Babbington and Comcare - [2001] AATA 380

DECISION AND REASONS FOR DECISION [2001] AATA 380

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/204

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HELEN BABBINGTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr C P Webster (Senior Member) Air Marshal I B Gration (Member)

Date8 May 2001
PlaceCanberra

Decision      The Tribunal decides that the decisions of the respondent of 3 May 1999 and 16 October 2000 be affirmed.
  [Sgd C P Webster]
  Senior Member
CATCHWORDS
Compensation – whether applicant still entitled to compensation for strain of left upper trapezius levator muscle – whether applicant suffering permanent impairment under s.24 for psychiatric condition.
Safety, Rehabilitation and Compensation Act 1988 – s.24

REASONS FOR DECISION

8 May 2001 Mr C P Webster (Senior Member) Air Marshal I B Gration (Member)

Issues

Helen Babbington ("the applicant") seeks a review of two decisions of Comcare ("the respondent") namely a decision of 3 May 1999 that the applicant is no longer entitled to compensation for strain of the left upper trapezius levator muscle group suffered on 10 January 1997, and a decision of 16 October 2000 that the applicant had no entitlement to claim compensation for permanent impairment in relation to "adjustment disorder with depressed mood" under s.24 of the Safety, Rehabilitation and Compensation Act 1988

The issues to be determined are whether the applicant remained in part or wholly incapacitated for work as a result of the injury of 10 January 1997; whether she had a permanent psychiatric impairment and the degree of such impairment; and whether the applicant's injuries and/or psychiatric impairment necessitated ongoing medical treatment.

The Evidence
A – The Applicant's Case

The applicant gave evidence in person. Her evidence-in-chief was as follows:-

(a)That she commenced employment with Comcare in October 1995 as a debtors' clerk and performed that work until February 1997.

(b)In January 1997 she took on additional duties which involved keyboard work for 5 – 6 hours each day.

(c)About 2 weeks after commencing these additional duties she began to experience a tingling numbing sensation down her left shoulder blade towards her lower back.

(d)She consulted her general practitioner, Dr. Southi, in the middle of February 1997, but at that time she did not associate her problems with her work.

(e)Later, around March 1997 Dr. Southi suggested that work might have been the cause of her symptoms. The applicant then reported her symptoms to her supervisor and a work station assessment was carried out.

(f)The applicant had various other placements but her condition did not improve. On 11 August 1997 her condition was accepted by Comcare as work caused.

(g)The applicant became depressed and consulted a psychiatrist, Dr. Cullen, on 24 October 1997, but she did not advise that psychiatrist that her depression was in any way related to work.

(h)On 24 March 1998 the applicant consulted Dr. Cohen, a rheumatologist.

By June 1998 the applicant was working 4 hours per day, and by 1 August 1998 she had returned to full-time work.

(j)In August 1998 the applicant applied for work in the Department of Defence, but declined the position when it was offered to her as she didn't want her physical condition to let her new employer down.

(k)The applicant continued to have various medical treatments and to have periods off work. On 21 January 1999 the respondent rejected various claims for medical treatment and rejected a claim for reduced earning capacity.

(l)The applicant commenced working full-time hours on 18 March 1999 and continued work - although in pain - and requiring pain killers each day - until November 1999. During this period she obtained a position with the Department of Defence. In November 1999 the applicant commenced leave and on 10 December 1999 resigned from her employment.

(m)In December 1999 she worked for approximately one month making sandwiches in a catering business at Fitzroy Crossing.

(n)In February 2000 she obtained employment in Sydney as a representative of a wine sales company. This involved making telephone calls to prospective clients and visiting them with wine samples.

(o)Apart from being uncomfortable while sitting in the car, the applicant was able to perform this work, but stopped work with the company after 3 weeks as she was advised by Dr. Southi that the work had the potential to bother her. The applicant then spent time at home feeling depressed.

(p)At the end of May 2000 she obtained part-time work in a nursery and a vineyard. This work involved cutting twigs from small trees for floral displays and pruning vines. Her work averaged 2 – 3 days per week. She was able to perform this work without difficulty.

(q)On about September 2000 the applicant sought a payment of compensation for a permanent impairment, but this was denied by the respondent on 11 September 2000.

(r)At about that time the applicant returned to Sydney and performed casual receptionist work which involved answering a telephone and attending a door.

(s)Subsequent to that employment she has performed some unpaid work as a photographer's assistant and is awaiting the result of her application to enter a course in photography.

(t)The applicant indicated that she still required medication for the pain: namely, tryptanol, panadeine forte, mersyndol and panadol; and had to take this medication to enable her to work.

(u)She described her pain as being in an area 5 – 6 centimetres square at the top of her left shoulder and radiating over the back of the shoulder. She described the pain as constant.

The applicant was cross-examined at length. The applicant's evidence given under cross-examination was:-

(a)That when she saw Dr. Cullen, a psychiatrist, she did not mention any shoulder pain but saw him for psychiatric problems unrelated to her work injury.   At that time Dr. Cullen gave her a diagnosis of hypomania.
(b)That during 1997, the applicant had received pain relief from acupuncture but had ceased that treatment and had not tried acupuncture again.
(c)The applicant conceded that she is pain free fifteen per cent of the time, but always feels a "sensation" in her shoulder. However, that sensation does not cause her stress.   She stated that sitting or holding her hands/arms can cause the onset of pain.
(d)The applicant agreed with the respondent's Counsel that, prior to resigning from the Department of Defence, she had been counselled by a Ms Poulter, a personnel officer, that she should take leave rather than resign.   She also agreed that when she went to Sydney she went to live with a boyfriend.
(e)The applicant stated that in the year January 2000 to January 2001 her only medication consisted of 5 – 10 tryptanol tablets during periods of pain, for a total of approximately 35 tablets.

Dr. Southi gave evidence by telephone. He stated that he had been the applicant's general practitioner since February 1997 and had seen her on approximately two dozen occasions during 1997 and 1998.

His medical report dated 31 January 2001 was tendered in evidence. In that report he stated that "Essentially her left interscapular pain is persisting and no better than when she was in the public service" and "In summary Ms Babbington is still very much trouble[d] with the injury. Her job prospect is quite limited as a consequence."

He stated that he had not observed any significant improvement in the applicant's physical condition, but stated that he only observed a little stiffness and tenderness and relied on what the applicant had advised him regarding the pain she suffered.

He noted that the applicant was tearful when seen by him. He agreed that he had only seen the applicant twice since 1999, and had last prescribed medication for the applicant in October 1999.

Dr. Southi stated that, in his opinion, the muscular strain to the thoracic muscle still persisted because the applicant continued to complain of pain, though he would have expected in a normal case for the pain to cease once the key-boarding activities ceased.

Robert John Scott, an occupational physician, gave evidence by telephone and his reports of 17 September 1999 and 13 March 2000 were tendered.

In his earlier report he considered that the applicant had suffered a work caused strain to her shoulder muscle but did not believe she had any significant permanent impairment. He felt that her prognosis was quite good.

In his second report he affirmed his earlier opinion, but stated that suitable work for the applicant needed various restrictions.

Dr. Scott agreed that, when he had noted that the applicant's shoulder was tender and there was pain in movement, he had accepted the applicant's word for that as there was no objective evidence. He did not consider that the applicant was exaggerating her symptoms.

Dr. Scott considered that the applicant could undertake work as a receptionist.

Doctor Milton Lawrence Cohen, a consultant physician, gave evidence by telephone. He adopted his reports of 24 April 1998, 10 December 1999 and 1 February 2000.

In his first two reports Dr. Cohen diagnosed the applicant as suffering referred pain from the thoracic spine which he related to her work-duties. He considered that she suffered a degree of permanent impairment to her neck but it was not measurable in terms of the Comcare Guide for the Assessment of Degree of Permanent Impairment.

In his report of 1 February he considered that the applicant was partially impaired from performing normal office duties.

Under cross-examination Dr. Cohen agreed that he could not precisely state which structure in the spine was the source of the applicant's pain in the shoulder, but considered the pain to be emanating from that source as he "found … no other source or process which could account for the pain and the tenderness".

Dr. William Knox, psychiatrist, gave evidence by telephone on behalf of the applicant. He adopted his medical reports of 14 May 2000, 29 August 2000 and 22 January 2001.

In his latest report Dr. Knox stated that the applicant was suffering ongoing depression. He considered that she had a 10% level of permanent impairment in respect of her psychiatric condition.

In his earlier reports Dr. Knox recited the history given to him by the applicant and concluded that the applicant developed an adjustment disorder with depressed mood secondary to pain caused by a work-place injury.

He stated that, based on the history related to him, there was no evidence at all to suggest any pre-existing or underlying psychiatric illness or personality disturbance. He agreed that, if he had known, before his cross-examination, that the applicant had a 10 year history of hypomania, it would have affected his inquiries. He agreed that a psychiatrist needs all the relevant information before the psychiatrist can form a meaningful opinion.

In his oral evidence Dr. Knox was of the opinion that little could be done to improve the applicant's psychiatric condition and that she was generally unable to cope with life.

The Respondent's Case

The respondent tendered the medical reports of Dr. Dwight Dowda. The applicant's counsel did not wish to cross-examine that doctor.
Dr. Dowda, consultant occupational physician, in his report of 21 January 1999 stated that the applicant was suffering pain in the muscle of the medial border of the left scapula with no evidence of other musculo-sketetal anomaly. He believed that she would improve in suitable work.
In his report of 19 January 2001 he stated that there is no medical means by which it could be independently established whether the applicant had symptoms.
Professor Sydney Nade, a Professor of surgery specialising in orthopaedic and accident surgery, gave evidence by telephone and adopted his three medical reports which followed his assessment of the applicant on 18 August 2000. The only abnormality that the Professor could detect was a postural, and structural, sclorosis involving the applicant's spine; the cause of which is not known. He did not consider that there was any rational explanation for the symptoms the applicant said she was suffering. He did not consider that the applicant was incapacitated for work.
Dr. June Donsworth, a psychiatrist, gave evidence in person and adopted her reports of 19 June 2000, 20 November 2000 and 29 January 2001.
Dr. Donsworth could find no evidence that the applicant was clinically depressed, although the applicant showed some symptoms of emotional distress. Dr. Donsworth attributed the emotional distress, which was not severe or persistent enough to warrant a psychiatric diagnosis, as being caused by continuing symptoms of pain in the left shoulder.
She did not consider that the applicant was incapacitated due to any psychiatric problems.
Dr. Donsworth considered that the applicant was exaggerating her symptoms.
A report dated 25 January 2001 of Dr. R. Craven, a consultant neurologist, was tendered in evidence. Another report of 14 November 1998 was contained in the 'T' documents. Dr. Craven diagnosed the applicant as having suffered muscle strain affecting the posterior left shoulder, which was probably caused by a period of intensive key-boarding work. He considered that the effects of that condition had ceased by the time of his report of 14 November 1998.
Discussion of Evidence and Findings of Fact
In a review such as this, the credibility of the applicant is an important matter to consider.
Where there is an absence of, or little objective evidence that an applicant has an injury or disease, and expert medical evidence is based on the history given by the applicant, it is necessary to consider carefully the applicant's evidence.
In the present case there is no objective pathology to support the applicant's complaint of pain. The only evidence of pain is that of the applicant herself.
The Tribunal considered that the applicant deliberately exaggerated her symptoms before the Tribunal.
Her evidence was very deliberate and evasive under cross-examination. When under pressure she appeared to resort to tears to give her more time to consider her answers.
Her evidence that she had taken tryptanol as recently as October 2000 was subsequently shown to be incorrect, in that she had not taken that medication for 2 years.
She appeared to be hiding the history of her pre-claim psychiatric problems and did not advise her expert witness, Dr. Knox, a psychiatrist, of her previous treatment and history of hypomania.
The applicant also appeared to exaggerate the effects of her condition in her ability to work and her lifestyle.
Her evidence was that, because of her injuries, she had difficulties working and had to give up her work as a wine salesperson. In fact she was able to work in a variety of positions, such as making sandwiches, cutting vines; and pruning twigs without difficulty, even though such work appears inconsistent with her alleged physical injuries.
She was able to work as a wine sales representative and only gave up that work as she was advised that she might have problems performing that work in the future.
She was able to work as a receptionist and a photographer's assistant, but played down these abilities in her evidence.
Finally she appeared to wish to create the impression that she moved to Sydney as she was unable to work in the public service in Canberra, when it appeared to the Tribunal that her primary reason in moving to Sydney was to live with her longstanding boyfriend.
The Tribunal is not satisfied that the applicant was still suffering the effects of her work-related injury of 10 January 1997 by the time she left Canberra in December 1999.
In reaching this conclusion the Tribunal is influenced by the fact that, according to the applicant's own evidence, she had worked from 18 March 1999 full-time at the Department of Defence and, subsequent to her resignation worked in a number of positions performing duties inconsistent with the injury to shoulders and arms.
The Tribunal prefers the evidence of the respondent's expert witnesses Dr. Dowda, Professor Nade and Dr. Craven - to that of those called by the applicant – namely, Dr. Southi, Dr. Scott and Dr. Cohen, as the opinions of the latter were based on a history not accepted by the Tribunal. The Tribunal considers that the opinions of the respondent's experts are more consistent with the applicant's work history and medical treatment after March 1999.
The Tribunal does not accept the opinion of Dr. W. Knox that the applicant was suffering ongoing depression secondary to a work-place injury with a 10% level of permanent impairment in respect of that condition, as the Tribunal finds that that opinion is based on an incomplete and erroneous history. Dr. Knox was not aware that the applicant had a 10 year history of hypomania. He properly conceded that it was necessary for a psychiatrist to have all the relevant psychiatric history before a meaningful diagnosis could be given and that, if he had been fully aware of the applicant's psychiatric history, it would have affected his inquiries and presumably would have changed his diagnosis.
The opinion of Dr. Knox that the applicant, since leaving the public service, has generally had difficulty coping with life is accepted by the Tribunal. However, the implication that such difficulty has resulted from a work-related cause is rejected by the Tribunal as such inference ignores the pre-existence of psychological difficulties, the unlikely continuance of physical injury after the cessation of intense key-board work, and the applicant's continuing difficulty in dealing with non-work-related exigencies of life.
The findings of fact of the Tribunal are:-

(a)The applicant commenced employment with Comcare in October 1995 and worked there until February 1997.
(b)In January 1997 the applicant suffered a tingling numbing sensation down her left shoulder blade towards her lower back which, on 11 August 1997, was accepted by the respondent as work-caused.
(c)The applicant underwent medical treatment and was either totally or partially incapacitated for work until March 1999 when she obtained a full-time position with the Department of Defence. She remained with the Department of Defence until resigning her employment on 10 December 1999.
(d)By the date of her resignation from the Department of Defence on 10 December 1999 the applicant was no longer suffering any physical effects of the work-related injury of January 1997.
(e)The applicant has not suffered any psychiatric condition which can be attributed to the work-related injury of January 1997.

Decision

The decisions of the respondent of 3 May 1999 and 16 October 2000 are affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Air Marshal I B Gration (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  1, 2 and 5 February 2001
Date of Decision  8 May 2001
Counsel for the Applicant        Mr L Grey
Solicitor for the Applicant         J Pappas
Counsel for the Respondent    Ms L Gabriel
Solicitor for the Respondent    Dibbs, Barker, Gosling