Findlay and Comcare
[2008] AATA 808
•11 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 808
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2005/746, Q 2005/747,
GENERAL ADMINISTRATIVE DIVISION ) Q 2006/691, Q 2006/692 & 2007/3175
Re SHERRILL FINDLAY Applicant
And
COMCARE
Respondent
DECISION
Tribunal M J Carstairs, Senior Member
Assoc Prof J B Morley RFD, MemberDate11 September 2008
PlaceBrisbane (heard in Murwillumbah)
Decision In each of applications Q2005/746, Q2005/747, Q2006/691, Q2006/692 and 2007/3175, the Tribunal affirms the reviewable decision.
......................[sgd]........................
SENIOR MEMBER
CATCHWORDS
COMPENSATION – injury – neck condition – whether injury results in incapacity to work –Tribunal affirms reviewable decision
COMPENSATION – injury – assessment of degree of impairment – whether degree of impairment less than 10% – whether impairment permanent – Tribunal affirms reviewable decision
COMPENSATION – costs associate with medical treatment – cost of travel – distances travelled – whether necessary – Tribunal affirms reviewable decision
COMPENSATION – other claimed conditions – whether conditions are related to employment – Tribunal affirms reviewable decision
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16, 19, 24
Findlay and Comcare [2005] AATA 206
Lees v Comcare (1999) 56 ALD 84REASONS FOR DECISION
11 September 2008 M J Carstairs, Senior Member
Assoc Prof J B Morley RFD, Member1. In these applications, Sherrill Findlay seeks review of decisions refusing a number of claims she has made upon Comcare with respect to different heads of compensation. We must decide whether she is entitled to incapacity payments; to payments for permanent impairment; to payments for travel to medical appointments; and whether Comcare is liable to pay compensation for a range of other medical conditions which she says are related to her existing accepted medical conditions.
2. Ms Findlay worked as a batch clerk for the Commonwealth Bank from about 1974 until she took retrenchment in 1993. Comcare later accepted and paid compensation payments for the condition of bilateral carpal tunnel syndrome, having accepted that the condition was related to her duties at the Commonwealth Bank, including lifting heavy bags of coins and operating electronic adding machines. Later medical evidence indicated that Ms Findlay had recovered from bilateral carpal tunnel condition. Since leaving her employment, Ms Findlay has been diagnosed with a number of other medical conditions.
3. Importantly, for the matters now before us, the Administrative Appeals Tribunal in an earlier decision (Findlay and Comcare [2005] AATA 206) had been called upon to determine Comcare’s liability for her neck condition. The Tribunal in that case decided that Ms Findlay’s neck condition, described by doctors as “degenerative C4/5 and C5/6 spondylosis”, was work related. One doctor in particular, Dr R Cooke, orthopaedic surgeon, thought that the condition did stem from Ms Findlay’s work at the bank. His view carried the day, despite finding little support in other medical opinion. A number of other doctors thought Ms Findlay’s were merely degenerative changes, consistent with aging.
4. The respondent, while noting that the weight of the medical evidence even now suggests that any changes are age related, does not seek to question their liability for the neck condition.
5. The terms of the previous Tribunal decision provide a starting point against which the current claims must be understood. It is pertinent to refer back to those terms:
…the applicant’s traumatic/degenerative changes at C4/5 and C5/6 spondylosis/ osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical spine in the course of her employment in the mid-1980s and that this condition has been ongoing and continuous since 31 March 1986.
6. The Tribunal decision led to Ms Findlay making the claims now before us, and these various claims provide the starting points, and the issues, that we now must address.
ISSUES
7. The claims stemming from the accepted neck condition were:
·INCAPACITY – the issue here is whether Ms Findlay is entitled to incapacity payments from 1993 with respect to her “degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis” (application Q2006/691);
·PERMANENT IMPAIRMENT – the issue here is whether Ms Findlay is entitled to lump sum compensation with respect to her “degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis” (application Q2005/747);
·TRAVEL COSTS – whether Ms Findlay is entitled to her travel costs to attend medical appointments (application Q2005/746); and
·OTHER MEDICAL CONDITIONS – the issues here were sundry medical complaints (application 2007/3175):
“unresolved RSI (includes my accepted neck condition, my shoulders, my arms, hands and thoracic regions); medication induced constipation; teeth decay caused by accepted injury; hiatus hernia caused by medication; gastro-colic reflux and intestinal colic”.
8. Ms Findlay decided not to proceed with her remaining application, Q2006/692. This related to the refusal of her claim for a new computer with Drag-N-Dicta installed. This matter, previously dealt with by the Tribunal in Findlay and Comcare [2005] AATA 206, depended, in part, on Ms Findlay being able to show that she had undertaken a rehabilitation program. Having not done so, she could not satisfy that requirement. Accordingly, and in view of Ms Findlay’s expressed wish not to proceed, we will simply record that we affirm the reviewable decision.
ISSUE 1 – IS COMCARE LIABLE TO PAY INCAPACITY PAYMENTS?
9. In concluding that Comcare had a liability with respect to Ms Findlay’s neck condition, the Tribunal decision in Findlay and Comcare [2005] AATA 206 expressed the liability reflected at s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Section 14 of the SRC Act, often referred to as the central provision of the Act (Lees v Comcare (1999) 56 ALD 84), provides that Comcare is to be made liable “in accordance with this Act” in respect of an injury that results in incapacity for work or impairment. As the Federal Court decision in Lees made plain, the liability under s 14 will be that as limited by other provisions in the SRC Act. In other words, whether or not there are amounts of compensation payable, and with respect to what kinds of claim, will be determined under other provisions of the SRC Act.
10. Findlay and Comcare [2005] AATA 206 remitted to the respondent the assessment of any particular entitlements under the SRC Act. As matters proceeded, it was left to Ms Findlay to indentify which particular claims for payment she was seeking. Ms Findlay then did this, identifying the several kinds of payments, set out above.
11. With reference to incapacity, Ms Findlay’s claim was that her neck injury had prevented her from working at all since 1993. At that date she had taken a redundancy from the Commonwealth Bank. She has not worked since. A number of medical practitioners believe she will not work again. The question is not only that Ms Findlay is unable to work however. The question is: what is the real cause of the incapacity?
12. The SRC Act provides for incapacity payments under s 19. Such payments are made to an employee “who is incapacitated for work as a result of injury”. Incapacity for work is defined in s 4(9) of the SRC Act as either incapacity to engage in any work, or, incapacity to engage in work at the same level as the employee previously was engaged in.
13. For liability to arise, the employee must show that the injury “results” in incapacity. In that regard it is important to keep in mind that Ms Findlay has two conditions accepted as work related. One – bilateral carpal tunnel syndrome – has fully resolved since surgery, so that condition does not result in present incapacity; and, the other is the neck condition. This at present is the only relevant compensable condition which might be contributory to an incapacity to work.
14. Since Ms Findlay first claimed compensation, there can be seen in medical reports a common thread of scepticism about the level of pain and incapacity that Ms Findlay in fact suffers. The predominant view is that there are causes unrelated to employment that account for her incapacity. A sample of these reports, from a number of difference specialists, will suffice for present purposes:
·In 2000 Dr W Douglas, consultant physician and rheumatologist, had taken a history[1] that Ms Findlay had symptoms of “heaviness in both arms, stiffness and soreness of her neck, headaches, pins and needles of her fingers, puffiness of her hands and right forearm” dating from 1985 and had been treated for fibromyalgia. Ms Findlay told Dr Douglas she had suffered since with ongoing symptoms of generalised aches and pains in the neck, shoulders, upper limbs, and her entire spine. Dr Douglas observed there to be few clinical signs of this, apart from Ms Findlay’s subjective complaints. Dr Douglas then noted her multiple medications including drugs of addiction. Dr Douglas diagnosed fibromyalgia, but he was adamant, and remained so in his oral evidence to us, that fibromyalgia was not related to Ms Findlay’s former employment. When he first saw Ms Findlay in 2000, Dr Douglas considered she was not incapacitated for work. He modified his views later[2] but observed that Ms Findlay had adopted a chronically sick role. Having not then worked for 8 years, he believed it unlikely she would ever return to work.
·In 2001 Dr K Adam, specialist in occupational medicine[3], took from Ms Findlay a history of chronic pain in her arms, radiating up to her shoulders and neck. Clinical examination showed that she could only rotate her neck to 10 degrees, and had severely restricted lateral flexion. These readings, Dr Adam said, were unreliable, however, because Ms Findlay was voluntary guarding her movement. He said her symptoms were inconsistent with objective physical signs, and exaggerated, although he stressed she was not intentionally faking her symptoms. He believed that Ms Findlay had subconsciously adopted learned illness behaviour. Dr Adam believed that there were psychological factors at play, unrelated to Ms Findlay’s previous work, but contributing significantly to her disability.
·In 2004 Associate Professor B McPhee, spinal surgeon, found Ms Findlay to have some reduction of neck movements. He noted however that her x-rays were within normal limits; and, she had only mild degenerative changes, consistent with her age. Ms Findlay had described to Dr McPhee her generalised musculoskeletal symptoms, in much the same terms as reported to other doctors. Dr McPhee considered that her presentation was far more symptomatic than could be accounted for by her quite mild degenerative changes. He, like other doctors, concluded she was voluntarily restricting her movement. This behaviour he thought was best explained by a psychological disorder; he thought a “somatoform disorder” (characterised by physical symptoms which in the absence of organic findings are linked to psychological factors). Dr McPhee, like Dr Adams, thought Ms Findlay had adopted a sick role and was unlikely to ever return to work, but not by reason of her functional capacities. Dr McPhee’s opinion was unchanged in his next report in 2006[4] and he remains of the opinion that work in the bank would have resulted in, at most, a temporary aggravation of neck symptoms, which would have resolved. It was evident from Dr McPhee’s reports that he did not consider Ms Findlay to be incapacitated for work “as a result of” the mild degenerative symptoms in her neck.
·In 2005 Dr J Morris, consultant orthopaedic surgeon, prepared a report[5] agreeing that Ms Findlay demonstrated a marked difference between the range of movement she demonstrated when being clinically examined, and that when she was not. Dr Morris thought that, when not under direct observation, Ms Findlay had a completely normal range of motion of her head. Her degenerative changes were minimal, not evident in plain x-rays. Dr Morris thought that Ms Findlay had a “chronic pain syndrome” rather than any specific orthopaedic problem of her cervical spine.
·Dr B Turner, consultant occupational physician, in 2005 noted[6] Ms Findlay’s "psychogenic overlay" and concluded that this accounted for "a large proportion" of her incapacity. Dr Turner thought that Ms Findlay’s pain behaviour was abnormal and noted her narcotic dependency. In her oral evidence, Dr Turner agreed that the abnormal pain behaviour was a somatisation disorder.
·Dr J Reddan, psychiatrist, saw Ms Findlay in 2004[7] and diagnosed a somatisation disorder, unrelated to Ms Findlay’s work with the Commonwealth Bank. Dr Reddan stated that the aetiology of the condition is not known, but what is known is that it is a chronic disorder to which a number of genetic, constitutional and developments factors contribute. Dr Reddan stated that it was not uncommon to see substance abuse disorders complicate the original disorder, and, influence the presentation of symptoms. Dr Reddan’s report reveals that this complex interaction was at play in Ms Findlay’s case.
[1] T19 (Q2005/747).
[2] T30 (Q2005/747).
[3] T21 (Q2005/747).
[4] T32 (Q2006/691).
[5] T73 (Q2005/747).
[6] T72 (Q2005/747).
[7] T40 (Q2005/747).
15. A number of these doctors gave oral evidence at the hearing. None offered support for a conclusion that Ms Findlay’s incapacity for work has any real connection with the limited degenerative changes in her cervical spine.
16. It should also be clearly understood that the other conditions that several doctors have referred to – including chronic pain disorder, fibromyalgia, and somatisation disorder – were not seen by those medical practitioners as in any sense related to her past work at the bank. These conditions may well be productive of the present incapacity for work. A number of doctors say this. However, compensable incapacity must be the result of compensable injury.
17. Mr C Clark, counsel for Comcare, submitted that the high watermark of the evidence before the previous Tribunal, and which led to Ms Findlay’s neck condition being accepted as work-related at all, had been the evidence of Dr Cooke.
18. In 2001, Dr Cooke[8], had diagnosed the neck condition already described, but he told us in his oral evidence that since June 2005, he had reviewed Ms Findlay twice for right shoulder complaints. He said Ms Findlay has a severe right supraspinatus tendinopathy, which he regarded as unrelated to her neck injury. At a second consultation in 2007 Dr Cooke had obtained a MRI scan of Ms Findlay’s cervical spine, as well as her right shoulder. Dr Cooke then wrote to Ms Findlay’s general practitioner, Dr S Bonchis[9], stating that Ms Findlay’s “main pathology involves the right supraspinatus tendon which is basically responsible for much of the symptoms of which she complains". He went on: "I doubt that the degenerative changes involving the C5/6 disc nor the mild broad-based protrusion are responsible for any of the symptoms of which she complains”.
[8] T22 (Q2005/747).
[9] Exhibit R9.
19. Dr Cooke observed that it was true that Ms Findlay had "clinical problems" in her cervical spine, but it was "well nigh impossible" to distinguish how much of these changes showing now were due to the natural ageing process, rather than a worsening of her accepted condition. He said that her neck condition could be causing some "but not all" of her pain, and he was adamant that the swelling Ms Findlay claims she observes in her arms was not related to her neck.
20. Taking account of the totality of the medical evidence in this case, we are not satisfied, on the balance of probabilities, that Ms Findlay’s neck condition has resulted in any incapacity for work. This is because Ms Findlay has other medical conditions, not work related, that far better explain her incapacity. The previous Tribunal had accepted Dr Reddan’s diagnosis of Ms Findlay suffering from a psychiatric disorder. There is no reason to go behind the Tribunal’s conclusion in that respect. We appreciate Ms Findlay perceives her disease process rather differently. As she would have it, all her problems find their origin in her previous working conditions. However, the medical evidence does not support this conclusion.
21. Ms Findlay’s exaggerated presentation of symptoms, in all likelihood attributable to her psychiatric disorder (accepting the evidence of Dr Reddan in that regard), makes difficult any assessment of what real restrictions arise from her neck condition. However, it can fairly be said that none of the medical reports before us saw Ms Findlay’s neck condition having any real role in ongoing incapacity for work.
22. We are not satisfied that Ms Findlay has established, on the balance of probabilities, that her accepted neck condition has “resulted in” incapacity for work. Accordingly we would affirm the reviewable decision dated 29 August 2006.
ISSUE 2 – WHETHER INJURY RESULTS IN PERMANENT IMPAIRMENT?
23. Ms Findlay maintains that she is entitled to a lump sum payment for whole person impairment. Taking into account the requirement of the SRC Act[10], at minimum, Ms Findlay must have a 10% impairment. Assessment of the degree of permanent impairment proceeds by way of medical evidence. In that regard the medical reports already referred to, make plain the difficulties of that assessment. The doctors refer to Ms Findlay’s exaggerated presentation, and her minimal degenerative changes.
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 24(7).
24. Dr Cooke, it will be recalled, had assessed Ms Findlay as having a 20% loss of function of her cervical spine in 2001, equivalent to a 20% “loss of function of Ms Findlay as a whole”[11]. There is limited guidance in his report as to how he satisfied himself of that percentage impairment, in view of Ms Findlay’s voluntary restrictions of movement.
[11] Folio 70; T22 (Q2005/747).
25. Dr McPhee said that it was difficult to assess whole person impairment in view of Ms Findlay’s exaggerated behaviours[12]. He thought that no more than 5% whole person impairment could be attributed under AMA guidelines. However in his view most, if not all, of her impairment was due to constitutional degenerative changes rather than her former employment. It will be recalled that Dr McPhee observed that Ms Findlay’s complaints of pain were not consistent with the limited radiological changes which were recorded, and the way she presented was not characteristic of musculoskeletal disorder. Dr Turner essentially agreed.
[12] T38 (Q2005/747).
26. Subsection 24(5) of the SRC Act states that:
Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
27. What the Guide to the Assessment of the Degree of Permanent Impairment reflects is an objective test, a loss of range of movement. The Guide to the Assessment of the Degree of Permanent Impairment refers at Table 9.6 to restrictions in range of movement of the cervical spine, and includes readings at 5% for “minor restrictions of movement” and at 10% for “loss of half normal range of movement”.
28. We were not satisfied that Ms Findlay had lost half the range of movement in the neck, so as to warrant a 10% rating. Dr Cooke’s assessment of Ms Findlay as having 20% whole person impairment does not stand up to scrutiny as an objective measurement, given Ms Findlay’s voluntary restrictions of neck movement.
29. There is another problem for Ms Findlay’s case with respect to “permanence” of impairment. Section 24(2) of the SRC Act provides guidance to what is or is not a permanent condition for the purposes of the Act. It provides:
For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
30. Dr Turner, whose speciality was in occupational medicine, thought that Ms Findlay had no permanent incapacity related to her neck. She also noted in her oral evidence that it was not possible to address permanence until Ms Findlay’s narcotic condition was dealt with. Dr L Mitchell, Ms Findlay’s general practitioner, at one time also said that Ms Findlay’s neck impairment would improve with appropriate treatment. In 2003, Dr Mitchell said that treatment had not been completed. These are important observations of which we must be mindful, as the SRC Act requires, at s 24 that the decision-maker be satisfied that there is no likelihood of improvement, and that all treatment has been undertaken.
31. We would add that we agree with Dr Mitchell’s opinion that Ms Findlay’s condition had not been treated adequately. This means we would not conclude that the requirement of “permanence” is met as defined in s 24(2) of the SRC Act.
32. In summary, we were satisfied that Ms Findlay’s neck condition has not been adequately treated, and in that respect, cannot be said to be “permanent” within the meaning of the SRC Act. We are also satisfied that, under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment, her loss of range of movement is less than 10%, and for that reason also, Ms Findlay is not entitled to be paid compensation for permanent impairment.
ISSUE 3 – WHETHER MS FINDLAY IS ENTITLED TO COST OF TRAVEL?
33. With respect to this claim, Ms Findlay, amongst other things, needed to show that she was required to travel a distance of more than 50km to attend a medical practitioner. This requirement is set out in s 16(7) of the SRC Act. At the time of the reviewable decision she lived at Jimboomba and later at Springfield. The doctor she was attending was at Park Ridge, a distance less than 50km. Had this not itself presented a problem for the claim, Ms Findlay in addition needed to demonstrate that her neck condition could not be looked after by general practitioners at a distance closer to Ms Findlay’s home.
34. The delegate had noted that there were two general practices within a 10km radius of Jimboomba, and eight practices within an 8km radius of Springfield. There were, on that account, practices nearby that did not require Ms Findlay to travel the distances that she undertook to attend her preferred doctor.
35. Ms Findlay observed that her past claims for mileage had been paid without question. Ms Findlay stated[13] that she was entitled to attend a female doctor, as she was not comfortable attending a male practitioner. She also maintained that medical practitioners at practices in Jimboomba were often absent, on call at Beaudesert Hospital.
[13] T10 (Q2006/746).
36. The relevant provisions are to be found at s 16(6) and s 16(7) of the Act:
16(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
16(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.
37. We were satisfied that there were general practitioners at closer distances than the distance Ms Findlay chose to go to. The SRC Act draws attention to what is “necessary”[14], and to a “journey as it was necessary for the employee to make”[15]. The Act also directs the decision-maker to have regard to such matters as the place where medical treatment was available; the means of transport; and the route the employee could have travelled. Taking those matters into account we were satisfied that there were practices at a closer distance, and it was not “necessary” for Ms Findlay to travel the greater distance.
[14] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16(6).
[15] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16(7).
38. Furthermore, we accept the evidence as presented to us that Ms Findlay’s travel was for distances less than 50km by return journey and for that reason alone travel costs were not payable to her. The respondent’s evidence (“whereis.com” map)[16] in that regard showed the distance from Jimboomba to Park Ridge city centre to be between 17.71km and 20.56km, and the distance from Springfield to Park Ridge city centre to be 22.48km.
ISSUE 4 – THE CLAIMS FOR UNRESOLVED RSI; MEDICATION INDUCED CONSTIPATION; TEETH DECAY; HIATUS HERNIA; GASTRO-COLIC REFLUX AND INTESTINAL COLIC
[16] Exhibit R12.
39. In October 2006, Ms Findlay claimed for: “unresolved repetitive strain injury (RSI)…; medication induced constipation; teeth decay caused by accepted injury; hiatus hernia caused by medication; gastro-colic reflux and intestinal colic”.
40. As we understand her case in this regard, Ms Findlay claims that these sundry conditions are connected with her accepted neck condition and, perhaps, her carpal tunnel syndrome in two discrete ways:
·for the “unresolved RSI”, her claim is that the neck condition is but one manifestation of her wider syndrome of “RSI” and that if the neck condition is accepted, logic dictates that all her other musculoskeletal problems ought be accepted; and
·for all other claimed conditions, these arise from the effects of medication prescribed to her for treatment of the neck and possible carpal tunnel conditions.
41. Ms Findlay made her claim designating “unresolved RSI” adopting that description from the words used by her then general practitioner, Dr Bonchis. Dr Bonchis referred to “possible” unresolved RSI.
42. Dr L Ryan, consultant physician, examined Ms Findlay in 2005[17] and stated her belief that the diagnosis of RSI is now considered a questionable diagnosis by rheumatologists “and I think best avoided”. She mentioned[18]:
I have emphasised to Sherrill that I think her best therapy is what she is already undergoing with physiotherapy and in particular, with remaining physically as active as she possible can maintaining the strength in her arms which I think is mainly reduced by inactivity. She has plans to undergo a course to consider conflict remediation which I think is an excellent idea as some of her pain syndrome is related to her stressful home situation.
[17] T16 (2007/3175).
[18] Folio 76; T16 (2007/3175).
43. Dr Cameron was asked to comment on the possible diagnosis from a neurological perspective. Dr Cameron observed[19] that the term RSI had fallen from use in the medical profession since the 1970’s, and is now “not regarded as a specific medical condition”.
[19] Exhibit R6.
44. In 2007, Dr Cameron again carried out extensive testing. Results revealed nothing abnormal. Nerve conduction studies were normal. Dr Cameron could not detect any wasting or weakness in the upper or lower limbs, the shoulder girdle or neck.
45. In the context of the extensive specialist reporting on Ms Findlay’s case, the comment made by Dr Bonchis about possible unresolved RSI appears to be one made in passing rather than put forward as a diagnosis. We would simply observe that we prefer the conclusions of the specialists. We agree with the conclusions of the previous Tribunal that Ms Findlay’s case is best explained as involving a psychiatric disorder rather than organic disease or injury.
46. Accordingly, we would affirm that part of the decision, rejecting Ms Findlay’s claim for “unresolved RSI”, for the reasons that the diagnosis of the disorder is not made out, and we prefer the evidence of Dr Reddan that Ms Findlay suffers a somatisation disorder, unrelated to her past work.
47. Turning then to the claims relating to the adverse side effects of medication, Ms Findlay provided evidence from internet and other sources in support of her case. Once again, Dr Bonchis appears to be the source of diagnosis, in a report dated 21 October 2006, where she makes reference to “drug induced constipation, possible gastro-oesophageal reflux due to medication, possible…teeth decays”[20].
[20] T15 (2007/3175).
48. Ms Findlay provided several newspaper articles and extracts from internet sites, referring to research that indicates a connection between taking methadone and allied drugs and deterioration of teeth. The only report before us was from Dr F Angeli, dental surgeon, whose report stated as follows[21]:
I am not of the opinion that medications have caused her current dental problems.
[21] T12 (2007/3175).
49. In the face of this evidence from Ms Findlay’s treating dentist, confirming that there was no connection in her case, we do not accept that Ms Findlay can show any connection between her tooth decay, and her previous employment.
50. With reference to the claims more generally, the doctors who have examined Ms Findlay do not suggest that Ms Findlay’s neck and wrist conditions would warrant taking long term heavy dosages of narcotics as she has done. It will be recalled that several doctors commented upon and questioned the need for these addictive drugs in her case. It is true that she has, or had, an addiction to them, but we see no connection between the prescription of this medication and the accepted injuries. The minor organic symptoms in Ms Findlay’s neck simply did not warrant treatment with narcotics.
51. We accept, as Dr M Mar Fan observed[22], that Ms Findlay’s constipation (and other problems in her digestive system) are due to taking medication. We do not conclude, however, that the accepted injuries provide a connection through which these other conditions can be related back to her work at the Commonwealth Bank.
[22] T18 (2007/3175).
52. With respect to Ms Findlay’s claims as these relate to side effects of medication (constipation, hiatus hernia, gastro-colic reflux and intestinal colic), we do not accept that employment contributed to a material degree to her developing these conditions. We affirm the decisions rejecting her claims to have those conditions accepted as related to her past employment.
DECISION
53. In each of applications 2005/746, Q2005/747, Q2006/691, Q2006/692 and 2007/3175, the Tribunal affirms the reviewable decision.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member and Assoc Prof J B Morley RFD, Member
Signed: .............................[sgd]........................................................
Joan, Torbey AssociateDates of Hearing 10 – 12 June 2008
Date of Decision 11 September 2008
The Applicant was self-represented
Counsel for the Respondent Mr C Clarke
Solicitor for the Respondent Sparke Helmore Lawyers
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