Collins and Military Rehabilitation and Compensation Commission (Compensation)
[2019] AATA 611
•29 March 2019
Collins and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 611 (29 March 2019)
Division:Veterans’ Appeals Division
File Number(s): 2016/4167
Re:Harley Collins
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:29 March 2019
Place:Melbourne
The Tribunal sets aside the reviewable decision, and in substitution decides that the Commission is liable under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) in respect of Mr Collins’s disease of “major depressive disorder” with the date of clinical onset being 6 November 2014. This matter is remitted to the Commission for calculation of the amount payable to Mr Collins as a consequence of this decision.
..........[sgd]..............................................................
Member K. Parker
Catchwords
COMPENSATION – military compensation – depressive disorder – application of statement of principles – clinical onset – whether persistent pain for duration of at least six months prior to clinical onset – whether factor related to service – decisions set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s37
Military Rehabilitation and Compensation Act 2004 (Cth), ss 23, 27, 30, 319, 335, 337, 341
Veterans’ Entitlements Act (Cth), s 196B
Legislative Instruments
Statement of Principles concerning adjustment disorder (Balance of Probabilities) (No.24 of 2016)
Statement of Principles concerning depressive disorder (No.84 of 2015)Cases
Kaluza v Repatriation Commission [2014] FCA 1137
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Milenz (2006) AAR 565Repatriation Commission v Robertson [2007] FCA 1674
Secondary Materials
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013
REASONS FOR DECISION
Member K. Parker
29 March 2019
On 23 February 2015 the Military Rehabilitation and Compensation Commission (Commission) rejected a claim for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (MRC Act) made by Mr Harley Collins in respect of a “depressive disorder”. Mr Collins also claimed compensation in respect of a condition of “allergic rhinitis”, a claim which was accepted by the Commission.
Mr Collins sought review by the Veterans Review Board (Board) of the decision to reject his claim. On 13 March 2016 the Board affirmed the Commission’s decision on the basis that there was no incapacity resulting from the claimed injury (reviewable decision).
Mr Collins sought review by the Veterans’ Appeals Division of the Administrative Appeals Tribunal (this Tribunal). For the reasons set out below, this Tribunal sets aside the reviewable decision, and in substitution decides that the Commission is liable under s 23 of the Act in respect of Ms Collins’s disease of “major depressive disorder” with the date of clinical onset being 6 November 2014.
LEGISLATIVE FRAMEWORK
Section 23(1) of the Act provides that the Commission must accept liability for an injury sustained, or a disease contracted, by a person, as defined in s 27 of the Act, provided that person has made a claim for compensation under s 319 of the Act and that none of the exclusions in Part 4 apply. Section 23(2) of the Act provides that the Commission must accept liability for service injury or disease arising from treatment provided by the Commonwealth (s 29 of the Act). Section 23(3) of the Act provides that the Commission must accept liability for service injuries and diseases arising from aggravation of signs and symptoms under s 30 of the Act.
In assessing whether the Commission should accept liability for compensation where the claims relate to warlike or non-warlike service, the standard of proof to be applied is set out in s 335 of the Act. In respect of claims under s 23(1) and (3), s 335(1) of the Act provides that the Commission must determine that the injury is a service injury or that the disease is a service disease, as the case may be; unless it is satisfied, beyond reasonable doubt, that there are no sufficient grounds for making that determination.[1] Section 335(3) provides that other determinations to which s 335(1) does not apply, are to be made to the reasonable satisfaction of the Commission. This applies where the injury was said to arise during peacetime service, as was the case with Mr Collins’s claim.
[1] Section 335(2) of the Act provides that this will arise if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person while a member.
Section 337 of the Act makes it clear that s 335 does not impose the onus of proof on a claimant, Commission, Department, Commonwealth or any other person of any matter that is, or might be, relevant to the determination of the claim.
Section 338 provides that in respect of claims for acceptance of liability under s 23(1) (as is relevant in this case) the reasonable satisfaction, for the purpose of s 335(3), is to be assessed by reference to a Statement of Principles determined under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) that upholds the contention that the injury or disease of the person is, on the balance of probabilities, connected with that service.[2]
[2] The determination of SOPs for the purpose of application under the Act or the VE Act is the main function of Repatriation Medical Authority. Section 196B(2) of the VE Act provides as follows:
(2)If the Authority is of the view that on the sound medical-scientific evidence available to it is more probably than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service … rendered by veterans; or
(b) defence service … rendered by members of the Force; or
(c) peacetime service rendered by members; or
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Section 341 provides that the Tribunal must apply any current Statement of Principles when making its decision on the review. Section 341(2) expressly states that “no right, privilege, obligation or liability is acquire, accrued or incurred that would permit” the Tribunal, in making its decision on review, “to apply any Statements of Principles that is no longer in force”.
Two Statement of Principles have potential application in this case.
The first is the Statement of Principles concerning depressive disorder (No.84 of 2015) determined on 19 June 2015 (SOPs No.84).[3] Section 8 of the SOPs No.84 explains the basis (namely, there is sound medical-scientific evidence) upon which the Repatriation Medical Authority has determined the prescribed factors, listed in s 9, that need to be satisfied to establish a sufficient nexus between the claimed injury or disease and the service. The preface to s 9 explains that at least one of the prescribed factors must, as a minimum, exist before it can be said that, on the balance of probabilities, the depressive disorder is connected with the circumstances of the claimant’s service.
[3] Incorporating amendments made up to Veterans’ Entitlements (Statement of Principles – Category 1B Stressor) Amendment Determination 2018 (No.87 of 2018).
The relevant factor brought to the Tribunal’s attention by the parties was the factor referred to in s 9(1)(k), that is, “having persistent pain of at least six months duration at the time of the clinical onset of depressive disorder”. The meaning of persistent pain was defined in Schedule 1 to the SOPs No.84 as follows:
Persistent pain means:
(a) continuous;
(b) almost continuous; or
(c) frequent, severe, intermittent pain;
which may or may not be ameliorated by analgesic medication and is of a level to cause interference with usual work or leisure activities or activities of daily living.
The second is the Statement of Principles concerning adjustment disorder (Balance of Probabilities) (No.24 of 2016) (SOPs No.24) determined on 4 March 2016.[4] The relevant factor brought to the attention of the Tribunal was the factor referred to in s 9(8), which is, “having persistent pain of at least three months duration at the time of the clinical onset of adjustment disorder”.
[4] Ibid.
ISSUES
The key issues arising for determination by this Tribunal in deciding whether liability arises under s 23 of the Act in respect of Mr Collins’s claimed injury or disease, are:
(a)Did Mr Collins suffer from any psychological or psychiatric conditions?
(b)What was the date of clinical onset of Mr Collins’s condition(s)?
(c)Does at least one factor set out in the applicable SOPs for that condition(s) apply to Mr Collins? Specifically, if Mr Collins is found to have a “depressive disorder”, did he experience “persistent pain” for at least six months before the date of clinical onset of this disease and if not, do any other factors in the applicable SOPs apply?
(d)If so, does that factor relate to Mr Collins’s service?
Tribunal documents lodged by the Commission
The Commission lodged the following documents with the Tribunal pursuant to s 37 of the Administration Appeals Tribunal Act 1975 (Cth):
(a)a set of documents and index lodged on 20 August 2016 totalling 381 pages (T-Documents); and
(b)a supplementary set of documents and index lodged on 2 May 2016 totalling a further 323 pages (Supplementary T-Documents).
BACKGROUND
Mr Collins enlisted into the Royal Australian Air Force (RAAF) on 3 September 2002. He held the rank of Leading Aircraftsman. Mr Collins is 36 years old. He has a partner and two young children.
In 2009 Mr Collins sustained a back injury (L5/S1 disc prolapse) during service. He made a claim for compensation for this injury and it was accepted. Mr Collins underwent back surgery (microdiscectomy) in 2009 and returned to light duties two months after the surgery. The neurosurgeon who performed the surgery stated that Mr Collins’s left L5 nerve root was seen to be compressed by a focal contained disc herniation.[5] The report states that Mr Collins woke from the surgery without any new neurological deficits.
[5] Refer T-Documents T72/273.
In April 2014 Mr Collins injured his back again while he was working as a cook in a RAAF kitchen resulting in further spinal surgery (microdiscectomy) in October 2014.
Mr Collins in his Statement of Facts and Contentions lodged on 12 July 2017 (Mr Collins’s SFIC) contended as follows: “as from 2009, after the first operation until he reinjured his back in 2014, he was experiencing almost continuous pain at a level of 2/10”.
On 5 December 2014 Mr Collins lodged a claim for compensation in respect of “asthma” and a “depressive disorder”.[6] Mr Collins claimed the following benefits: permanent impairment compensation, treatment, rehabilitation, and household care services.[7]
[6] Refer T-Documents T24
[7] Refer T-Documents T24/58.
On the injury or disease detail sheet attached to this claim form, Mr Collins claimed that the “injury or disease” happened and that he first noticed signs or symptoms on 24 May 2014.[8] Mr Collins stated that he first received medical treatment for it on 24 July 2014.[9]
[8] Refer T-Documents T25/62.
[9] Ibid.
Dr Ann-Maree Berrill, general practitioner (Aviation Medical Officer, Darwin Health Centre, RAAF Base Darwin), completed the medical section of the Injury or disease details sheet that was submitted with Mr Collins’s claim.[10] Dr Berrill signed this section on 5 December 2014. Dr Berrill provided a diagnosis of “acute adjustment disorder with depression and anxiety”.
[10] Refer T-Documents T25/63.
Dr Berrill stated she was first consulted about this injury on 24 July 2014 and that the approximate date of onset of the condition was 27 May 2014. Dr Berrill stated that the basis for this diagnosis was:[11]
Clinical assessment by his treating general practitioner with diagnosis based on clinical assessment tools K1O (28) & DASS – depression (17) (moderate) anxiety (20) (extremely severe) & stress (25) (moderate)).
Referred to VVCS and saw psychologist for several CBT based consultation.
Psychologist findings concurrent with diagnosis.
Treatment completed September 2014.
No medications/current staff management.
[11] Refer T-Documents T25/63.
The Tribunal was unable to identify from the documents, the findings provided by the psychologist as referred to in the third last sentence of Dr Berrill’s comments set out in the above paragraph.
Before lodging this claim, Mr Collins had made two previous claims for compensation:[12]
(a)2 June 2009 – claim for his original back injury in respect of “interverbral disc prolapse at L5-S1”, which was accepted; and
(b)8 May 2014 - claim in respect of “hemivertebra (T12) with scoliosis”, which was rejected.
[12] Refer T-Documents T27.
Service record
Mr Collins’s service with the Australian Defence Force (ADF) commenced on 3 September 2002.[13] Mr Collins’s service record and other documents submitted record that:[14]
(a)his first posting commenced on 3 September 2002;
(b)he had subsequent postings as a cook for the following five years from December 2003 to January 2008;
(c)in January 2008 he commenced a posting as a “Guard Member”;
(d)in December 2009 he commenced a posting as a “2IC 11 Section”;
(e)in January 2014 he returned to a posting as a cook; and
(f)in mid-2014 he was transferred to ABCP.
[13] Refer T-Documents T9/20.
[14] Refer T-Documents T9.
Service in 2009
At the hearing, Mr Collins gave evidence that he was posted to the Australia’s Federation Guard in 2009. He said that during that time he was involved in activities such as “spinning rifles”, “military precision” and personal training every morning. He said he lived “on base” and that it was a “tight community”. He said it was “easy in 2009”.
Mr Collins said he was a “drill instructor” for three and a half years. It involved marching, sewing and ironing. He said the marching took place once every ten weeks for a total of an hour. He said the recruits “had weapons” and they “secured them”. He said “we taught them how to move with a weapon”. Mr Collins said this required him to lift a weapon. He said that the RAAF have stringent safety precautions when they teach recruits how to march and they are taught not to slam their foot onto the ground. He also said he taught on “drill squares” which had “shock absorbing features”. Mr Collins said he walked in “insulated” boots.
Change of duties after injury in 2009
Mr Collins suffered a back injury in 2009. He said that after his injury in 2009, he went from being a member of a Precision Drill Team and “touring”, to being confined to an office “just doing transport and logistic planning”. He said he became “very insular” and there was a “big drop” in his social life. He said that “young people living on base was good”, but that “after the injury, living on base made life change”. He said the pain turned his world upside down. He could not march, drill or join in on the personal training during the day. He said he could not play golf or enjoy social activities. He said that rather than be with other people, he would stay in his room, play video games and do nothing. He said that he was living with the pain and did not want to make it worse.
Mr Collins gave evidence that for the entire year of 2009 he was in pain, leading up to the operation in October 2009. He said the operation was performed to relieve the nerve pain. He said that nerve pain remained after the operation and he had a “large amount of muscular and skeletal pain”.
Change of posting in 2013 to return to kitchen duties in Darwin
Mr Collins said he received a posting order in 2013 “to return to a kitchen”. The posting commenced on 13 January 2014 in the Airmen’s Mess at the Darwin RAAF Base NT in the position of “COOK1”.[15]
[15] Refer T-Documents T9/20.
Mr Collins was asked by the Tribunal whether his back had stabilised at the time he was offered a role in a kitchen. Mr Collins said that the RAAF conducted physical tests annually and that “you need to be able to walk 5 km under a certain amount of time, do 18 push ups and 25 sit ups” (physical examination). Mr Collins said he objected to the posting to Darwin to work in a kitchen. He said he raised “a skill point” in that he had been out of a kitchen for six or seven years and that his back injury had not been “tested” in a kitchen. Mr Collins said his objection was not made in writing. He said he had received a call about the posting and was told that his “time was up” and that he was “going back to where he was” (i.e. back to working in a kitchen as a cook).
Mr Collins was asked by the Tribunal whether he experienced any difficulty passing the physical examination. He said that the sit ups and push ups were hard but that, “at the time, you do it”. Mr Collins said he passed it, “but after being in the kitchen my pain was changing”.
Road journey from Wagga Wagga to Darwin in late December 2013/early January 2014 to take up new posting in Darwin
Upon being posted to Darwin (which commenced in January 2014), Mr Collins said he drove from Wagga Wagga to Darwin which took him “just short of 13 days”. He said he was married at that point and had a child who was about 18 or 20 months old. He said he travelled about 200km per day on this journey. Mr Collins said he woke in the morning and stretched; had breakfast; took medication; drove for two hours and stopped to find a spot to let the children run around and “to stretch”. He said they stopped in Canberra and also at the Gold Coast en route.
Mr Collins said he did not fly to Darwin because his personal effects would have been shipped by freight which may have resulted in a delay of one month before they arrived in Darwin. Mr Collins gave evidence that on this trip he never lifted his child into and out of the car seat and that his wife undertook this task. He said they packed their car in such a way as to place the heavy belongings in the trailer and suitcases in the back of the car. He said that they only took a small toiletries bag and whatever they needed into the accommodation they were staying in for the night.
Mr Collins was asked in cross-examination what would have happened on this trip if he was required to change a tyre on his car. He said that as a team, he and his wife would have been able to change the tyre. Mr Collins said that he was involved in loading the car, which included a barbeque, but, “not by myself”. He accepted there was some lifting involved.
Outpatient Clinical Records up until first surgery on 21 October 2009
The Tribunal has considered the Department of Defence Outpatient Clinical Records (clinical records) and other medical evidence relating to Mr Collins.[16]
[16] Refer T-Documents T72.
The clinical record for 30 January 2008 stated that Mr Collins had a “low back pain” of “1 week duration” and that he was “moving boxes” on about 12 January 2008.[17] The next clinical record had separate entries for 23 and 27 February 2009.[18] They referred to Mr Collins complaining of left hip pain over the last three weeks and that he had been on a course in Melbourne in the previous four weeks.
[17] Refer T-Documents T72/240.
[18] Refer T-Documents T72/241.
The next clinical records are dated 17 March 2009 and 4 May 2009.[19] They stated that Mr Collins was experiencing left buttock pain and that the pain was worse when sitting down and bending. A left gluteal ultrasound was performed on 18 May 2009 and concluded that “no specific abnormality could be noted to account for the patient’s symptoms” and a steroid injection was not given.[20]
[19] Refer T-Documents T72/242 and 243.
[20] Refer T-Documents T72/275.
On 2 June 2009 Mr Collins underwent an MRI of his lumbosacral spine. The MRI report concluded as follows:[21]
There is a congenitally deformed T12 vertebral body that has the configuration of a butterfly vertebra on the MRI scan.
In order to confirm and evaluate the T12 vertebral body a CT is recommended with 3 plane reconstruction.
At the remaining levels there is minor degenerative change with disc bulges causing neural compromise…
[21] Refer T-Documents T72/276&277.
On 20 July 2009, a nerve root block was performed at Mr Collins’s left L5/S1 nerve root foramen.[22]
[22] Refer T-Documents T72/278.
On 27 July 2009 a clinical record notes that Mr Collins presented for a “review of back pain”.[23] This entry stated that Mr Collins was scheduled to have a CT scan and to see a neurosurgeon. The CT scan was performed the following day confirming that there was a congenital abnormality at the T12 level, but no evidence of neural compromise. The only evidence of neural compromise was found at the L4/5 level where there was a prominent left sided disc bulge that was “possibly seen to impinge the traversing left L5 nerve root” and that the central canal remained adequate at all levels.[24]
[23] Refer T-Documents T72/247.
[24] Refer T-Documents T72/279.
On 3 August 2009, the clinical records referred to “sciatica”; left leg pain “to the ankle” and pain when standing up from a sitting position. It also stated that Mr Collins was walking with a limp.[25] Reference is made in this record to an MRI showing an L4/5 disc bulge and L5 nerve root and that he was to try Amitriptyline 25mg, Mobic 15 mg daily and Panadeine Forte.
[25] Refer T-Documents T72/248.
On 25 August 2009 the clinical records noted that Mr Collins was seeing a physiotherapist.[26] Reference is made to Mr Collins having declined an offer of “psychology review” because he “states he is not depressed”. Instead, Mr Collins requested a ketamine infusion as he had heard this had helped others.
[26] Refer T-Documents T72/249.
Microdiscectomy (L5) performed on 21 October 2009
On 26 October 2009 the clinical records stated that Mr Collins underwent a “(L) microdisectomy, (L) L5 rhizolysis” on 21 October 2009.[27] Mr Collins was discharged home on 23 October 2009 with Endone, Panadol and Amitriptyline as prescribed.
[27] Refer T-Documents T72/250.
On 5 November 2009 at a two-week post-operation review, it was noted that Mr Collins was walking about one kilometre per day and had driven a car.[28] It was noted that he was managing the pain and was sleeping okay, but had a “niggling ache”. He was assessed as fit to fly, with mention of him planning to fly to his parents’ house in Perth.
[28] Ibid.
On 26 November 2009 the clinical records stated, “pain better nil @ rest”.[29]
[29] Ibid.
Mr Collins’s neurosurgeon issued a medical report on 8 December 2009 following a routine post-operative review.[30] The neurosurgeon stated as follows:
On this occasion, Harley told me he has experienced significant improvement in his left leg symptoms since his operation. The patient has lost the severe pain down the left leg. However, he continues to have some niggling sensation that feels like the left leg being stretched when he puts himself in certain positions. Harley is now walking approximately 1km per day and uses occasional Panadol and Tramadol for his residual symptoms.
On examination, the patient walks with a normal gait. Harley was able to walk on his heels as well as his toes. There was a good range of lumbar spine movements even in flexion. The patient was otherwise neurologically intact. The wound has healed very well.
I have congratulated Harley on his satisfactory recovery from his recent surgery. The patient told me that he is very happy with the result. I have warned the patient that there is a 5% chance of recurrence of severe pain. I have not made any arrangements to see Harley again at this point in time but I have encouraged him to see a physiotherapist for some exercises for his back.
[30] Refer T-Documents T72/282.
Department of Defence clinical records after first surgery on 21 October 2009
On 14 January 2010 the clinical records stated, “(L) sciatica pain has resolved but still some discomfort – (L) buttock with SCR”.[31] An entry for 10 March 2010 records as follows:[32]
…? niggling pain back, on morning stiffness…
[31] Refer T-Documents T72/251.
[32] Refer T-Documents T72/252.
On 10 March 2010 the clinical records stated that Mr Collins had lost four kilograms; had stopped smoking and that was still “struggling pain in back, on morning stiffness”, but he had “no leg pain”.[33]
[33] Refer T-Documents T72/252.
On 28 February 2013 the clinical records stated as follows:[34]
Mbr presents mid back pain for 1hr now. Mbr was lifting 1yr old son into car, pain first onset 10 mins post activity. Mbr currently on leave. Tingling/pins and needles….5/10 sharp localised pain on movement. 1-2/10 aching pain on rest…Mbr had recently been on 2 week CPI course ? sitting/flying cause”.
[34] Refer T-Documents T72/256.
A further clinical note by Dr D Read on the same day stated that Mr Collins complained of:
Sharp ® back pain, to ® of T9, no obvious cause. Neurology; some pleuritic element, but worse with T-spine rotation.[35]
[35] Refer T-Documents T72/257.
On 1 March 2013 the clinical records noted minimal benefit from Mr Collins taking Panadeine Forte and he was prescribed Tramadol 100mg.[36]
[36] Refer T-Documents T72/258.
On 3 October 2013 the clinical records noted that Mr Collins had presented with lower back pain extending upwards from the lumbar to the lower thoracic area.[37] Reference is made to Mr Collins having had:
…long term “niggling” back pain. Over the last 2/7 the pain has increased and thoracic stance is leaning to the right. On palpation muscles adjacent to the spine on the left side are tense. Mbr states sciatic pain also”.
[37] Refer T-Documents T72/259.
On 16 October 2013 the clinical records stated that Mr Collins presented with ongoing lower thoracic, upper lumbar back pain.[38]
[38] Refer T-Documents T72/260.
On 14 April 2014 the clinical records stated that Mr Collins presented with lower back pain that had been “on and off for 4 years”.[39] It stated that the pain had begun when Mr Collins reached/lifted for boxes. It noted that he was able to bend and twist both ways with mild pain. The following entry was made:
Nil synaptic nerve damage/pain. Mbr advised to present for physio sick parade 1/7. Mbr given 3/7 day restrictions and paracetamol/ibuprofen. Mbr instructed to re-present if worsens and advised to complete AC 563.
[39] Refer T-Documents T72/261.
Claim for “back pain” signed by Mr Collins on 14 April 2014
Mr Collins submitted a claim, which he signed on 14 April 2014, for an injury he described as “back pain”. A Specific Injury Questionnaire was attached to the claim form. The date of injury specified by Mr Collins on the Questionnaire was 14 April 2014 (8am). Mr Collins stated explained the cause of the injury as follows, “Whilst preparing inflight lunch boxes the continual twisting and turning/leaning aggravated my lower back. Any area that has a pre-existing injury. Short sharp pain. When twisting”. Mr Collins described the symptoms of the injury as follows, “Short nerve pain localised to my lower back. Pain scale out of 10, about 2/10 dependent on specific movement”.
An X-ray of Mr Collins’s lumbar spine was taken on 29 May 2014 and it was suggested that Mr Collins have a CT scan and MRI. An MRI was performed on 4 June 2014.[40] The MRI revealed that there was “a quite large” “new” left paracentral disc exclusion at L4/L5 which was compressing the left L4 nerve root at lateral recess level. The MRI report stated that there was no large extruded disc at the L5/S1 level. However, there was a minor distortion of the origin of the left S1 nerve root at the lateral recess level, which “may well relate to the previous microdiscectomy at this level”.
[40] Refer T-Documents T7.
Clinical records following claim for back pain in April 2014
The Tribunal will now set out in some detail the clinical notes maintained for Mr Collins’s medical conditions and symptoms, the reason for which will become appropriate below (see paragraph [166]). On 27 May 2014 a clinical record stated that Mr Collins presented with back pain and complained that it had “flared up over past couple of hours at work”.[41] Mr Collins reported he was taking a large amount of pain relief and anti-inflammatories on a daily basis. He was recorded as saying that he was frustrated with the ongoing pain and there being no review. It was decided a full review was required and an appointment was made for Mr Collins to see Dr Berrill the following day.
[41] Refer T-Documents T72/262.
On 28 May 2014, an outpatient clinical record signed by Dr Berrill referred to Mr Collins presenting with “a history of chronic lumbar pain with frequent exacerbations of severe pain & muscle spasm accompanied by left leg sciatica”.[42] The clinical record also stated as follows:
[42] Refer Supplementary T-Documents ST96/323.
Consultation 28 May 2014
…He is tearful & upset today as he had been in pain for so long & his work in ‘in flights’ is aggravating it - & he couldn’t envisage working in the kitchen.
…[referring to operation in 2009]…He apparently made a full recovery but it appears he has been vulnerable to exacerbations of back pain since, especially this year when his condition has worsened.
Over the last few weeks he has been experiencing a lot of lumbar pain & muscle spasm & persistent left leg pain – no paraesthesia.
…
A- Acute severe lumbar pain – likely underlying new disc lesion – or degeneration of previously injured disc.
Plan – sick leave to rest the rest of this week – then RTW with multiple physical restrictions – incl sedentary duties only – review mid-June.
For new Xrays & MRI L/S spine.
Rx – Trial of meloxicam 15 mgs/tramadol SR 100mgs – 1-2 BD; panadeine.
Referral to physio. ADF RP referral ASAP – needs workplace assessment.
On 11 June 2014, Mr Collins completed an Orebro Musculoskeletal Pain Questionnaire which was signed by him and Ms Leona Sullivan, a rehabilitation consultant.[43] In answering this Questionnaire, Mr Collins stated as follows:
[43] Refer Supplementary T-Documents ST50.
(a)he experienced pain in his upper back and lower back;
(b)he had missed one month of work because of pain in the previous 18 month-period;
(c)he had experienced his pain problem for longer than one year (the longest option presented to him);
(d)he rated his pain over the last week as being level 1, 2 or 3 where 0 was “not at all” and 10 was “pain as bad as it could be”;
(e)on average in the previous three months his pain was level 4 where 0 was “no pain” and 10 was “pain as bad as it could be”;
(f)in the previous three months he rated the average frequency that he would experience pain at level 10 which represented “always”;
(g)he was able to decrease his pain to level 0, 1 or 2 by doing all the things he could do to decrease the pain;
(h)he rated his level of tension and anxiety in the last week as level 7, 8 or 9 with 10 representing “as tense and anxious as I’ve ever felt”;
(i)he also rated his level of being bothered by feeling depressed over the previous week as level 7, 8 or 9 with 10 representing “extremely”; and
(j)he rated the risk that his current pain might become persistent as level 8, 9 or 10 with 10 representing “a very large risk”.
On 16 June 2014, an outpatient clinical record signed by Dr Berrill indicated that she was reviewing Mr Collins’s L/S spine condition.[44] Her notes record:
…
Still having left leg pain but he is improved a lot – lumbar pain not as bad & leg pain not as frequent.
[reference to new radiological findings from X-ray and MRI]
Mr Collins had improved with the recent interventions with physiotherapy (including hydrotherapy), NSAIDS & analgesics & work restrictions however he is still getting frequent episodes of left leg pain.
Plan – continue with work restrictions; needs UMECR with downgrade to MEC J31 for 6 months at least.
Referral to neurosurgeon…
Review monthly.
[44] Refer Supplementary T-Documents ST96/322.
On 18 June 2014, Ms Sullivan made an ADF rehabilitation case note that she had received a telephone call from Peter McGarry who had advised that he felt he could not have Mr Collins in “inflights” (as a cook) as he was not able to undertake all duties.[45] There is a note “considering placement in ABCP”.
[45] Refer Supplementary T-Documents ST48/170.
On 3 July 2014, Ms Sullivan made an ADF rehabilitation case note that a case meeting was held at which Mr Collins was present and it was agreed he would be transferred to ABCP.[46]
[46] Refer Supplementary T-Documents ST48/169.
On 9 July 2014 Ms Sullivan made an ADF rehabilitation case note referring to a referral letter to MH&PS in respect of Mr Collins, as follows:
“…
Harley requested referral to a psychologist for counselling as his mood has been low lately. Harley does not have a [past history] of mental illness & he is not presenting distressed or expressing any high risk thoughts or behaviours.
Harley had a lumbar spine injury several years [ago] when he was posted to the Federation Guard. He subsequently had spinal surgery. He now has chronic back pain, which he only really presented for recently, as well as worsening of the spinal disc condition. He will be seeing a specialist again for another opinion again as the disc injury has worsened.
Harley has also been experiencing stress in the workplace. The catering section at 13SQN is very high tempo & anyone perceived to be not pulling their weight is not treated that well – even if it is for [bona] fide medical reasons which is the case in Harley’s condition. I have placed him on work restrictions & recently have decided that he should be moved from the kitchen. It looks as if he will be transferred to the Base Air command Post – which will good for him as he has found the negative & punitive atmosphere in the kitchen not very helpful.
I am referring him to your psychological counselling with an additional focus on chronic pain”.
On 9 July 2014, Dr Berrill completed a section of an “injury or disease details sheet” which Mr Collins submitted with his claim for “lower back, leg area”.[47] On this form, Mr Collins described the signs and symptoms as follows, “nerve pain, constant mild/severe back pain. Mild leg pain, Daily lower, middle back pain. Nightly back, leg pain. Sleep loss due to pain. Mood change due to pain”.[48] Dr Berrill stated in the medical section of this form that her medical diagnosis was “L4/5 disc herniation – recurrent – now with L4 radiculopathy”.[49] The injury was stated to have happened in “02/2009” and that he first received medical treatment for it on 24 February 2009. Dr Berrill stated as her basis for “confirmed” diagnosis as follows:
Initial clinical presentation 2009 with subsequent MRI then L4/5 miscrodisectomy 21 Oct 2009 for herniation L4/5 disc causing L5 (L) NR compression.
Recurrence of severe lumbar pain with (L) leg sciatic May 2014. Clinical signs of a recurrence. L4/5 disc degeneration with leg pain (L) L4 ?
MRI 04JUN14 reveals further deterioration with sequestration of L4/5 disc with compression of L4 nerve root (L) in lateral recess.
Pending specialist neurosurgical opinion in Aug ?
[47] Refer T-Documents T10/30.
[48] Refer T-Documents T10/29.
[49] Refer T-Documents T10/30.
In the clinical record dated 9 July 2014 Dr Berrill stated that she was due to see Mr Collins the following day and they would discuss his “lumbar spine condition” and “his mental health”.[50] Dr Berrill noted that Mr Collins was “not acutely distressed today”. This clinical note stated that Mr Collins was referred to Mental Health & Psychology Support (MH&PS) three weeks earlier and “still did not have an appointment”. It stated that he was not sleeping well, had insomnia most nights and did not sleep at all the previous night. She commented that Mr Collins had a “chronic” lumbar spine condition which was “being well managed – his pain levels have reduced a lot”. Dr Berrill noted:
He does need to see a psychologist though – MH&PS are apparently ringing him back today with an appointment date.
[50] Refer Supplementary T-Documents ST93/313 (or second page of Exhibit “A2”).
On 9 July 2014 Dr Berrill also completed a Medical Employment Classification Review Record pertaining to Mr Collins.[51] On the form, Dr Berrill stated:[52]
LAC Collins presented recently with a history of chronic lumbar pain with frequent exacerbations for severe pain & muscle spasm accompanied by left leg sciatica.
History: …He subsequently underwent an L4/5 microdiscectomy & left L5 rhizolysis in October 2009. He apparently made a full recovery but it appears he has been vulnerable to exacerbations of back pain since, especially this year when his condition was worsened.
On initial presentation on 28 May this year he was experiencing a lot of lumbar pain & muscle spasm & was walking with an antalgic gait…
Initial management included a 3 day rest period and he then returned to work on restricted duties. LAC Collins has had a reasonable response to meloxicam 15 mg daily & uses slow release tramadol as well – which he needs often.
…
LAC Collins has improved with the recent interventions with physiotherapy (including hydrotherapy), NSAIDS & analgesics & work restrictions however he is still getting frequent episodes of left leg pain.
…
[51] Refer Supplementary T-Documents ST45.
[52] Refer Supplementary T-Documents ST45/160.
Mr Collins was transferred to ABCP on 10 July 2014.[53] His duties were to involve escorting visitors to buildings and undertaking maintenance checks of buildings.[54]
[53] Refer T-Documents T53/179.
[54] Refer T-Documents T53/180.
On 11 July 2014, Ms Sullivan records in her Occupational Rehabilitation Assessment Report for Mr Collins that he reported symptoms at that time as follows:
LAC Collins rates his current pain between 1/3/10 (VAS) and reports he is currently taking meloxicam (NSAID) 2/day and tramadol (pain reliever) 4/day. Member states pain intermittently interrupts his sleep.
Ms Sullivan notes in an ADF rehabilitation note for 15 July 2014 that she had met Mr Collins and he had reported no difficulty with his new location.[55]
[55] Refer Supplementary T-Documents ST48/167.
On 17 July 2014, Ms K Lawson, a psychologist, completed a form entitled Request for VVCS. Ms Lawson’s diagnosis (or provisional diagnosis) included “chronic pain – stress management/supportive counselling”. The clinical notes stated that Mr Collins presented with “chronic spinal pain and worsening spinal disc condition”. The notes also stated, “ongoing stress in workplace due to [in pain] and impact on ability to [fulfil] requirements of job”.
Dr Matthew Carter, Medical Adviser, Department of Veterans’ Affairs, was asked to provide a medical opinion “on the papers” in relation to Mr Collins’s back claim.[56] On 18 July 2014, Dr Carter provided a diagnosis of intervertebral disc prolapse, at the left L4/5 level.[57] He considered that the clinical onset was probably in February 2009. He stated the causes of this type of injury were typically trauma or repetitive heavy physical demands as determined by the factors for the Statement of Principles concerning Intervertebral Disc Prolapse. He stated that the precipitant of the pain was several weeks of sitting for several hours a day as part of a drumming training course and that in his view it was difficult to link that service on the available information. He requested medical notes post-April 2014 to consider whether the recent back pain was an aggravation of disc prolapse, lumbar spondylosis or an isolated sprain/strain.
[56] Refer T-Documents T8.
[57] Refer T-Documents T11.
On 23 July 2014 the clinical records noted as follows:
Mbr presents [with] headaches for last 14 hrs & little sleep. Also needs rpt prescription for analgesics & requesting referral to psychiatrist. Now feeling tired & depressed & wanting to see Dr. Headache – pain since 6.
On 24 July 2014, Mr Collins attended upon Dr Berrill. The clinical note of the consultation on this day indicated that his pain was “much reduced”.[58] The note records that Mr Collins had a new bed and had “the best sleep in ages” the previous night. The note referred to Mr Collins having transferred to “the ABCP” and having been given some “meaningful & interesting tasks”. The note stated that Mr Collins had reported that he was happy working there and had received some positive feedback. Dr Berrill made the following record on this note:
[58] Refer Supplementary T-Documents ST93/312 (or page 1 of Exhibit “A2”).
Re: mood he admits to feeling depressed & anxious about his back & about his career. His home life is fine no concerns there – only his wife is pregnant with their second child & they have a 2 year old as well.
He does not have a definite PH of depression or anxiety; no vegetative symptoms & no ideas of self-harm or harm to others. This is NOT a risk assessment presentation – but I would assess him anyway as no risk. He is very engaged with his family & this is a very protective factor - & he has interests & plans that do not involve the ADF.
Note – I referred him to MH& PS 3 weeks ago - & he still does not have an appointment – the HCMWILL PHONE THEM TODAY TO ACTION THIS.
Note – his K10 is 28 indicating a ‘moderate’ disorder. DASS is more concerning – Depression = 17, moderate. Anxiety = 20, extremely severe & Stress = 25, moderate.
Unusually though he has no overt features of an anxiety disorder - & certainly not panic disorder.
Plan – discussed his future & career alternatives – in positive terms. Outlined the protective nature of the CMECR process & the ADF Rehab program.
Plan – main aim now is to engage with a psychologist in the short term.
Review by me in 1 month – he has regular contact with his rehab consultant.
Psychological Tests performed in July 2014
On 24 July 2014 Dr Berrill asked Mr Collins to complete:
(a)a K10 psychological test and he scored 28 (rated as “moderate”);[59]
(b)a DASS test (Depression Anxiety and Stress Scale) and he scored:
(i)17 for Depression (rated as “moderate”);
(ii)20 for Anxiety (rated as “extremely severe”); and
(iii)25 for Stress (rated as “moderate”).
[59] Refer T-Documents T12.
Second back surgery (further microdiscectomy) performed on 1 August 2014
The following surgical procedure was performed on Mr Collins on 1 August 2014: “redo left L4/5 microdiscectomy”.[60] The post-operative report by the surgeon indicated that he anticipated a good recovery.
[60] Refer T-Documents T14.
On 5 August 2014 Ms Sullivan made an ADF rehabilitation case note stating that Mr Collins was taking Endone (5 mgs) with paracetamol, and had been advised to change to Tramadol by the end of that week.[61]
[61] Refer Supplementary T-Documents ST48/166.
On 12 August 2014 Ms Sullivan made an ADF rehabilitation case note stating that he advised her that the surgery on 1 August 2014 “went well” and that “his pain has settled stating feeling ‘pressure’. Is not experiencing much left leg pain. Walking unaided”.[62]
[62] Refer Supplementary T-Documents ST48/166.
On 21 August 2014 Mr Collins attended his first counselling session with Mr Scott Bevis of Veterans & Veterans Families Counselling Service (VVCS).[63] The brief Specialist Report prepared by VVCS (Ms Therese Cury, psychologist and outreach case coordinator) on the same date does not identify any diagnosis for Mr Collins. It records that Mr Collins was assessed as not presenting as a risk to himself or others. At this consultation, Mr Collins completed a DASS test scored in the “severe” category for Stress and Anxiety and in the “moderate” category for Depression.[64]
[63] Refer Supplementary T-Documents ST47.
[64] Refer Supplementary T-Documents T70/260. The test results were referred to in a report issued by VVCS. The Tribunal did not have access to the primary test documents.
On 1 September 2014 Mr Collins returned to work in ABCP on reduced hours after his second surgery.[65] He saw Dr Berrill on this day who made a note as follows, “No leg pain; low back pain – very stiff still though”.[66] At a session on 5 September 2014, Mr Collins completed a further DASS test, scoring in the normal range for Stress and Anxiety and in the “mild” category for Depression.[67]
[65] Refer Supplementary T-Documents ST1/28.
[66] Refer Supplementary T-Documents ST1/58.
[67] Refer Supplementary T-Documents ST70/260. The test results were referred to in a report issued by VVCS. The Tribunal did not have access to the primary test documents.
On 12 September 2014, VVCS prepared a “case review/end of episode report” which was signed by Mr Bevis and Ms Cury.[68] This report stated:
LAC Collins was referred to counselling and assistance with pain management. Upon attending his first appointment, LAC Collins noted having recently undergone low back surgery and that he was progressing well with his rehabilitation. His reported need for specific pain management assistance was noticeably reduced. LAC Collins advised that he had also been transferred out of his previous work environment which he’d found to be unsupportive and unaccommodating of his back injury/ rehabilitation needs. LAC Collins described the workplace he was due to return to pending medical fitness was much more accommodating and he was subsequently less stressed about his return to work.
Most pressing for LAC Collins at assessment was his noted decline in mood and reduced motivation for things he had previously enjoyed. He described how in re-injuring his back his sense of confidence and perceived ability to pursue goals associated with his plans for future self-employment had declined significantly. He was not avoiding activities perceived as being within his ability and procrastinating. This contributed to him being more frustrated with himself as he felt he was wasting time not being as productive as he could be. LAC Collins described how his mood [had] deteriorated in accordance with his low motivation and reduced confidence. He was subsequently not enjoying things including his personal relationships as he had done previously.
…LAC Collins reported injuring his back again at work in April 2014. He described his mood starting to deteriorate from this point in accordance with the re-injuring of his back and feeling like his ability to manage his lower back condition in the long term had been dashed by his engagement at work…
…
RECOMMENDATION
Over the initial three appointments to date a CBT based approach to treating depression has been utilised to assist LAC Collins with breaking down behavioural tasks and setting goals within his achievable capability. Shifting his mindset from all or nothing thinking to being able to take a paced approach and attaining big goals via the sum of their parts had also been helpful for LAC Collins. He has reported a considerable improvement in both his mood and motivation to keep working away at projects relevant to his future plans. Having made good progress today, LAC Collins appears more confident in his capacity to manage independently.
It is recommended that a further three counselling sessions are made available for LAC Collins. He has made marked improvement to date and is continuing to make gains with his physical rehabilitation post surgery and return to a sustained positive mood…
[68] Refer T-Documents T70.
On 19 September 2014, Mr Collins attended physiotherapy and it was noted that he was “going well”, although it was also noted that he had “most discomfort in the mornings when getting out of bed, feeling stiff” and that it took him some time to get moving.[69] A similar note was made by his treating physiotherapist (Ms Katie Smith) on 25 September 2014 stating that Mr Collins spent ten minutes in the morning walking around to loosen up his back before getting dressed or undertaking activities of daily living.[70]
[69] Refer Supplementary T-Documents ST1/57&58.
[70] Refer Supplementary T-Documents ST1/57.
On 26 September 2014 Mr Collins attended a consultation with Dr Berrill who noted as follows:[71]
…Review – no 7 weeks + post L4/5 microdiscectomy; DOING REALLY well; working 6 hours a day x 3 days a week – says he could easily do more; he is still in the mornings but is OK after stretching+. Doing his strength exercises and pool work++; his endurance is increasing; pain levels are good – low grade back ache but not all the time and NO leg or buttock pain…
[71] Refer Supplementary T-Documents ST1/57.
Ms Sullivan made a note on 2 October 2014 as follows:[72]
…Member is going well with report of some stiffness which he relieves through breaks. States that he is finding his chair very supportive. Is busy with tasks which he is enjoying…
[72] Ibid.
Ms Sullivan made a note on 15 October 2014 as follows:[73]
…Enjoying duties and support at ABCP. Is creating building plans via Excel with assets etc. notated…
Is not experiencing constant pain – situational. Taking 50 mg tramadol each morning.
Has been undertaking swimming (4 laps) at pool with stretches and deep water running. Not sure whether he needs further Physiotherapist review.
…
Has finished sessions with Psychologist stating he found them beneficial. Is using strategy of breaking down to smaller, manageable tasks when feeling overwhelmed.
[73] Refer Supplementary T-Documents ST1/56.
On 17 October 2014, Mr Collins attended a consultation with Dr Berrill who made the following note:[74]
Review – almost 3 months post re-do lumbar microdiscectomy; has been a bit stiff and sore last 7-10 days – not sure why; has been doing his [hydro]) as [directed]; no heavy lifting; no referred pain; waking stiff in mornings. Note – he hasn’t seen the physio for a while – few weeks; also he has been using flippers in the pool this week – that may not be advisable – as the flippers increase the length of the ‘lever arm’ and hence put increased strain on the ‘pivot’ which is the lumbar region.
…Tender to palpation of lower lumbar muscles – very wasted musculature also ? right L5/S1 facet joint tenderness.
…book to see physio – I think he needs some muscle release or deep massage or something; also take meloxicam for a week…
[74] Ibid.
Ms Smith departed and his physiotherapy treatment was transferred to Ms Joanne Stannard, who saw him for the first time on 6 November 2014. Ms Stannard made the following notes for her consultation with Mr Collins on this day:[75]
[75] Refer Supplementary T-Documents ST1/52&53.
…Presents today 3 months post op. Reports constant central THx to Lx pain, described as 2/10. Nil further radicular signs.
Has done VVCS pain [counselling] for CBT. Feels like it works to a point.
Current physical level – Walks 1/2km 4 times a week
Hydrotherapy 4 times a week
Has basic rehab program consisting of core ex and stretches – done every 2nd day.
Not jogged/ran since injury in Feb.
…AGG – Prolonged positions
EASES – Stretches
PAIN RELIEF – Tramadol slow release once a day
Meloxicam (NSAID) once a day
Panadeine Forte PRN nocte
…SHX – Works in command post as a watch keeper, clerk. Mainly sitting. Has sit to stand set up.
..Discuss physiotherapy role in helping facilitate active self Mx and a graduated return to activity program – Cycling and PT.
Discuss members goals for physio – member states he does not know what he can achieve.
Basic physio goals-
1. Help relieve pain
2. Become stronger through the core
3. Return to cycling
…Member has some [definite] yellow flags to be aware of however is open to talking about the concept of central sensitisation. Member describes fear avoidance characteristics – admitted he was scared of back – not sure what to expect. Feels based on his MRI he is likely to have recurrent episodes of back pain. Unsure of his career in RAAF and what he will do next year.
…A// Chronic LBP – combination of deconditioning and multiple yellow flag factors to consider
Ms Stannard treated Mr Collins again on 20 November 2014; at which time she noted as follows:[76]
Reports no changes to back, continues to have a 1-2/10 constant low back pain. Has attended core class twice now, bit of discomfort during and after but feels the benefit of exercise.
Harley comments that he feels he might benefit from another MRI – feels that there might be something else contributing to his pain. Also briefly comments he has been researching into further surgical options that may be of benefit to him eg disc replacements.
Currently he feels he is self managing and pacing his exercises fine [with daily pool exercises and daily walking and weekly core classes]…declined wanting to get back into cycling or any other form of ex.
…I attempted to challenge Harley’s thinking with discussion of central sensitisation and the lack of benefits of imaging and further surgery.
Discuss with case manager on going CBT?
E//Member although appeared open to conversation I don’t think was overly receptive to the changes of thought. I feel would benefit from further CBT input…
[76] Refer Supplementary T-Documents ST1/51&52.
On 1 December 2014 Ms Sullivan spoke to Mr Collins by telephone and noted as follows:[77]
… States pain of 1-2/10 on bad days. Pain comes in waves with no particular activity preceding.
Attended 8 appointments with Scott Bevis, Psychologist, and has finished sessions with him. Found them beneficial.
…Further action: Review with SMO/Physiotherapist outcome of the report noting Physiotherapist impression that Member would benefit from further CBT.
[77] Refer Supplementary T-Documents ST1/51.
On 9 December 2014 Mr Collins saw Dr Berrill who made the following clinical note:[78]
…Review re back – now 5 months post re-do lumbar microdiscectomy – L4/5; back still a bit stiff and sore in the morning and if he is on his feet a lot – but coping really well – really self-directed exercise program – with physio oversight – frequent – see notes; his exercise program is mainly pool based – he is in the pool for an hour at least every day – doing deep water walking/running and other exercises. [Still] needing daily meloxicam and once daily SR tramadol 100mgs-mane; note – he had a series of [aphthous] ulcers 2 weeks ago – hadn’t had them for a while – OK now; worried about being on medications for so long…
[78] Refer Supplementary T-Documents ST1/50&51.
Mr Collins met with Ms Sullivan on the same day and she noted that Mr Collins had advised her that his current pain levels, while he was sitting, was 1/10, and on rising in the morning was 3/10.[79] He told her he felt “a little bone-on-bone in disc”. Mr Collins advised Ms Sullivan he was “self-managing” and “felt comfortable with the pain strategies recommended by Mr Bevis”.
Injury details sheet submitted by Mr Collins claiming “mental illness due to pain”
[79] Refer Supplementary T-Documents T1/50.
On 9 October 2014 Mr Collins submitted an injury or disease details sheet signed by him listing the injuries or diseases as, “middle and lower back”, “left leg”, and “mental illness due to pain”.[80] In relation to the last injury, he described the signs and symptoms as “sleep loss and behavioural changes due to pain”. On this form, Mr Collins stated as his belief as to the cause of the injury or disease or the aggravation of it as follows:
…
I believe that the continued use of the marching drums and bass drums heavily contributed to initial disc bulge which occurred in 2009. The subsequent return to a kitchen environment which is very labour intensive in 2014 I believe also heavily occurred to another disc bulge and subsequent disc deterioration leading into a second spinal operation. Since the first disc perfusion in 2009 I have married and have a son, when I was single my pain management plan was simple and did not effect anyone else, now with the second disc perfusion in 2014 the added pressures of having to provide for a family and also raise and care for a toddler have heavily contributed to a mental illness of depression, at times I feel useless and unable to help around the house, plus being in a constant state of mild level of pain means that I at times lash out and small details effect me more. I find myself angry at times at my son for no reason and this also contributes to my overall feelings of depression and uselessness.
[80] Refer T-Documents T15.
In answer to a question on this form “when did the injury happen (if applicable)”, Mr Collins wrote:
The first occurrence of spinal injury was in 2009.
The second major occurrence was in MAY 2014.
Dr Carter was provided with further information and asked to confirm his medical opinion. On 10 October 2014 Dr Carter concluded as follows, in relation to the injury of “invertebral disc prolapse”:[81]
In terms of linkage to service there is probably contribution related to repetitive percussion/carrying on clinical grounds. However, he does not appear to meet the requisite cumulative Load-Factor (300 000) from the SOP criteria for the Balance of Probability (if non-operational).
[81] Refer T-Documents T17.
In relation to the condition of “Hemivertebra (T12) with Scoliosis”, Dr Carter considered it to be a congenital condition and unrelated to service.
Liability decision by delegate of the Commission in respect of physical injuries
On 6 November 2014 a delegate of the Commission made a liability decision in respect of Mr Collins’s physical claims. The decision stated that liability was:
(a)accepted for the condition of “intervertebral disc prolapse L5/S1” with effect from 2 June 2009. The “head of liability” listed for this injury was “s 27(b) Arose out of was attributable to service”. The Hypothesis Code was listed as 100304 and the factor as “carrying of lifting loads”. The related service was marked as “peacetime service”. It was recorded as not being a “s 30 aggravation” or not being a “sequela”;[82] and
(b)declined for the other claimed condition of “Hemivertebra (T12) with Scolosis”.
[82] Refer T-Documents T20/49.
No reference was made to the condition referred to by Mr Collins on the injury or disease details sheet form dated 9 October 2014 of “mental health issues”.
Injury or disease details sheet submitted by Mr Collins for depressive disorder
On 12 November 2014, Mr Collins submitted an injury or disease details sheet which described a single injury or disease of “Depressive Disorder”.[83] The signs and symptoms were described as “a prominent and persistent disturbance in mood characterised by depressed mood or markedly diminished interest or pleasure in all, or almost all, activities”.
[83] Refer T-Documents T21.
Mr Collins stated the contributing cause of the injury to be:[84]
Due to my ongoing medical condition of an Intervertebral Disc Prolapse at L5/S1. I believe that the service has caused or contributed to this injury as stated in the Statement of Principles for Depressive Disorder No.27 of 2008 factor 6. Para (a), sub para (ix) “having chronic pain of at least three months duration at the time of the clinical onset”.
Under the definitions of a medical condition specific to my Intervertebral Disc Prolapse I believe as my condition is neurological it has caused symptoms consistent with depression as a direct physiological consequence.
The first recorded case of my minor depressive state is highlighted in my medical PM 105 dated 27 MAY 14, in this record the medics recorded my feelings of pain and frustration over my situation. Records of my depressive state are also recorded in subsequent PM105’s dated 30 JUN 14, 09 JUL 14, 23 JUL 14. Further medical evidence of suffering from a moderate depressive disorder is highlighted in the questionnaires dated 24 JUL 14.
[84] Ibid.
New claim submitted for conditions of “asthma” and “depressive disorder”
On 5 December 2014 Mr Collins signed a claim form seeking compensation in respect of the claimed conditions of “asthma” and “depressive disorder”.[85]
[85] Refer T-Documents T24.
An injury and disease details sheet dated 5 December 2014 stated that the injury of “depressive disorder” happened on 27 May 2014 and that Mr Collins first noticed signs or symptoms on that day.[86] This details sheet stated that Mr Collins first received medical treatment for his condition on 24 July 2014.[87] The treating doctor was listed as Dr Berrill and the treatment was listed as “referral to psychologist, K10 test, DASS test”.[88]
[86] Refer T-Documents T25.
[87] Refer T-Documents T25/62.
[88] Ibid.
Dr Berrill completed the medical section of the details sheet.[89] Dr Berrill stated as the medical diagnosis: “Acute adjustment disorder with depression & anxiety” and the bases for her “confirmed” diagnosis was stated as follows:[90]
Clinical assessment by his treating MD (Senior GP) with diagnosis made on clinical assessment & results of clinical assessment tools K10 (28) & DASS – Depression (17) (moderate) anxiety (20) (extremely severe) & stress (25) (moderate).
Referral to VVCS & saw psychologist for several CBT based consultation.
Psychologist findings concurrent with diagnosis.
Treatment completed September 2014
No medications/current self-management.
[89] Refer T-Documents T25/63.
[90] Ibid.
Dr Berrill stated on this form that Mr Collins first consulted her about this injury on 24 July 2014 and that this was also the approximate date of onset of the injury based on “available notes”.
Evidence of Dr Wasim Shaikh, psychiatrist
An arrangement was made for Mr Collins to be assessed by a psychiatrist, Dr Wasim Shaikh, on 20 January 2015. Dr Shaikh issued a “medical assessment” report dated 4 February 2015.[91] He stated that a mental state examination of Mr Collins did not reveal the active presence of a significant psychiatric disorder. He concluded:
…
From a psychiatric perspective, although Mr Collins reports some emotional liability and lack of self-esteem, he does not have enough symptoms to justify any psychiatric diagnosis. His cognition is good, his sleep is unimpaired, his appetite is reasonable, and so is his self-care. The reason for reduced socialisation is his wife’s pregnancy and his own physical complaints. He has been able to continue exploring business ideas, read books, and swim on a daily basis. Mental state examination did not reveal significant psychological distress.
[91] Refer T-Documents T31.
Evidence of Dr Berrill at the hearing
Dr Berrill was called to give evidence at the hearing. Dr Berrill said that she had practised as a general practitioner for about 30 years. Dr Berrill indicated that she had some experience in the area of psychology arising from “on-the-job training” with handling a mental health case load and by having undertaken some professional development courses in this area.
Dr Berrill described the K10/DASS tests as validated psychological tools that were used as a shortcut to get an overall picture of a patient’s condition.
Upon being questioned at the hearing about the date of onset Dr Berrill had entered onto the medical section of the claim, Dr Berrill conceded that she may have made a mistake with the date.
Original decision by Commission to reject liability for depressive disorder
On 23 February 2015 a delegate of the Commission made a decision to reject liability for Mr Collins’s claimed injury or disease of “depressive disorder”.[92] The delegate relied singularly upon the opinion provided by Dr Shaikh and concluded that there was “no incapacity found”.[93] No reference was made in this decision to the medical opinion of Mr Collins’s treating doctor, Dr Berrill, which was provided with the claim form. Mr Collins sought review of the decision by the Veterans’ Review Board (Board).
[92] Refer T-Documents T34.
[93] Refer T-Documents T34/88.
Statements made by Mr Collins in his submission to the Board
On 19 March 2015, Mr Collins made a submission to the Board seeking reconsideration of the Commission’s decision.[94] He stated as follows:[95]
[94] Refer T-Documents T37.
[95] Refer T-Documents T37/100.
…
I believe that assessors have looked at my condition and seen that I received a spinal operation to fix my overarching back pain and assumed that the operation fixed the problem and hence took away the pain. This sadly is not the case. Whilst the operation performed by Dr Richard Parkinson in late Aug was a success in giving me mobility in my left leg and rescinding the disc Prolapse. It did not relieve me of my ongoing chronic pain. I am still to this day on a various amount of pain medication including:
1) 200 mg Tramadol a day
2) 2225mg Lyrica a day/night
3) 30mg Meloxicam a day
4) 4000mg Panadol [Osteo] a day
5) 5mg Endone with flare up
…So while the operation was a moderate success, it did not relieve my pain nor return me back to a functional defence force member. So to date I have been living in varied amounts of pain since MAY 2014.
…I believe that Dr Shaikh did not ask the appropriate questions related to my condition. I told him about my pain and my conditions plus all the struggles I am going through and yet when I read the report he states that the reason for my reduced socialism is due to my wife’s pregnancy and my own physical complaints.
Mr Collins further stated that he had only mentioned his wife’s pregnancy to Dr Shaikh to convey a concern that he would not be able to hold his child for long due to his back pain. He also said that it was not true that his sleep was unimpaired, as stated by Dr Shaikh; and that, “I take my evening medication to aid in my sleep, but this still does not always work as expected, I do spend some nights up till the early morning reflecting over my condition…”[96]
[96] Refer T-Documents T37/101.
Mr Collins also stated as follows:[97]
…I first presented to the RAAF Base Medical centre in MAR 2014, with the worst of the pain continuing until the spinal operation in late AUG 14.[98] In this time I did not fully understand what was happening as I have never experienced a depressive episode before. The constant pain and the overarching uncertainty of what was going to happen affected my mental well-being.
…The onset of my injury happened early into the year of a new posting, subsequently I was moved from workplace to workplace to accommodate my injuries. This constant moving made it difficult to maintain any social interactions with co-workers as I was unsure how long I would be in that specific workplace before a more permanent decision would be made. This [combined] with the constant pain altering my priorities, meant very little social interaction was being made.
…In the early stages of the onset of my injury it was difficult to convey onto managers and supervisors that I was unable to perform the duties expected of an able bodied person. Not all supervisors are trained on how to manage medically injured subordinates, due to their own personnel experiences many believe that your injuries are not as serious as you make them out to be. Before a medical diagnosis through an MRI was made in JUL 14 it was difficult to convey to others just how difficult living with pain was/is for me, this made working in my initial workplace difficult. It was straining to work in an environment where few people believe your condition and question your intentions. I have since moved from the workplace to somewhere more understanding…
[97] Refer T-Documents T37/101&102.
[98] Mr Collins gave evidence that the references to 2015 in this submission were typographical errors and that they were intended to be references to 2014. The Tribunal accepts this evidence, particularly noting the date of the submission being 19 March 2015.
Examination by Mr Fredrick Phillips, consultant orthopaedic surgeon
Mr Collins was examined by Mr Fredrick Phillips, consultant orthopaedic surgeon, on 15 June 2015.[99] Dr Phillips recorded the following history in his report:
…[the discectomy in August 2009] led to resolution of the left leg pain and eventually he did not require any analgesics.
He noted the odd twinge in his back particularly after stressing the back and he was told that this was due to “facet joint injuries”.
Sometime later in Wagga Wagga when doing marching drills and jumping, he severely aggravated his low back and required one or two days off work.
In 2014 he returned to cooking duties after about six years. He felt that lifting and twisting, aggravated his low back and required one or two days off work.
He does not recall a specific injury, simply that one day he felt stiff in his back and when examined he was noted to have restricted movement of the left leg (presumably straight leg raising). MRI scan on June 2014 identified a recurrent disc protrusion at L4/5 on the left leading to surgery…
Following surgery the leg symptoms again improved however there has been a continuum of low back complaint.
The low back complaint seems to be equally related to the areas of the lower thoracic spine and the low back. This has limited his employment possibilities…
[99] Refer T-Documents T48.
Dr Phillip was asked to provide an opinion about whether Mr Collins had any other conditions which impacted on his level of impairment. Dr Phillips answered as follows:
In my opinion he may have a depressive component to his impairment. Assessment of this is outside my area of expertise.
Dr Collins also stated that he considered there was a “probably depressive component contributing 30% to his whole impairment and the mechanical low back pain secondary to degenerative disc disease is contributing 70%”.
Evidence of Professor Dinesh Arya, specialist psychiatrist
Mr Collins was examined by Professor Arya on 6 August 2015. He prepared a medical report with the same date.[100]
[100] A copy of this report was lodged with the Tribunal by Mr Collins’s representative on 15 November 2016.
Professor Arya reported that Mr Collins’s back pain “did improve” after the microdiscectomy in October 2009; he experienced a recurrence of pain in his back in mid-2014, resulting in another microdiscectomy; and that “since then he has continued to experience some pain in his back”.
Professor Arya reported:
By mid-2014, Harley had also started experiencing some symptoms of depression. He said that his mood had begun to deteriorate. He had started reflecting on how his life was going and was becoming more and more despondent and hopeless. From being a very active, outgoing and sociable person, Harley was beginning to feel unproductive and unable to do things that he wanted to do at this stage of his life.
The diagnosis provided by Professor Arya was “major depressive disorder” and he recommended that Mr Collins commence on an antidepressant medication.
Claim submitted for “lumbar spondylosis” and “back pain”.
On 13 July 2015, Mr Collins lodged a further claim for the conditions of “lumbar spondylosis” and “back pain”. The Commission made a decision to update the description of the injury for Mr Collins’s previous accepted back claim from “Intervertebral Disc Prolapse L5/S1” to “Intervertebral Disc Prolapse at L4/5 and L5/S1”.
Evidence by Dr Scott Chambers, consultant psychiatrist
Dr Chambers, consultant psychiatrist, examined Mr Collins on two occasions on 27 April 2017 and 11 May 2017. Ms Patricia Gregory, Mr Collins’s wife, was present for the examinations. Dr Chambers issued a medical report dated 24 May 2017. Dr Chambers was not called to give evidence or to be available for cross-examination at the hearing.
Dr Chambers diagnosed Mr Collins as having a presentation which was most consistent with a “major depressive disorder with a differential diagnosis of an adjustment disorder with depressed mood”. Dr Chambers considered that Mr Collins’s depressed mood had developed in the context of his back injury with the development of persisting pain and physical limitations.
Dr Chambers considered that the date of clinical onset appeared to have been between April and October 2014, after he re-injured his back and began to experience increasing pain and physical limitations. Dr Chambers observed:
He began experiencing a persistently lowered mood with associated depressive symptoms including social withdrawal, weight gain, anhedonia, irritability, self-critical thoughts and low self-esteem. There were changes to his sleep pattern and brief suicidal thoughts.
Dr Chambers considered that Mr Collins’s range of symptoms was most consistent with the criteria for a “major depressive disorder” and that he met the criteria for major depressive disorder with “five or more of the symptoms for a period of time greater than two weeks”. Dr Chambers indicated that the date of onset “appeared” to have been “between April and October 2014 (after he re-injured his back and began to experience increasing pain and physical limitations)” but the exact date was “unable to be determined”, in answer to a question asked of him about whether Mr Collins met the requirements of the factor referred to in s 9(1)(k) of the SOPs No.84.
Discharge from service
On 11 October 2015, Mr Collins received a notice of termination from service with the ADF on the basis that he was found to be medically unfit for service.[101] Mr Collins’s date of discharge was postponed and he was finally discharged in June 2016.[102]
[101] Refer T-Documents T25.
[102] Refer T-Documents T11/82.
Statement by Mr Collins’s wife
Ms Gregory provided a written submission to the Board dated 4 August 2015 (noting this was nine months after Mr Collins lodged his claim). Ms Gregory stated that she found that Mr Collins “is distressed with pain or the idea of it” and has “a hard time snapping out of it”. She said that Mr Collins would show this distress by “snapping” at their three year-old-son; withdrawing by “entering the digital world”, and by asking her (albeit in a joking way) “not to leave him”.
Ms Gregory stated that to those who knew her husband, it was apparent that he had a low level of constant pain due to his impairment and he would get distressed when he did or anticipated doing physical activity. She said she had noticed that Mr Collins’s memory had “decreased” since the pain became worse. Ms Gregory said he was a “smart guy” and never had problems with his memory previously. She gave an example that when she had asked him to do something, that he had forgotten it by the end of the same day.
Ms Gregory said Mr Collins found it a challenge to work with people, whereas before the pain (i.e. in Wagga Wagga and Canberra) he had many work colleagues and was quite social. She said he was “quite short tempered” and his ability to talk things through with his children was severely diminished when he was having a “level 2 or above” day. She said that he had withdrawn from social activities outside of the family and did not seek socialisation of any sort, without it being mandatory. Ms Gregory stated that “here in Darwin since the pain started and he began to get depressed, his social life is non-existent”.
Ms Gregory stated that Mr Collins became more distressed when she had a “down day”, whereas he used to be “a rock of support”. She said he could not control his mood and temper in the way he used to be able to prior to the onset of pain in 2014.
CONSIDERATION
Did Mr Collins suffer from any psychological or psychiatric conditions?
There was common ground between the parties that Mr Collins had a “depressive disorder”. Mr Collins contended that he developed a “major depressive disorder”.[103]
[103] The Commission contended in its Statement of Facts, Issues and Contentions (Commission’s SFIC) that the relevant psychiatric condition for consideration in this application was “depressive disorder”. The Commission acknowledged that the Board had also considered the possibility of Mr Collins having developed an adjustment disorder. The Commission referred the Tribunal to the report of Dr Chambers dated 24 May 2017, specifically, Dr Chambers’s opinion that Mr Collins’s symptoms were more consistent with a diagnosis of depressive disorder, rather than adjustment disorder. Mr Collins contended at the hearing that he suffered from the condition of “major depressive disorder”.
The Tribunal notes that Dr Berrill’s diagnosis of Mr Collins’s condition was that he had suffered from “acute adjustment disorder with depression & anxiety”. The Tribunal notes that Dr Berrill is not a specialist in psychiatry, nor is she a registered psychologist or clinical psychologist. Dr Berrill’s diagnosis differed from the final diagnoses provided by three psychiatrists who examined Mr Collins, albeit after he submitted the claim in respect of his psychological or psychiatric condition. Subject to the other qualifications already mentioned, the Tribunal is inclined to place greatest weight on the evidence of the experts who have specialist knowledge and qualifications in the area of psychiatry and psychology.
Dr Shaikh, an expert psychiatrist engaged by the Commission, concluded that an examination of Mr Collins on 20 January 2015 did not reveal that he was suffering any significant psychological distress or from a psychological or psychiatric condition. Consequently, Dr Shaikh did not make any diagnosis. The Tribunal notes that Mr Collins had made earlier complaints about Dr Shaikh’s manner during the examination and asserted that he had not recorded in his report a full history of the matters explained by Mr Collins during the examination about his experiences of pain.[104]
[104] Refer T-Documents T37.
Professor Arya, Mr Collins’s treating psychiatrist, first examined Mr Collins on 6 August 2015, one year after the claimed date of clinical onset of this condition. He diagnosed Mr Collins as suffering from a “major depressive disorder” but the report does not express a view as to the date of clinical onset of this condition.
Another psychiatrist, Dr Chambers, examined Mr Collins in April 2017, over two and half years after Mr Collins claimed that he developed a psychological or psychiatric condition. Dr Chambers diagnosed Mr Collins with “major depressive disorder with a differential diagnosis of an adjustment disorder with depressed mood”. Dr Chambers stated that Mr Collins’s presentation was “most consistent” with the former diagnosis.
Dr Chambers stated that the basis for his diagnosis of “major depressive disorder” was that Mr Collins had “five or more of the symptoms for a period of time greater than two weeks” seemingly in reference to the meaning of “major depressive disorder” which is defined in Schedule 1 to the SOPs No.84, as reproduced below:
major depressive disorder (incorporating major depressive episode) means a disorder of mental health meeting the following diagnostic criteria (derived from DSM-5):
(a)Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (i) depressed mood or (ii) loss of interest or pleasure.
(i)Depressed mood most of the day, nearly every day, as indicated by either subjective report (for example, feels sad, empty, hopeless) or observation made by others (for example, appears tearful).
Note: In children and adolescents, can be irritable mood.
(ii)Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation).
(iii)Significant weight loss when not dieting or weight gain (for example, a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. (In children, consider failure to make expected weight gain.)
(iv)Insomnia or hypersomnia nearly every day.
(v)Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down).
(vi)Fatigue or loss of energy nearly every day.
(vii)Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
(viii)Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
(ix)Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
(b)The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
(c)The episode is not attributable to the physiological effects of a substance or to another medical condition.
Note: Criteria (a)-(c) represent a major depressive episode.
(d)The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
(e)There has never been a manic episode or a hypomanic episode.
Note: DSM-5 is also defined in the Schedule 1 – Dictionary.
The focus identified for the counselling with a psychologist was on “chronic pain”.[116] This counselling was later described at various times as providing Mr Collins with some strategies to help him to cope with or manage his pain, including a “diagnosis (or provisional diagnosis)” provided by Ms Lawson, psychologist on 17 July 2014 as “chronic pain – stress management/supportive counselling”.[117]
[116] Refer paragraph [64].
[117] Refer paragraph [71].
Mr Collins presented at the health service at the Darwin base on 23 July 2014 indicating that he was “feeling tired & depressed”, experiencing headaches, having had “little sleep”, needing a prescription of analgesics and requesting to be referred to a psychiatrist.[118] On the next day, after a good night’s sleep and having purchased a new bed, he attended upon Dr Berrill.[119] He indicated he was happy in his new position but he admitted to feeling depressed and anxious about his back and his career. Dr Berrill noted there were no issues at home for Mr Collins and she assessed him as being at “no risk” because he had interests and plans that did not involve the ADF. Dr Berrill observed that there were no overt features of anxiety or panic disorder. Dr Berrill did not prescribe any anti-depressant medication to Mr Collins, nor refer him to a psychiatrist at that point. She described that the plan was for Mr Collins to engage with a psychologist (for the counselling referred to in paragraph [171]) in the short term.
[118] Refer paragraphs [73].
[119] Refer paragraph [74].
The Tribunal notes that the DASS and K10 psychological tools at this time (i.e. 24 July 2014) were indicative of a moderate level of depression. Curiously though, they also indicated “extremely severe” levels of anxiety which appeared to be completely at odds with Dr Berrill’s recorded observations upon examination of Mr Collins during this consultation. The Tribunal considers that the DASS and K10 test results for this particular date were unreliable and does not to place any great weight on them; other than to confirm that Mr Collins’s mental health was continuing to deteriorate at this point.
The Tribunal is satisfied that Mr Collins’s mental health had not reached a level at this time, where it could be said that he was suffering from a depressive disorder. It is acknowledged by the Tribunal that Mr Collins’s mental state was certainly unsettled or disturbed; most likely in anticipation of the second spinal surgery he was about to have the following week.
The impression of the Tribunal from an analysis of the clinical and rehabilitation notes is that after the surgery on 1 August 2014, Mr Collins’s mental health improved slightly. He was no longer experiencing any leg pain (sciatica) and in that regard, the operation was a success. He was enjoying his duties at work and he was due to be trained to undertake watch keeper duties, which he seemed happy about. He felt supported by those around him in ABCP, which was a significant change from his previous posting in the kitchen where he felt unsupported. He had started the counselling with Mr Bevis and there were reports made by Mr Collins that he found this beneficial, to a point.
Although the Tribunal does not place a great deal of weight on the results of the DASS testing, the Tribunal notes that Mr Collins’s results from testing carried out on 1 September 2014 and again on 5 September 2014 had reflected an improvement in his mental state. There were references that the pain had settled or had reduced to low back pain, although he still reported stiffness in the mornings.[120] Throughout this time though, Mr Collins was taking significant pain medication,[121] and undergoing extensive physiotherapy and counselling to control the pain. Mr Collins completed the program of counselling in September 2014. Over this period (i.e. in September 2014), the Tribunal does not consider that Mr Collins’s symptoms were at a level where he was able to be diagnosed with having developed a psychological condition.
[120] Refer paragraphs [79], [83] and [83] of these Reasons for Decision.
[121] Refer T-Documents T72/262.
However, Mr Collins’s symptoms changed again, significantly, in October 2014. There was a report on 17 October 2014 that in the previous 7 to 10 days he had been “a bit stiff and sore”.[122] The Tribunal infers from this notation that Mr Collins’s levels of pain had increased again. There was a discussion with Dr Berrill to attempt to identify what had caused the increase in pain. Dr Berrill referred Mr Collins back to physiotherapy for a manipulation and it was recommended that he take Meloxicam for a week.
[122] Refer paragraph [86].
On 6 November 2014, Mr Collins attended a consultation with Ms Stannard. By that time, a clinical record indicates that Mr Collins had reported his pain as “constant THx and Lx pain described at 2/10”. By this time, the Tribunal notes that Mr Collins was still taking Meloxicam, Tramadol, and Panadeine Forte at night. The impression the Tribunal got from this note was that Mr Collins was resigned to a view that there would be limits as to what he could achieve through physiotherapy; and specifically, he was not open to progression of his exercise regime to different types of exercises beyond those he was carrying out at that time.
The note for Mr Collins’s subsequent visit to the physiotherapist on 20 November 2014 indicated that he was fearful of his back and that he did not know what to expect, other than he was likely to have a recurrent episodes of back pain. The physiotherapist sought to resurrect psychological counselling for Mr Collins.[123]
[123] Refer paragraphs [88] and [90].
Based on this history, the Tribunal considers that Mr Collins’s symptoms and mental health significantly deteriorated after his pain increased again on about 7 October 2014; and reached a point where he was showing signs of feeling defeated by it by the time he saw the new physiotherapist on 6 November 2014. The Tribunal finds that on 6 November 2014 Mr Collins was resigned about what he would be able to achieve, when the new physiotherapist sought to establish goals for his ongoing treatment. Mr Collins had been experiencing heightened levels of pain since 7 October 2014 despite having had the second surgery intended to offer him relief. Mr Collins remained on extensive pain medication including Tramadol, Meloxicam and Panadeine Forte.
For these reasons, the Tribunal considers that the date of clinical onset of Mr Collins’s “major depressive disorder” was on 6 November 2014. This is broadly consistent with the medical opinion provided by Dr Chambers. Dr Chambers stated that although he could not indicate a precise date, the clinical onset of Mr Collins’s major depressive disorder “appeared” to have been between April and October 2014. The finding by this Tribunal that the date of clinical onset was on 6 November 2019 falls outside of this time frame, but only but a negligible margin.
Does at least one of the factors prescribed in s 9 of the SOPs No.84 apply to Mr Collins? Specifically, did Mr Collins have “persistent pain” for at least six months before the date of clinical onset of this condition and if not, do any other factors apply?
The parties contended that the Tribunal should focus attention on the factor referred to in s 9(1)(k) of the SOPs No.84. This factor will apply if Mr Collins had “persistent pain” for at least six month before the date of clinical onset of his major depressive disorder.
As mentioned above, the Tribunal has found that the clinical onset of this condition occurred on 6 November 2014. This means that the Tribunal must decide whether Mr Collins experienced persistent pain for the period 5 May 2014 to 6 November 2014 (relevant six-month period). The meaning of “persistent pain” as defined in the SOPs No.84 is set out in paragraph [9] above.
Mr Collins contended that his pain fit the description of “frequent, severe, intermittent pain” as referred to in paragraph (c) of the definition of “persistent pain”. Mr Collins contended that “from 2009, after the first operation until he reinjured his back in 2014” he was “experiencing almost continuous pain at a level of 2/10”.[124] The Tribunal is only required to make a finding about whether (or not) he had “persistent pain” for the relevant six-month period.
[124] Refer last page of Mr Collin’s SFIC.
The Commission contends that Mr Collins’s pain was not at a sufficient level to meet the threshold requirements of the definition. Specifically:[125]
[37]The respondent contends that the applicant has not suffered from persistent pain for 6 months in the period leading up to that date [24 May 2014] of clinical onset. The applicant’s back has been variously described in the service medical records as ‘niggling’ (3 October 2013 – T72/259) and ‘on and off’ (14 April 2014 – T72/261) rather than continuous/almost continuous/frequent/severe, intermittent pain, as required by the SOP. The respondent also refers to the Physiotherapy records at T72 which reflect the applicant’s variable pain as opposed to persistent pain. As one example, the entry for 13 November 2013 cites LBP (low back pain) but the entry for 3 December 2013 only two weeks later, records “back has been good” even though the applicant had been packing and moving (see T72/300).
[38]The respondent further contends that the applicant’s claim for pain cannot be categorised as causing interference with his usual work or leisure activities or activities of daily living as required by the definition of “persistent pain” in the SOP, as the applicant was by and large, continuously working in the period leading up to the date of clinical onset of his depression.
[125] Refer paragraph [37] and [38] of the Commission’s SFIC.
The definition of “persistent pain” in Schedule 1 to the SOPs No.84 imposes a number of threshold requirements for the definition to be met, namely:
(a)at least one of the following descriptors must apply: the pain over the relevant six-month period must have been “continuous”, “almost continuous” or “frequent, severe, intermittent pain”; and
(b)during the relevant six-month period, the pain must have been of a level to cause interference with usual work or leisure activities or activities of daily living.
The definition of “persistent pain” contains the following qualification. The reference to pain in the definition means pain, “which may or may not be ameliorated by analgesic medication”. The Tribunal considers that this qualification means that it matters not, for the purpose of applying the definition of persistent pain, that the pain in question is able to be ameliorated by analgesic medication. Particularly in light of the beneficial nature of the legislation (i.e. being workers’ compensation legislation), it would seem incongruous to measure the level of pain of a person when deciding whether the above thresholds are met, by only considering the pain that remains after the person has taken strong pain medication to “mask” the pain that otherwise exists. The fact remains that the person’s pain, while potentially capable of being “masked” temporarily, is still a feature of the person’s presentation.
In light of such matters, the Tribunal is satisfied that in Mr Collins’s case, since at least 5 May 2014, the pain he experienced may be characterised as “almost continuous pain”. There is no requirement in this descriptor for the pain to be severe. The evidence revealed that the severity of Mr Collins’s pain during the relevant six-month period fluctuated. However, it was ongoing and constant. The Tribunal finds that Mr Collins reported to Dr Berrill on 27 May 2014 that he was “frustrated with the ongoing pain”.[126] The Tribunal finds that the following day he reported that he had “been in pain for so long” and his work in “inflights” had aggravated it.[127] The Tribunal finds that on 11 June 2014, Mr Collins answered a number of questions for a Questionnaire stating that the “average frequency” that he was experiencing back pain was “always”.[128] The Tribunal finds that Mr Collins reported symptoms to Dr Berrill on 9 July 2014 which included “nerve pain, constant mild/severe back pain…”[129] The Tribunal finds that on 9 October 2014, Mr Collins claimed, on the details sheet, that he was in “a constant state of mild level of pain”.[130] There were a number of references in the evidence to Mr Collins’s back pain being worse in the morning, associated with feelings of stiffness. The Tribunal accepts Mr Collins’s evidence that he was required to stretch or to walk around in the mornings until the pain and stiffness eased, before being able to dress and get on with his day.
[126] Refer T-Documents T72/262.
[127] Refer Supplementary T-Documents ST96/323.
[128] Refer paragraph [60] of these Reasons for Decision.
[129] Refer paragraph [65].
[130] Refer paragraph [92].
The Tribunal finds that Mr Collins was taking significant pain medication during the relevant six-month period to reduce the pain he was experiencing.
The Tribunal finds that Mr Collins was put on work restrictions, placing significant limitations on his ability to work, during the six-month period. Mr Collins also encountered a difficult situation at work, as evidenced in the VVCS report on 12 September 2014, when performing duties in “inflights” (as a cook) as he was perceived as not being able to meet the demands of the position. This resulted in the rehabilitation consultant facilitating Mr Collins being transferred to a different work area, where it was regarded that his work colleagues would be more accommodating of his limitations. Mr Collins was referred to eight sessions of counselling between August and September 2014, to provide him with strategies relating to his “chronic pain” (as described by psychologists who were treating him). For significant periods of time, Mr Collins worked reduced hours.
In addition, the Tribunal finds that Mr Collins attended an extensive physiotherapy program comprising of manipulations and an exercise program to release and strengthen his back, as a way of him coping with the pain. Mr Collins underwent a second microdiscectomy on 1 October 2014 to assist in reducing the pain. The Tribunal infers that a person, such as Mr Collins who is still in his 30s, would not embark upon spinal surgery with all of the attendant risks, without having been driven by the need to relieve himself from the back pain he was feeling.
During the relevant six-month period, the Tribunal finds that Mr Collins was unable to cycle and play golf as a form of exercise, which he enjoyed doing; and was limited to doing pool exercises and walking. A clinical note by Ms Stannard on 6 November 2014 recorded that Mr Collins had not been jogging or running since “injury in Feb”.[131] Mr Collins gave evidence, which the Tribunal accepts, that he needed to be careful about the activities he did and to avoid “overdoing it” when he was active, or he would pay the price by feeling very sore afterwards.
[131] The injury happened on 14 April 2014 see paragraph [55] (with a further flare-up in May 2014 – see paragraph [58]), but nothing turns on this inconsistency.
The Commission referred to T-Document T72/259 in support of its contention that Mr Collins’s pain did not fall within the definition of “persistent pain”. This document is a clinical record made by Dr Read following a consultation he had with Mr Collins on 3 October 2013. The Tribunal considers that this evidence does not assist the Commission as it pre-dates the relevant six-month period.[132]
[132] In addition, upon review of this clinical note in its entirety, the Tribunal notes that Dr Read noted (emphasis added), “long term ‘niggling’ back pain” and goes on to refer to an increase in pain “over the last 2/7”. Dr Read also recorded, “on palpitation muscles adjacent to the spine on the left side are tense. Mbr states sciatic pain also”.
The Commission also referred to T-Document T27/261 which was a file note by Private Pinfold recorded on 14 April 2014 that, “Member presents with LBP which has been on and off for 4 years”. The date of this record also pre-dates the relevant six-month period. It is also a vague reference and it is difficult to understand what was meant by it. It does indicate that Mr Collins’s back pain had been a long-standing problem for him, even before the relevant period that the Tribunal must consider. Similarly, the references by the Commission to the clinical notes made by the physiotherapist on 13 November 2013 and 3 December 2013 also pre-date the relevant six-month period.
Looking then to the clinical and rehabilitation notes in respect of Mr Collins for the relevant six-month period, the Tribunal finds that the various references to pain give an impression that Mr Collins remained present, albeit at fluctuating levels with some days being worse than others, for the entire six-month period (or almost all of it). The Tribunal finds that the pain experienced by Mr Collins was rarely at, what seemed to be, at severe or excruciating levels. However, it was at a level that required active daily management by Mr Collins and those treating him during the six-month period.
The evidence suggests that there were times where the pain was reduced by the strong pain medication taken by Mr Collins, as prescribed by the medical practitioners treating him. It was also reduced by Mr Collins significantly curtailing the type of physical activities he engaged in over the relevant six-month period. In particular, after the second surgery, it seemed that Mr Collins pain was much reduced (for a short while at least). However, the Tribunal has taken into account that Mr Collins was heavily medicated at that time, including initially on Endone. He was also on convalescence leave and not active in the way he would have been, had he been attending work. Subsequently, and within a short period of time (i.e. on about 7 October 2014), the pain increased for no apparent reason; other than perhaps because he may have used flippers in the pool. This increase in pain necessitated his treating doctors to increase his medication again and to send him to physiotherapy.
The Tribunal is satisfied that on balance, and taking into account the evidence given by Mr Collins and Ms Gregory as to the impact of the pain on Mr Collins during the relevant six-month period, that Mr Collins experienced “almost continuous” pain. The Tribunal is also satisfied that the second requirement is met in that Mr Collins’s pain was “at a level to cause interference with” (and in fact, did cause a moderate degree of interference with) Mr Collins’s usual work, some of his leisure activities and to a lesser extent, his activities of daily living in the way described in paragraphs [190] and [191] of these Reasons for Decision.
For these reasons, the Tribunal concludes that the factor in s 9(1)(k) of the SOPs No.84 applies to Mr Collins.
Factor referred to in s 9(1)(k) of the SOPs No.84 related to service?
Section 10 of the SOPs No.84 provides that the existence in a person of a factor referred to in s 9 must be related to the relevant service rendered by the person. The Tribunal is satisfied that the “almost continuous” pain suffered by Mr Collins from 5 May 2014 to 6 November 2014 arose from his accepted lower back injury, because there were numerous references in the clinical and rehabilitation notes to Mr Collins having complained of lower back pain, or “LBP” as some practitioners described it. In particular, on 28 May 2014, Dr Berrill recorded that Mr Collins had a “history of chronic lumbar pain” (underling added). Further, on 9 July 2014, Dr Berrill noted that Mr Collins had experienced “a recurrence of severe lumbar pain with (L) leg sciatic May 2014. Clinical signs of recurrence…” (underling added). Also, when Ms Stannard undertook an initial review of Mr Collins when she started treating him on 6 November 2014, she recorded “A// Chronic LBP – combination of deconditioning and multiple yellow flag factors to consider” (underling added).
Accordingly, the Tribunal concludes that the factor referred to in s 9(1)(k) of the SOPs No.84 relates to Mr Collins’s service, as required under s 27 of the Act, as it arose from the physical condition which was the subject of an accepted claim.
CONCLUSION
For the reasons set out above, this Tribunal sets aside the decision under review and in substitution, decides that the Commission is liable under s 23 of the Act in respect of Ms Collins’s condition of “major depressive disorder” for which the date of clinical onset was 6 November 2014. This matter is remitted to the Commission for calculation of the amount payable to Mr Collins as a consequence of this decision.
202.
203. I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.
[sgd]........................................................................
Associate
Dated: 29 March 2019
Date of hearing: 9 May 2018
Advocate for Applicant: Mr Bruce Turner,
Bayside Regional Veterans’ Center
Advocate for Respondent: Mr Joe Lenczner of counsel
Solicitor for Respondent: Moray & Agnew Lawyers
Key Legal Topics
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