Fraser and Military Rehabilitation and Compensation Commission

[2006] AATA 384

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 384

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/782
  Nº V2004/1119

GENERAL ADMINISTRATIVE DIVISION

Re:         LISA MAY FRASER

Applicant

And:MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:3 May 2006

Place:Melbourne

Decision:Application V2003/782: The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to Ms Fraser under s 19 of the Safety, Rehabilitation and Compensation Act 1988 in weekly payments from 2 July 2001.  The matter is be remitted to the respondent for further consideration with the finding that Ms Fraser is able to engage in employment for 25 hours per week.

Application V2004/1119: The Tribunal sets aside the decision under review and substitutes a decision that Ms Fraser has suffered from chronic pain and secondary depression arising out of, or in the course of, military service, or to which military service has materially contributed, and is entitled to compensation under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

(sgd) G.D. Friedman

Senior Member

COMPENSATION - stress fractures of feet - chronic pain in feet and legs - depression - whether depression related to military service - whether applicant capable of full-time employment 

Safety, Rehabilitation and Compensation Act 1988 s 14, 16, 19(4)

REASONS FOR DECISION

3 May 2006  G.D. Friedman, Senior Member

1.      Lisa Fraser wanted to be a psychologist with the Australian Army.  After completing Year 12 in 1997 she deferred university to undertake recruit training at Kapooka Barracks in Wagga Wagga, New South Wales as a member of the Army Reserve.  However, after three weeks she suffered stress fractures of her feet and could not continue.  The respondent accepted liability, but on 4 June 2001 decided that Ms Fraser was able to earn an amount equivalent to Australian Public Service Level 1, Administrative Officer (APS 1).  On 21 June 2004 the respondent disallowed Ms Fraser’s claim for depression arising from chronic pain, resulting from her stress fractures.

2.      The issues for the Tribunal are whether Ms Fraser suffers from depression that is a consequence of her military service (application V2004/1119), and whether she is capable of working full-time at the APS 1 level (application V2003/782), such that she is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act).

DOES MS FRASER SUFFER FROM DEPRESSION AS A CONSEQUENCE OF HER MILITARY SERVICE?

3.        Ms Fraser told the Tribunal that before joining the Army Reserve she worked at various part-time jobs while completing her secondary studies, and had an active sporting and social life.  She was accepted into a Bachelor of Arts in Social Science course at Swinburne University of Technology (Swinburne) Lilydale campus, and she planned to commence in second semester 1998 after her recruit training.  She said that after suffering stress fractures in her feet in April 1998 shortly after commencing her training, she was admitted to Kapooka Medical Centre for bed rest. She remained at the centre for one week, after which she returned to her unit in Melbourne.  She stated that her feet were still very sore, and she was given a self-managed rehabilitation program involving low-weight activities.  She said that the stress fractures caused prolonged pain in her feet.  Ms Fraser said that she commenced her studies in August 1998 but had difficulty coping because of ongoing pain in her legs and feet, so she reduced the workload and began studying from home.

4.        Ms Fraser stated that in October 1998 she commenced her relationship with her partner, whom she had known previously.  They commenced living together in May 1999.  She said by 1999 she was taking Panadeine Forte for the pain in her feet and legs, and she struggled to complete her study commitments because of the pain and difficulties in concentrating.  Ms Fraser explained that she was first prescribed anti-depressant medication in 1999, and that her relationship with her partner was beginning to suffer because of the depression.  In particular she said that he found it difficult to help her deal with the depression.  She began seeing Dr A. Leitmanis, psychiatrist, who prescribed anti-depressants.  She saw him on a regular basis until a referral to Dr Sheehan in 2004.

5.        Ms Fraser stated that in April 2000 she applied for special consideration because she was unable to attend the campus on a regular basis.  This was due to the effect of her medication, pain in her feet and legs when travelling, and sitting in lecture rooms.  She completed four subjects each semester by studying from home.  She withdrew from two subjects in second semester 2000 and continued as a part-time student.  In September 2000 she became pregnant and gave birth to her daughter in July 2001.  She completed three subjects in first semester 2001 and took leave in second semester to care for her child, and said she had constant pain in her feet and legs during this time.  In 2002 Ms Fraser completed three subjects in second semester.  She explained that in early 2003 she attended a pain management course, and completed her final subject in June 2003. 

6.        Under cross-examination Ms Fraser agreed that she was able to walk short distances when discharged from Kapooka Medical Centre, but denied that she was pain-free.  She said that she was sent home to convalesce because a further stay in hospital was not considered appropriate.  She said her treatment consisted of rest and exercises recommended by a physiotherapist.  Ms Fraser emphasised that the stress she suffered from her university studies arose from her pain, and not from the stress of university itself.  She denied that her relationship difficulties, unplanned pregnancy and university commitments affected her emotionally, and reiterated that her chronic pain was the cause of her psychological problems.   

7.        In a report dated 25 October 2002 Dr Leitmanis diagnosed depression secondary to chronic pain and said that the condition was the direct result of the injury that caused the stress fractures.  On 30 January 2004 Dr Leitmanis noted that Ms Fraser had experienced difficulties in 2003 in her relationship with her partner and that she was suffering extreme stress from emotional issues and the physical requirements of child-care.  He maintained his earlier diagnosis, and said that her depression is controlled with continued treatment and does not render her totally and permanently disabled.

8.        On 16 June 2004 Dr R. Ratnayake, consultant psychiatrist, diagnosed major depressive disorder, single episode, in partial remission.  She said that Commonwealth employment was not the principal cause of Ms Fraser’s condition, which would probably have developed despite the employment.  She stated that Ms Fraser appeared to have developed the condition in the context of relationship difficulties, although chronic pain may have contributed to the development of a depressive disorder.  Dr Ratnayake said that the Commonwealth employment contributed less than 10 per cent of her condition.

9.        In oral evidence Dr Ratnayake stated that she assumed that Ms Fraser was diagnosed with depression in 1999, and that her foot pain was insufficient to be the cause of her depression.  Dr Ratnayake said that during the eight-month gap between initial injury and depression Ms Fraser was with her partner, then separated and later reconciled, so that relationship issues were more significant than the injury.  Dr Ratnayake added that CT scans showed that the stress fractures had healed, and that people with mild pain do not develop depression.  She noted that Ms Fraser had been able to complete her university studies, and said that depression can increase a person’s perception of chronic pain.  Under cross-examination Dr Ratnayake agreed that she had examined Ms Fraser for one hour on one occasion, but maintained that she was in a good position to give an objective assessment of the overall situation.       

10.      In a report dated 7 November 2004 Dr Sheehan disagreed with Dr Ratnayake and concluded that Ms Fraser’s depression is materially related to her military service, being a direct result of her chronic pain since her initial injury in 1998.  He said that she is receiving treatment with antidepressant medication and is attending a psychologist for relaxation training and stress management.  Dr Sheehan gave oral evidence that he sees Ms Fraser monthly, and that her foot pain has persisted.  He said that her pain has been acute and has led to her depression.  He stated that any relationship problems experienced by Ms Fraser resulted from her chronic pain, and did not affect her mental state.  Under cross-examination Dr Sheehan said that medical records showing a pain-free period after her discharge from hospital in 1998 were inconclusive, because each person’s pain threshold varies.         

11.      On 12 December 2001 Dr P. Janovic, Ms Fraser’s general practitioner, noted that Ms Fraser had consulted a psychiatrist about her depression.  In oral evidence he stated that the trigger for her depression was probably an incident or accident that was consistent with her experiences in the Army Reserve.  He agreed that factors other than stress fractures (such as relationship difficulties or an unplanned pregnancy) might have contributed to her depression. 

12.       In reaching a decision the Tribunal finds that Ms Fraser gave evidence in an honest and frank manner, and accepts her account of her admission to Kapooka Medical Centre as being principally for bed rest.  The Tribunal accepts her evidence that on discharge she was unable to walk reasonable distances without pain, and that her foot pain continued while she attempted a non-weight-bearing program of exercises, leading to her to seek medical treatment.  The pain has been chronic.

13.      In respect of Ms Fraser’s depression, the Tribunal accepts the medical evidence that this condition was diagnosed in 1999.  The Tribunal takes into account Ms Fraser’s description of the symptoms of her psychological state and the impact of matters such as the relationship with her partner, problems adapting to parenthood for the first time in July 2001, and her evidence about the constant presence of the pain in her legs and feet.  The Tribunal notes that that there were difficulties in the relationship towards the end of 2001 when Ms Fraser and her partner separated briefly in October 2001 before reconciling for a period, and that further difficulties occurred in 2002.

14.       The Tribunal accepts Ms Fraser’s evidence that her relationship difficulties were caused, in part, by her partner’s inability to deal with her depression arising from her chronic pain.  This is consistent with the evidence given by Dr Sheehan and Dr C. Mack, rheumatologist, based on the history given to them by Ms Fraser. The Tribunal prefers their evidence to that of Dr Ratnayake, who relied to some extent on the reports from Dr Leitmanis.  However, although Dr Leitmanis referred to relationship difficulties from July 2002, he concluded that the depressive disorder was secondary to Ms Fraser’s pain and disability, which was caused by the stress fractures.  Dr Ratnayake saw Ms Fraser once, and her recording of the relationship difficulties experienced by Ms Fraser seems to be incomplete.

15.      In the Tribunal’s view Dr Ratnayake’s opinion is speculative, and there does not appear to be any basis for her conclusion that marital difficulties were more important than chronic pain in precipitating and perpetuating depressive symptoms.  The Tribunal prefers the evidence of Dr Leitmanis and Dr Sheehan, whose opinions that ongoing pain arising from the effects of the stress fractures was the major cause of depression, are plausible and are consistent with Ms Fraser’s evidence and the circumstances of her situation.

16.      For these reasons the Tribunal finds that Ms Fraser’s depression was secondary to her chronic pain arising from her stress fractures of the feet, and was a consequence of her military service, so she is entitled to compensation under the Act.   

IS MS FRASER CAPABLE OF WORKING FULL-TIME AT THE APS 1 LEVEL?

17.      Ms Fraser told the Tribunal that she receives Centrelink benefits plus some child support from her partner and lives with her child in rented accommodation.  She said that she still holds a driver’s licence but cannot drive for more than 15 minutes.  Walking and sitting are painful.  She has difficulty sleeping and performing basic household tasks because of her chronic pain.  She believes that she would have qualified as a psychologist and found employment but for the pain and depression.  She noted that she has gained considerable weight because she is unable to engage in physical activities.  She said that clerical work would be difficult because of constant muscle tension that accompanies chronic pain.

18.      Under cross-examination Ms Fraser agreed that she had engaged in kickboxing before her Year 12 studies, but maintained that her stress fractures have caused ongoing physical and psychological problems since 1998.  She agreed that she was able to use a personal computer to fulfil her university requirements and carried out tasks such as filing documents and communicating with lecturers, tutors and other students by telephone and electronic mail.  She said that she was unable to undertake any part-time work while studying.  She stated that her studies have been completed and her child is almost ready for school, but she could not cope physically with the travel and other requirements of full-time employment, and her medication affects her memory and concentration.  She also has difficulty sleeping.  Ms Fraser emphasised that she would be willing to consider the use of aids such as a wheelchair but has been advised against this by various medical practitioners. She said they preferred her to undertake practical exercises that do not unduly affect her mobility.  She said that she is not in a financial position to purchase a motorised scooter or similar item that might assist her.

19.      On 30 March 1999 Dr Mack referred to bilateral foot pain, and stated that the pain was a direct result of her initial stress fractures.  On 7 July 2000 Dr P. Mutton, occupational physician, stated that Ms Fraser would be able to perform sedentary work, such as office duties, that required minimal walking.  On 30 May 2001 Dr Mutton noted that Ms Fraser was undertaking a university course, and assessed her as capable of full-time clerical or administrative duties.

20.      In oral evidence Dr Mutton stated that Ms Fraser presented with no evidence of a limp or discomfort.  Under cross-examination he said that he could detect no exaggeration of embellishment by Ms Fraser, and agreed that his assessment of her ability to walk might be different if she was asked to walk for longer distances than the short distance in his consulting rooms.  He said that he asked her general questions such as her ability to engage in sporting activities, but acknowledged that he did not discuss any difficulties with her ability to perform basic tasks in daily living.  He said that his conclusions about her ability to work full-time were based on her ability to complete her studies at almost a full-time workload, but he agreed that he was not aware of issues such as special consideration and concessions she received from Swinburne.       

21.      On 12 December 2001 Dr Janovic considered that Ms Fraser had significant limitations on her ability to perform her pre-injury or other employment, but might be able to attempt a graduated return to part-time employment with restrictions based on her reduced capabilities.  On 3 June 2002 Mr M. Blackney, orthopaedic surgeon, stated that Ms Fraser could perform full-time office or sedentary work.  On 17 October 2002 Dr Janovic reported that she would not be able to perform employment duties that involved prolonged standing or walking because of the chronic pain.  On 24 October 2002 Dr D. Lewis, rheumatologist, stated that Ms Fraser was incapable of full-time work because of her reduced functional capacities.

22.      On 20 February 2003 the discharge report from Cedar Court Rehabilitation Hospital referred to an improvement in Ms Fraser’s mental state and recommended the provision of an occupational rehabilitation provider to assist with return to work issues.  The report noted that Ms Fraser expressed a desire to return to some kind of part-time work.  On 25 October 2002 Dr Leitmanis said that Ms Fraser is unable to work full-time but could manage four hours per day, three days per week, but that even this would lead to an increase in pain. 

23.      On 13 March 2004 Dr N. Van Wetering, sports physician, stated that Ms Fraser had developed chronic pain and depression that were not present to any extent before military service.  He said that overall she would be theoretically limited to sedentary desk-type duties, but because of her physical pain and her psychological state she is virtually unemployable, although not permanently.  On 7 November 2004 Dr Sheehan assessed her as totally incapacitated for any employment due to her work-related condition.

24.      On 22 November 2004 Dr C. Baker, specialist in occupational medicine, reported that because of chronic pain syndrome Ms Fraser was not capable of pre-injury employment, but that she could undertake sedentary clerical or administrative work if the pain is controlled.  He said that her physical and psychological state would prevent full-time employment until her psychological state improves and her pain is controlled.  In a vocational assessment dated 15 August 2005 Ms C. Abufhele, senior occupational rehabilitation consultant, concluded that Ms Fraser receives considerable family support and has the capacity to work on a part-time basis in a sedentary role.  She would also benefit from seeking the assistance of local disability support services.

25.      Dr Janovic gave oral evidence that Ms Fraser was suffering from a chronic pain syndrome.  He said that there was a causal connection between this and her stress fractures, and that she was affected physically and psychologically.  In oral evidence Dr Mack said that Ms Fraser had flat feet, but he was unable to state whether her abnormal gait caused her stress fractures.  In relation to medical notes which recorded that Ms Fraser was described as pain-free and could walk 10 days after ceasing her marching activity, he acknowledged that this might suggest she was recovering from the initial fractures.  However he said that it might also be an indication that she was managing her pain.

26.      The Tribunal accepts Ms Fraser’s evidence that chronic pain arising from the stress fractures in her feet limits the amount and type of physical activity in which she is able to engage.  She also has limitations because of her psychological state and ongoing depression.  The Tribunal takes into account that she was given special consideration by Swinburne and was able to complete her university degree with distinctions and credits while suffering constant pain, despite an inability to attend the university regularly.

27.      The Tribunal accepts Dr Mutton’s assessment that Ms Fraser’s chronic pain has affected her mobility and restricted her options, and that her performance as a student demonstrates that she has the capacity to undertake clerical and administrative tasks.  This is supported by Mr Blackney.  The Tribunal places considerable weight on the occupational assessment by Ms Abufhele and Dr Baker. After hearing Ms Fraser’s evidence the Tribunal agrees that she is a capable and resolute person who has completed her studies and managed the responsibilities of a new parent under adverse circumstances, primarily due to her chronic pain and depression.

28.      With her administrative and organisational ability and her computer skills, Ms Fraser is capable of working in an administrative or clerical capacity taking into account her physical limitations including sitting and walking and the ongoing pain.  She should be able to gain access to community support services for disabled persons, and would benefit from aids such as a wheelchair or motorised scooter, which may be available with financial assistance from family or the community.

29.      In accepting Dr Mutton’s assessment that Ms Fraser is capable of working, the Tribunal prefers the assessment by Ms Abufhele and Dr Baker to that of Dr Mutton, whose report dated 30 May 2001 gave little weight to Ms Fraser’s depression, which he described as mild and a temporary condition.  Dr Mutton also acknowledged that the he did not discuss in detail with Ms Fraser her ability to perform basic household tasks, which would have an impact on the number of hours that she could work per week.  The Tribunal concludes that, although Ms Fraser is capable of sedentary office-type employment, the combination of chronic pain and depression, together with the effects of the prescribed medication for both conditions, would prevent her from performing clerical or administrative tasks on a full-time basis.  With appropriate supports, she would be capable of performing the duties of APS1 (or Government Employee Grade 2) for 5 hours per day, or 25 hours per week.

30. For these reasons the Tribunal finds that Ms Fraser is entitled to compensation under s 19 of the Act. Since becoming incapacitated for work Ms Fraser has not sought suitable employment. Under s 19(4)(e) of the Act the question of the amount of compensation payable under s 19(2) and (3) of the Act will need to be re-considered by the respondent in accordance with the Tribunal’s findings.

DECISION

31.Application V2003/782: The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to Ms Fraser under s 19 of the Safety, Rehabilitation and Compensation Act 1988 in weekly payments from 2 July 2001. The matter is be remitted to the respondent for further consideration with the finding that Ms Fraser is able to engage in employment for 25 hours per week.

Application V2004/1119: The Tribunal sets aside the decision under review and substitutes a decision that Ms Fraser has suffered from chronic pain and secondary depression arising out of, or in the course of, military service, or to which miliary service has materially contributed, and is entitled to compensation under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.      

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Dates of hearing:  30 January 2006, 27 and 28 April 2006

Date of decision:  3 May 2006

Counsel for applicant:                  Mr N. Horner
Solicitor for applicant:                  Slater & Gordon
Counsel for respondent:              Mr J. Wallace
Solicitor for respondent:              Sparke Helmore