Aunela and Telstra Corporation Limited
[2009] AATA 683
•9 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 683
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/144
GENERAL ADMINISTRATIVE DIVISION ) Re ERIC AUNELA Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P.S. Wilkins MBE, MemberDate9 September 2009
PlaceCanberra
Decision 1. The reviewable decision made by Telstra Corporation Limited on 1 June 2006 is set aside.
2. In substitution for the decision set aside it is decided that:
1) since 16 March 2006 and at the date of this decision Telstra Corporation Limited is liable to pay compensation to Mr Aunela pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) on the basis that he has been totally incapacitated for work as a result of the injury suffered by him on 19 April 1993; and
2) since 16 March 2006 and at the date of this decision Telstra Corporation Limited is liable to pay compensation to Mr Aunela pursuant to section 16 of the Act being for treatment expenses incurred by him in relation to the injury suffered by him on 19 April 1993.
3. The parties have liberty to apply within 14 days in relation to costs; should such an application not be made, Telstra Corporation Limited shall pay Mr Aunela’s reasonable costs and disbursements incurred in these proceedings.
..............[sgd]...........................
J.W. Constance, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – extent of incapacity for work – Tribunal not convinced that applicant’s extent of incapacity has changed – total incapacity for work – decision under review set aside – applicant entitled to compensation for total incapacity for work – applicant entitled to compensation for medical treatment
Safety, Rehabilitation and Compensation Act 1988 (Cth) – Sections 16, 19
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
9 September 2009 J.W. Constance, Senior Member
Dr P.S. Wilkins MBE, MemberINTRODUCTION
1. Mr Aunela is seeking a review of a decision of Telstra that on 16 March 2006 he ceased to suffer the effects of an injury he suffered at work in 1993. In early 1998 Telstra terminated Mr Aunela’s employment as a linesman and from then until 16 March 2006 it paid him compensation on the basis that he was totally incapacitated for work as a result of the injury.
2. For the reasons which follow the decision under review will be set aside.
BACKGROUND
3. We are satisfied of the following facts on the balance of probabilities. Our findings are based on the evidence of Mr Aunela and the documents in evidence. These facts are not in dispute.
4. Mr Aunela was born in 1954. In 1990 he started working for Telstra as a linesman doing general labouring duties, installing new pits and pipes and laying cable. On 19 April 1993 Mr Aunela injured his left ankle and his right elbow in an accident at work. His claim for compensation in respect of both injuries was accepted and until October 2006 Telstra made compensation payments to Mr Aunela for periods of incapacity and for treatment expenses.
5. Soon after the accident Mr Aunela made a complete recovery from his ankle injury. However he continued to experience problems with his elbow and in about August 1993 he was placed on light duties. Mr Aunela continued on light duties until late 1997 when Telstra decided that it was unable to continue to provide such duties and he was retired in January 1998.
6. Since January 1995 Mr Aunela has been treated by Dr Robert Reid who diagnosed Mr Aunela as suffering reflex sympathetic dystrophy. Since 1998 this treatment has included injections to the right shoulder which Mr Aunela says provide some short-term relief from the ongoing pain he suffers in his right arm. This treatment was continuing on a weekly basis at the time of the hearing before the Tribunal.
7. In July 1999 Telstra agreed to compensate Mr Aunela for the permanent impairment he suffered as a result of his elbow injury. The degree of whole person impairment was agreed at 50 per cent.
8. From 1998 until 16 March 2006 Telstra paid compensation to Mr Aunela on the basis that he was totally incapacitated for employment and required ongoing medical treatment for his condition. In deciding to stop paying compensation to Mr Aunela, Telstra determined that at that time he no longer suffered the effects of the injury.
ISSUES FOR DETERMINATION
9. When the decision under review is a decision to cease payment of compensation in respect of an injury for which liability has been accepted (as it is in this matter), it is necessary that we be persuaded that circumstances have changed sufficiently to justify the cessation if the decision is to be affirmed: Commonwealth of Australia v Borg (1991) 20 AAR 299 at 307. This does not mean that there is a burden of proof resting on Telstra.
10. The following issues arise for determination.
1)Are we satisfied that since 16 March 2006 Mr Aunela has not been totally incapacitated for work as a result of his compensable injury?
2)If the answer to (1) above is “yes” what, if any, are the periods for which compensation is payable and to what extent was Mr Aunela incapacitated during each period?
3)Are we satisfied that Telstra is not liable to compensate Mr Aunela for the cost of any medical treatment obtained by him after 16 March 2006?
FURTHER EVIDENCE AND FINDINGS OF FACT
11. The further findings of fact contained in these reasons are made on the basis of the evidence of Mr Aunela unless otherwise stated. We are satisfied of the facts found on the balance of probabilities.
12. Mr Aunela has not been engaged in paid employment since his employment was terminated by Telstra in 1998. Since that time he has lived with his wife and children on 2 properties in the Canberra region. He and his wife purchased the property on which they now reside in 2002. It has an area of 227 acres on which they run horses and ponies for the children. It is rugged country and is not operated as a productive farm. The property does require maintenance such as fence repairs and noxious weed control.
13. Following the injuries to his ankle and elbow Mr Aunela was off work for two days. His ankle recovered over the following two months but the condition of his elbow deteriorated. He continued to experience pain and swelling in his arm and instances of his arm changing colour to dark blue or yellow.
14. Mr Aunela initially consulted his general practitioner, Dr Sharma, who referred him to Dr Reid, Sports Physician, in 1995. Since that time Mr Aunela has regularly consulted Dr Reid in respect of the injury to his elbow. Until March 2006 Mr Aunela received physiotherapy treatment and took medication for pain relief as prescribed by Dr Reid. He ceased these treatments when Telstra stopped paying for them as he could not meet the expense involved. Since about the middle of 2006 Mr Aunela has been attending Dr Reid on a weekly basis. On each visit Dr Reid administers a number of injections (usually between 12 and 28) into Mr Aunela's right shoulder.
15. Mr Aunela continues to suffer pain in his right arm from his shoulder to his fingers. He is right handed. From time to time his arm changes colour. On occasions he cannot form a tight fist. His condition varies from day to day. His ability to undertake tasks on the property and around the home is substantially restricted, although the extent of the restriction depends upon the severity of his condition. The severity of the pain he suffers has worsened since March 2006.
16. The injections given by Dr Reid relieve the pain Mr Aunela experiences. Sometimes this relief is for a few hours; on other occasions for 2-3 days. Mr Aunela continues to take medication for pain relief but not as much as he did prior to Telstra ceasing to meet the cost involved.
17. When asked if he believed he was fit to return to any form of work, Mr Aunela replied that he did not. However, he did say he would try some sort of part-time work “but there is no one that would take me on, because of my condition.”[1]
[1] Transcript 8.9.08 p-18.
18. Immediately before Mr Aunela was retired from his employment by Telstra in 1998, he was told by his employer that no further light duties were available for him. Since he ceased work Telstra has not provided, nor offered, any form of rehabilitation or re-training with a view to having Mr Aunela return to the workforce. There has been no offer of re-employment made to Mr Aunela, nor has there been any evidence called on behalf of Telstra to suggest that it has full-time or part-time work available which would be suitable for him.
19. Mr Aunela was asked to indicate how far he could lift his right arm out to the side after he had received injections. He told us approximately 90 degrees. When asked whether he could lift his arm above 90 degrees he replied “yes, I can lift always a little bit, but not – it’s painful, but I can do it … I improve quite a bit.”[2] He also demonstrated that he could lift his arm in front of him to approximately horizontal.
[2] Transcript 8.9.08 p-23.
20. Whilst he was giving evidence Mr Aunela was shown a video[3] which he agreed depicted himself. The video records Mr Aunela in the following situations:
·on 13 October 2006, getting into his vehicle outside Dr Reid’s rooms;
·on 28 October 2006, filling his vehicle with petrol and then entering the vehicle;
·on the same day, loading the vehicle with loaves of bread and securing the load with rope;
[3] Ex. R1.
THE ARGUMENT ON BEHALF OF TELSTRA
21. Counsel for Telstra argued that based on the evidence of Dr McGill and Dr Whittaker we should affirm the decision under review. He properly conceded that if their evidence was not accepted it would be difficult to conclude that Telstra has not been liable to continue to compensate Mr Aunela after 16 March 2006.[4]We add to this that the evidence in the surveillance is to be taken into account in assessing the opinions of Dr McGill and Dr Whittaker.
[4] Transcript 2.7.09 p-68.
Dr McGill, Consultant Rheumatologist
22. Dr McGill has examined Mr Aunela at the request of Telstra on 3 occasions – in 1996, 2004 and 2006.
23. In his report of 31 October 1996[5] Dr McGill stated:
I note that it has been suggested that he had reflex sympathetic dystrophy secondary to the trauma in 1993. Although it is possible for reflex sympathetic dystrophy to develop in response to that type of injury in a pre-disposed person, I have serious doubts as to whether that is what has occurred here. The ingrained dirt and callus formation in his right hand is not consistent with the history of disuse that he provided… I cannot exclude the possibility that he has mild reflex sympathetic dystrophy. Direct observation of his activities outside of the formal examination setting would be required to make a confident statement as to his true level of function but, on the basis of the objective findings in his hands, I think it is likely that he has good hand function bilaterally.
[5] Ex. R2.
Dr McGill reported that there was inconsistency on examination in that Mr Aunela grimaced during passive movement of his right upper limb joints, but when asked indicated that there was no pain. Dr McGill reported that Mr Aunela stated that he was unable to use his right hand for manual work, but also reported that he stated that during 1996 his work involved lifting manholes and lifting pit lids which was difficult.
24. After examining Mr Aunela in 2004 Dr McGill was of the opinion that there was no physical disorder in Mr Aunela’s right arm and that the clinical signs on examination indicated that the history he gave with respect to its use was not valid.[6] Dr McGill was also of the opinion that weekly trigger point injections and the ongoing provision of potent analgesic medication was inappropriate treatment.
[6] Ex. R3.
25. Dr McGill last examined Mr Aunela in February 2006. At that time Mr Aunela told Dr McGill that his upper limb symptoms, including pain, prevented his using his right hand “most of the time.”[7] When Dr McGill tested the power of Mr Aunela’s upper limbs he noted a pattern of marked alteration of power in the left upper limb muscles when tested concurrently with the right upper limb muscles. In his opinion this was in keeping with false behaviour.[8] Further, it was the opinion of Dr McGill that the effect of any work related contribution to Mr Aunela’s condition had ceased, that he had voluntarily exaggerated his symptoms and that he was “currently capable of doing full time work in his previous normal duties as a linesman.”[9]
[7] Ex. R4.
[8] Ex. R4.
[9] Ex. R4.
26. In his report of 9 December 2006 Dr McGill stated:
The evidence supplied by the video I think strongly supports the conclusions I reached on 10 February 2006, namely that he has no evidence of a complex regional pain syndrome type 1 and that his behaviour during the examinations has been one of voluntary false behaviour. There is no indication for any treatment.[10]
[10] Ex. R5.
27. When Dr McGill gave evidence he confirmed the opinions he had expressed in his reports. He said that he accepts that the entity of reflex sympathetic dystrophy exists but he does not agree that Mr Aunela suffers from this condition. He readily conceded that it is outside his area of expertise to distinguish between abnormal behaviour that is not carefully planned on the one hand and a “conscious voluntary planned deception”[11] on the other.
[11] Transcript 1.7.09 p-35.
Dr Whittaker, Consultant Rheumatologist
28. Dr Whittaker examined Mr Aunela on behalf of Telstra in February 1998, 15 months after he ceased to carry out any work in his previous employment. He later reviewed the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the surveillance video.
29. It was intended that Dr Whittaker would give evidence at the hearing of this application but he became ill and was unable to do so. Rather than have the matter again adjourned, Counsel for Mr Aunela agreed to the tender of Dr Whittaker’s reports without requiring him to be available for cross-examination. We have considered the reports on this basis.
30. In his report of 25 February 1998[12] Dr Whittaker noted a number of statements by Mr Aunela indicating that he was experiencing considerable pain and restriction in the use of his right upper limb. He also noted that Mr Aunela was continuing to receive trigger point injections around his right shoulder girdle and that he had attended a clinical psychologist for pain management and a psychiatrist with regard to his depressive symptoms.
[12] Ex.R6.
31. Following his assessment of Mr Aunela Dr Whittaker stated:
I consider that he has subsequently developed a complex regional pain syndrome i.e. a pain syndrome of his right upper limb with features of reflex sympathetic dystrophy.
Apart from narcotic analgesic medications, all forms of treatment have been ineffective in providing relief from his pain.
I am of the opinion that he will never return to work.[13]
[13] Ex. R6.
32. After he reviewed the various medical reports, other documents and the surveillance video, Dr Whittaker ceased to hold the opinion as to Mr Aunela’s condition which he had expressed previously. He made this abundantly clear in his reports of 29 January 2007[14] and 30 January 2007[15]. He provided a detailed review of the material, setting out his reasons for disagreeing with the opinions of other practitioners.
[14] Ex. R7.
[15] Ex. R8. It should be noted that this report has been incorrectly described as dated 30 January 2008 in the exhibits list.
33. In his report of 30 January 2007 Dr Whittaker stated:
Having reviewed all of these file documents and having not yet viewed the provided video, it is my opinion that Mr Aunela does not currently have a complex regional pain syndrome, type 1. It is my opinion that if he ever had a mild complex regional pain syndrome, type 1, (RSD), then this is most likely to have developed following carpal tunnel release surgery and has subsequently resolved (as one would expect)…
However, the bulk of his presentation has all the hallmarks of abnormal illness behaviour which is being feigned by Mr Aunela and that he is capable and indeed is undertaking a much higher level of demanding physical activity than that alleged.
Having reviewed these file documents, I am of the opinion that his work capacity was not affected at all by the incident dated 19 April 1993 and indeed it is my opinion that he had a normal work capacity thereafter despite any legitimate physical conditions which may have been present.[16]
[16] Ex. R8.
34. In his report of 29 January 2007 he stated:
Having reviewed this video, it is evident that Mr Aunela has no functional impediment of the right upper limb. He demonstrates continued preference for right upper limb dominance with day to day activities. The range of movements demonstrated and the activities undertaken are clearly inconsistent with his alleged symptomatology. On no occasion were there visual or verbal displays of discomfort. He worked unassisted. He worked at a normal rate. He displayed no difficulty when driving his car.
…it is my opinion that Mr Aunela’s presentation in 1998 was a fabrication and a deliberate attempt to mislead.[17]
[17] Ex. R7.
Dr Harvey, Orthopaedic Surgeon
35. Dr Harvey examined Mr Aunela in January 2003 on behalf of Telstra. In his report of 13 January 2003[18] he expressed the opinion that it was unlikely that Mr Aunela was using his arm as little as was suggested on clinical examination. Dr Harvey expressed doubts as to the definition of Regional Pain Syndromes but he acknowledged that he was not qualified to offer an opinion on non-organic causes of pain.
[18] Ex. R10.
Dr Farnbach, Consultant Psychiatrist
36. Dr Farnbach assessed Mr Aunela in June 2008 at the request of Telstra’s solicitors. In his opinion Mr Aunela had a Chronic Major Depressive Disorder of moderate severity. This disorder related to his belief that he suffered pain and disability and was caused by the injury in 1993. However, Dr Farnbach considered that the depression caused a mild incapacity for employment but did not prevent Mr Aunela from working in a position “that does not require a high output, and where there is no element of risk which would necessitate his being alert and able to respond quickly.”[19]
[19] Ex. R15.
Dr Wright, Orthopaedic Surgeon
37. In early 1997 Mr Aunela was examined by Dr Wright on behalf of Telstra. Dr Wright reported:
He exhibits a remarkable, but inconsistent, limitation of use of the right upper limb. I am not able to make a positive diagnosis or confirm other diagnoses previously made. Thus, he appears fit to return to, at least, light duty work. He seems reasonably active on his property.[20]
[20] Ex. R18.
Ms Kent, Psychologist
38. Mr Aunela was assessed by Ms Kent on 3 November 2008 at the request of Telstra’s solicitors. She provided a Vocational Assessment report dated 15 November 2008.[21]
[21] Ex. R16.
39. Ms Kent reported:
Give [sic] the time that Mr Aunela has been out of the workforce, it would be anticipated that Mr Aunela may require training in interviewing skills and resume preparation… Mr Aunela would be a strong candidate for the following positions:
·Service Station Attendant (Console Operator)
·Sales Assistant
·Low Needs Carer
MR AUNELA’S ARGUMENT
40. It was argued by counsel for Mr Aunela that taking into account the evidence of Mr Aunela, Dr Reid and Dr Champion, we should not be persuaded that Mr Aunela’s circumstances have changed sufficiently to justify the cessation of compensation, either by way of incapacity payments or reimbursement of treatment expenses.
Dr Reid, Sports Physician
41. Dr Reid has treated Mr Aunela since January 1995. He provided reports dated 11 March 2003, 13 March 2006 and 17 December 2008 and he gave evidence.
42. When he was first consulted by Mr Aunela Dr Reid diagnosed him to be suffering reflex sympathetic dystrophy. He made this diagnosis because of the colour changes and coldness Mr Aunela was experiencing in his right arm. Dr Reid was able to confirm these changes on clinical examination. He also observed swelling of the right elbow. In his opinion Mr Aunela continues to suffer from this condition.
43. Dr Reid commenced to administer the trigger point injections in 1998. At that time Mr Aunela was taking a number of different medications, undertaking an exercise program and receiving physiotherapy. Dr Reid said that these treatments were ongoing as there was no treatment which would cure the condition. After March 2006 physiotherapy and some of the drug therapy ceased as Mr Aunela was unable to afford to continue the treatments. Treatment by way of exercise encouraging the use of the right arm, injections and some medication has continued.
44. Prior to his giving evidence Dr Reid viewed a copy of part of the surveillance video which showed Mr Aunela at the petrol station and loading bread into his utility.[22] Dr Reid was asked whether anything he saw on the video caused him to change his opinion as to Mr Aunela’s medical condition. His reply was:
No, it hasn’t. In fact it makes me happy for two reasons. One is that he’s trying to do things, and the second is that if the trigger point injections have assisted, then it allows him an improved function for a period of time.[23]
[22] Ex. A4.
[23] Transcript 9.9.08 p-87.
Dr Reid confirmed that he had administered injections to Mr Aunela the day before Mr Aunela was filmed loading bread and on the same day as he was filmed leaving Dr Reid’s surgery.
Dr Griffith, Consultant Surgeon
45. Mr Aunela was assessed by Dr Griffith in November 2006 at the request of his solicitors. Dr Griffith was of the opinion that at that time Mr Aunela suffered an ongoing Complex Regional Pain Syndrome, Type 1, previously known as reflex sympathetic dystrophy.[24]
[24] Ex. A1.
46. Dr Griffith expressed the opinion that:
… the more florid manifestations [of the syndrome] are manifested in the early stages of the condition and rapidly become attenuated to a greater or lesser degree as time passes… Because the physical symptoms are often not particularly obvious, especially when compounded by a chronic pain state, conclusions are often drawn that the condition is functional rather than actual. This is a major confounding factor in this unfortunate condition which is notorious for its chronicity.[25]
[25] Ex. A1.
47. These views were confirmed by Dr Griffith when he gave evidence. In addition, he said that early recognition and treatment of the condition is critical and that if this does not happen it tends to become more entrenched and the pain more chronic and intrusive.
48. At the time he gave evidence Dr Griffith had not seen the surveillance video, but he had read a detailed description of the activity recorded on it. Dr Griffith agreed that when he examined Mr Aunela the range of motion he demonstrated in his right arm was significantly less than that which had been described as the activity shown on the video. Dr Griffith did say that the condition is prone to exacerbation and remissions and that the injections Mr Aunela received prior to the events depicted in the video explain the marked differences in his presentation on different occasions.
Dr Champion, Consultant Physician
49. Mr Aunela first consulted Dr Champion in 1996, on referral by Dr Reid. Dr Champion provided a report dated 22 October 2008[26] and gave evidence.
[26] Ex. A5.
50. Dr Champion diagnosed Mr Aunela as suffering Complex Regional Pain Syndrome Type I, as distinct from CRPS Type II which involves a major nerve injury. Dr Champion described the conditions as “painful disorders that develop as a disproportionate consequence of trauma.”[27] He said that the disorder is characterised by:
·pain;
·disorder of active and passive movements including tremor;
·abnormal regulation of blood flow and sweating;
·an inflammatory component;
·atrophic deterioration involving changes of the organs of the skin, such as the sweat glands and the subcutaneous tissues;
·restriction of the affected limb, particularly in the early stages as a result of a patient’s fear of using the limb and causing pain.
[27] Transcript 1.7.09 p-7.
51. In the opinion of Dr Champion Mr Aunela exhibited striking signs of CPRS when he examined him in 1996. In addition Mr Aunela underwent a radionuclide bone scan on 1 April 1996. In his report Dr Champion stated:
Importantly, in the diagnosis the radionuclide bone scan on 01/04/96 showed increased bone uptake on the right side more than the left, admittedly relatively minor but important in that he was using his right hand substantially less. There were characteristic features of complex regional pain syndrome I …[28]
[28] Ex. A5 p-2.
52. In 1997 he arranged for Mr Aunela’s admission to St Vincent’s Private Hospital under his care for further treatment in relation to pain management. Whilst in hospital Mr Aunela was assessed by pain management colleagues of Dr Champion who all agreed on the diagnosis made by Dr Champion. In 1999 he reported to Dr Reid that the CPRS I in Mr Aunela’s right upper limb was “as bad as ever.”[29]
[29] Transcript 1.7.09 p-6.
53. Dr Champion re-examined Mr Aunela on 23 September 2008. Following that examination Dr Champion reported:
To date I have seen no evidence that Mr Aunela does not have genuine chronic pain and disability from complex regional pain syndrome type I/reflex sympathetic dystrophy attributable to the injury in March 1993. It is common that pain-related disability continues long-term when an individual acquires this category of disorder. His reporting to me was reasonable. The diagnosis of CRPS I/RSD was earlier definite, fulfilling virtually all criteria. He has now lost some of the criteria that characteristically occurred early but has important residual signs of CRPS I, including typical cutaneous hypoaesthesia, other impressive evidence of disordered somatosensory processing, and dyskinesia with restricted range of movements of the joints of the upper limb. He does not have muscle wasting in the forearm, which I attribute to abnormal increasing tone as part of his chronic pain disorder. He does have some wasting of muscles in the right upper arm. The skin is abnormal with old grime and he does not have the thin skin of disuse. This is consistent with his pattern of usage, which he tries appropriately to make as normal as possible.[30]
[30] Ex. A5.
54. Dr Champion also observed the surveillance video. He reported:
There was no doubt that the movements of Mr Aunela’s right upper limb were more freely performed during the two video surveillance recordings than he demonstrated during my examination today, particularly the movements observed on 28/10/06. His explanation is that for some 24 hours or so after the multiple local anaesthetic injections he was able to move more freely and to perform more, and also to exercise more with his right upper limb. He said that he took the opportunity to perform such activities and exercise in that first 24 hours or so, not only under instructions but because he wanted to do so. It is difficult to imagine that anyone would undergo up to about 19 injections of local anaesthetic in a painful limb (causing initial increase in pain) without true benefit and to do this once a week over 3 years, surely there must be a useful therapeutic response. It seems somewhat coincidental that he was filmed so soon after the local anaesthetic injections on both occasions, but I understand that to be what happened…
If these observed actions had not been preceded by therapeutic injections, I would have had to be doubtful about the veracity of his reporting. However, with his explanations and with the apparent benefit of the preceding injections, I am not able to refute the genuineness of his disorder nor am I able to say with confidence that he is exaggerating his disability overall.[31]
[31] Ex. A5.
55. When asked whether he believed Mr Aunela was feigning his reactions to testing carried out, Dr Champion expressed the view that:
Any single components of the thermido-sensory testing could very easily be exaggerated or even feigned. For example, cutaneous hyperesthesia, although counter-intuitive to most patients, could be feigned, but rather the – it’s the whole pattern which is so typical that – that is, the discrimination between the responses of different cutaneous stimuli, and the responses to repetitive stimuli and the associated motor effects, the whole disorder is so characteristic of the later consequences of complex regional pain syndrome type 1, that I would be astonished of anyone other than a pain physician could simulate that whole effect.[32]
[32] Transcript 1.7.09 p-14.
56. Dr Champion was of the view in October 2008 that Mr Aunela was capable of very light part time work of about 10 hours per week spread over the week. He confirmed this view when he gave evidence.
Mr Sutton, Clinical Psychologist
57. In 1997 Dr Reid referred Mr Aunela to Mr Sutton for assistance with pain management. Mr Sutton specialises in clinical and neuropsychology. He provided a report dated 11 June 2007[33] and gave evidence.
[33] Ex. A3.
58. Mr Aunela was treated by a colleague of Mr Sutton. The period of treatment is uncertain as the records cannot be located. Mr Sutton re-assessed Mr Aunela in June 2007 at the request of Mr Aunela’s solicitors. He has not assessed Mr Aunela since that time but in his opinion Mr Aunela’s psychiatric condition was unlikely to have changed unless there had been a major psychiatric intervention. Mr Sutton gave evidence that it was appropriate for Mr Aunela to continue to take anti-depressant medication.
59. In the opinion of Mr Sutton, in June 2007 Mr Aunela had severe Major Depressive Disorder with secondary clinically elevated anxiety. In his report Mr Sutton concluded that the especially designed and researched tests he administered clearly indicated that Mr Aunela neither malingered nor exaggerated his stated memory and cognitive symptoms (poor memory and emotions). He was also of the opinion that “there is an increasing likelihood he is not malingering other linked symptoms (which we cannot at this stage directly scientifically measure).”[34]
[34] Ex. A3.
60. Mr Sutton further reported that Mr Aunela’s perception of pain severity, his pain management perceptions and activity levels do not suggest a malingering of pain profile. In his view Mr Aunela has pre-existing personality characteristics which are very poorly adapted to managing a chronic pain condition, interpersonal conflict and medico legal adversarial systems.
Ms Shanahan, Occupational Therapist and Rehabilitation Consultant
61. Ms Shanahan assessed Mr Aunela in June 2009 at the request of his solicitors. She reported that the result of her assessment findings was that Mr Aunela did not have the capacity to work as a console operator, retail salesman or as a carer. In her opinion he was unfit for work which requires fine motor skills, sustained grip and gross motor skills with the right upper limb.[35]
[35] Ex.A10.
REASONING
62. Having carefully considered all of the evidence we are not satisfied that the circumstances have changed such as to justify a determination that on, or at any time since, 16 March 2006 Mr Aunela has not been totally incapacitated for work as a result of the injury he suffered on 19 April 1993.
63. We have paid close attention to the evidence of Mr Aunela who has shown a considerable variation in the extent to which he is restricted in using his arm from time to time. We are satisfied that during some medical examinations he has not displayed the full range of motion of which he was capable. However, this does not provide grounds for finding that Mr Aunela is no longer totally incapacitated for work. In this regard we have taken into account the evidence of Mr Sutton that Mr Aunela has pre-existing personality characteristics which are very poorly adapted to managing a chronic pain condition, interpersonal conflict and medicolegal adversarial systems.
64. In view of the evidence of Dr Reid and of Dr Champion we are not satisfied that the activities of Mr Aunela as shown on the video provide evidence of sufficiently changed circumstances to justify our affirming the decision under review. Even though Mr Aunela does appear to move more freely than he has described at times, he did say that he improved after the injections and that he tries to use his arm as much as possible.
65. Clearly there is a marked difference of opinion between Dr Reid and Dr Champion on the one hand and Dr McGill and Dr Whittaker on the other. Both views as to Mr Aunela’s condition are supported by other practitioners. Taking into account the experience of Dr Champion and his particular expertise and experience in pain management, we are not satisfied that his opinions should be disregarded in favour of the contrary view to the extent that we can be persuaded that Mr Aunela is no longer totally incapacitated for work. Our view is strengthened by the evidence of Dr Reid and Mr Sutton and the fact that both Dr Champion and Dr Reid have the advantage of having treated Mr Aunela over a long period of time. Further, Dr Champion gave a detailed description of the condition from which Mr Aunela suffers and was able to explain the changes which may occur over time.
66. We have considered whether the evidence is sufficient to persuade us that Mr Aunela’s circumstances have changed to the extent that at any time since 16 March 2006 he has been only partially incapacitated for work. There is evidence that he is capable of undertaking part-time work and even Mr Aunela acknowledged that he could try, although he did not think anyone would employ him.
67. We are not satisfied that at any time since the date of the reviewable decision Mr Aunela has been other than totally incapacitated for work. In reaching this decision we accept the views of Ms Shanahan in preference to those of Ms Kent. We do so on the basis that in the years leading up to the making of the decision to cease payments of compensation to Mr Aunela, he has not been provided, nor offered, any rehabilitation, training or part-time work to assist him in returning to the workforce. In her report Ms Kent acknowledges that Mr Aunela may require some training. In this regard we note that even when Dr McGill reported that Mr Aunela was fit to return to his employment as a linesman, it appears on the evidence before us that Telstra did not offer to again employ Mr Aunela in this capacity.
68. We do not accept the argument that after so many years of being out of the workforce and being compensated on the basis of his being totally incapacitated Mr Aunela suddenly became fit to return to work in even a part-time position without assistance to do so.
Are we satisfied that Telstra is not liable to compensate Mr Aunela for the cost of any medical treatment obtained by him after 16 March 2006?
69. Differing views have been expressed as to the value of the treatments prescribed by Dr Reid since Telstra ceased to pay compensation for medical expenses incurred by Mr Aunela. For the reasons already expressed and taking into account Mr Aunela’s continuing depression, we are not satisfied that there has been any change in circumstances which justify the decision to cease compensation. We accept the evidence of Mr Aunela and Dr Reid that the treatment and medication is of benefit to Mr Aunela.
DECISION
70. The reviewable decision made by Telstra Corporation Limited on 1 June 2006 is set aside.
71. In substitution for the decision set aside it is decided that:
1)since 16 March 2006 and at the date of this decision Telstra Corporation Limited is liable to pay compensation to Mr Aunela pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) on the basis that he has been totally incapacitated for work as a result of the injury suffered by him on 19 April 1993; and
2)since 16 March 2006 and at the date of this decision Telstra Corporation Limited is liable to pay compensation to Mr Aunela pursuant to section 16 of the Act being for treatment expenses incurred by him in relation to the injury suffered by him on 19 April 1993.
72. The parties have liberty to apply within 14 days in relation to costs; should such an application not be made, Telstra Corporation Limited shall pay Mr Aunela’s reasonable costs and disbursements incurred in these proceedings.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr P.S. Wilkins MBE, Member.
Signed: ..................[sgd]..............................................................
T. Aviram, AssociateDates of Hearing 8-9 September 2008 & 1-2 July 2009
Date of Decision 9 September 2009
Counsel for the Applicant Mr R. Livingston
Solicitor for the Applicant Mr W. Hawkins, Pamela Coward Higgins
Counsel for the Respondent Mr B. Dube
Solicitor for the Respondent Mr A. Schofield, Sparke Helmore
0
1
0