Colley and Comcare (Compensation)

[2016] AATA 573

Colley and Comcare (Compensation) [2016] AATA 573 (4 August 2016)

Division	GENERAL DIVISION
File Number	2015/4528
Re	Shane Colley
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Bernard J McCabe
Date	4 August 2016
Place	Brisbane

The decision under review is affirmed.

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

Deputy President Bernard J McCabe

Catchwords

COMPENSATION – workplace injury – whether applicant suffered from secondary weight gain – whether the weight gain of the applicant is an ailment – whether the employment of the applicant significantly contributed to the onset of the condition – whether medication is reasonably required – decision under review affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16

REASONS FOR DECISION

Deputy President Bernard J McCabe

4 August 2016

1. Mr Shane Colley was a fit man in an active job with the Department of Immigration and Border Protection. He fractured his ribs on or about 3 April 2014 when hefting luggage onto a conveyor at Brisbane airport on his way to a deployment. Comcare accepted liability for that injury on 6 May 2015. The applicant was off work for a considerable period of time. While he was not working, he gained weight. He was treated with a weight-loss drug called Duromine. Mr Colley now wants Comcare to accept liability for ‘secondary weight gain’ under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). He also wants Comcare to pay for the Duromine under s 16 of the SRC Act on the basis it is medical treatment that is reasonably required in respect of an accepted condition.

2. Comcare doubts the applicant has experienced secondary weight gain, but says in any event there is no probative evidence that suggests the applicant’s employment significantly contributed to the onset of the condition. Comcare also says Duromine is not reasonable medical treatment in the circumstances.

   What happened?

3. Mr Colley is employed as a ‘marine technical officer’.[1] His job is more interesting than it sounds. He is a member of what is now known as the Australian Border Force. He is deployed on patrol vessels off the northern coast of Australia. The vessels intercept asylum seekers traveling by boat and illegal fisherman who ply those waters. Mr Colley is one of the officers who must board the boats. It is a demanding and occasionally dangerous job that requires a high level of physical fitness.

   [1] The applicant’s position is described in a number of ways, including ‘Maritime Enforcement Officer’ and ‘Maritime Tactical Officer’: exhibit one at p 152.

4. The applicant lives north of Brisbane. His roster at the relevant time required that he undertake 28-day deployments out of Darwin. On or about 3 April 2014, he went to the airport ready for another deployment. He was carrying heavy bags. He recalled in his evidence at the hearing that he experienced sudden chest pain when he was hefting a bag onto a conveyor. He made it onto the flight but he was in considerable pain. When Mr Colley arrived in Darwin, he presented at the emergency room at Royal Darwin Hospital. He said he was not x-rayed at the time but was given a diagnosis of fractured ribs and told to rest and see his general practitioner when he returned to Brisbane. When Mr Colley reported back to work after leaving the hospital, he obtained a clearance to fly and returned home. He was told he would be off work for 30 days.

5. Mr Colley said in his evidence that he rested at home as the doctor had instructed. He did not undertake any exercise. He began to feel better. He returned to work on 15 May 2014. On 27 May 2014, the pain suddenly returned while working out in the gym on a naval vessel. He was examined on board the ship by a naval doctor. Mr Colley recalled the doctor saying his condition would take about 4 months to heal. Mr Colley was sent home once the ship returned to Darwin 10 days later.

6. The applicant subsequently saw Dr Sinclair, his general practitioner. Dr Sinclair recommended the applicant rest for 30 days and provided a medical certificate to that effect. Dr Sinclair renewed the certificate several times. Mr Colley was referred to see an exercise physiologist, and there was some discussion with Comcare about funding a gym program. He agreed in cross-examination that Dr Sinclair was exhorting him to exercise.

7. I was provided with a copy of an Initial Rehabilitation Assessment Report dated 11 August 2014: exhibit one at pp 48-56. The report was prepared by Ms Samuels, a rehabilitation consultant. The report says the applicant had undergone two physiotherapy sessions and had commenced a light exercise program consisting of bike-riding (5 kilometres) and running (5 kilometres). (Interestingly, the applicant said during cross-examination that he did not undertake any exercise until he saw an exercise physiologist in September, and he only exercised in accordance with the physiologist’s recommendations. He expressly denied telling Ms Samuels he was riding a bike – he said he did not have one – or running in August.) The report also notes the applicant continued to experience some pain upon movement and recorded him saying he felt “deconditioned in comparison to pre-injury fitness”: exhibit one at p 49.

8. Ms Samuels identified a number of what she called “yellow flags” relating to the applicant’s psychosocial function in her report. She observed in exhibit one at pp 51-52:

   ·Belief that pain is harmful, resulting in fear-avoidance behaviour

   ·Belief that pain should be abolished prior to attempting RTW [return to work] or normal activity

   ·Expectation of increased pain with certain activities

   ·Belief that pain is uncontrollable

   ·Reduced activity level with significant withdrawal away from work

   ·Reduced participation in exercise

   ·Sleep quality reduced

   ·Health professionals sanctioning disability whilst not exploring interventions to improve function

   ·Feeling under stress

9. Ms Samuels endorsed Dr Sinclair’s suggestion that Mr Colley should see an exercise physiologist: exhibit one at p 55. (The text of her report suggests she also endorsed Dr Sinclair’s reported view that the applicant had psychological barriers to exercise: see below.) In any event, Mr Colley had an initial consultation with a physiologist at the beginning of September. The physiologist prepared a pilates program that was submitted to Comcare for approval: exhibit one at pp 57-59. (I note Dr Sinclair wrote a brief letter to Comcare supporting this approach. Dr Sinclair said the program “will shed some kilograms and get him back up to speed for fitness for his career”: exhibit one at p 63. Dr Sinclair did not suggest the weight gain that was observed was a medical problem as such.) The applicant did not commence the program immediately: he travelled to the United States for a family holiday first. He commenced the program when he returned later in September.

10. Mr Colley said he was becoming dissatisfied with Dr Sinclair’s advice in the latter half of the year. The applicant did not think he was getting better and did not believe the conservative treatment recommended by Dr Sinclair was enough. In cross-examination, Mr Colley said he thought Dr Sinclair’s advice to engage in exercise arose out the belief Mr Colley had psychological barriers. Mr Colley said that was not the problem: he said he knew his body and knew there was an injury that had not healed. In the meantime, he said, he was gaining weight.

11. The applicant began to see Dr Masters, a doctor with an interest in sports medicine. Dr Masters gave Mr Colley injections that provided some relief. Mr Colley also saw Dr Adie, a general practitioner, who prescribed a course of Duromine tablets. Duromine is an appetite suppressant that is designed to bring about weight loss. Dr Adie’s letter of 14 January 2015 explained the applicant had added about five kilograms in weight while he was off work and had reached a BMI of 32.5. Dr Adie said the applicant was concerned he would not be able to pass the fitness test so he could resume work. (The applicant referred to the fitness standards he was required to observe in an email statement dated 4 June 2015: exhibit one at p 152. The standards might explain why he was concerned about his weight. Dr Adie said he prescribed Duromine at the applicant’s request, although Mr Colley insisted in cross-examination that he was not aware of the drug and did not ask for it in particular. Dr Adie said the course of tablets was designed to help the applicant lose some weight so he could resume exercise: exhibit one at p 118.

    What’s wrong with Mr Colley?

12. It turns out the applicant did not suffer from fractured ribs. The original diagnosis was wrong. Dr Christian, an occupational physician, reported on 29 June 2015 that the applicant had experienced soft tissue injury to the lower thoracic or upper lumbar spine with referred pain to the right lateral rib wall and the right hip. Dr Christian speculated that some of the referred pain might be somatic but suggested it was likely the pain (or some of it) was the product of altered body mechanics rather than persistence of the original injury: exhibit one at p 304. Dr Bookless, an orthopaedic surgeon, also saw the applicant at the request of his employer. In his report dated 17 August 2015, Dr Bookless said the applicant was then suffering from thoraco-lumbar back pain which was unrelated to the original injury. Dr Bookless said the applicant was also presenting with, “subjective symptomatology”: exhibit one at p 354.

13. Professor O’Rourke, a general surgeon, said the applicant suffered a soft tissue injury to his costoverterbral angle in his thoracic spine as a result of lifting a heavy bag onto a conveyor using a twisting motion. Professor O’Rourke confirmed the diagnosis of a fractured rib was incorrect and said the symptoms began to resolve quickly once the correct treatment (which I infer to be the treatment provided by Dr Masters) was commenced: exhibit one at p 108.

14. Dr Navin, an occupational physician, also saw the applicant at the request of the employer. Dr Navin’s report of 28 November 2015 said there was nothing evident in imaging studies or on examination that suggested a functional or organic condition that required further intervention: exhibit one at p 85. He said: “Mr Colley does not appear to suffer from any particular medical condition”. Dr Navin concluded: “Mr Colley’s difficulties are related to self-inhibition of movement causing muscle tightness and weakness”: exhibit one at p 89.

15. Dr Navin gave evidence at the hearing. He said the applicant’s observed increase in weight was relatively marginal. Dr Navin said Mr Colley was already at the high end of the ‘overweight’ category with a BMI of 29 before the accident; with the increase in weight, his BMI exceeded 30 but that was not an adverse condition in the circumstances. Dr Navin said the problem was the applicant was less active during the period he was off work and he did not reduce his calorie intake significantly in light of the reduced level of activity. (I note Mr Colley gave some evidence about attempting to diet with his wife, but concluded those attempts were unsuccessful.) Dr Navin indicated the applicant could simply eat less and exercise more. The failure to exercise more, in particular, was the product of inhibition rather than the injury. He declined to ‘medicalise’ the weight gain.

16. Dr Navin was also critical of the applicant’s use of Duromine tablets to achieve weight loss in the circumstances. He said that treatment should not have been prescribed to Mr Colley. Dr Navin pointed out the tablets may have significant side effects.

17. I generally prefer the evidence of the specialists over general practitioners in this case. The specialist I have cited all have relevant expertise, and they have been provided with extensive clinical notes and imaging studies. They are in a better position to comment than general practitioners in the circumstances. The preponderance of specialist opinion suggests the applicant does not suffer from an ailment characterised as ‘weight gain’. He did put on weight while he was not working, but none of the specialists diagnosed him with a medical condition other than the lower back condition which was well on its way to resolution.

18. Even if I accept the applicant suffered from a medical condition characterised as adverse weight gain – which I do not – there is not enough evidence to suggest the applicant’s employment made a significant contribution to the onset of the condition. I accept his injuries slowed him down for a time. He was out of action longer than he should have been as a result of an incorrect diagnosis. But the reduced rate of exercise was just one factor, and not an especially important one at that. The more important factor was the applicant’s inability to manage his diet appropriately. As Dr Navin pointed out in his oral evidence, calorie intake is a key concern and it was within the applicant’s control. The reduction in the capacity for exercise occasioned by the injury made a relatively small contribution; the reduction in the inclination to exercise was more significant.

19. It follows I am not satisfied the applicant suffers from a medical condition in relation to his weight, and Comcare is not liable for any such condition under s 14 of the SRC Act.

20. The specialist evidence – especially the evidence from Dr Navin – suggests Duromine is not an appropriate medical treatment for the applicant’s weight gain, and it is certainly not a reasonable treatment for the accepted condition. Dr Navin clearly explained the circumstances in which Duromine would be appropriate; this was not one of those cases. It follows Comcare is not liable for the applicant’s Duromine treatment under s 16 of the SRC Act.

    Conclusion

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

.........................[Sgd]...............................................

Associate

Dated 4 August 2016

Date of hearing	19 May 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore