Colquhoun and Comcare
[2006] AATA 580
•30 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 580
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos S2004/201 and
GENERAL ADMINISTRATIVE DIVISION ) S2004/202 Re TRISHA COLQUHOUN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President DG Jarvis and Senior Member R Dunne Date30 June 2006
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision decides that as at 3 March 2006 compensation is not payable to the applicant in respect of the injury on 2 November 2000, and that the applicant’s employment did not contribute in a material degree to the depressive condition from which the applicant was suffering.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees - review of decision that applicant did not continue to suffer incapacity as a result of physical injury sustained in work incident and that psychiatric disability was not employment related – video evidence – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4 and 14
Bushell v Repatriation Commission (1992) 175 CLR 408
Commonwealth v Borg (1991) 20 AAR 299
Commonwealth v Muratore (1978) 141 CRL 296
Re Hardman and Inco Ships Pty Ltd [2006] AATA 46
Re Liu and Comcare (2004) 79 ALD 119
REASONS FOR DECISION
30 June 2006 Deputy President DG Jarvis and Senior Member R Dunne 1. The applicant, Trisha Mary Colquhoun, was employed by the Child Support Agency from approximately 1998 until her resignation, effective from 22 March 2001.
2. On 15 November 2000, the applicant made a claim for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Act”) in respect of an injury described as “left elbow injury strain” and “complex regional pain syndrome”. The injury occurred on 2 November 2000 when the applicant’s left arm was struck by an automatic-closing sliding door when she was exiting her employer’s premises. On 7 December 2000, liability for “sprain of unspecified site of elbow and forearm (left)” was accepted by the respondent for time off work, initially up to and including 17 January 2001.
3. The following is a chronology of the history of the applicant’s claim subsequent to its initial acceptance.
·6 August 2002 – applicant lodged claim for permanent impairment for “left ulnar neuritis, myofascial strain left elbow forearm”;
·14 November 2002 – respondent determined that the applicant was not entitled to compensation for permanent impairment;
·25 July 2003 – respondent determined that liability would be accepted for recurrence of depressive disorder, secondary to applicant’s left arm injury;
·30 July 2003 – respondent determined that applicant did have a permanent impairment, but that the impairment had not stabilised;
·16 January 2004 – respondent determined that it was not liable for permanent impairment in relation to applicant’s left arm/elbow injury;
·5 March 2004 – respondent determined that, on and from 28 February 2004, it was no longer liable to pay compensation to the applicant for medical expenses and incapacity; and
·7 May 2004 – applicant sought review of determinations made on 16 January 2004 and 5 March 2004.
4. In a reviewable decision of 16 June 2004, a review officer varied the determinations made on 16 January 2004 and 5 March 2004. The determination made on 16 January 2004 was varied to also deny compensation, pursuant to s 24 of the Act, for any psychiatric condition. The determination made on 5 March 2004 was varied to find that, as at 28 February 2004, the applicant’s employment was not contributing to a material degree to any incapacity or requirement for medical treatment and that, from 28 February 2004, compensation was not payable to the applicant pursuant to ss 16 and 19 of the Act.
5. On 25 June 2004, the applicant applied to this tribunal for a review of the decision made on 16 June 2004.
6. The applicant was represented by Mr Stuart Cole, of counsel and the respondent was represented by Mr Michael Roder, of counsel. The applicant gave evidence and also called Dr Graham Wright, occupational physician, Dr Neil Crisp, treating physician, and Dr Ann Williams, psychiatrist. The respondent called Dr Nicholas Burke, specialist occupational physician, who gave evidence by telephone, Dr David Cherry, specialist anaesthetist and sub-specialist in pain management, Dr Martin Robinson, neurologist, and Professor Robert Goldney, medical practitioner and specialist psychiatrist. The documents (including supplementary T documents) lodged pursuant to s 37 of the Administrative Appeals Tribunal Appeal Act 1975 (Cth) were admitted in evidence. These included various earlier medical reports and records relating to the applicant. The parties tendered a number of other documents. We have carefully considered all of the oral and documentary evidence before us.
Background
7. A statement of the applicant dated 5 May 2005 was tendered (exhibit A1). This records the following matters, which were not in dispute. The applicant was born on 4 September 1962. She is married and has three children who, at the time of her statement, were aged 22, 20 and 14 years of age. She began working in 1985 and left work in 1989 to have her eldest child. Her father died in October 1990 and her mother in October 1995. She said her mother’s death hit her hard – she had to make a decision whether or not to put her on to life support, and she felt guilty because she did not keep her alive. Following her mother’s death, she was admitted to the Adelaide Clinic in 1996 for a period of approximately four weeks’ treatment and was also treated by Dr Anne Williams, psychologist, for a period of approximately 12 months. In about 1996, she found lumps in her breasts and underwent a double mastectomy in approximately 1998. Complications developed with the cosmetic surgery and she said she ended up having a nervous breakdown, which lasted approximately eight months.
8. In 1998, she obtained employment with the Department of Education, Science and Training, where she remained until approximately March 2000. She then transferred to the Child Support Agency where, on 2 November 2000, she was struck by an automatic-closing sliding glass door. She said in her statement:
“I was going outside through the glass doors for a break. The door slid closed and hit my left arm. … Approximately 15 minutes after this happened my arm became bruised. I told my boss … what had happened and I was taken to St. Andrew’s Hospital. I received treatment and some x-rays were taken. Nothing was broken so I thought that everything would be ok. I was driven home from hospital by a work colleague. The next day my left arm, shoulder and hand were worse and very swollen and bruised and I consulted my general practitioner, Dr Crisp.”
Issues
9. The issues before the tribunal are as follows:
(a) whether the applicant continues to suffer any incapacity for work as a result of the physical injury sustained in the incident on 2 November 2000;
(b) whether the applicant continues to suffer any incapacity for work as a result of a psychiatric condition which was accepted as sequelae to the applicant’s physical injury;
(c) whether the applicant has an entitlement to medical expenses, under s 16 of the Act, as a result of either the physical injury or psychiatric condition;
(d) whether the applicant has an entitlement to compensation for permanent impairment, under s 24 of the Act, as a result of the physical injury or psychiatric condition.
Legislation
10. Section 14(1) of the Act provides for compensation for injuries, and provides as follows:
“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
11. Section 4(1) of the Act includes definitions of the words “injury” and “disease”, which apply unless the contrary intention appears. These definitions are as follows:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
Evidence
Evidence of the Applicant
12. In her witness statement, the applicant said she lodged a claim with Comcare for compensation for her injury and was absent from work for a number of weeks, returning on 17 January 2001. However, she found that she could no longer use a computer proficiently, and she decided to seek other employment that did not require computer skills or sitting for long periods of time. She resigned from the Child Support Agency on 23 March 2001 and applied for a position as a sales representative with Initial Health Care at Thebarton. The position did not involve sitting at a desk or working at a computer for extended periods. She worked there for about 12 months. However, in the final month of working there, her employer introduced a new product that sales representatives had to carry around with them to clients. It was heavy and she had trouble carrying it. She was taking more medication to relieve the pain, but in the end gave up and resigned from the position. After about a month, she was offered the position of HR and Finance Manager for “The Red Room”, which was an art gallery, a silver service restaurant and a night club. She continued to consult Dr Crisp. However, the pain in her arm increased and she started taking more and more pain killers. She went to see Dr Anne Williams, psychologist, and a surgeon, Dr Griffin, to discuss the need for surgery on her left arm. Following acceptance of her secondary claim of major depressive disorder, the applicant was also referred to Dr Ann Williams, a psychiatrist.
13. In her oral evidence, the applicant said that no particular incident or event occurred leading up to July 2003, which gave rise to her major depressive disorder. Dr Ann Williams admitted her to the Adelaide Clinic for treatment and consulted her while she was there. Dr Williams referred the applicant to Dr Graham Wright, whom she first saw when she was in Fullarton Private Hospital. She said that in mid-2003 her left arm still ached. She favoured the arm which caused her to lift her shoulder up, and she suffered from a sore neck and migraines from holding her shoulder up. She said she also held her left arm up, so that it was not hanging all the time because it ached. She used the hand of her right arm with the palm upwards to cradle her left elbow. She said that her elbow hurt when she rested it on a desk, so she used her right hand to keep it up off the desk.
14. She gave evidence that since July 2003, she had found herself to be totally irrational and erratic, and her moods have been “up and down”. In her May 2005 statement (at paragraphs 28 to 30), she said:
“I also got a disabled sticker from Transport SA for my car so that I could park close to the shop. I have trouble pushing a trolley and most of the time I get my son to push it for me. I struggle with ironing and a lot of my housework. I need assistance to do this. I have difficulties hanging out washing, sweeping or vacuuming. I have to rely on my daughter, who doesn’t live at home, to help me. My husband also helps me do the housework as well. I get frustrated when I cannot cook or peel vegetables because of my hand, arm and shoulder. I find it hard to wash my hair. I cannot play sport like I used to. I cannot water-ski, hold a fishing rod, go for a ride on a trail motor bike or go bike riding with my son anymore as a result of my injuries.”
Later, at paragraphs 35, 37 and 38 of her statement, she said:
“My left arm pain continues. Dr Wright told me that the muscle is breaking down and getting worse. … My arm aches and goes to sleep and I get pins and needles. My hand also changes colour sometimes and swells up. … I am constantly aware of my pain. The constant pain makes me feel more depressed. … I also get pain in my neck.”
15. In examination-in-chief, the applicant said that her hand changed colour and swelled up when it pleased. It went cold and took on a motley colour, as it was doing at that moment. Then, in about half an hour, the colour would change again. The tribunal inspected the applicant’s hands in the course of her evidence when they were held palm upwards, but could not discern any appreciable change between the two hands at that stage.
16. The applicant said that, in late 2004, she accepted a position with Adelaide International Raceway. She answered and screened phone calls, did numerical work on a keyboard which only required her to use her right arm, and other duties that her employer wanted her to do. She said that it was not often that she could not attend work because she was being affected by her symptoms.
17. As to her current medication, she said that she took at various times Gabapentin, Prozac, Aladorn, Methadone, Panadeine Forte, Seroquel and Valium. She said her medication costs her between $400 and $600 a fortnight. When asked by Mr Cole whether she saw any of her doctors on an ongoing basis, she said:
“Dr Crisp – When I need to and when I need a prescription…I’d say once a month, maybe a bit more;
Dr Wright – Every 4 to 5 weeks … He checks my arm out … He does strength tests and he also prescribed the Methadone;
Dr Ann Williams – I have an appointment scheduled monthly … She prescribes Prozac and she also prescribes the Seroquel … I basically sit down and I can talk to her about how I’m feeling … .”
18. Mr Cole referred the applicant to her most recent non-economic loss questionnaire (exhibit A2, T117, at pages 232 – 238) and to the comments she made in it in February 2004 concerning her permanent impairment claim. Subject to some qualification about some of her comments, the applicant agreed that everything else in the questionnaire, recorded in February 2004, was correct.
19. In cross-examination, the applicant said she was unaware that, during the hearing, she had kept her left arm still and her left fist clenched. However, she said that she now used her right hand for most things. When she was away from the hearing room, she would keep her left arm as still as she could because it hurt. She said that her left arm ached and, when away from the hearing room, she would favour her left arm.
20. When cross-examined about her depression, the applicant acknowledged that she had been treated at the Kahlyn Private Hospital in early 1996 for depression following her mother’s death. She also acknowledged that, in 1996, when she was admitted to the Adelaide Clinic, she was suffering from a nervous breakdown, chronic migraines and chronic leg ulcers. She said the leg ulcers were caused by self-injecting drugs that had been prescribed by her doctor to stop her vomiting when she had migraines. However, she admitted that the account she gave to her doctors as to why she had leg ulcers at the time of her admission to the Adelaide Clinic was not true. She said that she told then she fell down stairs. The applicant also admitted that she was seen by a Dr Burvill, psychiatrist, whilst in the Adelaide Clinic. She said she was having problems with her sons, who suffered from attention deficit disorder, and also her husband, who wanted to separate from her. Under further cross-examination, the applicant acknowledged that, as far back as 1989, she had been complaining to Dr Crisp of weakness in her left arm. She said she had always complained of altered sensation in her left arm, which was caused by migraines. She said that one of the first signs of migraines was weakness in her left hand, not her left arm. Pins and needles would start in her left hand – her thumb, the finger next to her thumb and her middle finger. She admitted that, at the time before her injury in November 2000, she was seeing Dr Crisp on an almost weekly basis for migraines. She would receive an intramuscular injection of the pain-killing drug Maxolon. In addition, she said Dr Crisp “would put in either Morphine or he would put Lithium in or whatever he had available basically”. She then acknowledged that she had been having a weekly injection of morphine or pethidine, or something of that nature for her migraines for about six years. When asked whether she was being injected with Valium in the period prior to her injury, she said it would have been mixed up with the same injection, whatever Dr Crisp put in it. She did not know and never asked – all she wanted to do was to get home and get into a dark room. At the time she was having the injections, she was getting other painkillers on prescription. She was prescribed Panadeine Forte, MS Contin and Maxolon. When asked whether she knew MS Contin was an opiate-based painkiller, she said she found that out afterwards, but at the time did not know what it was and did not ask Dr Crisp. She acknowledged that she had been given prescription Valium as well as injections of Valium, which she said was for her migraine pains. She also acknowledged that she had been having prescription morphine on a regular basis, for several years prior to the work-related incident, for migraines. She also admitted taking other pain-killing drugs, which she said were for her migraines.
21. When it was suggested to her that all the medication he had put to her she had been taking on a regular basis right up until 2 November 2000 when she suffered her injury, the applicant denied that that was the case. She denied that she was addicted to morphine or any other painkillers at the time of her injury. She denied that she was taking drugs of the same type and doses prior to her injury and for the next 12 months afterwards. She denied that, for five or six months leading up to her injury in November 2000, she was generally having morphine-based medication and anti-anxiety tablets on, if not a daily basis, close to a daily basis. When cross-examined about events that took place in the period leading up to her injury, the applicant said that she was unable to recall them. The only events that she could recall were those involving her migraines.
22. Mr Roder then referred to comments made by a Dr Patterson in 1998, whom the applicant had previously consulted, and to his remarks about needle marks on her feet and ankles and numerous burn-like scars on her thighs and right wrist. The applicant said that she was unaware of these comments until she had read the report of Professor Goldney, and was also unaware that Dr Patterson was of the view that she had manipulated him into performing a mastectomy. When cross-examined about a number of other occasions when she presented to her doctors with burns or ulcers of some form on parts of her body, the applicant was generally unable to recall the occasions involved. She denied that she had ever deliberately harmed herself.
23. The tribunal then inspected the applicant’s hand and fingers to see whether any change in colour had occurred since the earlier inspection. The tribunal observed that, if there was any difference between the colour in both hands, it was not readily apparent to the tribunal.
24. The applicant acknowledged in cross-examination that in the five months prior to her injury she had attended Dr Crisp on approximately 14 occasions on which she received intra-muscular injections of Morphine or Pethidine or Valium, and she was complaining of migraines on each occasion. Upon further questioning, the applicant acknowledged that, for the next four months after her injury, she continued to consult Dr Crisp with about the same regularity, that is, once a week or slightly more. She also admitted that, in the four months after her injury, on each occasion that she saw Dr Crisp, she would receive an intra-muscular injection of Pethidine or Morphine or Valium. She then said that, for those four months after the injury when she saw Dr Crisp, if she had a migraine she would have complained about the migraine and her arm, and if it was just her arm, she would have complained only about that.
25. In cross-examination about her self-injecting, the applicant said that Dr Crisp had authorised her to self-inject herself with Phenergan and Maxolon. He prescribed the drugs and gave her the syringes and the needles. She said that she had also self-injected herself with Morphine from the time she was about 27 or 28 years old. She said that Dr Crisp was aware that she was self-injecting with morphine. She was also self-injecting with Hypnovel. She said Dr Crisp tried this drug after her injury, instead of using morphine for pain. She said she was also using Hypnovel before her injury for migraines and after her injury for her arm pain and migraines.
26. The applicant was also cross-examined about her employment with the Red Room in 2002. She said she got into a managerial position in June 2002, which she continued until November 2002. Throughout this period she continued to take anti-depressants and painkillers. In 2003, her depression worsened and she was re-admitted to the Adelaide Clinic. She admitted that, prior to her admission, she became estranged from her eldest son, due to a falling out between her son and her daughter, and she had not seen him for some time. She was then questioned about her current injury symptoms. She described tingling in her little finger, her ring finger and her medial finger. The tingling extended down the outside of the fingers, to the tips. She said that, when she was first injured, all the fingers in her hand were tingling. She admitted that, after a month or so, it was only the third, fourth and fifth fingers that continued to tingle.
27. Upon further cross-examination, the applicant indicated that her right arm was now her dominant arm. She could still write with her left hand, but that was about all. She said that she was able to drive to and from work alone. She did use her left hand when she had to with driving, but she predominantly used her right arm. She managed this because her vehicle was automatic and had power steering. When turning, she said she would hold the steering wheel at the bottom and turn with her right hand. She said she wore her handbag on her right arm and smoked with her right hand. With shopping, she would take her young son with her for the majority of the time. She had done this for the past 18 to 24 months. She said that this had only recently stopped. For the past six months her husband did the shopping. Before that, her young son would help her shopping by pushing the trolley. There were occasions when she would go on her own, if it was not a big shop, and she would push the trolley with one hand. If it was a big shop, she would take her son to help. She said she could lift bags with her right hand and her children would help her get things inside. She would hook the bag around her index finger and could carry a litre of milk with her index finger and thumb, for short distances. When opening the door at home, she would open it with her right hand, put the keys in it with her right hand. She said that she could use her left hand, with her index finger and thumb, but would mainly use her right hand. With a plastic tub or bucket, she would often use both hands, but could carry it with her left hand if it was empty. If she had to carry a plate of food, she would so between her thumb and forefinger. She said she was in constant pain most of the time. When asked about combing her hair, she denied telling Dr Martin Robinson that she could not comb it herself. When asked about the amount of her pain medication, she said that she was taking less now because she was on Methadone for her migraines.
The Video
28. Following his cross-examination of the applicant, Mr Roder indicated that he had video surveillance footage that he wished to show the applicant. He said the footage ran for over 2 hours and 20 minutes. It was taken of the applicant and others over a period of 12 days, between 18 June 2005 and 14 July 2005. After viewing the video, the applicant was further cross-examined and she admitted or acknowledged that, during and in the video:
(1) She had her handbag over her left shoulder going in and out of Dr Crisp’s office.
(2) On various occasions throughout the video she had her handbag shoulder strap over her left arm. She later admitted that she carried her shoulder bag over both arms.
(3) As a rule, she would generally smoke with her left hand rather than her right hand.
(4) She was able to open and close her car door with her left hand.
(5) She picked up and held a lamp or lantern with her left hand. She carried it in the palm of her left hand with all her fingers around it.
(6) On occasions she was seen with her arms crossed. Unlike her earlier evidence, her right arm was not supporting the underneath of her left arm.
(7) She carried a steak sandwich in her left hand. Whilst eating the sandwich, she had both elbows pointing on the table so that the point of her left funny bone was on the surface of the table. In effect, she was supporting her weight on the points of both elbows. When asked how she was able to support herself on the points of both her elbows, she said that she had taken medication.
(8) When she was walking around and generally throughout the video, if she was not carrying anything, her left arm and left hand were swinging freely as she walked around.
(9) Generally, when her arms were not swinging freely, she had both her hands in her pockets.
(10) She was gesturing with her left hand and ran her hands through her hair on a couple of occasions.
(11) She held her wallet in her left hand, even when her right hand was completely free. She carried a fairly full shopping basket with both her hands, put the goods into another bag and walked holding the bags in both hands.
(12) She carried an 18 inch clear plastic mail box in her left hand, with the palm of her hand and all her fingers carrying it and supporting it against her body weight.
(13) She used both her left hand and her right hand to steer her motor vehicle when driving. When pressed by Mr Roder on this, she admitted that her evidence the day before was quite wrong.
(14) She carried a bundle of mail and her purse in her left hand. She admitted that she carried her purse in her left hand most of the time. She also admitted that her evidence the day before, that she would only use her left hand if she had no other choice if her right hand was not available, was not true. She also admitted, when questioned by the tribunal, that her evidence on this point the previous day was misleading.
(15) She carried heavy shopping bags, which appeared to be quite full, in both her left hand and her right hand.
(16) She pushed a shopping trolley containing various food items with her two arms. She admitted that she would buy groceries and lunch regularly and would push the shopping trolleys herself, unaided.
(17) She lifted a carton of some 30 cans of Coca-Cola with her left hand and her right hand and placed it into the boot of her car.
(18) She removed a sizeable bag of dog food from her car with her right hand and her left hand.
29. As to her medication, the applicant admitted that she self-injected Midazolam, but denied that she self-injected Phenergan. She acknowledged that she had been admitted to the Western Community Hospital after having a Lithium overdose and that she was warned by nursing staff about manipulative behaviour in an attempt to obtain more drugs.
30. The applicant said that she would meet with Dr Ann Williams, psychiatrist, once every four or five weeks. Sometimes she would cancel an appointment if she did not feel well. She said that she could eat with both hands and was able to drink a glass of water in her left hand. Mr Roder questioned the applicant on the number of neurologists she had been seeing, such as Dr Fewings, Dr Robinson and Dr Cherry. She denied that, when she saw these practitioners, she was deliberately feigning symptoms and pretended to have weakness in her left arm that she did not have.
Evidence of Dr Graham Wright
31. Dr Wright gave evidence that he had seen the applicant as a patient since about July 2003. In his report letter to Dr Ann Williams dated 17 July 2003 (exhibit R2, at page 92), he diagnosed the applicant as having ulnar nerve neuralgia, with proximal symptoms that might be seen as tension myalgia, or might be seen as a wider complex regional pain syndrome. In so doing, he said he was describing pain in the region of the ulnar nerve, inside of the arm and the medial fingers. However, he said he had come to the conclusion that he was not sure what the applicant had and said the diagnosis that was given was not so important because the treatment in both cases was going to be the same.
32. In his report of 10 December 2003 (exhibit A2, T109, at page 214) Dr Wright described the applicant’s injury as ulnar nerve neuralgia, which could be reasonably seen as tension myalgia or as part of a wider complex regional pain syndrome. In addition, she had a persistent depressive disorder which met the criteria for major depressive disorder. However, it was clear from his evidence that he was still uncertain whether the applicant had a complex regional pain syndrome or ulnar nerve neuritis. He noted that he was clearly confused about whether the applicant had medial epicondylitis or lateral epicondylitis.
33. Dr Wright then referred to his letter to Dr Crisp dated 3 February 2004 (exhibit A3, T4, at page 7). He said that, for the purpose of writing the letter, he had last seen the applicant on 3 October 2003, some four months earlier. He said the applicant had described her pain as more severe, that she had significant depressive symptoms, poor sleep, depressed mood and suicidal thoughts. The applicant had reported that, in her entire left arm, there was aching up to the neck, in the hands she had tingling in the medial two and a half fingers, consistent with an ulnar neuritis. She also reported sweating of the fingers at times. Dr Wright agreed that he was still uncertain whether the applicant suffered from a complex regional pain syndrome or ulnar nerve neuritis. However, he said that, in his report to Dr Crisp, he had emphasised the need for the applicant to use her arm and he said that he had conveyed this to her.
34. Dr Wright was then referred to his further report letter, dated 12 March 2004, to the applicant’s solicitors (exhibit A2, T124, at page 248). In his report, he said he thought that the applicant met the conventional diagnostic criteria for a complex regional pain syndrome. As an alternative, she had ulnar nerve neuritis with some complicating myofascial symptoms. He said that he was encouraging an active physical program, which was an essential part of the applicant’s treatment. Dr Wright then said that, between 12 March 2004 and 17 January 2006, he had seen the applicant on some 10 occasions. During this period her medication had been varied from time-to-time. When he saw her on 25 July 2005, he said his assessment was that she had ulnar neuritis. She had symptoms but no signs of a complex regional pain syndrome. The symptoms were change of colour, change of sweatiness and change of temperature. He said that his plan was that the applicant should start Methadone again as the drug most likely to be helpful. However, when he saw her with her husband on 23 August 2005 she reported that she could not take Methadone. Dr Wright said he explained the importance of taking Methadone on a regular basis and her husband agreed to be in charge of her medication.
35. Dr Wright was then questioned by Mr Cole about the surveillance video. He reiterated that, at every consultation her saw her, he emphasised strongly that she had to use her left arm because it was only activity that would actually fix the problem. When he first saw her, he noted that she was not using her hand at all and it took some time for her to understand the need for her to gradually increase the use of her hand, but not to such an extent that it would precipitate pain. He said that, because of her nature, her “catastrophisation”, it was very difficult for her to do this. When asked by Mr Cole whether the applicant had a permanent impairment, within the meaning of the Guide, he said that she no longer had a 30 per cent impairment, but either a zero impairment of a 10 per cent impairment, depending on the interpretation of the term “with difficulty” in Table 9.4 of the Guide.
36. In cross-examination, Dr Wright acknowledged that, throughout July 2005 to October 2005, the applicant reported her pain experience as high. However, he agreed that, according to how she had reported to him, she was in terms of her pain significantly better now than she was at the time when the surveillance video was taken in June and July 2005. Dr Wright agreed that in the video the applicant displayed free and unrestricted physical movements, she was not protective of her left arm in any instance and there was no disability apparent in the video. Mr Roder referred Dr Wright to the non-economic loss questionnaire completed by the applicant in 2004 (exhibit A2, T117, at pages 232 to 238). Dr Wright acknowledged that the answers given by the applicant (and the descriptions given by her about her symptoms) were inconsistent with what he had observed on the video. On the issue of ulnar neuritis, Dr Wright was referred to the report of Dr Fewings dated 30 October 2003 (exhibit A2, T104, at page 182) where he said:
“The history as presented by the above worker [the applicant] re the left elbow injury allegedly sustained in an accident at work on 2nd November, 2000 suggests that it is unlikely that she would have sustained an injury of the left ulnar nerve when she was allegedly struck by a malfunctioning door, it is probable that the door struck her on the lateral aspect of her left upper limb as she was going through the doorway, it is unlikely that she would have sustained a blunt injury to the left ulnar nerve at that time as the nerve is protected by the ulnar groove and is situated on the medial aspect of the elbow which is normally closely opposed to the torso.
The alleged distribution of the left hand symptoms is not that classically accepted as being typical of an ulnar nerve distribution, this in association with the absence of any clinical neurological abnormalities consistent with an ulnar nerve lesion or of any neurophysiological abnormalities would suggest that the above does not have a compressive/ischaemic neuropathy of the left ulnar nerve at the elbow.”
Dr Wright agreed that it was unlikely that the applicant’s ulnar nerve would have been injured, given the manner in which she would have been holding her arm at the time. He also agreed that the alleged distribution of the applicant’s left hand symptoms was not typical of an ulnar nerve distribution. Dr Wright also acknowledged that he would have expected, immediately after the incident, that the applicant would have been complaining of tingling pain in her medial fingers, and that the pain she experienced down the back of her hand would have been quite unexpected in her circumstances. In response to questioning by the tribunal, Dr Wright said that he had never observed any muscle wasting in the applicant’s left arm. When questioned about his impairment assessment as at 10 December 2003 of 30 per cent based on Table 9.4 of the Guide, Dr Wright said:
“She was describing to me she was using the arm very little for activities of daily living. Not using her hand for food preparation, not using the left hand for eating, difficulty dressing, trouble driving, and was looking to have a spinner knob installed on her steering wheel. That is the basis on which I sought to match her history and examination with that 30 per cent level.”
Evidence of Dr Neil Crisp
37. Dr Crisp gave evidence that the applicant had been one of his patients since about 1983. From early on, she suffered from migraine headaches and from about 1989 she reported a left arm weakness in conjunction with migraine symptoms. Dr Crisp said there were a number of occasion that he provided the applicant with medication in a syringe to take home for her to inject in an intramuscular manner. Dr Crisp also said that he could not recall the applicant presenting with any left arm symptoms prior to her injuring her left arm in November 2000. He said his own diagnosis at the time was some local damage causing pain, some damage and irritation of the ulnar nerve and possibly some chronic pain from changes in the spinal cord, together with some psychological and psychiatric input. He said she gave a fairly consistent history of pain in the arm, fluctuating somewhat, but the history of the pain did not vary a great deal according to her emotional state at the time. In relation to the surveillance video, he said it showed that the pain and disability had disappeared or alternatively the chronic pain had reduced to a level that enabled her to cope with routine activities. He said he was unable to determine from the video whether the applicant could cope with harder, more manual activities. He said he last saw the applicant on 13 September 2004 on largely an administrative matter.
38. In cross-examination, Dr Crisp agreed that the video footage did not show any objective evidence of difficulties that the applicant may have had in using her left arm, that there was no evidence of any pain-related behaviour and that she moved her left arm freely and did not appear to be protective of it. Mr Roder then referred Dr Crisp to the applicant’s non-economic loss questionnaire (exhibit A2, T117, at pages 232 – 238). Dr Crisp agreed that, for the most part, what the applicant described in the questionnaire was inconsistent with what was shown in the surveillance video. He agreed that the video did not show any particular evidence of pain. He agreed that, in the past, she coped poorly with a mastectomy and chronic headaches and that now her arm was the focus. He could not recall a history of opiate abuse, but perhaps a more psychological tendency towards opiate use. In relation to her left arm weakness in 1989, he agreed that this was more substantial than something just coming on with migraines. He agreed that she had complained for some time of left arm weakness, that she was run down, that she had a buzz in her ears and that there was a total altered sensation of the left upper limb. From his notes of 31 January 1989, he agreed that her presentation at that time was in relation to a work-related injury of her lower back at the lumbar-sacral level. Then, after 1989, he would get from time-to-time complaints of left hand symptoms in association with the migraines.
39. In further cross-examination, Dr Crisp acknowledged that he had attended the applicant on something like 15 or more occasions in 2000, before the injury in November 2000. In July 2000, she was being prescribed Hypnovel to be given by injection. On essentially every occasion she attended him, as well as prescribing her with medication, Dr Crisp would also give her intramuscular injections. He said there were also occasions when scripts were lost and he re-issued the scripts to her, for Hypnovel, Stilnox and Panadeine Forte. Dr Crisp also acknowledged that it had been suggested to him by a colleague that the applicant was narcotic-dependent, that she appeared to have needle tracks on her feet and ankles and that marks on her body suggested that she was self-mutilating. On this point, Dr Crisp said that, during the time he had been seeing the applicant, she had presented to him with burns, some on the forearms. They had been given to him as being accidental, but he said he thought many of them probably were not. Dr Crisp’s notes when the applicant presented to him following the injury in November 2000, were to the effect that all the applicant’s fingers tingled, and it was not until 10 January 2001 that she first complained about an ache in the third, fourth and fifth fingers of her left hand. He said that between November 2000 and up to the end of March 2001 he had continued to see her with roughly the same regularity that he had seen her before the incident with the left arm injury. On most of these later occasions, there had not been any great change in the previous prescriptions. The medication that she was being prescribed then was consistent with the medication that was being prescribed before November 2000. Then, in March 2001 when she became fit for sales representative work, the applicant started complaining of migraines again. In February 2002, he said that she again reported migraine headaches when her boss and sales manager were being difficult.
Evidence of Dr Ann Williams
40. The applicant had been a patient of Dr Williams and she had prepared a number of reports to colleagues and others in relation to the applicant. In one such letter, being a letter she had sent to Dr Cullum dated 1 July 2003 (exhibit A4), she commented on the applicant as follows:
“Relevant past psychiatric history and medical history is that she has had chronic migraines and had an admission to The Adelaide Clinic about six or seven years ago for depression and chronic pain from migraines. There were concerns at that stage that she was having intramuscular morphine regularly.”
Later in the letter she said:
“My diagnosis is of major depression superimposed on a chronic dysthymic disorder, and underlying this was a borderline personality disorder.”
Dr Williams said that these symptoms had been present since about January-July 2002 and appeared to be in response to the left arm pain and other difficulties the applicant had. Later in her letter, Dr Williams said that the other issue was whether there was some psychogenic pain component superimposed on her organic pain. She said the applicant had also claimed she was injecting herself with ampoules of Midazolam while at home before admission to the clinic and seemed to have found some relief from pain with this.
41. In a letter dated 1 July 2003 that Dr Williams had sent to Comcare (exhibit A2, T97, at page 160) she described the applicant’s major depression as severe and her personality dependent traits (or borderline personality disorder) as having possibly worsened due to chronic pain. Dr Williams said that during the time she was seeing the applicant in 2003, when she saw her more intensely, it had been her observation that the applicant did not tolerate even minor stress very well. Dr Williams said that she first saw the applicant just before she had been admitted to the Adelaide Clinic, which was prior to July 2003. She was in the Adelaide Clinic for at least two months and then went for a shorter admission to the Fullarton Private Hospital. She was discharged from the Fullarton Private Hospital in about the beginning of August 2003. Dr Williams said that she saw the applicant on 21 August 2003, after she had been discharged from the Fullarton Private Hospital. She then referred to a number of subsequent consultations.
42. Mr Cole then asked Dr Williams about the video surveillance footage in June and July 2005 and referred to her report to the applicant’s solicitors dated 21 February 2006 (exhibit A5). In that report, Dr Williams referred to the following reports that had been furnished to her:
(a) Dr N Burke, dated 8 December 2005;
(b) Professor Goldney, dated 9 November 2005;
(c) Dr A Cherry, dated 21 November 2005; and
(d) Dr M Robinson, dated 22 November 2005.
Dr Williams said that it was not possible to comment on the applicant’s level of depression or psychological disturbance from the video. Since seeing her in 2005, the applicant appeared more physically active than she had been before and perhaps, finally, with the use of Methadone she was getting more relief than she had in the past and also seemed to be better when she took her regular anti-depression medication. Dr Williams said that the injury in November 2000 had been the original precipitant for the depression in the context of the pain experienced, but at times it appeared that the depression had taken on a life of its own because it was so chronic and severe. She said it was difficult to know how much was related to or caused by the pain that she was experiencing. When asked by Mr Cole whether she still adhered to the 20 per cent permanent impairment by reference to the Guide, she said she would probably now estimate the impairment at 15 per cent.
43. In cross-examination, Dr Williams said that from the time the applicant suffered her work-related injury until the time she saw her, she had been experiencing chronic and unremitting pain. The applicant had been suffering from some form of depression since May/November 2002, but there was a background of more chronic depression since the pain began after the work injury. Apart from a minor problem with headaches, in the five years leading up to the work-related injury the applicant had been well. After the injury, there was a distinct change in her pain situation, accompanied by developing chronic depression. Dr Williams said that she was unaware that, before the accident, the applicant was being prescribed MS Contin, Antonex, Panadeine Forte, Hypnovel and Oxycontin. Dr Williams acknowledged that the prescription of this medication would have been important information to have in forming an opinion relating to the connection between the work-related injury and the applicant’s condition at the time.
44. Mr Roder then referred Dr Williams to her report to Dr Cullum dated 1 July 2003 (exhibit A4) and to her report of the same date to Comcare (exhibit A2, T97, at page 160). When asked why no mention was made in the report to Comcare of the applicant’s diagnosed condition of borderline personality disorder, Dr Williams said she did not think it was relevant to do so. In her report to Dr Cullum, she also referred to the fact that there was a lot of the applicant’s abnormal illness behaviour noted. When asked by Mr Roder why this had not been mentioned to Comcare in her report, she said she did not think it was relevant at the time to do so. Mr Roder referred Dr Williams to a note she had made to Dr Cullum on 4 July 2003 (exhibit R2, Volume 2, at pages 434 – 437) where, in discussing the applicant, she said:
“She is intensely pain focused – rating 9/10 all the time. However, we noted significant somatisation in multiple areas and sick role. … Staff were concerned that Trisha would be capable of developing Munchausen’s type/factious type symptoms (e.g. ‘feigned’, claimed to have hurt her affected arm and that it was fractured – nurse who witnessed was certain she did not fall on her arm!) … Could her pain have a large psychogenic component? Could it be factious? … She readily focuses on other somatic symptoms and has a need to be sick. Pathological family dynamics.”
Dr Williams acknowledged that these comments to Dr Cullum were an accurate assessment of the applicant’s condition at the time.
45. Mr Roder questioned Dr Williams on the video surveillance footage and the applicant’s answers in her non-economic questionnaire (exhibit A2, T117, at pages 232 - 238). For the most part, Dr Williams acknowledged that what the applicant said in her questionnaire was inconsistent with what appeared in the video.
Evidence of Dr Nicholas Burke (by telephone from Queensland)
46. Dr Burke gave evidence that he had been requested by Comcare to provide a report about the applicant (exhibit A2, T107, at pages 197 – 202), who he assessed on 12 November 2003. Dr Burke said that it was difficult to see how the ulnar nerve could be damaged in the way the applicant put it, given that the nerve was in a canal in the particular area, so that it was protected to a certain degree from an impact coming from behind. He said that the applicant complained of a major problem in her left upper limb and shoulder and also of a constant ache in the ulnar border of her forearm. There was no evidence of any swelling or muscle wasting in the left upper limb and no muscle wasting in her left hand or her forearm. If there had been a long period of disuse or either the upper arm or the forearm, muscle wasting would be evident. Dr Burke also said that there were no objective criteria for complex regional pain syndrome. He said “Skin colour was normal, skin temperature appeared normal and there was no oedema. Her skin did not appear dry or overly moist. Skin texture was normal and there was no soft tissue atrophy.” Later in his report, Dr Burke said:
“The principal symptoms, with respect to her upper limb, are pins and needles and numbness affecting the little and ring fingers and ulnar border of the middle finger of her left hand and palm, with numbness and occasional pins and needles affecting the ulnar border of her left forearm. She has attended a neurologist on a number of occasions. No objective neurological signs were apparent and nerve conduction studies by three neurologists have been reported to be normal. There is no objective evidence of complex regional pain syndrome.
A number of doctors have diagnosed her condition as ulnar neuritis. She has subjective symptoms, which are consistent with ulnar neuritis, although the anatomical description of her symptoms is atypical. In particular, affecting the middle finger and the ulnar border of her left forearm. In addition, the nerve conduction studies were negative and she has no objective physical signs consistent with a diagnosis of ulnar neuritis. Hence, the most appropriate diagnosis would be ‘symptoms of atypical ulnar neuritis’ and secondly, Major Depression.”
When asked about the applicant’s initial complaint about sensation down the back of her hand affecting all of the fingers, Dr Burke said that this implied damage to the medial nerve, in particular, and a blow to the elbow would not affect the medial nerve. He said the patient was reporting symptoms that did not fit the normal pattern of ulnar neuritis, but that there were symptoms of an atypical neuritis.
47. Dr Burke then referred to the video surveillance footage taken in June and July 2005 and to his report dated 8 December 2005. He confirmed that he could not detect any objective evidence of the applicant having difficulties in using her left upper limb, of any evidence of pain-related behaviour, or any evidence of incapacity or impairment. When referred to the applicant’s non-economic loss questionnaire, Dr Burke said that what the applicant had stated in her questionnaire was not consistent with what he had observed on the video. When questioned by the tribunal about the applicant’s work-related injury, Dr Burke said that there was nothing to suggest that the sliding door had struck the applicant’s upper arm or shoulder. Under further questioning by the tribunal, Dr Burke said that for the applicant to have been describing the sort of symptoms she did when he saw her in November 2003, bearing in mind that the accident occurred three years earlier, he would have expected the injury to have been a significant one and not a minor matter.
Evidence of Dr David Cherry
48. Dr Cherry is the Director of Pain Management at the Flinders Medical Centre. His evidence was that he first saw the applicant in August 2001 on referral from Dr Crisp and he sent a letter to Dr Crisp dated 21 August 2001 (exhibit R2, Volume 1, at page 97). He said the applicant’s presentation was that she had been struck on the left elbow and had constant pins and needles into the medial three fingers, suffered mottled discolouration and sweatiness became more evident. However, on examination, Dr Cherry said he noted that the applicant’s left hand was the same colour and appearance as her right hand and he noted no restriction of movement on the left upper limb. There was no sensory deficit, no obvious decrease involving nerve function and no gross muscle wasting. He said he thought she probably was, at that stage, suffering from a complex regional pain syndrome and the diagnostic tests that he could perform could sort that out. However, he said his diagnosis was based on the applicant’s reports about sweatiness and colour changes because there was nothing, on physical examination, to support the diagnosis. The diagnostic tests were good evidence of whether a patient was suffering from complex regional pain syndrome.
49. Dr Cherry also said that, although he had made a diagnosis of complex regional pain syndrome at the time, he had doubts about it and was giving the applicant the benefit of the doubt. He said the doubts about the diagnosis at the time were caused because the applicant had not responded to any form of treatment, he had never seen her with the changes that she said she had and there was no wasting of her left upper limb. Dr Cherry said that he saw the applicant on 11 July 2003 and sent a letter to Dr Cullum on that day (exhibit R2, Volume 1, at page 99). When asked whether he thought that she did not have a complex regional pain syndrome when he saw her on 11 July 2003, Dr Cherry said:
“Well, reading my notes, I thought she didn’t have a complex regional pain syndrome type 2 which is the CRPS associated with a nerve injury because I couldn’t satisfy myself she did have a nerve injury. I thought she may have had a neuropathic pain from the history given to me and that she was significantly dysfunctional according to my notes. But I was not convinced that she had a complex regional pain syndrome either type 1 or 2 that would benefit from a pump implantation and it was a surprise to have the patient come back and tell me she wanted to have it implanted. That is a most unusual presentation.”
Dr Cherry also said that, on 11 July 2003, he had not observed any colour or temperature change or any muscle wasting. He said that, as there had been no muscle wasting, it was fair to say that she had been using her left arm quite regularly.
50. Dr Cherry then said he saw the applicant again on 20 February 2004 when he wrote a letter to Dr Wright (exhibit R2, Volume 1, at page 101). He said that when she presented to him she had her left arm in a sling and she reported impulsive medication taking, mood swings and symptoms of an anxiety disorder. However, Dr Cherry said that he did not note any colour changes, sweaty changes or temperature changes, and if her arm had been in a sling for a substantial time, this would increase the expectation that there would be muscle wastage. Dr Cherry said that he was reasonably satisfied that the applicant did not have a complex regional pain syndrome at that stage. Dr Cherry was then referred to his report to the applicant’s solicitors on 4 March 2004 (exhibit A2, T122, at page 245). In his report, Dr Cherry said that he did not believe that the applicant was suffering from a complex regional pain syndrome of the left upper limb, and that this more or less supported his previous assessments of the applicant. He said he accepted the report from Dr Fewings discounting the diagnosis of ulnar neuritis, but he said that it was his view that it was most unlikely that she had ulnar neuritis because there would have been demonstrable signs which she did not have – she had symptoms, but not signs.
51. Mr Roder then questioned Dr Cherry about the video surveillance footage taken of the applicant. He said that the presentation he saw on the video was inconsistent with how the applicant had previously presented to him. He could not determine any evidence of any disability involving the left upper limb during the significant period of time in which she was filmed. He said that he would have expected that, if the applicant had a painful condition, a severe pain or a constant pain in her arm, he would have observed pain-related behaviour in the activities that she carried out in the video. However, there was no lack of use of the arm and protection from being struck inadvertently by someone else. The applicant moved freely and was not protective in any instance. Dr Cherry’s report about the video surveillance footage appeared as exhibit R9.
52. Mr Roder referred Dr Cherry to the applicant’s non-economic loss questionnaire (exhibit A2, T117, at pages 232 - 238). Dr Cherry said that the various conditions described by the applicant in the questionnaire were inconsistent or largely inconsistent with what he observed on the video. Dr Cherry then said that, knowing what he now knew, having observed the video and looking back at his observations about lack of muscle wasting, he thought it was probably unlikely that she had any incapacity when he saw her in February 2004 and in July 2003.
Evidence of Dr Martin Robinson
53. Mr Roder referred Dr Robinson to his report dated 26 July 2005, when he examined the applicant (exhibit R11) and his report dated 22 November 2005 (exhibit R12). It was Dr Robinson’s evidence that the applicant had attended his practice many years ago, having seen Dr P Hicks, neurologist, in 1991 for problems relating to a neck injury following a motor vehicle accident, and seeing Dr Robinson himself in 1995 and 1996 for problems with recurrent headaches and unusual collapsing episodes. Dr Robinson referred to a report by Dr Hicks dated 11 November 1991, addressed to the applicant’s solicitors, in which he said that the applicant mentioned she experienced mild pins and needles and paresthesia in the third and fourth digits of the right hand. There was limited response to pin-pricking on the right hand, but no other neurological abnormalities. Dr Robinson said that, when he examined her in 1995, the applicant had a very difficult headache problem. She was requiring large doses of narcotics given by her GP and large doses of other drugs given predominantly by her GP. There were various social issues in her background, a lot of what he thought were stress or anxiety-related problems. Dr Robinson said that the applicant had seen him in 1995 for migraine headaches. However, it concerned him when she started to ask him to give her more intravenous medication so she could take it home. He refused to do that. He was concerned she was probably drug dependent and, ultimately, he referred her on for psychological help. When questioned about drug dependency, Dr Robinson said that, for chronic ailments such as pain and particularly in people with certain personality prototypes like the applicant, opiate-based drugs were fraught with danger and the copious amounts that she was taking were not good. He said that he refused to prescribe Hypnovel for the applicant, which is Midazolam. She wanted intravenous Midazolam which Dr Robinson said she was actually administering herself at home anyway. He saw her again in 1996, when her presentation was quite different. She had seen a number of different specialists about her headaches and was on all sorts of pain-relieving medications, one of which was a new drug called Gabapentin, which was only available under the Pharmaceutical Benefits Scheme as an anti-epileptic drug, and not for pain relief. If it was required for pain relief, a private prescription was needed, which was quite expensive. Dr Robinson said the applicant came back with a story of strange collapsing episodes and portrayed a picture that they were epileptic. When the applicant asked him if he would prescribe Neurontin on the basis of epilepsy, Dr Robinson said he felt it was inappropriate and refused to do so. He said he felt the events were not epileptic and he was suspicious, in 1996, that there may have been an ulterior motive that she was perhaps using him as a means of getting Neurontin for something for which she did not qualify. Moreover, he said it was quite strange for her to ask him to prescribe Neurontin for epilepsy, particularly when in 1995 she had not presented with any fainting or epileptic-type symptoms.
54. Dr Robinson said that, on 26 July 2005, the applicant described to him severe and unremitting left arm pain, predominantly below the left elbow. She described some changes in temperature and perspiration and a mottled colour in her hand and arm. She described a number of difficulties that she had in doing things with her left arm, such as pushing a shopping trolley. He said that she was markedly histrionic and there were a number of scars involving her left inner arm and forearm and her right forearm. When questioned by the tribunal, Dr Robinson said that the scars appeared quite consistent with self-inflicted wounds. He said “I think she damaged herself. I don’t know what with. There looked like there may have been some attempt at repair”. He said he observed that she did not move her left arm. She told him she could not move it at all. He said it was almost impossible to examine her properly because, as soon as he made any touch of her left arm, she grimaced and cried out, and pulled away to a point where examination was left to observation only. Mr Roder referred Dr Robinson to his report and to his comment that the applicant’s two point discrimination was normal bilaterally. In explaining this, he said:
“Obviously the two point discrimination is actually very cortically represented in the brain but the thing about that is she’s claiming she can’t feel certain sensations and yet she can feel two point discrimination. So if we’re talking a peripheral nerve injury, that makes no sense that she can feel some things and not others.”
55. He said that he did not think the ulnar nerve had been damaged, for a number of reasons – what he considered to be only minimal trauma, the location of where she was hit, the symptoms that were well outside an ulnar nerve territory and the fact that she had had a number of electro-physiological examinations that had been normal. He said an ulnar nerve injury could not possibly have accounted for what he saw on 26 July 2005. When asked whether he thought the applicant had a complex regional pain syndrome, Dr Robinson said that, because he saw so much exaggerated response, he had doubt whether one could believe what she was saying. The applicant’s description of changes in temperature, colour, the skin perspiration and the pain was a classical description of a complex regional pain syndrome. However, he said he observed none of these things.
56. Mr Roder referred Dr Robinson to his report dated 22 November 2005, after he had viewed the video surveillance footage taken in late June and mid July 2005. He said that, on viewing the video he could see no evidence of any obvious physical disorder, nor any evidence that substantiated her claims of her alleged injury that she gave to him only a month later. He said the video showed her doing things that she had told him later were physically impossible. He said she presented to him the fact she was completely devastated by her pain, and it was hardly a picture of devastation he saw in the video. The tribunal noted that, in his report, Dr Robinson summarised his position by saying:
“I believe that Ms Colquhoun is an unreliable and dishonest witness and I have difficulty in being sure that I can believe anything that she tells me.”
Under cross-examination by Mr Cole, Dr Robinson acknowledged that the applicant certainly was not well. When referred to Dr Wright’s reference to catastrophisation, in referring to a person who saw things in catastrophic terms, he agreed that that seemed an apt description of the applicant.
Evidence of Professor Robert Goldney
57. Professor Goldney’s evidence was that he saw the applicant in the Adelaide Clinic in June 2003, having been referred by Dr Ann Williams. He said he noted significant depression in the applicant on that occasion, particularly in relation to her mother and her older son. Mr Roder referred Professor Goldney to his report dated 30 June 2005 (exhibit R3). He said that, when he asked her on two occasions whether she had any health problems, she emphasised how well she had been. He said this was quite inconsistent with information that he had since received. He noted in his report that she was receiving narcotic medication, which he said he thought was inconsistent with somebody who was well. Mr Roder referred Professor Goldney to the applicant’s success in working and in performing her duties, since the occurrence of the work-related injury, and for the period into the middle of 2002. In discussing this, Professor Goldney said:
“I think there are a couple of things. First of all, it indicates that she must have been pretty well, from the emotional point of view, to have coped like that and, secondly, it raises the issue of why did she de-compensate after having coped so well at that point? So, really, usually things are temporarily related, you know? What happened around that time? I think that probably what happened at around that time was the altercation with her son and daughter and, you know, becoming estranged from her son. Now, I can’t be sure about that because Mrs Colquhoun didn’t really want to visit it, but I think that’s the sort of hypothesis that, as a clinician, I find far more persuasive than trying to attribute any deterioration 18 months after an accident which, certainly from a psychiatric point of view, you know, appeared to be quite trivial ...”
“The initial injury, yes, yes. Really, that, sort of, coloured my thinking in terms of the – my eventual diagnosis in the first report because I accepted that she did have the limitations in her arm as she described, but, you know, to explain that and accepting her then-presumed credibility, I would postulate a conversion reaction but, in my clinical experience, you couldn’t really attribute the conversional reaction to the door incident. It was much more likely to be related to other life stressors which, quite clearly, I knew that there were some because of her disclosure to me previously as well as her unwillingness to, sort of, pursue those matters further. So I was giving her the benefit of the doubt, so to speak, in terms of a diagnosis, but, at the same time, not attributing it to the door incident.”
58. Professor Goldney also referred to the various other reports and notes of doctors that he had mentioned in his report. He referred to the notes of Dr Humeniuk’s clinical record and the suggestion of self-mutilation by the applicant. He also referred to the Adelaide Clinic’s notes for 1996 and the diagnosis of morphine dependency. He said this would raise concerns about the level of narcotic medication that the applicant was taking before the incident in November 2000. Finally, in the summary and conclusions in his report (at page 12), Professor Goldney said:
“Notwithstanding her assertion that she had been in very good health prior to the incident, there is extensive indication of a series of physical/emotional problems having occurred over an extended period of time.
…
I am persuaded by the views of Dr Fewings (23/4/01, 30/10/03) that it is most unlikely that there were any physical abnormalities occasioned by the incident, and one must therefore ask whether or not the incident per se could have led to any primary psychogenic problem. There is no suggestion that the impact of the doors would have been of any great consequence from the psychiatric point of view. Indeed, subsequent to the incident she seems to have been able to cope well with other employment, gaining awards for her expertise. Therefore, one must turn to other non work related issues in attempting to determine the causation of Ms Colquhoun’s emotional reaction.
It is evident that she has had atypical symptoms over the years. Indeed she has had symptoms which at times have been thought to have been self produced, according to Dr Patterson (1/4/98, 19/5/98). When one has such a history, particularly when narcotic analgesia is involved, one is in a particularly invidious situation in attempting to be sure of one’s conclusions. … It is further complicated by the fact that there have been ongoing family issues, most notably the estrangement from her oldest son, and quite clearly that is an issue which is of particular importance to her. Thus Ms Colquhoun was apparently distressed by me raising the issue in 2003 when I initially assessed her for clinical purposes, and I also note from the report of Dr Williams (1/6/03) that when family issues in relation to Ms Colquhoun’s daughter were raised by a social worker, a considerable degree of distress was raised. These facts alone indicate to me that from the psychiatric point of view such issues are of great significance in terms of any ongoing emotional distress which she may have.”
59. Professor Goldney was then referred to his report dated 22 November 2005 which followed his viewing of the video surveillance footage. He said he found it to be one of the most convincing videos he had seen. The applicant used her left arm in various ways and for various purposes without apparent discomfort. She gesticulated freely with her left arm. In addition, her general demeanour and her interaction with other people appeared to be quite unremarkable. It was not the sort of interaction and the demeanour of somebody who was severely depressed. Having seen the applicant in 2003, again in 2005 and having viewed her in the video Professor Goldney said that, if the applicant was suffering from a depressive disorder it certainly was not severe. And if she was suffering from a depressive disorder, it was not likely that it had anything to do with her arm, unless there was a severe physical issue, and it would be secondary to that. Professor Goldney said that he would not describe the applicant as catastrophising. He said he did not think it was appropriate to apply the expression to the applicant’s situation.
60. In cross-examination as to the suggestion that the applicant’s psychiatric condition had taken on a life of its own, even though there may have been significant improvement in relation to the arm injury, Professor Goldney said that he could accept that that could be the case, but he would not relate the depression to the applicant’s arm. He would relate it to other inter-personal issues in her life.
Consideration
61. As mentioned above, the respondent accepted liability for the applicant’s claim for an injury to her left arm, and later accepted her claim for a secondary condition of recurrence of major depressive disorder, thus acknowledging the connection between that condition and her employment that is required by the Act in order for that condition to be compensable. However, in her reviewable decision, the review officer determined that as at 28 February 2004 the applicant’s employment was not contributing to a material degree to any incapacity or requirement for medical treatment and that from that date compensation was not payable pursuant to s 16 and 19 of the Act.
62. As was made clear by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424 – 425, the concept of onus of proof does not apply to this tribunal in determining applications that come before it, where the tribunal’s function is that of an administrative decision-maker. Nevertheless, we accept Mr Cole’s contention that the respondent carries an evidential onus, because it is seeking to establish that the respondent should no longer be entitled to compensation after 28 February 2004 (see Commonwealth v Muratore (1978) 141 CRL 296, and Commonwealth v Borg (1991) 20 AAR 299 at 307 per Jenkinson J).
63. Mr Cole further contended that the reconsideration ceasing liability to pay compensation as at 28 February 2004 (albeit not forever) is not supported by the evidence. We do not accept this contention.
64. We have narrated in some detail the effect of the medical evidence before us. Whilst none of the doctors who gave evidence examined the applicant as at 28 February 2004, it is apparent that prior to that date there was conflicting medical evidence as to whether her asserted symptoms were caused by the door striking her elbow, and there were doubts as to the correct diagnosis of her condition. The medical evidence supporting the applicant’s claim that she continued to be incapacitated as a result of the injury entailed the acceptance of the history she provided, and there was a paucity of objective evidence to support that history.
65. The applicant was, of course, examined at various dates subsequent to 28 February 2004, and differing opinions were expressed following those examinations. However, once again, the veracity or otherwise of the applicant’s history was most important, in the absence of any objective signs to support the symptoms of which she was complaining.
66. Having regard to her demeanour when giving evidence before us, and taking into account the inconsistencies between her evidence and the activities depicted in the video, we found the applicant to be a most unreliable witness, and that she exaggerated or misrepresented her symptoms and the consequences of the accident. We prefer the opinions expressed by Doctors Burke, Robinson and Cherry to those expressed by Doctors Wright and Crisp. Having regard to our assessment of the applicant’s evidence, we regard the absence of objective signs to support her asserted continuing symptoms subsequent to 28 February 2004 as important. We also think it likely that the applicant misrepresented her symptoms to Doctors Wright and Crisp prior to that date, and accept Dr Cherry’s comment that having seen the video, he thinks it is probably unlikely that the applicant had any incapacity when he saw her in February 2004 and July 2003. We also note the adverse assessments made by Dr Robinson as to the applicant’s consultation with him in 1996, and his refusal to provide her with medication. The applicant had a history of complaining of various conditions in order to continue to receive pain relieving medication, including addictive medication. For all of these reasons, we are satisfied that the applicant has not been incapacitated as a result of her physical injury during the period from 28 February 2004 and up to the date of the hearing before us.
67. It is also necessary to consider whether the incident involving the door contributed in a material degree to the onset of the secondary condition of depression, and whether that condition was compensable after 28 February 2004.
68. There is some conflict of authority in the interpretation of the words “in a material degree” in the definition of “disease” in s 4 of the Act. Deputy President Jarvis referred to this in Re Hardman and Inco Ships Pty Ltd [2006] AATA 468 at [44] – [46].
69. We have referred above to the conflict between the opinions expressed by Dr Williams and Professor Goldney. We prefer the evidence of Professor Goldney. As mentioned above, he first saw the applicant in June 2003. Prior to preparing his report of 30 June 2005, Professor Goldney carefully reviewed the applicant’s history and records. We accept Professor Goldney’s opinion as to the significance of the applicant’s earlier medical history and the problems she had had with her son and his altercation with her daughter, having regard to the date of onset of the aggravation of the applicant’s depression. Dr Williams was not aware of this aspect of her history or of her use of prescriptive medication, and once again her opinion was dependent on the history she obtained from the applicant. This history was incomplete and likely to have been unsatisfactory and unreliable.
70. We are satisfied that (on either view of the meaning of the words “in a material degree”) the applicant’s employment did not contribute to the applicant’s condition of depression, and that she is not entitled to compensation in respect of this condition during the period from 28 February 2004 to 3 March 2006, being the final day of the hearing before us.
71. For the above reasons, we consider that the reviewable decision was in substance correct. We note, however, that the formulation of the reviewable decision suggests that no future liability can exist. In Re Liu and Comcare (2004) 79 ALD 119, this tribunal pointed at [12] out that determinations should not be formulated so as to suggest that liability has ceased or that no future liability can exist, and should speak only as to present liability. The reviewable decision is inconsistent with these criteria. We will reformulate it in such a way as not to infringe the criteria referred to in Liu.
72. It follows from our above findings that the applicant is not entitled to an assessment of permanent impairment.
Decision
73. The tribunal sets aside the decision under review, and in place of that decision decides that as at 3 March 2006 compensation is not payable to the applicant in respect of the injury on 2 November 2000, and that the applicant’s employment did not contribute in a material degree to the depressive condition from which the applicant was suffering.
I certify that the 73 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President DG Jarvis and Senior Member R DunneSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 17-18 October 2005, 27-28 February and
1-3 March 2006
Date of Decision 30 June 2006
Counsel for the Applicant Mr S Cole
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr M Roder
Solicitor for the Respondent Phillips Fox
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