Costin and Comcare
[2003] AATA 531
•6 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 531
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/976
GENERAL ADMINISTRATIVE DIVISION ) Re NANCY DIANNE COSTIN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K L Beddoe
Associate Professor J B Morley, MemberDate6 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) K L Beddoe
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – liability –whether injuries arose during the course of employment – whether continued liability for the injuries - whether compensation is payable for the conditions – whether current symptoms are caused by a psychiatric condition which is not attributable to the applicant’s employment
Safety Compensation and Rehabilitation Act 1988
REASONS FOR DECISION
6 June 2003 Senior Member K L Beddoe
Associate Professor J B Morley, Member1. The applicant claimed rehabilitation and compensation for conditions described as “back, neck and headaches” and “left and right shoulder”.. The respondent found injuries arising out of or in the course of the applicant’s military service as follows:
(a)sprain right shoulder on 11 June 1996;
(b)soft tissue strain of the left shoulder on 12 October 1998;
(c)neck injury 1999; and
(d)back injury 1999.
2. The respondent determined that liability for compensation ceased on and from 17 April 2001 (T42).
3. On reconsideration that determination, as to liability, was varied so that liability continued up to 29 April 2002 subject to the applicant providing medical evidence of any claimed incapacity for work (T47). The applicant then sought review in this Tribunal.
4. At the hearing Ms Heyworth-Smith appeared for the applicant and Ms Ford appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.
5. Oral evidence was given by the applicant, Dr Dullard (osteopath), Ms Hope (physiotherapist), Dr Tomlinson (neurosurgeon), Dr Johnstone (orthopaedic surgeon), Dr Douglas (specialist physician and rheumatologist), Dr Whittle (orthopaedic surgeon), Dr Gunsberg (rheumatologist), and Dr Foxcroft (psychiatrist).
6. At the commencement of the proceedings the applicant’s counsel applied for an adjournment. That application was refused; the Tribunal being satisfied that all claimed injuries were properly before the Tribunal.
7. We make the following findings of fact.
8. The applicant is 30 years of age and enlisted in the Army on 17 November 1992, being 20 years of age at that time. The applicant was discharged from the Army on medical grounds effective 29 April 2001 and gives her current occupation as student.
9. Her duties in the Army were principally as a storeman and subsequently as a helicopter loadmaster. She also performed helicopter refuelling duties. She gave evidence about various incidents and the heavy lifting etc required in the performance of her duties.
10. In June 1996, the applicant was a storeman engaged on duties in the Armory. This involved moving and lifting boxes of ordnance including machine guns. She injured her right shoulder on 11 June and sought treatment for the injury. She was treated by the base physiotherapist (folios 302/323 of Exhibit 1 refer). Basic physiotherapy was said to be applied and the applicant said symptoms gradually ceased, for quite some time, but there were subsequent “flare ups”.
11. On 12 October 1998, there was an incident involving the applicant’s left shoulder. At the time she was undertaking loadmaster duties but the incident occurred during PT training. While doing “pushups” the applicant’s left shoulder “popped out” but did not dislocate. The result was further treatment by the base physiotherapist. There was also an x-ray of the left shoulder on 12 October 1998. Dr Boles reported as follows:
“the glenohumeral and AC joints appear normal. There is no subluxation of the left AC joint with weight bearing. There is no soft tissue swelling overlying the left AC joint. No rotator cuff calcification, fracture or bone lesion.” (Exhibit 1/217)
12. The applicant’s description of the incident is confirmed by contemporaneous clinical notes (Exhibit 1/ 216-4). She said that the symptoms continued “probably six months or so”, but the clinical notes at the time suggest significant improvement by 19 October 1998 with full range of movement although painful and tender (Exhibit 1/215).
13. By early 1999, the applicant was performing duties as a Loadmaster at the School of Army Aviation, Oakey. She said that she was not experiencing symptoms with her shoulders when she took up these duties but subsequently the shoulders started “aching and hurting”. She self treated by taking “painkillers” and sought assistance from a physiotherapist at Oakey.
14. The applicant said she also suffered neck and back injuries in 1999 and was declared unfit to fly. She was employed on refuelling of aircraft which involved heavy lifting and dragging of refuelling hoses. These duties are ground based.
15. In November 1999, the applicant’s medical status was reduced due, it seems, to a major depressive disorder which continued for a period of twelve to eighteen months. That condition lead to the applicant’s discharge from the Army in April 2001. She has not been in employment since discharge from the Army but has undertaken a Bachelor of Applied Science course.
16. The applicant continues to suffer physical symptoms but these have reduced since discharge.
17. The applicant says, and we accept, that she is still unable to engage in sports. She ceased taking medication for depression about twelve months prior to the hearing.
18. She suffered a re-occurrence of symptoms in her neck and right shoulder in April 1999 while lifting a cup of coffee; being the first re-occurrence of symptoms in the previous six months. The applicant agreed that notwithstanding the symptoms she retained a full range of movement.
19. The applicant took leave without pay, for reasons which seem to be related to the depressive illness, for the period late June 1999 to early September 1999. As already noted the applicant undertook refuelling duties when she returned from leave.
20. During the course of cross-examination the applicant agreed that she had reported a series of conditions which had lead to her being referred back to Dr Foxcroft, Dr Johnstone and Dr Douglas.
21. She identified a back injury in October 1999 and a flare up in relation to her shoulders towards the end of that year.
The Medical Evidence
22. Exhibit 1 is copies of the applicant’s extensive service medical records. Those documents are generally consistent with the applicant’s evidence to the Tribunal and are effectively summarised by a medical board in a report dated 21 November 2000 (folios 50 to 52). The report emphasised the applicant’s depressive disorder. In relation to “Neuromuscular aches and pains” they reported no major pathology but treatment of injuries from time to time. The applicant was found by the Medical Board to be unfit for aircrew and military duties and agreed with Dr Foxcroft that she should be discharged.
23. In a radiology report dated 13 April 2000, Dr Storey (T24) reported:
“BOTH SHOULDERS
Multiple soft intact projections of both shoulders showed no significant bony or soft tissue abnormality. Joint spaces and articular surfaces appear intact.
ULTRASOUND SHOULDERS
Normal configuration to the rotator cuffs. No evidence of tear or calcification. No abnormal fluid collection.”
24. An earlier report by Dr Boles, dated 12 October 1998 (T14), was also to the same effect.
25. Document T26 is a copy of a report by Dr Tomlinson, Neurosurgeon, who, examined the applicant at the request of the applicant’s solicitors. After setting out a history generally consistent with the evidence of the applicant, Dr Tomlinson made the following diagnosis:
(a)Chronic lumbar pain which is permanent but yet to be stabilised, attributed to the applicant’s service and assessed as 5% whole person impairment under Table 9.6;
(b)Chronic neck pain also said to be permanent, is not yet stabilised, attributed to the applicant’s service and assessed as 5% whole person impairment under Table 9.6;
(c)Chronic left shoulder pain, said to be permanent from 12 October 1998; not yet stabilised, attributed to the applicant’s service and assessed at 5% whole person impairment under Tables 9.1 and 9.4;
(d)Chronic right shoulder pain said to have become permanent from 5 June 1996 but not yet stabilised and attributed to service and assessed at 10% whole person impairment under Tables 9.1 and 9.4;
(e)Chronic headache linked to cervical spine injury ((b) above) said to have become permanent in April 1999, not yet stabilised which causal link to service and assessed at whole person impairment at 10% under Table 13.1.
26. The respondent sought a report from Dr Whittle, orthopaedic surgeon. The report is dated 21 December 2000 (T35). Dr Whittle also set out a history generally consistent with the evidence before the Tribunal although at variance on some aspects which we think are of some consequence for present purposes. The applicant apparently told Dr Whittle that the cervical spine injury, caused by lifting a cup of coffee, was aggravated by wind buffeting her helmet while on flying duties – something not repeated in the evidence before us. She told us the neck injury happened in 1999 at the same time as the lower back injury – “I was doing a lot of heavy lifting of rigging equipment out to the aircraft, and I came inside the crew room and it just started hurting for no apparent reason” (Transcript 6/7).
27. To some extent, therefore, Dr Whittle’s opinion has been based on an exaggerated history. Dr Whittle said in his report that “I would therefore question her co-operation with this activity”. He was referring to negotiating a number of flights of stairs. In his oral evidence he said he found a degree of inconsistency.
28. Dr Whittle’s opinion, as set out in his report, is as follows:
“Ms Nancy Costin is a twenty-eight year old right handed lady who complains of diffuse spinal and shoulder discomfort, which she related to a variety of activities required to her during her period with the Army. Her clinical assessment is difficult to interpret, and I would suggest that the previous diagnosis of fibromyalgia may fit with her present state. Certainly she has no strong evidence of a major structural disruption of the cervical or lumbar spines. Similarly, there is little evidence of true intrinsic pathology in either shoulder.
Her response to conservative treatment has been incomplete.”
29. In response to a question from the Tribunal, Dr Whittle said he would not diagnose fibromyalgia. He thought the applicant suffered soft tissue pain, from her Army duties, affecting her cervical and lumbar spines and both shoulders. He considered such pain should have resolved within twelve months of ceasing those duties. He went further and said that, from an orthopaedic point of view, no further treatment was indicated (as at 21 December 2000).
30. In summary, as we understand Dr Whittle’s evidence, the applicant’s duties while in the Army made a material contribution to the applicant’s physical condition up to the time of discharge, but her present condition is unlikely to be related to her employment in the Army.
31. A radiological examination by Dr Mulholland (27 February 2001) resulted in a report:
“Normal examination – no cause for patient’s symptoms identified” (T40).
32. Document T41 is a copy of a medico-legal report by Dr Gunsberg, rheumatologist, dated 17 April 2001 and addressed to the respondent’s delegate. Dr Gunsberg could find no grounds and evidence for an organic diagnosis of disease or unhealing injury. He sets out a brief history of the Army duties complained of by the applicant but thought the effect of these duties would have ceased to exist. In his oral evidence Dr Gunsberg said he could not find objective evidence of disease or injury and thought there was a strong psychological situation present which he described as somatic pain disorder.
33. Contrary views are found in a report by Mr Dullard, osteopath, and Ms Hope, physiotherapist (Exhibits A and B). In his oral evidence Mr Dullard referred to chronic pain syndrome as the likely diagnosis and agreed that psychological issues are outside his field of expertise.
34. Ms Hope’s report refers to a history not found in other reports and in evidence before us (Exhibit B). The report only satisfies us that it is likely that the applicant has, on occasions, exaggerated her symptoms and the cause of those symptoms.
35. Folio 77 of Exhibit 1 is a copy of a handwritten report to the Army by Dr Johnstone, orthopaedic surgeon, made 31 May 2000. Dr Johnstone found no orthopaedic cause for continuing pain. In his oral (by telephone) evidence Dr Johnstone said he could not remember the applicant and only had some notes sent to him by the respondent’s solicitor. He thought there was no basis for finding multiple orthopaedic problems, the complaints coming after diagnosis of depression.
36. Folios 35 and 42 of Exhibit 1 are copies of handwritten reports by Dr Douglas, a specialist physician and rheumatologist. The reports were made to the Army in May and July 2000 after seeing the applicant on each occasion. Dr Douglas surmised the applicant had chronic pain syndrome with features of fibromyalgia or chronic fatigue syndrome.
37. Dr Douglas said in oral evidence that he did not agree with Dr Tomlinson, and took the view it was more likely the applicant recovered from each incident of soft tissue injury. He also said that when he saw the applicant in mid 2000 the soft tissue injuries had resolved with no orthopaedic conditions remaining.
38. At folio 107 of Exhibit 1, Dr Foxcroft, psychiatrist, reported to the Army on 5 May 2000:
“Mood has been quite stable but back and neck pain has deteriorated and is causing considerable discomfort and restriction of movement, lifting etc.
-also some clashes with staff where she works
-is coping quite well with these stressors
-has no psychiatric illness currently – is emotionally fit to return to flying – physical problems will likely prevent this
-no need for further review”
39. A medical officer at Army Aviation Centre (Dr Kleinig) rejected Dr Foxcroft’s report. In a detailed handwritten report back to Dr Foxcroft (Exhibit 1/84-85) he noted various complaints of physical conditions not identified on examination.
40. In an earlier examination on 28 January 2000, Dr Foxcroft had diagnosed major depressive disorder which started early in 1999 following a marital break-up and work stressors.
41. In that context Dr Kleinig reports a discussion with Dr Foxcroft on 17 May 2000 noting that the history given changes resulting in different assessments and Dr Foxcroft agreeing that there appeared to be a somatisation disorder. Dr Foxcroft suggested treatment, the applicant to go on “stress leave” and he would review on 30 May 2000.
42. In his oral evidence Dr Foxcroft said that, in his opinion, the depressive condition had been converted into physical symptoms and apparently triggered by the applicant’s perception of workplace harassment. In essence, according to Dr Foxcroft, the applicant was suffering depression with somatisation. Documents T48 and T51 are copies of two medical certificates by Dr Knott, the applicant’s general practitioner dated 7 September 2001 and 28 September 2001. In the first Dr Knott diagnoses fibromyalgia and in the second he notes “pain and limitation of movement of both shoulders” without a diagnosis of the condition.
Consideration
43. Both parties made oral and written submissions and we have taken those submissions into account.
44. The case became a contest between the various medical witnesses with the applicant relying heavily on Dr Tomlinson’s evidence in preference to the evidence of Dr Douglas and Dr Johnstone in particular.
45. We do not doubt, and so find, that the applicant suffered injuries in 1996 and 1998 during and in the course of her employment. Those physical injuries were real and the respondent rightly accepted liability for those injuries.
46. In relation to the 1999 incidents we do not have the same view. It is not clear that there was any physical injury at that time and that incident is not, in our view, the same as the earlier incidents. In particular we are not satisfied that merely turning one’s head while lifting a cup of coffee to the mouth can be evidence of an injury.
47. We have come to the conclusion, relying on the failure to diagnose physical symptoms by radiology testing and examination, that the diagnosed depressive disorder with psychosomatic responses appropriately explains the applicant’s symptoms from 1999. The symptoms of pain (including headaches) are responses to the psychosomatic overlay, in our view, and are not an injury or disease as defined. The symptoms are outside the claim for compensation and attributable to the somatisation disorder. We are not satisfied that the claimed injuries can be accepted as being suffered by the applicant in the course of or arising out of her employment with the Army.
48. The decision under review will be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe and Associate Professor J B Morley, Member
Signed: .......................................................................................
AssociateDates of Hearing 27 and 28 November 2002
Date of Decision 6 June 2003Counsel for the Applicant Ms Heyworth-Smith
Solicitor for the Applicant D’Arcys
Counsel for the Respondent Ms Ford
Solicitor for the Respondent Blake Dawson Waldron
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