Budarick and Comcare
[2000] AATA 673
•8 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 673
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A98/277
GENERAL ADMINISTRATIVE DIVISION )
Re: STEPHEN BUDARICK
Applicant
And: COMCARE
Respondent
DECISION
Tribunal Mr Peter Bayne, Senior Member, Dr Carolyn Re, Member
Date 8 August 2000
Place Canberra
Decision The Tribunal sets aside the decision under review and in its stead decides that the applicant was, from 1 October 1997, incapacitated for work as a result of a chronic pain disorder.
The Tribunal directs that the respondent is to pay the applicant's reasonable costs of these proceedings as agreed.
CATCHWORDS
COMPENSATION - injury- disease - chronic pain disorder- principles of evidence law costs awards without hearing parties
Legislation
Administrative Appeals Tribunal Act 1975, s 33(1)
Safety Rehabilitation and Compensation Act 1 988, s 4
Authorities
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 11 0 ALR 449
Re Kevin and Minister for Capital Territory (1979) 2 ALD 238
Re MacFarlane and Comcare (1998) 58 ALD 304
Morales v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 519
Lees v Comcare [1999] FCA 753
Re Pembshaw and Comcare [2000] MTA 52
Re Bessey and Australian Postal Corporation [200] MTA 404
REASONS FOR DECISION
This is an application to review a decision of an Independent Review Officer ("the IRO") of the respondent, made on 22 June 1998 (T 32). The decision denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of a claim for an injury described as "acute thoracic back strain". At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and a number of documentary exhibits.
The applicant was born on 24 October 1961. He commenced employment with City Parks, Department of Urban Services on 17 June 1985. He has been employed as a gardener for some 15 years. He is currently on light duties, although not working full hours.
Relevant elements of the procedural history:
The claim for compensation was made on 29 October 1997 (T 12). The injury was said to have occurred on 1 October 1997, at 10.30 am, at his place of work in Canberra. The injury was described as "removing grass catcher and emptying grass into plastic garbage bag".
On the evening of 1 October, the applicant travelled to Sydney.
The first doctor seen by the applicant in relation to the alleged injury on 1 October was Dr Wolska, who practices as a GP in Sydney. Dr Wolska provided a medical certificate on 2 October to certify the applicant's inability for work until 6 October 1997, (T 3), and another to certify the applicant's inability for work until 10 October 1997 (T 4). These certificates said that the applicant suffered from "acute thoracic back strain".
The applicant visited Comcare offices in Sydney on 2 October, (see undated Internal Minute in the Supplementary T documents), and made a claim for compensation on the relevant form (see facsimile from Sean Moysey in the Supplementary T documents). This claim is consistent in its detail with the later claim made by the applicant (T 12). It is not clear why Comcare did not take this first claim seriously, nor why it was not included in the first set of T documents.
A witness statement by Ms Sandra Stekovic (T 5) of 13 October specified the time of the injury at 11.00 am on 1 October. It provided no information as to how the injury occurred.
. The applicant returned to work on 13 October.
· The applicant completed an Accident Report on 14 October (T 8). It is consistent with the information provided in the claim made on 29 October (see above). It added that the applicant said he was affected by the injury to the extent that he felt the need to lie down throughout the day (T documents p 10); (and we note that a similar comment had been made in the first claim made in Sydney on 2 October. )
On 14 October Dr Wolska made another medical certificate (T 9).
At T 10 is a statement by the applicant's supervisor, Mr Scott Pittard. That includes a statement that the injury had not been noticed (presumably by him) whilst the applicant was at work.
On 17 December 1997, a primary decision-maker of the respondent rejected the claim (T 14). As noted, an Independent Review Officer ("the IRO") of the respondent affirmed that decision on 22 June 1998 (T 32). It is regrettable that the primary decision-maker was unaware that the applicant had made a claim on 2 October, for the point was taken against the applicant that he had not reported the incident on 1 October to his employer until 14 October. This may be correct, but clearly the applicant had on 2 October made it plain that he thought he was entitled to compensation for what had happened on 1 October.
On 13 February 1998, Dr Robert Reid provided a report (T 20) to the respondent at their request. It noted that he had seen the applicant from December 1994 to September 1997 in relation to a condition in the "lower thoracic and upper lumbar area". He saw the applicant on 17 October 1997 in relation to an incident in 1 October. The report states "I made a diagnosis of muscular strain of the thoraco-lumbar muscles on the right more than the left". He did not see the applicant again.
On 11 March 1998, Dr Wolska provided a report (T 23) to the respondent at their request. There is no value to us in this report.
On 5 May 1998, Dr Anna Ostberg provided a medical certificate (T 22). She said that she had examined the applicant on 5 May in relation to an injury said to have occurred in 1989. She found that the applicant was suffering from "exacerbation of lumbar back injury", caused by, (on the basis of information supplied to her), "heavy lifting at work and reinjured in 1991". She said that the applicant was fit to return to work on 6 May to perform duties which she specified.
On 20 May 1998, Dr Anna Ostberg provided another medical certificate to the same general effect as that at T 22 (T 25).
As noted, on 22 June 1998, an independent Review Officer ("the IRO") of the respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") (T 32). This decision-maker was also ignorant of the fact that the applicant had made a claim for compensation in Sydney on 2 October 1997.
A great deal more information has come to light since 22 June 1998. We refer in the first place to the medical reports relied upon in the respondent's Statement of Facts and Contentions filed on 21 June 1999.
Mr Keiller provided a report on 1 April 1999 (Exhibit R 4), having seen the applicant on the previous day. The Statement of Facts and Contentions draws out that Mr Keiller considered that on 1 October 1997 the applicant had suffered no more than a temporary soft tissue injury. He noted a long history of back pain in the past for which there was no explanation and found no clinical evidence to support a claim for a physical cause of a disabling back pain. He considered that there were non-organic causes for the applicant's complaints.
Dr Glaser, a consultant psychiatrist, provided a report on 9 April 1999 (Exhibit R 1), having seen the applicant on 23 March 1999. The Statement of Facts and Contentions draws out that Dr Glaser considered that the applicant was not suffering from any significant identifiable psychiatric disorder. He concluded his report by opining that at the time of his October 1997 absence from work, the applicant "was simply experiencing a range of difficulties in his life, unrelated to his employment, and he simply left for Sydney for a few days to escape from these" (R 1, page 8).
10. Given its significance, and in relation to the reports of Dr Glaser in particular, it is useful to deal here with the applicant's trip to Sydney on the afternoon and/or evening of 1 October. In his report, (Exhibit R 4), Mr Keiller records a verbatim statement made by the applicant in response to Mr Keiller asking why he went to Sydney: "Comcare had been putting pressure on me to see a doctor Shergold. It was a futile trip. He had left the Department. I saw a lady doctor instead. I went to the first doctor I could find". The reference should have been to a Dr Shergold, who is not a medical practitioner, and at one point was the chief executive officer in Comcare.
11. Dr Glaser also recorded a conversation with the applicant about the trip to Sydney (Exhibit R 1). The applicant told him that he went to see Dr Shergold. He records the applicant as saying: "... in the past Comcare has told me to go see one doctor ... Dr Shergold (apparently a doctor in Sydney - the words of Dr Glaser) ... I haven't rung up Comcare for a year or more ... I got passed through answering machines ... it was futile ... at that time he (Dr Shergold) was in Sydney ... I had all intentions of putting my complaints forward ...".
12. We have in Exhibit R 13 a statement by Mr Joe White, who was manager of the Review Section of Comcare from 1989 up to March 1995. We accept that during that time he might have recommended to the applicant that he speak to Dr Shergold. He may have done so, it appears, because the applicant was raising what in Mr White's view were concerns of an administrative nature. We accept this, although we do query whether it was at all realistic to suggest to the applicant that he could speak to the chief executive.
13. Thus, the origin of the trip lies in the suggestion by Mr White that the applicant see Dr Shergold. We think it likely that the applicant thought that Dr Shergold was a medical practitioner, although he may also have appreciated that he played a significant role in Comcare. The fact that the applicant lodged a claim in Sydney on 2 October suggests clearly that he thought he had suffered a compensable injury on the day before. This is of some significance and is helpful to the applicant's case. Against the background of a number of previous claims against Comcare, which had yielded little for the applicant, we consider it likely that, having in his view suffered another injury on 1 October, the applicant thought that the best way to proceed was to follow the advice of Mr White and speak to Dr Shergold, who he believed to be in Sydney. We do not think that the fact that he saw Dr Wolska before he attempted to see Dr Shergold detracts from this view of the matter.
14. We return to this point below, but we find that Dr Glaser misunderstood the applicant's reason for taking the trip. He understood the applicant's reason for going to Sydney to be "that he was concerned about the sort of medical treatment he was receiving in Canberra". He then went on to comment that a couple of weeks later the applicant saw Dr Reid, whom the applicant had consulted for the previous 3 years. For this and other reasons, Dr Glaser took the view that Comcare should not accept that the applicant had suffered an injury in 1 October and went to Sydney for medical treatment. Dr Glaser thought that the reason for the trip was unrelated to any incident in the applicant's employment. We do not accept this analysis. Dr Glaser was not informed of the circumstances that lay behind the applicant's trip. Dr Glaser formed an unfavourable view of the applicant's veracity on the basis of a false view, and this necessarily affects adversely the value of his report in these proceedings.
15. In this connection, we make another comment. Comcare decision-makers at the primary and internal review levels took the view that the applicant had not been injured at work on 1 October. This theory was maintained at the hearing. The decision-makers' opinion was based on a view that the applicant had remained at work that day, and had not reported an accident until 14 October. They viewed the fact of his taking a trip to Sydney as inconsistent with his having been injured. A major premise of this line of reasoning - that the applicant had not raised the question of compensation until 14 October - is removed by the evidence that the applicant made a claim on Comcare forms in Sydney on 2 October. It is hard to understand why Comcare in Canberra had not been made aware of this. In the light of this fact - which Comcare did not reveal until it filed Supplementary T documents on 1 June 2000 - it is clear that the applicant's trip to Sydney was intimately connected to his pursuing a claim in respect of an incident on 1 October.
16. We return now to some matters introductory to a consideration of the evidence (although we have necessarily already made some findings).
17. The respondent contended that if the applicant suffered any injury at all on 1 October 1997, it had resolved by 15 October 1997.
18. The respondent adduced other medical reports and records at the hearing:
A report of Dr Glaser of 28 March 2000 (Exhibit 2), in which he said that he did not accept the opinion of Dr Lucas (in his report of 26 July 1999) that the applicant suffered from a chronic pain disorder;
A report of Dr Glaser of 30 June 1993 (Exhibit 3);
A report of a CT scan by a Dr Price on 13 October 1993;
Some handwritten clinical notes from 'Erindale Immediate Health Care' (Exhibit R 8);
An MRI scan by Dr Price dated 28 May 1999 (Exhibit R 11);
A report by Dr Newcombe of 30 June 1999 (Exhibit R 11); and
A report of Dr Glaser of 13 June 1996 (Exhibit R 12).
19. The applicant's Statement of Facts and Contentions were filed on 23 August 1999. This document referred to injuries to the applicant's back in 1988, 1991, and 1994, and to proceedings in this Tribunal in relation to some of these injuries. As at 1 October 1997, there was no continuing liability on the part of Comcare in relation to these injuries. After a reference to the alleged incident in 1 October 1997, the Statement of Facts and Contentions assert that "the applicant has developed or aggravated a chronic pain syndrome as a result of this incident, requiring treatment". The applicant was not fit to return to full-time duties.
20. The applicant adduced other medical reports and records at the hearing:
A report of Dr William Lucas, psychiatrist, of 26 July 1999, based on an interview with the applicant of 7 July 1999 (Exhibit A 1);
A report of Dr Owen White of 3 June 1999, based on an examination of that date (Exhibit A 2);
A report of Ms Pentony, psychiatrist, of 27 August 1993 (Exhibit A 3);
A report of Dr Corry, of 3 April 1996 (Exhibit A 4);
A report of Dr Reid, of 2 November 1995 (Exhibit A 5);
A report of Dr Lark, occupational physician, of 14 January 2000, provided to the
applicant's employer (Exhibit A 6);
Handwritten clinical notes of Dr Ostberg (Exhibit A 7);
handwritten clinical notes of Dr Wolska (Exhibit A 8);
handwritten clinical notes of Dr Lucas (Exhibit A 9); and
Some clinical notes of Dr Ostberg (Exhibit A 10).
In terms of the relevant law we note here the definition of injury in the Act. Section 4(1 ) defines injury exhaustively:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease suffered by an employee (whether or not that injury arose out of, or in the course of, that employment), being an aggravation that arose out of or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee
as a result of reasonable disciplinary action taken against the employee or failure by
the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The definition of "disease" is critical. Section 4(1 ) defines this term exhaustively:
"disease" means:
(a)any ailment suffered by an employee;
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
The word "ailment" is defined in section 4(1) to mean "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development". For present purposes, the condition of chronic pain disorder is an ailment.
The critical issue is whether, at some point after 1 October 1997, the applicant has a condition described as chronic pain disorder, being a condition the onset or aggravation was contributed to in a material degree by the employee's employment.
We refer here to DSM-IV (4th edition) (International Version with ICD-10 Codes), (American Psychiatric Association, 1995). In the section "Somatoform Disorders" are found the diagnostic criteria for "F45.4 Pain Disorder" (page 474). A feature of a somatoform disorder is the "presence of physical symptoms that suggest a general medical condition (hence, the term somatoform)" that is "not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder ..." (page 457). "Pain disorder is characterised by pain as the predominant focus of clinical attention. In addition, psychological factors are judged to have an important role in its onset, exacerbation, or maintenance" (ibid).
The diagnostic criteria for"F45.4 Pain Disorder" are:
A. Pain in one or more anatomical sites is the predominant focus of clinical presentation and is of sufficient severity to warrant clinical attention.
B. The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C. Psychological factors are judged to have an important role in its onset, severity. exacerbation, or maintenance of the pain.
D. The symptom is not intentionally produced or feigned (as in Factitious Disorder or Malingering).
E. The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder and does not meet the criteria for Dyspareunia.
The condition is chronic if its duration is of 6 months or longer.
We refer also to the statement at page 472 of the "Associated Features and Disorders".
THE CONDITION OF THE APPLICANT'S BACK
In this respect, we need go no further than a report of 30 June 1999 of Dr Newcombe, a specialist, to the applicant's GP, Dr Ostberg. Dr Newcombe reported that "rotation of the [applicant's] spine, flexion and extension are normal. An MRI scan [of 28 May 1999] shows minor spondyltic changes only. There is no indication of any disc herniation and also of course excludes spinal tumours ... Presumably his pain [in the mid-thoracic region] arises from muscular ligamentous strains which should eventually heal. l have reassured him about this" (Transcript 41). Dr White, a medico-legal consultant engaged by the applicant's solicitors, accepted that the MRI scan showed only minor degenerative change, and agreed with the view of Dr Newcombe (Transcript 78).
The applicant's case theory accepts this report. His case is that, nevertheless, the applicant has a compensable injury arising out of the soft-tissue injury of 1 October and indeed out of earlier such incidents. The claim is that the applicant suffers from chronic pain disorder (or, to the same effect, and we use the terms interchangeably, chronic pain syndrome).
LAY EVIDENCE
Turning first to the evidence of the applicant, in chief he outlined very briefly incidents of injury to his back in 1988 and 1991. From 1991 to 1997 "recurrences were pretty common" when doing work involving "lifting, mattock, crow bar, shovelling". On 1 October 1997, "in removing [grass] catcher [attached to mower] and tipping that into a bag to throw onto the back of the truck, just another recurrence. The eyes pop out of your head situation, you know you've done something too strenuous but you keep on going" (Transcript 27). He told his workmate, Ms Stekovic, "Well, l have done something". He kept on working for that day, and later went to Sydney to see a Dr Shergold. Since 1 October, the occurrences have been common. He said that he did not in fact work full hours from his return to work in mid-October until March 1998. Periods of time he missed were not recorded, or he took sick and recreation leave. He described how the pain restricted his daily activities (Transcript 30).
The applicant was cross-examined at some length. We note here a few material points. It was established that he has, post 1 October 1997, continued to work with restrictions much the same as he had prior to that date, but at less than full hours. He stated that the formal reduction in hours from March 1998 was at the direction of his doctor. This was due to pain in the central area of his back, the same site of pain in the pre-1 October 1997 period. It was exhaustion and distress that prevented him from working full hours.
He was questioned about what he had and had not told Ms Stekovic. He accepted that after he told her that he had hurt his back, she said that he should go back to the depot if that was so. He probably told her that he would continue working. We do not see any difficulty for the applicant here. If he was malingering and making a false claim of being hurt to set up a compensation claim, he would hardly have made a report of an injury and then kept on working.
He was pressed on his apparently odd behaviour in going to Sydney that evening, rather than attempting to see Dr Reid, who had treated him for the back complaint (and who he saw on 17 October). Our findings in relation to this episode are stated above.
He was questioned about what he told Dr Reid. He did not deny that he had told him that parts of his body other than his back were also sites of pain. Indeed, in his evidence, he added a bit more in terms of what parts of his body were affected by the pain (Transcript 65). He was questioned about why he had not given that detail to Dr Wolska. He said he did not remember whether those symptoms were present at that time (2 October). "When I went to Dr Wolska it was in and out within what felt like more than 10 minutes. All l had on my mind for that day was getting to Comcare and being treated, seen by Dr Shergold" (Transcript 67). We accept this explanation.
He was also questioned about why he had not given the detail he gave to Dr Reid to Mr Keiller when he saw the latter on 31 March 1999. it was pointed out to him that when he completed an accident form that he had ticked only the box indicating pain in the back (Transcript 69). The applicant's explained his actions thus: "If your back is the 99 per cent of your problem and that is the only solution direction that you're trying to put across, well other things become insignificant" (Transcript 69). We accept this.
Another element of Comcare's case theory is that the applicant is able to do his work full-time. There was, however, very little evidence to support this. The applicant did apparently accept that Ms Stekovic would have seen him "lifting heavy items without any apparent difficulty" (Transcript 73). He said "She's seen me lift things all the time". We also refer here to the evidence and the comments on it at paragraph 41ff, and to the evidence of Dr Ostberg that is dealt with below. We cannot on this evidence find that the applicant is able to work his full hours. Such a finding would necessarily involve us finding that the applicant is in effect a malingerer. Such a finding should not be easily made. The principles stated in section 140(2) of the Evidence Act 1995, and its common law counterpart, (see Briginshaw v Briginshaw (1938) 60 CLR 336, at 362, and references in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450), are as applicable to fact-finding in the Tribunal as they are in a court.
Counsel for the respondent gave some emphasis to the fact that when the applicant spoke to Reid on 17 October, the applicant gave a more detailed account of his pain after 1 October than that he gave to other doctors. The point made seems to be that when he saw Dr Reid, the applicant was embellishing his account in order to support the false claim for compensation that he was proposing to make. In particular, a comparison was made to the account the applicant gave to Dr Wolska. This theory suffers from failing to take into account that the applicant made a claim for compensation contemporaneously with his seeing Dr Wolska in Sydney. If the applicant were minded to embellish his account of pain, it is likely that he would have done so when he saw Dr Wolska. It is not beyond the realm of the possible that after seeing Dr Wolska, he thought on reflection that it was desirable to embellish his account when he spoke to Dr Reid. But given that he spoke to Dr Wolska knowing then that he would make a claim makes that possibility remote. (We are aware that he may have seen Dr Wolska shortly before he made the first claim on 2 October, but the closeness in time makes it unlikely in the extreme that when he saw Dr Wolska he did not have in mind making the claim.) There are other reasons why we do not attach significance to what the applicant told Dr Reid, at least in a way that is helpful to the respondent. Little can be made of the fact that the applicant gave less detail to other doctors, in particular where this history is given at a much later point in time. Moreover, we do not know what the doctors asked the applicant. As Dr Lucas observed, and this is really common sense, "it also depends .. on the person taking the history" (Transcript 97). On the critical question of the site of the pain in the back, the applicant has been consistent; see (Transcript 81, line 10-15). We note that to all other doctors - Dr Glaser, Mr Keiller, Dr Lark and Dr Wolska, the applicant has identified the pain region as the mid-thoracic back. We also note that Dr Lucas was not concerned that there would be some inconsistency in how the applicant reported pain (Transcript 97).
We will consider now the evidence of Ms Stekovic. One matter to remark on is her evidence that some pressure was placed on her to sign a witness statement that is at page 6 of the T documents. She claimed that it was a supervisor who pressured her to sign the form, and that the applicant was present on the occasion. Whatever the truth here, it is apparent from the document that she refused to make any statement in this document about the injury and how it occurred. In evidence, her account was that the applicant told her on 1 October 1997 that he had hurt his back using a mower, that she had asked him whether he wanted to return to the depot, he had said no, and they worked on until the end of the day.
She did not think that he had hurt his back because he was not behaving as if he had. She was permitted without objection to give evidence that she had had experience of "other people hurting backs or back problems in the workplace". We do not think that this evidence assists us. There was not enough evidence to qualify her as a person who could from observation determine if a person had hurt their back. The respondent did not press this point, but it is useful to recall what was said by Todd DP in Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 concerning section 33(1 )(c) of the Administrative Appeals Tribunal Act 1975:
This provision gives a clear warrant to the Tribunal to refrain from applying the rules, or some particular rule, of evidence, for it provides that the Tribunal is not bound by such rules. But it does not provide that the Tribunal shall not apply the rules of evidence, and the provision that the Tribunal is not bound by the rules of evidence is not to be read independently of the other provisions of s.33(1)(c), namely that "the Tribunal . . . may inform itself on any matter in such manner as it thinks appropriate". The requirements of s.33 as a whole may thus lead the Tribunal in certain cases to consider that at least the principles underlying a rule of evidence, if not the strict rule itself, may offer clear guidance as to how it should inform itself. That it is not the rule itself, but rather the principle underlying it that is important, is demonstrated by the fact that in this application I did not decline to hear what the applicant said about the additional sales. To the extent that the rules of evidence are exclusionary rules, they make inadmissible the evidence sought to be led by the applicant. The question here, however, is one not of admissibility but of the weight to be accorded to such evidence.
In that matter, Todd DP permitted the applicant, who had no relevant expertise, to give his opinion as the value of his property. This is somewhat inconsistent with his later observation that "It is not appropriate, however, for an applicant to offer his non-expert opinion as a fact upon which the Tribunal ought to base its conclusion" (ibid at 243). Indeed, one would have though that such evidence is simply not relevant. It is, however, clear that Todd DP attached little weight to that opinion. In an observation that is more general relevance to the work of the Tribunal, Todd DP said:
The fact is that, properly understood, the rule of evidence in relation to opinion is not technical, and there is a principle of good sense underlying it that relates to the logically probative force of assertions of opinion made before any tribunal. If a question of opinion as to a medical condition arises, who can doubt but that an administrator, and on review, the Tribunal, must give weight to the opinion of a medical practitioner but not to that of a layman? (ibid).
Ms Stekovic had worked with the applicant since 1 October 1997, and she had seen him lift objects such as branches that she could not have lifted, mowers (although we were not told their size, and they could well have been the small hand - mowers), and rubbish such as concrete (and again we were not told how big the lumps of concrete were). When doing those things the applicant had complained that his back was sore and she had told him to stop, which he sometimes did.
The cross-examination revealed that the applicant often complained to Ms Stekovic, (in re-examination, she said "every couple days"), about "a lot of things, and I don't take notice half the time" (Transcript 166). The rate of complaints had increased over the years. She said that about a year ago the applicant had attempted some work on the ride-on mower she used, but that he "complained it was just too much, so he got off".
Ms Stekovic also accepted that when she said that she thought that the applicant had not hurt his back, she meant to convey that she had not seen him hurt his back. This evidence undid whatever value there was in her opinion that the applicant did not behave as if he had hurt his back on 1 October 1997.
Inferences adverse to the applicant should not be drawn from the evidence of Ms Stekovic. On the contrary, the evidence adduced in cross- and re-examination supports a finding that criterion A of the DSM IV was satisfied here.
We will consider now the evidence of Mr Wheeler. He became the Rehabilitation Case Manager for the applicant in February 2000. He was called as a witness at the request of the Tribunal. We were interested in why the applicant attempted a return to full-time duties in March/April 2000. It appears that it was at a meeting between the applicant, Dr Ostberg, and Mr Wheeler in March that the applicant asked the GP to clear him for a trial working full-time. It appears that his motivation was largely to obtain more cash in hand at that time. The GP gave the certificate, but the applicant worked full-hours for only about 10 days. When in mid-May 2000 he commenced to work at another depot he was also cleared for full-hours on his GP's certificate. But he apparently never did so, and was quickly reduced on his GP's certificate to reduced hours again.
This evidence does not take the matter very far in terms of what it can tell us about the extent to which the applicant experiences pain or has capacity for full-time work. On the one hand, the applicant, being a very low-paid worker, would, one would think, wish to get more money in hand. The fact that he could not sustain the work on a full-time basis suggests that he is unable to work full-hours. On the other hand, the current work at the new depot is not onerous (Transcript 155), and is hard for a lay-observer to understand why it is not within his capacity.
But what needs to be remembered is that the injury said to be suffered by the applicant is a form of psychiatric disorder- more particularly, is said to be chronic pain disorder. In terms of the Act, this is a disease. The condition of chronic pain disorder described in the DSM IV is designed to describe the person who has significant pain, and demonstrates that pain in behaviour, but in respect of whom there is no physiological basis for the pain. If the criteria stated in the DSM IV are met, there is a psychiatric explanation for the person's condition and it is called chronic pain disorder.
THE MEDICAL WITNESSES
We turn first to the evidence of Dr White, a medico-legal consultant engaged by the applicant's solicitors. Dr White did not completely accept the proposition put by counsel for the respondent that the muscular ligamentous strains that the applicant would suffer from time to time "are self-limiting and likely to heal" (Transcript 79). Dr White's opinion was that "[the applicant] would be more susceptible to suffering pain in situations that would produce muscular ligamentous strain, but I think that there is an underlying pain syndrome as well" (ibid). This syndrome gave him a heightened awareness of pain. He added: "Now, I think that there are numerous explanations for this, none of which are proven, but it is a commonly observed clinical condition" (ibid). He accepted that this pain syndrome "is probably something that's developed over a period of time" (ibid). His opinion was that after the incident on 1 October the applicant "had very significant pain" (ibid).
In cross-examination, Dr White, accepted that he had looked for "pain syndrome or psychological factors" as "an area where you might look in order to explain both the level, degree and nature of the pain" (Transcript 81). But no challenge was made to his opinion that the applicant had a chronic pain syndrome, other than to have the doctor accept that he based it on the history given by the applicant, and that his time for examination was limited. In re-examination, Dr White affirmed that his clinical assessment of the applicant was that "he was fairly straightforward and that there was no evidence of exaggeration or falsification"
(Transcript 82).
This is a convenient point at which to make a comment on an element of the Comcare's case theory. This is the argument that the Tribunal should not have regard to work place soft-tissue injuries to the applicant's back that occurred prior to 1 October 1997, at least so far as those injuries have been the subject of prior proceedings in the Tribunal. We have not taken this view of the matter. We accept Dr White's opinion that the chronic pain syndrome had been "in existence" prior to 1 October. He said in evidence: "I don't think one normally develops a chronic pain syndrome after a single episode of injury. l think that it usually a cumulative change over a period of time" (Transcript 80). It is clear that Dr White has had regard in the history of the applicant to the fact that he suffered discrete soft-tissue injuries prior to 1 October 1997, including the injures that have been the subject of prior Tribunal proceedings. See too his evidence at Transcript 82, lines 30-35. We see no impediment to his, and our, taking this view. We were referred, or referred ourselves, in a general way to the Federal Court decisions in Morales v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 519, and to Lees v Comcare [1999] FCA 753 (which is discussed in Re Pembshaw and Comcare [2000] MTA 52). We do not consider that these decisions support this element of Comcare's case-theory.
The Tribunal raised with Dr White the evidence that suggests (although not very strongly it seems) that the applicant did not substantially reduce his hours of work after the 1 October 1997 incident until about March 1998; see (Transcript 83). His response was to the effect that he thought that the applicant had "coped with the pain, but then decompensated, was unable to continue to cope with it, and I think that that is in fact consistent with the underlying problem with some superimposed soft tissue injury on top of it and I think he's just in the long run failed to compensate" (ibid).
Another element of Comcare's theory is that the applicant's complaints of pain are simply designed to obtain compensation. Counsel for Comcare put this gently as the applicant pursuing "secondary gain purposes" (Transcript 80), but in substance it is a claim that the applicant is a malingerer. Dr White accepted that this was a possibility, but "one can only go on one's clinical impression when one makes a determination in that setting" (ibid). He accepted that this was based on the time available for making that assessment "and the impression one gets of the person" (ibid).
We now turn to Dr Lucas, a Fellow of the Royal Australian and New Zealand College of Psychiatrists, and a medico-legal consultant engaged by the applicant. He interviewed the applicant on 7 July 1999. He had read Dr Glaser's report of 28 March 2000. In his oral evidence, he addressed the criteria in the DSM IV (see above). (It is to be regretted that he did not do so in his written report; see comments below on the evidence of Dr Glaser). As to Criterion A, the applicant had had pain "on and off in considerable chronicity since ... 1988 ... certainly since 1997". He had also received clinical attention, having been prescribed drugs and referred for clinical attention to pain management programs. As to Criterion B, the pain distresses him and causes impairment in social occupational and other significant settings. He has to rest a lot, and he has changed his recreation. Here, he disagreed with the contrary view of Dr Glaser. As to Criterion C, he considered that, although difficult to identify, psychological factors "play a part in his pain experience". In part, this was because "no gross physical changes [are to be] observed". As to Criterion D, there was no indication to him that the applicant was producing or feigning the pain, and this was consistent with the other reports. As to Criterion E, there was no basis for this exclusion to apply here. In particular, he was not suffering from a mood disorder.
Dr Lucas was subject to a lengthy cross-examination. We note here a number of points made that are not otherwise dealt with in the Reasons. There is a suggestion that the opinion of Dr Lucas is weakened by reason of his having seen the applicant on only one occasion. Dr Lucas noted in response that he based his opinion on the documents and reports available to him, and not just on the interview.
Dr Lucas affirmed his opinion that the prescription of the drug Endep was to assist in pain management (Transcript 99).
It was put to Dr Lucas that the pain disorder condition would be marked by exacerbations of disabling pain. Dr Lucas accepted that that could occur, but added that some incidents could be major set backs such that "something happens which tips you over and you are not quite the same" (Transcript 100). Counsel for the respondent put to Dr Lucas that some ten days after the 1 October incident the applicant resumed full-time employment on his modified duties, and suggested to Dr Lucas that this indicated that the 1 October incident had had a transient effect (Transcript 101). Dr Lucas replied that "it doesn't mean that his condition can't deteriorate or what have you, a bit later, that he is unable to cope and had to go part time, but that is something that is difficult for me to judge" (ibid). We note that what counsel for the respondent put as a fact does not appear to be the case. There was evidence that the applicant used recreation leave for periods of work in the period after 1 October up to March 1998 when he began to work less than full-time hours. He also used up sick leave in this period. We refer here to the Transcript at 110.
Counsel for the respondent put to Dr Lucas that the applicant should have been observed by workmates to have been in pain after the 1 October 1997. Dr Lucas did not think so: "pain is not always obvious to outsiders" (Transcript 101). Nor did people seek assistance when they should (Transcript 102).
Counsel for the respondent pressed Dr Lucas on the psychological factors that he took into account when taking the view that criterion C in the DSM IV was satisfied. Dr Lucas first identified "a history of back injury and associated disability and change in your lifestyle due to it. That affects your response to ... a particular injury and has its long term effects . . ." (Transcript 103). He also mentioned "restricted lifestyle due to pain, his change in his work situation, his awareness that [workmates thought he was pampered]" (Transcript 104). It is clear that Dr Lucas identified a psychological factor as a factor that "can affect a person's response to pain and injury" (ibid).
Counsel for the respondent did not accept that this was the way to read the DSM IV; see (Transcript 104), but we consider Dr Lucas was correct to have regard to the matters that he did.
Psychology has been defined as "the study of mental processes especially as they are shown in behaviour": Parr's Concise Medical Encyclopaedia (1965), 322. A psychological factor may be regarded as something going on in the mental processes of a person that affects her or his relation to their environment; (see here too Blackiston's Gould Medical Dictionary (3rd edition, 1972), 1276, definition of 'psychology'). The concept of a "psychological factor" does not appear to be defined in the DSM IV, although the information at page 696 indicates that a wide range of matters are embraced. For example, it is contemplated that an "interpersonal factor" may be a relevant psychological factor. So might a depressive symptom. We accept Dr Lucas's approach that identified a psychological factor as a factor that "can affect a person's response to pain and injury'. A person's response involves a mental process.
Dr Lucas also mentioned that "[p]eople who are injured have concerns about their job". The point, we take it, is that those concerns are part of the mental thought processes that can affect a reaction to an injury. This applicant does have concerns about keeping his job. We note that Dr Lucas thought that the applicant was worried on account that he could not change his job to clerical work (Transcript 105). The applicant thinks that his workmates perceive him to be pampered (as he told Dr Lucas - see Transcript 104; this is hearsay but reliable, for the applicant could not have seen that it might assist his case to say so.)
Counsel for the respondent put to Dr Lucas the evidence that the applicant had, in legal terms, made an admission to Mr Keiller that he, the applicant, had to lie down for 18 hours a day "on average", whereas he told Dr Lucas that at times he would have to lie down for 10 hours. Dr Lucas answered: "I don't know how we handle it...". But added: "he told me he had to lie down a long time", and while "there's an inconsistency in the time" there is not "in the general proposition that he has to spend a long time Iying down" (Transcript 109).
The applicant also called the applicant's current GP, Dr Ostberg, to give evidence. She had seen the applicant prior to 1 October 1997, but at that time and for a time afterwards, the applicant saw Dr Reid about his, the applicant's, back. Her evidence was that it was in about February 1998 that she began to issue medical certificates in relation to the applicant's back pain, although prior to that time he had made complaints to her about his back. She has seen him regularly since, mostly about his back (Transcript 181).
Dr Ostberg was cross-examined by reference to her clinical notes (Exhibits A 7 and A 11). A number of matters of evidence deserve a brief note.
She said that on examination the applicant had tender spots in his back, and that in her surgery, and in the waiting room "he is never actually completely still" (Transcript 183). This behaviour had recently got worse, and she noted that she had documented it in March 1999.
She accepted what Dr Newcombe had reported to her, but she still prescribed the drug Endep, "because he does have a problem" (Transcript 190).
On 3 February 1998 she had made a note that the applicant had ridden his bike to the surgery. She had seen it recently.
· She accepted that "Iying down and resting should be limited and that the idea is to keep as mobile as possible which is why I have been encouraging him very hard to work and to keep mobile and he enjoys his work. When he lies down he's in so much pain and spasm he can't get up" (Transcript 198).
The evidence of Dr Ostberg supports findings that criterion A of the DSM IV is satisfied, and that the applicant does not have capacity for full-time work.
Dr Glaser is a medico-legal consultant engaged by the respondent's solicitors. He made a psychiatric assessment and report concerning the applicant to Comcare on 30 June 1993, apparently in connection with an earlier claim by the applicant under the Act in relation to an incident of injury to his back at work in February 1991. This report acknowledged that it was "difficult to obtain a coherent account from [the applicant], due to his mental state ...". Later in the report, Dr Glaser noted that "[the applicant] spoke in a slow, vague manner with a number of his answers ... being quite tangential or irrelevant". The applicant did not work again until May 1991, and then returned to modified duties, and had remained at work more or less continuously up to the date of the interview with Dr Glaser, on 21 June 1993. Dr Glaser also recorded that the applicant reported back pain after hard work and that he rested on his back during lunch periods, and that he "lies down for most of the evening".
The assessment of the applicant's then current psychological problems noted first that the applicant had separated from his wife in late 1992, and that he attributed this to his drug taking. Dr Glaser ascertained that apart from taking "reasonable high doses of painkilling medication", drug intake was moderate. The applicant reported problems with his workmates.
Dr Glaser opined in this report that in relation to the applicant, there "did not appear to be any cognitive deficits present", although he did suggest, as had a CMO, that a report from a neurologist be obtained. The applicant gave "the general impression of being quite depressed". Dr Glaser was reluctant to provide a definite diagnosis. He was not able to make a link between the then current psychological state of the applicant and the 1991 work incident.
Dr Glaser made another report, again for medico-legal purposes, on 13 June 1996. He had seen the applicant on 4 June. The report noted incidents of injury to the applicant's back at work on 4 and on 25 August 1994. Dr Reid, as the applicant's GP, had been treating him, and the applicant had been on various drug regimes. The applicant had been back to full hours at work for the past 2 months, after a period of morning work only. He opined that "from the psychiatric point of view, the picture has changed very little from that observed by myself ... three years ago". This picture was similar to that formed by three other named psychiatrists who had seen the applicant. He was not suffering from "any major identifiable psychiatric disorder". It was noted that anti-depressant medications (prescribed by Dr Reid) "are being used for the treatment of chronic pain". From the psychiatric point of view, the applicant was not impaired for work.
Dr Glaser made another report, again for medico-legal purposes, on 9 April 1999, this time in relation to this matter. He had seen the applicant on 23 March.
After the incident in 1 October, the applicant told Dr Glaser that he just carried on, and did not report the accident that day. He reported the site of his pain as in the central part of his back. Dr Glaser records the applicant saying "99% of the time I lie down ... 18 hours a day ... I say to my friends that they should make sure that they use those other six hours to the best of their knowledge ...".
He again opined that "There is no evidence of any significant diagnosable psychiatric disorder". We accept this, but do not accept the criticisms made by Dr Glaser of the applicant.
Dr Glaser questioned the applicant about the trip to Sydney, and he, Dr Glaser, obviously understood the applicant to think that Dr Shergold was a medical doctor. It is also clear that Dr Glaser did not know otherwise (see page 3 of Exhibit R1). It is evident that Dr Glaser's report has been influenced by his inadequate understanding of why it was that the applicant went to Sydney. Dr Glaser is simply wrong in his assertion that the reason for the applicant's trip to Sydney was unrelated to the 1 October 1997 incident. His later statement that there was no "good evidence ... that [the applicant] suffered a new injury around that time [of 1 October 1997]" is obviously based on this previous false assertion.
We note that Dr Glaser advised Comcare to follow up on the applicant's report to him that he, the applicant, had visited Comcare's offices in Sydney (Exhibit 1, p 8). It is a pity that Dr Glaser did not delay his report until that had happened, for he wrote it with an inadequate understanding of this event. For example, while Dr Glaser had been told by the applicant that he had spoken to Comcare in Sydney, it was not until cross-examination that Dr Glaser was made aware that the applicant had made a compensation claim in Sydney. And not until the hearing, and in some respects not until the end of his evidence, was Dr Glaser aware of other significant aspects surrounding that trip. It is to be regretted that this advice of Dr Glaser was not promptly drawn to the attention of Comcare officers. Perhaps it was, and was not followed up. It was not until 1 June 2000 that the respondent's solicitors filed with the Tribunal a copy of the compensation claim made by the applicant in Sydney on 2 October. A respondent such as Comcare does not assist the Tribunal by providing it with vital information in this way.
We note here that it is evident that in these three reports Dr Glaser had focussed on the applicant's odd speech patterns and had then asked whether the applicant had, in Dr Glaser's words, a "significant diagnosable psychiatric disorder". He had in his first report in 1993 not been able to exclude the possibility that the applicant had symptoms of "an insidiously developing major psychiatric illness such 25 as schizophrenia". It is apparent that he had not turned his mind to the question whether the applicant had a chronic pain syndrome.
The first time he considered this was when he was asked by the respondent's solicitors to respond to the report of Dr Lucas. Dr Glaser did so on 28 March 2000 (Exhibit R2). This very brief report states that "there is a paucity of evidence in this case to justify the diagnosis [of chronic pain disorder]". Although he does not refer to the criteria in the DSM IV, it appears that Dr Glaser considered that criterion A had not been satisfied. That is, that the applicant was not suffering pain in his back. He justified this by stating that the applicant did not "display any significant abnormality of behaviour which would normally be associated with the degree of pain which he claims to suffer". He mentioned matters such as "limitations of activities in all areas of a patient's life, seeking assistance and treatment in an appropriate fashion, informing others about one's symptoms, etc." he said: "[The applicant] has exhibited such behaviours inconsistently or not at all, according to the evidence available".
Even on the basis of what Dr Glaser must have known, this is a puzzling statement. He was aware that the applicant had been prescribed painkillers by Dr Reid in order to deal with the pain in the applicant's back. This was surely clear and weighty evidence of the applicant "seeking assistance and treatment in an appropriate fashion, [and] informing others about one's symptoms". Dr Glaser may have had some doubt whether there were "limitations of activities in all areas of a patient's life", although he would have had to disbelieve what the applicant had told him.
It is clear from this report that Dr Glaser did not believe the applicant, for he referred again, and gave some emphasis to, the (false) view he had formed as to why the applicant travelled to Sydney.
Looking at the matter on the basis of these reports, we think there is reason to discount Dr Glaser's opinion that the applicant does not have a chronic pain disorder. We do note that he has seen the applicant on 3 occasions since 1993, but on none of these did he direct his mind to whether the applicant had a chronic pain disorder. When he did express an opinion on this issue, his views were clearly affected by his having taken a view that the applicant was, in substance, not giving a correct account about why he went to Sydney.
We have not overlooked that in evidence in chief Dr Glaser said that he could only speculate about why the applicant went to Sydney. This is a significant change from the stance he took in his reports. But he did not modify the opinion stated in the reports. He pointed to the applicant's account of what he did in Sydney as evidence that (in effect) criterion A in the DSM IV statement of the chronic pain syndrome was not met here. But he again (Transcript 221) states that he would have expected the applicant to seek medical attention in Canberra. He did not have a good understanding of the applicant's motivation in going to Sydney.
It was not until the cross-examination that Dr Glaser was made aware of two important matters. First, that Dr Wolska had on 2 October diagnosed the applicant as having an acute back strain, and, secondly, that the applicant had lodged a claim with Comcare on that date; (Transcript 224).
In evidence in chief, he thought that evidence from Ms Stekovic that the applicant did not desist from work that day supported his impression that the applicant was not showing behaviour consistent with presence of a significant degree of pain (Transcript 216). He affirmed this view when in re-examination more detail was put to him about the evidence Ms Stekovic gave.
Although he had made no reference to the DSM IV in his report of 28 March, Dr Glaser said that he had had regard to it. It is regrettable that psychiatrists do not, when giving an opinion in terms of the DSM IV, refer to exactly what it says and frame their opinion accordingly; see Re MacFarlane and Comcare (1998) 58 ALD 304.
Counsel for the respondent put to Dr Glaser the evidence given by Dr Lucas as to what were, here, the relevant psychological factors in terms of criterion C in the chronic pain disorder list of criteria. This information did not alter the opinion of Dr Glaser. It is, however, very hard to understand the point he made here. Dr Glaser said "I think, that what DSM4 means by psychological facts are really psychological factors as opposed to physical factors" (Transcript 219). This may mean, as seems to be the reading of the DSM IV, that psychological factors play a role - in terms of the DSM, an important role - in the onset and/or progression of the pain. He went on to say that the evidence that the applicant was suffering physical pain was weak. He then said that apart from the applicant suffering pain, the other matters referred to by Dr Lucas as psychological could be explained by reasons other than the pain suffered by the applicant. This, with respect, seems to misunderstand the way of criterion C in the chronic pain disorder list of criteria puts the matter. It is not whether pain leads to those psychological factors, but whether they play a role (in terms of the DSM, an important role), in the onset and/or progression of the pain.
In the end, we do not attach as much weight to Dr Glaser's opinion as we do to the opinions stated by the applicant's psychiatric experts. Our preference for their views is to some extent based on what we see as deficiencies in the approach taken by Dr Glaser. Some of these will be apparent from what we have just said. In addition, we note some other matters here.
Dr Glaser does make the quite valid point that one needs to distinguish between complaints of pain and the actual experience of pain. In the end, after he had been apprised of more of the factual background, Dr Glaser's considerable doubt that the applicant experienced much pain was based on the significance he attached to the evidence given by Ms Stekovic, and to the fact that the applicant travelled to Sydney on the evening of 1 October 1997. The latter point was of great significance to Dr Glaser. He said near the end of his evidence: "whatever the explanation for his going to Sydney, the point about going to Sydney is that the behaviours he exhibited while going there and while staying there are not consistent with those one would normally expect in somebody who's having significant back pain, and I think that's the only point I really want to make" (Transcript 235).
So far as the evidence of Ms Stekovic is concerned, we have said above that inferences adverse to the applicant should be drawn from it. It is regrettable that the evidence that she gave of the frequency of the applicant's complaints to her was not put to Dr Glaser. That appears to be the kind of evidence that might have assisted him.
The respondent's case relies on the point Dr Glaser makes about the trip to Sydney. This point was made in his 1999 (Exhibit 1) and 2000 (Exhibit 2) reports. Through no fault of his, it was based on thoroughly inadequate material. It is our impression that having committed himself to this point, Dr Glaser is very reluctant to modify it, notwithstanding that he was, eventually, given a fuller picture. He conceded that the fact the applicant made a compensation claim on 2 October was relevant, as the fact that Dr Wolska had diagnosed back pain on that date. He also concedes the relevance (in the application of criterion A in the DSM IV) of the fact that the applicant subsequently made complaints of pain to Dr Ostberg, and that she had observed behaviours such as fidgeting that were consistent with the applicant experiencing pain. We also note that Dr Glaser was aware when he wrote his 1993 and 1996 reports that the applicant was on what he himself said were "reasonably high" levels of drugs to ameliorate pain. These are the considerations that we think support the diagnosis of chronic pain disorder made by Dr Lucas.
We also feel that Dr Glaser has put out of his mind relevant information known to him. For example, in his evidence Dr Glaser volunteered information that in his interview with the applicant, the latter was "not at all distressed in any way, certainly not showing any signs of vexed mood or anxiety or frustration or disappointment or anything really" (Transcript 233). We note, however, that in his 1993 report he observed that the applicant had been "quite depressed" (see above), and in the 1996 report (Exhibit R 12, page 6) he made a similar comment. If Dr Glaser thought that this condition had changed by 1999, the point would have received some emphasis in the long report in 1999 (Exhibit R 1).
We turn now to the evidence of Mr Keiller, a medico-legal consultant called by the respondent. He was a general surgeon with orthopaedic experience. The burden of his report (Exhibit R 4) and of his evidence, is that from a physical point of view, there is no reason why the applicant could not perform his work full-time. Mr Keiller did not make a psychiatric assessment, and did not address the criteria for chronic pain disorder stated in the DSM IV.
We note that Mr Keiller recorded that the applicant gave a history in a straightforward way without obviously exaggerating. We do note too, however, that although when standing and on request the applicant could flex at the lumbar level to only 45 degrees from the standing position, when the applicant was seated on a couch, Mr Keiller was able to raise the legs to 90 degrees.
Apart from this evidence that the applicant failed the couch test, we do not think that the evidence of Mr Keiller is helpful to us.
CONCLUSIONS
From the applicant's point of view, what we have here is a person whose GP considers has a painful back, so painful that he immobilises it for long periods despite that being ill-advised as a treatment regime. Notwithstanding a particular matter that emerged in cross-examination, we consider Dr Ostberg to have been a reliable witness. She has seen the applicant regularly since just before 1 October 1997, and she has taken note of matters that pertain to an assessment of the veracity of the applicant. She quite clearly believes him when he says he has pain in his back.
The applicant has been making such complaints for a long time, as is apparent from the first 1993 report of Dr Glaser There have been very few, if any substantial, suggestions in the reports of doctors to whom these reports have been made that the applicant is exaggerating or feigning. The only point of note is the comment by Mr Keiller that the applicant 'failed' the couch test. But Mr Keiller thought still that the applicant gave a history in a straightforward manner without obviously exaggerating. We also note the report of Dr Lark, occupational physician, of 14 January 2000, provided to the applicant's employer (Exhibit A 6). He made a physical examination, and he also noted in particular the report of Dr Lucas that the applicant had a chronic pain disorder. Dr Lark accepted that the applicant "has a significant partial incapacity for work". Dr Lark was not acting as a medico-legal consultant in the usual sense, and indeed, he was reporting to the applicant's employer. This gives it, from the applicant's point of view, some weight.
We cannot, on this evidence, find that the applicant has feigned or exaggerated his complaints of pain. We have in our review above noted some of the bases for suggestions to the contrary, and dealt with them.
We consider that the evidence clearly shows, as Criterion A of the diagnostic criteria for "F45.4 Pain Disorder" requires, that the applicant experiences "Pain in one or more anatomical sites is the predominant focus of clinical presentation and is of sufficient severity to warrant clinical attention". The case for saying that he does not rests primarily oh the analysis made by Dr Glaser, and, in particular, on the significance that he attaches to the applicant's trip to Sydney on the evening of 1 October 1997. We have given reasons above for discounting that analysis.
It is also clear that in terms of criterion B, "The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning". Unless one were to believe that the applicant feigned his claim of inability to work full hours, and that his GP had been fooled, it is clear that he is impaired, in a significant way, in his occupational setting. Here we again note that Dr Lark accepted that the applicant "has a significant partial incapacity for work". (He had been asked by the employer to make an assessment of the applicant "in relation to partial invalidity retirement".)
The matter that is most difficult to judge is whether, in terms of criterion C, "Psychological factors (are judged to) have an important role in its onset, severity. exacerbation, or maintenance of the pain". This is hard to judge because one cannot see, or touch, a mental process. Here, we must rely on those with clinical experience in making such judgments. Here, Dr Glaser has a view directly opposed to that of Dr Lucas. We have given reasons for preferring the latter view. We note too that Dr White, and, it would seem, Dr Lark, support the diagnosis that the applicant had a chronic pain disorder.
At the end of the day, we find that the applicant has, on the balance of probabilities, established that he suffers from a chronic pain disorder.
100. The significant ultimate issue of fact is whether, chronic pain disorder being an aliment, it is an ailment or an aggravation that was contributed to in a material degree by the employee's employment. We find this to be the case. It is incidents of soft-tissue injury at work that are most likely to be the trigger for the onset of the chronic pain disorder. There is no other apparent explanation.
DECISION
101. The Tribunal sets aside the decision under review and in its stead decides that the applicant was, from 1 October 1997, incapacitated for work as a result of a chronic pain disorder. He is entitled to compensation under the Act. We take it that the respondent will make a calculation under section 19 in respect of those days and lesser periods that the applicant has not been able to work since 1 October 1997. This will necessarily require a recalculation of periods of sick-leave and recreation leave taken by the applicant. The applicant is also entitled to other benefits under the Act, such as reimbursement for medical expenses. The parties are at liberty to apply for any further directions in these regards.
102. This is an appropriate case in which to direct, without further hearing, that respondent is to pay the applicant's reasonable costs of these proceedings as agreed or taxed. We refer here to the Tribunal's decision in Re Bessey and Australian Postal Corporation (23 May 2000), para 94ff).
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 5, 6 and 20 June 2000
Counsel for the Applicant Ms Godtschalk
Solicitor for the Applicant Gary Robb & Associates
Counsel for the Respondent Mr Mcinnis
Solicitor for the Respondent Phillips Fox
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