when it was raining in order to pick up the children from school.
Mr Coles
68. Mr Coles, rehabilitation consultant, provided a written statement dated 10November 2004 (Exhibit R3). He stated that he was appointed as the applicant’s rehabilitation consultant on 13 June 2002. He cited extracts from the applicant’s rehabilitation file for the period between 1 January 2003 and 1 January 2004. He noted that the applicant had told him on 27 October 2003, among other things, that she had no use of her right hand, did not drive at all, shopped primarily online with the groceries being home-delivered and that her home help does all the housework. A copy of his record of conversation of 27 October 2003 was attached, as was a copy of his letter dated 16 December 2003 to one of the respondent’s managers. In that letter he stated that given the lack of improvement in the applicant’s condition over the previous 12 months, it was unlikely that she would be able to return to work within the foreseeable future.
69. In oral evidence, Mr Coles described the personal and telephone contact with the applicant and his records following that contact. He said that he saw her about every three months and had telephone contact about every two weeks in the latter half of 2002. The contact became less regular during 2003. He could not recollect being made aware of any changes in her level of pain or the condition of her right hand. In terms of the surveillance videos, the contact nearest to that date was 13 October 2003 by telephone. He said that his notes stated:
No change in the arm. Still quite swollen and painful. Had an ulcer on the arm. It was made worse by wearing a cast. Trying not to wear the cast all day during the day. Problems getting to and from her appointments as was not able to get cab vouchers from Telstra.
70. Mr Coles said that he had seen the surveillance video made on 30 September 2003 and 2 October 2003. He said that the applicant’s statements were contradictory to what he had been told. He said that the applicant had told him she did not drive and that was why cab vouchers were being arranged. He said that the applicant had not told him that she was able to shop on her own. Mr Coles said that after his telephone conversation with the applicant on 27 October 2003, he had noted that the applicant does get some variation in pain but that even on her good days unable to use the affected hand. Mr Coles said that his contact with the applicant then became less frequent and his last communication with her was on 23 September 2004.
71. Under cross –examination Mr Coles said that his last personal visit to the applicant was on 16 October 2003. Mr Coles clarified that he had only seen one of the two surveillance videos taken of the applicant, and was unaware of the existence of the second videos. Mr Carey drew Mr Coles' attention to aspects of his notes suggesting that the views that Mr Coles now expressed were coloured by the reports of the insurance investigator and the videotapes. Mr Coles rejected Mr Carey’s suggestions.
Dr Kemp
72. Dr Kemp, consultant rheumatologist, provided several written reports to the respondent’s solicitors between 12 February 2002 and 30 November 2004. In his report dated 30 November 2004 (Exhibit R4), he stated:
….
My opinion remains as stated in my previous reports. The history and clinical features are consistent with a minor injury to the right hand with the development of a consequential reflex automatic pain response in her dominant right arm. The absence of any sustained response to any of her various medications or treatment strongly suggests there is a significant functional amplification of her physical symptoms.
The history is unusual, as her right hand and arm were apparently useless and painful for a period of two years until September 2003, when there was improvement and she regained some use of her right hand until December, when the severe symptoms returned.
…
In my opinion, she is unfit to resume her previous work in the Call Centre as a result of the persistent symptoms and condition of her right arm and from the history of this case, her incapacity is likely to continue indefinitely.
In my opinion her present treatment is appropriate, although unlikely to be effective in view of the history.
In my opinion Dr Blombery provides a reasonable explanation for the apparent discrepancy of the surveillance report and it was on the basis of the latter that I considered that the effects of any compensable condition appeared to have ceased as she appeared to have minimal functional impairment. I am unable to explain the reason for the wide variation in symptoms and disability, but this indicates that her permanent incapacity is not based on permanent physical impairment.
73. In his oral evidence, Dr Kemp stated that he first saw the applicant in February 2002. He said that at that time the applicant's right arm was not as apparently disabled as it was later. He then saw her again in June 2003, when he had the impression that her right hand and arm had been painful and apparently useless for two years. There was extensive discussion of complex regional pain syndrome and its impact, being intermittent in many people. In response to a question about a person’s ability to self-induce the symptoms, Dr Kemp indicated that it was difficult to switch on and off at appropriate moments. He also indicated that if there were any self-induced symptoms on any occasion, it did not necessarily mean that the applicant did not suffer from complex regional pain syndrome. He stated that she might have a functional amplification of the existing injury or it could mean the whole condition was fabricated. Dr Kemp stated that he would defer to Dr Blombery’s assessment of the variability of the applicant’s condition given Dr Blombery’s extensive experience as a vascular surgeon. However, he also agreed with Dr Thomas’s observation that even with a fluctuating condition, he would not have expected the applicant to be doing what she was on the surveillance videos.
74. Under cross-examination Dr Kemp reiterated that Dr Blombery was far more familiar in dealing with complex regional pain syndrome than he was. He agreed with Dr Blombery’s comments that the earlier that a condition such as the applicant’s is dealt with, the better the prospects of success. He also conceded that the function of the arm would be inhibited by pain and the level of pain could fluctuate. He stated that the applicant’s condition is not a common one. He agreed that if one had a suspicion about a patient, one would ask for an explanation and would continue to treat the patient. Dr Kemp said that it would not be his preference to deal with a condition such as the applicant’s with long term use of morphine, but it was a choice open to a physician. He clarified that with functional overlay, it can be a conscious or unconscious reaction by the patient. He stated that about half of the patients with the applicant’s condition get better with treatment over a period of time but others do not seem to improve. However, he said that one did not usually see elderly people with this condition, so it must settle down sooner or later.
Dr Serry
75. Dr Nathan Serry, consultant psychiatrist, in a report to the respondent’s solicitors dated 16 April 2004, stated that the applicant had a current psychiatric impairment, which had arisen secondary to the underlying physical injury that arose in the workplace. He indicated that there was no impairment prior to 1 December 1988. Dr Serry diagnosed the applicant as having a Chronic Adjustment Disorder with anxiety and depression. Dr Serry considered that her incapacity for employment appears to be physically rather than psychiatrically based. He expressed the view that as long as the physical symptoms persist, the psychological complications will continue. He did not believe the effects of the incident will be permanent. He was not called to give oral evidence.
76.In terms of prognosis and further treatment, Dr Serry put the view:
Treatment should be for the underlying condition and questions in this regard would best be directed to a specialist in the physical field. It is noteworthy however that Ms Arnephy has ongoing depressive symptoms and I consider that she will require ongoing antidepressant medication and an increase in dosage or consideration for an alternative antidepressant should be made.
This may well best be conducted under the auspices of a treating psychiatrist.
…
The prognosis is in proportion to that of the underlying condition. Should the underlying condition resolve, then her psychological complications will similarly follow….
Other medical reports
77. The respondent tendered a letter from Dr Luke Crantock, gastroenterologist, to Dr Voon dated 10 May 2002 (Exhibit R5). In the letter, Dr Crantock discusses the impact of the analgesic therapy for the applicant’s condition which has led to constipation and the suggestion of hospitalisation to deal with it.
78. The respondent tendered a letter to Dr Voon from Dr Carolyn Arnold of the Caulfield Pain Management and Research Centre dated 12 June 2002 (Exhibit R6). Dr Arnold describes the applicant’s symptoms as being those of Complex Regional Pain Syndrome Type 1. Dr Arnold recommended that the applicant continue with her current treatments. She stated that it appeared likely that given it had been 12 months since the onset of the symptoms, the applicant was facing the distinct possibility of a server long-term pain problem with all the functional limitations associated.
CONSIDERATION OF THE ISSUES
79. Mr Carey submitted that the applicant’s case is one of ongoing disability. He described the initial failed attempt to return to work and the symptoms she exhibited. He described the various investigations and treatment the applicant had undertaken. He submitted that in mid‑2002, the applicant was quite disabled and in severe pain, and it was at that time she requested Cabcharge vouchers on the basis that she could not drive. He stated that since then the applicant’s condition has followed a fluctuating course. He described her treatment and hospitalisation, her flare-ups and the evidence of Dr Voon on these points. Mr Carey submitted that it was the consensus of medical opinion that the applicant is still suffering from chronic regional pain syndrome.
80. Mr Carey discussed the evidence provided by the respondent to discredit the applicant. He conceded that Dr Kemp’s original view in his report, after viewing the film, was that the applicant’s activities in the film were not consistent with his diagnosis. Mr Carey pointed to Dr Blombery's comments about the fluctuation that can occur in the severity of the symptoms involved in the applicant’s condition. He also pointed out that Dr Kemp’s final report accepted Dr Blombery’s view, and that Dr Kemp did not resile from his opinion in that report when giving oral evidence.
81. Mr Carey conceded that the applicant had not always accurately described her history of psychological and psychiatric treatment prior to July 2001. He also conceded that she described her disability in a single form of inability to do much of anything. He submitted that the defects in providing the histories to the doctors should not be fatal to the claim. He pointed to concessions made in oral evidence by the applicant. He also cited Mr McCaffery’s comments that the applicant toughed it out. Mr Carey suggested that the applicant may have been attempting to compartmentalise her life as a defence mechanism and therefore have not been forthcoming about her history. Mr Carey submitted that the applicant was not involved in a deliberate pattern of lying because she did tell some of the medical practitioners aspects of her previous psychiatric treatment. He pointed to the information about post natal depression she had given Dr Serry, who was engaged by the respondent, in April 2004.
82. Mr Carey submitted that the seeking out of Cabcharge vouchers in July and August 2002 was when the applicant was quite disabled, having come out of hospital. He pointed to oral evidence from the applicant in which she stated she used Cabcharge vouchers for longer distances. She conceded that she was able to drive short distances in 2003.
83. Mr Carey then discussed the respondent’s suggestion that the applicant was addicted or dependent on drugs and that this was the cause of her being less than truthful. He conceded that Dr Kemp had said that he would not have chosen morphine for long term use; but he pointed out that Dr Kemp had stated that it was still a reasonable treatment. Mr Carey stressed that the applicant did not obtain a script for long term use of MS Contin until 2003, after all other reasonable treatments had been tried. He also submitted that if some of the features of her behaviour are in fact provoked by the drugs which she received as reasonable treatment for her injury, then that would still be a compensable injury for the purposes of the legislation and she is entitled to compensation.
84. In relation to whether the applicant may have harmed herself, which was raised as a possibility by Dr Blombery and the nurse in Dr Voon’s practice, Mr Carey pointed out that those were merely suspicions. He submitted that Dr Blombery continued to treat the applicant, raised his suspicion with her and was subsequently satisfied that his suspicion was not founded. He pointed to Dr Blombery’s standing, his observation and recording of information adverse to the applicant and his expertise in the area. He cited Dr Kemp’s deferral to Dr Blombery’s opinion. He also raised Dr Kemp’s comment that Dr Thomas was more of an expert in rehabilitation rather than in diagnosis of chronic regional pain syndrome. As to the comments of Dr Voon’s nurse, Mr Carey submitted that these comments were from a nurse who had never seen the applicant before, and who was tending to a patient who had just come out of Echuca hospital. He indicated that Dr Voon had also seen the applicant’s arm at that time and was satisfied that there was no self-harm.
85. Mr Carey pointed out that Dr Voon knew that there was nothing wrong with the applicant prior to the spider bite in July 2001. He submitted that Dr Voon had rejected the notion that the applicant’s concern about a lump that turned out not to be cancerous was a stressor that could have precipitated the injury.
86. Mr Carey submitted that it is the consensus of medical opinion that the applicant’s condition is still related to employment, is still chronic regional pain syndrome and is disabling. He submitted that she cannot return to work at present. He submitted that overuse of the right hand causes a recurrence of the pattern of symptoms leading the applicant back to morphine injections and further treatment.
87. As for the depressive symptoms suffered by the applicant, Mr Carey pointed to Dr Epstein's evidence, that depression is secondary to chronic regional pain syndrome. Dr Serry also found a depressive set of symptoms. Mr McCaffery had commented that the applicant appeared to find psychological counselling helpful but that she should have had a few more sessions. Mr Carey stated that the only psychiatrist or psychologist who found no symptoms of depression was Dr Lewis on whose opinion psychological counselling had ceased.
88. In summary, Mr Carey argued that on the totality of the medical evidence the applicant continues to suffer from chronic regional pain syndrome, which is on a fluctuating course. The condition is disabling, causes incapacity and secondary psychiatric symptoms and should be compensable.
89. Mr Ferwerda submitted that by 9 February 2004 the applicant had fully recovered from any injury she may have suffered on 2 July 2001. Alternatively, he submitted that the respondent’s stance is that the applicant is not entitled to any compensation under s 16 or s 19 of the Act, as the medical treatment does not relate to any compensable condition and the applicant has not been incapacitated within the meaning of the Act since 9 February 2004. Mr Ferwerda stated that the respondent is not attempting to deny that the applicant had been injured, but that by 9 February 2004 she had fully recovered from that injury. In respect of psychological treatment, Mr Ferwerda submitted that there was none required; but if there was, it was not related to the work injury or any sequelae.
90. Mr Ferwerda commented that the applicant would have been aware from at least February 2004 that her credibility, veracity and genuineness were core issues. He submitted that the evidence before the Tribunal shows quite positively that the applicant has misled and deceived persons involved in her compensation claims and applications to the Tribunal. He stated that these included her general practitioner, Dr Blombery and Dr Thomas, medico-legal examiners, Mr Coles and the Tribunal. Mr Ferwerda submitted that it is not necessary to determine the applicant’s motivation for her lack of openness and her deception. He suggested that it might be related to her acknowledged addiction to morphine and her concern at her ability to return to work, with the prospect of various benefits and support that were available if her condition was linked back to her work injury.
91. Mr Ferwerda pointed out the number of interactions the applicant had with various persons. Dr Thomas saw her twice for treatment, Dr Epstein twice, Mr Kemp three times, Dr Blombery and Dr Voon numerous times and Mr Coles from June 2002 onwards. On that basis, he suggested that Dr Blombery and Dr Voon’s evidence would usually be given more weight. However, he argued that medical practitioners rely on what their patients tell them. In addition, he said that the Tribunal should also consider the level of further enquiry made by a particular practitioner. Mr Ferwerda pointed to the suspicion held by Dr Blombery, which he communicated to Dr Voon, and the significance that should be attached to such a comment being in writing. He also raised the suspicion noted by the nurse in Dr Voon’s surgery: that the applicant’s wound was self-inflicted. Mr Ferwerda suggested that Dr Voon’s response, to those incidents and to the suggestions that the applicant may be dependent on morphine during oral evidence, should concern the Tribunal. He also urged the Tribunal to look at the responses of the medical witnesses when they discovered that the histories they had been given by the applicant and her description to them of the level of her disability proved to be incomplete and/or deceptive. He also submitted that any acknowledgments the applicant made from around February 2004 should be given little weight, since by then she was aware of the information available to the respondent.
92. Mr Ferwerda submitted that the applicant had deceived almost everyone with whom she had dealings. He queried the applicant’s suggestion that she had been filmed on her good days. He also questioned her evidence about fluctuations in her condition as providing an explanation as to what she could or could not do. He also drew attention to her initial denial of prior emotional problems and psychiatric treatment, when he cross-examined her as to her history prior to July 2001. He suggested that the applicant was possibly trying to vet negative information about other stressors she had experienced as they would not help her compensation claim.
93. Mr Ferwerda suggested that it was not possible to reconcile the applicant’s eventual concession that she drove a car to the local supermarket and to pick up the children from school in 2003 and much of 2002 and the evidence in the surveillance videos with the information she gave to medical and rehabilitation practitioners that she could not drive or use her right hand. He submitted that those medical witnesses who tried to reconcile the two had not done so successfully.
94. Mr Ferwerda pointed to Dr Voon’s letter of August 2002, in which he stated that the applicant was unfit to drive and was unfit to travel on public transport. He also highlighted the applicant’s explanation of Mr Coles’s note, made in October 2003, that she had no capacity to engage in physical activity. In oral evidence, the applicant had stated that she understood physical activity to be like a sport. Mr Ferwerda suggested the Tribunal reject that response and that it should find that Mr Coles was an honest witness.
95. Mr Ferwerda acknowledged Dr Blombery’s expertise in dealing with complex regional pain syndrome type 1. He submitted that, notwithstanding Dr Blombery’s standing and knowledge, the evidence showed that the applicant had deceived him. He suggested that Dr Blombery had acknowledged that he did not look at the applicant’s arm at each consultation. Mr Ferwerda commented that Dr Thomas had seen some wasting of the applicant’s forearm musculature, which had not been noted by Dr Blombery.
96. Mr Ferwerda suggested that the Tribunal should not accept Dr Blombery’s explanation of the applicant’s activities in the surveillance videos. Dr Blombery had said that he usually only saw the applicant when she was having a flare up of her condition and that she must have been going through a good period when she was filmed.
97. Mr Ferwerda submitted that the Tribunal should give less weight to Dr Voon’s evidence than it would otherwise give to a doctor who saw a patient as regularly as he did. He submitted that Dr Voon was acting in the role of advocate for the applicant. Mr Ferwerda suggested that Dr Voon’s annoyed reaction to his raising the nurse’s note of 12 January 2004 concerning the possibility that the applicant’s injury was self-inflicted, , was evidence of a lack of objectivity. He also submitted that Dr Voon was resistant to acknowledging or even entertaining the possibility that his patient had tried to deceive him.
98. Mr Ferwerda contrasted Dr Voon’s reaction to that of Dr Epstein, who had acknowledged that the applicant had failed to disclose certain relevant material. Mr Ferwerda suggested that Mr McCaffery’s view of the applicant as an open person who was toughing it out could not be reconciled with the misleading and incomplete information she had given him, even though Mr McCaffery had attempted to do so. Mr Ferwerda suggested that Dr Thomas’s evidence should be given considerable weight even though he acknowledged Dr Blombery as being the greater expert in the field. Mr Ferwerda pointed to Dr Thomas’s inability to reconcile the fluctuations in complex regional pain syndrome with what he saw in the surveillance film.
99. Referring to the lay witnesses, Mr Ferwerda suggested that the evidence of Cindy Olsen was only relevant on a minor point. He submitted that the Tribunal should draw an inference from the failure of the most appropriate lay witness, the applicant’s husband, to give evidence in her support.
100. Mr Ferwerda submitted that the applicant has demonstrated a pattern of lying. He cited particularly the applicant telling her treating health professionals and rehabilitation consultant that she could not drive, when in fact, as the surveillance video showed, she was driving.
101. In summary, Mr Ferwerda suggested that the stance of Dr Voon and Dr Blombery should be contrasted with that of Dr Thomas and Dr Kemp, notwithstanding that Dr Kemp deferred to Dr Blombery’s expertise. He submitted that the applicant has in fact recovered from any injury, as otherwise there is no explanation for the difference between what she told the doctors and what she exhibited in the surveillance films.
102. Mr Carey submitted that not one of the medical witnesses has said that the applicant has recovered from her injury. He pointed in particular to Dr Blombery's evidence.
103. In reaching its decision the Tribunal takes into account the written and oral evidence and the submissions made at the hearing.
104. The Tribunal finds that the applicant has not been truthful in many of her dealings with medical practitioners and others involved in her compensation case. The Tribunal finds that she had exaggerated the degree of loss of usage that she had of her right hand. She told some practitioners that she could not use her right hand at all, when that was clearly not the case. She told her rehabilitation consultant and others that she did most of her shopping online and did not drive, when that was not the true picture. When confronted with the surveillance film showing her driving and using her right hand for other tasks, she conceded that she had told a number of health professionals that she did not drive at all when in fact she did do so. She also stated that all of the surveillance must have been on her good days, notwithstanding that she had conversations with her rehabilitation consultant and her doctor around that time indicating that things were not so good. In viewing the surveillance tapes, the Tribunal noted that the applicant used her right hand for a number of tasks including smoking a cigarette, carrying some groceries and opening a car door. However, it also appeared that as a right‑handed person, she was undertaking a number of tasks with her left hand that would usually have been done with the other hand. Nonetheless, the Tribunal is satisfied that the degree of disability displayed in the film was not of the degree that the applicant had described to those treating her. However, the exaggeration of her degree of disability and her lack of candour do not necessarily lead to the conclusion that the applicant is not suffering from a medical condition that prevents her working. Being untruthful about some aspects of her condition does mean that she is untruthful about everything.
105. Dr Blombery, who was acknowledged by the parties and by other medical witnesses to be the most expert in the field, is of the view that the applicant is suffering from chronic regional pain syndrome. He maintained this view in spite of being presented with evidence that the applicant had been less than candid about aspects of her symptoms. Dr Voon, the applicant’s general practitioner, was also of that view. Dr Thomas, while concerned about the degree of fluctuation of the applicant’s symptoms, and being unable to reconcile the activities shown in the video with her description of disability, nonetheless concurred that the applicant was suffering from chronic regional pain syndrome, albeit with some atypical symptoms. Dr Kemp, in his latest written report and in his oral evidence, was also of the view that the applicant was suffering from the condition. He deferred to Dr Blombery’s assessment. Dr Epstein and Dr Serry diagnosed depressive symptoms that had arisen as a result of the condition, which of itself affected the applicant’s ability to work. Dr Kemp, in his report of 29 December 2003, suggested that the effects of the compensable condition appeared to have ceased. However, in his report of 30 November 2004, he revised his view and stated that she remained incapacitated for work. There was also evidence that the applicant may now be dependent on opiates that were prescribed for her condition and some suggestion that she may have feigned her level of disability to gain access to the medication. There was some evidence presented about suspicions about self-induced harm. Dr Blombery gave evidence that his suspicions had been allayed after he raised them with the applicant. Dr Voon dismissed his nurse’s suspicions, giving them less weight than Mr Ferwerda submitted he should have.
106. The Tribunal accepts the view of the majority of the medical practitioners, who diagnosed that the applicant is still suffering from chronic regional pain syndrome. Psychiatrists, including Dr Epstein, diagnosed depressive symptoms resulting from that condition. Doctors whose opinions were sought by the applicant’s solicitors and the respondent’s solicitors were of the view that the applicant was unfit to work at the present time. Some, such as Dr Serry and Dr Kemp, were optimistic that the condition would resolve itself with further appropriate treatment. The Tribunal finds that the applicant was still suffering from chronic regional pain syndrome on and after 9 February 2004.
107. The Tribunal needs to consider whether the applicant’s condition, which resulted in an inability to work, arose as the result of the spider bite suffered in July 2001. Mr Ferwerda put forward a number of other stressors that could have been an alternative cause of the condition. These included a cancer scare, post‑natal depression, marital difficulties, pregnancy of the applicant’s teenage daughter and the ongoing impact of the hold-up. He also highlighted evidence that demonstrated that the applicant had not been candid about her past psychiatric and psychological treatment. Dr Blombery acknowledged that other stressors can make the pain worse. He also said that a minor injury, which heals, can nonetheless lead to chronic regional pain syndrome. He and other medical witnesses gave evidence that it is impossible to predict who will succumb to the condition based on personality or mental state. He noted that the applicant had not been in pain prior to the spider bite and maintained the view that the injury on 2 July 2001 had been the precipitant for the applicant’s condition. Dr Voon also noted this point. Dr Epstein and Dr Serry linked the applicant’s current depressive symptoms to the chronic regional pain syndrome. Almost all the practitioners acknowledged that some of the cited stressors could have made the pain worse. However, no one was able to definitively link the applicant’s condition to any of the other stressors.
108. Mr Ferwerda suggested that the applicant may have exaggerated her symptoms and/or self-inflicted her injuries to obtain access to morphine, on which she may have become dependent. Given that the prescription of morphine requires special clearance and this was first obtained after the injury, the Tribunal is satisfied that the first use of morphine has arisen out of the injury. The Tribunal also notes the evidence of Dr Crantock, gastroenterologist, of the impact of the morphine on the applicant and the additional treatment and medication she has required as a result.
109. Given the timing of the onset of the applicant’s condition and the lack of evidence linking the applicant’s condition to any other particular stressor, the Tribunal finds that the applicant’s condition is a consequence of the work-related injury and the treatment she received for that injury. Having made the finding that the applicant’s condition arises out of the injury and subsequent medical treatment, the Tribunal is satisfied that incapacity benefits should be resumed.
110. Several of the practitioners, whether providing opinions to the applicant’s solicitors or the respondent’s solicitors, recommended further physical and psychiatric/ psychological treatment. Several of the doctors were optimistic that the applicant’s condition may still resolve. Mr McCaffery was strongly of the view that the applicant responded well to counselling and that it would continue to be of assistance. Dr Epstein suggested that psychiatric or psychological treatment was needed and could prevent further deterioration, despite a poor prognosis overall. Dr Serry in his report suggested that the applicant’s depressive symptoms should be treated. Both psychiatrists urged that the physical symptoms should be treated. Dr Kemp agreed with Dr Blombery about the need for ongoing treatment in his last report, having changed his view from that given in December 2003. Dr Thomas also thought that the applicant required further medical treatment. Taking account of the opinions of the medical witnesses, the Tribunal finds that the applicant requires further medical treatment. The Tribunal is also satisfied that further psychiatric and psychological treatment is warranted.
DECISION
111. The Tribunal sets aside the decisions under review and substitutes a decision to reinstate the applicant’s entitlement to compensation benefits from 9 February 2004 and to the cost of psychological treatment as from 11 July 2002. The respondent is to pay the applicant’s costs.
I certify that the one hundred and eleven [111] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 31 December 2004, 23 February 2005,
24 February 2005 and 25 February 2005
Date of decision: 29 November 2005
Counsel for applicant: Mr M. Carey
Solicitor for applicant: Maurice Blackburn Cashman
Counsel for respondent: Mr J. Ferwerda
Solicitor for respondent: Sparke Helmore
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