Daniel FARRELL and COMCARE
[2012] AATA 87
•15 February 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/1496
General Administrative Division ) No: 2010/ 4285
Re: Daniel Farrell
Applicant
And: Comcare
Respondent
DIRECTION
TRIBUNAL: Professor RM Creyke, Senior Member
DATE: 27 February 2012
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
- at Tribunal on page one of the decision, to add the name Dr Bernard Hughson, Member;
- at the certification on page forty nine of the decision:
- to remove the period;
- to add the words ‘…, and Dr Bernard Hughson, Member.’
.......................[sgd]..................................
Professor RM Creyke, Senior Member
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/1496
General Administrative Division ) No: 2010/ 4285
Re: Daniel Farrell
Applicant
And: Comcare
Respondent
DIRECTION
TRIBUNAL: Professor RM Creyke, Senior Member
DATE: 21 February 2012
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
- at the order on page one of the decision, to:
- delete the words ‘decision under review is’;
- insert the words ‘decisions under review are’.
….............................[sgd]............................
Professor RM Creyke, Senior Member
REASONS FOR DECISION [2012] AATA 87
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2010/1496 2010/4285 |
| Re | Daniel FARRELL |
| APPLICANT | |
| And | COMCARE |
| RESPONDENT |
Decision
| Tribunal | Professor RM Creyke, Senior Member |
| Date | 15 February 2012 |
| Date of written reasons | 15 February 2012 |
| Place | Canberra |
The decisions under review are affirmed.
.............................[sgd]....................................
Professor RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth Employees – secondary conditions – low back pain with sciatic like pain in right buttock – left knee pain – chronic pain syndrome – whether conditions are an aggravation, acceleration or degeneration of accepted condition – whether significant connection between injuries and employment related conditions
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7, 14
Cases
Comcare v Mooi (1996) 69 FCR 439
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Re Von Stieglitz and Comcare [2010] AATA 263.
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision)
REASONS FOR DECISION
Professor RM Creyke, Senior Member
15 February 2012
On 23 June 2003, when working as a park ranger with Environment Australia, Mr Daniel Farrell, born 1968, suffered an injury to his right knee. Compensation for the injury was accepted by Comcare on 29 July 2003 under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
A claim for permanent impairment was lodged on 15 July 2005. That claim was rejected on 18 November 2005 on the ground that the condition had not stabilised.
A further claim for permanent impairment was lodged on 21 February 2006. On 20 June 2006, Comcare again rejected the claim on the ground that the condition had not yet stabilised. At the same time, Comcare proposed making an interim award of compensation for permanent impairment under section 25 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
On 17 July 2006 Mr Farrell requested a decision by Comcare, rather than the proposal of 20 June 2006 for an interim payment. On 25 July 2006, Comcare decided Mr Farrell was entitled to an interim payment of compensation for permanent impairment based on 10 per cent whole person impairment in the sum of $14,135.12. The notification stated that when evidence was available that the condition had stabilised, a final assessment and decision would be made.
On 31 July 2008, Mr Farrell sought a final award of permanent impairment based on 30 per cent whole person impairment. On 29 June 2009, Comcare decided that Mr Farrell's level of impairment was less than 10 per cent and Mr Farrell was denied compensation under sections 24, 25 and 27 of the Act. On further review, the decision was affirmed on 20 October 2009.
He sought further review by the Tribunal on 5 November 2009. That decision is not under consideration in this matter.
On 16 July 2008 Mr Farrell sought compensation under section 14 for depression as a sequela of his accepted knee condition.
On 9 December 2008, Comcare denied liability for a psychological injury, but accepted liability for provision of a pain management program for a pain disorder associated with his right knee condition.
Mr Farrell sought reconsideration of that decision on 18 December 2008. On 15 June 2009, Comcare accepted liability for an adjustment disorder with depressed mood arising out of the knee pain.
Claim No 2010/1496
On 7 September 2009, Mr Farrell sought compensation under section 14 of the Act in respect of 'pain in right buttock and recently sciatic like pain in the posterior of right leg down to calf', secondary to his accepted condition.
Comcare rejected the claim for a condition described as 'sciatica' on 29 January 2010, a decision upheld on review on 31 March 2010. The reason for the decision was the denial of any significant link between Mr Farrell's condition and his employment. Comcare also did not consider there was a connection between medical treatment for his accepted condition and the 'sciatica'.
On 13 April 2010, Mr Farrell sought further review of that decision by the Tribunal.
Claim No 2010/4285
On 3 March 2009, Mr Farrell sought compensation under section 14 of the Act for conditions described as 'injury to left knee' and 'injury to back', secondary to his accepted condition.
On 21 July 2010, Comcare rejected the claim for conditions described as 'sciatic like pain in the posterior of your right leg down to your calf, chronic pain and left knee condition'.
On 31 August 2010, on review, Comcare decided that it would affirm the decision of 21 July 2010 relating to Mr Farrell's 'current low back, right buttock, left knee pain and chronic pain syndrome' claimed to be secondary to his accepted right knee injury sustained in 2003.
On 5 October 2010, Mr Farrell sought further review by the Tribunal of that decision.
The two matters were heard together in Canberra on 5-9, 12 December 2011.
History
Mr Farrell twisted his right knee in a pothole while at work as a park ranger for Environment Australia on 23 June 2003. He was off work for a week and underwent physiotherapy. He was diagnosed with a soft tissue injury of his right knee, possibly involving a lateral meniscus injury. He recommenced work for normal hours but with restrictions relating to climbing ladders, amount of walking, sitting and standing.
On 23 May 2004, his right knee gave way spontaneously with resultant recurrence of pain and swelling. On 11 June 2004, Mr Farrell’s general practitioner, Dr Andrew Bonney, certified that the original work related injury had resulted in an unstable knee, thus causing the recurrence of his injury, and that he was unfit for work from 28 June 2004 to 28 September 2004. Dr Bonney referred him to an orthopaedic surgeon, Dr David Cossetto, for assessment. An MRI dated 4 August 2004 confirmed a ‘medial meniscus tear’.
Mr Farrell had an arthroscopy on 21 September 2004 but sustained a further injury to the knee in December 2004. An arthroscopic examination of the knee on 22 February 2005 confirmed further cartilage loss of the posterior and central aspect of the medial femoral condyle in his right knee. Another arthroscopy was performed on 10 May 2005.
Mr Farrell claimed that neither operation improved his knee, nor the levels of pain he experienced. According to Dr Jones, this led Mr Farrell to develop an altered pain perception and chronic pain syndrome.
Subsequently he was treated with Synvasc and cortisone injections into the right knee. The four Synvasc injections, according to Mr Farrell, made no difference; he had several cortisone injections, but on the third occasion his leg swelled up where the injection had gone in. Mr Farrell claimed the cortisone also did not help.
Mr Farrell attended an exercise physiologist through Workfit towards the end of 2005, but on the advice of Dr Cossetto, the sessions ceased because his knee was deteriorating and Dr Cossetto wished to trial an injection of gel to the knee to replicate the knee’s synovial fluid.
A rehabilitation program through Injury and Occupational Health (IOH), was commenced but not pursued after a few sessions. In a report dated 7 October 2005, his rehabilitation Consultant, Ms Rachel Tarratt, indicated Mr Farrell needed counselling to move forward. A report of 20 February 2006 was that Mr Farrell had ‘reported to IOH South Coast that he does not wish to participate in retraining at this stage due to his ongoing knee pain’. The report also noted Mr Farrell’s low level literacy and that he had previously only been employed in labouring jobs.
Mr Farrell attended a psychologist, Ms Judy Leung, from 17 October 2005, but ceased his attendance in early 2006 as his wife, who was in poor health, had to drive him to the appointments and this was proving difficult for him. He was prescribed an anti-depressant, from 31 August 2005 for his depression.
He also attended several pain management programs. One was through Port Kembla Hospital in 2006; another at Nowra hospital did not go ahead since the hospital considered he was not a suitable candidate. Mr Farrell had a course of pain patches but he was nauseated and vomited as a result of their use, and therefore he considered they did not help. Mr Farrell takes painkillers codeine, Panadeine Forte tablets and Panadol Osteo to control the pain, Endep nocte to help him sleep, and Avapro for hypertension. He wears a splint to support the right knee.
MEDICAL EVIDENCE
CT, MRI and bone scan investigation
On 16 June 2004 an X-ray of Mr Farrell’s right knee was normal. However, an MRI of his right knee on 4 August 2004 showed a medial meniscal tear and some degenerative changes in the medial compartment. Another MRI on 18 November 2004, revealed no recurrent meniscal tear, but some degenerative change in the medial compartment. A further MRI on 22 February 2005 revealed that the meniscus was essentially unaltered, so there was no re-tear.
A bone scan of 14 October 2005 showed no evidence of reflex sympathetic dystrophy of the right knee. A second on 16 March 2006 revealed no scan evidence of an inflammatory polyarthritis, minor degenerative changes in the wrists and joints but no major alteration in uptake in the knees. A further bone scan on 7 March 2008 revealed no scan evidence of osteochrondral fractures of the knees, ankles or feet. It noted mild arthritic change in the medial compartment of both knees, left ankle joint, wrist and fingers.
On 7 September 2009, a CT scan of Mr Farrell’s lumbar spine revealed a mild broad based disc bulge with bilateral facet joint hypertrophy at L4/5 and bilateral facet joint hypertrophy at L3/4 (mild only) and L5/S1. The scan also noted a pre-existing pars defect at L5 pars interarticularis.
Rehabilitation
Injury & Occupational Health (IOH), South Coast reported on 16 August 2005 following a vocational assessment process. The report noted Mr Farrell as saying ‘his knee is very sensitive, with even light touches to the knee area causing him to feel nautious [sic] ill’.
On 9 August 2006, Mr Farrell’s rehabilitation program with IOH was closed, as IOH South Coast reported that they were ‘unlikely to be able to establish some vocation direction if Mr Farrell’s pain levels do not decrease’. The report described issues for Mr Farrell including ‘ability to drive safely in and out of town, a fear of re-injury and aggravating pain levels, and his current functional tolerances’.
Mr Farrell attended a private pain clinic at Shoalhaven Hospital for hydrotherapy, but it caused a flare up of his symptoms so he ceased his attendance.
Dr Bonney
Dr Andrew Bonney, general practitioner, has been Mr Farrell’s principal treating doctor throughout the period from 2003 when he first sustained his injury to his knee. In a letter of 3 December 2004 Dr Bonney noted:
[Mr Farrell’s] recovery has been quite slow, largely due to deconditioning due to the chronicity of his injury. His employment has always been of outside nature, either labouring or more recently as a ranger with Environment Australia. Hence it is crucial to his return to suitable employment for him that he regains fitness.
Key entries principally from Dr Bonney’s clinical notes are:
5.7.05: ‘Pt agrees to intensive physio/Workfit program with goal of return to previous work – realises limitations; 2. Pt will keep open mind about retraining, though has reservations due to his literacy level.
20.7.05: Knee persists very painful and sensitive to touch and pressure. Interferes with physio. … Flexion limited to 75 deg. Full extension painful +.
24.8.05: Right knee not swollen, though tender, FROM [Full Range of Movement]. Diagnosis: regional pain syndrome?
31.8.05: pt depressed and frustrated regarding disability due to pain; ….v tender all around knee.
15.3.06: pt’s overall condition unchanged, life dominated by the pain in his knee, has restricted all of his activities, mostly just at home, little social contacts, nil leisure activities.
4.8.08: ongoing chronic pain and disability despite multiple attempts at interventions.
19.1.09: Reason for contact: chronic pain syndrome right knee.
21.8.09: no further treatment from rehab physician … pain from low back, right buttock into right posterior thigh/knee/ankle. A change of medication was recommended to take into account these conditions and a review was to be conducted in a fortnight.
14.12.09: chronic pain syndrome. Includes now the left knee and L/s spine. Trial of TENS.
In a report of 9 October 2009, Dr Bonney noted:
Daniel’s chronic right knee pain persists and he walks with a limp. In the last 2 months he has started to develop pain in his right buttock and recently sciatic like pain in the posterior of his right leg down to his calf. He had been experiencing pain in his left knee for several months prior to this. … A CT of his low back showed no evidence of neurological compromise. Examination of the left knee shows no swelling, a full range of movement, and tenderness around the medial and lateral joint lines.
[I] believe he has developed muscle strain/fatigue in the right pelvic muscles from his gait abnormality, which is all secondary to his knee injury. He has pain in his left knee from increased loading due to his altered gait. He has been referred for physiotherapy for assistance in his rehabilitation.
In a report to Comcare of 2 September 2010, he noted:
Mr Farrell suffers from continuous pain in his knee. He has pain when seated for any prolonged period of time, when walking and when trying to negotiate stairs. He is unable to squat with the knee. He is unable to lift weights from ground level up. He is unable to negotiate uneven ground.
He also said ‘Mr Farrell has also in recent years been suffering from pain in his left knee and also pain in his back. These conditions are reasonably related to his altered gait due to the pain in his right knee’. He commented:
The impact on Mr Farrell’s life, both in his family life and in the things that he enjoys doing and his employment history far outweigh any secondary gain he could be expected to obtain from allegedly malingering with his knee.
At the hearing, Dr Bonney agreed that Mr Farrell had not reported pain in his right buttock, lower back or left knee until August 2009. His opinion as to Mr Farrell’s possible overreaction to medical conditions was that misappropriation of symptoms is not uncommon and does depend on literacy levels, but he denied that Mr Farrell exhibited hypochondriac features.
Dr Bonney also said he would not have expected significant wasting in Mr Farrell’s thighs or calves since he was still using those limbs. As he said true wasting – a pathological loss of muscle bulk - would not be expected from a just sedentary lifestyle.
In Dr Bonney’s view, according to the International Association for the Study of Pain chronic pain was pain without any definite organic source. For chronic pain he said the symptoms were allodynia, hyperalgesia, and limitation of the range of motion. In his view Mr Farrell met the social and psychological factors for chronic pain disorders contained in the International Classification of Diseases (9th edn) (ICD 9) and the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision) (DSM4-TR).
Dr Cossetto
Dr David Cossetto, orthopaedic surgeon, reported on 18 August 2004, that he had identified a ‘medial meniscal tear in the right knee’. The arthroscopy operation he performed in September 2004 confirmed his earlier diagnosis. He had also found ‘Grade II/III chondromalacia involving the medical femoral condylar weightbearing surface posteriorly’.
As the knee did not improve, and on investigation there was marked swelling and pain in the right knee, Dr Cossetto concluded in January 2005 that Mr Farrell may have sustained a re-tear of the medial meniscus. On New Year’s Eve, Mr Farrell had aggravated his right knee when he slipped down a ladder and Dr Cossetto conducted a further partial arthroscopy. In a report of 10 May 2005, following the operation, Dr Cossetto said he found a re-tear of the medical meniscus, and a grade I/II chondromalacia In his report Dr Cossetto noted that under anaesthesia ‘the knee had a full passive range of motion and was ligamentously stable’.
On 17 August 2005, as the knee was still causing problems and Mr Farrell was using a walking stick, Dr Cossetto recommended intra-articular cortico steroid injections. Three injections were undertaken, the last being on 10 February 2006. On that occasion, the injection ‘caused his knee to tighten and there were difficulties removing the needle from the knee’. In Dr Cossetto’s opinion, included in a report of 7 March 2006, Mr Farrell’s chronic pain syndrome meant he would need a total replacement operation on his right knee in time.
On 24 April 2009, Dr Cossetto reported Mr Farrell suffered hypersensitivity to touch, mild palpable crepitus and sensitivity to palpation to the medial joint line. On 5 June 2009, he reported that a ‘developing medial compartment osteoarthritis’, was evident from the MRI scan in 2005. He reported that the physiotherapy and rehabilitation programs were aggravating the symptoms in Mr Farrell’s leg and knee and should cease. However, Dr Cossetto recommended that his attendance at a pain management clinic should continue.
Dr Davison
Dr Ian Davison, orthopaedic surgeon, provided a report to Dr Cossetto on 29 August 2005. He noted Mr Farrell’s history of persisting swelling of the knee and that the knee is ‘hot and stinging’. He said ‘He moves the knee with extreme caution, and has a grossly exaggerated pain response to even light touch around the soft tissues on the front of the knee’. As a consequence he said ‘A thorough and meaningful examination of the knee was not possible’.
It was his opinion that:
… this patient has either a reflex sympathetic dystrophy or is malingering. The only other two diagnoses that would be consistent with this degree of sensitivity and disability would be sepsis or gout, for which there is no evidence. The relatively normal MRI scan, the findings of two arthroscopies, and the lack of any significant heat or swelling in the knee would be consistent with a diagnosis of reflex sympathetic dystrophy or a functional disorder.
Dr Ho
Dr Yiu Key Ho, orthopaedic surgeon, reported to Comcare on 31 January 2006 that Mr Farrell’s knee ‘only had a range of movement of 30˚ to 80˚’ when sitting, and ‘10˚ to 40˚ actively,’ when ‘in the lying position.’ Dr Ho found that ‘his right thigh showed disuse atrophy. He could not do straight leg raising’. Mr Farrell had complained of pain whenever Dr Ho ‘touched his right knee’.
In the view of Dr Ho, Mr Farrell was ‘either suffering from exaggerations of the symptoms for non-organic reasons or we will probably have to label him as a case of chronic pain syndrome’. The opinion was based on the ‘discrepancy on the range of movement in the knee when he was sitting or lying down’.
Dr Ho also said:
I believe that he is not cooperating in demonstrating the physical examination because the range of movement when in the lying or sitting position is totally different and he complains of pain everywhere around the knee when I touch him, which is not a usual feature unless the patient has really bad reflex sympathetic dystrophy or chronic pain syndrome. Therefore, I still think there are a lot of non-organic factors.
Dr Leung
Dr Judith Leung, clinical psychologist, provided a report to the Department of Environment and Heritage dated 3 February 2006 on the two assessment interviews she conducted. The results of the Depression Anxiety Stress Scale (DASS) showed a moderate level of depression (92nd percentile), a severe level of stress (approximately 97th percentile) and an extremely severe level of anxiety (98th percentile). Using the Pain Patient Profile (P3) assessment tool, Dr Leung found levels of depression, anxiety and somatisation consistent with those of other pain patients (T scores of 52, 51 and 54 respectively).
Her diagnosis was Adjustment Disorder with Mixed Anxiety and Depression. She said Mr Farrell’s ‘prognosis for psychological recovery is good due to his social network of support and evidence of elevation of his mood during his contact with me’. In that regard Dr Leung reported Mr Farrell as saying he had a ‘wide network of social support’ including ‘substantial support from his extended family and friends’. Despite her recommendation that he would benefit from psychological input, she said he had declined psychological help, preferring to rely on his social network. Expanding on his social network, Dr Leung said in an undated letter to the Department of Environment & Heritage, that he was referring to ‘peers’ and ‘bosses’ at his workplace who were supportive of his return to work if possible.
Dr Shepherd
On 21 April 2006 Mr Farrell saw Dr Bruce Shepherd, orthopaedic surgeon, at the request of Dr Cossetto. Dr Shepherd found that the range of movement of the right knee was ‘variable with extension beyond 15˚ of flexion causing excessive pain and beyond 90˚ causing excessive pain’. He noted ‘generalized tenderness around the knee which is stable but which causes pain on stretching of all ligament complexes’. He noted ‘minimal wasting of the controlling muscles of the knee; … no signs of sympathetic dystrophy’, His conclusions was that ‘this man is genuine in his disability but it is difficult to decide at which level it lies. There is little to support a local lesion in the right knee. It may be that it will require divine intervention to achieve an alleviation of the condition’.
Mr Jones
Mr Donald Jones, consultant orthopaedic surgeon, provided a report to Comcare dated 16 May 2010. He noted no significant improvement in Mr Farrell over the previous two years, and said Mr Farrell had objective evidence, via bone scan, of injury-related change to his knee and a chronic synovitis which had not settled to any extent with Synvasc or cortisone injections. He diagnosed ‘medial posterior horn tear medial meniscus, progressive chondral loss, medial compartment osteoarthritis and a chronic pain disablement’ due to an altered pain perception or chronic pain syndrome. He acknowledged Mr Farrell demonstrated pain avoidance behaviours on clinical examination but said ‘I consider that these are not inconsistent with the known injury and the subsequent pain disablement that he has developed’. He said ‘he must learn to fully extend his knee to end bear on his knee, rather than walking on a flexed knee’. He considered physical therapies would not be successful.
Professor Webster
Emeritus Professor Ian Webster, a physician and Emeritus Professor of Public Health and Community Medicine at the University of New South Wales, noted in a report to Dr Bonney of 24 August 2005, that Mr Farrell’s right knee was ‘exquisitely painful’ and that there was ‘marked wasting of the right quadriceps muscles’. He assessed Mr Farrell as having ‘continuing pain of musculoskeletal origin with secondary chronic pain syndrome’, as well as a high level of anxiety and depression.
Professor Webster reported on 19 May 2006 that Mr Farrell ‘is unable to stand erect … cannot take weight on the right leg … stands with the right knee flexed to about 15 degrees’ and that his ‘lumbar region is painful and stiff and there is tenderness over the right trapezius muscle and in the cervical region’. He also noted ‘Both quadriceps muscle groups are wasted, the right more than the left. The right knee is exquisitely painful to even light touch (knee pain makes him nauseated). There is little active movement in the right knee – flexion to about 15 degrees’.
Dr Bodel
Dr James Bodel, orthopaedic surgeon, provided a report for Mr Farrell on 31 March 2008. His opinion in relation to Mr Farrell was that he has:
… a mild right-sided limp;…no leg length inequality; no abnormal varus or valgus angulation in either knee; tenderness … at the lumbosacral junction; mild backache and … pain on extension and lateral bending to both sides; … some restriction of back movement; … no evidence of nerve root irritability in either leg; … no reflex abnormality or sign of sensory impairment in the lower limbs;… retropatellar crepitus in both knees; lacks 10 degrees of knee extension on the right hand side and 5 degrees of knee extension on the left hand side; knee flexion is to 90 degrees on the right hand side and 120 degrees on the left hand side; medial joint line tenderness on both knees; … no reflex abnormality or sign of sensory impairment in the lower limbs.
In a supplementary report of 18 September 2009, Dr Bodel observed straight leg raising of 80˚ for both sides. He said there no evidence of nerve root irritability and no definite clinical sign of radiculopathy in either leg. He noted that ‘he lacks 10 degrees of knee extension on the right hand side. Knee flexion is to 90 degrees on the right. On the left had side there is full knee extension and 120 degrees of flexion’.
He found a ‘painful restriction of right knee movement and also some mild discomfort in the left knee and … increasing back pain with right-sided sciatic symptoms with no objective signs of radiculopathy’. His report was that Mr Farrell had ‘significant pain in the right knee’.
In a report on 3 June 2011 and a further supplementary report of 14 July 2011, Dr Bodel noted that despite ‘extensive physiotherapy and anti-inflammatory medication’ Mr Farrell’s pain and swelling did not settle.
Dr Bodel recorded Mr Farrell as saying of the pain in his left knee that ‘he was favouring that side to protect the injured right side… first apparent in 2005/2006’. He also reported ‘He has also developed a gradual onset of back pain intermittently. … [P]ain … has steadily deteriorated and he has also developed some clunking and pain in the region of the right hip’.
He concluded that Mr Farrell:
… is comfortable when sitting on a chair and he rises without difficulty. There is no leg length inequality or spinal deformity but he does have tenderness on palpation at the lumbosacral junction. There is tenderness in the region of the right sacroiliac joint and he reaches forward in flexion with his hands to the knees and there is increasing backache at this point and also on extension and there is decreased lateral bending to the left. Straight-leg-raising is 80 degrees on both sides and there is no evidence of nerve root irritability. There is no reflex abnormality or sign of sensory impairment in the lower limbs. There is no clinical sign of radiculopathy. He still lacks 10 degrees of knee on the right side and knee flexion is to 90 degrees on the right. There is tenderness over the anteromedial aspect of the right knee but there is no ligamentous laxity in the right knee. He has full knee flexion and extension on the left hand side and no ligamentous laxity on the left ….There is no evidence of effusion in either knee and there is no reflex abnormality and sensory impairment and no clinical sign of radiculopathy in the lower limbs.
In his supplementary report of 14 July 2011 Dr Bodel commented that a CT scan of Mr Farrell’s lumbosacral spine in September 2009 showed some joint arthritis and other degenerative conditions of the spine. He concluded: ‘It is likely … that his abnormal gait pattern has caused an aggravation of a pre-existing and previously asymptomatic condition’. He also concluded ‘There does appear to be a causal link … between his original injury to the right knee and his abnormal gait pattern as a result of that injury and the aggravation of the underlying pathology in the back’.
Associate Professor Stevens
Associate Professor Bruce Stevens, clinical and forensic psychologist, provided a report for Mr Farrell on 11 July 2008. He diagnosed a pain disorder associated with both psychological factors and a general medical condition, chronic with moderate to severe symptoms, and major depressive disorder recurrent with moderate symptoms.
He said, Mr Farrell described his right knee pain at the time of the accident as ‘A burning, throbbing, a deep stinging’ and said of the knee ‘it is swollen and hard, twice the size. The pain was 10/10’. He described his pain now as, ‘It is the same sort of pain and swelling. It is a 7/10 but it gets worse, things like uneven ground, getting up and down all make it worse’.
Associate Professor Stevens’s report found that the P3 tool assessed Mr Farrell as having an above average range for depression and a below average range for anxiety, reflective of a person with ‘effective coping strategies’ … [who] ‘remains generally optimistic and confident of improvement’. He also found an average range for somatization, meaning the person ‘may feel somewhat threatened and vulnerable by … pain symptoms’ [but is] ‘not obsessed’ and is ‘able to participate fully in physical treatment for pain’. He said the score ‘is often indicative of a clearly defined organic basis for pain’. However, he noted there was cause for concern on the hypochondriasis scale. Individual scores which raised concern related to: depression, anxiety; and self-depreciation.
His report noted: ‘There are strong indicators of chronicity including significant catastrophizing beliefs, fear, avoidant behaviour, depression and hyperarousal, which may complicate and prolong his experience of pain’. He recommended further psychological counselling and a pain management program, and/or a return to consistent use of anti-depressant medication.
At the hearing, Associate Professor Stevens, said that Mr Farrell had done a pain diary for a week which indicated no pain-free periods, and the pain he experienced ranged from 6 to 9 which is in the upper range of pain disorder.
When questioned about the source of his report, Associate Professor Stevens confirmed that the in-person assessment for the purpose of his report had been conducted by his assistant, an intern psychologist. His only contact with Mr Farrell was a subsequent telephone interview of about 20 minutes to confirm the findings made by his assistant. He said his assistant was employed by him so the assessment was probably conducted by her in the year or two after graduation.
He confirmed that the P3 assessment tool was a reliable indicator that Mr Farrell was not malingering and that the cut-off point was 12 for invalidity, whereas Mr Farrell’s score was 9. He noted that the score on the hypochondriasis scale, without more, could not indicate whether the person had a personality predisposition to hypochondriasis or whether the injury had produced that outcome. He conceded, however, that it would be consistent for such a person to report his lower back and sciatic pain and pain in the left knee on a regular basis, and the absence of any regular complaints about these conditions was surprising. He also said it was possible that someone with a hypochondric personality and a pain syndrome might exaggerate symptoms as compared with someone who did not have such a personality. He conceded that the descriptions in parts of his report did not necessarily equate to a diagnosis of major depressive disorder.
He also conceded Mr Farrell’s history in relation to his disability and apparently abortive attempts to undertake counselling, pain management and other forms of treatments with no effect, meant he might have ‘drifted into [a] mode of seeing [himself] as an invalid’. He clarified an apparent inconsistency in his report between the statement at one point that ‘The anxiety scale score was in the below average range for pain patients’ as compared with a later statement ‘The anxiety scale score was also cause for clinical concern’ on the basis that the tests were measuring two different samples. The first test compared people with chronic pain; in the second, the comparison was with the normal population.
Dr Gertler
Dr Robert Gertler, consultant psychiatrist, provided a report to Comcare on 24 October 2008. He denied Mr Farrell suffered from a major depression. Rather, he diagnosed an adjustment disorder with depressed mood, developed as a result of his chronic pain and disability, and resulting from his workplace injury. Dr Gertler recommended Mr Farrell attend a pain management program which would require him to be seen by a psychologist to assist him to come to terms with his chronic pain and disability.
In a supplementary report of 22 November 2011, in light of the more recent assessments by orthopaedic surgeons, Dr Gertler disagreed with Dr Knox’s conclusion that Mr Farrell ‘likely has a strong organic basis to his pain’. In his opinion Mr Farrell continued to suffer from an adjustment disorder with depressed mood on the basis of the chronic pain and disability which he was experiencing. He said Mr Farrell ‘suffers from a chronic pain syndrome which has resulted in the development of a psychogenic overlay to the pain which he experiences’. That means, he said, that ‘the experience of pain is maintained’ despite the diminution of physical symptoms. He noted that Mr Farrell ‘displayed pain behaviour though this was not extreme. It was more in the category of discomfort rather than pain’.
At the hearing, Dr Gertler confirmed that there was no objective means of measuring pain and psychological factors, including depression, would influence the way people report pain. He also confirmed to counsel for Mr Farrell that the chronic pain syndrome referred to in his report was secondary to the pain experienced from his injured knee. He said there was no distinction between a chronic pain syndrome and chronic pain disorder. In accordance with the DSM 4 criteria for chronic pain disorder he said the psychological factors he took into account were Mr Farrell’s low self-esteem, his relative isolation within the family, and his feelings of loss at being unable to participate in activities with his children. These views, and the views of some of the orthopaedic specialists that the organic factors were insufficient to account for Mr Farrell’s pain symptoms, were sufficient in his view to justify a chronic pain syndrome diagnosis. He also confirmed that although there was inconsistency between Mr Farrell’s accounts of his pain and the absence of medical evidence in support, this was insufficient to indicate malingering. He said he had considered, but discounted, the possibility of factitious disorder in the sense that Mr Farrell had adopted the sick role and it was difficult or impossible for him to move out of it.
Dr Pierides
Dr Lewis Pierides, consultant occupational physician, reported on 21 May 2009 and said:
[Mr Farrell’s] presentation was not consistent. Examination revealed essentially a normal right lower limb. There was no knee effusion, no muscle wasting of the quadriceps, no evidence of complex regional pain syndrome. His investigations have been essentially within normal limits, other than he had a medial meniscal tear with some minor degenerative change in the medial compartment. Such findings could not be responsible for his alleged disability. I watched him walk along the corridor towards my secretary so she could photocopy some of his X-ray reports and it was clear that he could fully extend his right knee while walking, whereas he was not able to do so when he was being examined.
.
Dr Pierides said of this report at the hearing that ‘[Mr Farrell’s] walking gait was, although not totally normal, certainly within the normal range’ and he was not using a walking stick
On 5 February 2010, Dr Pierides provided a supplementary report in which he said:
[Mr Farrell] had an inconsistent presentation being able to sit with his knee flexed to 90˚ without discomfort and being able to walk fully extending his right knee, yet in the examination state he was unable to fully extend the right knee and he would not flex it more than 70˚. … [T]here was no evidence of wasting of the right quadriceps muscle compared to the left. There was no evidence of reflex sympathetic dystrophy or complex regional pain syndrome type I as it is now called. Bone scanning revealed some uptake in the knee but no more than would be expected for his level of degenerative change. …
His current symptoms are not consistent with any specific diagnosis. One might have expected minor symptoms in the right knee as a result of the degenerative change but his injury occurred on 23 June 2003 and almost six years later his symptoms are not consistent. If he is not using his knee to the level he said, I would have expected wasting of the right quadriceps and other changes, but these were not evident.
On balance Dr Pierides considered Mr Farrell was capable of returning to work without restriction.
In response to a question ‘Does [Mr Farrell] continue to suffer the effects of the compensable condition?’, Dr Pierides responded:
It would seem unusual that the patellofemoral degenerative change or lateral compartment degenerative change is related to the medial meniscal tear although it is reasonable to suggest that some change in the medial compartment of his right knee relates to the compensable condition given the fact that he had a medial meniscal tear.
In response to a question about the degree of permanent impairment under the First Edition of the Guide, he replied:
There has to be some pathology that causes the restriction of movement [referred to in Dr Bodel’s report] and although he has been diagnosed with having chronic pain if he were truly not utilising his right leg normally, then one would expect wasting of the musculature and changes in the knee joint that would be clinically evidence and also more extensive changes on the MRI and Bone scan. This is not the case so it is reasonable to come to the conclusion that the restricted range of motion is not due to a physical injury. Because of the inconsistency of his presentation during my examination, I believe that on the balance of probabilities his range of movement of both knees is normal although he may have symptoms in the right knee as a result of the medial compartment degenerative change. In informal circumstances this would not impair anyone to a degree other than perhaps minor pain.
Dr Pierides also expressed the view that only the medial meniscal tear and re-tear and early degenerative change in the medial compartment were work-related. As he went on: ‘The degenerative change in the patella femoral compartment and lateral compartment … cannot reasonably be associated to the work injury’. Later his report noted: ‘I do not believe there is any impairment of any other body part. I also do not believe in the premise that the left knee or low back have been injured by his altered walking gait’.
In conclusion Dr Pierides said:
[I]t is apparent that [a] number of examiners found a restricted range of motion but yet they give no reason why he has such a restricted range of motion. In the absence of wasting and in the absence of any signs of complex regional pain syndrome both on investigation and examination, there can be no logical reasons for such a restricted range of motion.
At the hearing, Dr Pierides confirmed that in his May 2009 report, he had noted that Mr Farrell had referred to pain in his left knee, ankle swelling in both ankles and low back pain as a result of being over reliant on the left leg. Dr Pierides said he doubted that there was a possible connection between the right knee injury and the low back and left knee problems, given the absence of pathology or process to develop sciatica from a right knee injury. He denied that it was plausible to argue that an injury to the right knee caused a degree of immobility that gave rise to weight gain, that gave rise to back pain, and that gave rise to sciatica. Dr Pierides said he doubted this on the objective evidence since ‘there was no evidence of wasting of the knee … [no wasting] of the quadriceps and of the leg … because if you don’t use a muscle … within … two to three weeks [you] get significant wasting’. As he concluded: ‘So the initial premise that he actually had a significant ongoing right knee injury that would cause some form of imbalance in his back and subsequently cause sciatica is a very long bow to draw indeed’. He also noted that ‘The idea of having an altered walking gait aggravating your back is something that sounds okay in principle, but really, there’s no evidence to suggest that such a thing occurs’.
Dr Pierides said that in his opinion it was only advanced degeneration of the spine which produces sciatica. He said it was unlikely that a person with a significant injury to one knee and who weight bears on the other knee as a consequence can cause acceleration or degeneration in the lower spine or in the weight bearing knee. He conceded that ‘there are multiple factors that … affect the experience of pain, not just the presence of changes on scans’. In his view ‘there would be no permanent injury to [a person’s back] as a result of walking with an awkward gait’.
56. In relation to Mr Farrell he said if you relied solely on the objective evidence he ‘would not have pain in the right knee, he may have some pain in his back’. However, as he noted, Mr Farrell was ‘obviously not someone who handles pain well. He certainly has pain behaviours and self-limitation’. Pain, being subjective, ‘has nothing to do with physical injury … in this sort of circumstance’. In Dr Pierides’s view, Mr Farrell’s reports of pain in the knees and the back were not ‘genuine reports of truly experienced subjective pain’. When asked to comment on the reports of the clinical psychologists who had found that Mr Farrell was not malingering, he said that the tests for such assessments were ‘all pretty flawed and I don’t necessarily accept they actually give genuine results … on malingering’. His conclusion was that Mr Farrell ‘does not have an injury to the extent that would limit him as much as he presented. Certainly he may have some symptoms in the knee due to degenerative change. But that’s the difference between some symptoms and being totally disabled or unable to … move your knee’. He said: ‘Pain is experienced from past learning experiences, your personality, secondary gain issues, the injury, your circumstances, social issues. It’s not a one-cause situation’. He said he had not explored those areas, as this was a task for psychiatrists or psychologists. He said of regional pain syndrome that it was a label attached to claimed experience of pain which could not otherwise be explained.
In response to a question about muscle wasting and the differences in thigh and calf measurements recorded by some orthopaedic surgeons he said ‘anything over 2 cm would be significant wasting’ but the bulk of the muscles would also be relevant. He confirmed that in the case of Mr Farrell the bulk and tone of his muscles and the reduction in the thigh and calf circumference were normal.
Dr Gray
Dr Rhys Gray, consultant orthopaedic surgeon, provided a report to Comcare dated 11 August 2010. Dr Gray reported ‘I was unable to elicit an effective straight leg raising test as Mr Farrell actively kept his right lower limb firmly on the examination couch; this was accompanied by grimacing and hyperventilation representing quite overt pain behaviour’. He found the circumference of the right thigh was 52cm and the left 54cm; of the right calf was 38cm and left calf 37cm.
He noted ‘general tenderness about the right knee with over-reaction to normal palpation of the soft tissues of the right knee. It was difficult to assess whether there was an effusion in the right knee. Stability of the right knee could not be assessed clinically’. He noted ‘no marked muscle wasting about the right quads versus the left’; And ‘increased range of movement … with normal walking … without the splint’. Findings of range of movement were accordingly ‘quite inconsistent’.
He reported straight leg raising to 70˚ reproducing right knee pain. On another occasion straight leg raising was limited to 30˚ on the right, with complaint of severe low back pain and right buttock pain. Left knee showed ‘mild patellofemoral irritability’. No effusion and ‘the left knee appeared stable’. There was a range of movement, plus 5˚ - 140˚ on the left. Lower limb reflexes were symmetrical and normal. There was no obvious sensory deficit in the lower limbs’.
His summary was:
Mr Farrell continues to complain of significant symptoms in the right knee dating to a work injury in June 2003. At present, he complains of dominant symptoms in the right knee including constant pain and the requirement to use a splint to mobilise. However, on clinical examination, Mr Farrell showed evidence of marked pain behaviour and inconsistencies. … There was no marked wasting or dystrophic changes in the right lower limb to reflect significant disuse of the right lower limb.
He concluded:
I did not identify any significant physical impairment in Mr Farrell’s right knee to account or explain his complaint of continuing significant spontaneous pain…. There was no evidence of complex regional pain syndrome/reflex sympathetic dystrophy. There was no evidence of infection or other inflammatory process. There was no significant degenerative or arthritic change in the right knee. There was some evidence of minor chondral damage and status post partial medial meniscectomy – these would not explain his continuing symptoms on a physical basis.
In relation to Mr Farrell’s complaints of lower back pain and sciatic pain, he said ‘There was no evidence on CT scan of nerve root compromise in the lumbar spine to account for radicular symptoms. There is evidence on that CT scan of degenerative change in the lower facet joints in the lumbar spine.’ He said Mr Farrell ‘is probably symptomatic from the degenerative change in the facet joints in the lumbar spine of a constitutional nature’. Dr Gray said: ‘In my assessment, changes in the lower lumbar spine would not be related to his work injury of June 2003 or subsequent continuing symptoms from the right knee’.
His diagnosis was ‘the continuing complaints and findings on physical examination reflect a non-organic presentation, rather than reflecting any significant continuing physical impairment of right knee function’. He continued: ‘In my assessment, there would be a minor physical impairment long term as a consequence of the partial medial meniscectomies as a result of the work injury of June 2003’. He acknowledged Mr Farrell had ‘chronic low back pain’ and said it was possible ‘this may be arising from facet strain in the lower lumbar spine with evidence of degenerative change on the CT scan of a constitutional nature’ but was not work-related. He considered ‘the possibility of an internal derangement being present’ in the left knee but that again in his view ‘was not related to the work injury’.
At the hearing, Dr Gray confirmed that the variable ranges of movement he observed at his assessment were inconsistent and led to what he regarded as an ‘abnormal pain response’. He found that the ‘variable range of movement and the relatively normal investigative results would appear to be inconsistent in that the apparent pain and the variable range of movement does not appear to fit with the relatively normal investigative findings’ relying on ‘MRI, arthroscopic and bone scan findings’. He confirmed that he could not see an orthopaedic cause for Mr Farrell’s pain. He denied that prolonged weight bearing on the left leg had the capacity to cause problems in the left knee. He also noted the absence of expected impact of ‘marked disuse of the right lower limb on muscle bulk’. As he said ‘from an orthopaedic point of view I couldn’t define the cause for the significant pain and also the physical findings that [Mr Farrell] listed’.
Dr Gray said he also would have expected ‘quite a considerable wasting in the right leg’ from Mr Farrell’s prolonged period of immobility due to not working, not walking more than 100 metres, sitting in a chair watching television, or just pottering around the house as he described his days. In response to a question about his finding that ‘there was no evidence of complex regional pain syndrome or reflex sympathetic dystrophy’, Dr Gray said he would have expected ‘more generalised change, for example, limb stiffness, change of colour, change of temperature’. There was no such evidence on the two bone scans. He countered an argument that a sedentary lifestyle would lead to muscle wasting, by noting you would also expect loss of muscle bulk and that too was absent.
Dr Wilkins
Dr Peter Wilkins, consultant occupational physician, reported to Comcare on 23 December 2010. He had difficulty doing a physical examination of Mr Farrell because of the patient’s ‘extreme pain behaviour’. However, he found range of movement of the left knee of 30˚ and 70˚ respectively. He was unable to produce a right knee jerk, but left knee jerk and both ankles jerks were normal. The circumferences of Mr Farrell’s thighs were right, 53cm and left 55 cm, and calf circumferences were right 36cm and left 36cm. Dr Wilkins noted ‘the right knee was difficult to examine as he claimed exquisite tenderness even to the lightest touch’. He found ‘a normal range of movement at the left knee but a restriction to 10˚ total movement at the right knee, between 15˚ and 25˚ flexion’.
He concluded for the left knee ‘I was unable to identify any specific injury. A bone scan performed on 7 March 2008 demonstrated the presence of mild arthritic change in the medial compartment of the left knee (as well as the right knee), however, there was no abnormality evident on clinical testing’. In relation to his back, he noted that mechanical lower back pain ‘possibly results from chronically altered gait because of his right knee condition. Equally, however, it may simply result from the ageing process superimposed on the type of heavy work Mr Farrell performed for much of his life and latterly contributed to by his excessive weight.’ He found ‘no evidence whatsoever of chronic regional pain syndrome in either lower limb’.
He concluded that the causal link of the low back pain with claimed sciatic radiation resulted from chronic alteration of gait following his knee injury ‘to be entirely conjectural’. In relation to chronic regional pain syndrome he said ‘there are no specific stigmata of this condition in either lower limb’. In respect of chronic pain syndrome, he said ‘this is a diagnosis of exclusion and I am unable to draw a realistic connection between such a condition and his workplace injury of 23 June 2003’. He concluded ‘there is no good evidence to support a connection between his accepted right knee injury and the other conditions now claimed’.
A supplementary report of Dr Wilkins dated 24 January 2011, confirmed that degenerative changes to Mr Farrell’s lower back shown by the CT scan performed on 7 September 2009 did not change his earlier opinion. He believed the changes were ‘non-specific and most likely degenerative in nature rather than due to any specific or incidental work related cause’. He also confirmed that, on the balance of probabilities, it was unlikely that Mr Farrell’s back condition has been significantly contributed to by the altered gait caused by his accepted right knee injury.
Dr Knox
Dr William Knox, consultant psychiatrist, provided a report for Mr Farrell on 11 October 2011. He diagnosed chronic dysthymic disorder with accompanying adjustment disorder with anxiety. He also agreed with Associate Professor Stevens that Mr Farrell suffered from pain disorder associated with both psychological factors and a general medical condition. Dr Knox said ‘Mr Farrell likely has a strong organic basis to his pain and additionally manifest personality traits causing significant psychological contribution to his experience of pain and disability’.
He noted ‘a moderately severe subjective level of pain due to his injuries …. Condition is stable and likely to continue indefinitely’. Equally he reported that Mr Farrell ‘is likely to continue with the mood disorders noted in this report, and the pain disorder indefinitely, in association with his physical health problems and disability’. As he said ‘These are likely to be of moderately severe degree, and will continue to play a supplementary role in Mr Farrell’s incapacity for work and general activities’.
In a supplementary report of 15 November 2011, Dr Knox noted that Dr Gertler’s diagnosis of adjustment disorder with depressed mood ‘is not at great variance with my diagnosis of dysthymic disorder, both these diagnoses label depressive illness less severe than major depression’. He said ‘I do differ in my opinion that there is an element of anxiety present, and that pain disorder warrants diagnosing, indicating there is an emotional impact on the experiences of pain’.
At the hearing, Dr Knox did not resile from the conclusions in his earlier reports. He said he did not find that Mr Farrell was not genuine in his complaint of pain in his lower back and left knee; he suffered pain and was disabled and there was an interaction between his pain disorder and his adjustment disorder.
He confirmed his view that Mr Farrell’s pain disorder was associated with the organic pain he experiences in relation to his right knee, his left knee and his lower back. He regarded the left knee pain organic injury as ‘an overuse injury’ due to the ‘alteration of gait because of the injury to the right knee’. He regarded this as due to the accepted injury, Mr Farrell’s age, and being overweight (Mr Farrell said he had put on 20kg since 2003, but there is evidence indicating that the figure is higher). Similarly there was a causal connection between the right knee injury and his lower back injury in a general sense. He conceded, however, that his opinion on the organic injury should defer to the opinion of an orthopaedic surgeon or an occupational physician on this issue.
In relation to his chronic pain disorder, while doubting that Mr Farrell’s level of pain was 10/10 as claimed, he said this was a signal to the world as to, ‘how helpless and troubled [Mr Farrell] is’, and he said that this is ‘where the pain disorder diagnosis comes in, to help us to understand what’s going on for the total person’. He conceded that a diagnosis of pain disorder did not establish that ‘someone actually had an organic or physical injury’.
Dr Le Leu
Dr Leon Le Leu, occupational physician, provided a report for the applicant dated 1 November 2010. In that report he observed straight leg raising on the right was to 40˚ with increased lower back pain, but a negative sciatic stretch; straight leg raising on the left was 80˚ again with a negative sciatic stretch but also with increased lower back pain. There was a 2 cm decrease in circumference of the right thigh compared to the left but no decrease in the calf. There was no sensory loss. He observed no change in colour or temperature of the right leg compared with the left; normal circulation in both legs; left knee was normal with a normal range of movement.
In his opinion a consequence of his right knee injury was that:
… as a result of [Mr Farrell’s] altered gait, he has developed lower back pain possibly on the basis of accelerated degeneration. There was no actual injury to the right buttock and the pain he is experiencing there is almost undoubtedly referred from the back. There is no clear evidence of an identifiable injury to he left knee. There is no clear evidence of a chronic pain syndrome. There was also evidence of pain behaviour on examination which seems to have been at a considerably lower level than that observed by Dr Gray but was still present.
He also noted ‘because of the right knee injury, the secondary lower back and left knee symptoms will increase due to gait disturbance’. He said he was ‘unconvinced about a specific chronic pain syndrome’. As he explained, ‘He has chronic pain because he has a chronic source of pain rather than an identifiable “chronic pain syndrome”’.
At the hearing, Dr Le Leu confirmed that it was his opinion that Mr Farrell had pain in his back and in buttocks and in the left knee. He also confirmed that Mr Farrell had pre-existing degeneration in the lumbar spine, and it was his experience with people who favour one leg or have difficulty walking on one leg, that they develop back pain because of the way they are walking. That led him to disagree with the view of Dr Wilkins that any causal link between Mr Farrell’s right knee injury and his claimed injuries was ‘merely conjectural’. At the same time, he could not point to research literature which would support the view. He did say, however, that in standard modern references, case studies which he had seen supported this association. He said he would also disagree with the view of those orthopaedic surgeons who had denied any connection between the right knee injury and the pain in the lumbar spine and the left knee. He did concede that Mr Farrell may have been ‘embellishing his symptoms’. However, before so finding he said he would like to get a psychological or psychiatric opinion’. He also said ‘if a person is depressed they experience pain in a – a magnified way, and then the pain feeds into their depression. So it’s a sort of a circular thing’.
Legislation
The relevant provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) are section 14 which provides for payment of compensation for an injury suffered by an employee that leads to incapacity for work or impairment; definitions of ‘injury’ and ‘disease’ in section 5A and 5B; designation of the ‘date of injury’ in section 7(4); and the definition of ‘medical treatment’ in section 4(1).
Issues
Claim No A2009/5312
The principal issue is whether Mr Farrell suffers an impairment resulting from his right knee condition ‘sprain of other specified sites of knee and leg (right)’.
Specific issues for the particular claims follow.
Claim Nos 2010/1496 and 2010/4285
Whether under section 14 of the Act the following conditions are secondary to Mr Farrell’s accepted condition:
low back pain with sciatic like pain in right buttock;
left knee pain; and,
chronic pain syndrome.
The applicant contends that the three nominated injuries may also have arisen as an aggravation, acceleration or degeneration of a constitutional condition.
Consideration
Mr Farrell injured his right knee at work. Comcare accepted liability to compensate him for that condition. Subsequently, Comcare also accepted liability for an adjustment disorder with depressed mood arising out of the knee pain. Mr Farrell’s present claims are that he suffers from chronic pain syndrome, a left knee condition and a lower back condition with sciatic like pain in the right buttock. He contends that weight gain as a result of immobility caused by his right knee injury has increased pressure and led to injury in his back and left knee. He also claims that disturbance of his gait has caused, or in the alternative aggravated, a degenerative condition in those joints. In either event, he argues that his claimed conditions are secondary to his accepted condition.
Date of injury
The clinical records of Dr Bonney, Mr Farrell’s general practitioner, indicate that Mr Farrell first raised complaints about pain in his lumbar region, right buttock and left knee, as well as sciatica in the right buttock and leg, on 21 August 2009. However, in his workers’ compensation claim dated 12 October 2009, Mr Farrell claimed a date of injury for a ‘sprain of left leg and lumbar sprain’, of 1 May 2005, for chronic pain syndrome, of 11 July 2008, and for sciatic type pain, of 7 September 2009. In oral evidence Mr Farrell also said he first experienced pain in his back, buttocks and into his right leg, and his left knee, in 2005. Later under cross-examination he said initially his sciatica had come on at the same time as his back pain, that is, in 2005. Subsequently he said it was ‘later’ but he wasn’t sure when.
When Mr Farrell was seen by Mr Jones in May 2006, he complained of low back pain and when Dr Bodel saw him in March 2008 he gave a history of left knee pain that had come on in late 2005 or early 2006.
Section 7(4) of the Act fixes the date of injury as either the day the employee first sought medical treatment or the day the disease first resulted in incapacity for work. Given that Mr Farrell was not working in 2005, the test must be the day Mr Farrell first sought medical treatment. In the face of the inconsistencies in the evidence, and the fact that the records of such complaints in 2005 and 2006 were for the purposes of medical-legal reports, not for ‘medical treatment’,[1] the Tribunal has accepted 21 August 2009 as the date of injury.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 4(1) – definition of ‘medical treatment’.
Chronic pain disorder
Mr Farrell has claimed compensation for chronic pain syndrome arising from his accepted injury. In addition, the claims he has made relating to pain in his right buttock, low back and left knee, depend on a finding that the pain he experiences in his right knee originated in the effects of his accepted conditions. For these reasons, the consideration will commence with an examination of his right knee condition.
A difficulty with a claim of chronic pain syndrome is the absence of an agreed set of symptoms for this disorder. Although pain disorders are defined in DSM4, the expression chronic pain disorder is also used loosely and interchangeably with chronic pain syndrome, complex regional pain disorder, reflex sympathetic dystrophy and causalgia. That lack of a uniform understanding was apparent in the reports and oral evidence of some specialists. Their testimony did not necessarily align with the particular DSM4 categories of pain disorder, nor did they exhibit a common understanding of symptoms of such a disorder. In addition, there was some scepticism about claims for any condition with that label. Dr Ho referred to the expression ‘chronic pain disorder’ as a ‘rubbish bin diagnosis’; others agreed the description was a diagnosis of exclusion, used, as a last resort, when no objective evidence is available in support of continuing pain.
DSM4 categorises a pain disorder in the following sub-categories:
·Pain disorder associated with psychological factors (307.80) (Category 1)
·Pain disorder associated with both psychological factors and a general medical condition (307.89) (Category 2) ; and
·Pain disorder associated with a general medical condition (not a mental disorder) but listed because the medical condition is the principal factor, with psychological factors playing either no or a minimal role) (Category 3).
In addition, DSM4 states under ‘Diagnostic Features’ for pain disorder that:
The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention (Criterion A). The pain causes significant distress or impairment in social, occupational, or other important areas of functioning (Criterion B). Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain (Criterion C). The pain is not intentionally produced or feigned as in Factitious disorder or Malingering (Criteria D). Disorder is not diagnosed if the pain is better accounted for by a Mood, Anxiety, or Psychotic Disorder, or if the pain presentation meets criteria for Dyspareunia (Criterion E).
The evidence indicated that the majority of the medical specialists accepted the presence of diagnostic features, Criteria A and B. Their principal focus was on the presence of Criteria C-D. Although some experts noted the possible presence of a mood disorder, they did not deal with this feature in terms of its exclusionary impact and it is not further considered.
Category 2 and Category 3 pain disorder
The first issue is whether Mr Farrell’s condition falls within a pain disorder in either Category 2 or Category 3. Mr Farrell has an accepted physical condition, his right knee injury and an accepted psychological condition, his adjustment disorder. The expression ‘general medical condition’ used in DSM4 relates to a physically identifiable condition.[2] There is evidence, as discussed under Category 1, to indicate that the psychological disorder has contributed to Mr Farrell’s perception of pain.
[2] Seethe discussion of the expression ‘mental disorder’ and its antonym, ‘physical disorder’: DSM4 xxx-xxxi.
Counsel for Mr Farrell indicated that his primary claim was that Mr Farrell’s conditions related to a ‘physical injury with pain consequences’. The evidence of the orthopaedic specialists and occupational physicians focused on the possibility that Mr Farrell was suffering from a pain disorder associated with a general medical condition. As Dr Pierides commented in his report: ‘There has to be some pathology that causes the restriction of movement’ claimed by Mr Farrell.
In their reports, the specialists used standard tests for functional disability to assess whether there was objective evidence of pathology in Mr Farrell’s right knee. These tests related to muscle wasting, straight leg raising, range of motion, and sensory or nerve root impairment. The objective evidence from MRIs, and CT and bone scans was also taken into account. The medical experts noted Mr Farrell’s claimed heightened sensitivity to examination of his right knee, a sensitivity that prevented several of them being able to carry out elements of the standard tests.
Muscle wasting
The evidence of muscle wasting apparent from these reports is divided into two different time frames. There is a marked difference between reports of examinations prior to 2008 and those done subsequently.
In oral evidence, Dr Cossetto said he had observed wasting of the right quadriceps in November 2004, and in January 2005 and in July 2005, wasting of moderate severity was still present. Professor Webster, who reported in 2005, had found marked wasting of the quadriceps muscle in the right thigh. Dr Ho found right thigh atrophy in January 2006, as did Mr Jones on 11 May 2006. However, Dr Shepherd in his report of 21 April 2006 found ‘minimal wasting of the controlling muscles of the knee’. On balance, the Tribunal finds that there was discernible muscle wasting up to and including mid-2006.
By 2008 the picture was different. Dr Bodel in a report dated 31 March 2008, made no reference to thigh muscles, but observed that although Mr Farrell demonstrated a mild right sided limp, he was able to rise, walk on heels and toes and climb onto the couch without difficulty. As he indicated those observations were consistent with at least reasonable power in his leg muscles, including the quadriceps group. His 18 September 2009 report, however, noted that Mr Farrell had ‘difficulty walking on the heel and toes of his right foot and climbs on the couch slowly’. This contrasting view indicates the difficulties expressed by many of the experts in making findings in relation to Mr Farrell.
Dr Pierides, who provided a report in May 2009, had found minimal or no muscle wasting. As he said ‘In essence, his right knee and leg looked entirely normal compared to the left side’, although he conceded a 2 cm difference wasting in thigh circumference. As he said, he would have expected a marked difference and loss of muscle bulk given the length of time since the original injury, and Mr Farrell’s lifestyle, and these were not present.
Dr Gray, and Dr Le Leu, had found a 2 cm difference in circumference in Mr Farrell’s right thigh as compared with the left on examination in 2010, but Dr Gray found no evidence of disuse on muscle bulk. Dr Le Leu made no reference to muscle wasting. Dr Bonney’s view was that true wasting, that is, a pathological loss of muscle bulk, would not arise simply from a sedentary lifestyle.
The Tribunal is satisfied on medical grounds and finds on this evidence that following the second arthroscopic repair, there was moderate wasting of Mr Farrell’s quadriceps muscles on the right side indicating significant disuse in reports until mid-2006.
However, by May 2009, when Mr Farrell saw Dr Pierides, there had been sufficient recovery of function in Mr Farrell’s right leg to restore most or all his quadriceps muscle group, and to maintain muscle size in his calves. In oral evidence both Dr Ho and Dr Pierides interpreted this to mean that Mr Farrell was using his right leg to a greater extent that he suggested on examination. Although Dr Gray and Dr Le Leu had found that the circumference of the right thigh was 2cm less than the left, the Tribunal is not satisfied that this exhibited marked wasting.
Accordingly the Tribunal finds, on the evidence, that Mr Farrell did not exhibit wasting of the muscles of his right thigh to the extent which could be expected from someone who said they had prolonged periods of immobility, did not work, was not walking more than 100 metres, and was generally sitting in a chair watching television or, by his own admission, pottering around the house.
Straight leg raising
This form of testing produced equally inconsistent results. Dr Cossetto found that under anaesthesia Mr Farrell had a full passive range of motion in the right knee, in contrast to his findings on examination when not anaesthetised. Dr Ho said Mr Farrell could not do straight leg raising, and noted the ‘discrepancy on the range of movement in the knee when he was sitting or lying down’.
In September 2009, and again in June 2011, Dr Bodel had found leg raising to 80 degrees bilaterally. Dr Gray’s findings in relation to straight leg raising were that the results obtained were inconsistent; Dr Wilkins was unable to test for leg raising on the right side; Dr Le Leu found straight leg raising on the right was to 40˚ and on the left was 80˚. On balance the Tribunal finds that the variability in the findings means the results cannot be relied on.
Range of motion
Dr Ho, recorded inconsistent results for range of movement when lying as compared with sitting. Dr Shepherd found the range of movement of the right knee was ‘variable’. Dr Bodel found a significant difference in flexion with 90˚ on the right hand side compared with 120˚ on the left, and that he was lacking 10˚ of knee extension on the right, with full knee extension on the left. Dr Wilkins found normal range of movement of the left knee, but a significantly limited range on the right. Dr Pierides said in oral evidence that Mr Farrell ‘would not move his knee more than a few degrees in either direction, yet he could sit with it at 90˚’ and could walk normally down a corridor. That inconsistency led him to conclude that the range of movement of both knees was normal. Not all the orthopaedic or occupational specialists tested these matters. Dr Bonney had found full range of movement in October 2009.
Again, the variability in the findings, particularly in reports since 2009, meant the Tribunal was not able to be satisfied that Mr Farrell’s examinations indicated the presence of a pain disorder. Accordingly the Tribunal has given this factor minimal weight.
Sensory or nerve root impairment
Mr Farrell clearly exhibited heightened sensitivity to touch, as recorded by all the orthopaedic or occupational specialists. Dr Pierides noted: ‘Mr Farrell was ‘obviously not someone who handles pain well. He certainly has pain behaviours and self-limitation’. Dr Bonney considered the level of sensitivity indicated either arthralgia or allodynia.
Some medical reports referred to other possible symptoms of injury to the right knee such as change in temperature or colour, swelling, effusion, infection or other inflammatory process were equally equivocal. Dr Davison, Dr Le Leu and Dr Gray found no heat, change of colour or swelling. Dr Bodel and Dr Pierides found no evidence of effusion; Dr Bodel also foundno reflex abnormality or sensory impairment, no evidence of nerve root irritability, no ligamentous laxity of the right knee, and no clinical sign of radiculopathy in the lower right limb.
The Tribunal has found on this test that the predominant view of the orthopaedic specialists and occupational physicians was that despite Mr Farrell exhibiting significant pain behaviours, there was little in the way of physical evidence from sensory and nerve root impairments to support a contribution to the existence of a chronic pain syndrome.
Dr Gertler said the reports of the orthopaedic and occupational specialists indicated that ‘the organic basis to the pain must be considered to be in some doubt’. That finding is reinforced by the objective findings from the MRI, the CT and bone scans and the arthroscopy which showed relatively normal investigative findings (Dr Davison), although there was some mild arthritic change in the medial compartment of the right knee (Dr Wilkins, Dr Gray, Mr Jones, Dr Cossetto) and some minor chondral damage (Dr Gray, Mr Jones).
Professor Webster found that Mr Farrell was suffering ‘pain of musculoskeletal origin’, and Associate Professor Stevens and Dr Knox considered he had a pain disorder with both psychological factors and a general medical condition.
Summary relating to medical condition
Mr Farrell undoubtedly experiences pain in his right knee. However, despite the views of Professor Webster, Associate Professor Stevens and Dr Knox, none being orthopaedic specialists, there is little objective support from the evidence that he continues to suffer a physical injury or medical condition which is the cause of any pain disorder. The evidence is either too variable to be relied on or, as with the significant evidence about the absence of the extent of muscle wasting and loss of muscle bulk which could have been expected six or eight years after Mr Farrell’s injuries, does not support Mr Farrell’s claim that the injuries to his right knee indicate a medical condition that could be the cause of his chronic pain.
Taking account of the required diagnostic features for pain disorder, On balance, there was an absence of the normal physiological indicators of continuing organic damage to the right knee to support consideration of pain disorder under Categories 2 and 3. MRI, bone and CT scans provide evidence of only mild arthritic change in the right knee and developing osteoarthritis, rather than continuing physical damage to his right knee due to the 2003 injury. The Tribunal finds accordingly that, on the balance of probabilities, Mr Farrell’s pain disorder does not fall within the second or third categories of pain disorder in DSM 4.
Pain disorder associated with psychological factors (Category 1)
That leaves for consideration whether Mr Farrell is suffering from a pain disorder principally due to non-organic factors. The Tribunal has relied in particular on the testimony of the psychiatrists and clinical psychologists who examined Mr Farrell. With the exception of Dr Bonney, the orthopaedic and occupational specialists and the physicians who considered the possibility that Mr Farrell might be suffering from this condition agreed that it was a psychiatric disorder and its assessment lay outside their field of expertise.
The diagnosis of a pain disorder associated with psychological factors requires that the factors are particular to the person and are also significant contributors in the causal chain. It is, therefore, necessary that such psychological factors as are considered to apply to Mr Farrell’s condition be identified to the Tribunal.
The Tribunal accepts on the evidence that Mr Farrell’s experiences of pain enable his symptoms to meet criteria A and B of the diagnostic features for a Category 1 pain disorder. He has been treated clinically for his chronic pain by medical and other specialists for a considerable period (Criterion A), and he claims that pain has caused distress or impairment in social, occupational or other important areas of functioning (Criteria B).
Particular consideration must be given to the diagnostic features in criteria C and D – that psychological factors are judged to play a significant role in the onset, severity, exacerbation or maintenance of the pain (Criterion C), and that the pain is not intentionally produced or feigned (Criterion D) in a claim for a Category 1 pain disorder. The Tribunal notes that there was insufficient attention in the reports and oral testimony to Criterion E, the possibility that the pain disorder is better accounted for by a mood disorder, for the Tribunal to be able to gauge the effect of this diagnostic feature.
The Tribunal notes that Mr Farrell has an accepted claim for an adjustment disorder. That condition was secondary to his right knee condition, a physical condition. The issue is whether that disorder on its own or in conjunction with other psychological factors has in turn contributed to the development of a pain disorder.
The predominant view of the specialists was that Mr Farrell’s continuing experience of pain could only be explained by factors other than physical pathology. For example, Dr Gray said that ‘the continuing complaints and findings on physical examination reflect a non-organic presentation’. Dr Ho acknowledged that Mr Farrell had ‘chronic back pain’, but concluded ‘there are a lot of non-organic factors’. Professor Webster noted a high level of anxiety and depression.
There was agreement among the medical experts (Dr Cossetto, Dr Gray, Dr Bonney and Dr Wilkins) who considered this issue that Mr Farrell did not exhibit clinical features of complex regional pain syndrome (previously known as reflex sympathetic dystrophy or causalgia) and the Tribunal so finds. That condition can be discounted as being the psychological factor associated with a pain disorder.
Dr Leung diagnosed adjustment disorder with mixed anxiety and depression. Clinical testing by Dr Leung identified a moderate level of depression, a severe level of stress, and an extremely severe level of anxiety. However, she assessed Mr Farrell in 2006 and on only two occasions before he declined further psychological assistance. As she did not go on to work with Mr Farrell, her reports contain no insights into whether any of these psychological factors ‘are judged to play a significant role in the onset, severity, exacerbation, or maintenance’ of a pain disorder (Criterion C).
Associate Professor Stevens also identified a pain disorder with psychological factors, which he diagnosed as a major depressive disorder with moderate symptoms, although he had also associated these conditions with a general medical condition, a view which the Tribunal has discounted. Associate Professor Stevens’s report also stated there were ‘strong indicators of chronicity, including significant catastrophizing beliefs, fear, avoidant behaviour, depression and hyperarousal, which may complicate and prolong his experience of pain’.
However, the Tribunal was informed at the hearing that Mr Farrell was tested by a newly trained general, not clinical, psychologist employed by Associate Professor Stevens. In light of this, the apparent inconsistencies in the reported test results, and the finding that Mr Farrell’s medical condition is not associated with a pain disorder, the Tribunal gives little weight to the testimony of Associate Professor Stevens.
Dr Bodel, Dr Le Leu and Dr Cossetto were of the opinion that Mr Farrell did not have the features of a chronic pain disorder. However, they agreed that his report of pain experience had unusual features. Dr Le Leu in his oral evidence referred to some positive Waddell signs indicating illness behaviour, psychologically based, but also some embellishing of symptoms. At the same time, he noted that ‘if a person is depressed they experience pain in a … magnified way, and then the pain feeds into that depression … a circular thing’. His view indicates that Mr Farrell’s adjustment disorder could be associated with the development of a pain disorder but his evidence did not indicate that depression played ‘a significant role in the onset, severity, exacerbation, or maintenance’ of Mr Farrell’s pain.
Dr Knox agreed with Associate Professor Stevens that Mr Farrell suffered from pain disorder associated with both psychological factors and a general medical condition. However, he said he would defer to the orthopaedic specialists in relation to his opinion as to the organic basis for pain. He had diagnosed a dysthymic disorder rather than an adjustment disorder with depressed mood. His opinion was that there was ‘an element of anxiety present and that pain disorder warrants diagnosing, indicating there is an emotional impact on the experience of pain’.
When questioned as to the link between any other specific psychological factors and Mr Farrell’s chronic pain disorder, information that was not included in his written report, Dr Knox acknowledged that he had not identified them. In his oral presentation, however, he said his finding of chronic pain could be related to Mr Farrell’s background including the loss of his parents, particularly his father, his minimal employment, the absence of a ‘rich education’, and his current unemployment. As Dr Knox said, this meant, in his view, that Mr Farrell was not able psychologically to manage his life to the same extent as a person with a more privileged background.
Dr Knox’s diagnoses indicate that there was a level of anxiety contributing to Mr Farrell’s experience of pain, but his reference to ‘an element of anxiety’ and his evidence to the Tribunal about other psychological factors which could have had an impact did not give any indication that these were ‘significant’ contributors to Mr Farrell’s continuing experience of pain.
Dr Gertler had diagnosed an adjustment disorder with depressed mood. As he said Mr Farrell suffers from ‘chronic pain syndrome which has resulted in the development of a psychogenic overlay to the pain which he experiences’. That meant that ‘the experience of pain is maintained’ despite the diminution of physical symptoms. In his view the psychological factors were Mr Farrell’s low self-esteem, his relative isolation within the family, and his feelings of loss at being unable to participate in activities with his children.
Although Dr Gertler did identify factors of a psychological nature which might have precipitated Mr Farrell’s chronic pain condition, the Tribunal is again not satisfied that they were sufficiently significant to have led to pain of the severity said to be experienced by Mr Farrell.
Mr Farrell’s statement that he feels isolated and is unable to participate in activities with his four children, the youngest of whom is a teenager, may also be psychological factors of more significance. However, there was insufficient evidence that it was these factors, in conjunction with his accepted conditions, which had led to his development of chronic pain.
Dr Bonney’s evidence, based on the classification for chronic pain syndrome in the International Society for the Study of Pain, was that Mr Farrell’s circumstances met the social and psychological factors for the disorder. The circumstances to which he referred were Mr Farrell’s sedentary lifestyle, his lack of motivation and depression, the impact of his knee on his family life, his unemployment, and his inability to do the things he formerly enjoyed. These are the factors in general identified also be Dr Gertler and Dr Knox and considered in evaluating their testimony.
In summary, anxiety features in several of the reports and supports the possibility that Mr Farrell’s that his anxiety has led to him having a heightened response to pain as reported by Associate Professor Stevens, Dr Leung, and Professor Webster. However, anxiety on its own was not relied on by any of the experts as a sufficient psychological factor of sufficient moment that it might have played a significant role in the onset, severity, exacerbation or maintenance of Mr Farrell’s level of pain and the Tribunal so finds.
Support for this finding also comes from criterion D of the required diagnostic features, namely whether the pain is has been ‘intentionally produced or feigned as in … malingering’. An issue at the hearing was whether Mr Farrell was embellishing his symptoms. He said to the Tribunal that the pain he experiences most of the time on a scale of 10 is 7, and that when he gets out of a chair or stands, the pain is 10 out of 10, the ‘worst imaginable pain’.
The Tribunal does accept that Mr Farrell is experiencing pain constantly and in general the evidence from the specialists indicates that he has a perception of his experience of pain that is above the norm. At the same time, the Tribunal acknowledges that not all the medical specialists considered Mr Farrell’s pain experiencing behaviours were fully justified. Among these who doubted the severity Mr Farrell expressed were Dr Davison (2005), Dr Ho (2006), Dr Wilkins (2010) and Dr Pierides (2009 and 2010). Both Dr Wilkins and Dr Pierides provided oral evidence which was consistent with their reports.
Dr Le Leu noted some degree of embellishment. Dr Pierides said he doubted that Mr Farrell had an injury which would limit him as much as he presented or cause pain to the extent he indicated. As he reported, after Mr Farrell left his surgery following the examination, he walked without a walking stick down a 20-30 metre corridor and his walking gait was within the normal range. Associate Professor Stevens in oral evidence conceded that someone with a level of hypochondriasis as his assessment had found might exaggerate symptoms.
Dr Shepherd found that he was ‘genuine in his disability, but it is difficult to decide at which level it lies’. Mr Jones in 2006 considered that Mr Farrell’s pain avoidance behaviours were ‘not inconsistent with the known injury and the subsequent pain disablement that he has developed’. Dr Gertler found that the inconsistencies in Mr Farrell’s evidence were insufficient to indicate malingering.
Several of the experts acknowledged that pain is subjective. As Dr Pierides said: ‘Pain is a multi-factorial presentation. Secondary gain issues, personality, past learning experiences’ all contribute to the experience of pain. Dr Le Leu said in oral evidence pain was: ‘a function of their mental state and personality state’. Dr Gertler agreed that: ‘different people experience different levels of pain in response to what appear to be apparently similar injuries’ and ‘psychological factors [including depression] would play a role in a person’s pain response’; Dr Knox agreed that ‘personality, life experiences and psycho-dynamic factors’ would influence a person’s experience of pain and that these factors would need to be personal to the individual.
Counsel for Mr Farrell noted that the assistant to Associate Professor Stevens had obtained results from psychological tests administered to Mr Farrell showing he was not malingering. She had found that on the P3 test, the report stated: ‘He did not invalidate the sensitivity scale (9). This means that he did not magnify his symptoms and the profile can be considered a valid picture of his condition’. The cut off point for invalidity was 12 and Mr Farrell scored 9. He also scored 9 of the Rey Memory Test, also used in relation to malingering. The report noted that ‘A score below 9 would be very suggestive of malingering in a normal population’.
Mr Farrell was on the borderline for the Rey Memory test and no attempt was made to explain the apparent inconsistency between this borderline result and the apparently firm conclusion of ‘no malingering’ on the P3 tests. Dr Pierides when asked to comment on the results said that these tests ‘are all pretty flawed’. As he went on: ‘I don’t accept that they give genuine results on malingering’.
The significant doubts expressed by several of the specialists as to the degree to which Mr Farrell is experiencing the level of pain he claims, coupled with doubts about the weight to be attributed to, and the usefulness of the psychological tests for malingering, allied with the Tribunal’s own observations of Mr Farrell at the hearing, indicate a degree of doubt about as to whether he is experiencing pain at the level claimed. The Tribunal notes that Mr Farrell gave evidence to the Tribunal for nearly two hours without obvious excessive discomfort. Nor was his ability to stand from a seated position apparently causative of significant pain. Mr Farrell’s evidence was that the level fluctuates over the day, but to rate the level at 10/10 is improbable and the Tribunal’s observation of Mr Farrell at the hearing when he was both sitting and standing did not sustain such a finding.
On balance, the Tribunal is not able to be satisfied on the balance of probabilities, that Mr Farrell is suffering a pain disorder associated with psychological factors. That finding is based on the equivocal evidence about the nature of any associated psychological factors, together with the absence of evidence that any such factors could have played a significant role in the onset, severity, exacerbation, or maintenance of his pain, and some doubts about the level of pain he is in fact experiencing (the embellishment or malingering factor). Mr Farrell is accordingly not suffering from a pain disorder of any category.
Sciatica, low back pain, and left knee pain
The next issue, however, since Mr Farrell continues to experience a level of pain, is whether that pain was such as to cause any injury to his left knee, sciatica in his right leg, and pain in his right buttock. Before examining that issue, the Tribunal examines the evidence of the existence of pathology in the left knee, right buttock and lower back.
Mr Farrell’s argument was that the pain he experiences, in conjunction with his weight gain has caused the sciatica in his right leg, the pain in the buttock, and his left knee pain. In addition, his argument was that both the pain from his right knee condition and his related weight gain had caused a change of gait which in turn had caused him to develop consequential pain in his right knee, lower back, buttock and sciatica in his right leg.
Existence of pathology
The first issue is whether Mr Farrell suffers from an injury to his left knee or his lower back or right buttock. The bone scan of 7 March 2008 and the CT scan of 7 September 2009 revealed mild degenerative/arthritic change in Mr Farrell’s knees and degenerative change to his lower back. Dr Wilkins could not identify any specific injury to the left knee, but he noted that the bone scan on 7 March 2008 showed mild arthritic change in the medial compartment of the left knee, but no abnormality on clinical testing. His supplementary report confirmed his view that the claimed conditions in the left knee and lower back were ‘non-specific’. Dr Pierides said Mr Farrell had some symptoms in the knee due to degenerative change. He also said that only advanced degenerative change could lead to sciatica. No specific mention was made in the other reports of whether Mr Farrell’s sciatica and right buttock pain were related. Dr Bodel found ‘no clinical indication that there has been an aggravation of any pre-existing pathology’. Dr Gray noted that the left knee showed mild irritability but found no CT evidence of nerve root compromise in the lumbar spine to account for radicular symptoms. He did find evidence from the CT scan of degenerative change in the lumbar spine.
In summary, the predominant view is that the evidence including MRI, CT and bone scan evidence, indicated that Mr Farrell had mild degenerative or arthritic change to his left knee, and there was a degenerative change to his lower back. The Tribunal so finds.
Impact on weight gain
Mr Farrell’s evidence was he had been 85kg before the injury in 2003 and was now about 120kg in weight. The Tribunal has no reason to doubt his claimed weight as at present which is supported also by evidence of Dr Gray and Dr Le Leu in 2010. However, the Tribunal notes that the admission record at Nowra Private Hospital dated 10 May 2005 records Mr Farrell’s weight as 98kg. In his report of May 2006, Mr Jones notes Mr Farrell’s weight as 95kg. Dr Bonney’s clinical note of August 2006, records a weight of 85kg. These findings raise issues about the cause of his weight gain. Since 2006 was the time when t Mr Farrell’s muscle wasting was at its most significant, if his knee problems had caused weight gain it could be expected that this was the time at which his weight would be greatest. That was not the case. This casts doubt on the causative relationship between his later weight gain and his functional disability.
Whether connection to claimed conditions due to pain, increased weight and change of gait
Dr Bonney’s view was that Mr Farrell had developed ‘muscle strain/fatigue in the right pelvic muscles from his gait abnormality, which is all secondary to his knee injury’. He said he had no doubt that Mr Farrell was suffering pain in his left knee and back and that the pain was ‘reasonably related to his altered gait due to the pain in his right knee’.
Dr Bodel found a causal link between Mr Farrell’s original injury to the right knee and his abnormal gait pattern as a result of that injury and the aggravation of the underlying pathology in the back. As he concluded Mr Farrell’s ‘abnormal gait pattern has caused an aggravation of a pre-existing and previously asymptomatic condition’, and hence there was ‘a causal link between his original injury to the right knee and his abnormal gait pattern as a result of that injury and the aggravation of the underlying pathology in the back’.
Dr Pierides denied any causal link to the symptoms in Mr Farrell’s left knee, and his immobility, weight gain, back pain and sciatica. As he said at the hearing it was unlikely that a person with a significant injury to one knee and who weight bears on the other knee as a consequence can cause acceleration or degeneration in the lower spine or in the weight bearing knee because ‘there’s no particular pathology or process to be able to develop sciatica from a right knee injury’. He agreed that advanced degeneration of the spine could cause sciatica but that was not evident in Mr Farrell’s case. In his view the causal chain hypothesised depended on the right knee limiting Mr Farrell significantly and this was negated by the absence of marked wasting of the quadriceps and of the leg. In addition, as he said ‘The idea of having an altered walking gait aggravating your back is something that sounds okay in principle, but really, there’s no evidence to suggest that such a thing occurs’. As he said it would be ‘a very long bow’.
Dr Gray concluded that the symptoms in the left knee and lower back were constitutional. He acknowledged that Mr Farrell had ‘chronic back pain’ and said ‘this may be arising from facet strain in the lower lumbar spine with evidence of degenerative change on the CT scan of a constitutional nature’. However, he went on ‘I would not attribute any connection between the chronic low back pain and the work injury of 2003 on a physical basis’. He also said in relation to the left knee, even if due to ‘an internal derangement’, it is ‘not related to the work injury of 2003 or subsequent symptoms or treatment’. It was also his opinion that ‘no pre-existing condition was aggravated, accelerated or caused to recur by factors relating to [Mr Farrell’s] employment’ accepted condition. In other words his view was that the changes in the lower lumbar spine and the left knee problems were not related to the right knee injury and hence to Mr Farrell’s work.
Dr Wilkins’s supplementary report following re-examination of the CT scan on 20 September 2009 confirmed his view that the claimed conditions in the left knee and lower back were ‘non-specific’ and most likely degenerative in nature rather than due to any work-related cause. He doubted that Mr Farrell’s back condition had been significantly contributed to by the altered gait caused by his right knee injury. In his view the causal link between the right knee injury and his claimed conditions was ‘purely conjectural’.
Dr Knox found Mr Farrell was genuine in his complaint of pain in his lower back and left knee and said there was an interaction between his pain disorder and his adjustment disorder. In his opinion, the left knee pain was an overuse injury due to the alteration of gait because of injury to the right knee, Mr Farrell’s weight gain, and his age. His opinion was also that ‘in a general sense’ there was a causal connection between the right knee injury and Mr Farrell’s lower back injury. The Tribunal’s findings about the organic source of Mr Farrell’s pain casts doubt on his hypothesis.
Dr Le Leu accepted that ‘as a result of [Mr Farrell’s] altered gait, he has developed lower back pain possibly on the basis of accelerated degeneration’. He concluded: ‘the lower back injury is, in my opinion, secondary to altered gait resulting from the right knee injury; there is no right buttock injury, just referred pain from the lower back; there is no identifiable left knee injury’. He conceded there was no actual injury to the right buttock, nor any ‘clear evidence of an identifiable injury to the left knee’. Although he could not point to research literature which supported his view, he said that in his experience people who favour one leg develop back pain because of the way they are walking.
Numerically there is a slight preponderance of medical opinion in favour of a connection between Mr Farrell’s work-related injury and his claimed injuries to his left knee, right buttock and lower back. However, since the Tribunal has found that the conditions were constitutional at most it can be claimed that these constitutional developments had been aggravated by Mr Farrell’s gait which in turn was work-related. Whether that connection is sufficient to attribute liability is the next question.
Counsel for Comcare argued that none of the claimed conditions, on the basis of the pathology, were ‘injuries’ as defined in section 5A of the Act. Since the date of injury was 24 August 2009, that is, following the introduction of section 5A, that provision applies to the claimed injuries.
Arthritic or degenerative change do amount to a physiological change but since these changes were of a progressive nature, rather than a sudden physiological change, the degenerative or progressive development of the physiological conditions claimed by Mr Farrell are each a ‘disease’ not an ‘injury’ (sections 5A, 5B).[3] The claim for a chronic pain disorder, Category 1, is clearly a ‘disease’, that is a ‘mental disorder’ which is ‘outside the boundaries of normal mental functioning and behaviour’,[4] as defined in section 5B. Since the Tribunal has found that this condition is not work-related, it is only the remaining conditions which are under consideration. Accordingly it follows that each of these claimed conditions is a ‘disease,’ and the Act requires that for compensability, each must have been ‘contributed to, to a significant degree, by [the] employee’s employment’ (section 5B(1)).
[3] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; Re Von Stieglitz and Comcare [2010] AATA 263.
[4] Comcare v Mooi (1996) 69 FCR 439 at 444.
The Tribunal finds that of the doctors who favoured a connection between the work-related injury and the subsequently claimed diseases, only Dr Knox indicated the connection was ‘in a general sense’, and Dr Le Leu, said Mr Farrell had only ‘possibly’ developed lower back pain due to accelerated degeneration. He also could not point to any research literature which confirmed the causal link hypothesised. The Tribunal also notes that neither Dr Knox nor Dr Le Leu is an orthopaedic surgeon. The Tribunal does not find that their testimony assists it to establish the causal link to the requisite ‘significant’ level. In addition, there are strong countervailing views from Dr Gray, Dr Pierides and Dr Wilkins, two of whom are orthopaedic surgeons whose experience of the impact of structural changes in the body is a regular feature of their practice.
The Tribunal’s findings have also cast doubt on the claimed evidence of the timing and causes of Mr Farrell’s weight increases, have denied that Mr Farrell is suffering from chronic pain syndrome, and that his testimony as to the level of discomfort he experiences and whether he is using his limbs as little as he claims needs to be treated with caution.
In the face of this evidence the Tribunal finds that although Mr Farrell continues, unfortunately, to suffer pain, the evidence does not establish to the requisite significant level that the hypothesis proposed, which was that pain due to Mr Farrell’s right knee condition led to weight gain, alteration of gait, and consequential aggravation of constitutional changes in his left knee, lower back and right buttock is established. As a consequence, these conditions were not work-related. The decisions under review are affirmed.
Date of Hearing 05 – 09, 12 December 2011
Date of Decision 15 February 2012
Solicitor for the Applicant Daniel Steiner
Counsel for the Applicant Alan Anforth
Solicitor for the Respondent Mark De Carvalho
Counsel for the Respondent Ben Dube
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