Cashin and Comcare (Compensation)

[2018] AATA 3519

Cashin and Comcare (Compensation) [2018] AATA 3519 (18 September 2018)

Division:GENERAL DIVISION

File Number(s):      2015/5152; 2017/0488; 2017/0489; 2017/1103

Re:Margaret-Mary Cashin

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms Amy Wood, Member

Date:18 September 2018

Place:Melbourne

The Tribunal sets aside the reviewable decisions made by the Respondent on 3 September 2015, 19 December 2016, 20 December 2016 and 16 February 2017, and in lieu thereof the following decisions are made: 

3 September 2015 decision – Application 2015/5152

(a)The Applicant continues to suffer from the effects of the compensable and accepted feet injury, referable to the incident on 6 March 2003.

(b)The Respondent is liable to pay compensation pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988 from 8 July 2015 to the present and presently in respect of the compensable and accepted feet injury.

(c)The calculation of the sum of compensation due and payable is remitted to the Respondent for determination noting that the Applicant was employed and working for some of the time.

(d)The Respondent is liable to pay compensation pursuant to s 16 of the Safety Rehabilitation and Compensation Act 1988 from 8 July 2015 to the present and presently for massage therapy at a rate of once every three to four weeks in respect of the compensable and accepted feet injury. 

19 December 2016 decision – Application 2017/0488

(a)The Applicant’s lower back injury did arise out of the incident on 6 March 2003.

(b)The Respondent is liable to pay compensation pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988.

20 December 2016 decision – Application 2017/0489

(a)The Applicant suffers from permanent impairment in respect of her compensable and accepted feet injury.

(b)Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the matter is remitted to the Respondent for assessment and determination in accordance with the AMA Guide.

16 February 2017 decision – Application 2017/1103

(a)The Applicant continues to suffer from the effects of the compensable and accepted feet injury, referable to the incident on 6 March 2003.

(b)The Applicant has required medical treatment in respect of the compensable and accepted feet injury from 3 January 2017 to the present and presently and the Respondent is liable to pay compensation pursuant to s 16 of the Safety Rehabilitation and Compensation Act 1988 in relation to same, including:

(i)consultations with a general practitioner;

(ii)consultations with Dr Du Toit on about a six-monthly basis;

(iii)consultations with a podiatrist; and;

(iv)medications including Endep.

...[sgd].....................................

Member

Catchwords

COMPENSATION – whether applicant continues to suffer incapacity for work – whether lower back injury arose out of employment related incident – whether impairment permanent – entitlement to compensation for medical expenses – decisions under review set aside

Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Secondary Materials

Comcare Guide to the Assessment of the Degree of Permanent Impairment

American Medical Association’s Guides to the Evaluation of Permanent Impairment

REASONS FOR DECISION

Miss Amy Wood, Member

18 September 2018

HEARING

1. On 19 February 2018, the applications of Margaret-Mary Cashin (“the Applicant”) were listed for hearing before the Administrative Appeals Tribunal at Melbourne. The Applicant and Respondent were represented by experienced Counsel. The evidence was heard over three days and written final submissions were subsequently filed and served as follows:

   (a)Applicant’s Submissions dated 21 March 2018 (18 pages);

   (b)Respondent’s Submissions dated 20 April 2018 (55 pages); and

   (c)Applicant’s Submissions in Reply dated 8 May 2018 (5 pages)

   PRELIMINARY MATTER

2. Prior to the commencement of the hearing, the Applicant sought leave to file an amended Statement of Facts, Issues and Contentions, together with a Supplementary Statement of the Applicant. The Respondent did not oppose the request and leave was granted.

   APPLICATIONS FOR DETERMINATION

3. The Respondent made four reviewable decisions in relation to the Applicant. These decisions were made on or about 3 September 2015, 19 December 2016, 20 December 2016 and 16 February 2017. Each decision is outlined (in brief) below:

   (a)3 September 2015 decision – Application 2015/5152 (Exhibit 1 – T80):

   On or about 3 September 2015, the Respondent conducted an independent review of its determination dated 8 July 2015,[1] which denied funding for massage therapy pursuant to s 16 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”), and incapacity payments pursuant to s 19 of the SRC Act. The denial was confirmed on the basis that:

   [1] Exhibit 1 – T76.

   “In reviewing the evidence before me, I find that Comcare has not been provided any evidence that the massage treatments would alleviate your compensable condition, or to how these treatments would be defined as reasonable. The evidence has also demonstrated that you no longer suffer an incapacity for work as a result of your compensable condition [contusion – foot (bilateral) and unspecified disorder of joint – ankle/foot (bilateral)]”[2] (“the accepted and compensable feet injury”).

   [2] See Exhibit 1 – T8, pages 168 – 172.

   (b)19 December 2016 decision – Application 2017/0488 (Exhibit 3 – T1):

   On or about 19 December 2016, the Respondent conducted an independent review of its determination dated 9 November 2016[3], which denied liability for a lower back injury pursuant to s 14 of the SRC Act. The denial was confirmed on the basis that:

   [3] Exhibit 3 – T19.

   “...while I accept that you have lower back pain of unknown origin and diagnosis, I cannot be satisfied that any lower back pain arose out of the incident of 6 March 2003 and I find that the determination before me was correct to deny liability for your claimed lower back condition.”[4]

   [4] See Exhibit 3, T1, page 9.

   (c)20 December 2016 decision – Application 2017/0489 (Exhibit 3 – T2):

   On or about 20 December 2016, the Respondent conducted an independent review of its determination dated 9 November 2016,[5] which declined the Applicant’s claim for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the SRC Act. The Applicant’s claim was in relation to her lower extremity function (in short, her feet injury) and lower back condition. The denial was confirmed on the basis that:

   [5] Exhibit 3 – T20.

   “In relation to the claimed impairment for your lower back, as the above determination decided that liability does not exist under section 14 of the SRC Act for this condition, I find that you have no entitlement under sections 24 and 27 of the SRC Act for your lower back.”[6]

   [6] See Exhibit 3, T2, page 19.

   And

   “... I am not satisfied that your impairment meets the criteria of 10% whole person impairment under Table 9.7 in the approved guide. Subsequently, I find that you are not entitlement (sic.) to an award under sections 24 and 27 of the SRC Act in relation to an impairment to your lower extremities.”[7]

   [7] See Exhibit 3, T2, page 20.

   (d)16 February 2017 decision – Application 2017/1103 (Exhibit 3 – T3):

   On or about 16 February 2017, the Respondent conducted an independent review of its determination dated 3 January 2017,[8] which declined funding for medical expenses pursuant to s 16 of the SRC Act. The denial was confirmed on the basis that:

   “By determination dated 3 January 2017, Comcare declined your present entitlement to medical expenses under section 16 of the SRC Act. The delegate was not satisfied that you continued to experience the effects of your accepted condition.”[9]

   Furthermore, it was stated that

   “I note that Comcare have not accepted liability for bilateral neuropathic heel pain, a chronic pain syndrome or any lower back condition. Therefore, I am unable to consider what medical treatment you require as a result of these conditions. With no evidence before me to support that you continue to experience the effects of the accepted conditions, I find that you have no present entitlement to medical expenses under section 16 of the SRC Act.”[10]

   [8] Exhibit 3 – T28.

   [9] See Exhibit 3, T3, page 28.

   [10] See Exhibit 3, T3, page 29.

4. The four decisions are before the Tribunal for review. The review is a merits review, and pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal has the following power and discretion:

   (1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

   (a)  affirming the decision under review;

   (b)  varying the decision under review; or

   (c)  setting aside the decision under review and:

   (i)making a decision in substitution for the decision so set aside; or

   (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

   FACTUAL BACKGROUND

5. The Applicant was born on 20 April 1959 and is currently 59 years of age. She has a Bachelor of Applied Science in food technology and biotechnology. She also has a Masters in Applied Science in bioengineering, a Masters in Management specialising in change and a Graduate Diploma of education secondary. Throughout her adult life she has been employed in roles consistent with these qualifications.

6. From 24 July 2000 to 14 April 2003, the Applicant was employed full-time (on a contract), as a research liaison officer by the Dairy Research and Development Corporation (previously known as Dairy Australia Limited). The Applicant gave evidence (in summary) that her role involved primarily office based work as well as liaison work that required her to attend farms. She explained that she was responsible for assessing proposed projects and regional development programs. She was involved with issues of funding and the management of projects.[11]  

   [11] “There was quite a lot of looking at projects that were being proposed to be done, looking at the – what projects should be funded, what projects needed to be assisted, what we could encourage them to roll out to farmers, so I also went around the various regional development programs. I was looking after specifically one section of the farm portfolio that was the business and HR side and in that there were eight regional development programs and I looked after those around Australia.” She stated that “it was primarily office based but there was a lot of – as the title would suggest, there was a lot of liaison work that has to be done and you know, organising the various RDP’s [Regional Development Programs] to come to the city to organise... conferences, doing all the administrative work as well behind that and managing projects – the various projects that were undertaken by those RDPs.”

7. The Applicant gave evidence that on 6 March 2003, she was in Canberra for work. She explained that while she was returning to her hotel room to get dressed for a function that evening, she misjudged her step at a roundabout and dropped at least a metre and landed on the grass below. She gave evidence that she landed heavily on both feet and felt immediate pain ricochet up through her body to her back (“the incident”).[12] She stated: “I just remember landing solidly. I didn’t fall over, I just landed solidly on my feet”[13]

   [12] See paragraph 3 of Exhibit 4 (with amendments).

   [13] Transcript, p15.

8. The Applicant gave evidence that on 6 March 2003, she informed her Portfolio Manager, Mr Steve Coates, that she had hurt herself earlier that day. That same day, she also reported the incident to the CEO.[14] The Applicant subsequently completed a Notification and Report of an Incident form[15] which was provided to Ms Gent on 26 March 2003.[16] Thereafter, the Applicant completed the appropriate forms to lodge a claim for worker’s compensation for the personal injuries she claimed to have sustained as a result of the incident.[17] 

   [14] See paragraph 3, Exhibit 5.

   [15] Exhibit 2, ST2, p16.

   [16] See paragraph 4, Exhibit 5.

   [17] Exhibit 2, ST1, p1-9.

9. On 5 March 2004, the Respondent accepted liability pursuant to s 14 of the SRC Act for an injury described as “Contusion – foot (bilateral)”.[18] Following further investigation and diagnosis, on 4 May 2007, the Respondent accepted liability pursuant to s 14 of the SRC Act for an injury described as “unspecified disorder of joint – ankle/foot (bilateral)”.[19] Thereafter, the Applicant received compensation consistent with these determinations.

   [18] Exhibit 1, T3, p4.

   [19] Exhibit 2, ST3, p17.

10. The nature and extent of the Applicant’s medical treatment from 6 March 2003 is set out in the Applicant’s Amended Statement of Facts, Issues and Contentions dated 16 February 2018. The chronology and history of treatment was not contested by either party in the proceeding, thus it does not require reproduction by the Tribunal.[20]

    [20] Of most significance, the Applicant did not contest that the first documented complaint of lower back pain was on 1 November 2006. 

11. On or about 14 April 2003, the Applicant’s contract of employment with Dairy Research and Development Corporation was prematurely terminated but paid out. Following the termination of her employment, the Applicant commenced working part-time as a medical scientist at the Northern Hospital in the Pathology Department.[21] The Applicant was working part-time because she found it difficult to manage full-time work.[22] In her oral evidence, the Applicant explained that she was stopped from working more hours because “my feet would get too sore, my heels in particular...”[23] The Applicant was made redundant by the Northern Hospital on 9 December 2016 along with four other scientists, following an internal restructure of the Pathology Department.[24]

    [21] See paragraph 8, Exhibit 4.

    [22] Ibid.

    [23] Transcript, p21.

    [24] See paragraph 26, Exhibit 4.

12. On or about 14 June 2017, the Applicant commenced a position as a Tenders and Funding Partner with Bendigo TAFE and Kangan Institute. The role was described as part-time, casual. This employment ended very soon after it had commenced. According to the Applicant, the Enterprise Bargaining Agreement did not allow casual employees to be retained for more than ten weeks.[25] The Applicant has not worked since but has been searching for part-time or casual work. A list of positions she has either applied for, or made enquires about, was annexed to her Supplementary Statement dated 16 February 2018. The table records that between 12 December 2016 and 7 February 2018, the Applicant had either applied for or made enquires about approximately 295 possible positions of employment.[26]

    [25] See paragraph 27, Exhibit 4 and paragraph 10 of Exhibit 5.

    [26] See “MMC-5”, Exhibit 5.

    EVIDENCE PUT BEFORE THE TRIBUNAL

13. The Applicant adopted her signed statement (with two amendments) dated 21 June 2017.[27] She also adopted her signed supplementary statement dated 16 February 2018.[28] The Applicant also gave oral evidence and was cross-examined by Counsel who appeared on behalf of the Respondent. The Applicant called lay evidence from a long‑time friend, Christopher Hills. In addition to giving oral evidence, he adopted his signed statutory declaration dated 20 April 2016[29] and was cross-examined.

    [27] Exhibit 4.

    [28] Exhibit 5.

    [29] Exhibit 12.

14. The Tribunal heard oral evidence from five expert witnesses. The Applicant called Dr Neels Du Toit, her treating sports medicine physician, Dr David Kennedy, medico-legal sports and industrial physician and medico-legal, orthopaedic surgeon Associate Professor Elton Edwards. The Respondent called Mr Ronald Haig and Dr Gale Curtis (by telephone), both medico-legal orthopaedic surgeons. Each expert was cross-examined. 

15. The following documentary evidence was tendered:

Applicant	Description
Exhibit 1	Tribunal documents – T-1 to T-80, numbered 1 to 172
Exhibit 2	Supplementary Tribunal documents – ST-1 to ST-8, numbered 1 to 120
Exhibit 3	Further Tribunal documents – T-1 to T-31, numbered 1 to 152
Exhibit 4	Applicant’s statement (with two amendments) dated 21 June 2017
Exhibit 5	Applicant’s supplementary statement dated 16 February 2018
Exhibit 6	Medical report of Dr Neels Du Toit dated 1 August 2017
Exhibit 7	MRI report – image performed on 13 June 2017
Exhibit 8	Medical report of Dr Neels Du Toit dated 12 December 2017
Exhibit 9	Medical report of Dr David Kennedy dated 13 December 2016
Exhibit 10	Medical report of Sally Child, podiatrist at Olympic Park Sports Medical Centre dated 18 November 2015
Exhibit 11	Medical report of Sally Child, podiatrist at Olympic Park Sports Medical Centre dated 21 December 2016
Exhibit 12	Statutory declaration of Christopher Hills dated 20 April 2016
Exhibit 13	Medical report of Associate Professor Elton Edwards dated 13 November 2017
Exhibit 14	Medical report of Associate Professor Elton Edwards dated 9 January 2018
Respondent	Description
Exhibit A	Two page document of Applicant’s LinkedIn page
Exhibit B	Small bundle of hand written clinical notes from North Coburg Medical Centre
Exhibit C	Olympic Park Sports Medicine Centre documents extracted dated 13 June 2006 to 29 January 2016
Exhibit D	Ultrasound of left calf dated 5 May 2011
Exhibit E	Ultrasound of right ankle dated 18 July 2016
Exhibit F	MRI of right ankle taken 9 October 2007and report dated 10 October 2007

1. The Tribunal read all the material tendered and has considered the evidence and submissions made by both parties. A transcript of the hearing was made available to the Tribunal and this has been referred to throughout the Tribunal’s decision.

2. Each Application before the Tribunal is addressed separately below.

   APPLICATION 2015/5152 – 3 SEPTEMBER 2015 DECISION

   Continuation of the 2003 accepted injury

3. The Respondent submitted that from 8 July 2015, the Applicant’s incapacity for work was no longer as a result of the compensable and accepted feet injury, namely, contusion – foot (bilateral) and/or unspecified disorder of joint – ankle/foot (bilateral). The Respondent submitted that the Applicant’s new injury (identified as “bilateral neuropathic heel pain” or “chronic pain syndrome”), has been the cause of any incapacity for work since that date. The Respondent relies on the opinions of Mr Haig and Dr Curtis, in short, that any soft tissue injury sustained as a result of the incident in March 2003 would have resolved long ago. The Respondent submitted that the key preliminary issue is: whether the Applicant continues to suffer from the effects of the compensable and accepted feet injury. The Applicant agreed that this was the correct preliminary issue, and submitted that the Tribunal should accept the opinion of Associate Professor Edwards on the issue. She further submitted that if his opinion is accepted, the preliminary issue will resolve in favour of the Applicant. The Tribunal accepts the evidence of Associate Professor Edwards. The Applicant made alternative submissions that are consequently unnecessary for the

   
   

   Tribunal to address.

4. The medical evidence relevant to the preliminary issue is summarised below:

   Dr Cornelius (Neels) Johannes Du Toit

5. In his most recent report dated 12 December 2017, Dr Du Toit diagnosed:

   “1. Bilateral heel contusion. 2. Bilateral ankle synovitis. 3. Right sacroiliac joint related lower back pain. 4. General muscle soreness and myofascial trigger points of the buttock, lower limbs and calves.”[30]

   On any fair reading of the report, the diagnosis of Dr Du Toit in December 2017 is of bilateral heel contusion and bilateral ankle synovitis. Furthermore, Dr Du Toit notes that in the absence of any pre-existing pain this presentation is still a direct result of the injury as described (in March 2003).[31]

   [30] Exhibit 8.

   [31] “She denies any pre-existing pain in these areas... It is therefore my opinion that her current pain presentation is still a direct result of the injury as described.”

1. Dr Du Toit’s opinion in December 2017 is inconsistent with his earlier opinion outlined in his report dated 10 March 2015. In March 2015, Dr Du Toit stated: 

   “I do agree with Dr Curtis’ assumption and assessment of the soft tissue type injuries Margaret-Mary Cashin sustained at work in 2003 should have recovered by now, specifically bilateral heel contusion and ankle synovitis would have recovered by now.” 

2. Dr Du Toit was asked to clarify his opinion in relation to his current diagnosis and stated that over time he thinks that the Applicant’s chronic pain has developed a form of more probably neuropathic pain. He stated further that “the initial injury was a contusion injury and that’s, as I stated in diagnosis and over time she’s then developed symptoms of chronic neuropathic pain to the heels.”[32]

   [32] Transcript, p115.

3. Dr Du Toit did not explain how or when the organic injury ceased and the neuropathic pain condition commenced. Additionally, his diagnosis conflicts with the evidence of specialist lower limb orthopaedic surgeon, Associate Professor Edwards. In the absence of an explanation and the ambiguity sounding his diagnosis, the Tribunal is not prepared to accept the opinion of Dr Du Toit, namely that the compensable and accepted organic injury has ceased and the Applicant now suffers from a neuropathic pain condition. Furthermore, the Tribunal is not prepared to accept Dr Du Toit’s evidence in light of the sound and cogent diagnosis provided by a more highly qualified medical practitioner, namely, Associate Professor Edwards.

   Dr David Kane Kennedy

4. In his report dated 31 March 2016,[33] Dr Kennedy stated that:

   “[the incident] was the origin of her ongoing problems involving her ankles and feet, extending up her legs into her lower back. She experienced an impact up to her body and immediately had soreness in the lower back and her lower extremities.”

   He stated that:

   “Ms Cashin has sustained injuries to both feet with a high signalled soft tissue injury involving the calcaneal fat pad superficial to the plantar aspect of the calcaneum in keeping with a contusion and possible fat necrosis. This injury has occurred to both feet and Ms Cashin has developed a secondary problem with an alteration in her gait pattern affecting her lower extremity and she has clinical signs of mechanical low back problem involving the lumbar region, worse on the right side.”[34]

   [33] Exhibit 3, T6, pp 37, 38.

   [34] Exhibit 3, T6, p40.

5. In more recent times, the diagnosis given by Dr Kennedy in relation to the Applicant’s feet was that she has “some aspects of a neuropathic pain syndrome involving the feet.”  (Emphasis added). Dr Kennedy did not explain how a patient could have “some aspects of a neuropathic pain syndrome”. In these circumstances, his diagnosis was rather curious and difficult to accept. Furthermore, his diagnosis was not supported by the cogent opinion expressed by the specialist lower limb orthopaedic surgeon Associate Professor Edwards. In these circumstances, the Tribunal is not prepared to accept the opinion of Dr Kennedy in relation to his diagnosis of the Applicant’s feet injury.

   Dr Gale Mervyn Curtis

6. In his report dated 16 January 2015,[35] Dr Gale Curtis stated:

   “This episode [the incident] appears to have been the original (sic) of her subsequent and ongoing problems [to both ankles and feet].”

   He diagnosed  

   “1. Chronic right sacroiliac joint strain. 2. Soft tissue ligamentous injuries to her mid and hind feet with residual tenderness along the tibialis posterior on each side extending into the sole of the foot.” (Emphasis added).

   [35] Exhibit 2, ST6, pp26-33.

7. In response to a question put to him by lawyers acting on behalf of the Respondent: “From what specific condition/s does the employee currently suffer from?” He stated (as at January 2015),

   “With regard to the specific condition she has, the best I can do for you is painful hind feet with mild residual tibialis posterior tendonitis and mild plantar fasciitis. These are soft tissue issues and often undergo a prolonged period. I cannot explain why she still has symptoms after 10 years.” 

8. In his report Dr Curtis stated that he was inclined to think that the Applicant’s current condition remains related to employment with the DRDC and the incident on 6 March 2003 but stated: “It is clear, however, that in the interim there must be other factors operating but I am afraid I do not know what they are.” (Emphasis added).

9. Dr Curtis gave evidence that he was inclined to consider that the Applicant’s current condition is in good part, part of the natural aging process. Under cross-examination, Dr Curtis gave evidence that he had not treated patients for roughly ten years, and that when he did treat patients, his speciality was spinal surgery – back and neck. Under cross‑examination, he accepted that the Applicant sustained a soft tissue injury to her heels when she fell in 2003 but, would not be drawn into giving an opinion as to whether this had damaged or sensitised various nerve endings in the heel of her foot. He gave evidence that this was “getting into the chronic pain syndromes” and that he believes it is all “contestable stuff”. He stated he is not skilled in the area.[36]  

   [36] Transcript, p191.

10. Generally speaking, the evidence of Dr Curtis was confusing and contradictory. At one point, Dr Curtis gave evidence that the diagnosis he had given in his report in January 2015, was the diagnosis of her injuries as at 2003.[37] On any fair reading of the report, the Tribunal could not accept this evidence.

    [37] Transcript, p189.

11. In summary, it was the opinion of Dr Curtis that the incident on 6 March 2003 was the origin of her subsequent and ongoing problems. Furthermore, that her ongoing problems included soft tissue ligamentous injuries to her mid and hind feet with residual tenderness along the tibialis posterior on each side, extending into the sole of the foot. In oral evidence he confirmed his opinion that at the time he wrote his report he believed that the Applicant continued to suffer from the effects of the 2003 injury, albeit that there may be complications with other factors. He further confirmed that he continued to hold that view now (as at February 2018). In his report, Dr Curtis stated that he could not explain why the Applicant still has symptoms after ten years. He believed that other factors were operating but he could not identify what they are, but was inclined to consider that they are part of the natural aging process.

12. Dr Curtis gave evidence that the Applicant has valgus ankles with some abutment of the lower fibula on the tails. He stated that this condition is a constitutional issue and would be a good reason for her pain. Specialist lower limb orthopaedic surgeon Associate Professor Edwards examined the Applicant on 25 October 2017 and did not detect any valgus abnormality. Furthermore, Associate Professor Edwards gave evidence that such a deformity is not usually painful, so even if there is a tiny bit of valgus present, it is unlikely that this would be the source of the Applicant’s pain.[38] 

    [38] Transcript, p205.

13. In all the circumstances, the Tribunal is not prepared to accept the evidence of Dr Curtis that the Applicant’s ongoing pain is now, and in more recent times, a result of either the natural aging process or valgus ankles. Dr Curtis is a specialist in spinal surgery and his opinions about age-related pain and valgus ankles are less reliable than the cogent opinions expressed by specialist lower limb orthopaedic surgeon Associate Professor Edwards. 

    Mr Ronald Alan Haig

14. Mr Haig gave evidence before the Tribunal that he believed it is likely that the Applicant hurt her left heel in the incident, more likely soft tissue, meaning in the heel pad. He gave evidence that he believed the symptoms for an injury of this nature would continue for no more than about six weeks.[39] 

    [39] Transcript, p165.

15. In his report dated 14 October 2016,[40] Mr Haig stated that he believed:

    “it is exceedingly unlikely that 13 years after such an incident there would be any continuing pain attributable to that episode. Any pathology at that time, be it soft tissue or bony would long since have settled.”[41]

    He stated that he believed the Applicant “has developed a chronic pain syndrome” and that “the effects of the compensable condition have ceased and have been superseded by a different condition, namely a chronic pain syndrome.”[42]

    [40] Exhibit 3, T18, pp106-119.

    [41] See Exhibit 3, T18, p110.

    [42] See Exhibit 3, T18, p112.

16. The Tribunal notes that despite being confident in his diagnosis of chronic pain syndrome, Mr Haig could not explain to the Tribunal when the chronic pain syndrome started occurring.[43] Furthermore, he could not explain the basis for the chronic pain syndrome.[44] He agreed that he is not a pain management specialist and, furthermore, he gave evidence that whilst in clinical practice he was a generalist orthopaedic surgeon and did not specialise in foot or ankle surgery.[45] In these circumstances, the Tribunal considers the diagnosis and opinions expressed by Mr Haig less reliable than the cogent opinions expressed by specialist lower limb orthopaedic surgeon Associate Professor Edwards.

    [43] Transcript, p166.

    [44] Transcript, p166.

    [45] Transcript, p167.

    Associate Professor Elton Richard Edwards

17. Associate Professor Edwards gave evidence that he examined the Applicant on 25 October 2017. Following this examination he diagnosed her feet condition as a soft tissue injury to both heels. He gave evidence that he found it difficult to apply a well-defined, precise diagnosis, and that he used the term “soft tissue injury” fairly loosely because that’s what he believed happened at the time.[46] He gave evidence that it would be common for a soft tissue injury (such as the one sustained by the Applicant in 2003), to resolve within either six to eight weeks. However, he gave evidence that he definitely believed that there are exceptions to that.[47] Associate Professor Edwards explained that it is common for patients who are subjected to a crush-type injury for their pain to be very, very persistent, even in the absence of a defined injury. He gave evidence that in his opinion the Applicant had effectively sustained a crush-type injury as a result of the fall. 

    [46] Transcript, p201.

    [47] Transcript, p202.

18. In cross-examination, the Respondent challenged his opinion. The Respondent suggested that the forklift crush-type injury would involve a significant amount of trauma which is very different to the incident in this case. Associate Professor Edwards responded by saying:

    “Yes and no, because these injuries are often no fractures, so the person screams out, it stops just in time, but they still get a crush. No broken bones, soft tissue injury damage, bruising, swelling, sort of looks ugly, et cetera, but nothing broken and then ongoing pain.”[48] (Emphasis added).

    [48] Transcript, p208

19. Associate Professor Edwards conceded that the incident in this case was significantly less than a forklift crush-injury. He explained that the situations were analogous. Where there is a sudden, unprotected impact to the body – whether it is from misjudging the distance off the step from the roundabout and dropping and landing solidly on your feet or being reversed onto by a forklift – both are sudden and unprotected.  

20. The Tribunal found the evidence of Associate Professor Edwards well-reasoned and logical. It made common sense and was not far-fetched. The Tribunal accepts his diagnosis of a continued, organic soft tissue injury to the Applicant’s feet. Whilst it may be uncommon for a soft tissue injury to fail to resolve over a number of years, it is not unprecedented. Associate Professor Edwards explained this in a compelling and rational way.       

21. For the reasons outlined above, the Tribunal does not accept that the injury sustained by the Applicant in March 2003 has, at some unknown point in time, simply ceased or became a chronic pain syndrome or neuropathic pain condition. Nor does the Tribunal accept that the condition is now explained by the Applicant’s age or alleged “valgus ankles” which, it is noted, were not detected by the specialist lower limb surgeon when he examined her on 25 October 2017. 

22. In all the circumstances, the Tribunal is satisfied that the Applicant continues to suffer from the effects of the compensable and accepted feet injury. This finding is in line with the clear, unambiguous and cogent opinion expressed by Associate Professor Edwards.

23. The Tribunal notes that the Respondent did not argue that the diagnosis made by Associate Professor Edwards was a different (or new) injury. It was accepted that his diagnosis was captured by the accepted injury on 5 March 2004 (“contusion – foot (bilateral)”) and/or the accepted secondary condition on 4 May 2007 (“unspecified disorder of joint – ankle/foot (bilateral”). On this point it is noted that the diagnosis of Associate Professor Edwards is consistent with the diagnosis outlined by the Applicant’s treating general practitioner (as stated in the initial medical certificate), namely “soft tissue injury”. It is presumed by the Respondent, and the Tribunal, that this certificate was the medical certificate submitted in support of the original claim for compensation which was subsequently accepted on 5 March 2004.[49]

    [49] Respondent’s Closing Submissions dated 20 April 2018 at paragraphs 71-72, p30.

24. As stated above, the Respondent submitted that, while it acknowledges that the Applicant has continued to experience symptoms affecting her feet since 8 July 2015 (and ongoing), these symptoms are not as a result of the accepted feet injury because it has long resolved and a new injury has developed. The Respondent submitted that the new injury is not appropriately before the Tribunal for consideration. The current pain disorder has not been the subject of a valid claim for compensation or determination, therefore, the Tribunal does not have jurisdiction to consider it.

25. Having found that the Applicant continues to suffer from the symptoms of the compensable and accepted feet injury, it is not necessary for the Tribunal to consider or make any finding in relation to the alleged pain disorder and/or whether the Tribunal has jurisdiction to consider any new injury.

    Incapacity payments from 8 July 2015

26. The Tribunal heard evidence from the Applicant as to the nature and extent of her pre‑injury employment. This evidence does not require total reproduction, however, the following matters are highlighted:

    -The Applicant was working full-time.

    -Her work was primarily office-based but there was a lot of liaison work, organising the various Regional Development Programs... conferences, doing all the administrative work as well as managing projects.[50]

    -She was required to be on her feet from time-to-time; and standing and walking was involved when she would visit farms or if she was attending a presentation.[51]

    -Whilst she returned to work in her pre-injury role after the incident on 6 March 2003, (until 14 April 2003), she did not agree that she had been working to full capacity up until that time. She gave evidence that “... I was working. It depends what you mean by full capacity. I was obviously injured.”[52] She described that she was “hobbling” and “was trying to get by”.[53]

    -The Applicant explained in the Compensation Claim for Permanent Impairment and Non-Economic Loss Form and Checklist that she feels she has lost her “professional status and the joy of challenging work”[54] and furthermore that she “was double master and post graduate in Ed. working full time in a mid‑management demanding position with real potential to advance further, I am now a much lower level laboratory scientist working part time.”[55]  

    -Since the Applicant’s contract of employment with the Dairy Research and Development Corporation was terminated she has only had the capacity for part‑time employment. She was asked:

    “What stopped you working more hours?--- I would get too sore... my feet would get too sore, my heels in particular, I would also – that pain would go up the front of my legs you know, and up my body and so I would be too sore to do any more hours than I, you know, did.”[56]

    [50] Transcript, p14.

    [51] Transcript, p14.

    [52] Transcript, p73.

    [53] Transcript, p77.

    [54] See Exhibit 5, MMC-4 – “Part 2: Suffering – Employee’s comments”

    [55] See Exhibit 5, MMC-4 – “Part 2: Suffering – Employee’s comments”

    [56] Transcript, p21.

27. Having accepted the opinion of Associate Professor Edwards in relation to diagnosis of the Applicant’s medical condition, it follows that his opinion in relation to work capacity is the only relevant opinion. In his report dated 13 November 2017, Associate Professor Edwards was of the opinion that the Applicant was not able to work full-time because of her feet injuries.[57] Before the Tribunal, Associate Professor Edwards gave evidence that:

    “She, until relatively recently – 2016 – was working approximately 20 hours a week which was done, as I understand it, working one day and then having the next day off, and she was managing with that... So, I would feel that if she was to return to work, that something of that nature would be appropriate and then maybe review the situation. If she was managing well, maybe the hours could be increased... I think she should not be standing on her feet for a prolonged period. I think that is perhaps stating the obvious. So, she needs a job where she can vary her position and her posture with some degree and some freedom in order to maintain the comfort of her feet.”[58]

    [57] Exhibit 13, p3.

    [58] Transcript, p205.

28. During cross-examination, Counsel for the Respondent summarised the Applicant’s pre-injury employment and asked Associate Professor Edwards whether, with this heel injury, the Applicant would be able to do that particular work. Associate Professor Edwards gave evidence that:

    “I think initially she would probably have difficulty with it because she would have pain and potentially be taking medication, and it wouldn’t be entirely sedentary, but with time I would expect that the symptoms would improve so that a sedentary job would be possible.”[59]

    [59] Transcript, p210.

29. Having considered all the relevant evidence in relation to the Applicant’s pre-injury employment, her subsequent employment and the medical opinion in relation to her capacity for employment, the Tribunal is satisfied that the Applicant’s circumstances satisfy the definition of incapacity for work as a result of her compensable injury, pursuant to s 4(9)(b) of the SRC Act.

30. In all the circumstances, the Respondent is liable to pay compensation pursuant to s 19 of the SRC Act from 8 July 2015 to the present and presently in respect of the compensable and accepted feet injury.

    Compensation for massage therapy

31. Having accepted the opinion of Associate Professor Edwards, it follows that his opinion in relation to massage therapy (for the injury he diagnosed) is the appropriate and relevant opinion. In his report dated 13 November 2017, Associate Professor Edwards stated:

    “There is no curative treatment available for Ms Cashin’s complaints. Any management will be directed at relieving symptoms rather than producing a long term cure. She reports that massage therapy and lymphatic drainage therapy have been beneficial in relieving her symptoms. It is therefore my view that such treatment is reasonable to assist in symptoms relief.”[60]

    [60] Exhibit 13, p4.

32. Before the Tribunal, Associate Professor Edwards gave evidence that:  

    “...there is some trial and error as to what sort of treatment will give relief. She reported to me that sort of various forms of massage and lymphatic massage and regular massage provided benefit, and on that basis I would support those treatments if they are providing benefit.”[61]

    [61] Transcript, p203.

33. Associate Professor Edwards agreed that once every three to four weeks or thereabouts was an appropriate frequency for massage therapy.[62]  

    [62] Transcript, p203.

1. The Respondent submitted that the Applicant has been receiving ongoing massage treatment for a number of years and the treatment is no longer reasonable. The Respondent drew the Tribunal’s attention to approximately eight decisions of the Tribunal in which it was held that continuing passive treatments were no longer reasonable after a protracted course, if the continuing passive treatment only results in a temporary alleviation of symptoms.

2. The Applicant submitted that her claim for massage treatment should be assessed on the basis of the evidence in her case and pursuant to s 16 of the SRC Act. Like the Respondent, the Applicant referred the Tribunal to a number of cases involving the question of ongoing passive treatment (such as massage), however, in the cases referred to by the Applicant, the Tribunal had found that the ongoing passive treatment was reasonable and compensable.

3. What is “reasonable” will depend on the circumstances of each particular case. In this matter, the Applicant gave unchallenged evidence that her mobility is much better after massage, in particular, she feels she can walk more freely.[63] The Applicant also gave evidence that without massage, she found her exacerbations “not good.”[64] Furthermore, the Applicant gave evidence that since the Respondent terminated funding for massage treatment, she had continued to fund the treatment herself as often as possible despite her quite dire financial circumstances.

   [63] Transcript, p24.

   [64] Transcript, p23.

4. The Tribunal is satisfied that in this matter the evidence demonstrates that the therapeutic benefit and positive impact of the claimed massage treatment on the Applicant’s capacity to walk more freely is not insignificant. On balance, the Tribunal is satisfied that massage treatment at a rate of once every three to four weeks is reasonable. The Respondent is liable to pay this pursuant to s 16 of the SRC Act from 8 July 2015 to the present and presently. 

   APPLICATION 2017/0488 – 19 DECEMBER 2016 DECISION

5. The Respondent denied liability for the Applicant’s claimed lower back injury. It was not satisfied that any lower back injury arose out of the employment related incident on 6 March 2003. 

6. In its written closing submissions, the Respondent argued that the Tribunal should not be satisfied that any claimed lower back injury arose out of or in the course of the employment related incident. It relied on the following matters and submissions (in summary form):

   (a)there is no contemporaneous evidence of any complaint of lower back pain prior to the clinical note of the Olympic Park Sports Medicine Clinic dated 1 November 2006 – this is 44 months after the employment related incident;

   (b)the Applicant had ample opportunity on a multitude of occasions on which she could have reported her lower back pain before 1 November 2006 – it is expected that, if in fact she was experiencing pain, she would have reported the situation;

   (c)the clinical note on 1 November 2006 records lower back pain “over last few days” – this contradicts the Applicant’s position, namely that she had been suffering from lower back pain from the date of the incident; and;

   (d)the Applicant’s evidence on this issue is a product of recent invention or, alternatively, her evidence is highly unreliable and should not be accepted.[65]

   [65] Respondent’s Closing Submissions dated 20 April 2018.

7. The Applicant’s evidence was to the following effect:

   -When she dropped down at least a meter in height off the roundabout, she landed very solidly on her feet and she felt the impact through her feet and heels and it ricocheted up through her body and up through into her back.[66]

   -She gave evidence that the lower back problem was ongoing from the time of the incident.

   -She explained that she did not “realise at the time that I had injured my back, especially because it wasn’t showing up over the pain in my feet.”[67]

   -She agreed that she did not refer to a lower back injury in the Notification of Injury Form which she completed on 26 March 2003 but that this was because the injury was not “apparent to me at the time” and that the pain in her feet had her attention.[68]

   -She further stated that “I became aware of my back involvement only gradually and certainly for the first years, I was just trying to deal with the fact that I had very sore feet and very sore heels, in particular.”[69]

   [66] Transcript, p15.

   [67] Transcript, p71.

   [68] Transcript, p71.

   [69] Transcript, p83.

8. The Tribunal reaches no adverse conclusion against the Applicant from the manner in which she gave evidence. Whilst the Applicant appeared uncomfortable and, at times, uncertain, the Tribunal rejects the Respondent’s submission that her evidence about when she commenced feeling symptoms in her lower back was recently invented. Furthermore, the Tribunal rejects the Respondent’s submission that her evidence on this point should be considered highly unreliable. On this point, the Tribunal notes that the Applicant consistently explained the situation in relation to her lower back and it accepts her evidence in relation to this condition.

9. Furthermore, the Tribunal has no difficulty accepting the mechanism of injury – the Applicant’s lower back was injured when she dropped and landed solidly off the roundabout and her feet and heels made sudden and unprotected impact with the ground which ricocheted up through her body into her back. This finding is supported by the expert opinions expressed by Associate Professor Edwards[70] and Dr Kennedy.[71] Additionally, both Mr Haig[72] and Dr Curtis[73] conditionally accepted that the Applicant’s lower back could have been injured at the time of the incident given the description of the drop from a height.

   [70] The Applicant’s description of the incident, in particular her description that the impact ricocheted through her feet and heels and up through her body and to her back, was put to Associate Professor Edwards. He was asked whether this was consistent or inconsistent with an injury to either the lumbar spine or the sacroiliac joint. In response, Associate Professor Edwards gave evidence that “I think it’s consistent with some degree of injury to the lumbar spine. I think it is less likely to be consistent with a sacroiliac injury. I think that join [sic] is as [sic] very stable joint and required very significant forces to injure it, but the lumbar spine is much more mobile and more prone to injury, and I think it is consistent with an injury to the lumbar spine.” The diagnosis of this witness was a soft tissue injury of the lumbar spine.

   [71] In his report dated 13 December 2016 he stated that: “Ms Cashin has sustained injuries to her lumbosacral spine and sacroiliac joints as well as injuries to her ankles and feet following the work-related injury on 6 March 2003 and she has continued to have problems in her lower back and both feet.” He further stated: “I disagree with Mr Haig’s assessment that her back condition relates to normal age related degenerative change consistent with her age in that Ms Cashin has a clear history of stating the problems were present in her back at the time of the work-related incident but she did not make the correlation with her back pain to the incident until she underwent further evaluation by an orthopaedic surgeon in late 2006. She states quite clearly that the back problems commenced after the original injury and that problems have persisted since that time.”

   [72] Mr Haig was of the opinion that he had “no reason to believe she has any back condition other than normal age-related degenerative change consistent with her age of 57... When she first attended Dr Khan on 12 May 2004 there was no reference to any back condition.” However, under cross-examination, Mr Haig agreed that if it is accepted that there was lower back pain in 2003, at the time of and following the fall, he would accept that there was a strain, albeit one that would have resolved with a period of time.

   [73] Dr Curtis gave evidence that “She fell on grass, as she stated. I think it would be reasonable for her to have had some backache following the fall and ankle and foot pain...” His diagnosis in relation to the Applicant’s lower back condition was of mechanical lower back problems and he agreed that it is plausible that the Applicant suffered a lower back injury in 2003 when she landed on her feet and heels.

10. The Tribunal also notes that the Applicant consistently and repeatedly explained why she did not report or record her lower back injury for a number of years. Her explanation was supported by the evidence of Associate Professor Edwards. In evidence, he was asked about the delay in complaint and stated that:

    “... I think back complaints are very common within the community. They fluctuate from day to day and people will often ignore them for quite prolonged periods before seeking attention, and particular I would imagine in a circumstance where there is another significant injury present.”[74]

    [74] Transcript, p200.

11. The Respondent drew to the Tribunal’s attention one clinical note dated 30 July 2001 which recorded that the Applicant was “Attending physio for her low back pain, localised – buttocks...” This note was written 19 months prior to the employment related incident. The Applicant was asked about the clinical note in evidence. Her response is summarised below:

    (a)the 2001 lower back condition was “a bit of a twinge in muscles and that settled down fairly quickly. So it wasn’t an ongoing issue at all.”[75]

    (b)she couldn’t recall what the symptoms were – she knows “it wasn’t anything ongoing because I would remember it”[76] and that “there would be ongoing notes about it as well from the doctor’s saying.”[77]

    [75] Transcript, p12.

    [76] Transcript, p44.

    [77] Transcript, p45.

12. As stated above, the Tribunal reaches no adverse conclusion from the matter in which the Applicant gave evidence. The single clinical note – albeit that it suggests that physiotherapy treatment had commenced some time prior to the general practitioner attendance – is insufficient to persuade the Tribunal that any pre-existing ailment was affecting the Applicant’s lower back and/or sacroiliac joint prior to the incident in March 2003.

13. In all the circumstances, the Tribunal accepts the Applicant’s account that her lower back symptoms commenced immediately (or very shortly) after the incident. It also accepts her explanation for not reporting the symptoms to her treating medical practitioners, namely that she was initially focused on her more pronounced (feet) injury. As stated above, whilst the Tribunal had no difficulty accepting this explanation, the evidence of Associate Professor Edwards confirmed that this is not an uncommon situation.

14. The Tribunal is satisfied that the Applicant’s lower back injury did arise out of the incident on 6 March 2003. In these circumstances, it is not necessary for the Tribunal to consider whether the Applicant’s lower back condition was caused by any altered gait.

    APPLICATION 2017/0489 – 20 DECEMBER 2016 DECISION

15. The Applicant’s claim for permanent impairment and non-economic loss was initially made in relation to both her lower extremity function (her feet injury) and lower back condition. Both claims were denied by the Respondent. Before the Tribunal, the Applicant abandoned her claim for permanent impairment and non-economic loss in relation to her lower back condition.[78]

    [78] See paragraph 60(c) of the Applicant’s Amended Statement of Facts, Issues and Contentions dated 16 February 2018.

16. In relation to this part of the Applicant’s claim, the Respondent repeated its submissions in respect of her current feet injury. Specifically, it reiterated its position that the Applicant is no longer suffering from the accepted feet injury, thus:

    (a)the injury is not permanent; and

    (b)compensation is not payable pursuant to ss 24 and 27 of the SRC Act.

17. Consistent with the findings above, the Tribunal does not accept the Respondent’s submission that the Applicant is no longer suffering from the accepted feet injury.

18. In relation to the question of impairment, the Tribunal is satisfied, by both the lay and medical evidence, that the Applicant has suffered an impairment, pursuant to the definition in s 4(1) of the SRC Act, in respect of both feet. Furthermore, the Tribunal is of the view that the evidence in relation to “permanency” clearly supports a finding that the impairment is “likely to continue indefinitely”. In coming to this conclusion, the Tribunal has had regard to the factors outlined in s 24(2) of the SRC Act.

19. Despite having made the above findings, the assessment remains incomplete. The Tribunal is asked: under which Table or Guide should the Applicant’s impairment be assessed. The Applicant led evidence from two witnesses in relation to this issue. Their evidence was inconsistent and contradictory. In brief, Dr Kennedy (sports and industrial physician) assessed the Applicant’s impairment under Table 9.7 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”) as 10% whole person impairment. Associate Professor Edwards (lower limb orthopaedic surgeon) gave evidence that there was no objectively identifiable orthopaedic/neurological condition of the Applicant’s lower extremities and, furthermore, he was of the opinion that the Applicant’s condition manifested principally as pain with no clinically demonstrable lower extremity pathology.[79] 

    [79] Transcript, p206.

20. Consistent with the Tribunal’s previous findings, it accepts the evidence of Associate Professor Edwards in relation to Table 9.7. Having accepted this evidence, the Tribunal finds that the Applicant’s condition appears to be the kind that cannot be assessed using the tables outlined in the Comcare Guide.

21. In relation to this issue, the Applicant submitted that it would be unsatisfactory to simply end the question of permanent impairment at this point. It submitted that the question should be remitted to the Respondent for assessment in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“the AMA Guide”).  

22. In response to this submission, the Respondent submitted that:

    (a)the Applicant never raised this suggestion (namely that the assessment be remitted to the Respondent for assessment of the injury pursuant to the AMA Guide), either in argument or through evidence at the hearing before the Tribunal;

    (b)the Applicant has no factual or legal basis for requesting the order sought; and;

    (c)if the Applicant wishes to make an alternative claim for permanent impairment under the AMA Guide, the appropriate course is for a new claim to be filed.

23. As to (a). The Tribunal rejects the Respondent’s submission that the issue was not raised by the Applicant prior to its written submissions dated 21 March 2018. The issue was referred to at paragraph 62 (c) of the Applicant’s Amended Statement of Facts, Issues and Contentions dated 16 February 2018. Furthermore, the hearing concluded prior to final submissions. A timetable was set for the filing and service of final submissions which were reduced to writing by Counsel. The issue was fairly addressed in writing by Counsel for the Applicant and Counsel for the Respondent had the opportunity to respond in writing (which it did). In these circumstances, the Tribunal does not accept the submission that the Applicant had in some way caught the Respondent by surprise with its suggestion and submission.  

24. As to (b). The Comcare Guide specifically contains a provision for assessments to be made pursuant to the AMA Guide, if the injured employee’s impairment is of a kind that cannot be assessed under the Comcare Guide. The Comcare Guide has plainly anticipated the very situation of the Applicant, and provided an alternative avenue for an assessment to be undertaken. The Tribunal notes that the Respondent (in its reply written submissions) did not challenge the Applicant’s submissions on this point. Its submission was limited to the submission that a new claim should be filed if such an assessment is to take place.   

25. As to (c). A claim for permanent impairment does not permit an injured employee to elect which guide should be used to assess their injury. Filing a new claim would not guarantee that an assessment pursuant to the AMA Guide would be undertaken.

26. In all the circumstances, the Tribunal does not accept the Respondent’s submissions on this point. The Tribunal is satisfied that pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the issue should be remitted to the Respondent for reconsideration; with the direction that the Applicant’s impairment be assessed in accordance with the AMA Guide.

    APPLICATION 2017/1103 – 16 FEBRUARY 2017 DECISION

27. By determination dated 3 January 2017, the Respondent declined the Applicant’s present entitlement to medical expenses under s 16 of the SRC Act. The delegate was not satisfied that the Applicant continued to experience the effects of her accepted condition.[80] Furthermore, it stated that: “I note that Comcare have not accepted liability for bilateral neuropathic heel pain, a chronic pain syndrome or any lower back condition.”[81]

    [80] See Exhibit 3, T3, page 28.

    [81] See Exhibit 3, T3, page 29.

28. The Respondent took the view that it was unable to consider what medical treatment the Applicant required as a result of the pain conditions. Furthermore, the Respondent was not satisfied that the evidence supported a finding that the treatment was for the effects of the Applicant’s accepted and compensable feet injury.

29. The Respondent submitted that the Tribunal should find that the Applicant is not presently entitled to compensation for medical treatment generally, pursuant to s 16 of the SRC Act, in respect of the accepted feet injury during the relevant period.[82] It reiterated its submission that the Applicant no longer suffered from the effects of the accepted feet injury during the relevant period. It was further put by the Respondent that if the Tribunal was against it in respect of its primary submission, in the alternative, the Tribunal should not accept that the requested medical treatment is reasonable. Furthermore, it submitted that even if it is considered reasonable, the Tribunal should not accept that the necessity for treatment results from the accepted feet injury. 

    [82] From 3 January 2017 to the present date and presently.

30. For the reasons already outlined, the Tribunal rejects the Respondent’s submission that the Applicant no longer suffers from the effects of the accepted feet injury. Having accepted the opinion of Associate Professor Edwards in relation to diagnosis of the Applicant’s current and ongoing injury, it follows that his opinion in relation to medical treatment generally (for the injury he diagnosed) is the relevant and appropriate opinion to follow.

31. The Applicant specifically seeks compensation for the following treatment:

    (a)consultations with a general practitioner;

    (b)consultations with Dr Du Toit on about a six-monthly basis;

    (c)consultations with a podiatrist; and;

    (d)medications including Endep.

32. In relation to treatment generally, the Applicant stated (in brief summary):

    -She sees her general practitioner, Dr Andrew Osborne regularly, roughly every few months. He basically continues the existing treatment regime.[83]

    -Her attendances with Dr Du Toit have been reduced because Dr Osborne is able to provide her routine care, but if there is anything that needs specific attention she goes straight back to Dr Du Toit.[84]

    -She is taking Endep in the evening to help her sleep because her legs can get so sore that they stop her from getting to sleep and also wake her during sleep. She also takes Movalis (an anti-inflammatory medication) when her feet are really troubling her badly. She tries not to take it too often because it’s very strong. In addition to Endep and Movalis, the Applicant gave evidence that in the past she had been prescribed Lyrica.[85]

    -She sees podiatrist Sally Child every six weeks. Ms Child debrides her sizeable calluses around and behind her big toes and on the padding of her forefoot. She also removes corns because they can make it quite difficult for her walk. Ms Child adds and modifies padding in her shoes to alleviate her pain and also provides the Applicant with advice in relation to appropriate shoe selection.[86]

    [83] Transcript, p25.

    [84] Transcript, p24.

    [85] Ibid at [82] and transcript, p26.

    [86] Transcript, p26.

1. The Applicant led evidence from Associate Professor Edwards in relation to each treatment modality. His evidence was as follows:

   -As to (a). Associate Professor Edwards was of the view that treatment from a general practitioner is a “reasonable choice” and stated further that the GP has “a role” in the care regime for the management of the Applicant’s feet injury.[87]  

   -As to (b). In relation to treatment from Dr Du Toit, the evidence of Associate Professor Edwards was that he (Dr Du Toit) has a special interest in pain and musculoskeletal problems so he is a “good choice”; and he also has a role in terms of the Applicant’s medical treatment.[88] 

   -As to (c). Associate Professor Edwards was not asked specifically in relation to the treatment being provided by the treating podiatrist. However, in relation to treatment generally, he stated “I sometimes recommend trying things that are a little bit – to be honest, a little bit of trial and error.”[89] In this regard he referred to acupuncture. Associate Professor Edwards stated that he would support treatments if they are providing benefit to the Applicant.[90]

   -As to (d). Associate Professor Edwards’ evidence in relation to the reasonableness of the medication Endep was: “Yes, this is a drug that is often used for pain relief at night and again, we go back to the similar statement really that if she’s finding it beneficial, then it’s a reasonable drug to use. It’s used widely and it’s not unreasonable to try it.”[91]

   [87] Transcript, p204.

   [88] Ibid at [86].

   [89] Ibid at [86].

   [90] Transcript, p203.

   [91] Ibid at [86].

2. The opinions expressed by Associate Professor Edwards in relation to medical treatment generally, and the specific modalities identified, were essentially unchallenged. The Tribunal also found the Applicant’s evidence in relation to her treatment regime persuasive. The Tribunal accepts that she receives genuine relief and assistance from each item identified. 

3. In all the circumstances, the Tribunal is satisfied that the weight of evidence demonstrates that the therapeutic benefit of these medical treatments is not insignificant. On balance, the Tribunal is satisfied that they are reasonable. Based on the cogent and well-reasoned opinion of Associate Professor Edwards, the Tribunal is satisfied that the necessity for treatment in general results from the accepted feet injury. 

   DECISION

4. For the forgoing reasons, the Tribunal sets aside the reviewable decisions made by the Respondent on 3 September 2015, 19 December 2016, 20 December 2016 and 16 February 2017,  and in lieu thereof the following decisions are made: 

   3 September 2015 decision – Application 2015/5152

   (a)The Applicant continues to suffer from the effects of the compensable and accepted feet injury, referable to the incident on 6 March 2003.

   (b)The Respondent is liable to pay compensation pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988 from 8 July 2015 to the present and presently in respect of the compensable and accepted feet injury.

   (c)The calculation of the sum of compensation due and payable is remitted to the Respondent for determination noting that the Applicant was employed and working for some of the time.

   (d)The Respondent is liable to pay compensation pursuant to s 16 of the Safety Rehabilitation and Compensation Act 1988 from 8 July 2015 to the present and presently for massage therapy at a rate of once every three to four weeks in respect of the compensable and accepted feet injury. 

   19 December 2016 decision – Application 2017/0488

   (a)The Applicant’s lower back injury did arise out of the incident on 6 March 2003.

   (b)The Respondent is liable to pay compensation pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988.

   20 December 2016 decision – Application 2017/0489

   (a)The Applicant suffers from permanent impairment in respect of her compensable and accepted feet injury.

   (b)Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the matter is remitted to the Respondent for assessment and determination in accordance with the AMA Guide.

   16 February 2017 decision – Application 2017/1103

   (a)The Applicant continues to suffer from the effects of the compensable and accepted feet injury, referable to the incident on 6 March 2003.

   (b)The Applicant has required medical treatment in respect of the compensable and accepted feet injury from 3 January 2017 to the present and presently and the Respondent is liable to pay compensation pursuant to s 16 of the Safety Rehabilitation and Compensation Act 1988 in relation to same, including:

   (i)consultations with a general practitioner;

   (ii)consultations with Dr Du Toit on about a six-monthly basis;

   (iii)consultations with a podiatrist; and;

   (iv)medications including Endep.

   COSTS

5. In all the circumstances, the Tribunal grants the parties liberty to apply within 14 days in relation to the costs of the proceedings. In the absence of any application, the Tribunal orders that the Respondent pay the costs of this proceeding and disbursements incurred by the Applicant pursuant to s 67 of the Safety Rehabilitation and Compensation Act 1988.  

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Miss Amy Wood, Member

...[sgd]......................................................

Associate

Dated: 18 September 2018

Date(s) of hearing:	19-21 February 2018
Date final submissions received:	8 May 2018
Counsel for the Applicant:	Mr Ray Ternes
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Mr Roy Seit
Solicitors for the Respondent:	In house, Comcare