Dunn and Commonwealth Bank of Australia

[2011] AATA 930

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/0477

GENERAL ADMINISTRATIVE DIVISION		)          Nos. 2011/0690 & 0882
Re		CAROL DUNN

Applicant

And COMMONWEALTH BANK OF AUSTRALIA

Respondent

DECISION

Tribunal Ms J F Toohey, Senior Member

Date22 December 2011  

PlacesNewcastle and Sydney

Decision The decision in relation to incapacity and medical treatment is set aside and the matter is remitted to the respondent to determine the incapacity payments and the cost of any medical treatment to which Mrs Dunn is entitled.  The decision in relation to permanent impairment is affirmed.

.......................[sgd].......................

Ms J F Toohey

Senior Member

CATCHWORDS

COMPENSATION – back injury – secondary adjustment disorder – whether applicant made wilful and false representations – whether effects of injuries had ceased – pre-existing degenerative lumbar spondylosis – decision under review set aside

Safety Rehabilitation and Compensation Act 1988 ss 7(7) and 24

Comcare Australia v Porter [1996] 70 FCR 139

Fam v Australian Postal Corporation [2008] AATA 1069

Van Reesch v Health Insurance Commission [1996] FCA 1279

REASONS FOR DECISION

22 December 2011 Ms J F Toohey, Senior Member

BACKGROUND

1.      Mrs Carol Dunn was a customer service representative at the Commonwealth Bank of Australia (the respondent) in March 2009 when she injured her back while bending down to plug in a fan under her desk.  The respondent accepted liability under the Safety Rehabilitation and Compensation Act 1988 (the Act) for her injury and subsequently also accepted liability for her secondary chronic pain disorder.

2.      On 11 February 2011, the respondent determined that the effects of Mrs Dunn’s back injury had ceased as of 13 October 2009 and it was no longer liable for any incapacity or medical expenses related to it.

3.      On 25 February 2011, the respondent determined that Mrs Dunn had no incapacity or need for treatment arising from her psychological condition. 

4.      Mrs Dunn contends that the effects of her back injury are continuing.  The respondent contends that any pain she has suffered since 13 October 2009 is the result of her pre-existing degenerative lumbar spondylosis.

5.      Mrs Dunn also seeks review of a determination by the respondent to deny liability for permanent impairment and non-economic loss.  She concedes that, if the Tribunal determines that the effects of her injuries have ceased, this claim will fall away.

THE ISSUES

6.      The principal issues for determination are:

(i)whether the effects of Mrs Dunn’s back condition ceased on 13 October 2009;

(ii)if not, whether the respondent is liable to compensate her for incapacity and medical treatment;

(iii)whether Mrs Dunn suffered incapacity and required medical treatment as a result of a psychological injury.

7.      A preliminary issue arises, being whether Mrs Dunn’s claims are excluded by the operation of sub-section 7(7) of the Act.

Are Mrs Dunn’s claims excluded by sub-section 7(7)?

8.      The decisions under review do not include a determination that Mrs Dunn’s claims are excluded by reason of sub-section 7(7), but the respondent submits that the Tribunal should make such determination.

9.      Sub-section 7(7) of the Act provides:

A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of the Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

10.     The respondent contends that Mrs Dunn failed to disclose relevant information about her history of lower back and psychological problems in the claims she lodged for compensation and in the information she provided – or failed to provide – to doctors whom she saw in connection with her injuries.  The respondent contends that in so doing, she made wilful and false representations. 

11.     For the following reasons, I am satisfied that sub-section 7 (7) does not apply in this case.

Information provided by Mrs Dunn in her claim forms

12.     In respect of each injury, the standard form asks a claimant:

8.Have you ever had a similar symptom, injury or illness, work-related or otherwise?

9.Have you ever received treatment for a similar injury or illness?

13.     In the claim for her back injury, Mrs Dunn ticked “No” to both questions.  In the claim for her psychological condition (which she described on the form as “mental state”), she ticked “Yes” to the first question and added: “2003-2004 grief following death of my mother”.  She ticked “No” to the second question.  The respondent contends that none of these responses was truthful.

History of back pain 

14.     The respondent further says that Mrs Dunn failed to disclose a history of lower back problems over many years, in particular that:

(i)she hurt her lumbar spine in a fall while ice-skating in 1982;

(ii)an x-ray of her lumbar spine in March 2006 revealed mild scoliosis and osteophytic lipping at L3/4 and L4/5 levels;

(iii)her general practitioner, Dr Tonkin, prescribed the anti-inflammatory, Brufen, for her back in 2006;

(iv)she saw Dr Finch at the same practice in July 2007 complaining of lumbar pain and he requested an x-ray;

(v)she saw Dr Oxby at the same practice in November 2008 complaining of back pain radiating into her right groin, and Dr Oxby noted “Past history lumbar fracture … takes Nurofen plus. … For x-ray lumbar spine”.

15.     Giving evidence before the Tribunal, Mrs Dunn readily agreed that she fell while ice-skating in 1982.  However, she said, the pain resolved quickly after two or three sessions with a chiropractor, and she had no time off work. 

16.     It is not clear why Dr Oxby’s notes refer to “past history lumbar fracture”.  Mrs Dunn gave evidence that there was no discussion of a fracture when she fell in 1982 and she did not recall treatment for a fracture.  There is no other reference to a fracture in her clinical notes or any of the scans of her lumbar spine.

17.     Mrs Dunn agreed in evidence that, since about 2006, she had “achey pain” in her back from time to time for which she sought help.  When it did occur, she thought it was due to fatigue from driving long distances for work.  She saw her doctor “on a couple of occasions” and he prescribed painkillers.  She could not recall specific occasions, and could not recall Dr Tonkin prescribing Brufen, but she agreed that the clinical notes to that effect would be correct. 

18.     The evidence about previous x-rays is not entirely clear.  Mrs Dunn agrees she was sent for x-rays in 2006, and a copy of that report is in evidence.  She recalled Dr Oxby ordering x-rays in 2008 but said she did not actually have them because the pain cleared with analgesics.  Dr Tonkin has confirmed there is no record of results of x-rays in July 2007 or November 2008 in the clinical notes and he presumes Mrs Dunn’s symptoms did not warrant her making the effort at the time.

19.     Before the Tribunal, Mrs Dunn strenuously denied any attempt to cover up or “camouflage” her history of back pain.  She gave evidence that she answered “No” to Question 8 on the claim form because the pain she had experienced previously was “more achey discomfort”.  In contrast, what she felt on Friday 13 March 2009 was “excruciating”, an “electric, stabbing pain” that “did not remotely resemble” the kind or level of pain she had felt previously.

20.     Mrs Dunn said the injury occurred when she got onto her hands and knees under her desk to plug in an electric fan; as she moved a cabinet under the desk out of the way with her right hand and inserted the plug with her left, she felt an excruciating “tearing feeling” in her lower back.  She stayed where she was for several minutes then managed to stand up and walk around.  After a while, she returned to her desk and continued working.  The pain worsened over the weekend and, on the following Monday, she saw Dr de Bruyn (her regular doctor, Dr Tonkin being unavailable).  He ordered physiotherapy and certified her unfit for work for one week.

21.     In relation to treatment, Mrs Dunn said she answered “No” on the claim form because she had never had treatment for similar pain; up until the time of her injury, her back pain had resolved with pain killers.  Dr Tonkin’s records show that, from 2000, she was prescribed painkillers twice.  Mrs Dunn gave evidence she could not recall ever taking time off work on account of back pain before March 2009.  The only notable period of leave in her records is 16 days in December 2005 when she was employed by Mission Australia.  Mrs Dunn could not recall why she took this leave but thought it was because all staff had to take leave around that time.  There is reference in the clinical notes to stress at work but no evidence that this leave was due to back pain or a psychological condition other than stress.

22.     In May 2009, shortly after seeing Dr Raymond Wallace for assessment, Mrs Dunn sent an email to her case worker, Angela Vallidio, saying she was upset that Dr Wallace had treated her “like some sort of criminal or thief”, and asking for a copy of his report when it arrived.  In reply, Ms Vallidio explained the need for the assessment and apologised if Mrs Dunn felt she had been made to feel her injury was not genuine.  Mrs Dunn sent a further email in which she said:

Sure, there is pre-existing pathology I have never denied that, nor have I tried in any way to hide it. Just, simply suffering the result of an injury – that may or may not be related to my existing condition – but an injury nevertheless. 

23.     The respondent suggests that, in using the expression “pre-existing pathology”, Mrs Dunn was referring to a significant pre-existing condition but I do not think, when taken in context, that more can be read into the email than an acknowledgment of back problems in the past.  If anything, her statement tends to confirm that she has been open about her history.

24.     Mrs Dunn saw a number of doctors for treatment and assessment of her work injury.  Their reports indicate that she was open about her history.  Dr Wallace, who saw her in May 2009, noted her ice-skating injury, that she had had episodic lumbar pain for about five years, and had seen her doctor in 2006 and been treated with analgesics.  Dr Youseff Ghabrial, who saw her in February 2010, noted she had had back pain for three to four years.  Dr John Watson, who saw her in March 2010, noted she had back pain in 2006, that she did not appear to have had any time off work because of back pain, and that she had seen her doctor intermittently but not had any specific treatment.  Dr Watson also noted that the March 2006 x-ray had shown “minimal degenerative changes at the L3/4 and L4/5 level’”.  Dr William Warren, a psychologist who saw her in July 2010, recalled in evidence that she told him she had a degenerative back condition, although this does not appear in his report.

History of psychological condition

25.     In her claim for psychological injury, Mrs Dunn disclosed only that she had experienced similar symptoms around the time of her mother’s death, and she said she had not ever had treatment for similar symptoms.  The death of Mrs Dunn’s mother was evidently a most distressing event.  However, the respondent contends that she failed to disclose other occasions of stress or depression, and that she had been prescribed medication on several occasions. 

26.     Mrs Dunn saw Dr Graham Vickery, psychiatrist, in August 2009 and November 2010 for assessment.  Dr Vickery recorded in his first report that she “denied any significant personal stressors” but he noted that Dr Tonkin had recorded “symptoms of depression” in June 2009.  (The respondent also refers to a report from Dr Tonkin in July 2010 in which he says he has treated Mrs Dunn for depression in the past). In both of his reports, Dr Vickery recorded “Nil psychiatric history” and that Mrs Dunn’s marital separation in 2008 was the only “significant personal stressor” in the previous five years.  She does not appear to have mentioned the death of her mother to him.

27.     The respondent says Mrs Dunn also failed to disclose in connection with her claim that:

(i)in 2000, while studying for her Master’s degree in Adult Education, she sought an exemption from examination because of depression and anxiety;

(ii)in April 2004 she saw Dr Tonkin complaining of heaviness in her chest and stress at work (at Mission Australia) and home (to do with her daughter), and that he had diagnosed depression and prescribed Lovan and recommended counselling;

(iii)in July 2004, she saw Dr Tonkin for symptoms including depression;

(iv)in August 2004, Dr Tonkin prescribed Lovan;

(v)in September 2005, she told her doctor she was stressed and worried about her daughter’s pregnancy.

28.     Mrs Dunn gave evidence that she has never seen herself as having “mental health issues” and does not regard work pressures, stress or grief as such, so she had no “past psychiatric history” to tell Dr Vickery about.  Further, she says, what she felt after her work injury was quite different from anything she had previously experienced.

29.     Turning to the other matters raised by the respondent: in August 2000, Mrs Dunn was studying for a master’s degree in Adult Education.  A medical certificate shows she sought an exemption from examination on the ground of “depression and anxiety related to family difficulties”.  Mrs Dunn does not deny seeking the exemption but says she cannot recall doing so.  She says it was a long time ago, and she was looking after a family and studying full time.  The respondent says it defies logic that a person could forget such a significant event.

30.     Mrs Dunn agrees she talked to Dr Tonkin at various times about work and family stresses.  She does not dispute his notes which show, in mid-2004, that she was depressed and he prescribed Lovan.  However, she says, work and family stresses were “completely different” from what she experienced when her mother died.  Dr Tonkin gave evidence that, when he saw her in July 2009, after the work injury, she was “in pieces”, “the worst I’ve ever seen her” with “moderately severe” depression that he thought was definitely affecting her work capacity. 

31.     Mrs Dunn gave evidence that she could not recall why she had answered “No” to the question on the claim form about previous treatment, but said she had never taken pills for any of her symptoms.  She did not take the Lovan prescribed by Dr Tonkin because her daughter was having problems with drugs at the time and she felt strongly against “pill-popping” herself.  She acknowledged that difficulties with her daughter around the time of her mother’s death compounded her own difficulties but, although Dr Tonkin’s notes refer to treating her for depression, she does not believe she has ever had depression; she believes she has suffered grief over her mother, and work stresses. 

32.     Dr William Warren, a clinical and forensic psychologist who saw Mrs Dunn in July 2010 for assessment, was not surprised at her answers on the claim form and nor was he surprised that she told him “there had been no psychological or psychiatric problems across her life for her or her family”.  He agreed that one explanation could be that she was simply lying but, equally, that she did not regard any previous events as major.  Although it does not appear in his report, he gave evidence that his notes showed Mrs Dunn told him about her history of back pain, and he had noted that she told him she had never experienced “anything like [her back pain] before”. 

Consideration

33.     Mrs Dunn impressed me as a truthful witness who was genuinely affronted by the suggestion that she had not been entirely honest.  She gave her evidence frankly and without exaggeration.  The medical evidence confirms that her pre-existing back condition involved minimal degenerative change and that she had had only intermittent episodes of pain that resolved quickly.  I accept she perceived the effects of her back injury as different from anything she had experienced previously. 

34.     I accept Mrs Dunn’s evidence about her answers to questions about her mental state.  I accept that she genuinely believed she had not suffered similar symptoms previously.  It is true that Dr Tonkin believes she has suffered from depression in the past, but he also gave evidence that, in his view, she is an entirely genuine person.  It is also true that the university medical certificate shows a diagnosis of severe anxiety and depression but I accept Mrs Dunn’s evidence that she cannot recall seeking that exemption or that diagnosis.  I agree with the respondent’s submission that it seems an unlikely thing to forget but I accept that Mrs Dunn honestly forgot it.    

35.     There is ample evidence that Mrs Dunn disclosed her previous conditions to various doctors whom she saw in connection with her claim.  That she volunteered this information as early as May 2009, shortly after lodging her claim and before sub-section 7(7) was raised, lends weight to her evidence concerning her answers on the claim form.

36.     A determination that sub-section 7(7) of the Act applies is not to be made lightly.  It is, in effect, a finding that a person has been guilty of fraud: see Van Reesch v Health Insurance Commission [1996] FCA 1279 at [29]. The language of the provision indicates that more than knowledge of a false representation is required. The addition of ‘wilful’ in that context signifies that “the employee should have no belief that the representation is true”: Comcare Australia v Porter [1996] 70 FCR 139 per Jenkinson J at 150. See also Fam v Australian Postal Corporation [2008] AATA 1069 at [44] where sub-section 7(7) was found not to apply. I do not think it can reasonably be said, on the evidence, that Mrs Dunn met the high standard laid down by that test.

37.     I am not satisfied that Mrs Dunn made any wilful and false representation in connection with her claims.  I am satisfied that sub-section 7(7) does not apply to either claim.  That being said, it is clear that Mrs’ Dunn’s memory of events is not always entirely reliable.

HaD the effects of Mrs Dunn’s back injury ceased at 13 October 2009?

38.     Mrs Dunn returned to work one week after her injury but her condition worsened until, in about June 2009, she could not cope with the pain radiating down into the backs of her legs and down the front of her thighs, and she “had a meltdown”.   She was off work until about October 2009 when she returned for four hours a week, gradually increasing to four hours, five days a week in 2010.  However, she still experienced “quite a lot” of pain and was taking “a lot of pain medication”.  She says she felt she had lost control over her life and started taking antidepressants.  

39.     Mrs Dunn says that, by the end of 2010, with counselling and exercise, she was feeling stronger and more able to cope, but she continues to have difficulty with some tasks and avoids things that she knows will cause pain.  For instance, she now wears flat shoes, she no longer carries washing to the clothesline in a basket, and she has adapted how she does tasks such as hanging out washing.  She says she usually has a rest when she gets home from work and her back is often sore at the end of the day.  She has “achiness and soreness” all the time and pain radiating down her legs, through her groin and across her buttocks and back, which is still “an electric pain not achy pain”.  She takes Panadol Osteo and Voltaren three times a day. 

40.     Mrs Dunn says she still cannot work more than 20 hours a week because of her back pain.  She acknowledges she is able to move around at work which eases the pain somewhat.  (Evidence from her manager about this is below).  She applied for an administrative position that would allow her to move around more but was not successful.  The medical evidence concerning Mrs Dunn’s work capacity is considered below.

Dr de Bruyn’s notes

41.     The respondent contends that, even if sub-section 7(7) does not affect Mrs Dunn’s claims, there is reason to approach her evidence with caution.  The first concerns Dr de Bruyn’s notes.

42.     Mrs Dunn saw Dr de Bruyn on the Monday after her injury.  His clinical notes refer to “low back pain and some muscle spasm” but not to a work injury.  He issued a non-Workcover certificate for one week. He issued a further non-Workcover certificate on 18 March 2009.  It was not until 3 April 2009 that his notes referred to a work injury and he issued a Workcover certificate.

43.     Mrs Dunn says her first appointment with Dr de Bruyn was brief and rushed.  She says she told him she injured her back while crawling under her desk but he did not ask more, and she did not tell him more.  She says it was not in her mind, when she first saw him, to claim compensation and she thought nothing of it that he issued a standard medical certificate.  I accept her evidence that it was only after her manager asked her to do so that she saw Dr de Bruyn and obtained a Workcover certificate.

44.     The respondent submits that, where Mrs Dunn’s oral evidence is inconsistent with Dr de Bruyn’s contemporaneous notes, I should prefer the notes.  As a general proposition, I would agree.  However, the absence of reference specifically to a work injury on the first two occasions she saw Dr de Bruyn is not necessarily inconsistent with her claim that she told him the injury happened at work.  I have not heard from Dr de Bruyn but I have no reason to doubt her evidence.  Whatever the explanation, I am satisfied it does not reflect adversely on Mrs Dunn’s credibility.  

Subsequent events

45.     The respondent contends that the evidence supports the conclusion that Mrs Dunn’s pre-existing condition, together with a subsequent event or events, explains her continuing symptoms, and submits she has not been forthcoming about those subsequent events.

46.     In June 2009, Mrs Dunn stumbled onto her left knee while leaving a supermarket.  She gave evidence that she did not suffer any abrasions or injuries as a result of the fall, and she continued shopping.  She recalls being embarrassed but denies any increase in back pain.

47.     On 24 September 2009, Mrs Dunn stumbled down a small step and fell on her left knee as she was leaving the gym where she had seen a physiotherapist for her back.  She says she felt pain in her knee but is adamant she did not notice any increase in her back pain; she was distressed at the embarrassment of having to be helped up but any back pain she experienced was only what she would have been feeling normally. 

48.     On the day she fell at the gym, Mrs Dunn telephoned her rehabilitation consultant, Ms Annika O'Neill (now Ms Carroll), to tell her what had happened.  What she said to Ms O’Neill is in dispute.

49.     On 28 September 2009, Ms O’Neill sent an e-mail to Ms Vallidio confirming Mrs Dunn's call.  She stated:

Carol stated that she fell onto her left knee and outstretched hand.  She says she felt an immediate increase in pain in her lower back region and left knee.  Carol advised that she considered this a temporary exacerbation of her existing back injury and that the pain on her knee was due to a graze.

50.     Ms O'Neill made a note of Mrs Dunn’s call.  She recorded “pain in the same area, however increased”.  Before the Tribunal, Ms O’Neill was quite certain that her note referred to Mrs Dunn’s report of increased pain in her lower back, which was the area Ms O’Neill was seeing her for.  However, she agreed that the words “temporary exacerbation of her existing back injury” were hers and not Mrs Dunn’s.  She also agreed that they did not discuss the fall again, and she that would have asked Mrs Dunn about it if she had thought it important.

51.     Before the Tribunal, Mrs Dunn denied that her back pain increased at the time of the fall.  She was adamant that she could not have said words to that effect to Ms O’Neill because there was no increase in her back pain.

52.     Some support for Mrs Dunn’s account is found in an incident report made on the same day by the gym.  In the “assessment of client after injury”, it stated:

[M]ember had grazed her knee which was a little red and swollen. We took Carol inside gave her a bottle of water and offered her ice which she said she didn’t need. Carol said she just wished to go home and she felt more embarrassed than hurt.  Carol’s leg was a little sore and swollen. She said she would be fine.

53.     An “update” by the gym on 28 September shows: “Was going to call member in 7 days.  However, member came in on 28/9 for a workout and was fine”. 

54.     Mrs Dunn saw Dr Tonkin for the first time after her fall on 2 October 2009.  His notes show: “fell at gym and hurt knee”.  There is no reference to back pain.  Nor is there any reference in the physiotherapy notes of 8 October 2009.

55.     It is difficult to know what to make of the conflict between Mrs Dunn’s evidence and Ms O’Neill’s.  Both impressed as truthful and both were certain their recollections were correct.  It seems unlikely that Ms O’Neill would have got things completely wrong but it is possible that she misunderstood Mrs Dunn.  Either way, I do not accept the respondent’s submission that Mrs Dunn has not been truthful about this incident.

56.     The question that arises is whether either of these incidents caused injury to Mrs Dunn’s back, in particular whether either caused the disc protrusion and potential impingement that showed in a scan in December 2009. 

THE MEDICAL EVIDENCE

Evidence of Dr Ghabrial

57.     Dr Ghabrial, orthopaedic and spinal surgeon, saw Mrs Dunn three times in January and February 2010, on referral from Dr Tonkin.  He noted that the x-rays from March 2006 showed “some wear and tear in the L3/4 and L4/5 facet joints with no evidence of any marked problems in the lumbar spine”.  He noted that the CT scan in April 2009 “suggested L4/5 disc protrusion but was not that conclusive” and, when repeated in December 2009, showed the L4/5 disc protrusion had become worse as well as “L5/S1 protrusions with potential impingement on the nerve roots in the foramina at the L4/5 level”. 

58.     In March 2010, Dr Ghabrial concluded that Mrs Dunn had injured her back at work and sustained “disc protrusions at the L4/5 and L5/S1 segments with evidence of radiculopathy in the legs”.  He attributed the worsening by December 2009 to the natural progression of the earlier disc lesion.  He arranged a caudal block which Mrs Dunn reported made no difference to her pain.

59.     In Dr Ghabrial’s opinion, the cause of Mrs Dunn’s disc protrusions and nerve impingement was the bending and twisting injury at work.  He does not believe she has a long-standing degenerative back condition of any significance; rather, the scans showed wear and tear typical of a person of her age and, at most, minor degenerative change.  He noted that the facet joints were still well preserved with some cartilage, and there was no narrowing of the spinal canal from any osteophytes.  He could not say why she had experienced back pain over the years before her injury but he thought it most likely muscular – which accounts for 95 per cent of back pain –  or facet joint problems, or a strain due to normal daily activities. 

60.     It was significant, in Dr Ghabrial’s opinion, that Mrs Dunn had not developed sciatica as a result of her previous back problems.  The respondent submits this is factually incorrect and refers, firstly, to a note by Dr de Bruyn in March 2006 querying sciatica.  However, I accept the submission for Mrs Dunn that the note is no more than a query; it is not evidence of sciatica at that time.  There is also a note by Dr Oxby in November 2008 that Mrs Dunn had back pain radiating to her right groin.  However, Dr Ghabrial gave evidence that she had gynaecological problems at that time and radiating pain “is exactly the sort of thing you could get from that gynaecological condition”.

61.     When he saw Mrs Dunn in early 2010, Dr Ghabrial noted she had “classic signs” of radiculopathy including moderate muscle spasm, weakness of her left EHL and sensory changes in the left leg consistent with L5 and S1 dermatomes, and absent left ankle jerk and a decreased right ankle jerk.

62.     In relation to her incapacity, Dr Ghabrial reported in January 2010 that Mrs Dunn could not work more than 20 hours per week because of her injury.  Before the Tribunal, he said that was based on her report to him that she was struggling to do 20 hours a week.  At the time, he suggested she “try 20 hours and we’ll take it from there”.  However, he thought she might be able to push herself to work longer hours.  He agreed that, on a day when she was feeling good, Mrs Dunn could work more than four hours; she could try working an extra hour.  He would “keep an eye on her” because there was some risk of further disc protrusion but, if it gave her no problems for a couple of months, she should be fine.   

63.     Dr Ghabrial was surprised that Dr Tonkin thought Mrs Dunn could work 38 hours a week in July 2010 without a recurrence of her symptoms, because she had two prolapsed discs, but he acknowledged Dr Tonkin made that statement some five months after he (Dr Ghabrial) last saw her.

Evidence of Dr Wallace

64.     Dr Raymond Wallace, orthopaedic surgeon, saw Mrs Dunn on three occasions.  He has provided five written reports and gave oral evidence. 

65.     Contrary to Dr Ghabrial, in Dr Wallace’s opinion there was “absolutely no doubt” that Mrs Dunn had significant, symptomatic degenerative lumbar spondylosis prior to her injury and a “long history of lumbar spinal pain”.  Because degenerative changes can be asymptomatic, it was not to the point that she had not suffered significant pain previously.

66.     In Dr Wallace’s view, the CT scan in April 2009 showed multiple levels of degenerative disc disease at the lumbar spine through L2/3 to S1, with disc protrusions at four levels and broad based disc protrusion at L4/5, and marked facet joint degeneration.  In his view, the fact that the x-rays had not shown degenerative change to that extent only demonstrated the relative accuracy of CT scans. 

67.     Dr Wallace did not agree with Dr Ghabrial that the protrusion seen in the December 2009 scan was a continuation of the work injury.  It was not possible, in his view, that the disc was normal before then.  He disagreed with Dr Ghabrial that the mechanism of injury described by Mrs Dunn could lead to disc protrusion because it did not involve a compression injury.  He noted that Dr Ghabrial did not see Mrs Dunn until after her falls in June and September 2009, whereas he saw her twice in 2009, the first time shortly after the injury, and a third time in 2010.

68.     Dr Wallace gave evidence that the mechanism of injury described by Mrs Dunn would “absolutely not” cause a disc protrusion because it did not involve compression.  In contrast, in both June and September 2009 she fell forward on to her knee, a mechanism of injury associated with disc protrusion, particularly in a person with degenerative disease (although he did not think the supermarket fall significant).  This explained for him why the scan in December 2009 showed a progression of her underlying disease and an increase in the disc protrusion at L4/5 and impingement of the exiting nerve roots bilaterally. 

69.     Dr Wallace believes that the work injury caused Mrs Dunn minor musculo-ligamentous strain and temporary aggravation of her pre-existing condition.  In his experience, injuries of that kind resolve in three to six months; any ongoing pain is what she would have regardless of the work injury and is due to her to degenerative condition.  By October 2009, he thought she was fit to return to her pre-injury duties as long as she did not carry weights more than 10 kilograms, or twist and bend or sit for prolonged periods. 

Evidence of Dr Tonkin

70.     Dr Tonkin has treated Mrs Dunn since 2000.  Clinical notes show she was seen at his practice 27 times up to March 2009, twice for back pain.  He confirmed that the only time before her work injury that she was prescribed painkillers for her back was for Brufen in March 2006, and there is no record of time off work for back pain before March 2009.  

71.     Dr Tonkin last saw Mrs Dunn one week before the Tribunal hearing.  He regards her as “a totally genuine patient” with a strong work ethic.  In his view, the effects of her work injury have continued unabated. 

72.     There is apparent conflict in Dr Tonkin’s reports in that, on 4 February 2010 he issued a Workcover certificate stating that Mrs Dunn was capable of working seven to eight hours a day, five days a week, and she would need breaks at least every 20 to 30 minutes and should avoid sitting and standing as much as possible.  On 18 March 2010, he wrote to her employer that she could work “as many hours as she can within the limits of her pain” but prolonged sitting or standing would be a problem and appropriate breaks would likely make all the difference.  On 19 March 2010, he issued a certificate saying she was capable of working four hours a day, four to five days a week and required breaks at will at least every 20 to 30 minute.  On 20 July 2010, he wrote:

I believe she is capable of working a 38 hour week but would need the flexibility for short breaks or to move about stretching, it said, as she needed. 

73.     Before the Tribunal, Dr Tonkin said he did not see his statements as inconsistent because Mrs Dunn's capacity was determined by her fluctuating level of pain; some days she might be able to work more than four hours.  He believes she is doing as much as she can at present.  The goal is for her to work full-time, which he thinks is possible.

74.     In cross-examination, Dr Tonkin agreed that Mrs Dunn's ongoing back pain may be in part related to her to degenerative condition.  He accepted the possibility that she experienced only a temporary aggravation and that ongoing pain was due to her degenerative condition.  I note, however, that he was not asked, and he did not put a date on, when the effects of her injury would have ceased if that were the case.

Dr Watson’s report

75.     Dr John Watson, orthopaedic surgeon, saw Mrs Dunn in March 2010 for assessment.  His written report is before the Tribunal.  He noted that the x-ray of Mrs Dunn’s back in March 2006 “confirmed minimal degenerative changes at the L3/4 and L4/5 level”.  He noted that the CT scan in April 2009 “showed no evidence of significant disc protrusion or any neural compromise.  There are facet joint degenerative changes at L4/5 and L5/S1”.

Mrs Dunn’s working conditions

Evidence of Brent Stahlhut

76.     Mr Brent Stahlhut has been the Contact Centre Manager at the Commonwealth Bank in Newcastle since September 2009.  Mrs Dunn’s Team Leader, Kristen Wrightson, reports to him.  He regards Mrs Dunn as an asset to the call centre.  He is aware of her injury and her doctor’s recommendation about her working conditions.  He said he has never observed any sign that she was suffering pain at work but he acknowledged that he sits at the opposite end of the office and cannot observe her directly.

77.     The call centre system is predominantly computer-based.  A customer service representative (CSR) works sitting down, using a headset and entering data as required into the computer.  Wireless telephone headsets have been introduced which give greater flexibility of movement and allow staff to walk around while taking a call but do not block out noise as well as the fixed line headset.  Most CSRs have opted for a wireless headset but Mrs Dunn’s preference has been to keep using the fixed line headset.

78.     In Mr Stahlhut’s opinion, Mrs Dunn’s needs can be, and are, accommodated.  He produced photographs of her work station showing notices on her computer and chair asking other not to use them (so they remain in position suitable for her).  No one else uses her chair but he said others might use her work station on weekends.  He said she is able to stand up, stretch and move around as much as she needs to.  He acknowledged that, for most of the time, a CSR needs access to the computer when dealing with a call but said that was possible while standing. 

79.     On average, a CSR takes 80 to 100 calls per day with a target of just over four minutes per call.  Mrs Dunn averages 30 to 40 calls during her four-hour shift which Mr Stahlhut describes as “definitely acceptable”.  She is allowed additional breaks but still meets the key performance indicator of being on the phone 94 per cent of the possible time available.  Records over three days in June 2011 show that Mrs Dunn took just under 20 minutes of breaks over 240 minutes worked on those days.

80.     Mrs Dunn’s current shift finishes at 12 noon.  Mr Stahlhut was asked whether, if she wanted to, she could have a break at 12.00pm before starting an afternoon shift.  He said he would have to speak with the scheduling department about making such an arrangement but he thought it could be accommodated; there is a “chill out room” where staff can relax during their lunch break which has lounge chairs and a television.

81.     A letter is in evidence dated 22 April 2010 to Mrs Dunn from Ms Wrightson, headed “Commencing Full Time Hours”.  It refers to a meeting with Mrs Dunn to discuss Dr Watson’s report of 31 March 2010 stating that Mrs Dunn was fit for full-time work without restrictions.  Ms Wrightson’s letter confirmed Mrs Dunn's advice that she could not work full time and that her request to work 20 hours a week had been accepted as from 26 April 2010.  The letter stated “As you have been deemed fit to normal duties without restrictions it is expected that if you require any additional breaks that you consult your Team Leaders.”  It concluded:  “If you fail to follow [this directive], the Bank may take serious disciplinary action against you which may include the termination of your employment contract.”

82.     Mr Stahlhut had not seen this letter previously and says he would not have written it himself.  The tone may be unfortunate but I accept the letter is a standard form and does not represent any actual threat of disciplinary action against Mrs Dunn. 

83.     In an exchange of emails in June 2010, Ms Wrightson questioned a break taken by Mrs Dunn and asked her to let her or another supervisor know before taking breaks.  The exchange is pleasant enough but, like the more formal letter, tends to suggest that Mrs Dunn is not quite as free to take breaks as Mr Stahlhut indicated.

Incapacity and medical treatment arising from the psychological injury

84.     The respondent accepts that Mrs Dunn experienced psychological symptoms following the work injury but says they did not result in incapacity or the need for medical treatment.

Evidence of Dr Warren

85.     Dr Warren is a clinical and forensic psychologist.  He is not a medical doctor.  He saw Mrs Dunn for two two-hour consultations in July 2010 and administered various psychometric assessment tests.  He provided a detailed written report and gave oral evidence.

86.     Dr Warren diagnosed Mrs Dunn as suffering from Pain Disorder Associated with Both Psychological Factors and General Medical Condition.  He did not favour the diagnosis of Somatoform Chronic Pain Disorder made by psychiatrist, Dr Graham Vickery (see below). 

87.     According to his report, Mrs Dunn reported to Dr Warren that she had no psychological or psychiatric problems in the past.  He was not aware, when he made his diagnosis, of occasions of stress, or Dr Tonkin’s note concerning depression or the prescription of Lovan but he gave evidence he did not think those matters made a difference in Mrs Dunn’s case.  If anything, they inclined him towards a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood which, having lasted more than six months, he considered chronic.  He thought her clinically significant emotional and behavioural symptoms had produced significant impairment in her work and personal life. 

88.     Dr Warren considered that the relationship between Mrs Dunn’s level of functioning when he saw her, the impairment that this represented from her pre-injury level of functioning, and the injury sustained at work, were clear.  However, he did not think her incapacity for work when he saw her in July 2010 was solely due to her psychological condition but it would have made her more vulnerable to pain and affected her feelings of self-worth, leading to further distress.

Evidence of Dr Vickery

89.     Dr Vickery saw Mrs Dunn for assessment in August 2009 and November 2010.  He provided three written reports and gave oral evidence.

90.     Dr Vickery recorded that Mrs Dunn reported no psychiatric history and no family psychiatric history.  He gave evidence this was based on her response to a questionnaire he gives patients prior to examination which asks about past psychiatric treatment or counselling.  He could not recall specifically asking Mrs Dunn about these matters but he thought he would have done so. 

91.     Dr Vickery found no evidence of a medical condition.  He diagnosed Mrs Dunn as suffering from Somatoform Chronic Pain Disorder, a

non-compensable condition. That is, it’s not taken into account in assessing the whole person impairment in relation to any compensation claim … because the condition is not related to the injury as such but to a various number of other incidents or personality traits or situational factors. 

He found no evidence that she was suffering from an anxiety or depressive disorder.  He thought her “negativity, frustration and poor pain management coping skills” were affecting her recovery. 

92.     Dr Vickery did not agree with Dr Warren’s diagnosis of Adjustment Disorder with General Medical Condition on the ground that Dr Warren is not medically trained and therefore not qualified to make a diagnosis of “a general medical condition”.  However, when he was referred to the scans of Mrs Dunn’s spine, which were not available to him at the time, he thought they indicated “significant spinal pathology”.  On that basis, he agreed that his diagnosis would fall away and that Dr Warren’s diagnosis would be correct.

93.     Dr Vickery thought that, in August 2009, Mrs Dunn had some incapacity as a result of her psychological condition.  In November 2010, some incapacity remained, but not so marked, and he thought her psychologically fit for a graduated return to work without restrictions. 

94.     Dr Vickery’s opinion about the source of Mrs Dunn’s anxiety and depression is at odds with Dr Tonkin’s view that she is genuine and hard-working, and wants to work.  It also seems at odds with the evidence of Mr Stahlhut.  I prefer their view, and that of Dr Warren, to that of Dr Vickery who seemed to take a rather negative view of Mrs Dunn.  I note that, in any event, he still thought she had some incapacity after 13 October 2009.

Consideration

95.     There is no dispute that Mrs Dunn suffered an injury to her back in March 2009.  I have to determine whether, on the balance of probabilities, the effects of her injury had ceased as of 13 October 2009.  For the following reasons I am not.

96.     I accept Mrs Dunn’s evidence that her back pain prior to March 2009 was intermittent and managed with painkillers from time to time.  It is relevant that Dr Wallace thought she not only showed objective signs of disc disease but also that she had a “very significant”, long-standing history of symptomatic, degenerative lumbar spondylosis prior to the injury.  It was an important factor in his opinion and a reason why Mrs Dunn felt such pain from an injury that would otherwise settle relatively quickly.

97.     Dr Wallace thought Mrs Dunn had a significant history of lumbar back pain because of the injury in 1982, and because she had complained of back pain over five years for which she had been taking pain-killers.  He also considered it significant that she had x-rays ordered twice within two years because, in his opinion, a doctor would not order an x-ray just because a patient presents with back pain; most are given painkillers and the pain resolves.  That may be, but I cannot speculate about what was in the doctors’ minds and, of itself, it does not demonstrate the state of her spine. 

98.     The evidence before the Tribunal does not support the view that Mrs Dunn had a long history of significant back pain.  She denies that was the case.  The clinical notes and her treatment over the years do not support that view.  There is no evidence that she had to take time off because of back pain or that it interfered in other ways with her daily activities.  That is not to say that she did not have a pre-existing degenerative condition in her spine; she accepts that she did, but the emphasis that Dr Wallace gave to her history is reason to consider his evidence with some care. 

99.     Dr Ghabrial’s opinion that Mrs Dunn had minimal degenerative change in her spine before the injury, based on the scans, is supported by Dr Watson’s report.  On balance, I prefer their view to that of Dr Wallace.  I am not satisfied, on the evidence, that Mrs Dunn showed significant signs of radiculopathy prior to her injury.  There are two relevant clinical notes.  One is a question only.  The other, in November 2008, may be explained by her gynaecological problems at the time; there is no other evidence about it.

100.   Dr Tonkin has treated Mrs Dunn for many years and does not question that she is hard-working and genuine.  He accepted the possibility that her ongoing pain is due to degenerative changes alone but he believes it is due to her injury.

101.   I accept that Mrs Dunn continued to feel pain in her lower back well after October 2009.  I am not satisfied that, were it not for the fall in September 2009, she would either be recovered or would be feeling only the effects of her pre-existing degenerative condition.  The evidence about the fall suggests it had little, if any, effect on her back.  There is no dispute that the December 2009 scan showed protrusions but I am not satisfied that those changes can be attributed to the fall.  Nor am I satisfied that it can be attributed to the fall in June 2009, about which there is almost no evidence.  

102.   There is a conflict between Dr Ghabrial and Dr Wallace about whether the mechanism of injury described by Mrs Dunn could lead to disc protrusion at all.  Dr Ghabrial believes it could; Dr Wallace disagrees.  On balance, and given the description Mrs Dunn gave of how the injury occurred, I accept Dr Ghabrial’s opinion and am satisfied, on the a balance of probabilities, that it could have caused a protrusion.

103.   In relation to incapacity, I am satisfied that Mrs Dunn continued to have partial incapacity after 13 October 2009.  There is some force to the respondent’s argument that, if she has been able continuously to work for 20 hours a week, even on bad days, she should be able to work longer, at least on some days.  However, I accept that Mrs Dunn would like to work longer overall but is limited by the effects of her injury.  I am satisfied that, read in context and having heard his evidence, Dr Tonkin was not saying unequivocally in July 2010 that she was capable of working 38 hours a week.

The claim for permanent impairment

104.   A finding of permanent impairment requires a rating of 10 per cent according to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide): s 24(5) of the Act.

105.   Table 9.17 of the Guide, labelled “Lumbar Spine – Diagnosis-Related Estimates”, provides for ratings of 0 per cent, eight per cent, 13 per cent and above.  A rating of 13 per cent requires, relevantly:

Significant findings of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings)

106.   Dr Wallace assigned a rating of 8 per cent whole person impairment under Table 9.17.  In July 2010, Dr Ghabrial assigned a rating of 13 per cent, having previously assigned a rating under Workcover guidelines which are not appropriate in this case.  However, he gave no explanation for his assessment and I do not accept, without more, that a 13 per cent rating is appropriate.

107.   I am not satisfied that Mrs Dunn suffered a permanent impairment within the meaning of the Act and the Guide.  It follows that the determination in this regard is affirmed.

Conclusion

108.   The decision in relation to incapacity and medical treatment is set aside and the matter is remitted to the respondent to determine the incapacity payments and the cost of any medical treatment to which Mrs Dunn is entitled. The decision in relation to permanent impairment is affirmed.

I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.

Signed: ..................................[sgd]............................................
             Nicholas Olson, Associate

Dates of Hearing  11, 12, 13 July and 19 September 2011
Date of Decision  22 December 2011
Counsel for the Applicant         Mr G Graham
Solicitor for the Applicant          Ms M Lawrence, Emery Partners
Counsel for the Respondent     Mr D Richards
Solicitor for the Respondent     Ms C Tsekouras, TurksLegal