CHERYL MURRAY and COMCARE
[2009] AATA 163
•13 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 163
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200400743; Q 200600311;
GENERAL ADMINISTRATIVE DIVISION ) Q 200600460
Re CHERYL MURRAY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe and Dr M Denovan, Member Date13 March 2009
PlaceBrisbane
Decision The Tribunal:
1. With respect to Matter No Q 200400743, varies the reviewable decision by finding the respondent liable for the applicant’s dysthymic disorder pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988. The decision is otherwise affirmed.
2. With respect to Matter No Q 200600311 and Matter No
Q 200600460, affirms the reviewable decision......................[Sgd].........................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Injury – Causation – Whether depression caused by work-place harassment – Whether work-place stressors existed in fact – Reasonableness of applicant’s perception irrelevant – Depression causally connected with work-place – Reviewable decision varied
WORKERS’ COMPENSATION – Injury – Causation – Whether reflex sympathetic dystrophy, including secondary conditions, and foot and ankle osteoarthritis caused by work injury – Reviewable decisions affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24
Re Douglas and Comcare [2004] AATA 256
Re Murray and Comcare [2008] AATA 508
Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795
REASONS FOR DECISION
13 March 2009 Senior Member Bernard J McCabe and
Dr M Denovan, Member1. Ms Cheryl Murray, the applicant, fractured her right tibia in a fall at work on 18 August 2000. Comcare, the respondent, accepted liability for that injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The applicant subsequently asked that liability also be accepted for:
· a right foot and ankle condition;
· reflex sympathetic dystrophy (“RSD”); and
· adjustment reaction with depression, arising out of the pain associated with the foot and ankle condition and harassment by her colleagues in the work-place.
2. Her claim was refused and is the subject of appeal No Q 200400743 before the Tribunal. The applicant also made a claim under s 24 of the Act for permanent impairment arising out of the RSD. The decision rejecting the claim is now the subject of appeal No Q 200600311. Application No Q 200600460 relates to a determination rejecting liability for a condition of adjustment disorder with depressed mood secondary to pain arising from RSD. We note an earlier claim, referring to a connection between the applicant’s current psychiatric condition and her experience of harassment in the work-place, was before the Tribunal but was dismissed by consent a number of years ago. We ruled the applicant should nonetheless be permitted to lead evidence about harassment in the work-place in the course of these proceedings: see ReMurray and Comcare [2008] AATA 508.
3. In order to resolve the dispute in this case, we must focus on two tasks:
· Firstly, we must attempt to isolate the nature and extent of the applicant’s ailment. It is not strictly speaking necessary for us to settle on a precise diagnosis of her condition: see, for example, Re Douglas and Comcare [2004] AATA 256 at [40]. Even so, we must have some idea of what that condition entails; and
· Secondly, we must determine whether the applicant’s experience at work contributed to the onset or aggravation of her condition.
4. We have decided the applicant’s current ankle and foot conditions (apart from the fractured tibia, for which liability has already been accepted) cannot be connected with her work. We have therefore decided to affirm the relevant decisions under review. However, we do accept she has developed a dysthymic disorder connected with her work-place. We explain our reasons below.
The factual background
5. The applicant was a civilian employee of the Department of Defence. She did clerical work at the Enoggera barracks. She was injured on 18 August 2000 when she fell down a set of stairs and fractured her right tibia. She had experienced minor falls at work on two previous occasions when she claims to have injured her right ankle. She says she had not experienced any psychiatric symptoms before that time.
6. The applicant was off work until June 2001 following the fall in August 2000. In June 2001, she commenced a gradual return to work. She resumed full-time work at the end of 2001. She says she continued to experience pain and discomfort, particularly when she was required to use stairs. There was no lift in the building where she worked, and she had to access offices on other floors several times each day.
7. The applicant says she became aware of soldiers making “sarcastic and snide” remarks about her shortly after she resumed work. She understood them to suggest she was just putting on an act. She complained, and some sort of action was taken, but the comments did not cease. According to the applicant, the negative treatment became worse when she started to wear ugg boots because of persistent pain in her feet. She claimed she started to become depressed in 2002, and began to experience pain in her left foot. The applicant also says pain and depression were affecting her home life. She and her husband separated for a time in 2002.
8. Ms Murray ceased work in December 2002 because, she says, the pain and the negative behaviour of others in the work-place had become too much. In her evidence before the Tribunal, she said the pain was the main reason she left work. She resigned from the Australian Public Service in September 2004 and has not worked since.
9. Mr Sean Bradley, who signed a statement tendered by Comcare, stated there is no record of an investigation being sought, or conducted into, allegations of harassment. We note the applicant’s claim of harassment is supported in statements from Ms Suzanne Dor and Mr Paul Robinson. While those witnesses were not called for cross-examination, we accept the applicant was subject to criticism from her work-mates on account of her injury.
Medical history and opinions: introduction
10. The applicant says her right leg remained painful after the plaster cast was removed, and it continued to worry her when she returned to work. She began to notice mood-swings, which she attributed to her pain, while off work in 2001.
11. Ms Murray says her right foot and ankle have not improved since she resigned in 2004. She continues to experience significant pain in her right leg and in both ankles and feet. She says she needs a stick to walk. She says she cannot negotiate stairs without assistance and can only walk between 40 and 60 metres before she must stop to rest. She relies on her daughters to assist her to perform domestic tasks like shopping and work around the house.
Medical evidence relating to the physical conditions: what the doctors say
12. Our starting point in the consideration of Ms Murray’s condition is the bundle of clinical notes (Exhibit 4) provided by Bray Park Medical Centre, where the applicant was a patient. The records include entries that relate to the applicant’s physical and psychiatric conditions. The records note that Ms Murray made a number of complaints about leg and foot pain in the years that followed the accident, but she did not complain on every occasion she visited the various doctors who treated her. The doctor who treated her for the longest period, Dr Adrian Jones, a general medical practitioner, gave evidence at the hearing. He said Ms Murray did not suffer from foot problems prior to the accident, although he referred to two minor incidents, which we infer were the stumbles at work described in Ms Murray’s evidence. He said swelling in the right ankle persisted over time, although he also noted the swelling was evident in her left ankle within two days of the plaster cast being removed from the right leg. The swelling in the right limb appeared to diminish somewhat from April to May 2001, and there are records from a physiotherapist suggesting Ms Murray was making good progress. The notes also record Ms Murray complained of victimisation at work on several occasions. Dr Jones suggested Ms Murray’s perceptions of her injuries might have been affected by her mood.
13. Dr Greg Farmer, an orthopaedic surgeon, examined the applicant on 25 May 2001. His report is included in Exhibit 1. The report notes the complaints of pain but states Dr Farmer could not detect any organic basis for the pain, nor identify any restriction of movement.
14. Dr P Brazel, orthopaedic surgeon, examined Ms Murray on 28 May 2003: Exhibit 1, at folio 65. He speculated that all of Ms Murray’s symptoms in her lower legs and ankles could be explained by the diagnosis of RSD, which in turn was a result of the fractured tibia.
15. Dr Brazel relied on the diagnostic criteria set by the International Association for the Study of Pain. At the hearing, Dr Brazel acknowledged those criteria have not been universally adopted. He said he came to the diagnosis of RSD on the basis that Ms Murray had:
·a loss of range of movement;
·thickness and swelling; and
·a mildly abnormal one scan.
16. Dr Brazel opined that the degeneration in Ms Murray’s talonavicular joint may have been secondary to her gait abnormality, which was in turn a result of RSD. He did not think it was secondary to obesity, although he did think it likely that obesity would have contributed to the osteoarthritis in her knees. Dr Brazel suggested her gait abnormality may have made the right foot arthritis more symptomatic than the left foot arthritis.
17. Dr Brazel said he did not detect osteoarthritis at the time he examined Ms Murray. However, he accepted Dr William Douglas’s opinion that the applicant’s X-ray shows osteoarthritis. Had he been aware that Ms Murray had osteoarthritis when he saw her, he said he still would have concluded she was suffering from RSD. He said osteoarthritis would not explain the decrease in the range of movement he observed, or the degree of pain Ms Murray reported.
18. Rheumatologist Dr Martin Devereaux reviewed Ms Murray on 26 November 2003 and provided a reported dated the same day: Exhibit 1, at folio 92. In his report Dr Devereaux noted Ms Murray described “terrible” leg pain at the site of the fracture. He concluded that Ms Murray’s right foot and ankle problems are not a result of the work-place injury. He decided Ms Murray’s problems relate to collapsed arches in both feet, secondary to degenerative arthritis. He noted Ms Murray also has osteoarthritis of the knees. Dr Devereaux said there is no clinical or radiological evidence to support a diagnosis of RSD.
19. At the hearing, Dr Devereaux explained that Ms Murray had signs of severe post tibial tendon dysfunction, a common problem in overweight women. On examination, Dr Devereaux observed Ms Murray to have full range of movement of her ankles and soft tissue thickening and crepitus in her knees. That was consistent, he explained, with the diagnosis of arthritis. Dr Devereaux said he would expect to see muscle wasting in the affected limb if a patient had RSD; however, he observed that Ms Murray’s right leg was actually larger than her left. Dr Devereaux noted Ms Murray got down from the examination bench and placed her weight on her right foot first, something he regarded as inconsistent with her report that she suffered terrible pain in that limb. Dr Devereaux said Ms Murray did not meet any criteria for the diagnosis of RSD as she had no sweating, no colour change, and no swelling or shiny skin. Whilst she had cracked skin on her heals, this was present on both feet, and therefore not indicative of RSD.
20. Dr Devereaux did not agree with Dr Douglas’s opinion (detailed below), in that had Ms Murray’s talonavicular joint arthritis been due to the work-place injury, then the bone scan would have demonstrated a hot spot in the region of that joint. Dr Devereaux said that he had read the report of Dr Terence Saxby, regarded it as a well thought out report, and agreed with everything that Dr Saxby said. Dr Devereaux noted that when he watched Ms Murray leave the surgery, and she was not aware that he was watching her, she walked normally.
21. It was put to Dr Devereaux that Ms Murray had no pain in her foot and ankle prior to the work-place injury. Dr Devereaux said that when he saw Ms Murray she had two sources of pain: firstly, the arthritis; and secondly, localised pain over the fracture site. He suggested that as Ms Murray rested after the injury for some time, the pain from her arthritis might have been more obvious to her when she attempted to mobilise. He did not believe the injury altered the natural progression of the degeneration and would have only made the condition more obvious to Ms Murray.
22. Dr Devereaux said Ms Murray’s arthritis was constitutional and was associated with her age, weight and collapsed arches. He acknowledged that trauma can cause the progression of osteoarthritis, but pointed out the trauma to the joint must be serious. He said the bone scan does not support a conclusion that Ms Murray’s osteoarthritis is related to the trauma. In his view, Ms Murray demonstrated exaggerated pain behaviour.
23. In his report dated 14 March 2007 (Exhibit 7), rheumatologist Dr Douglas said that Ms Murray consulted him on 14 March 2007. He opined that Ms Murray has osteoarthritis of the right talonavicular joint and chronic soft tissue pain and tenderness probably secondary to soft tissue injury in the region from the
work-related injury. Dr Douglas opined that the degenerative change in the right talonavicular joint is probably secondary to the work-related injury as there are no similar changes in the left foot. Dr Douglas said the bone density was not consistent with a diagnosis of RSD.24. Dr Don Todman, a neurologist, gave evidence by telephone at the hearing. His reports were admitted into evidence: Exhibit 1, at folios 114ff; and Exhibit 2, at folios 41‑42. In concluding that Ms Murray has RSD, Dr Todman said he relied on the following observations:
· Ms Murray’s pain is continuous and out of proportion to the earlier fracture.
· Her pain is associated with other features including swelling, colour change and perception of temperature change, and tenderness.
· There is no evidence of another cause for her pain.
25. Dr Todman said he had read the report from Dr Douglas. Dr Todman considered that osteoarthritis might exist as well as RSD. He insisted the magnitude of Ms Murray’s pain could not be explained by osteoarthritis, and associated collapsed arches. Dr Todman added that the radiological findings of early arthritis were unlikely to have been associated with symptomatic arthritis, and were in fact a likely finding in any one over the age of 50. He also remarked that the onset of left ankle pain after the right limb pain is more consistent with a diagnosis of injury than of arthritis.
26. Neurologist Dr John Cameron gave evidence in person at the hearing. His reports, dated 24 December 2004, 18 February 2005 and 4 June 2007, are included in evidence: Exhibit 2 at folios 29ff, and Exhibit 9. Dr Cameron examined Ms Murray on 20 December 2004. He said Ms Murray’s clinical symptoms were not consistent with the diagnosis of RSD. He said a bone scan was not supportive of the diagnosis. In his opinion, Ms Murray’s difficulty with walking and reduced range of movement of her right leg is the result of her refusal to use the limb. Dr Cameron said it was normal for a person to experience some temporary short-term pain in the joints at either end of a fractured bone, and it may be the case that Ms Murray developed a habit of overprotection.
27. Dr Saxby is an orthopaedic surgeon who specialises in disorders of the foot and ankle. Dr Saxby did not examine Ms Murray and his report (Exhibit 8) was prepared on the basis of the information provided to him.
28. Dr Saxby said the bone scan was critical to Ms Murray’s case. He said bone scans are very sensitive, and a broken bone will appear “hot” for 12 to 18 months after the initial injury. As there was no marked uptake in the talonavicular joint, he said it was unlikely there was any injury to that joint in the preceding 12 to 18 months. In Dr Saxby’s opinion, the very soft and subtle signs Dr Brazel cited in justifying his diagnosis of RSD were insufficient. The cause of Ms Murray’s pain was not clear to Dr Saxby. He explained that it is normal to experience pain, but not severe pain, following a fracture for 6 to 12 months. He pointed out that pain with arthritis can change with time, and it fluctuates from day-to-day and week-to-week.
Does the applicant suffer from reflex sympathetic dystrophy?
29. We first considered whether Ms Murray has RSD, given that is the condition claimed in the reviewable decision.
30. We were told that RSD (also known as Complex Regional Pain Syndrome) is a chronic neurological syndrome that follows trauma. We were told that some regard the diagnosis as controversial, and that the criteria for diagnosis vary between authorities.
31. Drs Farmer, Douglas, Cameron and Saxby do not consider that Ms Murray has RSD. We prefer their opinion to that of Dr Brazel and Dr Todman for the following reasons.
32. Firstly, we note that a loss of range of movement, an observation relied on by Dr Brazel for the diagnosis of RSD, does not appear be one of the diagnostic criteria in the article on RSD referred to in Dr Brazel’s reports. Further, loss of range of movement has not been a consistent feature of Ms Murray’s presentation. Dr Farmer and Dr Devereaux considered Ms Murray had no loss of range of movement, while Dr Douglas noted that the movement in Ms Murray’s right ankle was slightly restricted. Dr Cameron opined that any loss of range of movement in Ms Murray’s lower limbs was the result of voluntary immobilisation.
33. Secondly, during cross-examination, Dr Brazel acknowledged he relied on a smaller number of diagnostic criteria than recommended by an article in the Journal of Joint and Bone Surgery that he cited in his later report. Mr Anforth, counsel for the applicant, suggested that was not a significant difficulty. We are not inclined to agree: diagnostic criteria are meant to be applied in a scientific way.
34. Thirdly, Dr Brazel and Dr Todman both relied on the swelling of Ms Murray’s right ankle and foot as diagnostic criteria for RSD. We consider that the medical evidence points to that swelling having a causative factor other than RSD. Swelling of both of Ms Murray’s feet has been reported throughout the general practice medical records, and on one occasion she was prescribed (by her general practitioner) oral medication to treat swelling of both feet. Drs Farmer, Devereaux, Douglas and Cameron considered that none of the common features of RSD (usually associated with swelling), such as thin, shiny skin or alteration in nail and hair growth, were present.
35. Fourthly, Dr Brazel relied on the bone scan and, whilst not included in the reasons he came to the diagnosis, Dr Todman remarked that a bone scan performed on 19 April 2001 was consistent with the diagnosis of RSD. Neither doctor provided an explanation of why they considered the scan to be consistent with a diagnosis of RSD. Their opinion is in contrast to that of Drs Farmer, Devereaux, Douglas and Cameron. We were impressed by the detailed explanation provided by Dr Devereaux as to what the scan would have showed had it been consistent with RSD, and we prefer his opinion.
36.
Finally, Dr Todman relied on Ms Murray’s history of pain. It is clear that, because RSD is regarded as a chronic pain condition, a diagnosis of that condition crucially depends on reports of chronic or ongoing pain. It is therefore necessary that we be satisfied the applicant has, in fact, experienced chronic pain disproportionate to that which would normally be expected due to the initial injury. A close inspection of the history given by Ms Murray reveals some important inconsistencies. For example, the medical records of the general practice clinic do not lend support to Ms Murray’s claim that her pain continued, gradually worsened, and never improved from the time the cast was removed. Rather, those notes indicate that, whilst Ms Murray complained of some ongoing pain and swelling prior to returning to work, by June 2001 her condition had improved to the extent that she was capable of returning to work. Also, there is no suggestion in those notes that her pain and swelling were causing mood-swings. The fact Ms Murray was able to increase her hours to full-time by December of the same year suggests that any problems that she was experiencing were not as severe as she indicated to
Dr Todman. As a further example, when Dr Brazel saw Ms Murray on 28 May 2003, she told him that when she returned to work her leg was initially fine, but after two months symptomatology returned to her right ankle and foot.
37. For these reasons we find the diagnosis of RSD to be inconsistent with the expert and reasoned findings and opinions of prominent specialists in the relevant fields, and not supported by the contemporaneous medical history. We prefer the views of the medical specialists who say the applicant does not have RSD.
38. We next considered whether Ms Murray could have osteoarthritis of one of her joints, secondary to the trauma experienced when she fractured her tibia.
39. Most of the specialists who gave evidence accept that Ms Murray has osteoarthritis in her feet and knees. Dr Devereaux opined that the bone scan performed on 19 April 2001 demonstrated minor degenerative arthritis in both feet. Dr Devereaux is of the opinion that this condition was present in both feet at the time of the incident in 2000.
40. We prefer the opinion of Dr Devereaux to that of Dr Douglas, as the former’s explanation of why the osteoarthritis is not due to trauma was detailed and comprehensive, and supported by objective findings. Further, Dr Devereaux’s interpretation of the bone scan, a key reason he felt the applicant’s osteoarthritis was not trauma caused, was supported by the opinion of Dr Cameron and Dr Saxby. In these circumstances, we are unable to be satisfied that the applicant suffers from osteoarthritis in either of her feet or ankles as a result of an injury at work.
Does the applicant have a psychiatric condition that was brought on or aggravated by her work?
41. Given our conclusion that the applicant’s physical condition (apart from the accepted liability for an injury to the right tibia) was not brought on by work, we do not have to consider whether the pain she experienced contributed to the onset or aggravation of any psychiatric condition. But she also argues that harassment in the work-place may have independently contributed to the development or aggravation of a psychiatric condition. In order to reach a view on the issue, our first step is to consider the medical evidence.
Did ms murray develop a psychiatric condition after the work-place incident on 18 august 2000?
42. Dr Jones diagnosed Ms Murray with depression in December 2002. Although he suggested consultation with a psychiatrist, Ms Murray preferred to be treated by Dr Jones. Consequently, Ms Murray was not seen by a psychiatrist until she saw Prof Harvey Whiteford on 7 July 2003, for the purpose of an assessment in relation to her Comcare claim.
43. The medical evidence of Dr Jones, Prof Whiteford and Dr David Alcorn, psychiatrist, points to the conclusion that Ms Murray developed dysthymic disorder some time in 2002. But what caused the condition?
44. In his report dated 30 June 2003, Dr Jones said Ms Murray reported the only triggers for depression were ongoing pain and decreased mobility from the ankle injury, as well as “subsequent intimidation in her workplace”.
45. Ms Murray reported to Prof Whiteford that her depression was partly due to pain and disability in her ankle. She apparently went on to say that the more significant contributing factor was the way she was treated at work.
46. Prof Whiteford gave evidence at the hearing. He said conflict in the work-force was the more predominant factor in the development of Ms Murray’s psychiatric condition. He said the pain, whilst not negligible, was outweighed by the personal conflict. Prof Whiteford noted that the general practitioners’ notes were consistent with work-place conflict being the dominant cause of Ms Murray’s depression.
47. Dr Alcorn opined that Ms Murray developed a low-grade dysthymic disorder as a result of RSD, but accepted that perceptions of work-place issues and RSD were both causal in the development of the applicant’s dysthymic disorder. He said pain may have caused functional impairment, which led to frustration and a psychiatric condition. Dr Alcorn said a psychiatric pain disorder diagnosis is not appropriate.
48. Dr Alcorn observed that Ms Murray has an unremittingly negative attitude towards her work-place, and that she attributes almost all of her physical and emotional troubles to the work-place incident. As noted above, Dr Alcorn said that problems of reliability in Ms Murray’s self-reporting, particularly in relation to her medical history, make evaluating the causation of her ongoing symptomatology difficult.
49.
We note that Ms Murray told the Tribunal she had marital problems in 2002, as a result of which she and her husband separated for three months. Dr Alcorn reported that the applicant and her husband separated for four months in 2003.
Prof Whiteford noted that Ms Murray and her husband separated in April 2003 because, according to Ms Murray, her husband was having difficulty dealing with her depression. We note, however, that neither psychiatrist attributed marital discord as a contributing factor to Ms Murray’s depression.
50. Both psychiatrists are of the opinion that Ms Murray’s dysthymic disorder is a result of the combined effects of pain she experienced following the work-place injury in August 2000, and her perception of work-place issues. Although we have not accepted that the applicant’s physical pain is related to her work-place, we have already acknowledged that she was the subject of criticism from some of the people in her work environment. Dr Jones is also of that opinion. We therefore find there is a causal connection between Ms Murray’s dysthymic disorder and her work-place.
51.
In reaching that view, we are not saying the behaviour of Ms Murray’s
work-mates was necessarily obnoxious or cruel in any objective sense. But we are satisfied from the evidence that certain conduct did occur, and that Ms Murray has reacted to it. As Mr Anforth pointed out in his submissions, the Federal Court in Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795 ruled that the reasonableness of the perception of mistreatment was irrelevant. The question is whether the stressors existed and were found in the work-place. As we explained, we are satisfied the stressors were present here.
Conclusion
52. In summary, we are not satisfied the applicant suffers from pain caused by a foot and ankle condition or RSD that is connected with her former employment. We do accept she has developed a dysthymic disorder that is connected with her work-place. It follows Comcare is liable pursuant to s 14 of the Act with respect to the psychiatric condition. It is not otherwise liable.
53.
In those circumstances, the Tribunal finds that the applicant’s dysthymic disorder was contributed to by the behaviour of work colleagues. Accordingly, with respect to Matter No Q 200400743, the Tribunal varies the reviewable decision by finding the respondent liable for the applicant’s dysthymic disorder pursuant to s 14 of the Act. The decision is otherwise affirmed. With respect to Matter No
Q 200600311 and Matter No Q 200600460, the Tribunal affirms the reviewable decisions.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Denovan, Member
Signed:....................[Sgd]..........................................................
Matyas Kochardy, AssociateDates of Hearing 19 and 20 November 2007
Date of Decision 13 March 2009
Counsel for the applicant Mr A Anforth
Solicitor for the applicant James Watt & Co
Counsel for the respondent Mr C Clark
Solicitor for the respondent Sparke Helmore Lawyers
0
3
0