Clarke and Comcare
[2002] AATA 1115
•29 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1115
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/84 & S2001/85
GENERAL ADMINISTRATIVE DIVISION )
Re IAN FREDERICK CLARKE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date29 October 2002
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that: (1) the respondent is liable to pay compensation to the applicant in respect of his cervical and thoraco-lumbar spine conditions, and his psychiatric condition of chronic pain disorder; (2) the respondent is liable to pay compensation to the applicant, pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, for permanent impairment in respect of his thoraco-lumbar and cervical spine conditions, his headaches, and psychiatric condition, assessed at 31% combined value; and (3) the respondent will pay the applicant's costs of these proceedings, including the disbursement, Dr Man's report of 19 May 2000, as agreed between the parties, or in default of agreement, as taxed by a Registrar of the Tribunal.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – permanent impairment – whether applicant suffers from a compensable psychiatric condition – whether applicant's conditions result in permanent impairment - whether applicant is entitled to payment of compensation
Safety Rehabilitation and Compensation Act 1988 sections 24, 27
REASONS FOR DECISION
29 October 2002 Senior Member WJF Purcell
This is an application for review of a decision of the respondent (Comcare) of 26 February 2001, which varied a determination of 3 October 2000. The reviewable decision extended liability for headaches secondary to the applicant's compensable condition "sprain of unspecified site of shoulder and upper arm (right)", but did not extend liability for any psychiatric or psychological condition, nor for any permanent impairment resulting from such condition, nor for a thoraco-lumbar spine and left lower leg condition. The decision affirmed the determination that Comcare was not liable to pay compensation to the applicant for permanent impairment of the left lower leg, thoraco-lumbar spine, right upper limb, and for headaches and psychiatric condition. The reviewable decision affirmed also a determination of 16 October 2000, that Comcare was not liable for reimbursement of the account payable to Dr Man.
Dr Linn, Member, and I heard the matter, but subsequent to our reserving our decision Dr Linn retired from the Tribunal. In accordance with section 23(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the parties have agreed to my completing the determination of the proceedings.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the AAT Act (the T documents) together with exhibits tendered by the parties. The applicant, who was represented by Mr Kernot of Counsel, gave oral evidence and called Dr J Hallpike, Neurologist, Mr B Cohen, General Surgeon, and Dr G Long, Occupational Physician as witnesses. Mr Cole appeared as Counsel for Comcare, which called Dr D Kutlaca, Psychiatrist, and Dr M Awerbuch, Rheumatologist, as witnesses.
The applicant, who is 54 years of age, had been employed as a train driver by Australian National Railways at Stirling North, Port Augusta, for 19 years, when he was made redundant in 1995. He undertook various training courses, and obtained truck and grader driver's licences, and applied for various jobs. He was successful in 1996 in gaining employment with National Rail Corporation Limited (National Rail). He was to be based at Broken Hill, and would drive trains between Broken Hill and Parkes. He moved to Broken Hill with his wife and they bought a house. He was very active and played badminton, fished, and hiked.
On 20 December 1998 the applicant was driving the train from Parkes to Broken Hill, when he was obliged to change the signal at Ivanhoe. He described the incident in detail to Dr Hallpike, Neurologist, on 29 August 2001, in the following terms:
"… There was this ancient signal arrangement at Ivanhoe, between Parkes and Broken Hill. One had to stop the train at the signal and walk a kilometre along the track to the box to change the signal manually so that the train could move on. The lever in the box is a long heavy steel lever with a release at the top that is attached to a kilometre of wire cable to the signal, wound on a drum. Pulling the lever is a major physical effort. The lad I had with me couldn't manage it in a single pull. I had my two hands on the lever and the release with feet braced against the frame. I was pulling as strongly as I could. The lever moved slightly. Then the cable gave way. The lever came back on me through some 60-70° of arc without resistance and came to a dead stop. My left hand came off the lever. I was taking it all with my right arm. I was spun round inside the signal box and also thrown back 1-2 metres, ending up in a crouched position. I didn't fall. I was stunned, dazed. I'd been hit on the inside of my right knee by the lever. There was that pain at once. The train had been brought down to the box and I got into the cabin. We reported the fault to Train Control. My mate then drove the train on to Broken Hill. It was his turn to drive anyway. … The pain in my knee. I became aware of headache after about a couple of hours. There were pins and needles at the back of my head … neck. Those sensations lasted for a couple of weeks. The neck was stiff and painful. The right shoulder was painful. …" [T93/264-265]
The applicant consulted Dr Tessa, his treating General Practitioner on the following day, 21 December 1998. He complained of a continual ache in his right shoulder, which radiated down his right arm and up into the neck. The applicant's neck x-rays were normal, and Dr Tessa prescribed Panadeine Forte, and recommended physiotherapy treatment. The applicant returned to work 9 days later on 30 December 1998, on restricted duties, with no heavy lifting or climbing into the locomotive. The pain in his knee had settled down, but he says that the pain in his neck, right shoulder and arm gradually worsened. He continued to have physiotherapy treatment, and Dr Tessa referred him also to Mr R Crowley, Orthopaedic Surgeon, for investigation. On 30 December 1998 he completed a claim for compensation for injuries to his neck, back, right shoulder, arm and knee, which was not lodged until 18 March 1999.
At the request of Dr Tessa, the applicant was examined by Mr A Saies, Orthopaedic Surgeon, on 7 April 1999. Mr Saies reported that the applicant complained that his pain had intensified in the head and neck region, and right shoulder region, despite treatment and time; and that he described now, occipital headaches and a constant dull ache in the para medial border of the right scapular. Mr Saies was of the view that the applicant had a whiplash type injury to the para vertebral muscles, perhaps with a referred pain component, from the C5 disc. Mr Saies considered that there was nothing he could offer by way of shoulder surgery that would in any way change the applicant's current symptoms. Mr Saies considered also, that the applicant might need to see a spinal surgeon, and he might benefit also from seeing an occupational physician to try and manage an appropriate work schedule.
On 14 April 1999 Comcare accepted liability for "sprain of unspecified site of shoulder and upper arm (right)" up to and including 20 February 1999. By determination dated 3 August 1999, Comcare extended liability up to and including 30 October 1999.
On 16 October 1999 Dr Tessa reported to Comcare, in part, as follows:
"…
He continued to have pain and had difficulty at work doing things which were previously easy, such as pulling points.
He reached the point, in May, where he was no longer able to work.
He was referred to a neurosurgeon. His diagnosis was that it was a musculo-ligamentous problem.
He became, over a period of time, quite depressed and anxious.
He was assessed by the pain clinic as having no neural injury; and having a disruption of musculocutaneous insertions of the trapezius into the spinous processes.
Mr Clarke has followed all recommendations with little success.
The rehabilitation consultant he saw thought there was no longer a physical injury.
Under supervision of the CRS, return to work, on a graded and restricted basis, was attempted.
Other tests include a CT scan and a MRI.
Mr Clarke last consulted me in July. At that time, my opinion was that the physical injury caused at work had probably resolved and that he was suffering from a chronic pain syndrome and anxiety/depression. Prognosis is not known. It would be good to see him back fully at work. Only time will tell.
Ongoing treatment is required. He needs local treatment for pain relief and medications as indicated. He needs ongoing counselling and support if he is motivated to return to work. Management by a pain clinic is the appropriate mode."
[T25/55]On 14 January 2000 Comcare determined that it was no longer liable, from 10 December 1999, for the physical component of the applicant's accepted condition, but would continue to accept liability for pain management and associated psychological and pharmaceutical costs. The applicant requested a reconsideration, and on 11 April 2000 Comcare set aside the determination of 14 January 2000, on the basis that the applicant's ongoing symptoms in his shoulder and neck corresponded with the accepted claim for sprain of unspecified site of shoulder and upper arm (right).
On 23 May 2000 the applicant's solicitors lodged a claim for permanent impairment in relation to disabilities of the leg, cervical spine, thoraco-lumbar spine and headaches. They provided a copy of a report of Mr Cohen, General Surgeon, of 8 May 2000, which reads, in part:
"It would be consistent with the nature of the incident that he has suffered a soft tissue injury to a joint or joints of his cervical spine. There are no definite symptoms suggesting any nerve root involvement. He has had investigations of his cervical spine, which revealed some degenerative changes and particularly in regards to the MRI examination, this did reveal a posterior disc protrusion at C5/6. This is not objective evidence of his complaint and he would require further investigations, such as cervical discography or facet arthrography, to pursue the diagnosis further. However these are invasive tests and may not lead to any change of management. The symptoms to his right shoulder and arm are secondary to and part and parcel of his cervical spine injury.
He has also developed symptoms in his thoracic and lumbar spine, which do appear to affect him quite significantly. In particular, he does mention his left leg where there are symptoms, having given way on him.
…
In regards to Table 9.4, he can use the limb for self-care and grasping and holding, but has difficulty with digital dexterity, that is, in handling various equipment and consequently he has a 10% impairment of the whole person.
…
In regards to the Table 9.6, that is the musculo-skeletal system, in regards to his cervical spine he has only minor restrictions of movement and thus has a 5% impairment of the whole person.
In regards to his thoraco-lumbar spine, he has a much greater loss of movement, which would appear to be at least the loss of less than half the range of movement and consequently he has a 10% impairment of the whole person in regards to his thoraco-lumbar spine.
In regards to Table 13.1, his disability is in regards to his headaches, which are secondary to his cervical spinal complaint. This does affect most activities of daily living. They do occur daily. Accepting his history and the affects, I believe he would have at least a 30% impairment of the whole person. As he presents, he does have a significant complaint in reference to pain and suffering and loss of amenities and in regards to recreational and leisure activities. I understand that is assessed separately.
He has had conservative treatment, but this has been of limited help, although he continues with such.
There appear to be psychological factors that are contributing to his response to his perceived pain with the widespread development of symptoms and disability. This does make therapeutic intervention more difficult and I believe less likely to be effective at this time. Nevertheless I believe he has been receiving some help from his treatment and which is reasonable for him to continue.
He has developed widespread symptoms as above, with significant associated disabilities. It is probable that there are non-organic factors in the production of all his symptoms. The injury factor from the incident would not normally be expected to result in the extent of his complaints on a physical basis." [T37/88-90]On 1 June 2000 the applicant's solicitors requested that Comcare give consideration to extending liability to his claim in relation to cervical spine and lumbar spine disabilities.
On 8 May 2000, at the request of his solicitors, the applicant was assessed by Dr GD Craig, Psychiatrist. Dr Craig reported on 1 June 2000 that on interview the applicant was clearly depressed and despondent about his lack of progress. He described himself as an easy-going person who was more short-tempered recently. Dr Craig was of the opinion that the applicant was suffering from the psychiatric condition of chronic pain syndrome, and an adjustment disorder with mixed emotions, caused or contributed to by the injury he sustained on 20 December 1998. Dr Craig concluded that the applicant was suffering from a permanent residual impairment as a result of his psychiatric injury, and assessed this as amounting to a 15% level of impairment according to Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).
By letter dated 6 September 2000, the applicant requested that Comcare make an assessment, pursuant to section 27 of Safety Rehabilitation and Compensation Act 1988 (the Act), for non-economic loss. On 27 September 2000 the applicant requested that Comcare pay the account of Dr J Man, Chiropractor, in respect of a report dated 19 May 2000; and on 29 September the applicant forwarded a further claim for permanent impairment, pursuant to section 24 of the Act, in relation to his cervical spine, thoracic/lumbar spine condition and headaches. The claim was accompanied by a report of Dr Long, Occupational Physician with Health Services Australia, who examined the applicant on 24 July 2000 and concluded:
"…
By reference to the Comcare Australia Guides the Assessment of Permanent Impairment he has a whole person impairment as a result of his neck disability of the order of 5% (Table 9.6), and the thoracolumbar spine of the order of 10%. Although he does have symptoms involving his upper and lower limbs there is no additional whole person impairment when assessed using these guides (Tables 9.1, 9.2, 9.3, 9.4 and 9.5). There is no history of head injury or other cerebral insult and hence Tables 12.2, 12.3, 12.4 and 12.5 are not applicable here (eg in relation to his headaches which are musculoskeletal in origin). There are however aspects of his presentation which would be consistent with him having now developed psychiatric conditions when considered in the context of the DSM IV and I note this has already been well addressed by Dr Craig in his report.
…" (T44/112]On 3 October 2000, Comcare determined that the applicant suffered a secondary compensable condition of a "musculo-ligamentous injury to his cervical spine"; that he was not eligible for any payment pursuant to sections 24 or 27 of the Act; that liability would not be extended to include his thoraco-lumbar and headache conditions; and that Comcare would defer consideration of the applicant's claim for an extension of liability to his psychiatric condition. On 16 October 2000 Comcare determined that it was not liable to reimburse the applicant for the cost of Dr Man's report of 19 May 2000.
The applicant requested a reconsideration of these determinations, and on 26 February 2001, Comcare determined that the decision of 16 October 2000, as to the payment of Dr Man's account, should be affirmed; that the decision of 3 October 2000 should be varied to extend liability for compensation for headaches secondary to the applicant's compensable injury; and to determine formally that no liability existed for any psychological or psychiatric condition, including any permanent impairment resulting from such condition. The determination was affirmed in all other respects. The applicant has applied to this Tribunal for review of this decision.
Mr Kernot indicated before he commenced his address, that he would not be making any submissions regarding the applicant's left lower limb. The applicant contends that he continues to suffer from injuries to his right shoulder, right upper arm, right wrist, cervical, thoracic and lumbar spines, and right knee, as a result of the incident, and that Comcare has an ongoing liability to pay him compensation arising from these conditions. It is also the applicant's contention that he continues to suffer from a psychological/psychiatric disability as a result of the incident and its after effects, and that Comcare has an ongoing liability to pay him compensation in respect of this disability. The applicant submits also, that the cost of Dr Man's report is a disbursement, and is payable therefore by Comcare.
Comcare argues that the applicant does not currently suffer from any injury to his right wrist, right knee or thoraco-lumbar spine as a result of the incident; that he has not at any time made a claim for an injury to his right wrist and there is no evidence that he continues to suffer from any injury to his right knee. Comcare contends further, that the applicant does not suffer from a compensable lower back condition, but that if the applicant does suffer from a compensable thoraco-lumbar spine condition, then that condition does not result in any permanent impairment assessed in accordance with the Guide.
It is also Comcare's contention that the applicant does not suffer from any impairment of his right upper limb as a result of his compensable condition, nor does he suffer from a compensable psychiatric condition. Comcare contends finally, that the applicant is not entitled to compensation for permanent impairment in accordance with sections 24 and 27 of the Act, as his whole person impairment, in relation to his accepted condition, does not exceed 10% for the purposes of section 24(7) of the Act. In relation to Dr Man's report, Comcare concedes that this is a disbursement which would be payable if the applicant were successful in these proceedings.
Section 24 of the Act provides:
"(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.(9) For the purposes of this section, the maximum amount is $80,000."
Section 27 of the Act provides:
"(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
The applicant gave lengthy testimony. He impressed me as an anxious, somewhat despondent man, who took pride in his long career as a competent train driver, but feels that his career has been taken away from him by symptoms he does not understand, and that frustrate and annoy him. He is angry and disgusted by the treatment that he perceives he has received at the hands of Comcare and some members of the medical profession. I do not consider that in this anger and frustration he has maximised his injuries and symptoms to justify his claims. In my view, he outlined without exaggeration, the effects his injuries have had upon his enjoyment of life and his ability to return to the work he so enjoyed. I accept him as a witness of truth.
The other witnesses were medical practitioners, all of whom were suitably qualified and objective. I prefer the evidence of Mr Cohen and Drs Hallpike and Long however, in any area of dispute in the evidence.
On the applicant's evidence, he transferred to the Broken Hill to Adelaide run after his injury. He was working 14-hour shifts Broken Hill to Port Pirie, but could not get enough sleep between shifts, because of pain in the lower back and right shoulder. On 18 April 1999, he took recreation leave, and in accordance with a graduated return to work program, he returned to work on 2 July 1999, on the basis that he would drive in daylight, Broken Hill to Adelaide, and the Indian Pacific, and Ghan routes. He says that he coped fairly well initially, but he still could not sleep, his symptoms were getting worse, his headaches, the pain in his right shoulder and lower back, and he ceased work on 15 July 1999. He returned to work subsequently, but ceased work again on 10 November 1999. He has not returned, and on 12 January 2001 his employment was terminated.
On the applicant's evidence, he continues to suffer pain and discomfort in the thoracic and lumbar spine, headaches, and other symptoms in accordance with the history recorded in the myriad of medical reports contained in the T documents, and in the lengthy oral evidence of the medical practitioners at the Hearing. I consider it not necessary to enunciate each and every element of his complaints in these Reasons for Decision, but I have taken them into account in the course of my deliberations.
As the applicant has chosen not to address the left lower limb condition, the remaining issues can be summarised as to whether the applicant suffers from a compensable thoraco-lumbar spine condition, and a compensable psychiatric condition; and whether permanent impairment arises from these conditions, and for the compensable musculo ligamentous cervical spine condition, with headaches, secondary to this condition.
thoraco-lumbar spine conditionThe applicant complained initially of a back problem, and referred to it in his claim for compensation completed on 30 December 1998, and when he was first examined by Dr Chapman, who became then his treating General Practitioner. Dr Chapman examined him on 17 August 1999, and reported complaints of back pain. A CT scan of the lumbar spine was undertaken on 16 September 1999, and a MRI of the dorsal and lumbar spine on 11 November 1999. Mr Cohen noted that the applicant had developed symptoms in his thoracic and lumbar spine, which appeared to affect him quite significantly. He was tender in the upper and mid thoracic spine. Rotation to the left was reasonable, but only two-thirds the expected normal range to the right. He was also tender in his lower thoracic spine. When Dr Long examined the applicant on 24 July 2000, the applicant had symptoms of pain and pins and needles centrally around the lumbosacral level. Dr Long said in evidence that he had no doubt that there was an organic injury to the applicant's thoracic and lumbar spine as a result of the incident described by the applicant. There was a causal and temporal relationship to the incident. I accept Dr Long's evidence. I am satisfied on the evidence that the applicant's thoraco-lumbar spine condition is attributable to the work related incident of 20 December 1998.
Table 9.6 of the Guide is the relevant table:
DESCRIPTION OF LEVEL OF IMPAIRMENT
% CERVICAL SPINE THORACO-LUMBAR SPINE
0 X-ray changes only X-ray changes onlyMinor restrictions of movement Minor restrictions of movement OR Crush fracture – compression 25-50 percent
Loss of half normal range of movement Loss of less than half normal range of movement OR Crush fracture – compression Greater than 50 percent
Loss of more than half normal range of movement Loss of half normal range of movement
Complete loss of movement Loss of more than half normal range of movement
- Complete loss of movement
Mr Cohen reported on 8 May 2000 that the applicant's loss of movement would appear to be at least the loss of less than half the range of movement, and consequently the applicant has a 10% whole person impairment. Dr Long said in evidence that when he examined the applicant on 21 July 2000, the applicant was able to reach to about mid shin level. This is 25% of normal forward flexion; and in Dr Long's view the applicant's permanent impairment is 10%. Both of these medical practitioners considered the condition permanent. I consider that 10% is an appropriate rating.
cervical spine condition and headachesDr Hallpike, Neurologist, said in evidence that he was convinced of the genuineness of the applicant, and the severity of the headaches he suffers. Dr Hallpike considered the headaches, with their occipital emphasis, have a close relationship to neck and shoulder region pain, and were fundamentally of musculo ligamentous origin attributable to a "whiplash" effect of the injury, an excessive muscle tension headache; an opinion with which Dr Awerbuch agrees. He considers that psychosocial factors are likely now, to be playing their part in reinforcing the symptoms, but, he said, he had every reason to believe that the underlying problem was of an organic nature. Dr Hallpike considered the condition permanent, and that the applicant is significantly affected by headaches. Dr Hallpike said that he considered Table 13.1 of the Guide was not entirely appropriate, as the headaches are best described as "constant and variable" rather than a pattern of "attacks".
Table 13.1 of the Guide provides:
"% DESCRIPTION OF LEVEL OF IMPAIRMENT
0Attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment
10Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR
Attacks occur less frequently AND cause interference with all activities of daily living other than self care
20Attacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care
30Attacks occur up to 30 percent of the time AND cause significant interference with most activities of daily living other than self care
…"
Dr Hallpike said that in accordance with Table 13.1 of the Guide, he assessed the level of impairment to be of an effective overall significant interference with most activities of daily living, other than self care, of approximately 25% of the time and that the rating should be 25-30%.
Mr Cohen, in his report of 8 May 2000 [T37/80] assessed the applicant's level of impairment of the cervical spine at 5% under Table 9.6 of the Guide "minor restrictions of movement". Dr Awerbuch in his report of 9 July 2000 [T91/244], and in his oral evidence, said that he considered the applicant's permanent impairment of the cervical spine to be 5%. In relation to the applicant's headaches secondary to his cervical spine complaints, he assigned a 30% impairment of the whole person. Mr Cohen said in evidence that he considered both conditions permanent; and that on the history provided by the applicant, he considered still, that 30% was the appropriate level of impairment in accordance with Table 13.1.
Dr Long in his report of 24 July 2000 [T44/107] stated that in his view the applicant's cervical spine impairment was 5% under Table 9.6. In his second report of 22 October 2001 [T97/272] he stated that the applicant's presentation was similar to the year before; but in relation to his neck restrictions, this equated to a loss of half the normal range, which could attract a whole person impairment of 10% in accordance with Table 9.6, and in Dr Long's view, as the headaches emanate from the applicant's neck complaint, they do not attract any additional whole person impairment, when assessed in accordance with the Guide.
I accept the opinion of Dr Hallpike that the applicant's headaches are an intermittent condition, and that although secondary to the neck condition, it is a separate condition. In my view the condition should be assessed separately under the Guide. In relation to the cervical condition and the headaches, I consider that the appropriate assessment of the cervical condition is a 10% impairment. In relation to the headaches, have taken into account the applicant's evidence, and varying views of the medical practitioners, and I consider that, on balance, this condition is most appropriately assessed at 10% level of impairment. I consider therefore that 10% is an appropriate rating for the cervical condition and for the applicant's headaches.
psychiatric disorderOn 8 May 2000 Dr Craig, Psychiatrist, diagnosed the applicant as suffering from the psychiatric condition of chronic pain syndrome and an adjustment disorder, attributable to the injury sustained on 20 December 1998. As to the likely duration of the applicant's mental injury, Dr Craig stated that with more intensive psychological therapies the applicant should improve sufficiently to not require further therapy after 12 more months. He considered that the applicant was suffering a permanent residual impairment as a result of his psychiatric injury, and assessed the applicant's level of permanent impairment at 15% in accordance with Table 5.1 of the Guide, which reads, in part:
"% DESCRIPTION OF LEVEL OF IMPAIRMENT
0Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.
5Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance.
.reactions to stressors of daily living with minor loss of personal or social efficiency
.lack of conscience directed behaviour without harm to community or self
. minor distortions of thinking
10Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.
.reactions to stressors of daily living with minor loss of personal or social efficiency
.lack of conscience directed behaviour without harm to community or self
. minor distortions of thinking
15ANY ONE of the following accompanied by a need for some supervision and direction in activities of daily living.
. reactions to stressors of daily living which cause
. modification of daily patterns
. marked disturbances in thinking
. definite disturbance in behaviour20ANY TWO of the following accompanied by a need for some supervision and direction in activities of daily living.
.reactions to stressors of daily living which cause modification of daily living patterns
. marked disturbance in thinking
. definite disturbance in behaviour"Dr Craig was not available to give oral evidence at the Hearing. The documentary evidence discloses that a myriad of medical specialists and practitioners, beginning with Dr Tessa, have noted in their reports that the applicant appeared depressed. Dr Hallpike said in evidence that when he examined the applicant on 29 August 2001, the applicant appeared anxious, depressed and introspective. He struck Dr Hallpike as being in a down mood and cynical of the process involved, and whether he would get a fair hearing. Dr Hallpike thought the applicant was self absorbed, and as a historian, he was unduly detailed and introspective.
Dr Long gave evidence that, to the best of his recollection, the applicant presented in a depressed way. As a historian he had difficulties. He was hesitant, and lacked confidence in his own cognitive ability. Dr Long considered that the applicant's demeanour was consistent with Dr Craig's diagnosis. Mr Cohen said in evidence that he believed that there were psychological factors that contributed to the applicant's response to his perceived pain, with the widespread development of symptoms and disability. Dr Awerbuch gave evidence that on the 2 occasions he examined the applicant – the first on 16 June 1999, at the Pain Management Unit at Memorial Hospital, and the second on 5 July 2001, at his consulting rooms, he found the applicant to be anxious and agitated and that it was the consensus view of the Pain Management Clinic, in 1999, that non-organic factors were clinically significant.
Comcare called Dr Kutlaca, Psychiatrist, who gave evidence that he interviewed the applicant on 19 December 2000, and concluded that he was not suffering from a diagnosable psychiatric disorder. He has behavioural responses to incidents and injuries that affect the symptoms, but he falls short of a psychiatric disorder. Dr Kutlaca does not agree with Dr Craig's diagnosis, and considers that the applicant's frustration, anger, and response to the situation has been appropriate. This is not a maladjustment response to a stressor – Dr Kutlaca said that he doubted whether the applicant would ever return to National Rail. His anger towards his employers would be likely to ensure the same. His fitness for employment is only likely to be known once compensation litigation has been permanently resolved insofar as such is possible. He should be fit for employment within 6 months of the settling of the compensation matter.
Dr Kutlaca said in evidence that the applicant's anger was entirely overtly expressed and apparent, which would be less likely in a pain disorder. He was laconic, cynical and overtly angry at times, and relatively subdued on other occasions. However, periodic emergence of humorous quips, and the absence of significant agitation, tended to exclude a significantly disabling depressive disorder. Dr Kutlaca said that, in the main, the more depressed a person is, the less humour is exhibited; and in the applicant's case, this level of humour excluded a depressive disorder. The applicant was not diagnosably depressed when Dr Kutlaca saw him; nor was he psychotic. "Only modest rapport was established" [T56/151]. Dr Kutlaca said also that given the applicant's denial of a psychiatric disorder, he was doubtful that the applicant would receive significant benefit from psychiatric or psychological intervention, whether alone or with his spouse.
It is most unfortunate for the applicant that the only psychiatric opinion in his favour, could not be tested at the Hearing. On the documentary evidence, the medical practitioners have consistently referred to the applicant presenting as depressed, or of flat mood. Dr Kutlaca, however, is of the view that he must support his opinion come what may, and not withstanding the obvious inconsistency of it. The applicant may not have appeared to Dr Kutlaca clinically depressed on the day of the interview, but I accept Dr Craig's reported opinion that he presented as clearly depressed and despondent about his lack of progress. It is clear on the evidence that the applicant has been angry and depressed from the beginning of this "saga" because he was hurt, and was not getting better. His symptoms of distress and depression predated any contemplated compensation proceedings; and in these circumstances I do not accept Dr Kutlaca's view that the resolution of these proceedings will lead, within 6 months, to the applicant's recovery.
I consider that the applicant suffers a psychiatric condition, which could be described as chronic pain disorder, and that the condition is attributable to the injury he suffered on 20 December 1998. Dr Craig expressed the opinion that intensive psychological therapies could improve the applicant's condition such that he should improve sufficiently to not require further therapy, after 12 months. I do not consider, taking into account the whole of the evidence, that the condition is sufficiently severe to warrant a 15% rating. In my view, the appropriate level of impairment is 5% in accordance with Table 5.1 of the Guide.
Turning to the Combined Values Chart, Table 14.1 of the Guide, the appropriate impairment ratings are:
Thoraco-lumbar spine 10%
Cervical spine 10%
Headaches 10%
Psychiatric condition 5%
The combined value (in accordance with the formula) taking into account four impairment values is 31%. I am satisfied on the evidence that this is the appropriate value.
For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the respondent is liable to pay compensation to the applicant in respect of his cervical and thoraco-lumbar spine conditions, and his psychiatric condition of chronic pain disorder; the respondent is liable to pay compensation to the applicant, pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, for permanent impairment in respect of his thoraco-lumbar and cervical spine conditions, his headaches, and his psychiatric condition, assessed at 31% combined value. The respondent will pay the applicant's costs of these proceedings, including the disbursement, Dr Man's report of 19 May 2000, as agreed between the parties, or in default of agreement, as taxed by a Registrar of the Tribunal.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate/s of Hearing 8/9/10 April 2002
Date of Decision 29 October 2002
Counsel for the Applicant Mr M Kernot
Solicitor for the Applicant Palios Meegan & Nicholson
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Phillips Fox
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