Demosthenous and Comcare - [2001] AATA 949

DECISION AND REASONS FOR DECISION [2001] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/480

GENERAL ADMINISTRATIVE DIVISION       )
           Re      EMMA DEMOSTHENOUS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member, Assoc. Professor J Maynard, Member

Date16 November 2001
PlaceMelbourne

Decision      1. The Tribunal sets aside the decision under review and in substitution varies the determination made 10 November 1999 (T18 p39) to provide: (i) that the description of Mrs Demosthenous' compensable condition be changed to persistent haematuria, pain lethargy and malaise; (ii) that from 10 November 1999 Mrs Demosthenous remains entitled to compensation under the Act in respect of persistent haematuria, pain lethargy and malaise. 2. The Tribunal orders that Mrs Demosthenous' costs of these proceedings be paid by the respondent.
  (Sgd) Joan Dwyer
  Senior Member
COMPENSATION – compensable condition of haematuria following fall from a tram – whether condition has ceased to exists or has ceased to be compensable – issue as to "burden of proof" - consideration of voluminous medical records – finding that applicant does still have persistent haematuria – issue as to description of condition – lack of evidence as to cause of pain, lethargy and malaise, – decision under review set aside – original determination varied
PRACTICE AND PROCEDURE

Terms of Settlement – concern expressed about Terms requiring applicant to agree not to make further applications under the Act in respect of a specified condition "or any aggravation of the condition" and to agree not to apply to the Administrative Appeals Tribunal for review of any decision concerning incapacity arising from compensable injury
Agreement between parties that new determination be made varying description of compensable condition – that agreement never implemented – whether Tribunal should vary description of compensable condition
Inquisitorial Role of Tribunal – detailed analysis of medical evidence conducted by Tribunal, conclusive of a significant issue
Whether Tribunal should change description of accepted condition to description agreed by parties – consideration of evidence on the issue

Cases

Australian Postal Commission v Burgazoff (1989) 10 AAR 296 9

Australian Telecommunications Commission v Barker (1990) 12 AAR 490 9

Behan v Telecom (1990) 99 ALR 79 5

Bushell v Repatriation Commission (1992) 109 ALR 30 22

Casarotto v Australian Postal Commission (1989) 17 ALD 321 9

Comcare v Nichols (1999) FCA 209 11

Commonwealth of Australia and Commission For the Safety, Rehabilitation and Compensation of Commonwealth Employees v Borg, Federal Court, (1994) 20 AAR 299 8

O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744 10

of Telstra v Arden (1994) 20 AAR 285 8

Phillips v The Commonwealth (1964) 110 CLR 347 9

Re Beer and Australian Telecommunication Commission (1990) AAT 5974 20 June 1997 33

Re Beer and Telstra (1994) AAT 9838 11 November 1994 33

Re Jeremic and Comcare (1990) AAT 5975 20 June 1990 33

The Commonwealth v Muratore (1978) 141 CLR 296 9

REASONS FOR DECISION

16 November 2001 Mrs Joan Dwyer, Senior Member, Assoc. Professor J Maynard, Member

This is an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). That decision (T20), made 8 March 2000, affirmed a decision made 10 November 1999 (T18) that Comcare was no longer liable to pay compensation to Mrs Demosthenous in respect of haematuria, on and from 10 November 1999. There is an issue as to the correct description of the condition in respect of which compensation had previously been payable.
Mr J Goldberg of Counsel appeared for Mrs Demosthenous. Mr I Gourlay of Counsel appeared for Comcare. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Those documents include, as T22, Terms of Settlement of an earlier matter concerning Mrs Demosthenous. That document was added to the T documents at the first day of hearing. The Tribunal also had before it the exhibits tendered during the hearing.
Mrs Demosthenous gave evidence. Evidence on her behalf was also given by Dr Levick her treating general practitioner. The respondent called Mr Harewood, a urologist, and Dr Champion de Crespigny, a consultant physician and nephrologist.
previous history
The history of this matter is somewhat unusual. It is set out in paragraphs 1–14 of the Terms of Settlement lodged and taken into evidence as document T22. In brief, Mrs Demosthenous suffered injury when she fell when a tram in which she was a passenger braked suddenly, on the way to work on 30 October 1991. She was admitted to the Royal Melbourne Hospital that day and discharged on 2 November 1991. A history was taken of "frank haematuria with associated dysuria" subsequent to the fall. The hospital records show "FWT +++ blood" that day (R4 p496). The discharge summary of 2 November 1991 (R4 p43) states:
Had a fall Ü hit (L) loin and developed haematuria . . .
A claim for compensation was made on 6 November 1991 (T3). Liability was accepted for "renal contusion and soft tissue injury to lumbar spine and left flank" on 27 November 1991. A claim in respect of permanent impairment was made on 24 December 1992. Various determinations followed, until compensation was stopped from 2 July 1994.
On 12 May 1995 the Tribunal, after a hearing decided:
1.The Tribunal sets aside the decision under review and in substitution varies the original determination made 11 August 1994 to provide:
(i)The injuries sustained in a fall from a tram on 30 October 1991 have caused Mrs Demosthenous to suffer macroscopic haematuria, pain, lethargy and malaise.
(ii)Those injuries have, since 2 July 1994 to the present date, continued to result in incapacity for work.
(iii)Mrs Demosthenous is entitled to compensation for periods she has not worked due to the conditions of haematuria, pain, malaise and lethargy since 2 July 1994.
(iv)Mrs Demosthenous is presently able to work only three days a week.
2.The respondent is to pay the applicant's costs of these proceedings in accordance with the Tribunal Practice Direction dated 23 December 1992.
Mrs Demosthenous claimed compensation for permanent impairment for "blood in urine, loin pain, back pain, lethargy and malaise" on 24 December 1992. On 15 August 1993 a decision was made to pay $15,162.14 as an interim assessment of 15% whole person impairment.
On 19 September 1995 Mrs Demosthenous requested a final assessment of permanent impairment. On 22 October 1996, in a reviewable decision, Comcare decided that Mrs Demosthenous was not entitled to compensation for permanent impairment. That decision stated that it set aside the determination of 15 August 1993 under which Mrs Demosthenous had already been paid $15,162.14 as an interim payment in respect of permanent impairment. It also stated that recovery action would be taken in respect of the $15,162.14 already paid.
Mrs Demosthenous sought review of the reviewable decision of 22 October 1996. On 9 September 1997 the Tribunal made a decision by consent as follows:
1.This matter came on for hearing today. Mr P Redlich a solicitor, appeared for the applicant, and Mr K MacFarlane of Counsel appeared for the respondent.
2.The parties' representatives informed the Tribunal that agreement had been reached between the parties as to the terms of a decision of the Tribunal in the proceeding that would be acceptable to them.
3.The terms of such agreement have been reduced to writing, signed by the parties' representatives and lodged with the Tribunal.
4.The Tribunal is satisfied that a decision in those terms would be within the powers of the Tribunal, and it appears to the Tribunal to be appropriate to make a decision in accordance with those terms.
5.The Tribunal therefore, pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 sets aside the reviewable decision dated 22 October 1996 (T57) and in substitution decides that the applicant suffers from a permanent impairment assessed at 15% whole person impairment as a result of her injury sustained on 30 October 1991.
6.By consent the respondent shall pay the applicant's costs of this application in accordance with the Administrative Appeals Practice Direction dated 30 September 1996.
The applicant's and respondent's consent to the making of the decision set out above was part of a complicated arrangement contained in Terms of Settlement (T22), dated 9 September, and lodged with this Tribunal as an additional T document on 13 July 2001. At the commencement of this hearing the Tribunal expressed concern about the fact that those Terms of Settlement required the applicant to agree to make no further claim under ss 24 to 27 of the Act in respect of any aggravation of the condition, and also contained a term restricting Mrs Demosthenous's entitlement to seek review in this Tribunal. Such terms are an attempt to contract out of the Act and are inconsistent with the Act, see Behan v Telecom (1990) 99 ALR 79 at pp89–90. We are pleased to see that there was no attempt to rely on those Terms of Settlement as a bar to these proceedings.
Further although the Terms of Settlement signed by the parties contemplated that Mrs Demosthenous would lodge a new claim for "work related enhanced susceptibility of a pre-existing condition, namely haematuria, which the applicant suffered before 30 October 1991", and that the respondent would make determinations accepting liability for that condition, and ceasing liability for the injury found by the Tribunal to be compensable, those steps apparently did not occur. The Tribunal asked the parties for the original copies of the claim and determinations contemplated by the Terms of Settlement but those documents were not found.
In those circumstances it seems that the Tribunal's decision of 12 May 1995 is the most recent decision finding liability to pay compensation for incapacity resulting from injuries sustained in the fall on 30 October 1991. The Tribunal described those injuries as "suffer[ing] macroscopic haematuria, pain, lethargy and malaise".
The parties seem to have agreed in the Terms of Settlement that a preferred description would be "work-related enhanced susceptibility of a pre-existing condition, namely haematuria, which the applicant suffered before 30 October 1991". That is why the original determination of 10 November 1999 (T18) and the reviewable decision of 8 March 2000 (T20) both used that terminology. The Tribunal in reviewing those determinations does have power under s 43 of the AAT Act to vary a decision under review or to set aside a decision under review and make a new decision in substitution, if on considering all the evidence we consider that to be appropriate. The power to vary includes power to amend the description of a compensable condition if that is appropriate on the evidence.
the evidence
The evidence is that since the hearing in May 1995, Mrs Demosthenous has continued to work only three days a week. She was paid compensation in respect of her incapacity to work on the other two days until the primary determination of 10 November 1999 (T18), which ceased liability in respect of "work related enhanced susceptibility of a pre-existing condition, namely haematuria".
The primary determination of 10 November 1999 (T18) stated that it was made on the basis of a report of Mr Harewood dated 25 May 1999 (T16) in which he wrote:
. . .
The condition that Ms Demosthenous suffers from is recurrent macroscopic haematuria associated with flank pain.
No. 2. The cause of the haematuria has not as yet been elucidated. She recently had an Angiogram and a panendoscopy by Mr. David Westmore. The Angiogram on the left side was completely normal with no evidence of any arterio venous fistula. The remaining possibility therefore is that she may have a lesion on the surface of the renal pelvis or one of the calyces. This could be something like an angioma. This could only be diagnosed by a flexible urethroscopy.
No. 3. I do not believe that the Claimant's current employment attributes [sic] to the aggravation or acceleration of this condition.
No. 4. Any aggravation that she may have sustained would seem now to have resolved.
No. 5. Current capacity for work is impaired by her haematuria and pain. When she gets the haematuria, she feels very unwell and is unable to work. She gets episodes of haematuria up to three times a month, and this may last for an hour or so up to three days.
No. 6. The only restriction that would be reasonable would be a restriction on heavy physical activity.
No. 7. What Ms Demosthenous needs is a flexible ureteroscopy and a laser of any lesion that was found. This is the only way to diagnose the only possible remaining diagnosis which is that of an angioma of the renal pelvis or calyx. This could be visualised with a flexible ureteroscope and if found, it could be treated with the Holmium laser to get rid of it. If this were the diagnosis, then there would be a reasonable chance of preventing the haematuria in future.
No. 8. Without further treatment the haematuria is likely to be persistent and permanent.
I would be more than happy to arrange to carry out the flexible ureteroscopy and Holmium laser treatment. Please advise me if you wish me to arrange this for Ms Demosthenous. I have talked about this to Ms. Demosthenous who is also considering the situation. (emphasis added)
The respondent, in its letter advising of the determination of 10 November 1999, quoted and relied on Mr Harewood's comments at points 3 and 4.
Mr Redlich, the applicant's solicitor, wrote to Comcare on 11 October 1999, in response to a letter it had sent Mrs Demosthenous, foreshadowing the making of a cease effects determination on the basis of Mr Harewood's report. Mr Redlich referred to point 8 of Mr Harewood's report, in which Mr Harewood stated that Mrs Demosthenous' haematuria was likely to be persistent and permanent without further treatment. Mr Redlich also addressed the issue of the burden of persuasion on Comcare in establishing that any compensable injury Mrs Demosthenous may have sustained in the fall on 30 October 1991 had in fact resolved. He drew to the attention of Comcare the Federal Court decision of Telstra v Arden (1994) 20 AAR 285, in which Burchett J said, at paragraph 6, "that the burden of persuasion [is] borne by the arguments against the existing entitlement of the applicant (worker)".
Notwithstanding Mr Redlich's letter, Comcare, on 10 November 1999, proceeded to make the primary determination ceasing Mrs Demosthenous' entitlement to compensation on the basis of Mr Harewood's report (T18 p39). As already stated that determination was affirmed on 8 March 2000. That affirmation is the reviewable decision in this matter.
Three issues arise. The first is the applicable burden of persuasion. The second is the factual issue as to whether or not the Tribunal is satisfied to the appropriate standard, that the compensable injury has resolved. The third is the appropriate description of the compensable injury.
the burden of persuasion
The law on this question was explained by Jenkinson J in Commonwealth of Australia and Commission For the Safety, Rehabilitation and Compensation of Commonwealth Employees and Borg, Federal Court, (1994) 20 AAR 299. That decision also concerned a "cease effects" determination. Jenkinson J, at p307, said of the determination under review in that matter:
The question as to what the function was which the delegate had to perform on 28 July 1988 may be answered in two ways. It might be said that he had to decide whether any of the circumstances upon the existence of which Mrs Borg's entitlement to compensation at the weekly rate specified in the preceding determination [depended] no longer existed on 28 July 1988. Or it might be said that he had to decide whether on 28 July 1988 all the circumstances existed upon the existence of which Mrs Borg's entitlement to weekly payments of compensation at that time depended. If the former question were the one to be asked he would not make the determination he did make unless he was persuaded that one of those circumstances had ceased to exist. If the latter, he would make the determination he did make unless he was persuaded that all those circumstances existed on 28 July 1988. In that way the identification of the correct question determines what in the case of a curial proceeding would be called the legal (not the evidential) burden of proof. I adhere to the opinion about problems of this kind which I expressed in McDonald v Director-General of Social Security (1984) 1 FCR 453, and the more confidently because I understand the reasons of Woodward J. in that case to be in substantial accord with that opinion.
I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist. Section 45 relevantly provided that "(w)here an injury to an employee results in the employee being totally incapacitated for work ... compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to" an amount calculated in accordance with further provisions of the section. One of the entitling circumstances specified by the section is that the week in respect of which a payment is made should be within "the period of incapacity". Determinations made before 28 July 1988 had established Mrs Borg's entitlement to payments in all respects except one. Those determinations had not established what the period of incapacity was : the end of the period had been left by the last determination made before 28 July 1988 to be thereafter determined by the Commissioner or his delegate. The expression "the period of the incapacity" is to be understood as meaning the period of that incapacity in which the postulated injury has resulted. In order to fix that period by determination in performance of the function conferred by s.20(1) the delegate must in my opinion be persuaded as to when the time was or will be on which the period has ended or will end. Unless persuaded of that he is not in my opinion authorised by the Act to make the determination he did make, which is a determination that the period of the incapacity in which the injury resulted has ended and that any incapacity existing at the time of the determination is not an incapacity in which the injury resulted. The function of the Tribunal on review is the same. (emphasis added)
Jenkinson J, in Borg, referred at p308 to a number of authorities on this issue, Phillips v The Commonwealth (1964) 110 CLR 347; The Commonwealth v Muratore (1978) 141 CLR 296; Casarotto v Australian Postal Commission (1989) 17 ALD 321; Australian Postal Commission v Burgazoff (1989) 10 AAR 296; Australian Telecommunications Commission v Barker (1990) 12 AAR 490. His Honour noted that the High Court in Phillips' case, at p351, placed upon the worker the onus of proof in relation to partial incapacity, where the determination accepting liability had related to total incapacity and the evidence established that the worker was no longer totally incapacitated. That is not the situation here. The Act does not make the same distinction between total and partial incapacity as was made by the Act in force when Phillips' case arose. Further, Mrs Demosthenous was working approximately three days a week and being paid compensation for incapacity for the days she could not work for a long time prior to the making of the reviewable decision. The status quo prior to the making of that decision, was that Comcare accepted liability to pay compensation for incapacity for days not worked, where the incapacity resulted from the compensable injury. That is the situation Mrs Demosthenous seeks to regain by this application.

Applying Borg's case, the delegates should not have made, either the original determination, or the decision under review, unless they were persuaded that one of the entitling circumstances had on or before the date of the primary decision ceased to exist. As Jenkinson J explained:
Unless persuaded of that he is not in my opinion authorised by the Act to make the determination he did make, which is a determination that the period of the incapacity in which the injury resulted has ended and that any incapacity existing at the time of the determination is not an incapacity in which the injury resulted. The function of the Tribunal on review is the same.
The decision in Arden, to which Mr Redlich referred Comcare, is an application by Burchett J of the principles explained by Jenkinson J in Borg. Burchett J, at paragraph 26 of his reasons, did explain that an earlier finding or determination "could not prevent the reaching of a conclusion about the later period, even if it was logically incompatible with the earlier conclusion" See O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744. But there must be persuasive evidence leading to such a finding. In O'Donel there was medical evidence which the Court accepted, that although Mr O'Donel continued to be blind, his blindness was not causally connected with the compensable injury, but with a pre-existing disease.
Mr Gourlay did not argue against that construction of the law. He referred the Tribunal to the more recent decision of Comcare v Nichols (1999) FCA 209 which he acknowledged was consistent with the earlier cases. He explained (trans. pp13-14):
[T]he burden of persuasion, as I see it, is to demonstrate that there has been a change in the level or the severity of the condition so as to enable the Tribunal to decide one way or the other whether or not the enhanced susceptibility continues, or whether or not there is a continuation of the pre-existing level of haematuria.

the evidence

Comcare could succeed in this proceeding, as Mr Gourlay suggested, if it could persuade the Tribunal that Mrs Demosthenous' condition is no longer so severe as to constitute an "enhanced susceptibility to haematuria", subsequent to the fall involving the tram on 30 October 1991, or if it could establish that Mrs Demosthenous no longer suffered from "macroscopic haematuria, pain, lethargy and malaise". Another way would be if it could show that Mrs Demosthenous' susceptibility to or episodes of haematuria do not result in incapacity for work. Or Comcare may be able to establish by medical evidence, similar to the evidence in O'Donel, that from 10 November 1999 Mrs Demosthenous' haematuria was "not causally connected" with the fall involving the tram in 1991. It is not clear from the primary determination or the reviewable decision which of those grounds, or what other reason, was the basis of the decision to cease Mrs Demosthenous' entitlement to compensation.
It is difficult to see how any delegate, acting conscientiously, could have been persuaded by Mr Harewood's report of 25 May 1999 that one of the circumstances entitling Mrs Demosthenous to compensation had ceased to exist by 10 November 1999.

First, Mr Harewood said the cause of the haematuria had not been elucidated. He did not say, as in O'Donel, that it had been found to have a cause unrelated to the fall on 30 October 1991.
Secondly, it is obvious that at the time Mr Harewood wrote the report the condition was continuing. In point 7 of his report he suggested a further investigation which he stated was needed, and which could result in "a reasonable chance of preventing the haematuria in future".
Thirdly, although Mr Harewood stated that any aggravation Mrs Demosthenous may have sustained "would seem now to have resolved", he gave no reason for that significant statement.
Fourthly, immediately after saying that the compensable aggravation "would seem now to have resolved", Mr Harewood went on to say that Mrs Demosthenous' current incapacity for work was impaired by her haematuria and pain, which he said made her feel unwell and "unable to work". He added that Mrs Demosthenous had episodes of haematuria up to three times a month.
Fifthly, as Mr Redlich pointed out, in Point 8 Mr Harewood wrote:
"Without further treatment the haematuria is likely to be persistent and permanent".

Mr Harewood, in his report, accepted that Mrs Demosthenous continued to have persistent haematuria which rendered her unwell and unable to work and he gave no reason why that persistent haematuria should no longer be considered to result from the fall from a tram. That point should have been explored further with Mr Harewood by the delegate before making the primary determination. That was not done either at that stage or even before the reviewable decision of 8 March 2000.
By the time the hearing commenced, Comcare had obtained a more recent report from Mr Harewood (R1) dated 18 September 2000. He reported, that Mrs Demosthenous continued to have recurrent macroscopic haematuria and that it occurred three to four times a month and "is certainly worse with activity". He expressed the view that Mrs Demosthenous should have further investigation to find "where her bleeding is coming from". Mr Harewood did say that it "seemed difficult to ascribe or contribute [sic] the haematuria to her injury", but again he did not explain the basis of that opinion.
mrs demosthenous
Mrs Demosthenous, in her evidence to the Tribunal, said that she continues to suffer episodes of macroscopic haematuria (visual bleeding), pain and lethargy. She said she is struggling to work three days a week because of the episodes of visual bleeding and pain and lethargy from which she suffers. She said these episodes occur roughly two to four times a month. She said she leaves work if it occurs at work and, if her doctor is available, goes to see him whenever she has visual bleeding. She rests in bed and takes pain killers until the pain and bleeding subside, which may be for half a day or up to three days.
On further questioning, Mrs Demosthenous said that she gets "excruciating" pain in her back every time she gets visual bleeding, and it stops her doing "work and also every day things". She said it has changed her life. She also said she would have her life back if she could. She described her routine, and explained that she works Monday, Wednesday and Friday and takes it easy on Tuesday and Thursday and visits her parents for dinner on Tuesdays. She said that she does her household chores if she feels well, but that her husband and children have taken over the heavy work like the vacuuming.
The evidence establishes that Mrs Demosthenous has two children born on 20 January 1982 (R4 p392) and 5 April 1984 (R4 p323). She has quite a complicated medical history. Prior to the fall involving the tram on 30 October 1991 she had had a total hysterectomy and an appendicectomy. She had suffered from left sided pyelonephritis requiring admission to hospital on a number of occasions and had been diagnosed with alpha thalaessemia minor (haemoglobin H disease) on 9 June 1981 (R4 p293 and 338).
The Tribunal had concerns about some aspects of Mrs Demosthenous' evidence. Mrs Demosthenous looked pale and seemed lethargic while giving her evidence. There was a vagueness about her evidence, which is quite unusual in the Tribunal's experience, but it was combined with repetitive answers, so that if Counsel or the Tribunal tried to clarify an aspect of the evidence which seemed unlikely, Mrs Demosthenous simply maintained her previous answer. The Tribunal found her presentation so unusual that it raised it with Mrs Demosthenous and even asked her whether she might have taken medication which could explain her presentation (trans. Vol 2 p79). Mrs Demosthenous denied having done so.
Mrs Demosthenous' presentation was very accurately described by Dr Levick. He said (trans Vol 2 p52):
Emma is a rather vague lady and at times comes across extremely vague, even during consultations and not understanding my questions and me getting very strange responses to questions where obviously she hasn't understood what I've said.

He explained (trans. Vol 2 p64):

Yes, but you can visibly see how Emma is feeling and coping. As I said she can present quite well when she's sort of rested and good, and other times she just presents as very vague and sort of – feel like, knocking, "Is anyone there", at times. So it just varies with Emma.

The Tribunal was puzzled by Mrs Demosthenous' evidence that she uses a dipstick to test for microscopic blood every time she passes urine and it is always positive. She said she has been doing that for almost 10 years and she continues to test with a dipstick, even though she knows there is always microscopic blood shown on the dipstick. She said she continues the practice because, "I just want answers, I guess. I don't know" (trans. p32). The Tribunal explained to Mrs Demosthenous that it could not see the point of that repeated testing when, according to her, the result is always the same.
The hearing had to be adjourned for almost two months after the first day of hearing. Mrs Demosthenous' cross-examination resumed on the second day of hearing. Very early on that day she corrected the evidence she had given earlier. She said (trans. Vol 2 p7):
I realise I said that I checked my blood with a dipstick every time I go to the toilet, but I misunderstood the question and I don't. I don't use a dipstick every time I go to the toilet.
Do you use it every day or every week or - - -?---Maybe once a week.
I see. That's quite different from what you told us last time?---Yes, I realise and I – I was on the stand quite a long day and I – I'm sorry.
Mr Gourlay submitted that we should not accept Mrs Demosthenous as a credible witness and he relied on the change in the evidence as to use of the dipstick as an example of her lack of credibility. The issue of the use of the dipstick had been explored in some detail on the first day. It arose early in the day, not at the end of a long day, as claimed by Mrs Demosthenous. Further it was returned to during the first day of hearing, and Mrs Demosthenous had maintained that she used the dipstick every time she passes urine.
Mr Gourlay's submission that Mrs Demosthenous' evidence lacked credibility derived further support when Mrs Demosthenous changed her evidence on the issue yet again. Her treating doctor, Dr Levick, was interposed during Mrs Demosthenous' cross-examination. Mrs Demosthenous had said that Dr Levick gave her a prescription for the dipsticks. She said (trans. V2 p12) "I get a prescription from my doctor and I buy the bottle of 50 . . . I buy about two bottles a year" Dr Levick was therefore asked why he continued to prescribe the dipsticks. He did not seem very clear that he had done so, but he said the reason would have been to prevent or check for infection (trans. Vol 2 p56):
[T]he main reason she's using dipsticks is to prevent UTI's, urinary tract infections.
She doesn't seem to be using it for that though. Have you counselled her with regard to that?---I may not have, but that was one of the reasons I was giving her the sticks . . .
When Mrs Demosthenous resumed her evidence after Dr Levick had been excused, the Tribunal raised with her again the problem with the very vague way in which she gave her evidence. As an example of the vagueness, the Tribunal referred to the evidence about the dipstick. Mrs Demonthenous then added (trans. Vol 2 p79):
Well, I also use the dipsticks as a precaution of – because I've had pyelonephritis also and I use it – sometimes I use it, like I said, as a precaution, so just to check myself.

That change raised a question as to whether Mrs Demosthenous had discussed the matter with Dr Levick that day, or with someone who had heard his evidence.

Another matter we at first found puzzling was Mrs Demosthenous' evidence as to why she had not undergone the flexible ureteroscopy and laser removal of any lesion that was found, as suggested by Mr Harewood. However after hearing the evidence of Mr Harewood and Dr de Crespigny, our concern about this issue was allayed. Although Mrs Demosthenous said "I just want answers", she said she would have the investigation recommended by Dr Harewood "if [he] can tell me that if he does the test that I will be 100%" (trans. p33). Mrs Demosthenous explained that the tests she has undergone have always been so painful and invasive that she did not feel she could go through it again for Dr Harewood's recommended flexible ureteroscopy, without a 100% guarantee. Of course that is an unrealistic requirement.
Mr Gourlay suggested that the reluctance to undergo further testing could be because such testing may demonstrate a cause of the haematuria which is unrelated to the fall from a tram. He demonstrated from the medical records before the Tribunal that Mrs Demosthenous had not had any invasive tests since 7 February 1997, when Mr Westmore performed a renal angiogram and a flexible cystoscopy. Mrs Demosthenous said she was aware that she could be heavily sedated or even have a general anaesthetic for any future procedures. Mr Gourlay submitted that if Mrs Demosthenous' current condition were as worrying and as disabling as the evidence indicated, she would have undergone the suggested flexible ureteroscopy, even if a general anaesthetic would be required.
However the medical evidence allayed our concern about that matter as a credibility issue. First, Dr Levick strongly supported Mrs Demosthenous's evidence that she had found the tests she had already undergone very traumatic. He said her decision not to undergo further investigations was in accordance with his advice to her. He explained the basis of that advice (trans. Vol 2 pp37-38):
Emma has had multiple investigations which have not revealed the source of her bleeding. Meaning that the source of her bleeding is likely to be either very well hidden or a very small lesion. And every time Emma has had a major procedure such as even just simple cystoscopies, which is a tube into the bladder, they really knock her about considerably and require a period off work, which is well documented in her certificates, and they have all revealed nothing. This investigation is more invasive again. It's involving looking right up into the ureter and will involve a general anaesthetic, most likely. And if there was a high chance of it – or even a good chance of finding a lesion that was treatable, I would suggest it rapidly. But I think as even Mr Harewood has suggested to me there would be a very low chance of finding a lesion and then even a lower chance of finding a lesion that would be treatable. I do not think the risk of a general anaesthetic and the risk of setting her condition back while we've still got her working would be at all worth taking.
Mr Gourlay submitted that Dr Levick was so committed to his patient that we should have some reservations about the reliability of his evidence. However Mr Harewood and Dr de Crespigny gave similar evidence as to the low chance of finding a treatable lesion, even with further investigation.
Mr Harewood said a flexible ureteroscopy would take about one hour under anaesthetic. He seemed to think it would be worthwhile Mrs Demosthenous undergoing that procedure (trans. Vol 3 p101):
Given that she has got a condition that dramatically affects her lifestyle, stops her working 2 days a week, causes her ….. pain one would reasonably expect that she would be keen to do whatever she could to resolve that issue.

He said that all the most likely explanations had been ruled out, but he did acknowledge that even if further investigations were done, they may not identify the lesion (trans. Vol 2 p110). He said it is always up to a patient to decide whether or not to undergo further investigations (trans. Vol 3 p100).

Dr de Crespigny did not advocate further investigations. He said that he did not think it mattered now nine years on, where the blood is coming from. He said he did not think it was likely to be causing significant medical problems at this time. He said (trans. Vol 4 p132):
I mean a tumour that could have been there for nine years would almost be unheard of to have been undetectable nine years ago and still causing problems. I can't quite – it is of interest but nine years later, I would actually say to a patient, "Why bother? It is stamp collecting, it is not going to advance your health".
Dr de Crespigny said he was disappointed that there had been further investigations, other than a CO2 angiogram. He said he had advised, as far back as 1994, that a CO2 angiogram could pick up arteriovenous malformations which were not picked up on conventional angiography. He said he believed the investigations performed in 1997 were not "the right test at that time" (trans. Vol 4 p133). He added (trans. Vol 4 p134):
[W]e are now many years down the track. What is one going to do with the result of the test that will make a difference to the patient's health, and I can't perceive a problem that is likely to be going on that is going to be improved with that but there are problems perhaps that might be but I am just not quite sure why do it.
On that evidence it does not seem that any findings can be made against Mrs Demonsthenous on the basis that she has not undergone further investigations. Neither Mr Harewood nor Dr de Crespigny advanced a strong medical reason for such further steps, or held out much hope that further investigation would lead to a cure. Moreover they each recommended a different further investigation as the only appropriate one, if further investigation was to be undertaken.
The next issue which gave rise to some concern about Mrs Demosthenous' credibility was that in examination-in-chief she said that prior to the fall on 30 October 1991, she had not been aware that she had blood in her urine. In cross-examination she repeated that saying "I never had blood in my urine because I have had a total hysterectomy" (trans. p49).
In cross-examination Mr Gourlay took Mrs Demosthenous to Royal Melbourne Hospital Records (R4) which showed that she had been found to have traces of blood on testing of her urine prior to the fall from the tram on 30 October 1991. There seem to have been five relevant admissions. The first was 3 October 1988, when Mrs Demosthenous was admitted complaining of abdominal cramps, vomiting and dysuria (pain on passing urine) and the notes record "trace blood" (R4 V2 p447). The test result is shown as "micro, occasional white blood cells no red blood cells" (abbreviations have been expanded). Mrs Demosthenous said she was not told of that trace of blood. The second relevant admission was for pyelonephritis on 6 November 1989. Although the hospital notes record "no haematuria", they do also note in the history, (R4 V2 p453) "but noticed 2 drops of blood several months ago ? vaginal". The third occasion was on admission with pyelonephritis on 13 August 1990. The notes record, "Yesterday says urine was red/brown . . ." (R4 V2 p463). Mrs Demosthenous claimed that she had never said that. She maintained that answer even when it was explained that red cells may be present in the urine as a result of pyelonephritis, which is an infection in the kidney.
The fourth entry to which Mr Gourlay referred was a further admission to Royal Melbourne Hospital on 13 February 1991 with a complaint of right loin pain for two weeks. The notes recorded a history of pyelonephritis and frequent urinary tract infections and "blood-spots 1/52" (R4 V2. p474). A letter dated 13 February 1991 from the hospital to a doctor (probably Dr Levick) mentions "Urine dipstick test – trace blood – trace protein" (R4 V3 p737).
Mrs Demosthenous was shown the entry in the records for 13 February 1991 and asked if she remembered mentioning blood spots for some days, when she was at the hospital (trans. Vol 1 p93). She replied, "was this, sorry, before the accident. What date is this?". When told that it was before the accident on 30 October 1991, she replied that she did not remember saying that. The Tribunal explained to her that it had some difficulty accepting that she had not given that information to the hospital staff, when it appeared in the notes as if stated by her.

Mrs Demosthenous continued to say that if she had been bleeding before the fall involving the tram on 30 October 1991, she had not been aware of it. She said (trans. p96):
If there was any bleeding I wasn't aware of it and my doctors hadn't advised me of it.

Eventually she agreed that she may have told the hospital staff about blood spots for one week, but she said she did not remember any such bleeding.

The fifth occasion was when Mrs Demosthenous was readmitted to the Royal Melbourne Hospital with left pyelonephritis from 1 to 8 October 1991. She had red and white blood cells in her urine on microscopic testing (R4 pp540 and 617) Mrs Demosthenous had only returned to work shortly before the accident on 30 October 1991. When admitted to hospital that day after the fall she had "frank haematuria", that is visual blood in her urine.
Those hospital records do show that prior to 30 October 1991 on two occasions, when she had pyelonephritis, Mrs Demosthenous had reported blood spots or red brown urine. On three other occasions during hospital admissions she had microscopic haematuria on mid stream urine testing. There is some concern about Mrs Demosthenous' credibility in not mentioning those occasions in her history giving to doctors. On the other hand, as Mr Goldberg submitted, it is not the case that she failed to describe dramatic symptoms. She could easily have forgotten the two occasions when she reported either traces of blood in her urine or blood spots, bearing in mind her complicated medical history. She may not have been aware of the results of the microscopic urine testing.
Another feature of Mrs Demosthenous' evidence, which Mr Gourlay emphasised, was an apparent discrepancy between her evidence as to the consistency of macroscopic bleeding since the fall involving the tram on 30 October 1991 and the history given to Mr Crosthwaite and Dr de Crespigny.
Mrs Demosthenous was admitted to RMH on 30 October 1991. As already stated the records that day show a history of a fall involving a tram injuring her left loin, "subsequently developed frank haematuria with dysuria". The investigations record "FWT +++ blood" (R4 p496). Mr Gourlay referred to a letter from Mr Crosthwaite, dated 23 May 1992 referring Mrs Demosthenous to Mr de Crespigny (R4 p49). Mr Crosthwaite had seen Mrs Demosthenous in February, March, April and May 1992. He wrote to Dr de Crespigny that Mrs Demosthenous had macroscopic haematuria for three and a half days after the fall involving the tram, and then another episode on 20 December 1991, but no further episode between then and May 1992, when he referred her to Dr de Crespigny.
On the basis of that history Mr Gourlay put to Mrs Demosthenous that she had no visual bleeding from December 1991 to May 1992. In fact that summary given by Mr Crosthwaite was misleading. In a letter of 15 February 1992 to Dr Levick, Mr Crosthwaite said that at review on 12 February 1992 Mrs Demosthenous had had a further episode of irritative urinary symptoms and macroscopic haematuria. He reported on a mid stream urine specimen analysis of 10 February 1992 which was positive for red and white cells (R4 p46). On 22 April 1992, Mr Crosthwaite wrote to Dr Levick that Mrs Demosthenous had had "a little bit of uretheral spotting on underclothes recently", and a further positive MSU (R4 p48).
The material before the Tribunal includes a number of reports referring to tests revealing persistent microscopic haematuria. Those reports are dated 22 April 1992 (R4 V1 p48), 23 May 1992 (R4 V1 p50), 12 June 1992 (R4 V1p53) and 9 July 1992 (R4 V1 p55). On 16 August 1992, Mrs Demonsthenous attended at the RMH reporting "1/7 urinary frequency, loin pain, blood in urine ? Fevers". A provisional diagnosis of pyelonephritis was made (R4 V2 p511). The notes record "This AM rose coloured urine macro h'turia" and "FWTU – Macroscopic haematuria +++" (R4 V2 p512).
Mrs Demosthenous in her evidence insisted that her pattern of visual bleeding was the same as it had been after the accident. She could not explain why Mr Crosthwaite had written that there was no further macroscopic bleeding from December 1991 to May 1992. By analysing the voluminous exhibit R4, the Tribunal is satisfied that Mrs Demosthenous' evidence was not as inaccurate as it appeared to be from Mr Crosthwaite's letter of 23 May 1992 to Dr Champion de Crespigny (R4 p49).
There are some concerns about the reliability of Mrs Demosthenous' evidence but on careful consideration of the evidence they are less significant than they seemed during the hearing. In any event this matter does not depend primarily on Mrs Demosthenous' credibility. The question whether or not she continues to suffer from macroscopic haematuria or from an enhanced susceptibility to haematuria, since the fall involving the tram, can be resolved mainly on the basis of a comparison of the medical records before and after the fall. They include MSU tests both before and after the incident, as well as notes in hospital and doctors' records.
The Tribunal is surprised that the parties' legal representatives had not conducted a detailed analysis of the voluminous medical records received in evidence which date back to 1981. The Tribunal has an inquisitorial role as explained by Brennan J in Bushell v Repatriation Commission (1992) 109 ALR 30 at p43. Bearing in mind its "duty to arrive at the correct or preferable decision in the case before it according to the material before it", the Tribunal has undertaken that task. The records show that except at times when Mrs Demosthenous was suffering pyelonephritis or post partum haemorrhage the results on urine testing prior to the fall, showed "NAD" (no abnormality detected). Since 30 October 1991 there has been a positive finding of red blood cells almost each time there has been a urine test. The following summary of information extracted from the records by the Tribunal shows the medical situation clearly:
Date     Hospital Procedure         Result     R4 Page No.
27/5/81 Brunswick Clinic Pregnancy Urine Analysis No Blood           297
20/1/82 RWH     MSU for ? UTI     Red cells and pus cells = cystitis     335 and 347
5/10/83 RWH     Urine Analysis    NAD     296
25/2/84 RWH     Emergency Dept. Fainting Urine Analysis      NAD    286
5/4/84     RWH     Admission Testing           Pus cells and Red cells = UTI        315 320
11/4/84 RWH     MSU for ? UTI     Red cells and pus cells     352
7/5/84     RWH     Admission for post partum haemorrhage Urine Test     Blood large        301
19/5/84 RWH     MSU for ? UTI     NAD     350
21/5/84 RWH     Delivery MSU     NAD     285
3/11/85 RWH     MSU      Red cells and white cells    359
7/4/87     Vaucluse           Urine Analysis Hysterectomy        NAD     247 and following
12/1/88 Vaucluse           Urine Analysis Persistent Right Ovarian Pain NAD     265 and following
11/9/88 RMH     Appendicectomy MSU      white and red blood cells in urine 533 534
3/10/88 RMH     Admission - abdominal cramps and dysuria MSU      WTU Urine Trace Blood Micro no RBC positive red blood cells on micro     447   534
6/11/89 RMH     Admission - Pain/inflammation Urethra        No Haematuria 2 drops of blood several months ago ? vaginal 453
13/8/90             Admission -Pyelonephritis         ? haematuria yesterday says urine was red brown Urine trace blood Micro 16,000 red cells   462–4
12/9/90 RMH     Renal Clinic       Blood- (neg)       470
20/9/90 RMH     Pyelonephritis Clinic        Blood- (neg)       471
13/2/91 RMH     Loin Pain           Blood spots 1/52 pv (?) Blood trace Urine dipstick trace blood RBC less than 1     474 737 536
25/9/91 RMH     Admission -Pyelonephritis MSU     RBC + WBC's     634 541 548
1/10/91 RMH     Persistent Pyelonephritis   WBC and RBC     617 540
24/10/91           microscopic haematuria     WBC and RBC     538

30 October 91 Date of Fall involving tram
30/10/91 RMH     Admission following fall involving tram Subsequently developed frank haematuria         FWT +++ Blood Haematuria Micro & culture RBC's496 539
1/11/91 RMH                 negative for blood on ward test RBC's on MSU         607 537
12/2/92 Mr Crosthwaite     Macroscopic Haematuria MSU more than 100,000 red cells per ml     46
11/3/92 Mr Crosthwaite     Cystoscopy        no obvious cause for haematuria     47
15/4/92 Mr Crosthwaite     MSU     Haematuria on micro Urethral spotting recently more than 100,000 red cells per ml        48
20/5/92 Mr Crosthwaite     MSU     Persistent microscopic haematuria 50
12/6/92 Dr de Crespigny Urine examination           Three million non-glomerular red blood cells Persistent heavy haematuria           53
9/7/92     Dr de Crespigny MSU      3,000,000 red blood cells/ml         55
16/8/92 RMH notes        Admission - Pyelonephritis          Rose coloured urine macro h-turia Macroscopic Haematuria +++           511 512 547
17/8/92 RMH notes        MSU     RBC's    546
9/10/92 Dr de Crespigny Review   Continuing heavy microscopic haematuria 1 episode of macroscopic haematuria since admission in August           75
8/12/92 Dr de Crespigny Review   1 day macroscopic haematuria      77
24/12/92 Dr de Crespigny Review MSU      Persistent microscopic haematuria 79
7/4/93     Dr de Crespigny Review   Persistent heavy microscopic haematuria    92
8/4/93     Melbourne Pathology      MSU     Greater than 100,000 non-glomerular RBC    86
5/6/93     Dr de Crespigny             Macro haematuria           107
27/7/93 Dr de Crespigny Report to Australian Government Health Service Letter to Dr Levick      Trivial haematuria only. First occasion of insignificant haematuria since trauma     113 107
28/10/93 Dr Levick           UTI       Macroscopic haematuria   84
6/12/93 Dr Levick           Referral Macroscopic haematuria   84
4/1/93     Dr Levick           Referral Macroscopic haematuria   84
24/1/94 Dr Levick           Referral Macroscopic haematuria   84
25/2/94 Dr Levick           Referral Macroscopic haematuria   84
22/3/94 Unipath Laboratories       MSU     Marked haematuria         132
12/4/94 Unipath Laboratories       MSU     Moderate haematuria      134
20/4/94 Unipath Laboratories       MSU     Marked haematuria         135
3/5/94     Unipath Laboratories       MSU     Marked haematuria         136
18/5/94 Unipath Laboratories       MSU     Marked haematuria         137
21/6/94 Unipath Laboratories       MSU     Blood +++          139
29/6/94 Unipath Laboratories       MSU     Blood +++          140
7/7/94     Unipath Laboratories       MSU     Blood +++          141
13/7/94 Unipath Laboratories       MSU     Marked haematuria         142
21/7/94 Unipath Laboratories       MSU     Blood +++          143
28/7/94 Unipath Laboratories       MSU     Blood +++ Marked Haematuria on dipstick but only few red blood cells seen in microscopy        145
10/8/94 Unipath Laboratories       MSU     Blood +++ Marked Haematuria     146
18/8/94 Unipath Laboratories       MSU     Blood +++ Marked Haematuria     150
14/9/94 Unipath Laboratories       MSU     Blood +++ Marked Haematuria     173
3/3/95     Unipath Laboratories       MSU     Blood ++           173
30/11/95 Unipath Laboratories       MSU     Blood ++           188
21/2/96 Unipath Laboratories       MSU     Blood +++          191
10/2/97 Mr Westmore     Urine Analysis    Some Blood       207
16/6/97 Dr Levick           Tram accident jolted then haematuria again FWT      large blood        985
9/9/98     Dr Levick           MSU     Blood 3+ 985
15/4/99 Dr Levick           FWT     Blood     985
17/6/98 General Diagnostic Laboratories    MSU     Blood + 987
18/8/98 General Diagnostic Laboratories    MSU     Blood trace        987
9/9/98     General Diagnostic Laboratories    MSU     Blood trace        988
5/7/99     Dr Levick           FWT     Blood +++          985
7/7/99     General Diagnostic Laboratories    MSU     Blood ++           989
31/8/99 Dr Levick  Acute pain with bleeding    986
28/3/00 Dr Levick  Bleeding yesterday         986
4/4/00     General Diagnostic Laboratories    MSU     Blood ++           990
6/4/00     RMH Emergency            Blood +++          991 684
6/4/00     RMH     lower back pain dysuria 3hrs (L) flank pain.            Diagnosis pyelonephritis secondary to damaged (L) kidney Urine showed no macroscopic haematuria but Dipstick ++ Blood          684
24/8/00 General Diagnostic Laboratories    MSU     Blood trace        992
17/5/00 Dr Levick           Acute bleeding again                   986
29/5/00 Dr Levick           Haematuria & lethargy again FWT Blood     986
24/7/00 Dr Levick           Haematuria on dipstick                 986
27/9/00 Dr Levick           Bleeding and lethargy again
27/9/00 General Diagnostic Laboratories    MSU      Blood ++           993(a)
15/12/00 Dr Levick           Large blood on testing - NB thinks surgery               986(a)
27/12/00 Dr Levick           MSU     Haematuria Rose Urine Large blood           986(a)
27/12/00 General Diagnostic Laboratories    MSU      Blood +++          993(b)
21/5/01 Dr Levick           Acute bleeding with pain              986(a)
3/7/01     General Diagnostic Laboratories    FWT MSU         Blood +++          993(c)
24/7/01 Dr Levick           Urine      Macro Blood      986(a)
7/8/01     Dr Levick           FWT     Blood     986(a)
3/9/01     Dr Levick           Acute bleeding and pain again      Blood     986(b)

On that evidence we find that Mrs Demosthenous did not have persistent haematuria prior to the fall on 30 October 1991. There were many occasions when urine analysis detected no abnormalities. On other occasions, when she had pyelonephritis, and after a delivery, and at the time of her appendicectomy she did have blood in her urine. But she has suffered from persistent haematuria since 30 October 1991.
The Tribunal's search of the medical records also located reports from Dr de Crespigny which explained the position as revealed from the medical records. On 8 December 1992 Dr de Crespigny wrote (R4 p78):
There is good evidence that you had insignificant haematuria before the fall and have had persistent microscopic haematuria subsequent to the fall with some episodes of macroscopic haematuria. These have been associated with significant loin pain and could possibly continue in the long term.

On 28 April 1993 he wrote to Comcare (R4 p95):

As I have previously written and we discussed, Mrs. Demosthenous has had microscopic haematuria for 16 months and is, thus, most probably permanent. She has recurrent episodes of loin pain and macroscopic haematuria. As I have previously written, her haematuria would seem to have developed subsequent to her trauma.

On 3 October 1993 Dr de Crespigny wrote to the Australian Government Health Service stating that for the first time since the trauma, a MSU test on 27 July 1993 had shown trivial haematuria only (R4 p113). Unfortunately, as the Table prepared by the Tribunal shows, that was an isolated incident. The reports after that date have very frequently been of marked or moderate haematuria or "blood ++" or "blood +++".
dr levick

Dr Levick said he had seen urine samples with visible blood probably more than 20 times. He said his view was that the accident damaged Mrs Demosthenous' kidney and the damage has never fully healed. He said minor trauma now leads to further damage and further bleeding. He accepted a diagnosis first made by Dr de Crespigny (R4 V1 p131) of an arteriovenous malformation which was either caused or traumatised by the fall. He said he believes trauma to the arteriovenous malformation now causes the persistent haematuria.
Mr Gourlay submitted that Dr Levick was too close to his patient to be a reliable witness. He relied particularly on a letter Dr Levick had written to Mrs Demosthenous' solicitors expressing dissatisfaction with a psychiatric report obtained from Dr Greenberg on referral by Dr de Crespigny. Dr Levick wrote that he had sought a further psychiatric report from Dr Holwill.
We see nothing sinister in that letter from Dr Levick. He was aware that Mrs Demosthenous suffered from persistent haematuria following the fall from a tram. He had seen urine samples demonstrating macroscopic haematuria many times and had obtained MSU test results which confirmed the presence of haematuria. He saw Mrs Demosthenous frequently and she presented with pain, lethargy and malaise. He was seeking an explanation for those symptoms. Dr Greenberg's report (R4 p164) was extremely unsympathetic and critical of Mrs Demosthenous . That was an amended version of her first, and in our view, unprofessional report to Dr de Crespigny (R4 pp160-163) which Dr Greenberg herself called "ridiculous". Dr Greenberg had sent her first report to Dr de Crespigny but had written, "If Mrs Demosthenous insists on a report from me, I will amend this report and make it more suitable for handing around". The second report was then written.
However once again it is not the credibility of Dr Levick, any more than that of Mrs Demosthenous, which is the most significant evidence on the issue of whether or not Mrs Demosthenous still suffers haematuria, which is not a pre-existing condition. The answer to that question, because of the material analysed in the Table above is overwhelming. Since the fall on 30 October 1991 when Mrs Demosthenous first had "frank haematuria" (R4 p496) she has suffered persistent haematuria. She did not have that persistent problem prior to the fall.
causation
The next issue to consider is the cause of the persistent haematuria. Dr de Crespigny on 4 March 1994 (R4 p131) wrote that he believed the haematuria related to an arteriovenous malformation. It has never been discovered, but on the evidence it is quite possible for such a malformation to be present and not to be detected on investigation.
Dr de Crespigny first saw Mrs Demosthenous on referral from Dr Levick in June 1992. He saw her quite frequently until 3 October 1994 when he referred her to a psychiatrist, Dr Greenberg. At the time of that referral Dr de Crespigny wrote to Dr Levick saying that he still believed that the macroscopic haematuria was probably related to an arteriovenous malformation and that the loin pain may be improved if the malformation could be identified and embolized. He explained to Dr Levick (R4 V1 p157) that he had referred Mrs Demosthenous to Dr Greenberg because he found her lethargy and malaise difficult to explain. At the same time Dr de Crespigny repeated that he suggested carbon dioxide angiography would be the ideal modality to identify any arteriovenous malformation.
In evidence Dr de Crespigny explained that common arteriovenous malformations are connections between an artery and a vein. He said that they most commonly happened after procedures on the kidney. Usually there are no significant problems when these occur, but in some people they can cause low-grade blood to appear in the urine. Dr de Crespigny said (trans. Vol 4 pp126-127) "that would not normally continue for many years but there is no reason why it can't and certainly some of them can".
Dr de Crespigny said that you should pick up any significantly large lesion on angiogram, but it will miss small lesions and will not see all arteriovenous malformations. When he was asked whether the explanation of Mrs Demosthenous' ongoing pain could be clot colic, he replied: "The answer to any question in medicine when you say (trans. Vol 4 p134) "could", is "yes". That is a very significant answer in terms of the lack of conclusive evidence in this matter.

Dr de Crespigny went on to explain that an arteriovenous malformation can be very small and can be very hard to find. He said he could not deny the possible presence of an arteriovenous malformation in Mrs Demosthenous' kidney. Dr de Crespigny said that the problem facing the Tribunal is not an unusual one in medicine. He said (trans. Vol 4 p141):
[W]e certainly have to cope with every week at least someone who comes in who has got a problem that we are unable to explain. That is a common event but you can make all sorts of hypotheses but very often they are all very unlikely and you really just don't know.
The medical evidence did not offer any other probable explanation for Mrs Demosthenous' ongoing macroscopic and persistent microscopic haematuria. It is clear that that the problem first arose immediately after the fall on 30 October 1991, and that it has remained a problem since. The evidence raised some possible explanations of the ongoing problem, but none of them were put forward by the specialist medical witnesses with any confidence. Dr Levick still accepted the arteriovenous malformation as the most likely explanation of the problem. Dr de Crespigny seemed to still accept an undetected arteriovenous malformation as a possible explanation; and he did not advance any other explanation as more likely.
Mr Harewood first saw Mrs Demosthenous for a medico legal opinion at the request of the respondent's solicitor on 28 July 1992. As stated earlier he wrote the report on the basis of which a delegate decided to cease Mrs Demosthenous' entitlement to compensation. In evidence Mr Harewood said that the fact that Mrs Demosthenous has had a number of investigations which have not found an arteriovenous malformation, makes it much less likely that her bleeding is related to an arteriovenous malformation. The investigations put by Mr Gourlay to Mr Harewood were:
11 March 92 Cystoscopy   Mr Crosthwaite        No obvious local cause for haematuria
14 August 92 Digital subtraction angiogram       Under care of Dr de Crespigny     Normal
16 August 92 Renal biopsy RMH   Mild bilateral renal impairment
7 February 97          Left renal angiogram          Mr Westmore           Normal
10 February 97        Flexible cystoscopy Mr Westmore           Normal

Mr Westmore was not called as a witness. He first saw Mrs Demosthenous in 1996 when she was referred to him by Dr Levick with a history of blood in her urine at least twice a month since the fall. He performed a flexible cystoscopy and a renal arteriogram in February 1997. On 10 February 1997 he reported that urine analysis did show some blood that day but although he did a left angiogram the same day, no abnormalities were found.
Mr Harewood said that there would have to be a significant lesion for it to cause all that bleeding. He said that on the balance of probabilities he would say that there is no arteriovenous malformation present. He suggested that the bleeding could be coming from a lesion in the renal pelvis or in the calyx of the kidney. He said that is postulating an angioma, a small blood vessel malformation similar to the little red dot you get on your skin. It can be congenital or longstanding and is a recognised cause of recurrent microscopic haematuria. He said such a lesion would not show up on any of the investigations that have been performed, but could show up on a flexible ureteroscopy, although you cannot guarantee that you would be able to see into all of the calyxes of the kidney.
Mr Harewood accepted that Mrs Demosthenous clearly had some renal trauma as a result of the fall involving the tram. He said that, as she had macroscopic haematuria in association with the trauma, it is reasonable to assume that the trauma alone was responsible for that episode of bleeding. He did not accept a suggestion raised during the hearing that chronic pyelonephritis would cause ongoing bleeding. He said one would expect bleeding to occur only with acute infections. He also said he could not see any connection between the gynaecological procedures Mrs Demosthenous had undergone and the bleeding. He said he could not postulate those problems interacting with each other, or with thalassaemia minor to cause the bleeding.
Mr Harewood said that he would not say that in his view it is unlikely that there is a lesion there. He said he does not know whether there is a lesion. He agreed that Mrs Demosthenous has not recovered from her haematuria, and that her presentation now is consistent with that when he first saw her.
Mr Harewood summarised his view (trans. p107), when he said "there has to be some reason for her to have this ongoing bleeding, yet we have been totally unable to, despite really intensive investigations, identify that cause." He explained that he found it really difficult to postulate any diagnosis that would connect the haematuria with the renal trauma sustained in the fall from the tram. He explained (trans. Vol 3 p108):
Look, I can only call the situation as best that I can, and that is that I cannot see any connection, any sort of pathological condition in the kidney that was related to a cause by the trauma and have been totally unable to identify any cause for the bleeding. Now, I am not really prepared to give an opinion on whether because there is this chronological ongoing part of the bleeding that therefore that is necessarily connected. That is I think for you to chose. I can only tell you what I believe an organic medical basis.
One matter which was raised during the hearing was that the ongoing haematuria may be intentionally caused by Mrs Demosthenous introducing blood into her urine, in order to entitle her to remain on compensation for the days she does not work. When this matter was before the Tribunal in May 1995, the Tribunal in its reasons for decision (A5) said that there had been a veiled suggestion, which was not put to Mrs Demosthenous that she may not in fact be suffering from macroscopic haematuria. During this hearing Mr Gourlay quite explicitly asked Mrs Demosthenous whether she had in fact added blood to her urine samples (trans. Vol 1 p49). At first she did not answer the question, but when the Tribunal put it to her again she denied that, saying "No, never, never." None of the medical witnesses advanced that as a likely explanation of the many occasions on which Mrs Demosthenous has been reported to have either macroscopic or microscopic blood in her urine. On the evidence, we do not find that Mrs Demosthenous has contaminated her urine samples by adding blood to them.
Thus, bearing in mind the issues discussed earlier as to the burden of proof, we find that Mrs Demosthenous continues to suffer from the compensable condition causing her to suffer haematuria. We find that her present persistent haematuria is different to her condition prior to the fall involving the tram. Her significant haematuria was first noticed on the day of the fall on 30 October 1991, and has continued to the present time.
Mrs Demosthenous has a compensable condition caused by the fall involving the tram, which we find continues to exist. The evidence is that medical science has not established the cause of the condition, but Dr de Crespigny said that unexplained problems are not unusual in medicine. The evidence certainly has not satisfied us that the current problem of persistent microscopic and macroscopic haematuria is probably no longer related to the fall involving a tram. The fact that there is no clear diagnosis of the problem causing the persistent haematuria is not so significant as the clear medical history of onset of the condition leading to hospitalisation on the day of the fall, and its continuation thereafter. (See Re Beer and Australian Telecommunication Commission (1990) AAT 5974 20 June 1997, Re Jeremic and Comcare (1990) AAT 5975 20 June 1990 and Re Beer and Telstra (1994) AAT 9838 11 November 1994)
There was no persuasive evidence that Mrs Demosthenous no longer suffers haematuria resulting from the fall on 30 October 1991. We find that her persistent haematuria continues to be compensable.
description of the condition
The parties recognised that the respondent's current description of the accepted condition is not the subject of any formal determination accepting that change from the description included in the Tribunal's decision of 12 May 1995. The parties agreed to a new determination amending the description of the condition as part of the Terms of Settlement signed on 9 September 1997. No new determination was made as anticipated by the Terms of Settlement.
The parties therefore asked the Tribunal to consider the appropriate description of the condition. It is clear that the Tribunal can vary the decision under review if, on the material before it, that seems to be appropriate. The decision under review (T20 pp42–45) affirmed a decision (T18 p39) which ceased liability in respect of "work related enhanced susceptibility of a pre-existing condition, namely haematuria". The accepted condition was in fact described by the Tribunal in its decision of 12 May 1995 as "macroscopic haematuria, pain, lethargy and malaise". So far as we are aware no determination was ever made varying that description.
We quite understand that the agreed amendment was intended to indicate that even prior to the fall involving the tram, Mrs Demosthenous had suffered from haematuria. We find on the evidence that she did not then have a pre-existing condition of haematuria". She had suffered from haematuria on occasions due to a specific medical cause such as pyelonephritis but she had many times when she had no haematuria on testing. We do not find Mrs Demosthenous had a "pre-existing condition" of haematuria. Further, since the fall involving the tram Mrs Demosthenous has not simply had an "enhanced susceptibility" to haematuria. She has in fact had persistent haematuria. We will set aside the reviewable decision and in substitution vary the original determination of 10 November 1999 by changing the description "macroscopic haematuria" to "persistent haematuria".
pain, lethargy and malaise
The next issue which arises concerns the symptoms of "pain lethargy and malaise", from which the Tribunal found Mrs Demosthenous to be suffering in its decision of 12 May 1995. Her evidence is that she continues to suffer from those symptoms and that they are closely related to episodes of heavy bleeding or macroscopic haematuria. Dr Levick's evidence on the issue was that on a number of occasions he has seen Mrs Demosthenous when she is particularly drained and exhausted following any form of exercise or exertion beyond that which is customary in her life. He explained that such exertion brings on episodes of macroscopic haematuria, and also lethargy and malaise or fatigue.
This is the area which has given rise to much controversy on the part of the specialists. Dr de Crespigny was most emphatic that he did not think that episodes of macroscopic haematuria, even in a person with thalassaemia minor and other medical problems, would cause pain, lethargy and malaise as described by Mrs Demosthenous. He acknowledged that clot colic can be an explanation of pain in macroscopic haematuria, but he suggested that Mrs Demosthenous' pain, lethargy and malaise were more likely to be psychological than organic. He suggested that the activity of going through Tribunal hearings and being forced to reflect on an injury that happened many years ago is likely to cause anyone distress. He said he wondered how much of the explanation for Mrs Demosthenous' symptoms should be found in the medico legal process, rather than in strictly medical matters. Dr de Crespigny's letters of 3 October 1994 to Dr Levick and to the psychiatrist, Dr Greenberg (R4 pp157&158), make it clear that even in 1994 he did not consider the symptoms of pain, lethargy and malaise to result from the haematuria and he was seeking a psychological explanation of these symptoms.
Dr Greenberg, as referred to earlier, provided a report which was critical of Mrs Demosthenous. Dr Greenberg seemed to rely in part on the assertion that bleeding should not cause tiredness. She suggested to Mrs Demosthenous, according to her report, that "people who have nose bleeds or menstrual periods don't feel tired". Mrs Demosthenous apparently then told Dr Greenberg that she had felt tired when she had periods. Dr Greenberg found no symptoms of depression or anxiety. In her second report of 28 November 1994 (R4 p164), the one prepared for "handing around", Dr Greenberg concluded:
As I said to Dr Levick on the phone, I find it impossible to distinguish between the possibility of this being fatigue caused by worrying about haematuria on the one hand, and an artefactual problem on the other. I can't see why her employer should be liable for this symptom of fatigue and exhaustion until every effort has been made to determine its cause.
Further efforts have now been made to determine the cause of the haematuria. They have not been successful, but we have found that the haematuria is genuine. In those circumstances it seems that Dr Greenberg's opinion is that the fatigue comes from worry about the haematuria.
Dr Holwill provided a further psychiatric report on 12 December 1994 (R4 p165–6). He wrote:
She has been extensively investigated, and I noted that she still sees Paul Champion de Crespigny and also attended Martin Walter, [specialist renal physician] for a second opinion recently. It seems that the macroscopic haematuria and pain is accepted by the investigating nephrologist, but the lethargy remains unexplained. I think an adequate psychological explanation for this can be put forward, in that she is very fearful of developing the pain and of developing severe renal injury. Emma is quite resentful of the fact that Comcare has insisted that she return to work, and thus, when she does develop physical symptoms, I think the lethargy is one way of insisting that she remain inactive.
Dr Holwill provided a second report to Mrs Demosthenous' solicitors on 20 February 1995 (R4 p170–172). He concluded:
Whilst the lethargy may have a psychogenic origin, I do not believe this is a conscious process, and I do not believe there is any other psychogenic component to her presentation.
A third psychiatrist was engaged by the Australian Government Solicitor. Dr Jackson, consulting psychiatrist, saw Mrs Demosthenous on 14 January 1994 and 4 April 1995 (R4 pp176–180). He accepted that Mrs Demosthenous did not have any underlying physical condition and therefore suggested her complaints were fictitious. However he did not explain how Mrs Demosthenous could be creating the persistent haematuria which has been so frequently confirmed on MSU. Thus we find his report not helpful.
There is one further relevant piece of evidence on this issue. We refer to the Statement of Mr Butler, who is Mrs Demosthenous' supervisor (R2). He stated:
Emma has been working in the Program Access Team for the past 6 months she has continued to assist in the Special Needs Supplement Scheme and has shown a willingness to learn about other programs administered by the team.
Her poor health has continued however, and throughout the period has continued working 3 days a week. Even so, she has had to take full or part days off on various occasions. A variety of duties have been provided to her in order that she not become physically stressed through the need to stand for any length of time returning files to the filing room shelves.
Emma makes herself readily available to be of assistance to all members of the team, and also readily accepts the responsibilities asked of her as an individual. During these past moths, she has agreed to assist in various aspects of the administration of the programs.
. . .
In setting the duties and tasks to be undertaken allowances have been made for the fact that Emma can only shift light loads. There is a balance of activities than [sic] need to be performed standing and sitting. Because of her health causing her to be unreliable in her attendance at work, the duties undertaken do not have short critical deadlines.
Mr Harewood did not offer any explanation for the lethargy and malaise, but he said that if Mrs Demosthenous has heavy enough bleeding with small clots that can cause clot colic. He said he would expect the clots to be visible if they are causing clot colic, and he would expect that to occur more than once in 12 months, which Mrs Demosthenous said was the frequency of visible clots. Thus Mr Harewood seemed unable to explain the connection between the bleeding which Mrs Demosthenous reports and her pain, lethargy and malaise. However he seemed to accept her account of those episodes because he said (trans. Vol 1 p99):
I think, given the way she describes the episodes of bleeding with pain and with lethargy, I think it's -- I think what she's doing [i.e. three days work a week] is probably reasonable.
We find that the reported symptoms of pain, lethargy and malaise have at least a strong psychological component. We do not find that they are a direct result of the macroscopic haematuria, but we do find that they are contributed to by the haematuria. We note that Dr Greenberg and Dr Jackson (R4 pp160-164 and pp176–180) expressed reservations about the genuineness of the complaints of pain, lethargy and malaise. Dr Holwill provided a psychological explanation of the pain and believed it to be genuine and Mrs Demosthenous' supervisor, Mr Butler, seems to accept the genuiness of her attempt to work and the need to find suitable tasks.
We accept Mrs Demosthenous' evidence and that of Dr Levick that exertion has on occasions brought on attacks of macroscopic haematuria, pain and exhaustion. Dr de Crespigny wrote in a report of 28 April 1994 (R4 V1 p95):
More recently she has had a problem of significant lethargy and malaise. I suspect this relates to a functional illness rather than underlying organic pathology. There is no question, however, that it is perceived as a very real illness and is undoubtedly contributing to her disability.

When asked by Mr Goldberg (trans. Vol 4 p140), "Last time you gave evidence along the lines of psychological pain being quite real. Is that a view you still hold to in . . . general". Dr de Crespigny replied "Unquestionably. Absolutely, yes".

We are puzzled by the lack of a medical explanation for the lethargy and malaise, but that may be related to the absence of any explanation for the persistent haematuria, which has been objectively demonstrated on MSU. We are not satisfied that the pain, lethargy and malaise do not exist. Even if they do have a mainly psychological basis we find that they are related to the persistent haematuria. Because those aspects of the condition were found to be compensable by the Tribunal in May 1995, we would require to be persuaded that they were not related to the haematuria before we would cease compensation in respect of those aspects of the condition. We are not so satisfied.
We note that although the Tribunal, in May 1995, found that Mrs Demosthenous was capable of working only three days each week, on the basis of her evidence that full-time work had aggravated her haematuria, the evidence at this hearing did not show that there had been any improvement in the haematuria with the shorter working week. Nor did the evidence show that Mrs Demosthenous had maintained her three days of work each week. She seems, according to the summary of sick leave records which was tendered in evidence, and which the Tribunal has made exhibit A7, to still require a considerable time off work in spite of the reduction in her working hours. The evidence did not satisfy us that there has been any improvement in Mrs Demosthenous' condition or in her attendance since her hours were reduced pursuant to the Tribunal's decision of 12 May 1995.
conclusion

It appears to us that the appropriate decision now is that Mrs Demosthenous' conditions of persistent haematuria, and pain, lethargy and malaise, to which the haematuria contributes, remain compensable so that she is entitled to compensation for incapacity resulting from those conditions. We do not consider it is appropriate for the Tribunal to make any decision in advance as to any periods of incapacity. That is an issue to be decided by her regular doctor depending on her presentation to him. Thus we do not find that Mrs Demosthenous is restricted to working three days a week. We do suggest that any attempt to return to five days work a week should be gradual.
The Tribunal will set aside the decision under review. In substitution the Tribunal will vary the determination made 10 November 1999 (T18 p39) to provide:
(i)that the description of Mrs Demosthenous' compensable condition be changed to persistent haematuria, pain lethargy and malaise;
(ii)that from 10 November 1999 Mrs Demosthenous remains entitled to compensation under the Act in respect of persistent haematuria, pain lethargy and malaise.

The Tribunal will also order that Mrs Demosthenous' costs of these proceedings be paid by the respondent.

I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, and Assoc. Professor J Maynard, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  13 July, 10, 11 and 12 September 2001
Date of Decision  16 November 2001
Counsel for the Applicant        Mr J Goldberg
Solicitor for the Applicant         Holding Redlich
Counsel for the Respondent    Mr I Gourlay
Solicitor for the Respondent    Australian Government Solicitor