Culleton and Comcare - [2000] AATA 938

DECISION AND REASONS FOR DECISION [2000] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/933 ) Q2000/902

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MICHAEL CULLETON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date26 October 2000
PlaceBrisbane

...............(Signed)...............................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
WORKERS' COMPENSATION – back injury – psychiatric injury – permanent impairment – whether related to work

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

These applications are for review of two decisions:
Q1997/933: To cease liability for a claim for workers' compensation with effect from 18 July 1997.
Q2000/902: To deny liability for a claim for permanent impairment in relation to a ruptured L4-5 disc and for post traumatic stress disorder.
The applicant's personal details and background are as follows:
(a)He was born in Brisbane on 15 April 1958.
(b)He was a member of a large family of eight children, three brothers and four sisters.
(c)He attended school until 17 years of age.
(d)He started nursing as a career and went on to do a degree in Health Administration.
(e)He met his wife at the Mater Hospital where she was a nurse. They married in 1978.
(f)He was supervisor at the St. Vincent's Coronary Care Unit in Sydney.
(g)He was a Director of Community Health in Dubbo.
(h)He joined the Commonwealth Public Service in the Rehabilitation Service in Mackay in 1990.
The applicant claims that he cannot now work due to a combination of a back injury sustained at work and a psychiatric illness which he contracted as a result of the back injury. He also claims compensation for permanent impairment due to the back injury and the psychiatric injury.
The chain of events claimed by the applicant to have led to these disabilities is as follows:
(a)In May 1993, the applicant injured his back at a Mackay shopping centre. He was to set up a display to promote the Rehabilitation Service. There is some doubt as to whether or not he simply tripped over a piece of concrete in the car park, or whether he was carrying a large canister, tripped over the concrete, and travelled some distance trying to juggle the canister. In any event, it is the claim of the applicant that he hurt his back in the incident.
(b)In September 1993, a few months after the carpark incident, the applicant bent to pick up his child, or he bent and picked up his child, depending on which version of events is accepted, and did further damage to his back. This necessitated a fairly urgent back operation.
(c)On 15 September 1993, the applicant underwent spinal surgery at the Mackay District Hospital. He was operated on by Dr. Cook.
(d)The applicant claims that during the course of his back operation he experienced some trauma in relation to the operation itself, and in the way in which he was subsequently treated by the nursing staff at the hospital. He claims that he "awoke" from the anaesthetic during the course of the operation. He claims that his wife was in charge of the nursing staff which tended him in hospital and that the nursing staff treated him badly, demeaned him, tried to suffocate him and tried to give him undiluted antibiotic.
(e)The applicant claims that as a result of these traumatic experiences he has developed a psychiatric illness from which he has not recovered.
I must say, at the outset, that I view with scepticism some of the applicant's evidence. He seems to have exaggerated or gilded the lily to a large extent. For example:
(a)The applicant's original description of the incident in the car park in May 1993, simply involved him tripping over a concrete strip. Subsequently, his version grew to having him carrying a 30 kilogram canister, tripping over the concrete strip and stumbling for some 20 to 30 metres. Eventually, the applicant's version contracted to the version he offered in oral evidence at the hearing, whereby the canister seems to have reduced in size to eight kilograms and the distance of his stumbling reduced to five metres.
(b)The applicant complained to one of the psychiatrists he attended, that he had a particularly bad childhood because of an abusive, alcoholic, father and had thereby suffered trauma. Further evidence would seem to suggest that this is not correct. The applicant's brother, when questioned by the Tribunal, stated that he and the applicant were brought up in a normal family situation, with a father that may have been strict at times and enjoyed a drink on a Friday night, however, he was in no way abusive towards his children. The applicant's brother thought that they had been a happy, normal family.
(c)As mentioned above, the applicant claimed to have had a traumatic back operation and inappropriate treatment by nursing staff. This included the applicant's account that he had woken up whilst supposedly under general anaesthetic during his back operation, and that his wife, who was a nurse at the hospital where the applicant was treated, had supervised a number of inappropriate nursing procedures during the post-operative care period. Evidence given by his treating orthopaedic surgeon, Dr. Cook, was that the applicant was not under general anaesthetic at the time of his operation. Dr. Cook used a common technique of heavily sedating the applicant but allowing him to be conscious so that he could be asked questions about his sense of feeling during the procedure. The evidence of the applicant's wife was that she was not involved in the applicant's post-operative nursing care, in any way. She only attended upon the applicant during this time to offer her support in her capacity as his wife. She denies that her husband was treated inappropriately.
Although I have problems with the applicant's credibility, I am satisfied that he did have a tripping incident in May 1993 and that as a consequence he did suffer an injury to his back. The applicant reported the incident at the time and he saw a doctor on 29 June 1993, complaining of a sore back and some inner calf paraesthesia. Therefore, I am satisfied that the incident did occur and that the applicant suffered a back injury as a result.
There was evidence to the effect that the applicant told his doctor in June 1993 that he had suffered a back injury whilst playing football when he was 16 years of age. There is some dispute as to whether the doctor recorded the correct history in relation to the seriousness of this previous back injury. There is also some evidence that the applicant suffered a back injury whilst lifting a patient at work in 1978. It was submitted on behalf of the respondent that these prior back injuries play a significant role in the applicant's current disabilities. However, I take note of Dr. Cook's evidence, he being the surgeon who operated on the applicant. Dr. Cook said that he saw no old scarring or evidence of any old injury. He saw some fresh scarring consistent with an injury that may have occurred within approximately a two-month period. Further, Dr. Cook found superimposed on that scarring, evidence of an injury that was very recent and that had no scar tissue. He described what he saw as an "hour-glass" extrusion of disc pulp.
As Dr. Cook was the only person who actually saw the applicant's disc pulp, I accept his evidence. Therefore, I accept that the applicant had no back injury prior to injuring his back in May 1993. He then suffered a further back injury in September 1993. The injury in May was work-related and the injury in September was not. I find that the injury in May set the ball rolling, creating a tear which caused an extrusion of disc pulp. The later incident in September was relatively minor and simply caused further disc pulp to escape through the tear that occurred in May.
I accept that there is a chain of causation such that the back injury that was eventually operated on in September 1993, was caused by the incident which occurred in May, that being a work-related injury.
So far as the applicant's psychiatric illness is concerned, it is claimed by the applicant to have arisen out of the back operation and subsequent hospitalisation. However, the medical evidence is that the operation on the applicant's back was unremarkable and that medical care of the applicant at the hospital was normal.
The applicant returned to work in November 1993. He was able to carry on well with his work, eventually getting back to working six hours per day and taking extra work home with him. At that time he may still have had a sore back but he was able to cope.
The applicant began to cease coping when he encountered some personal problems.
(a)He had two applications for promotion rejected within one year. He believed that he had been doing a particularly good job and he was very disappointed in not having that good work recognised.
(b)He was transferred from Mackay to Brisbane.
(c)He discovered that his wife was having an extra-marital affair.
(d)His marriage fell apart.

It was only after the personal set-backs touched on above, that the applicant began to suffer serious psychiatric problems. He began to have psychiatric treatment. His evidence was that it was when he was having psychiatric treatment that he remembered the traumatic incidents that had occurred during the course of his operation and hospital treatment two years before. He claims that he was having "flashbacks" and that he continues to do so.
The applicant's evidence of flashbacks to traumatic incidents during and shortly after his back operation, his relaying of those incidents to his treating psychiatrists and their diagnoses based on the so-called traumatic incidents, creates a problem. The so-called traumatic events did not in fact occur. One psychiatrist, Dr. Unwin, said "it was the wife attempting to kill him when he was in hospital that caused the post traumatic stress disorder". Another psychiatrist, Dr. Reddan, originally diagnosed post traumatic stress disorder on the basis of the applicant's claim to have had a traumatic childhood. It is hard to accept pscyhiatric diagnoses which are based on incorrect information.
Upon being acquainted with the history of the applicant which came to light during the Tribunal hearing, Dr. Reddan came to the view that the applicant has probably had a lifelong personality disorder
It may be that the applicant, in searching for an explanation for his psychiatric problems has been unwilling to attribute them to his personality, his failure to obtain promotion or the disintegration of his marriage. Dr. Unwin said that the applicant had worshipped his wife, had ascribed to her unrealistic virtues (unwisely in Dr. Unwin's opinion). He seems to have invented the traumatic incidents surrounding the back operation.
The Tribunal does not accept that the applicant's back operation and hospitalisation are the cause of his psychiatric problems. Therefore, I find that his psychiatric problems are not work-related.
Dr. Unwin gave evidence that the applicant is not working due to his psychiatric condition, not his back condition. I accept the evidence of Dr. Unwin on that score.
For Q1997/933, I affirm the decision under review to cease ongoing workers' compensation, because the applicant's work-related back injury has not resulted in an ongoing incapacity for work.
For Q2000/902, I set aside the decision in relation to permanent impairment so far as the back is concerned. I accept the assessment that the applicant's impairment is 20% for his back condition and 20% for his left leg, this equates to a total of 36% whole body impairment. As far as the psychiatric injury is concerned, I affirm the decision under review that this is not a work-related injury.
I order that the respondent pay the applicant's costs in relation to the claim for permanent impairment for his back injury in accordance with the Tribunal's General Practice Direction.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed:         .....................................................................................
           R. Hayes, Associate
Date/s of Hearing  4, 5, 6 October 2000
Date of Decision  6 October 2000
Request for written reasons     26 October 2000
Counsel for the Applicant        Mr. D. Campbell
Solicitor for the Applicant         Ms. P.J. Hanly
Counsel for the Respondent    Ms. E. Ford
Solicitor for the Respondent    Phillips Fox