Bailey and Comcare
[2006] AATA 595
•5 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 595
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/81 & A2005/193
GENERAL ADMINISTRATIVE DIVISION ) Re MARGARET BAILEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Dr M.D. Miller AO, Member Date5 July 2006
PlaceCanberra
Decision 1. The reviewable decision made 28 February 2005 that Ms Bailey’s compensable conditions had resolved is set aside. In substitution it is decided that as at the date of this decision those compensable conditions have not resolved and Ms Bailey is presently entitled to compensation in respect of those conditions under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
2. The reviewable decision made 27 June 2005 that denied liability to pay compensation to Ms Bailey for permanent impairment resulting from the compensable injuries is set aside and the matter is remitted to Comcare for reconsideration in accordance with these reasons for decision.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Ms Bailey’s reasonable costs of the applications.
..............................................
J.W. Constance, Senior Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2005/81 & A2005/193
GENERAL ADMINISTRATIVE DIVISION ) Re MARGARET BAILEY Applicant
And
COMCARE
Respondent
DIRECTION [2006] AATA 595
Tribunal J.W. Constance, Senior Member Date20 July 2006
PlaceCanberra
Direction The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application of 5 July 2006 by deleting the figure “24%” at paragraph 60 and inserting in lieu the figure “32%”.
...................................................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – Physical injury – Aggravation to right arm, shoulder and neck – Psychiatric sequelae – Depression and anxiety – Liability for injuries originally accepted – Cease effects decisions – Whether medical treatment required for either or both of the compensable injuries – Whether Applicant incapacitated as a result of either or both of the compensable injuries – Permanent impairment – Degree of impairment.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 18, 19, 20, 24, 26, 27
McDonald v Director-General of Social Security (1984) 1 FCR 354
Commonwealth of Australia v Borg (1994) 20 AAR 299
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147
REASONS FOR DECISION
5 July 2006 J.W. Constance, Senior Member Dr M.D. Miller AO, Member EVIDENCE AND FINDINGS OF FACT
1. Ms Bailey is 53 years old. After completing her schooling she worked as a pastry cook and later as a factory worker. On 9 August 1984 she commenced Employment in the Australian Public Service, at first with the Department of Social Security and then with the Australian Taxation Office. Ms Bailey continued to be employed by the Tax Office until she was retired on the ground of invalidity on 6 March 2000.
2. Dr Menon was Ms Bailey’s general practitioner from 1973 until 2004 and fortunately for those with the responsibility of making decisions in relation to Ms Bailey’s claims for compensation, he was a good record keeper. On the basis of Dr Menon’s clinical notes [1] we are satisfied that Ms Bailey experienced pain in her right hand, right shoulder and neck from early 1981 onwards. This pain was sufficiently serious to cause her to consult Dr Menon on numerous occasions.
[1] Ex. R8.
3. We are satisfied also that prior to March 1987 Ms Bailey suffered from anxiety and on at least one occasion was depressed as a result of specific problems she was experiencing unrelated to her work. This finding is based on the records in Dr Menon’s notes and his oral evidence. There is no evidence to suggest that this anxiety and depression seriously interfered with Ms Bailey’s ability to carry out her work duties.
4. In March 1987 Ms Bailey suffered an aggravation of the pain in her right arm, shoulder and neck. On the evidence before us we cannot make a finding as to the exact time this occurred or as to the precise circumstances surrounding the injury. In a claim form dated 19 May 1987 [2] Ms Bailey described the injury as “aggravation to right arm, shoulder and neck” and said that the injury first became apparent in March 1987. In answer to a question as to how the injury occurred Ms Bailey responded “normal duties such as writing constantly, pulling trolley, sorting bundles”. On 12 October 1987 liability to pay compensation was accepted in respect of “aggravation of postural strain of neck”.[3] From the document setting out the initial determination it appears that Ms Bailey had one week off work in March 1987 and one day in May 1987 as a result of this injury.
[2] Ex. A9, T5.
[3] Ex. A9, T6.
5. In June-July 1986, May 1987 and August 1987 Ms Bailey received injections in her neck. These injections were given by Dr Hoolahan on referral by Dr Menon. In a letter to another practitioner in August 1987[4] Dr Hoolahan described Ms Bailey as having neck and arm pain for five years. He also noted that Ms Bailey did respond to the injections for about two weeks.
[4] Ex. R4.
6. In November 1987 Dr Leslie removed Ms Bailey’s right first rib in an effort to relieve her pain. At the time he diagnosed her as suffering right thoracic syndrome. Dr Leslie reported that when he performed this procedure there were numerous bands present pressing on the brachial plexis. He said that this gave her reasonable relief in her arm but that she still had pains in the back of her head.[5] In February 1988 Dr Leslie again operated on Ms Bailey. He carried out a complete neurolysis of the brachial plexis and excision of the entire scalenous anterior. This gave good relief and a 95% return of function.[6] In March 1988 Dr Leslie expressed the opinion that Ms Bailey’s “original accident precipitated the thoracic outlet syndrome and that this was exaggerated and aggravated by her lifting and writing starting in 1986”.[7] The evidence before us is insufficient to make a finding as to the precise time and nature of the original accident to which Dr Leslie is referring, but we are satisfied that Ms Bailey did suffer some form of injury to her right arm before commencing employment with the Tax Office. We make this finding based on the evidence of Ms Bailey and references to such an injury in a number of the medical reports in Exhibit A9.
[5] Ex. A9, T7.
[6] Ex. A9, T7.
[7] Ex. A9, T7.
7. Despite the improvement reported by Dr Leslie Ms Bailey continued to experience pain in her right arm, shoulder and neck. In May 1990 and in July 1990 Ms Bailey was examined by Dr Somerville, Consultant Neurologist. In August 1990 Dr Somerville reported that nerve conduction studies of the right arm in May 1990 revealed no abnormality and that he could not find any physical explanation for the symptoms from which Ms Bailey suffered.[8]
[8] Ex. A9, T10.
8. In July 1993 Dr Gabrael, General Surgeon, operated to remove the fibrous tissue which had formed at the site of the previous operations. In late 1995 Ms Bailey again consulted Dr Gabrael as a result of a recurrence of her symptoms. On 3 November 1995 Dr Gabrael expressed his opinion that scar tissue entrapment of the brachial plexus was the logical explanation of the right side pain. In his oral evidence he said that such scar tissue can take between three months and three years to form.
9. In August 1996 Ms Bailey suffered a further aggravation of the condition of her right arm, neck and shoulder whilst at work. In her claim form[9] she maintained that this aggravation was contributed to by constant daily keyboard work. Comcare accepted liability for “aggravation of cervical spondylosis, neck muscle strain and brachial plexus compound especially right cervico-brachial syndrome.” [10]
[9] Ex. A9, T14.
[10] Ex. A9, T61.
10. By late 1996 Ms Bailey was taking increasing time off work because of her arm and neck symptoms. In November of that year she was assessed by a Consultant Occupational Physician Dr Crocker for the Commonwealth Rehabilitation Service. In his report of 22 November 1996[11] Dr Crocker stated that it was likely that Ms Bailey suffered from reflex sympathetic dystrophy (later known as complex regional pain syndrome) as a result of the 1987 compensable injury and/or subsequent surgical treatment and that it was “a consequence of an abnormality of the sympathetic nerve supply to blood vessels in the affected part.” [12] Dr Crocker did not record a history of symptoms or injury prior to the 1987 injury.
[11] Ex. A9, T15.
[12] Ex. A9, T15, p. 34.
11. In late 1997 the Tax Office referred Ms Bailey to Dr Adler, Specialist in Rehabilitation Medicine. In his report of 12 October 1997 [13] Dr Adler recorded Ms Bailey’s complaints at the time as being pain over the right neck, right arm and right hand. Dr Adler went on to report:
“Mrs Bailey had a rotator cuff tear complicated by a cervicobrachial pain disorder most likely a thoracic outlet type problem due to reactive shortening of the scalene muscles. She has had the full gamut of interventions for this.
There is currently no evidence of thoracic outlet syndrome and no evidence of reflex sympathetic dystrophy. There is evidence of brachial plexus irritation due [sic] commonly seen in these problems…. Overall clearly her condition has improved with time and with various surgical treatment interventions. The signs of reflex sympathetic dystrophy are no longer present….
Overall she has a genuine mild to moderate cervicobrachial pain syndrome. However it is not severe….
Her behaviour needs to be viewed in the context of a person with a usually considerable pride in her work and high personal standards. She can no longer meet these no matter how hard she tries because of the limitations of her disability. The person she really is disappointed with is herself….Essentially she has still not really adjusted to the permanence of the impact of her right arm limitations on her life….
The underlying medical condition is permanent with little further physical recovery unlikely.” [14]
[13] Ex. A9, T17.
[14] Ex. A9, T17
12. From 1997 onwards steps were taken to assess Ms Bailey’s psychological state and whether she was suffering any psychiatric sequelae of the compensable injuries. Dr Menon referred her to Dr Kennett, Clinical and Educational Psychologist, who assessed her in January 1998. On reviewing Ms Bailey’s work situation Dr Kennett reported that:
“No recognition has been made by the employer that Ms. Bailey, a seriously at risk employee who is often in severe pain and under a rehabilitation program, has lasted two years in a position where normal employees sometimes only last 6 weeks, because the duties are very stressful and demanding….
Ms. Bailey needs an improved work environment with clearly defined duties rather than a series of what can and cannot be done…..
She needs considerable psychological therapy and counselling and the personnel with whom she works need new direction and an objective approach to resolution.”
13. At the request of the Tax Office Ms Bailey was reassessed by Dr Crocker in July 1998. Dr Crocker reported the Ms Bailey continued to exhibit features consistent with a significant depressive syndrome. Dr Crocker in turn referred Ms Bailey to Ms Yeomans, Consultant Psychologist, as part of a final attempt to have Ms Bailey return to her employment. Ms Yeomans reported Ms Bailey having presented as “a somewhat histrionic woman who is emotionally labile”. She was of the opinion that Ms Bailey “would benefit from a Desensitisation Program combined with Pain Management Counselling, as Ms Bailey is now currently preferring to avoid the workplace altogether”. [15]
[15] Ex. A9, T20.
14. Twelve months later, in July 1999, the Tax Office referred Ms Bailey to Dr Matalani, Consultant Occupational Physician. This referral was for assessment in relation to Ms Bailey’s eligibility for retirement on invalidity grounds. Dr Matalani’s report of 23 July 1999[16] notes Ms Bailey’s complaint of a continuous burning ache from the upper right arm down to the fingers. Dr Matalani diagnosed Ms Bailey as suffering from brachial plexus irritation and cervico brachial pain syndrome. In his opinion the condition was permanent and Ms Bailey was permanently incapacitated for work due to her physical and mental condition.
[16] Ex. A9, T26.
15. On 4 January 2000 a Panel Report to the trustees of Ms Bailey’s superannuation fund reviewed the medical evidence as to the stated reasons for Ms Bailey’s disability, namely, cervico brachial syndrome and depression. The panel recommended the granting of an Invalidity Retirement Certificate on the ground of total and permanent incapacity.[17] On 6 March 2000 Ms Bailey was retired on invalidity grounds.
[17] Ex. A9, T29.
16. Dr Bokor, a Specialist in Shoulder Surgery, examined Ms Bailey on referral from Dr Menon in July 2000. In Dr Bokor’s view Ms Bailey’s clinical presentation suggested cervical or brachial plexus irritation but that it was unlikely that there was significant rotator cuff pathology. From references in later medical reports it appears that Ms Bailey has informed other doctors that Dr Bokor was able to exclude rotator cuff pathology.
17. Dr Dowda, Consultant Occupational Physician, examined Ms Bailey at the request of her solicitors in September 2002. Having examined Ms Bailey he was of the opinion that a diagnosis of complex regional pain syndrome (formerly reflex sympathetic dystrophy) was not a reasonable diagnosis. However he stated that he had no reason to doubt her presentation of history relating to chronic right upper limb pain. Further, he considered the diagnosis of thoracic outlet syndrome to be “quite contentious” and that when she presented for examination Ms Bailey had no diagnosable condition. He concluded:
“It is unfortunate and frustrating that from 1987 through to the present time, with four operations, at least two formal pain management programs and ongoing psychiatric and psychological consultation, a specific diagnosis does not appear to have emerged.”
18. Dr Mellick, Consultant Neurologist, examined Ms Bailey at the request of Comcare in November 2002. Dr Mellick was of the opinion that, apart from the obvious evidence of surgical intervention, there was no evidence of an organically determined abnormality, and in particular, no evidence of a neurological disorder. In his view the sensory changes determined on examination could only have a psychogenic basis. When giving evidence Dr Mellick explained that his reason for forming this opinion was that the physical signs exhibited by Ms Bailey did not conform to the normal pattern of disordered anatomy and physiology. He accepted that the incident in 1987 may have resulted in muscle strain but he said that this type of injury would be expected to have fully resolved within six to eight weeks. He was of the same view in relation to the 1996 incident and he said that there was no neurological basis for saying that the problems she now experiences are a result of the surgical intervention.
19. Dr Mellick did not agree with Dr Gabrael’s opinion that a regrowth of scar tissue was a likely cause of Ms Bailey’s symptoms. His reasons were twofold – the removal of the scar tissue did not cause an improvement in Ms Bailey’s condition and Ms Bailey did not describe symptoms which could be explained by the presence of scar tissue.
20. Dr Menon, Ms Bailey’s general practitioner gave evidence. He said that the presence of the fibrous band attached to the first rib which was detected at the time of the removal of the rib indicates Ms Bailey has a predisposition to form fibrous tissue. In his view it was the scar tissue which had reformed which was irritating the brachial plexus and causing a range of symptoms from which Ms Bailey suffers, including a weakness in grasping and holding items in her right hand.
21. Dr Menon referred Ms Bailey to Professor Kennett and Dr Berecry as he believed she was suffering from work-related stress. Prior to doing this he had never felt the need to refer her for any intensive counselling, psychiatry or psychology.[18] He did not agree with Dr Skinner’s opinion that Ms Bailey has always suffered from anxiety and depression and the incidents at work were no more than aggravating factors. In his view, with reference to his records going back to 1973, Ms Bailey had not presented as depressive although she had experienced a number of events (unrelated to her work) which would have caused her to feel depressed from time to time.[19] In the 24 years between 1973 and 1997 nothing in Ms Bailey’s presentation had caused Dr Menon to consider it necessary to refer Ms Bailey to a psychologist or a psychiatrist.
[18] Transcript of Proceedings, 19.4.06, p. 125.
[19] Transcript of Proceedings, 19.4.06, p. 126.
22. Counsel for Comcare took Dr Menon through his clinical notes in great detail and referred him to the many occasions on which Ms Bailey had complained of right hand and arm pain both prior to and after the 1997 incident. Counsel also referred Dr Menon to his records which indicated that after 1997 there were a number of periods of up to two years when Ms Bailey did not complain of such symptoms. Dr Menon, however, did not resile from the opinions he had expressed in his reports and oral evidence nor was he challenged as to those opinions.
23. In a report of 3 September 2004 [20] Dr Menon summarized his views as to Ms Bailey’s mental state as follows:
“….Ms Bailey also alleges that she was unduly harassed by her immediate superiors at work. She also was upset by the allegedly unsympathetic attitude of several specialists that she had to see at the request of her employers. One of these in fact supplied her with narcotic tablets that she later handed over to me as they were causing her to be unduly drowsy and depressed (the tablets were not identified on the label).
Her emotional state worsened – in my opinion, as a consequence of the above incidents – and I had to seek the assistance of Dr. David Berecry, psychiatrist, and Dr. Keith Kennett, clinical psychologist. She required regular consultations with both Dr. Berecry and Dr. Kennett for long periods. At this time, she now has to continue to see Dr. Berecry as well as having to attend at my rooms for review and treatment of her physical problems as well…..
However, both Dr Berecry and I are of the opinion that her condition is not permanently resolved and that she will need to have on-going medical supervision and treatment….
I have no doubt that Margaret Bailey has suffered significant injuries, both physical and emotional, as a result of events at her workplace at the Australian Taxation Office (Parramatta).
I have no doubt that these injries [sic], both physical and emotional, are the major factors that have contributed to the fact that she will not be able to engage in gainful employment within the limits of her age, training and past work experience.
As her treating doctor for the past 31 years, I can state that she has in the past coped well with her normal stresses of life, such as breavement [sic], without the need for psychiatric intervention.” [21]
[20] Ex. A9, T50.
[21] Ex. A9, T50.
24. In October 2005 Dr Menon reported that Ms Bailey’s condition is “relatively stable, as a result of treatment with her current medication, and counselling.” [22]
[22] Ex. A7.
25. In July 2005 Ms Bailey was examined by Dr Stevenson, Consultant Physician, on behalf of Comcare. He agreed with Dr Mellick that there was no evidence of musculoskeletal or neurological damage but that Ms Bailey may well have had a soft tissue strain which he expected would have healed in days or weeks.[23] In his report Dr Stevenson went on to express the opinion that thoracic outlet syndrome is a very rare condition and diagnoses of it were often incorrect. He supported this view by reference to various journal articles and reports. He also said that the physical symptom of pain (often localised in the neck, arm or back) may be an early manifestation, rather than the cause, of a psychological illness. On examination he found Ms Bailey to have minor restrictions on elevation of the right arm and reduced grip strength which he was unable to explain in terms of musculoskeletal or neurological pathology. In cross-examination Dr Stevenson agreed that brachialgia, which he defined as Greek for a “sore arm”, was descriptive of a symptom which may be due to physical or psychological factors.[24]
[23] Ex. R9.
[24] Transcript of Proceedings, 19.5.06, p. 14.
26. The two psychiatrists who have assessed Ms Bailey gave evidence concurrently. Dr Berecry has treated Ms Bailey since May 1998 and still treats her at monthly or three-monthly intervals. Dr Skinner examined Ms Bailey on behalf of Comcare in October 2005. Both agree that Ms Bailey is suffering from anxiety and depression. Dr Berecry is of the opinion that the depression is a reaction to the injury in 1987, to the increasing pain disability and problems experienced at work. Dr Skinner is of the view that the anxiety and depression has been present since the 1970’s, either ongoing or with exacerbations.
27. Dr Berecry justified his view on the basis that if Ms Bailey had a consistent chronic anxiety state she would have been on medication consistently and would have been complaining of symptoms consistently to Dr Menon. Dr Skinner’s opinion is that Dr Menon’s clinical notes document evidence both of complaints by Ms Bailey and of medication being prescribed to her by treating doctors. This supports her diagnosis of an ongoing depressive state.
28. Dr Berecry referred to the symptoms of depression (as distinct from anxiety) as including early morning waking and loss of concentration. Dr Skinner added “sleep disturbance, loss of appetite with weight loss, crying, losing interest in activities that were previously enjoyed, losing interest in friends and any kind of social activity, poor memory and concentration to the point of affecting the person’s work or employment tor ability to watch television or concentrate on their reading material, quite often a physical slowing of movement so that the person just does things more slowly than previously.” [25] Dr Berecry agreed.
[25] Transcript of Proceedings, 18.5.06, p. 46.
29. Dr Skinner accepted that there may have been an exacerbation of Ms Bailey’s underlying anxiety condition in about 1997 or 1998 caused by her physical condition. In her opinion other events experienced by Ms Bailey (eg. the death of her mother and other family problems) caused the underlying anxiety and depression to take over from about 1999 to 2000.[26] Dr Skinner also agreed that the loss of employment in 2000 may also have been a relevant factor.[27]
[26] Transcript of Proceedings, 18.5.06, p. 32.
[27] Transcript of Proceedings, 18.5.06, p.44.
30. At present Ms Bailey suffers continuing pain in her right shoulder, neck and right side of her face. The intensity of this pain varies.[28] At times she has difficulty holding objects in her right hand and has to use both hands to pick up an item such as a jug.[29] In September 2002 Dr Dowda reported that “repeated grasping and holding are associated with increasing pain and disability in the right arm……” [30]
[28] Transcript of Proceedings, 18.4.06, p. 33.
[29] Transcript of Proceedings, 18.4.06, p. 37.
[30] Ex. A9, T36, p. 10.
31. In February 2006 Dr Berecry reported that Ms Bailey suffers from Chronic Major Depression, anxiety and panic attacks which are likely to continue on a long term basis. He also reported that her condition causes her to lead a markedly restricted social life and to be unable to work. She is consistently anxious and depressed and at times actively suicidal.[31]
[31] Ex. A10.
32. We accept this evidence as to the current effects of Ms Bailey’s condition.
LEGISLATION
33. Subsection 16(1) of the Act provides:
“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.”
34. Payment of compensation for periods of incapacity in the case of an employee who has retired is provided for by section 20 of the Act. Subsection 20(2) provides:
“Comcare is liable to pay compensation to the employee, in respect
of the injury, in accordance with this section for each week after
the date of the retirement during which the employee is
incapacitated.”
When this subsection is read in conjunction with subsection 20(1) it is clear that it is referring to incapacity to work as a result of an injury within the meaning of the Act.
35. Section 24 provides for the payment of compensation in respect of an injury which results in permanent impairment unless the degree of permanent impairment is less than 10%. The degree of permanent impairment is calculated in accordance with the approved guide.
36. Section 27 provides for additional compensation for non-economic loss where compensation is payable under section 26. This compensation is also calculated in accordance with the approved guide and covers such matters as pain and suffering and loss of enjoyment of life.
THE REVIEWABLE DECISIONS
37. On 28 February 2005 Comcare affirmed a decision to cease liability to compensate Ms Bailey for medical treatment obtained in relation to the injury (section 16) and for loss of earnings (section 20).
38. On 19 September 2002 Ms Bailey made a claim for compensation for permanent impairment as a result of “right shoulder strain complicated by reflex sympathetic dystrophy and psychological condition”. By a decision of 27 June 2005 Comcare affirmed a decision that denied liability for permanent impairment.
THE ISSUES FOR DETERMINATION
39. In McDonald v Director-General of Social Security (1984) 1 FCR 354 at 369 Jenkinson J. dealt with the question of the proper determination of the issue or issues to be decided by this Tribunal:
“There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision.”
40. In Commonwealth of Australia v Borg (1994) 20 AAR 299 the Full Court of the Federal Court considered circumstances similar to those before us. The Court was dealing with the Act in force prior to the present Act but the principle is equally applicable. In that matter Jenkinson J. said that a decision that compensation is not payable (in a situation where it has been paid previously) should not be made unless the decision maker “was persuaded that one of the entitling circumstances had on or before [the date of the decision] ceased to exist.”
41. On the basis of the above the following issues require determination.
1)Are we persuaded that since 5 February 2004 Ms Bailey has not required medical treatment for either or both of the compensable injuries suffered in March 1987 and in August 1996?
2)Are we persuaded that since 5 February 2004 Ms Bailey was not incapacitated as a result of either or both of the compensable injuries?
3)Have either or both of the compensable injuries resulted in permanent impairment of Ms Bailey?
4)If so, what is the degree of that permanent impairment?
DETERMINATION OF THE ISSUES
Are we persuaded that since 5 February 2004 Ms Bailey has not required medical treatment for either or both of the compensable injuries?
Are we persuaded that since 5 February 2004 Ms Bailey was not incapacitated as a result of either or both of the compensable injuries?
42. These two issues can be determined together as there is no suggestion from Comcare that if Ms Bailey is incapacitated she should not continue to receive medical treatment for her condition.
43. There is substantial evidence from Ms Bailey’s treating doctors which supports the view that Ms Bailey suffered both a substantial physical injury requiring surgical intervention (the effects of which are continuing and require treatment) and a substantial psychiatric injury requiring ongoing treatment. The evidence of Dr Menon and Dr Gabrael and the reports of Dr Leslie, Dr Crocker, Dr Adler, Dr Bokor and Dr Matalani all support the view that Ms Bailey suffered from a physical condition involving the right brachial plexus and that this condition is either ongoing or was continuing at the time of the reports.
44. Comcare argues that each of the compensable injuries, being the aggravations which occurred in 1987 and 1996, would have ceased to have an effect within either a few weeks or three months at the most. The evidence in support of this view was given by Dr Mellick and Dr Stevenson.
45. Whilst Dr Mellick and Dr Stevenson are firm in their views that Ms Bailey no longer suffers any physical effects of the injuries we are not persuaded that their views should be preferred to those with contrary opinions. In reaching this conclusion we have taken into account that those with contrary opinions include Ms Bailey’s treating doctors who have been in a position to assess Ms Bailey on an ongoing basis over a number of years. We also take into account the opinion of Dr Gabrael that scar tissue entrapment of the brachial plexus was the logical explanation of the right side pain. Dr Gabrael has the advantage of having operated on Ms Bailey and having observed the condition of the scar tissue. His view is consistent with Ms Bailey’s reporting of some improvement in her condition following the operation and then a worsening of her pain by the time Dr Gabrael reassessed her in 1995. In addition we have the assessment of Dr Crocker that it is likely that Ms Bailey suffers from chronic pain syndrome as a consequence of an abnormality of the nerve supply to the affected part as a result of the 1987 injury and/or the subsequent surgical treatment. Even though in 1987 Dr Adler was of the opinion that there were no signs of reflex sympathetic dystrophy he did diagnose a mild to moderate cervical brachial pain syndrome and recognized that Ms Bailey’s right arm condition had a permanent impact on her life.
46. Taking into account the various views and applying the law set out above we are not persuaded by the evidence presented by Comcare that Ms Bailey no longer suffers from the physical effects of the compensable injuries.
47. We now turn to consider the evidence as to Ms Bailey’s psychiatric condition. Again there are differing views expressed by those who have assessed Ms Bailey. Bearing in mind that in June 1999 Comcare accepted liability for depression secondary to the physical condition, we are not persuaded that Ms Bailey is no longer incapacitated by such depression. Both Dr Berecry and Dr Menon are of the opinion that she continues to suffer depression caused by the compensable injuries and her treatment as an employee of the Tax Office. They are her treating doctors and have been consulted by her on many occasions. Their opinions are supported by Dr Kennett. Even Ms Yeomans recognized the need for pain management counselling from which we conclude that she considered Ms Bailey was experiencing a degree of pain.
48. On the other hand Dr Skinner had only one opportunity to assess Ms Bailey and relied heavily upon the records kept by Dr Menon in forming her view that Ms Bailey’s present psychiatric condition is a result of chronic underlying anxiety and depression. However when one considers the symptoms of depression (as distinct from anxiety) agreed by Dr Skinner and Dr Berecry, Dr Menon’s notes do not support a finding of chronic depression prior to 1997. Certainly there is evidence of episodes of depression associated with various events in Ms Bailey’s life and there is evidence of the prescription of anti-depressant medication on occasions. We also take into account that Dr Skinner agreed that if Ms Bailey continues to have ongoing physical symptoms these symptoms would be aggravating her psychological condition. As we have stated we are not persuaded that the physical symptoms of the injuries have ceased.
49. We also have taken into account that while Ms Bailey suffered episodes of arm pain for many years before starting work at the Tax Office she was able to continue working effectively until around 1996. It was after she suffered two aggravations of her condition with consequent medical intervention and difficulties at work that Ms Bailey began to suffer ongoing depression. This depression was sufficiently serious and ongoing to cause Comcare in 1999 to accept it as a compensable sequalae of her physical injuries and to be a factor in her invalidity retirement in 2000.
50. Comcare’s argument that Ms Bailey had recovered from the compensable injuries within a few months of each injury is not supported by its own expert evidence. Dr Skinner’s opinion is that the underlying anxiety and depression took over from the effects of the injuries from about 1999 to 2000.[32]
[32] Transcript of Proceedings, 18.5.06, p. 32.
51. Counsel for Ms Bailey argued that in accordance with the principles discussed by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 the delay by Comcare in deciding that Ms Bailey was no longer entitled to compensation has resulted in the quality of the evidence before us being diminished. Counsel argued that on this basis we should exercise extreme caution in relying upon evidence as to the state of Ms Bailey’s health over 20 years ago. Whilst it has not been necessary to rely on such a principle in this matter to enable us to reach the conclusion we have, in our opinion there is considerable merit
in this argument. Comcare now urges us to find that the March 1987 injury and the August 1996 injury had each resolved within a few months of occurring. Comcare relies on the opinion of Dr Skinner based substantially on the notes of Dr Menon going back 20 years. Counsel for Comcare took Dr Menon through his notes in great detail and cross-examined him at length on entries beginning on 9 February 1976. There can be no doubt that the delays of almost seventeen years and eight years respectively, in making decisions to cease payments, has made the task of all involved in this matter unnecessarily difficult and the situation for Ms Bailey unnecessarily stressful.
Has either or both of the compensable injuries resulted in permanent impairment?
52. Section 4 defines “impairment” as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.
Subsection 24(2) provides:
“For the purpose of determining whether an impairment is
permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable
rehabilitative treatment for the impairment; and
(d) any other relevant matters.”
53. We are satisfied that the aggravation of cervical spondylosis, neck muscle strain and brachial plexus compound (especially right-cervico-brachial syndrome) and secondary depression are an impairment within the meaning of section 4. On the basis of the evidence of Dr Menon,[33] Dr Dowda,[34] and Dr Adler,[35] Ms Bailey’s right arm is malfunctioning in that it is causing her to suffer pain and is affecting the manner in which she is using her limb. This malfunction is confirmed by Ms Bailey’s invalidity retirement in 2000 partly as a result of cervico-brachial syndrome.
[33] Ex. A9, T24.
[34] Ex. A9, T36, p. 8.
[35] Ex. A9, T17, p. 41.
54. We are also satisfied that depression is a malfunction of a bodily system and is therefore an impairment. This was not in issue at the hearing.
55. On the basis of the evidence of Dr Menon, Dr Dowda and Dr Adler, to which we have already referred, we are satisfied that the impairment arising from the physical injuries is permanent. Dr Matalani is of the opinion also that Ms Bailey is permanently incapacitated for work in part due to her physical condition.[36] We have taken into account that Ms Bailey has suffered ongoing pain and weakness in her right arm and hand since about 1997. On the medical evidence it is unlikely that this condition will improve. We are satisfied that over many years Ms Bailey has undertaken all reasonable rehabilitative treatment, including surgical intervention, pain management courses and medication.
[36] Ex. A9, T26.
56. On the basis of the evidence of Dr Menon and Dr Berecry we are satisfied that the depression suffered by Ms Bailey is permanent. Dr Skinner agrees that Ms Bailey has chronic depression.[37] We are satisfied that this condition has existed since about 1997 and is unlikely to improve. We are satisfied also that Ms Bailey has undertaken all reasonable rehabilitative treatment as advised by Dr Menon and Dr Berecry.
[37] Transcript of Proceedings, 18.5.06, p. 8.
What is the degree of permanent impairment?
57. Table 9.4 of the Guide deals with loss of function of the upper limb. On the basis of the evidence of Ms Bailey which we have accepted, we find that Ms Bailey has suffered a 20% whole person impairment as a result of the loss of function of her right arm and hand. We are satisfied that she can use the limb for self care but has difficulties grasping and holding.
58. Psychiatric conditions are dealt with in Table 5.1 of the Guide. In
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147 the Federal Court upheld the Tribunal’s rejection of a narrow “all or nothing” approach to the interpretation of the definition of “activities of daily living”. The Federal Court held that the definition was not limited to the basic mechanics of the bodily functions described, but weight must be given to the psycho-social aspects of the particular activities.[38] In that case the injured worker was living by himself and relied on professional help in the form of counselling to keep his life on track. This was held to indicate a need for “some supervision or direction”.[39]
[38] At p. 151.
[39] At p. 151.
59. On the basis that Ms Bailey continues to need ongoing treatment by Dr Menon and Dr Berecry and to take medication for her psychiatric condition we are satisfied that she does have need for some supervision and direction in activities of daily living. On the basis of the evidence that Ms Bailey’s psychiatric condition causes her to be unable to return to her employment and to markedly restrict her social life we are satisfied that she has a reaction to stressors of daily living which cause modification of her daily patterns. We are also satisfied that her continuing anxiety and depression, with panic attacks and at times being actively suicidal, amount to a marked disturbance in thinking and also a definite disturbance in behaviour. Any one of these three states, when combined with the need for supervision and direction in activities of daily living, is sufficient for a 15% whole of person impairment under Table 5.1.
60. The degrees of impairment determined above give a combined value of 24% under the chart provided by the Guide.
DECISION
61. The reviewable decision made 28 February 2005 that Ms Bailey’s compensable conditions had resolved is set aside. In substitution it is decided that as at the date of this decision those compensable conditions have not resolved and Ms Bailey is presently entitled to compensation in respect of those conditions under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
62. The reviewable decision made 27 June 2005 that denied liability to pay compensation to Ms Bailey for permanent impairment resulting from the compensable injuries is set aside and the matter is remitted to Comcare for reconsideration in accordance with these reasons for decision.
63. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Ms Bailey’s reasonable costs of the applications.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 18 - 20 April 2006, 18 & 19 May 2006
Date of Decision 5 July 2006
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms E. Ford
Solicitor for the Respondent Sparke Helmore
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