Bennett and Comcare
[2008] AATA 113
•13 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 113
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2004/337, A 2006/258
GENERAL ADMINISTRATIVE DIVISION ) Re KERRY BENNETT Applicant
And
COMCARE
Respondent
DECISION
TribunalJ.W. Constance, Senior Member
Dr M.D. Miller AO, Member
Date13 February 2008
PlaceCanberra
Decision A 2006/258
1. In matter A 2006/258 the reviewable decision of Comcare made 24 October 2006 is set aside and the matter is remitted to Comcare for reconsideration in accordance with the following directions:
1) Comcare is liable to compensate Ms Bennett in respect of the injury suffered by her on 10 December 1996 being an injury to her cervical spine and the injury suffered by her no later than September 2003 being a chronic adjustment disorder with mixed anxiety and depressed mood;
2) since 7 November 2001 Ms Bennett has suffered, and at the date of this decision continues to suffer, chronic cervical spine pain;
3) since 7 November 2001 Ms Bennett has been, and at the date of this decision is, partially or totally incapacitated for work as a result of the injury or injuries;
4) since 8 March 2002 Ms Bennett has obtained medical treatment in respect of the injury to her cervical spine which it was reasonable for her to obtain in the circumstances;
5) since September 2003 Ms Bennett has obtained medical treatment in respect of the injury being a chronic adjustment disorder with mixed anxiety and depressed mood which it was reasonable for her to obtain in the circumstances.
2. In relation to the matter A 2006/258, the parties have liberty to apply within 14 days in relation to costs. Should such an application not be made then Comcare shall pay the costs of the proceedings incurred by Ms Bennett.
A 2004/337
3. In matter A 2004/337 the reviewable decision of Comcare made 27 July 2004 is affirmed.
....................................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – Unspecified injury to neck, shoulders and upper arm – Comcare ceased liability – Whether Applicant still suffers from work related injury - Whether Applicant entitled to compensation under sections 16 and 19 – Decision set aside and substituted
COMPENSATION – Commonwealth employees – Chronic cervical spine pain, anxiety/depression - Whether injury resulted in permanent impairment – Reasonable medical treatment not exhausted - Condition is not permanent - Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 19, 24
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
13 February 2008
INTRODUCTION
1. On 10 December 1996 Ms Bennett was injured in somewhat unusual circumstances as she was leaving her workplace to take her lunch break. She was struck on her right side by a cyclist travelling at sufficient speed to have become airborne at the time.
2. For some years Ms Bennett received compensation from Comcare in respect of the injury she suffered in the incident. However in October 2006, Comcare decided that from 7 November 2001 onwards Ms Bennett was not incapacitated for work, and that from 8 March 2002 she did not require any reasonable medical treatment as a result of the injury. Comcare has also refused to compensate Ms Bennett in respect of a psychiatric condition which Ms Bennett claims she has suffered as a result of the injury and which she alleges has resulted in permanent impairment.
3. For the reasons which follow we have decided that the first of these decisions should be set aside. The second decision shall be affirmed.
FINDINGS OF FACT
4. Unless otherwise stated the following findings of fact are made on the basis of the evidence of Ms Bennett. We are satisfied of the facts found on the balance of probabilities.
5. On 10 December 1996 Ms Bennett was an employee of the Department of Health and Ageing. On that day, as she was leaving the building in which she worked, she was struck on the right side of her head, neck and upper body by a cyclist. The cyclist was airborne at the time and was travelling at considerable speed. Ms Bennett was struck on the side of her head by the helmet being worn by the cyclist. The force of the collision caused Ms Bennett to fall onto her left side and she sustained abrasions and bruising. She felt dazed for some time after the incident.
6. Ms Bennett consulted her general practitioner, Dr Morris, within a few days of the incident and has continued to consult him in relation to her condition. In March 1997 she sought chiropractic treatment for ongoing pain in her right shoulder and underwent regular chiropractic treatment for the following three months. In September 1997 Ms Bennett consulted an osteopath and obtained treatment for neck pain.
7. During early 1998 Ms Bennett experienced several episodes of neck pain. In November and December of that year she suffered episodes of severe pain in her right neck and jaw. She again consulted Dr Morris and undertook acupuncture, osteopathy and physiotherapy by way of treatment. These treatments together with medication provided some relief.
8. During 1999 Ms Bennett continued to experience pain in her neck and jaw and suffered restriction in the movement of her neck. There were times when she was pain free. She continued with physiotherapy and osteopathy and continued to take medication for the pain.
9. In 2000 Ms Bennett experienced pain on a daily basis. She continued with treatment by osteopathy, physiotherapy and medication. On occasions she left work early by reason of the pain she was suffering. She continued to consult Dr Morris.
10. In July 2001 Ms Bennett and her husband finalised the purchase of a pet boarding and nursery business in Canberra. Ms Bennett ceased working at the Department of Health at this time although at the time of the hearing of this matter her employment by the Department had not been terminated. The business was purchased to provide Ms Bennett with an alternative form of employment as she was of the opinion that she could not continue with her work at the Department by reason of her injury. Ms Bennett employed a number of staff to assist in running the business but she intended to work in the office of the business for 5½ hours per day. Having commenced business operations she found that she was unable to continue as she planned as the pain in her neck making her unreliable. She employed a person to do the work she intended to do.
11. In February 2001 Ms Bennett consulted Dr Corry, a specialist in pain management. She commenced a series of exercises which improved her condition and in particular allowed her to regain almost full movement of her neck. She still suffered pain on a daily basis and still required analgesia.
12. Ms Bennett continues to suffer pain in the right side of her neck on most days. She identified the source of the pain as being at the right lateral angle of her neck which spreads to her right scapular area and causes headaches. At times the pain is intermittent throughout the day; at times it continues all day. She takes medication for pain relief most days but tries to limit the amount of medication taken.
THE REVIEWABLE DECISIONS
A 2006/258
13. On 14 May 2001 Ms Bennett lodged a claim for compensation in respect of the injury she claimed to have suffered in the incident. The medical certificate by Dr Morris which accompanied the claim stated that Ms Bennett was suffering from neck, head and right temporomandibular pain.[1] Comcare accepted liability for an unspecified injury to the right shoulder and upper arm. This decision was reconsidered in 2002 and again in October 2006. On the latter occasion it was decided that:
[1] Ex. R15.
·liability was accepted for temporary strain to the cervical spine which occurred on 10 December 1996;
·liability was not accepted for any injury to the right shoulder/ upper arm;
·Ms Bennett’s claim for incapacity payments for the period 7 November 2001 to 8 March 2002 was disallowed;
·as at 8 March 2002 Ms Bennett did not suffer any incapacity for work or reasonable need for medical treatment in respect of the injury;
·as at 26 April 2006 Ms Bennett did not suffer an incapacity for work or reasonable need for medical treatment in respect of the injury.
Ms Bennett is seeking a review of this decision.
A 2004/337
14. On 28 January 2004 Ms Bennett lodged a claim for compensation for permanent impairment claimed to have resulted from the injury. The current condition of Ms Bennett was described as “chronic cervical spine pain, depression and anxiety”. [2] On reconsideration Comcare decided that there was no liability to compensate Ms Bennett in respect of permanent impairment. Ms Bennett seeks a review of this decision.
[2] Document T81 A2004/337.
ISSUES FOR DETERMINATION
15. In matter A 2006/258 it is necessary to decide the following issues:
1) at any time since 7 November 2001, and if so, for what period or periods, has Ms Bennett been incapacitated for work as a result of an injury suffered as a result of the incident of 10 December 1996?
2) has Ms Bennett obtained medical treatment in relation to the injury which it was reasonable to obtain since 8 March 2002?
16.In matter A 2004/337 it is necessary to decide:
1)has Ms Bennett suffered chronic cervical spine pain, depression and anxiety as a result of the incident on 10 December 1996;
2)if so, has the injury resulted in an impairment;
3)if so, is the impairment permanent?
DETERMINATION OF THE ISSUES
A2006/258
At any time since 7 November 2001, and if so, for what period or periods, has Ms Bennett been incapacitated for work as a result of an injury suffered as a result of the incident of 10 December 1996?
17.Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Division 3 provides for compensation for injuries resulting in incapacity for work.
18. As Ms Bennett was receiving incapacity payments prior to 7 November 2001, in order to affirm the decision that Ms Bennett is not entitled to compensation for incapacity since that date we need to be persuaded that there has been some change in circumstances to justify the cessation of the payments which were being made: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307.
19. Comcare has argued that since 7 November 2001 Ms Bennett has not suffered from any physical injury causally related to the incident on 10 December 1996. It was argued that it was of crucial importance that Ms Bennett’s initial complaint to Dr Morris was recorded by him as a complaint of pain in the shoulder and not the neck, and that there were considerable periods during which Ms Bennett did not seek treatment between the time of the incident and when she lodged her claim in May 2001. Counsel argued further that the pain of which Ms Bennett complains worsened in times of stress associated with events unrelated to the original injury.
Medical evidence and opinion
20. Dr Morris provided two reports [3] together with a copy of his clinical notes.[4] He also gave evidence. He first saw Ms Bennett in relation to the injury on 18 December 1996. She then consulted him in March 1997, December 1998, March 2000 and January 2001. However Dr Morris’ records confirm the evidence of Ms Bennett that in the intervening periods she obtained alternative treatment for her neck pain. Ms Bennett consulted Dr Morris on five occasions in 2001 in respect of her injury. When he reported to Comcare in February 2002 Dr Morris was of the opinion that Ms Bennett’s prognosis depended on psychological factors as well as physical factors.[5]
[3] Exs. A11 & A12.
[4] Ex. R1.
[5] Ex. A11.
21. Dr Morris gave evidence that Ms Bennett had suffered severe headaches arising from the back of her neck and that these had persisted for years. In his opinion she suffers from anxiety and depression as a result of “the unrelenting and recurring nature of her pain and the fact that it prevents her from holding a job, or getting on with her life.” [6]
[6] Transcript 17.12.07, p.96.
22. In February 2001 Ms Bennett consulted Dr Corry, Consultant in Rehabilitation and Pain Medicine, on referral by Dr Morris. On 5 March 2001 Dr Corry reported his opinion that “the best diagnosis is of trapezius myalgia, possibly consequent to a C5/6 facet arthropathy. This latter injury appears to historically originate from the time that she was injured when hit by a cyclist.” [7] On the advice of Dr Corry, Ms Bennett undertook an exercise programme.
[7] Ex. A10.
23. From 8 February 2002 Ms Bennett consulted Dr Speldewinde, Dr Corry having retired from his practice. Dr Speldewinde is a Consultant in Rehabilitation Pain and Musculoskeletal Medicine. Dr Speldewinde reported that Ms Bennett presented with “persisting pain principally in the right lateral angle of her neck which is constantly aching……” [8] In his opinion her condition was suggestive of C5/6 vertebral dysfunction and arose directly from the injury sustained on 10 December 1996. Further in his opinion the headaches suffered by her may be a result of C2/3 segmental dysfunction. When he gave evidence Dr Speldewinde confirmed his opinion and that his diagnosis was of dysfunction at these levels or within one or two levels of those referred to.
[8] Report 22/3/04, ex. A17.
24. Ms Bennett was assessed by Dr Schellenberger, Surgeon, in December 2002. This assessment was at the request of her solicitors. At that time Dr Schellenberger recorded Ms Bennett’s complaints as:
·right sided neck pain extending into the right upper shoulder blade;
·neck pain extending into the occipital region of the head;
·subscapular pain which developed gradually and was associated with prolonged sitting at a computer;
·anxiety depression.
25. Dr Schellenberger’s diagnosis was that in the incident on 10 December 1996 Ms Bennett suffered a right cervical soft tissue injury with probable aggravation of pre-existing asymptomatic age-related cervical disc degeneration and spondylosis or primary disc injury. [9] Dr Schellenberger was not available for cross-examination and we have considered her reports on this basis and take them into account only to the extent the opinions expressed by her are supported by the views of other practitioners.
[9] Ex. A15.
26. Ms Bennett was assessed by Dr Stevenson, Consultant Physician, on behalf of Comcare on July 2005 and September 2006. Dr Stevenson provided a number of reports [10] and gave oral evidence.
[10] R8-R12 inclusive.
27. In his report of 28 July 2005 [11] Dr Stevenson expressed the opinion that Ms Bennett has non-specific neck pain which has been found to be strongly associated with psychological factors. He also reported:
“There is a possibility, rather than a probability, of a right-sided lower zygapophyseal joint arthropathy and there is a possibility, rather than probability, that this may have some relationship to the 1996 incident. This would require diagnostic block to identify."
[11] Ex. R8.
After Dr Stevenson re-assessed Ms Bennett in September 2006 he reported that she identified that the main pain was over the right C6/7 facet joint. [12] In his opinion there was a possibility of right lower cervical arthropathy, “whether traumatic or degenerative.” [13]In a report of 18 June 2007, after having reviewed a number of reports of other health professionals, he re-iterated his view that there was “no probable permanent pathology caused by the accident of 1996.” [14]
[12] Ex. R9.
[13] Ex. R9.
[14] Ex. R10.
28. Dr Stevenson also reviewed the MRI scan of Ms Bennett’s cervical spine taken in January 2006. In his report of 30 November 2007 [15] he expressed the opinion, contrary to that of Dr Speldewinde, that the scan did not support the view that Ms Bennett has cervical disc damage. In his opinion the changes indicated were not traumatic. His opinion remained unchanged after having considered a further MRI scan taken on 9 November 2007.[16]
[15] Ex. R11.
[16] Ex. R12.
29. Dr Speldewinde strongly disagreed with the opinion of Dr Stevenson. In his view the presence of degenerative change in Ms Bennett’s neck as shown by the MRI scan does not exclude pathological change within the degenerative change.[17]
[17] Transcript 18.12.07 at p.123.
30. When he gave evidence Dr Stevenson said that he gave credit to Ms Bennett’s complaint of neck pain.[18] He did not suggest that her complaint of such pain was not genuine. He also said that research indicated that zygapophyseal joint arthropathy can occur as a result high velocity whiplash type injury. He was unsure whether the incident in which Ms Bennett was involved came within the type of high velocity incident which could cause this arthropathy.[19] He was not prepared to disregard the possibility of Ms Bennett having suffered a physical injury to a facet joint.[20]
[18] Transcript18.12.07.
[19] Transcript 18.12.07 p.142.
[20] Transcript 18.12.07 p.150.
31. We have before us a report of Dr Low, a Specialist in Occupational Medicine.[21] Dr Low assessed Ms Bennett in November 2001 and reported to her employer. This report was tendered with the consent of both parties. Dr Low was not required for cross-examination. We do not know the circumstances of Ms Bennett’s consulting Dr Low. In the opinion of Dr Low the symptoms experienced by Ms Bennett in her neck and jaw since the 1996 incident were not related to that incident and that there was “no physical reason why Ms Bennett can not work full time in a job of her choice.” [22]
[21] Ex. R7.
[22] Ex. R7.
32. Dr Klug, Neurosurgeon, assessed Ms Bennett at the request of her solicitors in September 2007. He provided two reports [23] and gave evidence. In his report of 9 October 2007 [24] he stated that the changes at the C4/5 level shown in the 2006 MRI scan, which appeared to be more marked on the right hand side, could be related to her current complaints and could be associated with pain felt on the right hand side of the neck. He also expressed the opinion that if there has been consistency in regard to her symptoms from the time of the accident, then there is a reasonable chance that the injuries which occurred may have contributed to the findings noted on the MRI scan. In his opinion proof of such a relationship could not be obtained, however in evidence he said that the symptoms described by Ms Bennett were consistent with the history given by Ms Bennett and the derangement at C4/5 level may be associated with such symptoms. Dr Klug reviewed the scan taken in November 2007. There was nothing in this scan to cause him to change the opinion he had already expressed.
[23] Exs A13 & A14.
[24] Ex. A13.
33. Ms Bennett was assessed by Dr Stern, Consultant Psychiatrist, in September 2003. This assessment was also undertaken at the request of her solicitors. Following that assessment Dr Stern was of the opinion that Ms Bennett was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood which was related to the bicycle incident and the resultant injuries. [25] He was of the opinion that from a psychiatric aspect she was fit for supervisory work but was limited by pain and the effects of medication. In his opinion Ms Bennett needed further psychological treatment and antidepressant medication.
[25] Ex. A3.
34. Dr Stern reassessed Ms Bennett in December 2004. He is of the opinion that at that time her condition had improved but that it was still related to the accident. In his view at that time Ms Bennett may have been assisted by pain management therapy. [26]
[26] Ex. A5.
35. Ms Bennett was again reassessed by Dr Stern in November 2006. At that time he diagnosed Ms Bennett as suffering from a chronic pain disorder related to the 1996 accident. In his opinion she was not totally incapacitated for work by psychiatric factors.[27] In his report of 25 May 2007 (having reassessed Ms Bennett that day) he referred to his diagnosis as a chronic adjustment disorder with mixed anxiety and depressed mood and a chronic pain disorder.[28] Dr Stern confirmed this diagnosis when he gave evidence.
[27] Ex. A8.
[28] Ex. A9.
36. At the request of Comcare Ms Bennett was assessed by Dr Synnott, Consultant Psychiatrist in April 2004, February 2005 and May 2006. He provided several reports [29] and gave evidence.
[29] Ex. R14.
37. Dr Synnott did not consider that Ms Bennett suffered any form of psychiatric disorder on the first two occasions he assessed her although initially he noted that she experienced some psychosocial stressors including dealing with the pain in her neck. However at the time of the third assessment in May 2006 Dr Synnott diagnosed Ms Bennett as suffering an adjustment disorder. In his opinion Ms Bennett was “psychologically and significantly changed from the previous two consultations.” [30] Solely on the basis of Dr Stevenson’s opinion that there was no physical cause of Ms Bennett’s symptoms, Dr Synnott also diagnosed Ms Bennett as suffering a somatoform disorder i.e. a condition of experiencing physical symptoms for which there is no identifiable physical cause.[31]
[30] Transcript 18.12.07 p.68.
[31] Transcript 18.12.07 p.169.
38. In his report of 29 May 2006 Dr Synnott stated:
“In my opinion, there appears to be a temporal and causal connection between the accident on 10 December 1996, and the subsequent development of physical symptoms -- and the secondary development of her psychological symptoms. In my opinion, there appears to have been a deterioration in her psychological symptoms over the last 15 months -- to reach the point where she now has an adjustment disorder. In my opinion, there are no other factors that have been significant in the development of her current psychiatric condition."
Evaluation of the evidence and conclusion
39. We are satisfied on the balance of probabilities that since the accident on 10 December 1996 Ms Bennett has suffered, and continues to suffer, persistent pain in the right side of her neck and in the scapular region, and that the pain emanates from the junction of the neck and the right shoulder. We are also satisfied that this pain has caused her to suffer headaches and at times has spread to the right side of her face. We accept Ms Bennett’s description of her condition. Having had the opportunity to hear her oral evidence and to assess her demeanour we are satisfied that she is an honest witness who has recounted the history of her condition to the best of her recollection.
40. We are not satisfied that the pain has been incessant. On the basis of Ms Bennett’s evidence and on the records kept by the various health professionals we are satisfied that the pain has varied in intensity and at times has been absent. However we are satisfied that the pain has recurred frequently and Ms Bennett has sought regular treatment from various professionals and has regularly taken medication for pain relief. In making these findings we have considered the argument put by Counsel for Comcare that Ms Bennett has not always complained of pain in the neck but rather has complained of pain in the shoulder. However, taking into account the site of the pain described by Ms Bennett this is not surprising, and it is likely that the exact location of the pain may not have always been precisely recorded. Further, on the basis of the evidence of Ms Bennett, we are satisfied that in 2001 the pain was such that Ms Bennett was unable to continue to work at the Department of Health and Ageing.
41. On the basis of the evidence of Ms Bennett, Dr Morris, Dr Corry, Dr Speldewinde and Dr Klug we are not persuaded that the circumstances have changed so as to entitle Comcare to cease payments of compensation for incapacity and/or medical expenses. In fact, on the basis of the evidence referred to we are satisfied on the balance of probabilities that Ms Bennett suffered a cervical injury on 10 December 1996 and that this injury has caused her to suffer the pain she has described.
42. We have considered carefully the evidence of Dr Stevenson that, in his opinion, there is only a possibility that the cause of her complaints is facet joint pathology resulting from the accident. However Dr Stevenson was unable to rule out damage to a facet joint without the investigative procedure which Ms Bennett has declined. We make no adverse inference from Ms Bennett’s refusal of this procedure. The procedure is principally diagnostic rather than therapeutic and if it disclosed facet joint involvement it would not disclose whether that dysfunction was a result of degeneration or of trauma. Dr Stevenson accepted Ms Bennett’s description of the pain she suffers. Apart from the possibility of the pain being caused by degeneration of the spine, he offered no explanation of why Ms Bennett has suffered pain which commenced at the time of the incident and which has continued.
43. Dr Stevenson gave evidence that Ms Bennett’s symptoms were consistent with the type of injury which can be caused by a whiplash type injury involving substantial force. We are satisfied on the basis of Ms Bennett’s evidence that she was struck in the side of her head by the helmet being worn by the cyclist and that the cyclist was airborne at the time. This suggests that there was considerable speed involved and we are satisfied that the collision involved substantial force to the right side of Ms Bennett’s head.
44. In preferring the evidence of Dr Morris, Dr Corry and Dr Speldewinde we have taken into account that they have been treating practitioners who have had greater opportunity to assess Ms Bennett’s condition than has Dr Stevenson. We do not accept the opinion of Dr Low as he had only one opportunity to assess Ms Bennett and his opinion is contrary to a number of other practitioners. He has not provided a detailed report and we have not had the benefit of his being cross-examined as to his views.
45. We are satisfied also that from at least September 2003 Ms Bennett has suffered a chronic adjustment disorder with mixed anxiety and depressed mood and that this condition was caused by the pain she has suffered as a result of the bicycle accident. We are satisfied that by May 2007 Ms Bennett also suffered from a chronic pain disorder. We make this finding based on the evidence of Dr Stern and of Dr Morris. As early as February 2002 Dr Morris stated his opinion that Ms Bennett’s prognosis depended on psychological as well as physical factors.[32]
[32] Ex. A11.
46. Dr Synnott did not diagnose Ms Bennett as suffering from an adjustment disorder until May 2006. As the previous assessment by Dr Synnott was in February 2005 we are unable to determine when the condition developed on Dr Synnott’s diagnosis, other than it was sometime between February 2005 and May 2006.
47. We have preferred the opinion of Dr Stern as it is supported by the evidence of Dr Morris, Ms Bennett’s treating general practitioner. Further, Dr Synnott had only limited opportunity to assess Ms Bennett and it may have been that Ms Bennett presented well on the days he assessed her.
48. Both Dr Stern and Dr Synnott were of the opinion that Ms Bennett’s psychiatric condition was causally related to the bicycle accident. Dr Morris was of the same view. On the basis of this evidence we are satisfied that this condition was contributed to in a material degree by her employment by the Department.
49. On the question of the extent of Ms Bennett’s incapacity since 7 November 2001 we note that she was able to take some part in the management of the business purchased in June 2001, although shortly after her starting to manage the business she employed someone to undertake some of the tasks she envisaged she would perform. Dr Stern did not consider that Ms Bennett was totally incapacitated for work by reason of her psychiatric condition when he assessed her in September 2003. However on the basis of Ms Bennett’s evidence and the evidence of all the health professionals, with the exception of Dr Low, we are satisfied that Ms Bennett has been substantially incapacitated in the period under consideration by reason of the bicycle accident.
50. As we do not have sufficient evidence to enable us to make a finding as to her capacity for employment in the business we intend remitting the matter to Comcare to determine the issue of the extent of Ms Bennett’s incapacity from time to time.
Since 8 March 2002 has Ms Bennett obtained medical treatment in relation to the injury which it was reasonable for her to obtain?
51. In view of our findings that Ms Bennett has suffered both physical and psychiatric conditions as a result of the accident we are satisfied that there is treatment for both conditions which it is reasonable for her to obtain, including medication for pain relief. As we do not have before us details of expenses incurred by Ms Bennett as at the date of this decision we shall remit this aspect of the matter to Comcare for determination.
A2004/337
Has Ms Bennett suffered an injury of a psychiatric nature which has resulted in an impairment?
52. The only injury for which there has been a claim for permanent impairment and in respect of which there has been a reviewable decision is the decision of 27 July 2004 refusing the claim for permanent impairment resulting from a psychiatric injury. At the commencement of the hearing the parties agreed that this was so and that the issue of permanent impairment was limited to a claim in relation to the alleged psychiatric condition.
Legislation
53.Subsection 24(1) of the Act provides:
Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
54.Subsection 4(1) includes the following definition of “impairment” :
…means 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.
Consideration of evidence and conclusion
55. We have already decided that Ms Bennett is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood and a chronic pain disorder. On the basis of the evidence of Ms Bennett, Dr Morris, Dr Stern and Dr Synnott we are satisfied that each of these conditions is a malfunction of the mental processes and is therefore within the definition of “impairment”. In particular Dr Stern reported that Ms Bennett’s symptoms were causing “impairment in her personal and social functioning” [33] and Dr Synnott reported that “the psychological symptoms have led to some impairment in her functioning.” [34]
[33] Ex. A6.
[34] Ex. R14, report of 21 May 2007.
Is the impairment permanent?
Legislation
56.Subsection 24(2) of the Act 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.
Relevant evidence and opinion
57. After assessing Ms Bennett in September 2003 Dr Stern reported that she needed further psychological treatment and that antidepressant medication would be helpful. [35] After his reassessment of Ms Bennett in December 2004 he was of the view that pain management may be helpful. [36] He repeated this view in November 2006. [37] Dr Stern gave evidence that anti-depressant medication is helpful in the treatment of both depression and chronic pain. [38]
[35] Ex. A3.
[36] Ex. A5.
[37] Ex. A8.
[38] Transcript 26.6.07 p.73.
58. Dr Stern has expressed the opinion that Ms Bennett’s psychiatric condition has stabilised. However this stability has been reached without psychological or psychiatric treatment.[39] Dr Stern’s opinion that in September 2003 Ms Bennett had a “permanent …… impairment” [40] does not assist us as this a matter for the Tribunal to determine.
[39] Ex. A9.
[40] Ex. A4.
59. In May 2007 Dr Morris was of the opinion that Ms Bennett would benefit from psychiatric input and recommended that she again try antidepressant medication. He remained of this opinion when he gave evidence.[41]
[41] Transcript 17.12.07 p.105.
Conclusion
60. Whilst Ms Bennett has suffered the psychiatric condition for more than four years we are satisfied that there is a reasonable likelihood that her condition will improve if she undertakes the treatment regime recommended by her own family practitioner Dr Morris, and by Dr Stern. Whilst Ms Bennett is reluctant to take anti-depressant medication and reluctant to be treated as a psychiatric case, she is now seeking to be compensated for a psychiatric condition. Of course whether she undertakes all, or any, of the recommended treatment is entirely a matter for her. However on the basis of the evidence of Dr Morris, Dr Stern and Dr Synnott we are satisfied that Ms Bennett has not undertaken all reasonable rehabilitative treatment for the impairment which she suffers. On this basis we are not satisfied that her psychiatric condition is permanent within the meaning of section 24 of the Act.
61. The decision of Comcare rejecting the claim for compensation for an injury which has resulted in permanent impairment will be affirmed.
DECISION
A2006/258
62. In the matter A 2006/258 the reviewable decision of Comcare made 24 October 2006 is set aside and the matter is remitted to Comcare for reconsideration in accordance with the following directions:
1)Comcare is liable to compensate Ms Bennett in respect of the injury suffered by her on 10 December 1996 being an injury to her cervical spine and the injury suffered by her no later than September 2003 being a chronic adjustment disorder with mixed anxiety and depressed mood;
2)since 7 November 2001 Ms Bennett has suffered, and at the date of this decision continues to suffer, chronic cervical spine pain;
3)since 7 November 2001 Ms Bennett has been, and at the date of this decision is, partially or totally incapacitated for work as a result of the injury or injuries;
4)since 8 March 2002 Ms Bennett has obtained medical treatment in respect of the injury to her cervical spine which it was reasonable for her to obtain in the circumstances;
5)since September 2003 Ms Bennett has obtained medical treatment in respect of the injury being a chronic adjustment disorder with mixed anxiety and depressed mood which it was reasonable for her to obtain in the circumstances.
63. In relation to the matter A 2006/258, the parties have liberty to apply within 14 days in relation to costs. Should such an application not be made then Comcare shall pay the costs of the proceedings incurred by Ms Bennett.
A 2004/337
64. In the matter A 2004/337 the reviewable decision of Comcare made 27 July 2004 is affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date of Hearing 17-19 December 2007
Date of Decision 13 February 2008
Counsel for the Applicant Wayne Sharwood
Solicitor for the Applicant Slater & Gordon inc. Gary Robb & Assoc.
Counsel for the Respondent Charlie Clark
Solicitor for the Respondent Dibbs Abbott Stillman
0