Dragicevic and Comcare
[2011] AATA 627
•6 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 627
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/2792
)
GENERAL ADMINISTRATIVE DIVISION )
Re SNEZANA DRAGICEVIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date6 September 2011
PlaceCanberra
Decision The decision under review is affirmed. .....................[sgd].........................
Professor RM Creyke, Senior M
ember
CATCHWORDS
WORKERS COMPENSATION – accepted injury of ‘migraines’ – cease liability notice - whether compensable condition still exists – whether entitled to expenses for reasonable medical treatment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16
REASONS FOR DECISION
6 September 2011 Professor RM Creyke, Senior Member
1.Ms Snezana Dragicevic was employed as an APS5 (Australian Public Service officer, level 5) Case Officer in the War Crimes Screening Unit of the Department of Immigration and Citizenship (Agency). She had been employed in the ACT Public Service since 1987 and with the Australian Public Service from 1993. She commenced employment with the Agency in 1999.
2.She had an accepted claim for ‘migraine (unspecified)’ with a date of injury of 18 April 2006. The injury was attributed to screen based work while she was working with the Agency.
3.On 17 November 2009, Comcare made a decision denying liability for medical treatment for the condition under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), a decision affirmed on review on 22 February 2010.
4.On 29 June 2010, Ms Dragicevic sought a review of that decision by the Tribunal.
Issues
5.The issues to be considered are:
·Whether Ms Dragicevic presently suffers the effects of ‘migraine’, the compensable injury; and
·Whether there is any medical treatment that it is reasonable for Ms Dragicevic to obtain in relation to the injury.
Legislation
6.Section 16 of the Act provides for compensation for medical treatment obtained in relation to an injury. The provision states, as relevant:
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that injury.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
Background
7.Ms Dragicevic was born on 24 September 1968, and was employed by the Department of Immigration and Citizenship from 1999 until she resigned on 11 November 2008. She has not worked subsequently.
8.Ms Dragicevic had been experiencing headaches since at least 1993 or 1994. Ms Dragicevic said that ‘her migraines had progressively increased in frequency and intensity over the years’.
9.Ms Dragicevic had a CT scan of her brain on 25 March 1998. An MRI of her head was conducted on 12 November 2007. Both were normal.
10.Ms Dragicevic said she began to suffer from chronic migraines and had been experiencing migraines when she began working with computers some years ago. However, her severe attacks commenced in April 2006.
11.On 27 June 2006, she claimed compensation for ‘recurrent migraines precipitated by prolonged use of the computer screen’. She noted that she had suffered ‘work related migraines over 7 years in DIMA’, resulting in neck pain, nausea and impairment of her sight.
12.Ms Dragicevic was on sick leave on medical advice for about six weeks from 18 April 2006. Her position at the Agency at that time was about eighty per cent computer screen based.
13.Ms Dragicevic went back to work on 9 June 2006 and suffered a migraine that night, ‘probably precipitated by constantly looking at computer screen’. She returned to full time work from September to December 2006. After her annual leave, from February 2007, she generally worked reduced hours of 16 hours per week with restrictions on computer screen work. While working these hours she was only experiencing one or two migraines a fortnight.
14.A work station reassessment report on 9 May 2007 recorded Ms Dragicevic as saying she had benefited from a new keyboard and mouse. She also said she enjoyed her work and did not wish to be taken off the help desk where she had been when her headaches worsened. The return to work plan recommended during the assessment continued her reduced hours and limited her time on the help desk to two days a week.
15.The assessment included administration of the Depression Anxiety Stress Scale 42 (DASS) which indicated that Ms Dragicevic was ‘within the normal psychometric ranges for both the Anxiety and Stress factors’. However, she was found to be ‘mildly depressed on the Depression factor’.
16.Ms Dragicevic was prescribed spectacles specifically for screen-based equipment on 2 November 2007. In April 2008 she commenced a trial work placement with the Business Improvement, Program Management section within the Agency. This position was seventy per cent computer based. On 21 May 2008, she ceased work. At that time she reported, it was a long time since she had had a migraine.
17.She returned to work for a few weeks in August 2008, but she found the menial work provided for her as an alternative to computer based work depressing and she resigned in November 2008. A closure report by Commonwealth Rehabilitation Service on 26 June 2008, noted the workplace ‘had difficulty providing a sufficient number and range of non-screen based tasks’. Ms Dragicevic also had significant periods of time off work at this time due to the side effects of taking parnate, one of the many treatments prescribed for her migraines.
Medication history
18.Ms Dragicevic has tried a variety of medications with mixed success. These included imigran which was effective if taken early, inderal, isoptin, sandomigran, epilim, endep, avanza, mersyndol, mersyndol forte, beta blockers, desiril, amitriptyline, topamax, cymbalta, lamictal, sumatriplan and parnate. A number of the medications caused significant side effects including nausea, constipation, insomnia and weight gain. She also used a number of herbal treatments without benefit and tried oral contraceptives, which have beneficial effects for some migraine sufferers.
19.The clinical notes of Dr Perera, Ms Dragicevic’s general practitioner, have the following entries regarding her migraines:
·3 June 2008: migraines flared up; on imigran/mersyndol forte.
·13 June 2008: Off work for 3 weeks; no migraines since this weekend
·25 June 2008: likely that she is addicted to mersyndol forte
·11 September 2008: now no migraines at all; not taken mersyndol for some time; reactive depression due to inability to work in her normal capacity; causing insomnia
·15 September 2008: no migraines at all; not used mersyndol forte
·29 September 2008: no migraines at all now after stopping work; not on any mersyndol for a long time
·13 October 2008: not had any migraines; not any medications now;
·12 January 2009: has had 2 headaches associated with periods but not migraines; Prescriptions imigran nasal spray, isoptin tablets 80mg ceased, parnate tablet 10mg ceased, given tramal (for depression).
·28 January 2009: no more migraines; occasional headaches.
·5 May 2009: few migraines again; has used imigran nasal spray; prescribed lexapro tablet (for depression); imigran nasal spray; levonorgestrel tablet (oral contraceptive).
·1 June 2009; occasional migraines; mersyndol helped; prescribed Lexapro (for depression).
·15 June 2009: migraines worsened; prescription for Cymbalta (for migraines and depression).
·14 July 2009; stopped Cymbalta; will try avanza (for depression)
·23 July 2009: severe headache; prescriptions imigran nasal spray; tramal ceased; Cymbalta ceased; lexapro ceased.
·18 September 2009; prescriptions mersyndol daystrength tablet 500mg; imigran nasal spray;
·17 December 2009: review of migraines; still getting 2 per week; prescription imigran nasal spray; avanza
·18 August 2010: avanza ceased; prescribed mersyndol; imigran nasal spray.
20.In August 2010, the clinical notes state all medication ceased. However, Dr Perera’s ‘Progress notes’ for Ms Dragicevic in the period 2 December 2010 to April 2011 show her prescribing imigran nasal spray on 2 December 2010 and again on 19 April 2011.
Medical evidence
Dr Ranji Perera
21.In a medical certificate for workers’ compensation, Dr Ranji Perera, Ms Dragicevic’s general practitioner, saw her on 18 April 2006 for ‘migraine’ due to ‘constant use of a computer screen at work’.
22.At a medical review on 3 April 2008 for the purposes of the rehabilitation service, Compensation Review Service Australia, Dr Perera said in her opinion that Ms Dragicevic could only increase her work hours slowly in the short term and only provided non-computer based tasks could be found. This would be dependent on finding a preventative medication for the migraines. At that review Ms Dragicevic was prescribed an anti-depressant medication useful in migraine cases. Ms Dragicevic was to commence a three month trial in the Business Improvement, Program Management section on 14 April 2008.
23.In a report on 10 June 2008, Dr Perera reported that Ms Dragicevic had very resistant migraines precipitated by use of the computer screen. She reported that her patient was then having continuous headaches and was unable even to do her part time work.
24.On 18 August 2008, Dr Perera provided a workers’ compensation medical certificate that Ms Dragicevic was also suffering from reactive depression due to work, due both to computer screen work and the low level duties she had been allocated.
25.On 15 June 2009, Dr Perera certified that Ms Dragicevic was suffering from ‘migraines exacerbation/now got a major depressive illness’. On 14 October 2009, Dr Perera reported to Comcare that in her opinion although Ms Dragicevic had stopped work ‘her migraines are still a continuation of her work related injury’. She also noted that her patient was ‘suffering from depression due to her disability and her inability to work’.
26.Dr Perera repeated this opinion on 20 April 2011 in a report for the purposes of the Tribunal claim. She added in a report of 9 August 2011 that although the migraines were in remission since Ms Dragicevic had ceased computer screen work, ‘she has not recovered her condition and it is very unlikely that she will ever recover fully. She will still get episodes of exacerbations of her headache which would certainly be more if she were to return to screen based work’.
Dr Viketos
27.Dr Alexandra Viketos, general practitioner, provided a medical certificate for workers’ compensation on 5 September 2006. She certified that Ms Dragicevic was suffering from ‘neck and arm strain, cervicogenic headache’, which she understood was caused be ‘excessive keying at work’. She also noted that migraine was a ‘pre-existing or contributing factor’.
Physiotherapy
28.The Tribunal notes that Ms Dragicevic undertook physiotherapy commencing on 18 July 2006. A report dated 30 August 2006 stated she was treated for ‘poor work posture induced cerviogenic [sic] headache’ and that by the end of the third session, she reported that the onset of her migraines had slightly decreased, and her neck complaint and stiffness had reduced.
Dr Gytis Danta
29.Dr Danta, neurologist, provided reports dated 8 August 2007 and 13 September 2007. In the first report, Dr Danta noted that Ms Dragicevic first started complaining about headaches in 1992 or 1993. According to Ms Dragicevic, they started when she was working in the public service using a computer screen and initially occurred once a week or fortnight. For about six to seven years she had three to four headaches a week. However, on medical advice she took six weeks off in April 2006 during which time she only had two mild headaches. Following her return to the workplace, she only worked part-time for 16 hours a week and had very few headaches. However, on returning to full-time duties between August and December 2006, she had more frequent headaches. In 2007, therefore, she returned to part-time work and her headaches reduced to one a week.
30.Dr Danta records that she was taking nurofen, mersyndol forte and ordinary mersyndol as well as imigran nasal spray for her headaches. He recorded her as saying that the headaches usually lasted less than one day but they were accompanied by nausea and vomiting, blurring of vision and photophobia. He noted she had used sandomigran but could not tolerate it and epilim did not work. He prescribed desirel 1mg twice a day.
31.In his follow-up report in September 2007 he recorded that she also could not tolerate deseril. Dr Danta prescribed isoptin. There is no record of Ms Dragicevic’s tolerance to isoptin.
Dr Keith Lethlean
32.Dr Lethlean, consultant neurologist, reported on 29 November 2006, that Ms Dragicevic suffered ‘prolonged, work-related headaches … on a daily basis, at times increasing with migrainous severity and speed’. He noted that ‘headaches of this nature are attributed to excessive sustained muscle contraction, which in Ms Dragicevic’s case occurs principally at work’. In his view there was a ‘temporal relationship’ between the migraines and work. He acknowledged that she had a history of headaches but ‘the more severe headaches were not developing prior to her employment’ with the Agency. In the history section of his report he noted Ms Dragicevic as saying ‘she takes 1-2 Mersyndol tablets of a Saturday but none on Sunday’. He noted that ‘Her headaches have generally been absent when she has been on vacation and occur little during the weekends’.
33.In his view, ‘neck and scalp muscle contraction commonly occurs with exposure to glare and under conditions of concentration, stress, etc. When severe, muscle contraction headaches can develop migraine-like increases’. However, as he conceded ‘The relationship between these exacerbations … and the known chemical changes which underlie other/common migraines remains unknown’.
34.His report also said: ‘I do consider Ms Dragicevic’s headaches have developed while using the computer screen during her employment. Her headaches have increased during her working hours. Factors include the use of the computer screen, concentration and the stress involved as a case officer’. In his view her headaches ‘will probably continue indefinitely’. However, he noted ‘They may later become independent from work exposure and continue as chronic daily headaches.’ However, as he said ‘this is not the current scenario and remission is possible’. In his view the factors impacting on the condition were ‘concentration (visual, mental) and stress’.
35.He produced a further report on 1 September 2009 following another examination. The report noted that Ms Dragicevic continued to have migraine attacks despite no longer being in employment or using computers. Ms Dragicevic is reported as telling him that her current headaches were different from those she suffered while at work. He concluded that these migraines were constitutional and had no relationship to her previous employment. The symptoms of depression were a separate disorder.
36.On 21 March 2011, Dr Lethlean provided another medical report which contained a comprehensive medical history indicating that Ms Dragicevic had been suffering from migraines from 29 October 1993 when she was first prescribed medication for the condition. She had also presented with migraine with severe vomiting on 15 December 2002.
37.His report noted that Ms Dragicevic currently suffers ‘common migraine (migraine-without-aura); that her headaches are due to a ‘basic migrainous condition, due to a constitutional condition’, and they are not due to the compensable injury in April 2006. In his opinion, the work related aggravation from computer work did not continue and was not present on 3 November 2010 when Dr Lethlean saw her. He also said Ms Dragicevic would require medical treatment for her condition, regardless of her injury in April 2006. He concurred with the opinion of Dr Darveniza that the more severe episodes of migraines occurred while she was at work in the Agency.
Dr O’Neill
38.Dr John O’Neill, consultant neurologist, on 23 June 2008 reported that Ms Dragicevic’s headaches worsened with an attempted return to full duties. Accordingly she had reverted to restricted hours. He considered her severe headaches sounded like migraine and she was ‘prone to non-migrainous headaches’. He also hypothesised that she had taken excess mersyndel forte which could produce some ‘rebound headache’. He noted Ms Dragicevic as saying that ‘by and large she said she did not get headaches when she was not working’ and ‘She denied any stress at work’. He recommended she find non-computer-based work. He said he was not aware of literature linking computer usage to migraine.
Dr Andrews
39.Dr Colin Andrews, consultant neurologist, provided a report on 19 September 2006 in which he found Ms Dragicevic’s neurological examination to be ‘normal’. He noted however, that she had been getting chronic daily migraine which was difficult to shift. He recommended she use epilim and isoptin.
40.In a subsequent report on 18 November 2008 Dr Andrews noted that since Ms Dragicevic had gone off work in May 2008 and then resigned in November 2008, her headaches had gone away. Any headaches that she had since were occasional and mild. He believed that computer work had probably been the main contributing factor to her accepted condition. He also said there was no permanent impairment as the symptoms had resolved, and no further medical treatment was then required. In his opinion there was a link between computer use and migraines.
Dr Darveniza
41.Dr Paul Darveniza, neurologist, provided a report on 27 February 2011, indicating Ms Dragicevic’s health, following a full neurological and general medical examination, was ‘entirely normal’. He recorded that ‘clinically there was no doubt Ms Dragicevic was suffering from migraine, aggravated during a bad period in 1999 [sic] when she was using a computer terminal at work for many hours each day’.
Ms Dragicevic’s contentions
42.Ms Dragicevic, in her statement of 20 May 2011, claimed that she has suffered migraine headaches since 1994. She said her migraine headaches ‘have never ceased completely and only the severity degree changes’ and that her continuing migraines are the same as she experienced when at work. She continues to take medication and ‘most days I can take Mersyndol day strength tablets varying from 2-8 tablets per day. I constantly have Imigran Nasal Spray with me and this can be used once or twice a week’. She said that she was ‘on average spending $40-$50 a week on these medications’.
Comcare’s contentions
43.Counsel for Comcare contended that Ms Dragicevic does not presently suffer the effects of the accepted injury, her migraines, and as a consequence she is not entitled to compensation for medical treatment under section 16 of the Act. Specifically Comcare argued:
·The evidence does not support that Ms Dragicevic’s condition was initially made symptomatic by computer use at work, and/or is permanently aggravated/accelerated by computer use;
·Ms Dragicevic’s symptoms ceased after Ms Dragicevic stopped duties associated with computer use or at least abated considerably after she resigned in 2008;
·Ms Dragicevic currently suffers common migraine (migraine-without-aura) due to a constitutional condition and the condition is not due to the compensable injury she suffered in April 2006;
·While a work-related aggravation due to computer work was accepted in the past, the aggravation does not currently continue; and
·Irrespective of the injury in April 2006, Ms Dragicevic presently would require medical treatment for her underlying constitutional condition.
44.In addition, Comcare contends there is no medical treatment that is reasonable for Ms Dragicevic to obtain in relation to her compensable injury as she does not presently suffer the effects of the injury.
Consideration
Does Ms Dragicevic continue to suffer from her compensable injury?
45.There is a considerable body of evidence that Ms Dragicevic’s work at the Agency contributed to her accepted condition of migraines (unspecified), that she suffered in the period 2006-2008 prior to her resignation from the Agency in November 2008. The primary issue is whether that condition continued following her resignation.
46.Dr Perera in her report of 20 April 2011 conceded the migraines were in remission, although in her opinion, Ms Dragicevic had not recovered from her accepted condition of ‘migraine (unspecified)’. Dr Lethlean’s ultimate view was that the headaches Ms Dragicevic continues to suffer are ‘constitutional’ and not work-related, but would continue to require medical treatment.
47.Dr O’Neill in his report in June 2008 said her severe condition sounded like migraine but that she was also prone to non-migrainous headaches. Dr Darveniza’s opinion in February 2011 was that Ms Dragicevic’s health was ‘entirely normal’, and Dr Andrews’s opinion was that there was no permanent impairment and her symptoms had resolved.
48.All the experts agreed that whatever the causal link, Ms Dragicevic’s work conditions had resulted in the severe bout of migraines she had experienced in the period 2006 to 2008.
49.From the information available in Dr Perera’s clinical notes, the Tribunal notes that for nearly 12 months from 13 June 2008 until 5 May 2009, after she left work, Ms Dragicevic’s migraines ceased. The first reference to ‘severe headaches’ did not occur until 23 July 2009, and by December 2009 she was recorded as saying she was experiencing two migraines a week. The clinical records indicate that the severity and the frequency of her headaches had reduced considerably. That is borne out by the following history.
50.In the six months from June 2008 to January 2009, Ms Dragicevic had ceased taking migraine medication. After December 2009 and until August 2010, there are no reports in the clinical records relating to headaches.
51.From June 2009, Dr Perera again prescribed imigran nasal spray and mersyndol, as well as anti-depressants. However, Dr Perera’s records suggest that the focus during this period was on Ms Dragicevic’s depression rather than her migraine headaches. Although some migraine medication was prescribed in the period June 2009 to August 2010, Ms Dragicevic is recorded as ceasing all medication during that month. The medical history indicates a distinct reduction in the number of visits by Ms Dragicevic to Dr Perera and of any prescription of medication for migraines during the period from June 2009.
52.From June 2008 to August 2010, a period of 27 months, Ms Dragicevic had 28 visits to the Gungahlin General Practice, only eight of which were for headaches. By comparison in April 2006, Dr Perera considered her migraines were of sufficient severity to certify her to be unfit for work between 18 April 2006 and 26 May 2006. Prior to her leaving work, in the four months between February 2008 and May 2008 Ms Dragicevic saw Dr Perera on nine occasions and on seven of those visits, migraines or prescriptions for migraines were involved. In summary, these figures indicate that the severe form of migraine which Ms Dragicevic suffered during the 2006-2008 period had either ceased or had abated to a considerable extent.
53.That raises the question of whether Ms Dragicevic was still suffering from that condition after November 2008. The Tribunal also notes that Ms Dragicevic had been experiencing headaches as far back as the early 1990s, so she had a predisposition to having headaches. However, the severe form of headaches or migraines she suffered was apparently confined to the time she was working at the Agency and involved in heavy computer screen work. The clinical notes indicating that once she left the workplace, even for a weekend, but certainly permanently, her migraines virtually ceased provides strong support for some agent in the workplace, probably associated with computer usage, being causal of the condition.
54.According to Dr Lethlean her current milder and less frequent headaches are due to constitutional factors, and are not work-related. Dr O’Neill’s view is that ‘she is prone to background non-migrainous headaches’, Dr Andrew’s view is that ‘her symptomatology has resolved’, Dr Darveniza’s opinion in 2011 was that her health is ‘entirely normal’, and Dr Perera’s view is that her former condition is in remission. The preponderance of medical evidence is that the symptoms Ms Dragicevic was experiencing between 2006 and 2008 while working at the Agency are in remission or have resolved.
55.Ms Dragicevic claimed in her statement that her accepted condition continues and simply varies in severity and frequency, and it is true that the only medication she uses, namely, imigran nasal spray and mersyndol, have been constant. However, there are conflicting views, including apparently her own. The Tribunal notes that Dr Lethlean in September 2009 reported Ms Dragicevic as telling him that her post-work headaches were different from those she suffered while at the Agency.
56.In light of the preponderance of the views of the medical experts, the reduction in frequency and intensity of the headaches she has suffered since November 2008, and the fact that Ms Dragicevic has been prone to non-migrainous headaches since the early 1990s, the Tribunal is satisfied that her current headaches or migraines are different from the severe migrainous symptoms she experienced in 2006-2008. So although there was a temporal link between Ms Dragicevic’s migraines and her workplace, the Tribunal is also satisfied that the probable cause was computer usage in the workplace. Since Ms Dragicevic has left the workplace, these triggers are no longer present, and the conditions she was suffering while in the workplace have resolved.
57.The Tribunal also finds that her current headaches are not work-related. Ms Dragicevic recovered from the condition once she was no longer in the workplace and her current occasional headaches, on the medical evidence, appear to be non-migrainous and akin to those headaches to which she was prone and from which she suffered prior to working with the Agency. In other words, the Tribunal is satisfied that the headaches are constitutional.
Whether there is any medical treatment that it is reasonable for Ms Dragicevic to obtain in relation to the injury
58.If the Tribunal is in error in relation to its first finding that Ms Dragicevic’s compensable condition has resolved, it must consider whether there is any reasonable medical treatment Ms Dragicevic can obtain in relation to her condition. Comcare is liable under section 16 to pay the cost of ‘medical treatment’. Such treatment is defined to include ‘the supply, replacement or repair of property used by the employee’, as well as ‘any fees or charges … payable to a legally qualified medical practitioner … or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair’ (section 16(3)).
59.Even if the condition which Ms Dragicevic continues to experience could be characterised as a less severe form of the condition she was suffering in the first half of 2008, and this is not the Tribunal’s finding, there is a question as to whether that condition is susceptible to ‘treatment that it was reasonable for the employee to obtain in the circumstances’ (section 16(1) of the Act), that being the kind of treatment for which Comcare is liable.
60.Ms Dragicevic says in her statement of 20 May 2011 that she ‘can take Mersyndol day strength tablets varying from 2-8 tablets per day. I constantly have Imigran Nasal Spray with me and this can be used once or twice a week’. It is the cost of these medications, calculated by Ms Dragicevic to be in the region of $40-50 per week, for which she is seeking compensation.
61.It is questionable whether medications for migraine are capable of assisting Ms Dragicevic’s recovery or control of her headaches. Even the two medications she uses have not been prophylactic, in the sense that the condition has not been cured.
62.Dr Darveniza in his report of February 2011 said Ms Dragicevic’s ‘therapeutic trials of other medications for migraine prophylaxis including Beta Blockers, Sandomigran, Derisil, Amitryptyline, Isoptin, Epilim, Topamax, Cymbalta and Lamictal have not been helpful’. However, he did note ‘she has not tried A2 Antagonists, ACE Inhibitors, Botulinum Toxin injections, Gabapentin, Clinidine, Periactin or psychotropic agents’. He reported she elected to try neurontin but it has not appeared in the list of medications she has used or trialled.
63.Dr Lethlean in his report of 21 March 2011 suggested reasonable medical treatment would involve ‘further trials of medication and/or Botox scalp injections’, but Ms Dragicevic rejected the botox option. Dr Andrews in his report of 19 September 2006 noted ‘most of the time she gets a good response from nasal Imigran. Otherwise she takes a lot of Mersyndol Forte to keep going during the day, 4 to 6 tablets at least’. He recommended epilim and isoptin but it is evident that they are included in the medications Ms Dragicevic cannot tolerate.
64.Dr Perera in her report of 9 August 2011 said that Ms Dragicevic ‘has seen many specialists and has tried multiple medications with no effect and still suffers from episodes of debilitating migraines’. She had also noted that Ms Dragicevic’s condition was highly resistant to most medications. Dr Lethlean noted that Ms Dragicevic would continue to need medication for her headaches, but apparently only for alleviating the symptoms.
65.Dr Danta does list some medications or medical approaches which have not been tried, but given the dismal success story of her medications history, the prognosis for finding a successful medication to treat her headaches or migraines is not promising.
66.In view of these opinions, including from Ms Dragicevic’s general practitioner who has treated her throughout this period, and the fact that of the two medications tolerated by Ms Dragicevic, neither has been prophylactic, the Tribunal accepts that apart from the two medications she takes regularly, it is unlikely that presently any other medications will cure her symptoms. The most that medication can do is alleviate the symptoms and to date only two such medications have been useful for that limited purpose. However, as the Tribunal has found that Ms Dragicevic does not presently suffer a compensable injury, no medical expenses would be payable under section 16 of the Act.
67.The Tribunal has also considered whether there are other ‘medical treatments’ which would be reasonable. The ‘medical treatments’, for which Comcare is liable include treatments by a ‘legally qualified medical practitioner … or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with the supply, replacement or repair of property used by the employee’ (section 16(3) of the Act).
68.On medical advice, Ms Dragicevic had three sessions with a physiotherapist as a result of which she ‘reported that her neck complaint and stiffness had reduced and the onset of her migraines had slightly decreased’. However, the rehabilitation closure report for Ms Dragicevic of 5 December 2006 noted that physiotherapy appeared to be having no ‘lasting impact’.
69.CT scans Ms Dragicevic has undertaken have not revealed any problems which can be identified using this technology. Ms Dragicevic also reported having her vision tested regularly and she wore glasses when using the computer to minimise any possible glare from the screen. However, that too did not prevent her migraines. Following work assessments, Ms Dragicevic had also been trialled on a different keyboard and mouse, but to no lasting effect. In summary, Ms Dragicevic has been exposed to most of the better known pharmaceutical medications and some natural therapies. She has also tried other suggested treatments including physiotherapy, glasses and ergonomic furniture, for her migraines. None has prevented her suffering migraines; most have had little or no lasting effect.
70.The inability of all these approaches was not surprising. The medical experts, notably Dr Lethlean, acknowledged that the relationship between glare, scalp muscle contraction, concentration and stress - the causes he identified of Ms Dragicevic’s common migraine - is unknown. Dr O’Neill said he was not aware of literature linking computer usage to migraine. Dr Andrews conceded that computer work had probably caused her severe migraines but did not explore the chemical relationship. In other words, there is no common view as to the causes of Ms Dragicevic’s migraines. So identifying ways to prevent or alleviate the condition is difficult even for specialists.
71.In any event, Comcare is only liable for treatment which it is ‘reasonable for the employee to obtain in the circumstances’. There is no evidence that there is any treatment which is reasonable for Ms Dragicevic to be given. So even if there had been a relationship between her current headaches and her workplace it is not reasonable for Comcare to continue to pay for the medications which are under consideration.
72.The decision under review is affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member
Signed: ...........................[sgd]...........................................
Caitlin Baillie AssociateDates of Hearing (on the papers) 25-26 August 2011
Date of Decision 6 September 2011
For the Applicant Self-represented
Solicitor for the Respondent Bradley Dean
Australian Government Solicitor
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